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Filed 10/9/20 P. v. Benson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JIMMY LEE BENSON,

Defendant and Appellant.

C089862

(Super. Ct. Nos. STK-CR-FE2004-0009550, SF093367B)

Defendant Jimmy Lee Benson appeals from the trial court’s order denying his 

petition for resentencing under Penal Code section 1170.95.1 Defendant contends the

trial court erred by summarily denying his petition after determining he failed to establish 

a prima facie case under the provisions of the statute. He argues the trial court must 

appoint counsel and allow the petition to proceed for full consideration on its merits. We 

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 Undesignated statutory references are to the Penal Code.
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agree the trial court erred in denying defendant’s petition and will remand the case for 

further proceedings.

BACKGROUND

A. Defendant’s Case

In 2007 a jury found defendant guilty of one count of first degree murder (§ 187), 

three counts of attempted willful murder (§§ 664, 187), and one count of participation in 

a criminal street gang (§ 186.22, subd. (a)). The jury also found true a special 

circumstances allegation that the murder was committed while actively participating in a 

criminal street gang (§ 190.2, subd. (a)(22)), as well as firearm enhancement allegations

(§ 12022.53) and criminal street gang enhancement allegations (§ 186.22, subd. (b)(1)) as 

to the murder and attempted murder offenses. The trial court sentenced defendant to life 

in prison without the possibility of parole, plus four indeterminate terms of 25 years to 

life, plus a determinate term of 42 years four months. On appeal, we affirmed the 

convictions, but identified sentencing errors. (People v. Benson (Jan. 7, 2010, C055253) 

[nonpub. opn.] (Benson).) Ultimately, defendant received an aggregate sentence of 124 

years four months to life, plus life without the possibility of parole.

In our opinion, we laid out the evidence introduced at trial. In brief, defendant and 

several gang members went to a birthday party that had rival gang members in 

attendance. After the party began to break up, party attendees, including groups of gang 

members, congregated in the street. Defendant and his friends had guns and fired at the 

homeowner and rival gang members. Four people were hit by bullets, and one person 

died. Defendant claimed he only fired in the air to scare people. (Benson, supra, 

C055253 [at pp. 3-7].)

We described the prosecution’s theory at trial as follows: “The prosecution 

pursued a theory of guilt premised on aider and abettor liability. As explained to the jury, 

defendant was a member of the North Side Gangster Crips gang. He and his fellow gang 

members felt disrespected by the presence of a rival gang in their neighborhood. They 
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attended the party armed with guns, and the outcome was predictable. The prosecution 

conceded that no one likely intended to kill the eventual homicide victim; the deadly 

shots were directed at rival gang members who were yelling gang epithets, not the 

innocent bystanders who got in the way. The prosecutor argued that defendant 

encouraged his fellow gang members through words and by participating in the gunfire; 

he thus was guilty as an aider and abettor.” (Benson, supra, C055253 [at p. 3].) Later in 

the opinion, we further explained: “The prosecution tried defendant for first degree 

murder on the theory that he aided and abetted others in shooting guns in a grossly 

negligent manner, and as a natural and probable consequence, murder and attempted 

murder resulted.” (Id. [at p. 50].)

The trial court instructed the jury on principles of aiding and abetting intended 

crimes as well as the natural and probable consequences doctrine. Under that doctrine, 

“ ‘ “[a] person who knowingly aids and abets criminal conduct is guilty of not only the 

intended crime [target offense] but also of any other crime the perpetrator actually 

commits [nontarget offense] that is a natural and probable consequence of the intended 

crime.” ’ ” (People v. Chiu (2014) 59 Cal.4th 155, 161.) “ ‘Because the nontarget 

offense is unintended, the mens rea of the aider and abettor with respect to that offense is 

irrelevant and culpability is imposed simply because a reasonable person could have 

foreseen the commission of the nontarget crime.’ ” (Id. at p. 164.) The jury instructions 

provided by the court permitted a murder conviction under the natural and probable 

consequences doctrine with assault with a firearm or shooting a firearm in a grossly 

negligent manner as the target crimes. The trial court also read an instruction on the 

degrees of murder, which explained that defendant “has been prosecuted for first degree 

murder under the theory of aider and abettor only.”

