People v. Hunt CA3

Filed 10/17/22 P. v. Hunt CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C092335
Plaintiff and Respondent, (Super. Ct. No. CR57914)
v. OPINION ON TRANSFER
MICHAEL AVERY HUNT,
Defendant and Appellant.
Defendant Michael Avery Hunt appeals the trial court’s denial of his petition for
resentencing under Penal Code former section 1170.95 (now renumbered as section
1172.6 (Stats. 2022, ch. 58, § 10); statutory section citations that follow are found in the
Penal Code unless otherwise stated.) Defendant contends the trial court incorrectly relied
on the opinion deciding the direct appeal from his conviction without considering several
items of evidence he wanted to proffer and that the court lacked sufficient evidence to
conclude he was ineligible for relief beyond a reasonable doubt. He also asserts he
received ineffective assistance of counsel based on defense counsel’s failure to present
the same evidence to the court.
We filed an unpublished opinion on April 12, 2022, in which we concluded any
error by the trial court was harmless and affirmed the trial court’s order. Our Supreme
Court granted review of the matter on June 29, 2022, and transferred the case to us with
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directions to vacate our previous decision and reconsider the cause in light of Senate Bill
No. 775 (Stats. 2021, ch. 551). The parties submitted supplemental briefing in which
they agree the case should be remanded to the trial court. After reconsidering the matter,
we will reverse the trial court’s order and remand the matter for a new evidentiary
hearing.
FACTS AND HISTORY OF THE PROCEEDINGS
The People request we take judicial notice of the unpublished opinion from
defendant’s direct appeal, People v. Hunt (Mar. 9, 1982, 3 Crim. 11199) [nonpub. opn.]
(Hunt), and we will grant the request to provide context for defendant’s petition. (Evid.
Code, §§ 459, subd. (a), 452, subd. (d).) In our opinion, we described the underlying
facts of defendant’s conviction:
“On January 15, 1980, defendant and an accomplice, Michael Rinehart, accosted
[the victim], the manager of a convenience market outside the store at about 4:30 p.m.
[The victim] was carrying a bag containing the daily bank deposit of monies received
from the previous 24 hours. Rinehart displayed a gun. [The victim] attempted to walk
back to the store, whereupon shots were fired. Defendant shot [the victim] in the back
and Rinehart shot him from the front. The cause of death was the bullet which entered
[the victim’s] back. The bag with the money was taken by defendant and Rinehart who
fled by car.” (Hunt, supra, 3 Crim. 11199.)
The prosecution charged defendant with robbery (§ 211) and first degree murder
in the course of the robbery (§ 187), and alleged firearm use enhancements (§§ 12022,
subd. (a), 12022.5) as to both counts. (Hunt, supra, 3 Crim. 11199.) “A jury found him
guilty on all charges and that the weapon allegations and the special circumstances as to
the murder were true.” (Ibid.)
Defendant appealed and challenged the sufficiency of the evidence for
premeditation as to the murder conviction. (Hunt, supra, 3 Crim. 11199.) We rejected
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the challenge, explaining: “As to planning, Rinehart, if not defendant also, knew [the
victim] personally since Rinehart called out to [the victim], ‘Stop, [victim].’ Defendant
and Rinehart had been observed loitering around the store before the time of the robbery
and murder. When [the victim] failed to comply immediately with the command to ‘drop
it,’ Rinehart ran from a short distance away with a gun pointed at [the victim] and shot
[the victim] at close range from the front, while defendant almost simultaneously shot
him in the back from a distance of about two to five feet. A third shot, fired by one of the
assailants, hit the grocery bag in which [the victim] was carrying the money. Rinehart
grabbed the bag and both assailants ran. All of this is indicative that defendants knew
[the victim] and his habits concerning daily cash deliveries to the bank. The jury could
reasonably conclude that since both defendant and Rinehart were armed, did not attempt
to disguise themselves, and shot [the victim] twice almost simultaneously upon
confrontation (with a third shot which missed him), they had a preconceived plan to kill
him, both to prevent identification and to assure their obtaining possession of the bag of
money.” (Ibid.) We modified defendant’s sentence but otherwise affirmed the
convictions. (Ibid.)
Defendant’s Resentencing Petition
In 2019, defendant filed a petition for resentencing under former section 1170.95.
In the petition, defendant stated he had been prosecuted and convicted of murder under a
theory of felony murder and could not now be convicted of murder because of changes
made by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437). The
petition also attached documents from defendant’s case, including a complaint, jury
instructions, verdict forms, an abstract of judgment, and a probation report, as well as
legislative documents related to Senate Bill No. 1437. The trial court appointed counsel
and issued an order to show cause. The court directed the parties to file prehearing
briefing discussing whether the court could consider defendant’s probation report and a
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minute order from the court’s files. Both parties submitted briefing in conformance with
the court’s order.
The Order to Show Cause Hearing
At the hearing, the court stated it had obtained the full court file for defendant’s
case, including the direct appeal opinion. Defense counsel argued the opinion was
inadmissible hearsay, and the prosecution argued the evidence in the case established
beyond a reasonable doubt that defendant had committed “first degree murder with
premeditation and deliberation.” The court explained the changes made to section 189 by
Senate Bill No. 1437, then explained it was entitled to consider the direct appeal opinion
as part of defendant’s record of conviction.
