People v. Hunt

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL AVERY HUNT, Defendant and Appellant.

C092335

California Court of Appeals, Third District, Sacramento

April 12, 2022

NOT TO BE PUBLISHED

Super Ct. No. CR57914

HULL ACTING P. J.

Defendant Michael Avery Hunt appeals the trial court's denial of his petition for resentencing under Penal Code section 1170.95 (unspecified statutory section citations that follow are to the Penal Code). 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 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 find no prejudicial error and will affirm the trial court's order.

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The People request we take judicial notice of the unpublished opinion from defendant's direct appeal, People v Hunt (Mar. 9, 1982, 3 Crim. 11199) [nonpub.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. (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 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 Section 1170.95 Petition

In 2019, defendant filed a petition for resentencing under 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 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 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

I Record of Conviction

Defendant contends the trial court erred when it relied on the direct appeal opinion to the exclusion of other evidence. Defendant also argues the court erred when it took judicial notice of the probation report and minute order from his case. Because the court failed to consider "the full record to make an appropriate ruling," defendant argues, the court's order must be reversed.

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 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. (§ 1170.95, subd. (a).) After a defendant submits a petition, the court must determine whether the petitioner has made a prima facie case that he or she is entitled to relief. (§ 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 (Lewis).) 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. (§ 1170.95, subd. (d)(3).)

As a threshold matter, the trial court was entitled to consider the direct appeal opinion. After the close of briefing in this case, our Supreme Court concluded, in Lewis supra, 11 Cal.5th at pages 970-972, that a trial court assessing a section 1170.95 petition at the prima facie stage is entitled to consider an earlier appellate opinion in the underlying case as part of the record of conviction. Consistent with this conclusion, the trial court could also consider the direct appeal opinion during its hearing under section 1170.95, subdivision (d). (People v. Clements (2021) 60...