People v. Hester CA4/3 ( 2021 )

Filed 9/14/21 P. v. Hester CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G058263
v. (Super. Ct. No. 06NF2588)
RANDLE HESTER, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Kimberly Menninger, Judge. Affirmed.
Kevin J. Lindsley, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Robin Urbanski and Donald W. Ostertag, Deputy Attorneys General,
for Plaintiff and Respondent.
Randle Hester challenges the trial court’s summary denial of his petition for
resentencing pursuant to Penal Code section 1170.95.1 Hester asserts the court
improperly determined he was ineligible for resentencing as a matter of law and
committed prejudicial error by failing to appoint counsel. We disagree. Because the
record of conviction established Hester’s ineligibility for resentencing as a matter of law,
the failure to appoint counsel constituted harmless error. We affirm the order denying his
petition for resentencing.
FACTS
A detailed recitation of the facts is set forth in the prior opinion in this case.
(People v. Hester (G041657, Nov. 30, 2010) [nonpub. opn.].) In sum, Hester was
involved in a gang drive-by shooting that resulted in a death. At trial, the court only
provided jury instructions as to direct aiding and abetting, and not regarding the natural
and probable consequences theory of aiding and abetting liability. The court also did not
instruct the jury on felony murder. The sole theories of first degree murder were
premeditation and deliberation or shooting a firearm from a motor vehicle, which
specifically required the factual finding that Hester “intentionally shot at a person who
was outside the vehicle” and “[h]e intended to kill that person.”
As relevant to the issues in this appeal, the jury convicted Hester of first
degree murder (§ 187, subd. (a), count 1), shooting at an occupied motor vehicle (§ 246,
count 2), conspiracy to commit murder (§ 182, subd. (a)(1), count 3), three counts of
premeditated and deliberate attempted murder (§§ 664, subd. (a), 187, subd. (a), counts 5,
6, and 7), and street terrorism (§ 186.22, subd. (a), count 9).
As to count 1, the jury found true the special circumstances Hester
committed the murder during a drive-by shooting (§ 190.2, subd. (a)(21)), and to further
the activities of a criminal street gang (§ 190.2, subd. (a)(22)). As to counts 1, 2, 5, 6,
1 All further statutory references are to the Penal Code.
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and 7, the jury found true Hester vicariously discharged a firearm (§ 12022.53, subds. (c),
(d) & (e)(1)). As to all but count 9, the jury found true Hester committed the crimes for
the benefit of a criminal street gang, East Coast Crips and Osage Legend Crips (§ 186.22,
subd. (b)(1)).
The trial court sentenced Hester to life without the possibility of parole on
count 1, and a consecutive term of 25 years to life for the firearm use enhancement. The
court imposed terms of life with the possibility of parole plus 20 years for counts 5, 6,
and 7, to be served consecutively as to each other but concurrently with count 1.
In 2019, Hester filed a petition for resentencing pursuant to section
1170.95. The trial court ruled without appointing counsel and summarily denied the
petition, stating: “The petition does not set forth a prima facie case for relief under the
statute. A review of court records indicates defendant is not eligible for relief under the
statute because the defendant does not stand convicted of murder or defendant’s murder
conviction(s) is not based on felony-murder or on a natural and probable consequences
theory of vicarious liability for aiders and abettors.”
On July 29, 2021, we issued an order requesting supplemental briefing
addressing the extent to which the Supreme Court’s recent opinion in People v. Lewis
(2021) 11 Cal.5th 952 (Lewis), applies to this case. We received briefs from both parties.
DISCUSSION
I. S.B. 1437 and Section 1170.95
“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘to
amend the felony murder rule and the natural and probable consequences doctrine, as it
relates to murder, 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.’ [Citation.] In
addition to substantively amending sections 188 and 189 . . . Senate Bill 1437 added
section 1170.95, which provides a procedure for convicted murderers who could not be
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convicted under the law as amended to retroactively seek relief.” [Citation.] (Lewis,
supra, 11 Cal.5th at p. 959.)
Section 1170.95, subdivision (a), provides, in relevant part, “A person
convicted of felony murder or murder under a natural and probable consequences theory
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 . . . .”