After reciting the facts from the opinion, the trial court explained: “On those facts
alone, the Court has more than enough evidence to conclude that in the commission of a
robbery this defendant was, in fact, the actual killer and that even if not the actual killer,
he certainly acted with the intent to kill in aiding, abetting and assisting the actual killer
in committing murder in the first degree. Likewise, based on the factors set forth in
People [v.] Banks [(2015)] 61 Cal.4th 788 and People [v.] Clark [(2016)] 63 Cal.4th 522,
in the alternative the Court would also find that the Defendant was a major participant in
the underlying felony and acted with reckless indifference to human life.
“In light of the above findings, the Court is not considering in any matter [sic] and
therefore need not rule on the admissibility of the probation report, the February 28th,
1983, minute order and/or the Federal Habeas pleadings.
“For all those reasons, Petitioner’s petition for resentencing pursuant to . . .
Section 1170.95 is denied.” The court clarified that the factual findings were beyond a
reasonable doubt.
Defense counsel objected, again arguing the direct appeal opinion was hearsay and
asserting, “it would be more proper to hold an evidentiary hearing under 1170.95(d)(3) in
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which the People would have the burden beyond a reasonable doubt to prove that . . . he
still fits the definitions of Section 188 and Section 189.” The court overruled the
objections.
DISCUSSION
Defendant contends the trial court erred when it relied on the direct appeal opinion
to the exclusion of other evidence. Because the court failed to consider “the full record to
make an appropriate ruling,” defendant argues, the court’s order must be reversed. In
supplemental briefing, the People agree that legislative changes made by Senate Bill No.
775 have limited the extent to which a trial court may rely on a direct appeal opinion, and
concede the matter must be remanded to the trial court. We agree with the parties.
Senate Bill No. 1437 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 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(f).) Senate Bill No. 1437 achieves these goals
by amending section 188 to require that a principal act with express or implied malice
(§ 188, as amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state
that a person can be liable for felony murder only if (1) “[t]he person was the actual
killer”; (2) the person, with an intent to kill, was an aider or abettor in the commission of
murder in the first degree; or (3) “[t]he person was a major participant in the underlying
felony and acted with reckless indifference to human life . . . .” (§ 189, subd. (e), as
amended by Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also added former section 1170.95 to provide a resentencing
petition process for any “person convicted of felony murder or murder under a natural
and probable consequences” theory. (Former § 1170.95, subd. (a).) After a defendant
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submits a petition, the court must determine whether the petitioner has made a prima
facie case that he or she is entitled to relief. (Former § 1170.95, subd. (c).)
“If the trial court determines that a prima facie showing for relief has been made,
the trial court issues an order to show cause, and then must hold a hearing ‘to determine
whether to vacate the murder conviction and to recall the sentence . . . . ’ ” (People v.
Lewis (2021) 11 Cal.5th 952, 960.) At the hearing, the parties may rely on the record of
conviction or present “new or additional evidence” to support their positions, and “the
burden of proof shall be on the prosecution to prove, beyond a reasonable doubt,” that the
petitioner is ineligible for relief. (Former § 1170.95, subd. (d)(3).)
Senate Bill No. 775 (2020-2021 Reg. Sess.) amended former section 1170.95,
subdivision (d)(3) to require the prosecution to “prove, beyond a reasonable doubt, that
the petitioner is guilty of murder” under current law, and further provides that “[a]
finding that there is substantial evidence to support a conviction for murder” is
insufficient to meet this required showing. (Stats. 2021, ch. 551, § 2.) It also added new
text governing the consideration of evidence at a former section 1170.95, subdivision
(d)(3) evidentiary hearing, saying, “The admission of evidence in the hearing shall be
governed by the Evidence Code, except that the court may consider evidence previously
admitted at any prior hearing or trial that is admissible under current law, including
witness testimony, stipulated evidence, and matters judicially noticed. The court may
also consider the procedural history of the case recited in any prior appellate opinion.
However, hearsay evidence that was admitted in a preliminary hearing pursuant to
subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the
evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor
and the petitioner may also offer new or additional evidence to meet their respective
burdens.” (Ibid.)
We agree with the parties that the changes made by Senate Bill No. 775 apply to
defendant’s petition. (People v. Porter (2022) 73 Cal.App.5th 644, 652.) Here, the trial
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court considered the prior appellate opinion for more than merely the procedural history
of the case, and appears to have relied entirely on the recitation of facts in the direct
appeal opinion to draw its factual conclusions. The court did not act as an “independent
factfinder” in assessing defendant’s guilt under a currently valid theory of murder and
thus its decision did not comport with the now applicable requirements of section 1172.6.
(People v. Garrison (2022) 73 Cal.App.5th 735, 745, fn. 6.) As a result, we must reverse
the trial court’s order and remand the case for reconsideration applying the requirements
of section 1172.6, subdivision (d)(3). Because we reverse the trial court’s order, we need
not reach defendant’s other contentions, that is, that the court’s order was not supported
by sufficient evidence and that he received ineffective assistance of counsel at the
evidentiary hearing.
DISPOSITION
The trial court’s order on defendant’s petition is reversed. The matter is remanded
to the trial court for a new hearing consistent with the requirements in section 1172.6,
subdivision (d)(3).
HULL, J.
We concur:
ROBIE, Acting P. J.
KRAUSE, J.
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