People v. Hutchinson CA2/8

Filed 3/14/23 P. v. Hutchinson CA2/8
(Opinion following transfer from Supreme Court)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B299078
Plaintiff and Respondent,
(Los Angeles County
v.
Super. Ct. No. NA102378)
ANTONE HUTCHINSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Richard R. Romero, Judge. Reversed.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Noah P. Hill, Amanda V.
Lopez and Heidi Salerno, Deputy Attorneys General, for Plaintiff
and Respondent.
_________________________
This appeal requires us to decide whether a defendant who
pleads guilty to unpremeditated attempted murder is entitled to
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resentencing pursuant to Penal Code section 1170.95 and Senate
Bill No. 1437. In our decision filed April 30, 2020, our answer
was no. On February 15, 2023, the California Supreme Court
ordered us to vacate and reconsider our decision in light of Senate
Bill No. 775 (Stats. 2021, ch. 551). We do so now and conclude
appellant is entitled to be considered for resentencing under the
statute.
FACTUAL BACKGROUND
In 2017, appellant Antone Hutchinson pled guilty to one
count of unpremeditated attempted murder, for which he was
sentenced to the high term of nine years; and one count of
discharging a firearm at an inhabited dwelling, for which he was
sentenced to one year eight months, one-third of the mid-term.
He also admitted a gang allegation, for which he received an
additional 10 years. Hutchinson’s aggregate sentence is 20 years
eight months in prison.
We do not have the record of conviction before us on appeal.
With no preliminary hearing transcript, information, probation
report, or other document to provide the facts underlying
1 During the pendency of the appeal, Penal Code section
1170.95 was renumbered section 1172.6, with no change in text.
(Stats. 2022, ch. 58, § 10, eff. June 30, 2022.) For clarity we refer
to former section 1170.95 by its new designation.
All further statutory references are to the Penal Code
unless otherwise indicated.
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Hutchinson’s offense, we rely on Hutchinson’s reply to the
People’s opposition to his petition for resentencing to provide
skeletal details of the offense. On appeal neither party disputes
the facts of the offenses as set out in this opinion. Details of what
transpired in the trial court with respect to the guilty plea,
however, remain opaque.
The undisputed facts are that appellant Hutchinson agreed
to give Deshawn Freeman and Dyllin Pressey a ride to a store.
When Hutchinson later pulled over, Freeman and Pressey exited
the car and began shooting. Four people were injured. Freeman
then ordered Hutchinson to drive across town, where Freeman
and Pressey again exited the car and one of them shot at a
building.
PROCEDURAL BACKGROUND
On January 11, 2019, Hutchinson filed a petition for
resentencing under section 1172.6. Hutchinson alleged: (1) a
complaint, information, or indictment was filed against him that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; (2) he pled guilty or no contest to first or second degree
murder in lieu of going to trial because he believed he could have
been convicted of first or second degree murder at trial pursuant
to the felony murder rule or the natural and probable
consequences doctrine; and (3) he could not now be convicted of
first or second degree murder because of changes made to
Sections 188 and 189.
The People opposed the petition on statutory and
constitutional grounds. The constitutional grounds are not at
issue on appeal so we do not discuss them. As to the statutory
grounds, the People argued Hutchinson was not convicted of
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murder under a felony murder or natural and probable
consequences theory. Rather, he was convicted of attempted
murder. The People also argued section 1172.6 applies to
convictions for first or second degree murder only, not attempted
murder. The People further contended Hutchinson was not
eligible for resentencing because his culpability for attempted
murder arose from aiding and abetting the crimes to which he
pled guilty.
In his reply, Hutchinson urged the court to conclude that
the Legislature intended to include within the ameliorative
provisions of Senate Bill No. 1437 the crime of attempted murder
based on the natural and probable consequences doctrine.
Hutchinson also alleged in his reply that he was factually
innocent of the charges and pleaded guilty because he could not
safely testify in his own behalf.
The court denied the resentencing petition, finding
Hutchinson “was not convicted under a theory of felony murder
or natural and probable consequences. In fact, he was not
convicted of murder and pled to attempted murder and shooting
at an inhabited dwelling with a gang allegation. Nor was he ever
charged with murder.”
Hutchinson filed a motion for reconsideration. The court
denied the motion, determining Hutchinson “necessarily would
have an intent to kill as an aider and abettor to attempted
murder. With an intent to kill, petitioner is not entitled to
resentencing.”
Hutchinson timely appealed.
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DISCUSSION
The doctrine of natural and probable consequences is an
aiding and abetting theory whereby a defendant guilty of one
crime (the target crime) is also held liable for a crime committed
by an accomplice (the nontarget crime) that a reasonable person
would know was a natural and probable consequence of the
target crime committed by the defendant. (CALCRIM 402;
People v. Chiu (2014) 59 Cal.4th 155, 161–162.)
In 2018, the Legislature enacted Senate Bill No. 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill No. 1437 amended the definition of malice in section
188 to provide, “Except as stated in subdivision (e) of Section 189,
in order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
As of January 1, 2019, the effective date of Senate Bill
No. 1437, a person can no longer be liable for murder under the
natural and probable consequences doctrine. (People v. Gentile
(2020) 10 Cal.5th 830, 841, 847–848, 849, superseded by statute
as stated in People v. Hola (2022) 77 Cal.App.5th 362, 370.)
Pursuant to Senate Bill No. 1437, the Legislature also
added section 1172.6, which permits those “convicted of . . .
murder under a natural and probable consequences doctrine” to
“file a petition with the court that sentenced the petitioner to
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have the petitioner’s murder . . . conviction vacated and to be
resentenced on any remaining counts.” (§ 1172.6, subd. (a).) The
court may only grant the petition upon a prima facie showing
that: (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) [t]he petitioner was
convicted of murder, attempted murder, or manslaughter
following a trial or accepted a plea offer in lieu of a trial at which
the petitioner could have been convicted of murder; and (3) [t]he
petitioner could not be convicted of murder because of changes to
Section 188 or 189 made effective January 1, 2019. (Id.,
subd. (a)(1)–(3).)
While appellant’s petition for review was pending, the
legislature enacted Senate Bill No. 775, which expressly applies
section 1172.6 to convictions for attempted murder. Senate Bill
No. 775 is retroactive to judgments that were not final upon the
date the statute took effect. (People v. Montes (2021)
71 Cal.App.5th 1001, 1006–1007.) Appellant’s judgment was not
final when Senate Bill No. 775 took effect and therefore the
amended statute applies to him.
We cannot comment on the trial court’s finding upon
reconsideration that appellant, as an aider and abettor to
attempted murder, must have had the intent to kill. In his
Opening Brief, appellant addressed that finding. In Respondent’s
Brief, the People made no argument whatsoever on the issue,
standing pat on their argument that the statute did not
encompass the crime of attempted murder. This was a plea for
which Hutchinson has provided no record. We do not know under
what theory Hutchinson entered his plea and neither party has
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filled the evidentiary gap. We agree with both parties that
where, as here, there is no indication as a matter of law that
appellant was convicted on a still valid theory, remand is proper.
(People v. Montes, supra, 71 Cal.App.5th at p. 1007, citing People
v. Lewis (2021) 11 Cal.5th 952, 971–972.)
DISPOSITION
The order is reversed and the matter is remanded to the
trial court to determine whether appellant has made a prima
facie showing of eligibility for resentencing under the statute
and, if so, to hold an evidentiary hearing on the petition.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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