Opinion
B318352
05-02-2023
THE PEOPLE, Plaintiff and Respondent, v. ELVIN LEE HUDSPETH, JR., Defendant and Appellant.
Corey J. Robins, 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, Assistant Attorney General, Daniel C. Chang and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. MA032085 Lisa Strassner, Commissioner.
Corey J. Robins, 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, Assistant Attorney General, Daniel C. Chang and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
GRIMES, Acting P. J.
Defendant and appellant Elvin Lee Hudspeth, Jr. appeals from the summary denial of his petition for resentencing pursuant to Penal Code section 1172.6 (former § 1170.95). During the pendency of this appeal, former section 1170.95 was renumbered and recodified as section 1172.6 with no change in the text. (Stats. 2022, ch. 58, § 10.) For clarity, we refer to former section 1170.95 only by its new designation (section 1172.6).
We affirm.
FACTUAL AND PROCEDURAL SUMMARY
Defendant was charged with one count of murder for the fatal shooting of Keenan Gordon (referred to in the reporter's transcript of the plea colloquy as Keennen Gordon) in May 2005. (Pen. Code, § 187, subd. (a).) It was alleged defendant personally and intentionally discharged a firearm causing Mr. Gordon's death. (§ 12022.53, subd. (d).)
The jury trial began in the summer of 2007. The testimony from the initial prosecution witnesses established that Mr. Gordon was fatally shot outside the Lancaster home of Robin H. Robin and her niece, Miesha S., lived in the home with several other family members. Both women knew defendant well. Miesha called defendant "cousin."
On the evening of May 28, 2005, Miesha was standing on the street across from the house, talking with her boyfriend, Mr. Gordon. Robin went outside to ask the two of them to run to the store to buy some ice. Robin saw defendant (his window was rolled down), driving by in a green Mazda. Defendant drove past Robin to the corner and made a U-turn. Defendant then drove back to where Mr. Gordon and Miesha were standing and stopped his car in the street. At this point, the passenger side of the vehicle was facing Robin and none of the windows on that side of the car was rolled down.
Defendant, still seated in his car, exchanged words with Mr. Gordon, but Robin could not hear exactly what was said. She only heard Mr. Gordon say something to the effect of "what's the problem with us . . . [y]ou just going to kill me?" Robin then heard several gunshots and the Mazda sped off. She believed there were passengers in the car, but she was not sure.
Miesha corroborated her aunt's testimony that defendant drove down their street, made a U-turn and then drove back to where she and Mr. Gordon were talking. Miesha testified there were two other people in the car with defendant. The court recessed for the day before Miesha completed her testimony.
Neither Robin nor Miesha said defendant fired the shots that killed Gordon, only that the shots came from the car.
Before the prosecution rested its case-in-chief, the parties agreed to a disposition. Defendant pled guilty to one count of first degree murder and admitted a personal firearm use allegation pursuant to Penal Code section 12022.53, subdivision (b). The prosecutor moved the court to amend the information to reinstate the subdivision (b) allegation, explaining that he had been proceeding at trial on the subdivision (d) allegation on the theory defendant was the shooter, but "for purposes of disposition" he wanted to reinstate the subdivision (b) allegation to allow for the parties' agreed-upon prison term of 35 years to life, instead of the maximum of 50 years with the subdivision (d) allegation.
During the plea colloquy, defendant was asked:
"[A]s to count 1, a violation of Penal Code Section 187(a), a felony, that on or about May 28th, 2005, in the County of Los Angeles, you committed the crime of murder and that you did unlawfully and willfully with malice [aforethought] murder Keennen Gordon, a human being, and that this is a serious felony within the meaning of Penal Code Section 1192.7 and that this was done in the first-that the commission was done in the first degree, that you had premeditation, and you acted with premeditation and deliberation in the murder of Keennen Gordon. [¶] To that charge, how do you plead?" Defendant responded, "Guilty."
Defendant was then asked, "And do you admit that this is a first degree-that the murder was committed in the first degree?" Defendant said, "Yes." Defendant also admitted the personal firearm use allegation pursuant to Penal Code section 12022.53, subdivision (b).
The court accepted defendant's waivers on the record. Counsel joined in the waivers and stipulated to a factual basis for the plea. In accordance with the terms of the plea agreement, defendant was sentenced to 35 years in prison (25 years to life for murder, plus a consecutive 10-year term for the firearm use).
Defendant filed an appeal without obtaining a certificate of probable cause, and also filed a petition for habeas corpus based on ineffective assistance of counsel. In an unpublished opinion, this court dismissed defendant's appeal and denied his petition for habeas corpus. (People v. Hudspeth (Feb. 24, 2009, B201522 &B208123) [nonpub. opn.].)
