Filed 9/22/21 P. v. Beckett CA2/5

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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.

ROBERT BECKETT, JR.,

Defendant and Appellant.

 B315891

 (Los Angeles County

 Super. Ct. No. A959057)

APPEAL from an order of the Superior Court of Los 

Angeles County, Kerry R. Bensinger, Judge. Affirmed. 

Elizabeth K. Horowitz, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Scott A. Taryle and Viet H. Nguyen, Deputy 

Attorneys General, for Plaintiff and Respondent.

____________________________
2

Robert Beckett, Jr., appeals the trial court’s order denying 

his petition for vacatur of his murder conviction and resentencing 

under Senate Bill No. 1437 (Senate Bill 1437) and former Penal 

Code section 1170.95 (Pen. Code, § 1172.6),

1 following an order to 

show cause and hearing pursuant to subdivision (d)(3).2 

On appeal, Beckett argues that this court should review the 

record independently, rather than reviewing the trial court’s 

ruling for substantial evidence in accord with all cases the courts 

of appeal have published to date. 

We reject the argument and affirm the trial court’s order. 

FACTS AND PROCEDURAL HISTORY

The Underlying Convictions

The following facts are uncontradicted: In 1981, Beckett’s 

father had recently broken up with his girlfriend and told his son 

that to get over the relationship he needed to rape and kill a girl. 

He wanted Beckett to procure the girl for him. They worked 

together to make a sap that they planned to use as the murder 

weapon. Beckett met Tracey Stewart for a date and brought her 

back to his father’s house. Beckett took Stewart into his father’s 

bedroom, where she was ordered to undress. Beckett then left 

Stewart alone in the bedroom with his father, who raped her. 

1 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6, with no change in text (Stats. 2022, 

ch. 58, § 10).

2 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

Afterwards, Beckett and his father took Stewart to a van. 

Beckett hit Stewart in the head with the sap twice, and then 

attempted to strangle and gag her. He was not able to kill her, so 

his father told him to get out of the way and then killed Stewart

himself. The two men taped a plastic bag around Stewart’s head 

and drove her to an unpopulated area where they dumped her 

body.

Several years later, Beckett confessed to the crimes. At 

trial, Beckett was prosecuted for murder: (1) as a perpetrator 

acting with express or implied malice, (2) as a direct aider and 

abettor of willful, premeditated, and deliberate murder, (3) as an 

aider and abettor under the natural and probable consequences 

doctrine, and (4) under a theory of felony murder with rape as the 

underlying felony. The jury convicted Beckett of rape and first 

degree murder. The trial court sentenced Beckett to 25 years to 

life in prison. On appeal in 1992, another panel of this court 

affirmed the trial court’s judgment in its entirety. (People v. 

Beckett (Aug. 18, 1992, B044676) [nonpub. opn.].)

In 1995, Beckett testified against his father in his father’s 

trial for Stewart’s rape and murder. Although there were some 

differences between Beckett’s confession and the testimony he 

gave at his father’s trial—predominantly concerning his own 

mental state—his confession and testimony were largely 

consistent, and consistent with the facts recited in this opinion.

Petition for Resentencing Under Section 1170.95

On April 1, 2020, Beckett filed a petition for vacatur of his 

murder conviction and resentencing pursuant to former 
4

section 1170.95. The prosecution opposed the petition and 

Beckett replied. The trial court issued an order to show cause. 

On September 15, 2021, the trial court held an evidentiary 

hearing under former section 1170.95, subdivision (d)(3). 

Beckett’s counsel and the prosecutor agreed that the record of the 

underlying trial in Beckett’s case and Beckett’s testimony in his 

father’s case were admissible. The parties jointly submitted a 

binder of excerpts from those records, which the trial court 

considered in making its ruling. 

