Filed 2/17/21 P. v. Paschal 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.

BENJAMIN PASCHAL,

Defendant and Appellant.

B301482

(Los Angeles County

Super. Ct. No. KA012592)

APPEAL from an order of the Superior Court of Los 

Angeles County, Rogelio G. Delgado, Judge. Reversed and 

remanded with directions.

Jonathan E. Demson, 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, Assistant 

Attorney General, Charles S. Lee and Ryan M. Smith, Deputy 

Attorneys General, for Plaintiff and Respondent.

__________________________
2

Defendant Benjamin Paschal’s petition for resentencing 

under Penal Code section 1170.95 was summarily denied.1 As 

defendant was not ineligible for relief as a matter of law, we 

reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Underlying Crime, Conviction and Appeal

Defendant was convicted of the provocative act murder of 

Charles Thomas, his accomplice in an attempted robbery, who 

was killed by the robbery victim.

Defendant and Thomas had agreed to rob Christopher 

Butler, a marijuana dealer. Butler lived with his four-year-old 

son. On the day of the planned robbery, Butler had a friend, 

Stephen Guzman, to his apartment for dinner. After dinner, 

when Butler opened the door to let Guzman out, defendant and 

Thomas knocked on the door asking to buy marijuana. Butler 

said he did not have any and attempted to close the door. 

Defendant pulled a gun and told Butler it was a robbery. 

Defendant ordered Butler and Guzman to get on the floor. 

The robbers began to beat and kick Butler and defendant 

threatened to shoot them. Butler told defendant not to shoot and 

said he would give them anything they wanted. Butler told them 

that his son was in the bedroom. At this point, the four-year-old 

boy ran crying into the living room where the four men were 

located. Defendant threatened to shoot the little boy if Butler did 

not get him to keep quiet. Defendant turned the lights off. 

Guzman grabbed the screaming boy and covered him with his 

body. 

1 Unless otherwise indicated, all undesignated statutory 

references are to the Penal Code.
3

Defendant told Thomas to tape Guzman and Butler with 

duct tape. Thomas attempted to tape Butler’s hands but was 

unable to do so. Defendant then said that he would tape up the 

two men. He told Thomas to shoot Butler if Butler so much as 

moved. As defendant was handing the gun to Thomas, Butler 

lunged at the two men in an effort to protect his son and friend. 

Defendant fired the gun; the shot hit the wall. In the ensuing 

struggle, defendant dropped the gun and Guzman recovered it. 

Guzman, fearing for his life, shot defendant and Thomas. 

Thomas died from his wounds; defendant survived. 

Defendant was charged by information with the murder of 

Thomas (§ 187), the attempted robbery of Butler and Guzman 

(§§ 664/211), burglary (§ 459), and conspiracy to commit robbery 

(§ 182, subd. (1)).2 Defendant was convicted as charged. He was 

sentenced to 25 years to life for the murder, with a consecutive 4-

year term for conspiracy. 

On appeal, defendant’s conviction was affirmed. (People v.

Paschal (Nov. 9, 1993, B071087) [nonpub. opn.].) Defendant had 

argued, among other things, that there was insufficient evidence 

of murder. A prior panel of this appellate court specifically held 

the evidence established “that Thomas was killed by Guzman in 

response to defendant’s provocative acts.” 

2. Defendant’s Section 1170.95 Petition

On March 13, 2019, defendant filed a form petition for 

resentencing under section 1170.95, which allows defendants 

convicted of murder under the felony-murder rule or natural and 

2 A codefendant, Anthony Moore, was also charged. Moore 

did not go to the apartment with defendant and Thomas, but had 

been involved before and after the incident at the Butler 

apartment.
4

probable consequences doctrine to seek resentencing under 

certain circumstances. The petition was filed by private counsel; 

and defendant did not check the box requesting appointment of 

counsel.3 

At the district attorney’s request, the hearing on 

defendant’s petition was continued to August 21, 2019. On that 

date, the district attorney filed a response to the petition. The 

opposition argued that section 1170.95 was unconstitutional and, 

in any event, did not apply to provocative act murder. The 

district attorney’s response attached as exhibits (1) the Court of 

Appeal opinion affirming defendant’s conviction and (2) the 

entirety of the jury instructions given at defendant’s trial.

The jury instructions show that defendant’s jury was 

instructed on provocative act murder in the language of CALJIC 

No. 8.12.4 However, the jury was also instructed on the doctrine 

3 Defendant had counsel at the hearing, and does not argue 

otherwise on appeal. Accordingly we need not address the 

Attorney General’s argument that any failure to appoint counsel 

was harmless error. 

