Filed 2/13/24 P. v. Bennett CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL BENNETT,

Defendant and Appellant.

 B328092

 (Los Angeles County

 Super. Ct. No. BA304246)

APPEAL from an order of the Superior Court of the County 

of Los Angeles, Eleanor J. Hunter, Judge. Affirmed.

Law Offices of Allen G. Weinberg, Allen G. Weinberg, 

under appointment by the Court of Appeal, for Defendant and 

Appellant.

No appearances for Plaintiff and Respondent.
2

I. INTRODUCTION

Defendant Michael Bennett appeals from the trial court’s 

order denying his petition for resentencing under Penal Code 

section 1172.6.1 We affirm.

II. BACKGROUND

A. Facts2

On December 30, 2005, defendant, a gang member, was 

involved in a car-to-car shooting. Driving his girlfriend’s 

Mustang, defendant followed his cohorts’ Saturn into rival gang 

territory. The Saturn pulled in front of a parked white Caprice in 

which victims Chaundi Grant and Gerald Kelly were seated. One 

of defendant’s cohorts in the Saturn fired shots at the Caprice, 

wounding Grant who then drove off. The Saturn chased the 

Caprice and was then joined by defendant’s Mustang which took 

the lead. Shots were fired from the Mustang, hitting the Caprice 

several more times. The Mustang then drove off. Defendant was 

arrested along with other members of his gang for, among other 

crimes, the attempted murders of Grant and Kelly.

1 All further statutory references are to the Penal Code.

2 The facts are taken from the unpublished opinion in the 

direct appeal in this matter, People v. Johnson (Nov. 17, 2009,

B209800).
3

B. 2008 Conviction

In April 2008, in an amended information, the Los Angeles 

County District Attorney (District Attorney) charged defendant 

in counts 2 and 3 with, among other crimes, the attempted 

murders of Grant and Kelly in violation of sections 664 and 187, 

subdivision (a).3 Among other allegations, the District Attorney 

alleged as to both counts that the attempted murders were

willful, deliberate, and premeditated. As to count 2—the 

attempted murder of Grant—the District Attorney further 

alleged that a principal used and discharged a firearm causing 

great bodily injury within the meaning of section 12022.53, 

subdivisions (b) through (d) and (e)(1) and that defendant 

personally used and intentionally discharged a firearm causing 

great bodily injury within the meaning of section 12022.53,

subdivisions (b)–(d). And, as to count 3—the attempted murder 

of Kelly—the District Attorney alleged that a principal personally 

used and discharged a firearm within the meaning of section 

12022.53, subdivisions (b), (c), and (e)(1) and that defendant 

personally used and discharged a firearm within the meaning of 

section 12022.53, subdivisions (b) and (c).

The jury found defendant guilty of attempted murder on 

counts 2 and 3 and found true, as to both counts, the allegations 

that the attempted murders were willful, deliberate, and 

premeditated and that a principal personally used and 

intentionally discharged a firearm; but the jury found the 

3 Defendant was charged with and convicted of other crimes, 

but they are not subject to this appeal.
4

personal use and discharge of a firearm allegations not true as to 

defendant.

The trial court sentenced defendant on count 2 to a term of 

40 years to life and, on count 3, to a consecutive term of 40 years 

to life.

On appeal from the judgment of conviction, a different 

panel of this Division reversed it on various grounds unrelated to 

this appeal, but affirmed it as to counts 2 and 3. (People v. 

Johnson, supra, B209800.)

C. Section 1172.6 Petition

On July 25, 2022, defendant filed a petition for 

resentencing. He argued that, based on the facts of the 

shootings, he could only have been convicted under the natural 

and probable consequences doctrine as he was not the actual 

shooter. According to defendant, under recent amendments to 

section 188, malice could not be imputed to him based solely on 

his participation in the crimes.

The District Attorney opposed the motion.

On December 1, 2022, the trial court held a hearing on the 

motion for resentencing. The parties submitted on the papers, 

and the court denied the motion, finding that defendant had 

failed to meet his prima facie burden of demonstrating that he 

was eligible for relief. The court noted that the jury had not been 

instructed on a natural and probable consequences theory or on a 

theory of implied malice. Accordingly, the court concluded that 

defendant was not eligible for relief as a matter of law.

On January 10, 2023, defendant filed a notice of appeal.
5

D. Delgadillo Brief

On July 3, 2023, appointed counsel for defendant filed a 

brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 

(Delgadillo). 

