Filed 6/30/23 P. v. Behnke CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

SCOTT RAYMOND BEHNKE,

Defendant and Appellant.

 D080808

 (Super. Ct. No. SCD183245)

APPEAL from a judgment of the Superior Court of San Diego County, 

Peter C. Deddeh, Judge. Reversed; remanded with directions.

Theresa Osterman Stevenson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A.

Sevidal and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff 

and Respondent.
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In 2006, a jury convicted Scott Raymond Behnke of first degree murder 

(Pen. Code,1 § 187, subd. (a)) and found true that he used a knife in the 

commission of that crime (§ 12022, subd. (b)(1)). The court sentenced Behnke 

to prison for 25 years to life for the murder conviction plus an additional year 

for the knife enhancement.

We affirmed the judgment in an unpublished opinion. (See People v. 

Behnke (Mar. 14, 2008, D049282).)

In 2019, the Secretary of the California Department of Corrections and 

Rehabilitation (CDCR) sent the superior court a letter noting Behnke’s 

commendable behavior and accomplishments in prison. The Secretary 

recommended that the court recall Behnke’s sentence and resentence Behnke 

to a lesser term under section 1172.1.

Following briefing from the parties, the superior court declined to 

resentence Behnke, explaining that absent the prosecution’s assent, it lacked 

discretion to reduce the first degree murder conviction and impose a lesser 

sentence.

Behnke appeals, arguing the superior court erred (1) in determining 

that a “blanket exclusion” exists under section 1172.1 prohibiting a court 

from resentencing a person convicted of murder upon receiving a CDCR 

recommendation for resentencing and (2) failing to consider whether the 

enhancement could be stricken. We agree that the court had the discretion to 

strike the enhancement and resentence Behnke accordingly. Further, it does 

not appear on the record that the court properly considered this option. As 

such, we remand this matter to allow the superior court to consider the 

CDCR’s recommendation and whether the enhancement should be stricken. 

Further, we agree with the parties that the superior court was correct that it 

1 Statutory references are to the Penal Code unless otherwise specified.
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could not change Behnke’s first degree murder conviction to a lesser included 

offense without the prosecution’s consent. As such, on remand, the superior 

court is only to consider striking the enhancement and then resentencing 

Behnke if necessary.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts of Behnke’s murder conviction are not relevant to 

the issues before us. Suffice it to say, Behnke strangled and stabbed the 

victim with a knife. 

On August 22, 2019, the Secretary of the CDCR sent the superior court 

a recommendation to recall Behnke’s sentence pursuant to section 1172.1. 

The recommendation enclosed a cumulative case summary and evaluation 

report, identifying factors that supported the CDCR’s recommendation for 

recall of Behnke’s commitment and resentencing. Specifically, the 

recommendation detailed that Behnke had not received any serious 

disciplinaries since February 2007, completed Masonry Level I through III, 

and was active in Artis in Corrections. Behnke also provided assistance to 

at-risk youth and participated in multiple self-help classes.

The superior court appointed counsel to represent Behnke and set the 

matter for hearing. Behnke thereafter retained counsel, who filed a 

memorandum of points and authorities in support of resentencing as well as 

numerous documents in support thereof. Behnke requested his judgment be 

modified to second degree murder or voluntary manslaughter.

The prosecution opposed both the Secretary’s recommendation and 

Behnke’s request for modification of the jury verdict. In addition to arguing 

that Behnke’s rehabilitation and circumstances did not warrant recall and 

resentencing, the prosecution maintained that the superior court had no 
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authority to reduce Behnke’s conviction and that the knife enhancement 

should not be stricken. 

On July 28, 2022, the superior court denied Behnke’s request for 

modification of his conviction. To this end, the court determined it did not 

have authority to reduce Behnke’s conviction for first degree murder without 

the prosecution’s consent. It does not appear in the record that the court 

considered its discretion to strike the enhancement.

Behnke timely appealed the order.

DISCUSSION

Section 1172.1 (formerly section 1170.03)2 provides a procedure by 

which a court may “at any time upon the recommendation of the secretary or 

the Board of Parole Hearings in the case of a defendant incarcerated in state 

prison . . . recall the sentence and commitment previously ordered and 

resentence the defendant in the same manner as if they had not previously 

been sentenced, whether or not the defendant is still in custody, and provided 

the new sentence, if any, is no greater than the initial sentence.” (§ 1172.1, 

subd. (a)(1).) “The CDCR recommendation furnishes the court with 

jurisdiction it would not otherwise have to recall and resentence and is ‘an 

2 Assembly Bill No. 1540 (2021-2022 Reg. Sess.) moved the recall and 

resentencing provisions of former section 1170, subdivision (d)(1) to 

section 1170.03, effective January 1, 2022. (Stats. 2021, ch. 719, § 2.) It also 

clarified many of the required procedures under this section. (See People v. 