Under section 1170.95, if the petitioner makes a prima facie showing, the
court must issue an order to show cause (OSC) and, absent a waiver and stipulation by
the parties, hold a hearing to determine whether to vacate the murder conviction, recall
the sentence, and resentence the petitioner. (§ 1170.95, subds. (c), (d)(1).) A prima facie
showing under section 1170.95 requires the following: (1) an accusatory pleading was
filed against the petitioner allowing the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine; (2) he or she
was convicted of first or second degree murder following a trial, or accepted a plea offer
to first or second degree murder in lieu of trial, at which he or she could have been so
convicted; and (3) that he or she could not be convicted of murder due to the amendments
to sections 188 and 189. (§ 1170.95, subd. (a)(1)-(3).)
The “authority to make determinations without conducting an evidentiary
hearing pursuant to section 1170.95, [subdivision] (d) is limited to readily ascertainable
facts from the record (such as the crime of conviction), rather than factfinding involving
the weighing of evidence or the exercise of discretion (such as determining whether the
petitioner showed reckless indifference to human life in the commission of the crime).”
(People v. Drayton (2020) 47 Cal.App.5th 965, 980.) “If, accepting the facts asserted in
the petition as true, the petitioner would be entitled to relief because he or she has met the
requirements of section 1170.95[, subdivision] (a), then the trial court should issue an
order to show cause. [Citation.]” (Id. at pp. 980-981.) An order summarily denying a
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section 1170.95 petition without issuing an OSC is a question of law subject to de novo
review. (Id. at p. 981.)
II. Analysis
Hester argues the trial court erred by summarily denying his petition
without appointing counsel or issuing an OSC. However, even if the trial court errs by
failing to appoint counsel, any such error is harmless if the defendant is not entitled to
relief as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 673, rev. granted
Feb. 24, 2021, S266336.) Such is the case here.
During the pendency of this appeal, the Supreme Court issued its decision
in Lewis, concluding a defendant’s right to appointment of counsel attaches upon the
filing of a petition that complies with the procedural requirements of section 1170.95.
(Lewis, supra, 11 Cal.5th at p. 952.) Following Lewis, the trial court erred by reviewing
the record of conviction and denying Hester’s petition without first appointing counsel.
(Ibid.) That, however, does not end our inquiry.
Lewis held the denial of a statutory right to counsel during the petition
process was a violation of state law to be judged under the standard enunciated in People
v. Watson (1956) 46 Cal.2d 818. (Lewis, supra, 11 Cal.5th at pp. 957-958.) In order to
establish prejudice from the denial of counsel, a defendant must demonstrate it was
“‘“reasonably probable that if [he] had been afforded assistance of counsel his [ ] petition
would not have been summarily denied without an evidentiary hearing.”’” (Id. at p. 974.)
Hester cannot establish prejudice because the only theories of first degree
murder liability were premeditation and deliberation, or shooting from a motor vehicle,
which also required a finding of intent to kill. Indeed, the prosecution did not allege, and
the jury was not instructed, as to a natural and probable consequence theory of aiding and
abetting liability, nor was it instructed as to felony murder. In his letter brief, Hester
surmises failure to appoint counsel was prejudicial because an attorney could have
“potentially uncovered information helpful to establishing the prima facie case” and
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“could have assisted . . . Hester in making a prima facie factual case that his conviction
for murder rests on now-forbidden natural and probable consequences reasoning.” This
argument is belied by the record. The jury was not instructed as to the natural and
probable consequences theory of murder liability. Appointment of counsel would not
have changed that fact. Any error in refusing to appoint counsel was harmless because
Hester fails to demonstrate how he is eligible for resentencing on a murder theory eligible
for resentencing.
Additionally, it is undisputed the jury convicted Hester of conspiracy to
commit murder. Conspiracy is a specific intent crime, and conspiracy to commit murder
requires that a conspirator personally have the specific intent to kill. (People v. Swain
(1996) 12 Cal.4th 593, 602 (Swain).) Conspiracy to murder cannot be based on an
implied malice theory. (Id. at p. 607.)
Thus, Hester’s convictions for both conspiracy to commit murder and
murder made it abundantly clear he acted with the specific intent to kill. (See Swain,
supra, 12 Cal.4th at p. 607 [“conspiracy to commit murder requires a finding of intent to
kill”].) There are no circumstances under which convictions for murder and conspiracy
to commit murder would render Hester eligible for relief under section 1170.95.
Accordingly, the trial court’s failure to appoint counsel was harmless.
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DISPOSITION
The postjudgment order is affirmed.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
FYBEL, J.
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