1

Filed 9/30/20 P. v. Neumann CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 has not been certified for 

publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN JEFFERY NEUMANN,

Defendant and Appellant.

E074905

(Super.Ct.No. CR23472)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. 

Affirmed.

Brian Jeffery Neumann, in pro. per., and Andrea S. Bitar, under appointment by 

the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.
2

Defendant and appellant, Brian Jeffery Neumann, filed a petition for resentencing 

pursuant to Penal Code section 1170.95,1 which the trial court denied. After defendant

filed a notice of appeal, this court appointed counsel to represent defendant.

Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 

436 and Anders v. California (1967) 386 U.S. 738. Defendant was offered the 

opportunity to file a personal supplemental brief, which he has done. Defendant contends 

that he is entitled to section 1170.95 relief because, although he was the actual killer, he 

did not commit premediated murder. We affirm.

I. PROCEDURAL BACKGROUND

On October 3, 1985, defendant pled guilty to first degree murder (§ 187, count 1), 

two counts of residential robbery (§ 211, counts 2 & 5), two counts of first degree 

burglary (§ 459, counts 3 & 6), and attempted first degree murder (§§ 664, 187, subd. (a), 

count 4). Defendant additionally admitted allegations that he personally used a deadly 

weapon in his commission of the counts 1, 2, 3, 5, and 6 offenses and that he personally 

inflicted great bodily injury in his commission of the count 4 offense. The trial court 

sentenced defendant to 13 years of imprisonment, plus life without the possibility of 

parole.

On August 13, 2019, defendant filed a petition for resentencing pursuant to 

section 1170.95 but did not check the box adjacent to the statement reading, “I was not 

the actual killer.” In defendant’s petition, he recites the factual background of the 

1

 All further statutory references are to the Penal Code unless otherwise indicated.
3

offenses for which he was convicted: “In 1984, I committed a horrible crime; I entered a 

house owned by my victim looking for money to fund my growing drug addiction. I was 

caught by the homeowner and during the struggle killed her.”

On September 25, 2019, the People filed a response contending section 1170.95 

was unconstitutional. On the same day, defense counsel filed a reply contending 

defendant had made a prima facie case for relief and requesting a hearing to determine 

whether to vacate defendant’s murder conviction.

At the hearing on February 21, 2020, the People moved to dismiss the petition: 

“It’s a single defendant case. It was a [section] 187 plea to murder, a couple robberies, a 

couple burglaries, [and] an attempt[ed] murder.” “The robbery/murder special 

circumstance was admitted. There was a personal knife use admitted. And . . . there was 

actually a [section] 995 motion filed by the defense that acknowledges that the defendant 

confessed to the killing.” Defense counsel objected for the record. The trial court denied 

the petition.

II. DISCUSSION

Defendant contends that section 1170.95 applies to cases in which a defendant was 

the actual killer but did not premeditate the killing. Thus, defendant contends there was 

no evidence he premeditated the murder, and the trial court erred in denying his petition. 

We disagree.

“Senate Bill No. 1437 (2017-2018 Reg. Sess.) was enacted to ‘amend the felony 

murder rule and the natural and probable consequences doctrine, . . . to ensure that 

murder liability is not imposed on a person who is not the actual killer, did not act with 
4

the intent to kill, or was not a major participant of the underlying felony who acted with 

reckless indifference to human life.’” (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, 

review granted Mar. 18, 2020, S260410 [Where the jury implicitly found that the 

defendant was the “actual killer” the defendant is not eligible for section 1170.95 relief.]; 

People v. Tarkington (2020) 49 Cal.App.5th 892, 896 [same], review granted Aug. 12, 

2020, S263219.) Since defendant admits, and the record reflects, that he was the actual 

killer, he is not entitled to section 1170.95 relief.

Defendant misconstrues the language of the statute to mean that an actual killer 

who did not intend to kill may also have his conviction vacated. However, 

section 1170.95 only grants relief to those individuals who were not the actual killers; in 

other words, those individuals who were convicted of felony murder or aided and abetted 

a murder but did not intend to kill and did not act as a major participant with reckless 

indifference for human life. (People v. Cornelius, supra, 44 Cal.App.5th at p. 57; People 

v. Tarkington, supra, 49 Cal.App.5th at p. 896.) Since defendant was the actual killer, he 

is not entitled to section 1170.95 relief.

Defendant also contends his trial counsel rendered ineffective assistance in failing 

to seek suppression of his confession before defendant entered his plea. First, defendant 

forfeited this issue by failing to raise it in his petition. (See People v. Romero and Self

(2015) 62 Cal.4th 1, 23-25 [Failure to raise an issue below forfeits the issue on appeal.].) 

Second, “[W]here a criminal defendant could have raised an issue in a prior appeal, the 

appellate court need not entertain the issue in a subsequent appeal absent a showing of 

justification for the delay.” (People v. Senior (1995) 33 Cal.App.4th 531, 538; accord, 
5

People v. Jordan (2018) 21 Cal.App.5th 1136, 1143.) Finally, section 1170.95 provides 

only a narrow avenue of relief for those convicted of felony murder or murder under the 

natural and probable consequences theory. (§ 1170.95, subd. (a).) It does not permit a 

collateral attack on all issues that should have been raised on appeal from the judgment. 

Here, defendant could and should have raised this issue in an appeal from the original 

judgment. The trial court properly denied defendant’s petition.

III. DISPOSITION

The order denying defendant’s petition for resentencing pursuant to 

section 1170.95 is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.