McMurray (2022) 76 Cal.App.5th 1035, 1041 (McMurray) [“[T]he Legislature 

repeatedly indicated that Assembly Bill No. 1540 was intended to ‘make 

clarifying changes’ to former section 1170(d)(1), including specifying the 

required procedure and guidelines when the CDCR recommends recall and 

resentencing”].) Assembly Bill No. 200 (2021-2022 Reg. Sess.) then 

renumbered section 1170.03 to section 1172.1, effective June 30, 2022, but 

made no substantive changes. (Stats. 2022, ch. 58, § 9.) For the sake of 

clarity and consistency, we refer to section 1172.1 when addressing the 

statute governing the petition for resentencing.
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invitation to the court to exercise its equitable jurisdiction.’ ” (McMurray, 

supra, 76 Cal.App.5th at p. 1040.)

This section provides, where a resentencing request is made, there is 

now a presumption in favor of recall and resentencing of the defendant, 

“ ‘which may only be overcome if a court finds the defendant is an 

unreasonable risk of danger to public safety,’ ” as defined in subdivision (c) of 

section 1170.18. (McMurray, supra, 76 Cal.App.5th at p. 1040; accord 

§ 1172.1, subd. (b)(2).) Additionally, “[w]here, as here, the CDCR 

recommends recall and resentencing, the court is also now required to hold a 

hearing (unless the parties otherwise stipulate), state on the record its 

reasons for its decision, provide notice to the defendant, and appoint counsel 

for the defendant.” (McMurray, at p. 1040; accord § 1172.1, 

subds. (a)(6)-(8), (b)(1).) Furthermore, when recalling and resentencing 

pursuant to its provisions, the court “shall . . . apply any changes in law that 

reduce sentences or provide for judicial discretion.” (§ 1172.1, subd. (a)(2); 

McMurray, at p. 1040; People v. Pierce (2023) 88 Cal.App.5th 1074, 1078.)

The jury convicted Behnke of first degree murder. Below, per 

section 1172.1, Behnke requested that the superior court vacate the judgment 

against him and impose judgment on either second degree murder or 

voluntary manslaughter, either of which would have reduced Behnke’s 

sentence. The court had the discretion to take such action only if the 

prosecution agreed. (§ 1172.1, subd. (a)(3)(B).) However, it is undisputed 

that the prosecution did not concur with Behnke’s request. Thus, the court 

could not alter Behnke’s first degree murder conviction. (Ibid.) And Behnke 

makes clear that he is not challenging the superior court’s denial to vacate 

his judgment and impose judgment on a lesser included offense here.
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Rather, Behnke argues the superior court erred in failing to consider 

the CDCR’s recall and resentencing recommendation regarding the 

enhancement under section 12022, subdivision (b)(1). The People concede 

that the superior court could have done so but argue Behnke forfeited this 

claim because he did not ask the trial court to strike the enhancement or 

draw the court’s attention to it during the hearing. (See People v. 

McCullough (2013) 56 Cal.4th 589, 593.)

On the record before us, we do not find forfeiture. During the hearing, 

it was clear that the superior court believed it could not resentence Behnke. 

The court noted:

“In this particular case, the jury rendered a verdict. The 

verdict was first degree murder. It was supported by the 

evidence. And there’s—I don’t think this statute authorizes 

me to adjust the jury’s verdict. I think the statute really 

speaks more to if he had been convicted of a gang allegation 

or convicted of some other—some drug allegation, a drug 

case or something that this statute is trying to address that 

and not address the situation where we have here where he 

got convicted of first degree murder.”

In addition, the parties focused on this issue during the hearing. 

Considering the focus of the hearing and the court’s conclusion that it 

lacked authority to resentence Behnke absent the prosecution’s consent, we 

agree with Behnke that it would have been futile for his counsel to argue that 

the enhancement should be stricken. (See People v. Welch (1993) 5 Cal.4th 

228, 237 [failure to raise issue at trial excused where it would be futile to do 

so]; People v. Brooks (2017) 3 Cal.5th 1, 92 [same].) Moreover, the issue of 

striking the enhancement was clearly before the court. Indeed, in its 

opposition, the prosecution explicitly argued that the court should not strike 

the enhancement.
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In short, the parties agree that the court had discretion, under 

section 1172.1, to consider striking the knife enhancement. There is no 

indication in the record that the superior court realized that it had such 

discretion. “A failure to exercise discretion also may constitute an abuse of 

discretion.” (People v. Sandoval (2007) 41 Cal.4th 825, 847-848.) 

Accordingly, this matter must be remanded to allow the court to exercise its 

discretion and determine whether the enhancement under section 12022, 

subdivision (b)(1) should be stricken and Behnke resentenced accordingly. 

DISPOSITION

The order is reversed. We remand this matter to the superior court to 

consider whether it should strike the knife enhancement and resentence 

Behnke accordingly. 

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.