Opinion
E076622
10-14-2021
THE PEOPLE, Plaintiff and Respondent, v. CHAD ISAAC HUBER, Defendant and Appellant.
Chad Isaac Huber, in propria persona, and Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWF026085 John D. Molloy, Judge. Affirmed.
Chad Isaac Huber, in propria persona, and Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I
INTRODUCTION
Defendant and appellant Chad Isaac Huber appeals from a postjudgment order denying his Penal Code section 1170.95 petition to vacate his three second degree murder convictions and obtain resentencing under the procedures established by Senate Bill No. 1437. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), requesting this court to conduct an independent review of the record. In addition, defendant has had an opportunity to file a supplemental brief with this court and has done so. We find no error and affirm the order.
All future statutory references are to the Penal Code unless otherwise stated.
II
FACTUAL AND PROCEDURAL BACKGROUND
A summary of the factual background is taken from this court's nonpublished opinion in defendant's direct appeal, case No. E052734. (People v. Huber (Feb. 21, 2012, E052734) [nonpub. opn.] (Huber I).)
On June 29, 2008, after consuming alcohol at a local bar and while driving his “lifted” pickup truck at a high rate of speed in the opposing lane of traffic on a rural two-lane road near Lake Skinner, defendant struck an oncoming car head-on, causing the deaths of its three occupants, Andres and Maribeth Sanagustin, and their four-year-old son Angelo Sanagustin. Defendant then fled from the scene.
A jury found defendant guilty as charged of three counts of second degree murder (Pen. Code, § 187, subd. (a); counts 1-3) and one count of hit and run causing death (Veh. Code, § 20001, subds. (a), (b)(2); count 4). The jury also found true that defendant had suffered two prior serious felony convictions (Pen. Code, § 667, subd. (a)), two prior strike convictions (Pen. Code, § 667, subds. (c), (e)(2)(a)), and one prior prison term (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a determinate term of 40 years, to be followed by an indeterminate term of 160 years to life in prison. (Huber I, supra, E052734.)
Defendant subsequently appealed, contending, among others, that his second degree murder convictions must be reversed because insufficient evidence shows he acted with implied malice at the time of the fatal collision. On February 21, 2012, we concluded there was sufficient evidence of implied malice to sustain the convictions for second degree murder instead of vehicular manslaughter, affirmed the judgment, corrected some sentencing errors, and remanded to the trial court with directions to amend the determinate and indeterminate abstracts of judgment. (Huber I, supra, E052734.)
Following enactment of Proposition 36, which eliminated nonserious felonies from sentencing under the Three Strikes law, the trial court on August 8, 2016, granted defendant's petition under section1170.126 to have his conviction on count 4 for hit and run modified from an indeterminate sentence to a determinate sentence of eight years to run consecutively to the three 45-year-to-life indeterminate terms imposed on the murder convictions.
Following enactment of Senate Bill No. 1437, on January 4, 2021, defendant filed a petition for resentencing pursuant to section 1170.95, subdivision (a). In his petition, defendant asserted that he was convicted of second degree murder “pursuant to the felony murder rule or the natural and probable consequences doctrine” and sought reduction of his convictions to involuntary manslaughter under section 192, subdivision (b). He also requested appointment of counsel to assist with his petition.
On January 22, 2021, the trial court summarily denied defendant's petition on the ground that “he was the actual killer, one-defendant case.” Defendant timely appealed.
III
DISCUSSION
After defendant appealed, upon his request, this court appointed counsel to represent him on appeal. Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, setting forth a statement of the case, a summary of the procedural background and potential arguable issues, and requesting this court to conduct an independent review of the record. Counsel has raised the issue of whether the trial court erred in finding defendant failed to state a prima facie case entitling him to relief under section 1170.95.
As previously noted, we offered defendant an opportunity to file a personal supplemental brief, and he has done so. In his supplemental brief, defendant raises several issues related to his guilt, the representation he received, and the applicability of Senate Bill No. 1437 and section 1170.95 to his case.
