Filed 7/24/26 P. v. Neece CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E085961
v. (Super.Ct.No. FVI1101564)
BRANDON NEECE, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kathleen Curtis,
Judge. Reversed and remanded with directions.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, for Plaintiff
and Respondent.
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In 2013 Brandon Neece pled guilty to second degree murder and first degree
burglary. In 2022, Neece filed a petition to vacate his conviction and be resentenced
under Penal Code section 1172.6.1 The court summarily denied the petition. We
conclude the court erred, reverse its order denying the petition, and remand for further
proceedings.
BACKGROUND
In 2011 Neece and an accomplice James Long broke into their victim’s house.
According to Neece and Long, the plan was to hit the victim with a flashlight, knock him
unconscious and then steal his television. A few days later, police found the victim dead
with several bruises and stab wounds. A third party told police that Long and Neece
confessed to being involved in the murder, with Neece telling the third party he hit the
victim with a flashlight, and Long admitting he stabbed the victim.
Police interviewed Neece, then Long. Neece confirmed that he and Long broke
into the victim’s home to steal his television set. He said he watched Long and the victim
struggle and was present when the victim died. Neece said he did not know Long was
going to kill the victim.
Long told police he hit the victim with a flashlight, but the victim woke up. At
that point Long believed the victim recognized him. He told police that he then spoke to
Neece, who told him to go back and kill the victim. Long then grabbed a kitchen knife
and used it to stab the victim to death.
1 Unlabeled statutory citations refer to the Penal Code.
2
The San Bernardino County District Attorney charged Neece and Long with
murder (§ 187, subd. (a)), second degree robbery (§ 211) and two counts of first degree
burglary (§ 459). At the preliminary hearing, the prosecution called the interviewing
officer to testify about his interviews with the third party, Neece, and Long. After the
hearing, the court held both Neece and Long to answer as charged. Eventually Neece
pled guilty to second degree murder and one count of first-degree burglary.
In 2022 Neece filed a petition under section 1172.6, seeking to vacate his sentence
and be resentenced. The court heard the petition in February 2025. At the hearing,
Neece’s counsel stated that he was “appointed to determine eligibility pursuant to
1172.6,” and concluded Neece was not eligible. Neece’s counsel cited cases involving
defendants who made a prima facie showing (see, e.g., People v. Rodriguez (2024) 103
Cal.App.5th 451)—for the proposition “that a guilty plea is a judicial admission . . . [¶]
it’s an admission that he was, in fact, the killer,” and therefore Neece could not state a
prima facie case for relief. The People agreed with this representation. Based on this, the
court summarily denied Neece’s petition.
DISCUSSION
On appeal, Neece argues the trial court erred by concluding he did not state a
prima facie case for relief. The People agree but argue Neece invited the error when his
attorney conceded the issue. We disagree that this was invited error, reach the merits of
Neece’s claim, and agree with the parties that the trial court erred in denying his petition
for relief.
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In 2018, the Legislature amended the definition of felony murder in section 189 to
restrict culpability for murder to actual killers, aiders and abettors, and anyone who was
“a major participant in the underlying felony and acted with reckless indifference to
human life” unless the victim was a peace officer. (§ 189, subd. (e)(1)-(3), (f).) At the
same time, the Legislature added section 1170.95, later renumbered to section 1172.6,
which allows “[a] person convicted of felony murder or murder under the natural and
probable consequences doctrine,” to “file a petition with the court that sentenced the
petitioner to have the petitioner’s murder . . . conviction vacated and to be resentenced on
any remaining counts,” if, among other things, “[t]he petitioner could not presently be
convicted of murder” (§ 1172.6, subd. (a)), because of the changes to the law wrought by
Senate Bill 1437. (§ 1172.6, subd. (a)(3).) If the petition makes a prima facie case for
relief the court must hold an evidentiary hearing. At this hearing, the People have the
burden to prove beyond a reasonable doubt that the petitioner is guilty of murder under
the law as it exists now, with the trial judge sitting as factfinder. (§ 1172.6, subds. (b),
(d)(3).)
When conducting a prima facie review, the court “ ‘ “ ‘takes [the] petitioner’s
factual allegations as true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual allegations were proved.’ ” ’ ”
(People v. Eynon (2021) 68 Cal.App.5th 967, 975 (Eynon).) “If the record of conviction
does not conclusively demonstrate that the defendant ‘engaged in the requisite acts and
had the requisite intent’ to be convicted on a theory of murder that remains valid, denying
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relief at the prima facie stage is improper.” (People v. Barboza (2021) 68 Cal.App.5th
955, 965-966.) A preliminary hearing transcript is part of the record of conviction for
these purposes, and courts may rely on them when reviewing petitions at the prima facie
stage. (See People v. Patton (2025) 17 Cal.5th 549, 568 [“there is no dispute that the
record of conviction the parties may consult at the prima facie stage includes a
preliminary hearing transcript preceding a guilty plea.”].)
We review the trial court’s decision at the prima facie stage de novo. (People v.
