People v. Hunt CA2/1

Filed 1/4/21 P. v. Hunt CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B302851
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A614247)
v.
PAUL LEE HUNT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Pat Connolly, Judge. Affirmed.
____________________________
Paul Lee Hunt, in pro. per.; and Tanya Dellaca, under
appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
____________________________
On August 29, 2019, defendant and appellant Paul
Lee Hunt filed a petition under Penal Code1 section 1170.95
for resentencing on his murder conviction. Section 1170.95
establishes a procedure for defendants who could no longer be
convicted of murder because of changes enacted as part of Senate
Bill No. 1437 (2017–2018 Reg. Sess.) to vacate their murder
convictions. (Stats. 2018, ch. 1015, § 4, pp. 6675–6677.) Senate
Bill No. 1437 abolished the natural and probable consequences
doctrine in cases of murder, and limited the application of the
felony murder doctrine. (See People v. Gentile (Dec. 17, 2020,
S256698) ___ Cal.5th ___ [2020 WL 7393491].) In particular,
the new law allows convictions for felony murder only if the
defendant was the actual killer, acted with the intent to kill, or
was a major participant in the underlying felony and acted with
reckless indifference to human life. (See § 189, subd. (e).)
The trial court summarily denied Hunt’s petition, finding
as a matter of law that Hunt was not entitled to relief. Hunt filed
a notice of appeal, and we appointed counsel to represent him.
His attorney filed a brief pursuant to People v. Serrano (2012)
211 Cal.App.4th 496 raising no issues.
When an attorney in an appeal of the denial of a petition
under section 1170.95 files a brief of this kind, we are not
obligated to search the record independently for arguable issues.
(People v. Cole (2020) 52 Cal.App.5th 1023, 1039–1040, review
granted Oct. 14, 2020, S264278.) The defendant, however, has
the right to file a supplemental brief, and if so, we must “evaluate
1Subsequent unspecified statutory references are to the
Penal Code.
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any arguments presented in that brief and . . . issue a written
opinion that disposes of the trial court’s order on the merits.”
(Ibid.)
On August 11, 2020, we sent a letter to Hunt informing
him that he could submit a supplemental brief or letter stating
any grounds for an appeal, or contentions, or arguments that he
wished this court to consider.
On October 26, 2020, Hunt filed a supplemental brief
arguing that his attorney’s conduct denied him adequate
representation and the right to appeal. Hunt also alleged that
the trial court’s order was contrary to the law and not supported
by the evidence. In addition, Hunt challenged the eyewitness
testimony against him and requested a full evidentiary hearing.
We find no merit in Hunt’s claims. If a defendant fails
to make a prima facie case that he falls within the provisions
of section 1170.95, the trial court should summarily deny the
petition without appointing counsel. (See People v. Lewis (2020)
43 Cal.App.5th 1128, 1139–1140, review granted Mar. 18, 2020,
S260598 (Lewis); People v. Verdugo (2020) 44 Cal.App.5th 320,
327-332, review granted Mar. 18, 2020, S260493 (Verdugo).)
In determining whether a defendant has made a prima facie
case, “[t]he court’s role . . . is simply to decide whether the
petitioner is ineligible for relief as a matter of law, making all
factual inferences in favor of the petitioner.” (Verdugo, supra,
at p. 329.) The court may consider the record of conviction,
including any prior appellate opinion in the case. (Lewis, supra,
at pp. 1137–1138.)
In our nonpublished opinion in Hunt’s direct appeal, People
v. Hunt (June 26, 1980, 34728), we described how Hunt and an
unidentified second suspect robbed and killed a victim at a car
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wash on May 16, 1978: “The suspect approached the car and said
to the driver (Holt): ‘Give me the keys.’ The suspect wore a net
over his face and pointed a gun at Holt. The suspect then went to
the ‘next’ car (owned by Sexton, the victim) and held the gun on a
female (a Ms. Carter, Sexton’s girlfriend), who was vacuuming
the car. He asked her for the keys, reached toward the ignition,
did not find keys, held the gun to her chest, and dragged her to
the back of the car where Sexton was standing.
“This suspect then asked Sexton for the keys. Sexton gave
him the keys and said: ‘Please don't do this.’ The suspect then
fired two gunshots at Sexton, and ran away. The gunshots
caused Sexton to fall into the trunk. Defendant came to the
trunk, raised Sexton, fired two gunshots at Sexton, and ran
away.”
The record of conviction shows that the jury convicted Hunt
of one count of first degree murder and also found true a special
circumstance. Under the law in effect at the time of the murder,
a special circumstance applied only if the defendant acted with
the intent to kill the victim. (See former § 190.2, Stats. 1977,
ch. 316, § 9, pp. 1257–1258; People v. Frierson (1979) 25 Cal.3d
142, 175.) This is consistent with the account of Hunt’s actions
in our prior opinion, in which we stated that Hunt shot the victim
twice at close range. Because Hunt acted with the intent to kill,
his conduct is still defined as murder under the newly amended
law. (See §§ 188, subd. (a), 189, subd. (e).) Thus, he is ineligible
as a matter of law for resentencing under section 1170.95, and
the trial court did not err by summarily denying his petition.
(See Lewis, supra, 43 Cal.App.5th at pp. 1139–1140, review
granted Mar. 18, 2020, S260598.) Nor did his attorney render
ineffective assistance either before the trial court or in this
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appeal. (See People v. Cunningham (2001) 25 Cal.4th 926, 1003
[ineffective assistance of counsel claim requires reasonable
probability that defendant would have obtained a better outcome
if not for errors of counsel].)
In his supplemental brief, Hunt also challenged the
validity of the eyewitness testimony against him. But “[t]he
purpose of section 1170.95 is to give defendants the benefit
of amended sections 188 and 189 with respect to issues not
previously determined, not to provide a do-over on factual
disputes that have already been resolved.” (People v. Allison
(2020) 55 Cal.App.5th 449, 461.) The propriety of the procedure
by which witnesses identified Hunt was litigated in Hunt’s
original appeal. (See People v. Hunt, supra, No. 34728.)
Hunt alleges that “[t]his may be an issue for [h]abeas corpus.”
Nothing in this opinion prejudices Hunt from filing a habeas
petition.
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DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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