People v. Hanes CA2/6 ( 2022 )

Filed 9/12/22 P. v. Hanes CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B318807
(Super. Ct. No. 14C-21538)
Plaintiff and Respondent, (San Luis Obispo County)
v.
PHILIP THOMAS HANES,
Defendant and Appellant.
Philip Thomas Hanes appeals an order denying his Penal
Code section 1170.95 (now § 1172.6)1 petition for resentencing on
his second degree murder conviction. He contends he is entitled
to relief because jurors convicted him based on the natural and
probable consequences doctrine. For reasons we shall explain, we
dismiss the appeal.
All statutory references are to the Penal Code. Effective
1
June 30, 2022, section 1170.95 was renumbered as section
1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
Jurors convicted Hanes of second degree murder for the
stabbing death of Tina Beddow. The trial court imposed a state
prison sentence of 15 years to life plus one year for using a deadly
weapon. We affirmed his conviction on direct appeal. (People v.
Hanes (Feb. 27, 2017, B269116) [nonpub. opn.].)
Hanes filed a petition for resentencing under section 1172.6
in October 2021.2 The petition stated he “was convicted of 2nd
degree murder pursuant to the natural and probable
consequences doctrine” and “could not now be convicted of . . .
murder because of changes made to Penal Code §§ 188 and 189,
effective January 1, 2019.” The trial court appointed counsel and
heard the petition on February 2, 2022. It found Hanes “failed to
make a prima facie showing that he is entitled to relief under
[section 1172.6].” He appealed.
We appointed counsel to represent Hanes in this appeal.
After examining the record, counsel filed a brief raising no issues
as contemplated in People v. Serrano (2012) 211 Cal.App.4th 496,
501 (Serrano). Hanes subsequently filed a 24-page supplemental
2 Section 1172.6, subdivision (a) provides, in relevant part,
“A person convicted of felony murder or murder under the
natural and probable consequences doctrine . . . may 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 when all of the following conditions
apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
under a theory of felony murder [or] murder under the natural
and probable consequences doctrine. . . . [¶] (2) The petitioner
was convicted of murder . . . following a trial . . . . [¶] (3) The
petitioner could not presently be convicted of murder . . . because
of changes to Section 188 or 189 made effective January 1, 2019.”
2
letter brief enumerating the reasons he believed the court should
have granted his petition.
Because this is an appeal from an order denying
postconviction relief, Hanes is not entitled to our independent
review pursuant to People v. Wende (1979) 25 Cal.3d 436. (People
v. Serrano, supra, 211 Cal.App.4th at p. 501; People v. Cole (2020)
52 Cal.App.5th 1023, 1039-1040, review granted Oct. 14, 2020,
S264278.) We do, however, consider the issues raised in his
supplemental brief. (Cole, at p. 1040.)
Hanes contends the trial court instructed the jury on the
doctrine of natural and probably consequences when it gave them
a modified version of CALCRIM No. 520 which stated, in relevant
part: “The defendant acted with implied malice if: [¶] 1. He
intentionally committed an act; [¶] 2. The nature and probable
consequences of the act were dangerous to human life; [¶] 3. At the
time he acted, he knew his act was dangerous to human life; [¶]
AND [¶] 4. He deliberately acted with conscious disregard for
human life.” (Italics added.) Hanes argues this language entitles
him to resentencing under section 1172.6 because it led jurors to
convict him on the second degree murder charge. He cites jurors’
questions about the meaning of “acts” in the first degree murder
instruction, CALCRIM No. 521, and the trial court’s response to
those questions, as steering jurors toward the above language at
a critical time in their deliberation.
Hanes assumes section 1172.6 applies whenever jurors
were instructed by the trial court to consider the “natural and
probable consequences” of a homicide defendant’s act or failure to
act. He reads the statute too broadly. Section 1172.6 addresses
only those convictions based on the defendant’s vicarious liability
for a killing perpetrated by another. The Legislature amended
3
prior law to “ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1, subd. (f); People v. Gentile (2020) 10 Cal.5th 830, 842,
superseded by statute as stated in People v. Birdsall (2022) 77
Cal.App.5th 859, 866, fn. 19.) Hanes conflates the “natural and
probable consequences” element in CALCRIM No. 520 with the
natural and probable consequences doctrine used to establish the
guilt of an accomplice or aider and abettor for murder under prior
law.3 Section 1172.6 applies only to the latter.
Section 1172.6 would not prevent Hanes’s conviction if he
were tried again under California’s amended homicide statutes.
Prosecutors presented evidence that Hanes stabbed Beddow
when she threatened to end their relationship. Hanes
maintained he acted in self-defense after Beddow attacked him
during a methamphetamine-induced psychosis. His conviction
rested on jurors finding his act or acts directly caused the victim’s
stabbing death, not on his vicarious liability for a killing that
occurred in the course of a separate target offense.
Hanes’s supplemental brief describes his trouble
communicating with counsel and the court during his section
1172.6 proceedings. He also takes issue with the final hearing
going forward without him present. While these may be genuine
3 The doctrine provided that “‘[a] person who knowingly
aids and abets criminal conduct is guilty of not only the intended
crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and
probable consequence of the intended crime.’” (See People v.
Medina (2009) 46 Cal.4th 913, 920.)
4
sources of frustration for Hanes, they do not address his petition’s
substantive defects. In addition, the record confirms the trial
court considered his supporting papers (including his full
response to the People’s opposition) and the arguments of
appointed counsel at the hearing. His supplemental brief raises
no other arguable issue on appeal from the order denying his
petition. As such, we dismiss the appeal as abandoned. (People
v. Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED.
PERREN, J.*
We concur:
GILBERT, P.J.
YEGAN, J.
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
5
Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
6