Filed 7/24/26 P. v. Neece 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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, 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.

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 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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