B. Senate Bill No. 1437

Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on 

January 1, 2019, was enacted “to amend the felony murder rule and the natural and 
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probable consequences doctrine, as it relates to murder, to ensure that murder liability is 

not imposed on a person who is not the actual killer, did not act with the intent to kill, or 

was not a major participant in the underlying felony who acted with reckless indifference 

to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To accomplish this, the bill 

amended section 189 to limit liability under the felony-murder doctrine and, as relevant 

here, amended section 188 to provide: “Except as stated in subdivision (e) of [s]ection 

189, in order to be convicted of murder, a principal in a crime shall act with malice 

aforethought. Malice shall not be imputed to a person based solely on his or her 

participation in a crime.” (Stats. 2018, ch. 1015, §§ 2-3.) “As a result, the natural and 

probable consequences doctrine can no longer be used to support a murder conviction. 

[Citations.] The change did not, however, alter the law regarding the criminal liability of 

direct aiders and abettors of murder because such persons necessarily ‘know and share 

the murderous intent of the actual perpetrator.’ [Citations.] One who directly aids and 

abets another who commits murder is thus liable for murder under the new law just as he 

or she was liable under the old law.” (People v. Lewis (2020) 43 Cal.App.5th 1128, 

1135, review granted Mar. 18, 2020, S260598.)

Senate Bill No. 1437 also added section 1170.95, which allows those “convicted 

of felony murder or murder under a natural and probable consequences theory [to] file a 

petition with the court that sentenced the petitioner to have the petitioner’s murder 

conviction vacated and to be resentenced on any remaining counts when all of the 

following conditions apply: [¶] (1) A complaint, information, or indictment was filed 

against the petitioner that allowed the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences doctrine. [¶] (2) The 

petitioner was convicted of first degree or second degree murder following a trial . . . . 

[¶] (3) The petitioner could not be convicted of first or second degree murder because of 

changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a).)
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Under section 1170.95, subdivision (b)(1), the petition must include: “A

declaration by the petitioner that he or she is eligible for relief under this section, based 

on all the requirements of subdivision (a)”; “[t]he superior court case number and year of 

the petitioner’s conviction”; and “[w]hether the petitioner requests the appointment of 

counsel.”

C. Defendant’s Petition

In 2019 defendant filed a form petition for resentencing under section 1170.95. In 

the petition, defendant declared that a complaint, information, or indictment had been 

filed against him that allowed the prosecution to proceed under a theory of felony murder 

or murder under the natural and probable consequences doctrine, and that he was 

convicted of first degree or second degree murder under the felony-murder rule or the 

natural and probable consequences doctrine. According to the petition, he could not now 

be convicted of first or second degree murder based on the recent changes to sections 188 

and 189. He requested that the court appoint him counsel. The prosecution filed a 

request for an extension of time to file a response to the petition.

In an ex parte order, the trial court denied the petition. In particular, the court 

found: “On January 5, 2007, Defendant was convicted of Penal Code section 187, 

murder in the first degree; three counts of Penal Code sections 664/187, attempted 

murder; and Penal Code section 186.22, criminal street gang participation. Defendant 

was tried with his Co-Defendant, David Lewis. As to the murder conviction, the jury 

found to be true that Defendant, Jimmie [sic] Lee Benson, acted for the benefit of a 

criminal street gang, Penal Code section 190.2(a)(22); that Defendant, Jimmie [sic] Lee 

Benson, personally discharged a firearm, Penal Code section 12022.53(c); that Defendant 

personally used a firearm Penal Code section 12022.5(a) and that a principal discharged a 

firearm.

“Defendant was sentenced to life without the possibility of parole and four 

indeterminate terms of 25 years to life plus a determinate term of 42 years 4 months.
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“The court has reviewed the Petition, the Remittitur from the Third District Court 

of Appeal, the jury instructions and Abstract of Judgment. The trial was held before Hon. 

George J. Abdallah, Jr., Judge of the Superior Court.

“The evidence revealed that Defendant was a member of the North Side Gangster 

Crips criminal street gang. Defendant and several fellow gang members attended a 

birthday party at a private home in Stockton, California in the fall of 2004. After the 

party was ended by the home owner, Defendant and his fellow gang members remained 

in the nearby street, confronted and shot the homeowner and shot other guests while they 

exchanged gunfire with rival gang members. A young man, [the victim], was a party 

guest with his girlfriend. [The victim] was shot in the head. Defendant testified he was 

armed but only shot ‘in the air’ ‘to clear the way.’

“The jury was instructed pursuant to CALCRIM [No.] 521 that ‘The Defendant, 

Jimmie [sic] Lee Benson, has been prosecuted under the theory of aider and abettor only.’