Beckett testified in support of his petition. On direct 

examination, Beckett stated he had nothing to add to his prior 

testimony at his father’s trial. On cross-examination, Beckett 

testified that he hit Stewart with the sap twice, and that he and

his father put her in the van. He further testified that he choked 

Stewart by putting his arm around her neck and then placing two 

fingers down her throat. Beckett then told his father, “I can’t do 

this.” Beckett’s father became angry, said that he would do it, 

and told Beckett to get out of the way. Beckett got into the van. 

Beckett’s father killed Stewart. Beckett’s father then drove the 

van away from the scene with Beckett in the front passenger 

seat. They traveled southeast. Beckett’s father stopped the van 

and they disposed of Stewart’s body. 

The prosecutor argued that Beckett directly aided and 

abetted a willful, deliberate, premeditated murder. 

Alternatively, Beckett was liable for first degree felony murder

because he intended to kill the victim and was a major 

participant in the underlying rape who acted with reckless 

indifference to human life. 

Defense counsel argued that Beckett’s testimony at his 

father’s trial, which painted him in a somewhat better light than 
5

his confession, should be viewed as the credible version of events. 

Counsel asserted that although no new facts had surfaced 

through Beckett’s hearing testimony, his demeanor was 

probative; Beckett presented as honest, and his responses were 

consistent with the trial record. Counsel further argued that the 

theory that Beckett was a direct aider and abettor of murder was 

inconsistent with the felony-murder theory of liability. Finally, 

counsel argued that Beckett’s father “was in complete control of 

[Beckett], who was then a young, vulnerable son, who worshipped 

the man, evil as he was, and who did not have the power to resist 

orders from his father.” 

The prosecutor responded that the facts demonstrated that 

the rape and the murder were planned in advance. 

The matter was submitted, and the court informed the 

parties it would issue a written ruling. 

In its written order dated September 30, 2021, the trial 

court denied the petition, finding that the People proved beyond a 

reasonable doubt that Beckett was ineligible for resentencing 

because he was liable for first degree murder under the felony 

murder doctrine as a major participant who acted with reckless 

indifference human life, and also liable as a direct aider and 

abettor to willful, deliberate, and premeditated murder. 

DISCUSSION

Section 1172.6

As relevant here, pursuant to section 1172.6, a defendant

must file a petition in the sentencing court averring that: “(1) A 

complaint, information, or indictment was filed against the 
6

petitioner that allowed the prosecution to proceed under a theory 

of felony murder, murder under the natural and probable 

consequences doctrine or other theory under which malice is 

imputed to a person based solely on that person’s participation in 

a crime . . . [;] [¶] (2) The petitioner was convicted of murder . . . 

following a trial . . . [;] [¶] [and] (3) The petitioner could not 

presently be convicted of murder . . . because of changes to 

Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, 

subds. (a)(1)–(3); see id., subd. (b)(1)(A).) 

Upon receipt of a petition meeting these requirements, the 

trial court will appoint counsel, if requested. (§ 1172.6, 

subd. (b)(3).) The prosecutor must file a response within 60 days 

of the service of the petition, and the petitioner may file a reply 

within 30 days of the response. (§ 1172.6, subd. (c).) When 

briefing has been completed, “the court shall hold a hearing to 

determine whether the petitioner has made a prima facie case for 

relief. If the petitioner makes a prima facie showing that the 

petitioner is entitled to relief, the court shall issue an order to 

show cause. If the court declines to make an order to show cause, 

it shall provide a statement fully setting forth its reasons for 

doing so.” (Ibid.) Within 60 days of issuance of the order to show 

cause, the trial court shall hold a hearing “to determine whether 

the petitioner is entitled to relief.” (§ 1172.6, subd. (d)(3).) 

“At the hearing . . . the burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, that the 

petitioner is guilty of murder . . . under California law as 

amended by the changes to Section 188 or 189 made effective 

January 1, 2019. . . . The prosecutor and the petitioner may also 

offer new or additional evidence to meet their respective 

burdens. . . . If the prosecution fails to sustain its burden of 
7

proof, the prior conviction, and any allegations and 

enhancements attached to the conviction, shall be vacated and 

the petitioner shall be resentenced on the remaining charges.” 