In the fall of 2018, Senate Bill 1437 (2017-2018 Reg. Sess.) was passed, amending Penal Code sections 188 and 189 to narrow accomplice liability for felony murder and eliminate the natural and probable consequences doctrine as it relates to murder. (Stats. 2018, ch. 1015, § 2, § 3.) Senate Bill 1437 also added section 1172.6 which sets forth a procedure for individuals convicted of felony murder or murder under a natural and probable consequences theory to petition for resentencing. (Stats. 2018, ch. 1015, § 4.)
In December 2021, defendant filed, in propria persona, a petition for resentencing alleging the information charging him with murder allowed the prosecution to proceed under a theory of felony murder or the natural and probable consequences doctrine, that he pled guilty because he could have been convicted under such theories, and that he could not now be convicted of murder in light of the amendments to the murder statutes effected by Senate Bill 1437. Defendant requested the appointment of counsel.
On January 21, 2022, the trial court summarily denied defendant's petition, finding he failed to establish a prima facie case for relief. The court took judicial notice of the records of conviction and explained that defendant was "convicted of a single count of first-degree murder after a negotiated disposition. He was not convicted of murder under any theory, and the records reflect, that there is no evidence relating to [defendant] committing the murder under a felony murder or murder under a natural and probable consequences theory."
This appeal followed. We grant defendant's request to take judicial notice of the record in People v. Hudspeth, supra, B201522, which includes the transcripts from the 2007 trial court proceedings.
DISCUSSION
Defendant contends the court erred in failing to appoint him counsel and summarily denying his petition. He says his petition stated a prima facie case and the court was required to issue an order to show cause, allow full briefing and hold an evidentiary hearing. We disagree. (People v. Ervin (2021) 72 Cal.App.5th 90, 101 [appellate court reviews de novo the denial of a resentencing petition at the prima facie stage].)
In People v. Lewis (2021) 11 Cal.5th 952, 971 (Lewis), the Supreme Court described the trial court's prima facie inquiry as "limited." Lewis says the trial court must accept as true the allegations in the defendant's petition and should not reject those allegations" 'on credibility grounds without first conducting an evidentiary hearing.'" (Ibid.)
Lewis instructs that the court's review at the prima facie stage may include consideration of the record of conviction from which a finding of ineligibility may be made as a matter of law." '[I]f 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." '" (Lewis, supra, 11 Cal.5th at p. 971; accord, People v. Harden (2022) 81 Cal.App.5th 45, 52 [court may deny a petition at the prima facie stage if the petitioner is ineligible for relief as a matter of law].)
Here, the record of conviction, including the transcript of the plea colloquy, demonstrates defendant is ineligible for relief. (People v. Romero (2022) 80 Cal.App.5th 145, 153 [the defendant's "admission to intentional, deliberate, and premeditated murder establishes that he acted with actual malice sufficient to sustain the murder conviction under the law as amended by Senate Bill No. 1437"].)
Defendant argues that when he entered his guilty plea in 2007, the law permitted him to be convicted of murder under a natural and probable consequence theory without being the actual killer or acting with the intent to kill. And, because he was not specifically asked, nor did he admit, during the plea colloquy to having acted with the intent to kill, defendant says the record therefore "leaves unresolved" whether he acted with intent to kill or whether he acted with the intent to aid and abet some lesser target crime, such as assault.
Defendant's reliance on People v. Eynon (2021) 68 Cal.App.5th 967 (Eynon) in so arguing is misplaced. There, like here, the defendant pled guilty to premeditated first degree murder and the trial court denied the defendant's petition at the prima facie stage. (Id. at pp. 971-972.) Eynon reversed and remanded for the court to issue an order to show cause and conduct further proceedings. (Id. at p. 979.)
But, other than that the defendant in Eynon also pled guilty to first degree murder, there are no similarities in the specifics of each defendant's admissions during their respective pleas. In Eynon, the information alleged the defendant was an accomplice in a robbery that resulted in a murder; a cod efendant was alleged to be the actual killer. In pleading guilty to first degree murder, the defendant in Eynon admitted only that he did what the information alleged and that it was a first degree murder by virtue of the fact it was committed during the course of a robbery. On those admissions, the defendant admitted he was liable, under then-existing law, for first degree murder. (Eynon, supra, 68 Cal.App.5th at pp. 971, 976, 979.)
In contrast, defendant here pled guilty to one count of murder and specifically admitted he was personally armed with a firearm and that he "acted with premeditation and deliberation in the murder of Keennen Gordon." He did not merely admit to having acted with the intent to aid an assault or some lesser crime. There is nothing in the record to show any other crime was committed. No other crimes were charged. Nor was this a murder that occurred during the commission of another felony. Defendant's admissions are sufficient to support his liability for first degree murder under the law as amended by Senate Bill 1437. The admissions refute defendant's allegations in his petition as a matter of law. The trial court therefore correctly denied the petition.
DISPOSITION
The order denying Elvin Lee Hudspeth, Jr.'s petition for resentencing is affirmed.
WE CONCUR: WILEY, J. VIRAMONTES, J.