Bodely (2023) 95 Cal.App.5th 1193, 1200.)
Here, we agree with the parties that the court erred by denying Neece’s petition at
the prima facie stage. Contrary to the court’s and counsel’s understanding below, a guilty
plea (without more) is not an admission to any particular theory of guilt, and therefore
cannot render a defendant ineligible for relief as a matter of law. (See Eynon, supra, 68
Cal.App.5th at p. 977 [“By pleading guilty, the defendant admitted every element of the
charged offense . . . [b]ut the defendant did not admit facts supporting liability on any
particular theory . . . . Accordingly, the guilty plea did not constitute an admission that
the defendant acted with malice.”].)
Moreover, the record of conviction, including the preliminary hearing transcript,
does not contain any facts definitively foreclosing Neece’s eligibility for relief. It is
undisputed that Neece was not the sole participant in either the burglary or murder of the
victim. Nor is there any clear evidence Neece was the actual killer—indeed, the only
evidence presented suggests Long, not Neece, was the actual killer. While it is possible
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that, at an evidentiary hearing, the People could prove Neece guilty under a still valid
theory (such as direct aiding and abetting) there are no facts in the record of conviction
that foreclose the possibility he was convicted under a now invalid theory. Reviewing de
novo, we therefore find that Neece established a prima facie case for relief, and the trial
court should not have denied his petition for failing to do so.
Having concluded the court erred by denying Neece’s petition, we next turn to
whether Neece’s counsel’s erroneous concession invited that error, such that we cannot
or should not correct it.
“The doctrine of invited error ‘is an “application of the estoppel principle” ’ and
applies when a party invites the court or the jury to commit error.” (People v. Midell
(2025) 113 Cal.App.5th 1060, 1072.) “Under the doctrine of invited error, when a party
by its own conduct induces the commission of error, it may not claim on appeal that the
judgment should be reversed because of that error.” (Mary M. v. City of Los Angeles
(1991) 54 Cal.3d 202, 212.) It “ ‘ “is designed to prevent an accused from gaining a
reversal on appeal because of an error made by the trial court at his behest.” ’ [Citation.]
However, for the doctrine to apply, it ‘ “must be clear that counsel acted for tactical
reasons and not out of ignorance or mistake.” ’ ” (People v. Gonzalez (2024) 103
Cal.App.5th 215, 225.) In order to apply the doctrine, “the record must show only that
counsel made a conscious, deliberate tactical choice,” “it need not additionally show
counsel correctly understood all the legal implications of the tactical choice.” (People v.
Cooper (1991) 53 Cal.3d 771, 831.) In other words, “the invited error doctrine applies so
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long as counsel made a conscious, tactical choice even if such choice was based on a
misunderstanding of the law.” (People v. Duncan (1991) 53 Cal.3d 955, 970; see People
v. Wader (1993) 5 Cal.4th 610, 658 (Wader).)
We conclude that on this record defense counsel’s decision to concede that Neece
is ineligible for relief was not a deliberate tactical choice. Put simply, there was no
possible tactical purpose for counsel’s decision to concede the matter. Neece did not
stand to receive any possible benefit from this concession, and therefore the decision to
concede could only have been a genuine mistake.
This case is thus distinguishable from cases like Wader, supra, 5 Cal.4th 610. In
that case, defense counsel requested an erroneous jury instruction, and the court found the
invited error doctrine applied because “[a]lthough no tactical purpose for requesting the
instruction . . . appears on the face of the record, we cannot determine on the record alone
whether counsel could have had no rational tactical purpose for requesting this
instruction.” (Wader, at p. 658.) That is not true here. Here, we can conclude from the
record that there was no rational tactical purpose for defense counsel’s error besides pure
mistake. Counsel could not have been angling for a more favorable disposition—even
mistakenly—because the error foreclosed any possibility for a more favorable
disposition.
Finally, even if the invited error doctrine did apply, we would still reach the
merits. Because “a deliberate tactical choice by counsel . . . may be an incompetent one,”
courts have recognized that defendants barred from raising error under the invited error
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doctrine may instead claim they received ineffective assistance of counsel. (Wader,
supra, 5 Cal.4th at p. 658.) However, courts may also address the merits of an otherwise
procedurally barred claim in order to “avert any claim of inadequate assistance of
counsel.” (See People v. Yarbrough (2008) 169 Cal.App.4th 303, 310.) Thus, even if we
concluded Neece had invited the error he now complains of, we would exercise our
discretion to reach the merits anyway to avoid the same result obtaining through an
ineffective assistance of counsel claim.
Because we reach the merits of Neece’s claim and conclude he made a prima facie
showing for relief, we reverse the trial court’s order denying Neece’s petition under
section 1172.6 and remand for further proceedings.
DISPOSITION
We reverse the order denying Neece’s section 1172.6 petition and remand. On
remand, we direct the trial court to issue an order to show cause and to conduct further
proceedings as required under section 1172.6.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J.
We concur:
RAMIREZ
P. J.
MENETREZ
J.
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