(§ 1172.6, subd. (d)(3).) The trial court acts as the finder of fact 

when determining whether the prosecution has met its burden

beyond a reasonable doubt. (People v. Gentile (2020) 10 Cal.5th 

830, 855 [former “section 1170.95 requires the superior court to 

determine on an individualized basis, after considering any new 

or additional evidence offered by the parties, whether the 

defendant is entitled to relief”], superseded by statute on another 

ground as stated in People v. Birdsall (2022) 77 Cal.App.5th 859, 

868.)

Analysis

On appeal from the denial of his resentencing petition, 

Beckett has not argued that there is insufficient evidence to 

support the trial court’s order under a substantial evidence 

standard of review. By failing to contest the sufficiency of the 

evidence, he has waived that challenge.3 (See People v. Duff

(2014) 58 Cal.4th 527, 550, fn. 9 [arguments not raised in opening 

brief are waived].) 

3 Beckett asserts that the trial court erred by failing to 

consider that he was only 20 years old at the time of the offenses. 

However, defense counsel argued that Beckett was young and 

vulnerable, and at the mercy of his father who had significant 

influence over his son. The issue was presented to the court, and 

absent any evidence to the contrary, we presume that the court 

considered counsel’s arguments.
8

Instead, Beckett argues that this court should review the 

trial court’s ruling independently, which he asserts is appropriate 

“[w]here the record in the lower court consists only of 

documentary evidence as opposed to live testimony.” He argues 

that “this is particularly so where the live testimony that did 

occur, and is now being reviewed in transcript form, took place 

many years prior and was overseen by a different judge. In such 

circumstances, the decision being reviewed does not involve 

credibility assessments based on a witness’s demeanor, and 

therefore no reason exists for the reviewing court to give the 

lower court’s assessment deference.” 

Every published case by the Courts of Appeal to date has 

reviewed a trial court’s denial of a former section 1170.95 petition 

following a hearing under subdivision (d)(3) for substantial 

evidence. (People v. Sifuentes (Sept. 22, 2022, A162225) ___

Cal.App.5th ___ [2022 WL 4138419]; People v. Mitchell (2022) 

81 Cal.App.5th 575, 591 (Mitchell); People v. Richardson (2022) 

79 Cal.App.5th 1085, 1090; People v. Cooper (2022) 

77 Cal.App.5th 393, 412; People v. Owens (2022) 78 Cal.App.5th 

1015, 1022; People v. Clements (2022) 75 Cal.App.5th 276, 298

(Clements); People v. Ramirez (2021) 71 Cal.App.5th 970, 985; 

People v. Bascomb (2020) 55 Cal.App.5th 1077, 1087; People v. 

Williams (2020) 57 Cal.App.5th 652, 663.)

In Clements, supra, 75 Cal.App.5th at page 301, the Court 

of Appeal, Fourth District, Division Two specifically held that 

People v. Vivar (2021) 11 Cal.5th 510, 524 (Vivar), upon which 

Beckett relies to argue that independent review is the correct

standard on appeal, is inapposite. In Vivar, our Supreme Court 

held that independent review is appropriate when reviewing the 

denial of a petition to vacate a conviction under section 1473.7. 
9

(Vivar, at pp. 523–528.) “ ‘A successful section 1473.7 motion 

requires a showing, by a preponderance of the evidence, of a 

prejudicial error that affected the defendant’s ability to 

meaningfully understand the actual or potential immigration 

consequences of a plea.’ (Vivar, at p. 517.)” (Clements, at p. 301.) 

Clements argued that the reasoning in Vivar should apply in the 

context of review of a denial of a former section 1170.95 petition 

following a hearing pursuant to subdivision (d)(3), where the 

evidence consists solely of a cold record and no testimony is

presented. (Clements, at p. 301.) The Court of Appeal rejected 

the argument, observing that “our Supreme Court has held in the 

context of a Proposition 36 petition for recall of sentence that 

‘even if the trial court is bound by and relies solely on the record 

of conviction to determine eligibility, [where] the question . . . 

remains a question of fact . . . we see no reason to withhold the 

deference generally afforded to such factual findings.’ (People v. 

