Opinion
E073142
02-18-2020
THE PEOPLE, Plaintiff and Respondent, v. KENNETH ALAN HODDICK, Defendant and Appellant.
Kenneth Alan Hoddick, in pro. per.; and Anita Jog, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWF1403272) OPINION APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Affirmed. Kenneth Alan Hoddick, in pro. per.; and Anita Jog, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant and appellant Kenneth Alan Hoddick appeals from an order denying his petition for resentencing pursuant to Penal Code section 1170.95. We find no error and will affirm the order.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
PROCEDURAL BACKGROUND
Defendant was charged by information with murder (Pen. Code, § 187, subd. (a), count 1), and gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a), count 2). The information also alleged that defendant had one or more prior convictions of driving under the influence. (Veh. Code, § 23152.) Pursuant to a plea agreement, he pled guilty to the murder in count 1, and the parties stipulated that it was second degree murder. A trial court dismissed count 2 in the interest of justice. The court sentenced him to a term of 15 years to life in state prison.
Defendant appealed his conviction, and this court affirmed the judgment. (People v. Hoddick (Jan. 8, 2018, E068536) [nonpub. opn.].)
On September 30, 2018, the Governor signed Senate Bill No. 1437, which became effective on January 1, 2019. "Senate Bill 1437 was enacted 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.'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) Senate Bill No. 1437 added section 1170.95, "which provides a procedure by which those convicted of murder can seek retroactive relief if the changes in the law would affect their previously sustained convictions." (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417.)
On January 22, 2019, defendant filed a form petition pursuant to section 1170.95, in propria persona. He checked the boxes on the form alleging that an information 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"; that he pled guilty to first or second degree murder because he believed he could have been convicted of either at trial, pursuant to the felony murder rule or the natural and probable consequences doctrine; and that he could not now be convicted because of changes made to sections 188 and 189, effective January 1, 2019.
The People filed an opposition to defendant's petition, arguing that Senate Bill No. 1437 was unconstitutional and that, in any event, defendant was not entitled to relief since he was the actual killer. The People attached a copy of this court's previous opinion, which affirmed the judgment. The factual background of the case showed that defendant was driving while intoxicated and hit and killed a person driving a motorcycle.
The court held a hearing on the petition on March 22, 2019, and denied the petition.
On May 2, 2019, defendant filed a second petition under section 1170.95. He then filed a "second amended petition" on June 3, 2019, and this time checked the boxes stating that he was not the actual killer; he did not, with the intent to kill, aid or abet or assist the actual killer in the commission of first degree murder; and that he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime.
The court held a hearing on the petition on June 7, 2019. Defendant was not present but was represented by counsel. Referring to the appellate opinion, the prosecutor informed the court that defendant was the actual killer in this case, since he drove drunk and hit the victim head on. The court denied the petition.
ANALYSIS
Defendant appealed and, upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case, a summary of the facts, and identifying one potential arguable issue: whether the court erred by denying defendant's section 1170.95 petition. Counsel has also requested this court to undertake a review of the entire record.
We offered the defendant an opportunity to file a personal supplemental brief, which he has done. He initially contends his due process rights were violated during the adjudication of his petition and that "key information was missed." However, he proceeds to make a myriad of other claims. First, he claims the district attorney alleged that because of his past conviction, "he knew that if he drank and drove that there was a [likelihood] that he [sic] action[s] would cause an accident leading to a death," and that "this" was the legal definition of natural and probable consequences. It is not clear exactly what defendant is trying to claim or where the district attorney alleged that (presumably) defendant knew his actions would cause an accident leading to death. Defendant next states: "One [m]inute The District Attorney is alleging that [he] has not commited [sic] this crime under malice, but he is claiming also that [defendant's] actions are reckless. If these two claims are interrelated how can they have different theories?" Defendant appears to be questioning count 1 and count 2; however, count 2 was dismissed.
Defendant next contends that a criminal defendant can be the actual killer and still receive relief from the changes to sections 188 and 189. He then asserts that he was "one of the causes of a murder" and that the victim "may or may not have had a part in his own death." However, the facts show that defendant was driving drunk, crossed over into the opposing lane, and hit the victim. He was not convicted of felony murder or murder as an aider or abettor under a natural and probable consequences theory. He was the actual killer, and therefore is ineligible for relief under section 1170.95. (People v. Cornelius (2020) 44 Cal.App.5th 54, 58; see Martinez, supra, 31 Cal.App.5th at p. 723.)
Defendant finally claims his due process rights were violated because his appointed counsel failed to file a reply to the district attorney's response to his petition; thus, the court ruled on the petition without his counsel submitting documents. He further contends that the procedure afforded under section 1170.95 "is meaningless if counsel is unskilled, and the court disqualified a petitioner from relief without notice, without a hearing, and without an opportunity to be heard." Section 1170.95, subdivision (c), provides that after defendant has made a prima facie showing that he falls within the provisions of that section, the prosecutor "shall file and serve a response," and the petitioner "may file and serve a reply within 30 days." (Italics added.) Therefore, appointed counsel was not required to file a reply to the district attorney's response. Moreover, the court held a hearing on the petition, and defendant was represented by counsel.
Defendant adds that he had to file a personal supplemental brief because his appointed counsel on appeal "refuse[d] to fight for his due process rights being violated." However, as discussed ante, defendant has not established any due process violation.
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have conducted an independent review of the record and find no arguable issues.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. CODRINGTON
J.