The right to Anders/Wende review applies only at appellate proceedings where defendant has a previously established constitutional right to counsel. (People v. Serrano (2012) 211 Cal.App.4th 496, 500 (Serrano); Conservatorship of Ben C. (2007) 40 Cal.4th 529, 536-537.) The constitutional right to counsel extends to the first appeal of right, and no further. (Serrano, at pp. 500-501.) While a criminal defendant has a right to appointed counsel in an appeal from an order after judgment affecting his or her substantial rights (Pen. Code, §§ 1237, 1240, subd. (a); Gov. Code, § 15421, subd. (c)), that right is statutory, not constitutional. Thus, defendant is not entitled to Wende review in such an appeal. (See Serrano, at p. 501.)
Our high court is currently considering whether an appellate court must conduct an independent review of the record when counsel files a Wende brief after the trial court denies a petition for resentencing under section 1170.95. (People v. Delgadillo, review granted Feb. 17, 2021, S266305; see Cal. Rules of Court, rule 8.512(d)(2).) Recent Court of Appeal cases have consistently held that we are not required to conduct such a review and may dismiss an appeal as abandoned if the defendant does not file a supplemental brief. (People v. Cole (2020) 52 Cal.App.5th 1023, 1031-1032, 1039-1040, review granted Oct. 14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review granted May 12, 2021, S267870; People v. Scott (2020) 58 Cal.App.5th 1127, 1131, review granted Mar. 17, 2021, S266853.) Some cases have explained that we have discretion to review the record independently for arguable issues, either where an initial review does not show the defendant is obviously ineligible for relief (such as when the defendant was convicted on a theory he was the actual killer) or as a routine matter. (See People v. Gallo (2020) 57 Cal.App.5th 594, 598-599; People v. Flores (2020) 54 Cal.App.5th 266, 269-274.)
In this case, defendant has filed a supplemental brief. If the defendant files a supplemental brief, we will address the issues raised but need not conduct a full independent review. We will therefore address defendant's arguments related to the denial of his section 1170.95 petition.
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), which amended sections 188 and 189 to limit liability for felony murder and abrogate the natural and probable consequences doctrine as applied to murder. (Stats. 2018, ch. 1015.) The bill redefined murder under section 188 to require that the principal acted with malice aforethought. Now, “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have intent to kill is not liable for felony murder unless he or she “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3).)
Senate Bill No. 1437 also enacted section 1170.95. The statute requires a defendant to submit a petition affirming that they: (1) were prosecuted “under a theory of felony murder or murder under the natural and probable consequences doctrine” (§ 1170.95, subd. (a)(1)); (2) were “convicted of” or pleaded guilty to “first degree or second degree murder” (§ 1170.95, subd. (a)(2)); and (3) “could not be convicted of first or second degree murder because of changes to Section 188 or 189 made” by Senate Bill No. 1437 (§ 1170.95, subd. (a)(3); see People v. Lewis (2021) 11 Cal.5th 952.)
Here, the record shows defendant does not fall within the provisions of section 1170.95 because he was the actual killer. While intoxicated, defendant drove his lifted pickup truck at a high rate of speed in the opposing lane of traffic on a rural two-lane road and struck an oncoming car head-on, causing the deaths of its three occupants. Defendant then fled from the scene. There were no other participants in the victims' deaths. Though defendant argues that Senate Bill No. 1437's changes to the law radically altered when implied or imputed malice may be used to sustain a murder conviction, it also carved out an exception for actual killers regardless of their intent. Here, defendant would still be guilty of murder even under the amended felony-murder rule that exists today. Since section 1170.95 does not offer relief to actual killers, regardless of the theory of guilt, defendant is not eligible for relief as a matter of law. The trial court thus correctly denied defendant's section 1170.95 petition.
IV
DISPOSITION
The order denying defendant's section 1170.95 petition is affirmed.
We concur: McKINSTER Acting P. J. FIELDS J.