Perez (2018) 4 Cal.5th 1055, 1066.)” (Clements, at p. 301.) The 

Court of Appeal concluded, “[in Vivar] the [Supreme] Court 

emphasized that the questions raised by a 1473.7 motion, ‘while 

mixed questions, are predominantly questions of law.’ (Vivar, at 

p. 524.) By contrast, the question whether Clements acted with 

reckless indifference to human life is predominantly a factual 

determination. We conclude that Perez, not Vivar, governs in the 

circumstances of Clements’ appeal.” (Clements, at p. 301.) The 

Clements court further noted “that the Supreme Court 

emphasized in Vivar that the ‘embrace of independent review in 

this context is a product of multiple factors with special relevance 

here: the history of section 1473.7, the interests at stake in a 

section 1473.7 motion, the type of evidence on which a 

section 1473.7 ruling is likely to be based, and the relative 
10

competence of trial courts and appellate courts to assess that 

evidence.’ (Vivar, supra, 11 Cal.5th at p. 527.) The same factors 

don’t support applying independent review in the context of 

reviewing a trial judge’s ruling after a full hearing under 

section 1170.95 subdivision (d)(3).” (Clements, at p. 301.) We 

agree with the result reached by the Clements court.

Additionally, we note that Beckett’s characterization of the 

evidence presented at his evidentiary hearing as a “cold record” is 

inaccurate. Beckett testified on his own behalf. Although the 

testimony was not prolonged, it provided the trial court the 

opportunity to observe Beckett’s demeanor and assess his 

credibility. In fact, defense counsel attempted to capitalize on 

Beckett’s demeanor during testimony in his arguments to the 

court. Counsel asserted that although no new facts had surfaced 

through Beckett’s hearing testimony, “[t]he one thing that we did 

learn today or the one new thing we saw or the one new thing we 

heard is Mr. Beckett’s demeanor. . . . [T]he demeanor that I saw 

was one of honesty, unhesitating response, response consistent 

with the trial record.” 

On appeal, Beckett disavows this position, arguing that his 

testimony was brief and “ ‘did not provide any new substantive 

information nor change the facts.’ ” In light of the nature and 

duration of the testimony, Beckett concludes that “[his] 

appearance added nothing to the record, and did not allow for any 

kind of credibility assessment. And notably, the trial court’s 

evaluation of the case set forth in its memorandum of decision 

relied exclusively on the documentary evidence, without citation 

to appellant’s inconsequential testimony.” 

Contrary to Beckett’s assertions on appeal, his testimony, 

however brief or consistent, provided an opportunity for the trial 
11

court to evaluate his credibility. “ ‘Oral testimony of witnesses 

given in the presence of the trier of fact is valued for its probative 

worth on the issue of credibility, because such testimony affords 

the trier of fact an opportunity to observe the demeanor of 

witnesses. [Citation.] A witness’s demeanor is “ ‘part of the 

evidence’ ” and is “of considerable legal consequence.” ’ ” (In re 

M.M. (2015) 236 Cal.App.4th 955, 964.) “Testimony can be 

uncontroverted and yet be presented in a fashion that is 

unpersuasive for reasons not evident on a written record.” (City 

of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 

262.)

The trial court did not state that its ruling was based solely 

on the documentary record. In the absence of such a statement, 

we will not presume that the documentary evidence was the sole 

basis for its decision. Counsel argued that Beckett’s demeanor 

should be considered, and nothing in the record leads us to 

believe that the court ignored counsel’s arguments. This is not a 

“cold record” case. Even if Vivar were applicable when reviewing 

the denial of a former section 1170.95 petition in cold record 

cases, it would not apply in the present case, where the defendant 

himself testified. We affirm the trial court’s order.
12

DISPOSITION

The order denying resentencing under former Penal Code 

section 1170.95 is affirmed.

MOOR, J.

We concur:

RUBIN, P. J.

BAKER, J.