Filed 9/29/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOSEPH BENTLEY,

 Defendant and Appellant.

2d Crim. No. B299678

(Super. Ct. No. BA224537)

(Los Angeles County)

Where, as a matter of law, a defendant is not eligible for 

resentencing pursuant to Penal Code section 1170.95,1 his 

petition therefor, may be summarily denied. Joseph Bentley 

appeals the trial court’s order denying his petition for

resentencing. He contends the trial court erred when it 

summarily denied the petition without continuing it, so that his 

counsel could obtain and review the transcript of his original 

trial. He contends the same error deprived him of due process 

and of the effective assistance of counsel. We affirm the order 

denying resentencing.

1 All further statutory references are to the Penal Code.
2

Facts and Procedural History

In 2002, a jury convicted appellant of the first degree 

murder of Alvin Green and the attempted willful, deliberate and 

premeditated murders of Lenist Johnson, Jason Payne and 

Devon Brown, all in a gang-related shooting. Appellant and a

codefendant confronted members of a rival gang in a shopping 

center parking lot. The rival gang members quickly left in their 

car. Appellant and his codefendant chased them. With appellant 

driving, his co-defendant leaned out of the passenger side window

and fired 25 to 30 shots at the victims’ car. One of the bullets 

struck Green in the neck, killing him. The jury also found true a 

special circumstance allegation that the murder “was intentional 

and perpetrated by means of discharging a firearm from a motor 

vehicle, intentionally at another person . . . with the intent to 

inflict death.” (§190.2, subd. (a)(21).) We affirmed the conviction 

in an nonpublished opinion, People v. Bentley (Jan. 21, 2004, 

B163959).

In 2019, after Senate Bill No. 1437 (2017-2018 Reg. Sess.) 

was enacted, appellant filed a petition for resentencing. The trial 

court appointed counsel to represent him and set a briefing and 

hearing schedule. The prosecutor opposed the motion 

contending, that appellant was not eligible for resentencing.

Appellant’s counsel requested an extension of time in which to 

reply to the opposition, and a continuance of the hearing because 

he could not get a copy of appellant’s trial transcript before the 

hearing date. The trial court denied both requests. It then 

denied appellant’s petition and concluded that he was not eligible 

for resentencing.
3

Continuance

The trial court has broad discretion to determine whether 

good cause exists to continue a hearing date. (People v. Jenkins

(2000) 22 Cal.4th 900, 1037.) “Where, as here, a discretionary 

power is statutorily vested in the trial court, its exercise of that 

discretion ‘must not be disturbed on appeal except on a showing 

that the court exercised its discretion in an arbitrary, capricious 

or patently absurd manner that resulted in a manifest 

miscarriage of justice. [Citations.]’ [Citation.]” (People v. 

Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

“In determining whether a denial was so arbitrary as to 

deny due process, the appellate court looks to the circumstances 

of each case and to the reasons presented for the request. 

[Citations.] One factor to consider is whether a continuance 

would be useful. [Citation.]” (People v. Frye (1998) 18 Cal.4th 

894, 1013, disapproved on another ground in People v. Doolin

(2009) 45 Cal.4th 390, 421 (Doolin).)

The trial court did not abuse its discretion here because 

neither an extension of time nor a continuance would have been 

useful to appellant. As a matter of law, appellant is not eligible 

for resentencing under section 1170.95 because he was not 

convicted of felony murder or murder pursuant to a natural and 

probable consequences theory. 

Summary Denial

Section 1170.95, subdivision (a) allows a “person convicted 

of felony murder or murder under a natural and probable 

consequences theory” to have his or her “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 
4

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 Section 188 

or 189 made effective January 1, 2019.” 

Amendments to sections 188 and 189 were enacted 

simultaneously with section 1170.95. The amendments to section 

188 require that a principal act with express or implied malice. 

Amendments to section 189 change the definitions of first and 

second degree murder. Section 189, subdivision (a) now provides, 

“All . . . murder that is perpetrated by means of discharging a 

firearm from a motor vehicle, intentionally at another person 

outside of the vehicle with the intent to inflict death, is murder of 

the first degree.” Subdivision (e) of section 189 provides, “A 

participant in the perpetration or attempted perpetration of a 

felony listed in subdivision (a) in which a death occurs is liable 

for murder only if one of the following is proven: (1) The person 

was the actual killer. (2) The person was not the actual killer, 

but, with the intent to kill, aided, abetted, counseled, 

commanded, induced, solicited, requested, or assisted the actual 

killer in the commission of murder in the first degree. (3) The 

person was a major participant in the underlying felony and 

acted with reckless indifference to human life, as described in 

subdivision (d) of Section 190.2.”

Here, the jury at appellant’s trial expressly found true the

special circumstance allegation that Alvin Green’s murder was 

intentional and perpetrated by means of discharging a firearm 

from a motor vehicle with the intent to inflict death. Appellant 

drove the motor vehicle from which the firearm was discharged. 
5

He decided to chase the victims’ car as it drove away, which 

allowed his codefendant to fire the fatal shot from the passenger 

seat. When the jury found the special circumstance allegation 

true with regard to appellant, it found that he aided and abetted 

the shooter “with the intent to kill . . . .” (§190.2, subd. (c).) This 

satisfies the mandate of section 189, subdivision (e)(2). Appellant 

could properly be convicted of first degree murder even pursuant 

to the recent amendments to sections 188 and 189. (§1170.95, 

subd. (a)(3).)

Conclusion

We conclude that any error in not granting a continuance 

was harmless because this ruling did not, and could not, 

prejudice appellant. (Doolin, supra, 45 Cal.4th at p. 450.) And, 

no deprivation of the right to the effective assistance of counsel is 

here present.

Appellant made a choice in 2002 to engage in a vehicular 

pursuit of rival gang members. This allowed his codefendant to 

shoot at the fleeing rival gang members. The jury expressly 

found that he did so with the intent to kill. The Legislature did 

not intend that appellant should have lenity. Appellant is 

fortunate that the codefendant was a poor shot. Had he killed 

one other gang rival, appellant could have been facing the death 

penalty.

Disposition

The judgment (order denying section1170.90 petition for 

resentencing) is affirmed.
6

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Mildred Escobedo, Judge

Superior Court County of Los Angeles

______________________________

Thomas Owen, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Chalres S. Lee, Kathy S. Pomerantz, 

Deputy Attorneys General, for Plaintiff and Respondent.