People v. Hunter CA2/7

Filed 11/15/22 P. v. Hunter CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B317637
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA087132-02)
v.
CURTIS MAURICE HUNTER,
Defendant and
Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Sean D. Coen, Judge. Affirmed.
Daniel Milchiker, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Daniel C. Chang, Deputy Attorneys
General, for Plaintiff and Respondent.
________________________
Curtis Maurice Hunter, convicted in 2007 on two counts of
attempted willful, deliberate and premeditated murder, appeals
the summary denial of his petition for resentencing pursuant to
1
Penal Code section 1172.6 (former section 1170.95). Although
the superior court erred in failing to appoint counsel for Hunter
and to allow briefing before determining whether Hunter was
ineligible for relief as a matter of law, that error was harmless
2
because the record of conviction establishes that Hunter was not
found guilty of attempted murder under any theory of liability
affected by the amendments to the law of murder made by Senate
Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). We
affirm.
1
Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6 with no change in text. (Stats. 2022,
ch. 58, § 10.)
All further statutory references are to the Penal Code.
2
We construed the Attorney General’s request for judicial
notice of the record in Hunter’s direct appeal (People v. Hunter,
B205552) as a motion to augment the record pursuant to
California Rules of Court, rule 8.155(a)(1)(A) and granted the
motion, incorporating by reference the clerk’s and reporter’s
transcripts that comprise the record in the prior appeal as part of
the record in the instant appeal.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Hunter’s Conviction for Attempted Murder
Hunter was charged in a two-count information filed
January 22, 2007 with the attempted willful, deliberate and
premeditated murder of Anthony Bickham and Shawn Turner.
Firearm-use and criminal street gang enhancements were
specially alleged as to both counts. The People’s theory of the
case, as summarized in our opinion affirming Hunter’s
convictions (see People v. Hunter (Mar. 18, 2009, B205552)
[nonpub. opn.]), was that Bickham and Turner, members of a
Crips gang, were walking near the border of the territory of a
Bloods gang, when Hunter, a member of the Bloods, recognized
Bickham and Turner as Crips, pulled a gun and fired several
shots at them, narrowly missing Bickham and severely injuring
Turner.
Hunter’s jury was instructed pursuant to CALCRIM
No. 600 that to prove attempted murder the People had to prove,
among other elements, “The defendant intended to kill that
person,” and pursuant to CALCRIM No. 601 that the allegation
Hunter had acted deliberately, willfully and with premeditation
required the People to prove, in part, he “intended to kill when he
acted” and “decided to kill before acting.” The jury was also
instructed on attempted voluntary manslaughter—heat of
passion (CALCRIM No. 603) as a lesser included offense of
attempted murder. There were no instructions on liability for
attempted murder on a theory of aiding and abetting or the
natural and probable consequences doctrine.
With respect to the specially alleged enhancements for
personal use and intentional discharge of a firearm, the jury was
instructed pursuant to CALCRIM Nos. 3148 and 3150 it had to
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find the defendant “personally discharged a firearm during the
commission or attempted commission of the crime” and “intended
to discharge the firearm.”
Hunter was convicted of the attempted deliberate, willful
and premeditated murder of both men. The jury found that both
offenses had been committed for the benefit of a criminal street
gang and that Hunter had personally and intentionally
discharged a firearm causing great bodily injury to Turner and
had personally and intentionally discharged a firearm during the
attempt on Bickham’s life. The court sentenced Hunter to an
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aggregate indeterminate state prison term of 75 years to life.
2. Hunter’s Petition for Resentencing
On December 13, 2021 Hunter, representing himself, filed a
petition for resentencing pursuant to former section 1170.95. The
petition included Hunter’s declaration that he had been charged
with attempted murder under the natural and probable
consequences doctrine and could not now be convicted of
attempted murder because of Senate Bill 1437’s amendments to
sections 188 and 189. Hunter requested appointment of counsel
to assist him. (The petition also asserted Turner and Bickham
had recanted their testimony identifying Hunter as the man who
shot them and argued his trial counsel had provided
constitutionally ineffective assistance.)
3
On appeal Hunter argued only that the clerk’s minute
order and abstract of judgment needed to be corrected to
accurately reflect the sentence actually imposed. We agreed and
ordered the clerical errors corrected. (People v. Hunter, supra,
B250552.)
4
On December 15, 2021 the superior court summarily denied
Hunter’s petition without appointing counsel. The court stated,
because Hunter had been convicted of attempted murder, he was
not eligible for resentencing.
Hunter filed a timely notice of appeal.
DISCUSSION
1. Section 1172.6 (Former Section 1170.95)
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-
843) and significantly narrowing the felony-murder exception to
the malice requirement for murder. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708;
People v. Lewis (2021) 11 Cal.5th 952, 957.) It also authorized,
through former section 1170.95, an individual convicted of felony
murder or murder based on the natural and probable
consequences doctrine to petition the sentencing court to vacate
the conviction and be resentenced on any remaining counts if he
or she could not now be convicted of murder because of Senate
Bill 1437’s changes to the definitions of the crime. (See Strong, at
p. 708; Lewis, at p. 957; Gentile, at p. 843.) As amended by
Senate Bill No. 775 (Stats. 2021, ch. 551, § 2) (Senate Bill 775),
effective January 1, 2022, these ameliorative changes to the law
now expressly apply to attempted murder and voluntary
4
manslaughter.