On August 28, 2023, defendant filed a supplemental brief 

arguing that the jury instructions were ambiguous and allowed 

the jury to impute the required malice to him based solely on his 

participation in the crimes.

4 In support of his contention, 

defendant cited to People v. Langi (2022) 73 Cal.App.5th 972

(Langi); People v. Maldonado (2023) 87 Cal.App.5th 1257

(Maldonado); and a noncitable case.

III. DISCUSSION

As defendant concedes, the jury was not instructed on

either the natural and probable consequences doctrine or a felony 

murder theory of liability. Citing Langi, supra, 73 Cal.App.5th 

972 and Maldonado, supra, 87 Cal.App.5th 1257, he maintains 

that the jury instructions included ambiguous language that 

could have permitted the jurors to impute malice to him based 

solely on his participation in a crime, without having to find that 

he personally acted with malice. We disagree.

4 After filing his supplemental brief, defendant, without 

counsel, filed a December 1, 2023, letter requesting a hearing 

pursuant to People v. Marsden (1970) 2 Cal.3d 118 and, after this 

matter had been submitted, a January 22, 2024, motion 

requesting a substitution of appointed counsel. Both requests are 

denied.
6

Here, the jury found not true the allegation that defendant 

personally used and discharged a firearm in the commission of 

the attempted murders, but found true the allegation that a 

principal used and discharged a firearm. The jury therefore 

rejected any theory that defendant was the actual shooter, but 

nevertheless found him guilty of the attempted murders of Grant 

and Kelly. Because there was no instruction on the natural and 

probable consequences doctrine, the only other theory of liability 

for attempted murder available to the jurors was under the aider 

and abettor doctrine, upon which they were instructed.5

The instruction on attempted murder6 advised the jurors 

that to prove that crime, the prosecution was required to show a 

direct but ineffectual act by one person towards killing a human 

being and that the person taking that act harbored a specific 

intent to kill. Thus, the only theory available to the prosecution 

was express, not implied, malice attempted murder, and, in 

5 The jury was instructed on aider and abettor liability with 

CALJIC No. 3.01, which provided, in pertinent part: “A person 

aids and abets the commission . . . of a crime when he or she: [¶] 

(1) With knowledge of the unlawful purpose of the perpetrator, 

and [¶] (2) With the intent or purpose of committing or 

encouraging or facilitating the commission of the crime, and [¶] 

(3) By act or advice aids, promotes, encourages, or instigates the 

commission of the crime.”

6 The jury was instructed on attempted murder with CALJIC 

No. 8.66 which provided in pertinent part: “In order to prove 

attempted murder, each of the following elements must be 

proved; [¶] (1) A direct but ineffectual act was done by one 

person towards killing another human being; and [¶] (2) The 

person committing the act harbored express malice aforethought, 

namely, a specific intent to kill unlawfully another human being.”
7

finding defendant guilty of that crime, the jury necessarily found 

that the shooter had the intent to kill and defendant, as an aider 

and abettor, knew of that intent and acted intentionally to 

facilitate that crime.

Moreover, the jury also found true the allegation that 

defendant, in the commission of the attempted murders, acted in 

a willful, deliberate, and premeditated7 manner. This finding 

further demonstrates that the jury could not have convicted 

defendant of attempted murder based on a theory of implied 

malice. Accordingly, the reasoning in Langi, supra, 73 

Cal.App.5th 972 does “not apply because that case involve[d] 

implied malice. Here. . . appellant’s conviction for attempted 

murder demonstrates that he was convicted of . . . murder with 

express rather than implied malice.” (People v. Coley (2022) 77 

Cal.App.5th 539, 547.) Therefore, defendant is ineligible for 

relief as a matter of law and the trial court did not err in denying 

his petition. (Id. at p. 548.)

7 On the willfulness allegation, the jury was instructed with 

CALJIC No. 8.67, which provided, in pertinent part: “It is also 

alleged in Counts 2 and 3 that the crime attempted was willful, 

deliberate, and premeditated murder. If you find defendant 

guilty of attempted murder, you must determine whether this 

allegation is true or not true. [¶] ‘Willful’ means intentional. 

‘Deliberate’ means formed or arrived at or determined upon as a 

result of careful thought and weighing of considerations for and 

against the proposed course of action. ‘Premeditated’ means 

considered beforehand.”
8

IV. DISPOSITION

The trial court’s order denying defendant’s petition for 

resentencing is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.