The jury was also instructed pursuant to CALCRIM [No.] 403: aiding and abetting 

intended crime. One who aids and abets must share the specific intent of the perpetrator, 

People v. Beeman (1984) 35 Cal.3d 547, 560. As set forth in CALCRIM [No.] 521, the 

specific intent element for the crime of murder in the first degree is the intent to kill.

Defendant, Jimmie [sic] Lee Benson, was convicted of the crime of Murder in the first 

degree. As a matter of law, Defendant, Jimmie [sic] Lee Benson, has failed to make a 

prima facie showing that he falls within the provisions of Penal Code section 1170.95. 

Defendant’s Petition is DENIED.”

DISCUSSION

Defendant contends the trial court erred by summarily denying his petition, even 

though he properly alleged a prima facie basis for relief because his conviction was 

premised on a natural and probable consequences theory. Thus, the court was obligated 

to appoint counsel and allow his petition to proceed.
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Both parties agree that the process contemplated in section 1170.95 includes two 

separate prima facie determinations. In the first determination, the trial court must 

review a defendant’s petition and, reviewing the face of the petition in addition to other 

“readily ascertainable” materials (§ 1170.95, subd. (b)(2)), decide whether the petition 

falls within the purview of the section. If the petition survives the screening, and the 

defendant requests counsel, the trial court must appoint counsel and receive briefing on 

defendant’s eligibility for relief. The court then makes a second determination whether 

the petitioner has made a prima facie showing that they are entitled to relief. This 

understanding tracks the language of the statute and is in accordance with recent case law 

construing the statute. (§ 1170.95, subd. (c); People v. Verdugo (2020) 44 Cal.App.5th 

320, 332, review granted Mar. 18, 2020, S260493; People v. Lewis, supra, 

43 Cal.App.5th at pp. 1139-1140, rev. granted.)

The parties disagree whether defendant stated an initial prima facie case in his 

petition. Defendant argues the trial court’s decision denying his petition, which found he

did not state a prima facie case because the jury instructions read at trial allowed for a 

theory of direct aider or abettor liability, was incorrect. The People defend the trial 

court’s decision and contend defendant was ineligible for relief as a matter of law. We 

agree with defendant.

A court’s initial prima facie review under subdivision (c) “is a preliminary review 

of statutory eligibility for resentencing.” (People v. Verdugo, supra, 44 Cal.App.5th at 

p. 329, rev. granted.) “The court’s role at this stage is simply to decide whether the 

petitioner is ineligible for relief as a matter of law, making all factual inferences in favor 

of the petitioner.” (Ibid.)

Here, defendant stated in his declaration that he was convicted of murder under the 

natural and probable consequences doctrine, which would not have supported a murder 

conviction after the changes to sections 188 and 189. The record of conviction supports 

this statement. As defendant notes, our opinion in the direct appeal of his convictions 
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characterized the prosecution theory of the case as one involving the natural and probable 

consequences doctrine. (Benson, supra, C055253 [at p. 50].) Although, as the People 

note, the trial court read jury instructions related to direct aider/abettor liability, the court 

also instructed the jury on the natural and probable consequences doctrine. Thus, the jury 

instructions do not conclusively establish the jury could only have found defendant guilty 

as a direct aider or abettor, rather than through the natural and probable consequences 

doctrine. While it is possible that defendant was convicted on a direct aider/abettor 

theory of liability, the mere existence of that possibility does not make defendant

ineligible for relief as a matter of law. Construing the facts in favor of defendant, we 

cannot conclude as a matter of law that defendant was convicted purely on a direct 

aider/abettor theory of liability, rather than under the natural and probable consequences 

doctrine.

Nor are we persuaded by the argument that the jury’s true finding on the gang 

special circumstances enhancement under section 190.2, subdivision (a)(22), disqualifies 

defendant from stating a prima facie case. This argument is premised on the contention 

that the enhancement can apply only to a defendant who possesses the intent to kill. As 

with the argument above, our prior opinion in defendant’s case forecloses this contention. 

(Benson, supra, C055253 [at p. 60].)

We conclude the trial court erred in summarily denying defendant’s petition for 

resentencing.
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DISPOSITION

The trial court’s order denying defendant’s petition for resentencing is reversed 

and the case is remanded for the trial court to appoint counsel and determine whether 

defendant is entitled to relief under section 1170.95.

 /s/

RAYE, P. J.

We concur:

 /s/

ROBIE, J.

 /s/

MAURO, J.