4 The instruction, as given, was as follows: “Every person 

who unlawfully kills a human being with malice aforethought is 

guilty of the crime of murder in violation of Section 187 of the 

Penal Code. [¶] A homicide committed during the commission of 

a crime by a person who is not a perpetrator of such crime, in a 

reasonable response to an intentional provocative act by a 

perpetrator of the crime, is considered in law to be an unlawful 

killing by the perpetrators of the crime. Malice is implied when 

the provocative act was deliberately performed with knowledge of 

the danger to and with conscious disregard for human life. [¶] 

‘Aforethought’ does not imply deliberation or the lapse of 

considerable time. It only means that the required mental state 
5

of natural and probable consequences, in the language of CALJIC 

No. 3.02.5 

must precede rather than follow the provocative act. [¶] In order 

to prove such crime, each of the following elements must be 

proved: [¶] 1. The crime of burglary or attempted robbery was 

committed; [¶] 2. During the commission of such crime, a person 

committing the crime also intentionally committed a provocative 

act; [¶] 3. The provocative act was deliberately performed with 

knowledge of the danger to and with conscious disregard for 

human life; and [¶] 4. Such act was sufficiently provocative that 

the victim of the burglary or attempted robbery in a reasonable 

response thereto killed a perpetrator of such crime[.] [¶] Murder 

which occurs during the commission or attempt to commit the 

crime of robbery or burglary when there was in the mind of the 

perpetrators of such crime, the specific intent to commit burglary 

or robbery, is murder in the first degree. [¶] Murder which is not 

of the first degree is murder of the second degree. [¶] If you are 

convinced beyond a reasonable doubt that the crime of murder 

has been committed by a defendant, but you have a reasonable 

doubt whether such murder was of the first or of the second 

degree, you must give defendant the benefit of the doubt and 

return a verdict fixing the murder as of the second degree.” 

5 The instruction, as given, was as follows: “One who aids 

and abets is not only guilty of the particular crime aided and 

abetted but is also liable for the natural and probable 

consequences of the commission of such crime. [¶] In order to 

find the defendant guilty of the crime of murder, as charged in 

Count[] 1, you must be satisfied beyond a reasonable doubt that 

the crime of attempted robbery [and] burglary was committed, 

and if so, that the defendant is guilty of attempted robbery and 

burglary as an aider and abettor, and that the crime of murder 

charged in Count[] 1 was a natural and probable consequence of 

the commission of the crime of attempted robbery and burglary.” 
6

A hearing was held on defendant’s petition. Defense 

counsel argued that section 1170.95 was, in fact, constitutional, 

and the trial court agreed. However, as the district attorney’s 

opposition had been filed on the day of the hearing, and neither 

the court nor defense counsel had had an opportunity to review it, 

the court continued the hearing to September 10, 2019 for a 

determination of defendant’s eligibility for relief under the 

statute. 

Defense counsel filed no reply prior to the continued 

hearing. However, counsel orally argued that defendant was 

eligible for relief because he had been “engaged in a low-level 

robbery,” “was not the trigger person,” and lacked the intent to 

kill. 

The trial court denied defendant’s petition, on the basis 

that he had been convicted of a provocative act murder, and that

provocative act murder is outside the realm of section 1170.95, as 

it relies on neither the felony-murder theory nor the natural and 

probable consequences doctrine. Defendant filed a timely notice 

of appeal. 

DISCUSSION

On appeal, defendant argues that the court erred in 

concluding that section 1170.95 does not apply to provocative act 

murder. Defendant takes the position that the doctrine of 

provocative act murder “is merely one version of either the 

natural and probable consequences doctrine or the felony murder 

rule, both of which are explicitly covered by the new law.” 

We agree that the summary denial of defendant’s petition 

was erroneous, but for a more straightforward reason – the 

prosecution has not established as a matter of law that 
7

defendant’s jury did not rely on the natural and probable 

consequences doctrine.6

1. Applicable Procedures

Senate Bill No. 1437 (SB 1437) invalidated the natural and 

probable consequences doctrine as it relates to murder, and 

narrowed liability for felony murder. (People v. Verdugo (2020) 

44 Cal.App.5th 320, 323 (Verdugo) review granted Mar. 18, 2020, 

S260493.) It also enacted section 1170.95, providing a means by 

which a defendant convicted of murder under prior authority 

could seek resentencing under the new version of the law.

The appellate courts are not in complete agreement on the 

procedure trial courts must follow on a petition for resentencing 

under section 1170.95. (Compare, e.g., Verdugo, supra,

44 Cal.App.5th 320, with People v. Cooper (2020) 54 Cal.App.5th 

106, petn. for review filed Oct. 2, 2020.) Our Supreme Court has 

granted review in Verdugo, among other cases. (E.g., People v. 

Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, 

S260598.) Until our Supreme Court resolves the issue, this 

Division has agreed with the procedure set forth in Verdugo. 

(People v. Torres (2020) 46 Cal.App.5th 1168, 1177 (Torres) 

review granted June 24, 2020, S296179.) We continue to do so 

today.

Once a section 1170.95 petition is filed, there follows a 

multi-step process by which the court first determines whether 

the petition is facially complete, and, if so, whether the petitioner 

has made a prima facie showing that he falls within the 

provisions of statutory eligibility. (Torres, supra, 46 Cal.App.5th 

at p. 1177.) 

6 We sought and received letter briefing from the parties on 

this issue.
8

Among the materials which the court can review at this 

stage are the prior appellate opinion (People v. Lee (2020) 

49 Cal.App.5th 254, 263, review granted July 15, 2020, S262459; 

People v. Lewis, supra, 43 Cal.App.5th at p. 1136, fn. 7) and the 

jury instructions given in the defendant’s trial. (People v. 

Edwards (2020) 48 Cal.App.5th 666, 674, review granted July 8, 

2020, S262481.) If the court determines the petitioner is 

ineligible for relief as a matter of law, the petition is denied at 

this first stage; if not, the court proceeds to the next step. 

(Torres, supra, 46 Cal.App.5th at pp. 1177-1178.)

At the first stage, the court’s inquiry is only whether the 

defendant is ineligible for relief under section 1170.95 as a 

matter of law. (Verdugo, supra, 44 Cal.App.5th at p. 329.) If, for 

example, the court’s review of the record of conviction necessarily 

establishes the defendant was convicted on a ground that 

remains valid after SB 1437’s amendment of murder law, the 

petition may be denied at this stage. (Id. at pp. 329-330.) But if 

the court “cannot rule out the possibility that the jury relied on” a 

theory invalidated by SB 1437, there is no prima facie 

ineligibility. (People v. Offley (2020) 48 Cal.App.5th 588, 599.)

2. Defendant is Entitled to Relief

The provocative act murder doctrine has a physical element 

and a mental one. The physical element is satisfied when the 

defendant commits an act, the natural and probable consequence 

of which is the use of deadly force by a third party. (People v. 

Mejia (2012) 211 Cal.App.4th 586, 603.) “With respect to the 

mental element of provocative act murder, a defendant cannot be 

vicariously liable; he must personally possess the requisite 

mental state of malice aforethought when he either causes the 

death through his provocative act or aids and abets in the 
9

underlying crime the provocateur who causes the death. 

[Citation.]” (Id. at pp. 603-604.)

Because the mental state of malice required for provocative 

act murder is personal to the defendant and not vicarious, 

Division One of this appellate district has concluded that 

provocative act murders are outside the scope of section 1170.95. 

(People v Swanson (2020) 57 Cal.App.5th 604, 613-614, petn. for 

review filed Dec. 24, 2020; see also People v. Johnson (2020) 

57 Cal.App.5th 257, petn. for review filed Dec. 21, 2020; People v. 

Lee, supra, 49 Cal.App.5th at pp. 257, 264-265.) Defendant 

argues to the contrary, arguing that provocative act murder is 

simply an application of the natural and probable consequences 

doctrine.7 

We need not decide whether section 1170.95 applies to 

provocative act murder, because, here, defendant’s jury was also 

instructed on natural and probable consequences as a theory of 

murder. Under the language of the instruction as given (see fn. 

5, ante), it appears that the jury could have convicted defendant 

of murder if it was satisfied that defendant committed attempted 

robbery and burglary as an aider and abettor, and that “the crime 

of murder charged in Count[] 1 was a natural and probable 

consequence of the commission of the crime of attempted robbery 

and burglary.” The instruction does not tell the jury that murder 

under the doctrine of natural and probable consequences means 

murder of someone other than an accomplice.

The trial court following a hearing may ultimately conclude 

that the jury found that instruction inapplicable or that the 

giving of the instruction was harmless error for other reasons. 

7 Defendant’s opening brief on appeal predated the appellate 

opinions in Swanson, Johnson and Lee.
10

(Cf. People v. Mejia, supra, 211 Cal.App.4th at pp. 627-628 

[holding it was error, albeit harmless, to instruct on natural and 

probable consequences in a provocative act murder case].) But

we cannot, at this stage, conclude as a matter of law that the jury 

did not in fact convict defendant on a theory of natural and 

probable consequences. 

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

reversed and the matter remanded with directions for the trial 

court to issue an order to show cause and hold a hearing on 

whether defendant’s murder conviction should be vacated.

RUBIN, P. J.

WE CONCUR:

MOOR, J.

KIM, J.