4
Although the superior court summarily denied Hunter’s
petition prior to Senate Bill 775’s effective date on the ground
Senate Bill 1437 did not apply to attempted murder, the
5
If the section 1172.6 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief, the court must appoint counsel to
represent the petitioner, if requested (§ 1172.6, subd. (b)(3)), and
direct the prosecutor to file a response to the petition, permit the
petitioner to file a reply and determine if the petitioner has made
a prima facie showing that he or she is entitled to relief.
(§ 1172.6, subd. (c); see Lewis, supra, 11 Cal.5th at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1172.6 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . However, if the record, including the
court’s own documents, contain[s] facts refuting the allegations
made in the petition, then the court is justified in making a
credibility determination adverse to the petitioner.” (Id. at
pp. 970-971, internal quotation marks omitted.)
legislation expanding the reach of Senate Bill 1437’s
amendments to murder liability had been signed by the Governor
and chaptered two months earlier—prior even to the filing of
Hunter’s petition.
6
When a petitioner has carried the burden of making the
requisite prima facie showing he or she falls within the
provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1172.6, subd. (d)(1).) At that hearing the court may consider
evidence “previously admitted at any prior hearing or trial that is
admissible under current law,” including witness testimony.
(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may
also offer new or additional evidence. (Ibid.)
“At the hearing to determine whether the petitioner is
entitled to relief, the burden of proof shall be on the prosecution
to prove, beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019. . . . A finding that there is substantial evidence to support
a conviction for murder, attempted murder, or manslaughter is
insufficient to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)
2. The Superior Court Erred in Denying Hunter’s Petition
Without Appointing Counsel and Allowing Briefing
Senate Bill 775’s expansion of eligibility for resentencing
and its revisions to a petitioner’s procedural rights under
section 1172.6 apply to all cases not yet final on the legislation’s
effective date. (People v. Basler (2022) 80 Cal.App.5th 46, 56;
People v. Porter (2022) 73 Cal.App.5th 644, 652; see In re Estrada
(1965) 63 Cal.2d 740, 744-745.)
By its express terms, former section 1170.95 as enacted by
Senate Bill 1437 did not authorize a petition to vacate a
7
conviction for any offense other than murder. As discussed,
however, among other changes Senate Bill 775 amended former
section 1170.95, subdivision (a), to expressly permit relief for
petitioners convicted of attempted murder under the natural and
probable consequences doctrine if they could not now be convicted
of attempted murder because of changes to sections 188 and 189
effected by Senate Bill 1437. Because Hunter’s petition included
his declaration that he satisfied those elements of a prima facie
showing for resentencing relief, it was error to summarily deny
his petition without appointing counsel and permitting an initial
round of briefing. (§ 1172.6, subds. (b)(3), (c); see Lewis, supra,
11 Cal.5th at p. 963 [“petitioners who file a complying petition
requesting counsel are to receive counsel upon filing of a
compliant petition”].)
3. The Superior Court’s Errors Were Harmless: Hunter Is
Ineligible for Resentencing as a Matter of Law
A superior court’s procedural errors prior to assessing
whether a petitioner has made a prima facie showing of
entitlement to relief pursuant to section 1172.6, subdivision (c), is
state law error only, reviewable for prejudice under the harmless
error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis,
supra, 11 Cal.5th at pp. 957, 973-974.) Specifically, “a petitioner
‘whose petition is denied before an order to show cause issues has
the burden of showing “it is reasonably probable that if [he or
she] had been afforded assistance of counsel his [or her] petition
would not have been summarily denied without an evidentiary
hearing.”’” (Lewis, at p. 974.) Here, the jury’s instructions and
verdict—part of the record of conviction now included in the
8
5
record on appeal —unquestionably establish that Hunter was
neither tried nor convicted of attempted murder on a now-invalid
theory of accomplice liability.
To reiterate, there were no jury instructions concerning
aider and abettor (accomplice) liability, nor was the jury
instructed on the natural and probable consequences doctrine.
To the contrary, as instructed, to find Hunter guilty of attempted
deliberate, willful and premeditated murder, the jury necessarily
found he had acted with express malice—that is, that he intended
to kill his victims. The jury findings of actual malice were
confirmed by the additional findings that Hunter had personally
and intentionally discharged a firearm during the two attempted
murders.
Because there is no reasonable probability Hunter would
obtain a more favorable result if the matter were remanded and
counsel appointed and given the opportunity to file a
memorandum supporting the petition, the court’s errors in
denying Hunter’s petition were harmless. (See People v. Mancilla
(2021) 67 Cal.App.5th 854, 864; see generally People v. Watson,
supra, 46 Cal.2d at p. 836.)
5
See footnote 2.
9
DISPOSITION
The postjudgment order denying Hunter’s petition for
resentencing is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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