Opinion
F087605
08-12-2024
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY JEAN HUMMEL, Defendant and Appellant.
Andrea Keith, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. CR-21-002220. Robert B. Westbrook, Judge.
Andrea Keith, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
INTRODUCTION
In 2022, appellant and defendant Anthony Jean Hummel (appellant) pleaded no contest to attempted murder and admitted deadly weapon and great bodily injury enhancements. He was sentenced to an aggregate term of nine years. In 2023, he filed a petition for resentencing pursuant to Penal Code section 1172.6. In 2024, the trial court denied the petition because he pleaded after the effective dates of the amendments to sections 188 and 189, and he could not have been tried and convicted based upon legal theories that were legally invalid.
All further statutory citations are to the Penal Code.
On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Appellant submitted a letter brief and raises several issues. We will review the trial court's ruling, address appellant's contentions, and affirm the denial of his petition.
PROCEDURAL BACKGROUND
On December 20, 2021, an information was filed in the Superior Court of Stanislaus County charging appellant with count 1, attempted murder of M.L. on or about March 11, 2021 (§§ 664/187, subd. (a)); with the allegations that he acted with premeditation; he personally used a dangerous or deadly weapon, a stabbing instrument (§ 12022, subd. (b)); he personally inflicted great bodily injury (§ 12022.7, subd. (a)); and an on-bail enhancement (§ 12022.1).
Plea and Sentencing
On May 17, 2022, appellant appeared with counsel, and the parties advised the trial court that they had agreed to a negotiated disposition. Appellant would plead to attempted murder and admit the deadly weapon and great bodily injury enhancements, the premeditation and on-bail allegations would be stricken, and another case would be dismissed, for an aggregate term of nine years. Appellant stated he understood and agreed with the disposition. The parties stipulated to the preliminary hearing as the factual basis for the plea. The court advised appellant of his constitutional rights, and appellant stated he understood and waived his rights.
Appellant pleaded no contest to attempted murder, admitted the great bodily injury enhancement, and admitted an amended deadly weapon enhancement (§ 12022, subd. (b)(1)). The trial court granted the prosecution's motion to dismiss the premeditation allegation, the on-bail enhancement, and another pending case.
Appellant waived time and the trial court sentenced him to an aggregate term of nine years consistent with the negotiated disposition, based on the lower term of five years for attempted murder, plus consecutive terms of three years for the great bodily injury enhancement and one year for the deadly weapon enhancement; and imposed an order to stay away from the victim for 10 years.
PETITION FOR RESENTENCING
On October 19, 2023, appellant filed a petition for resentencing pursuant to section 1172.6 and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that (1) he was eligible for resentencing because a complaint, information, or indictment was filed that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could have been convicted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
The trial court appointed counsel.
The Prosecution's Opposition
Also on October 19, 2023, the prosecution filed opposition and argued appellant was ineligible for resentencing as a matter of law because he entered his plea after section 1172.6 was amended to prohibit attempted murder convictions based on imputed malice theories.
Appellant's Reply
On November 20, 2023, appellant filed a reply and requested the trial court make the prima facie determination without making any factual findings.
The Court's Order
On January 16, 2024, the trial court conducted the hearing on the prima facie issue. The prosecutor argued appellant was outside of the scope of section 1172.6 because he was convicted and sentenced in 2022, after the amendments to sections 188 and 189 were enacted. Appellant's counsel stated the prosecutor's statement was correct. The court denied the petition based on "counsel's representation that [appellant] was sentenced after the change in the law."
On February 9, 2024, appellant timely filed a notice of appeal.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to Wende and Delgadillo. The brief also included counsel's declaration that appellant was advised he could file his own brief with this court. This court advised appellant that he could file a supplemental letter brief.
On June 13, 2024, appellant filed a letter brief and raised several issues.
"Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (20172018 Reg. Sess.) (Senate Bill .. 1437). This amended both 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. [Citation.] Senate Bill ... 1437 also added ... [former] section 1170.95, now renumbered as section 1172.6. This created a procedural mechanism for those convicted under the former law to seek retroactive relief." (People v. Reyes (2023) 97 Cal.App.5th 292, 295 (Reyes).)
Former section 1170.95 originally permitted "a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill . 1437." (People v. Flores (2020) 44 Cal.App.5th 985, 992.)
Senate Bill No. 775 (2021-2022 Reg. Sess.) became effective on January 1, 2022, amended former section 1170.95, and" '[c]larifie[d] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.'" (People v. Birdsall (2022) 77 Cal.App.5th 859, 865, fn. 18; People v. Vizcarra (2022) 84 Cal.App.5th 377, 388.) Former section 1170.95 was renumbered as section 1172.6 without further change on June 30, 2022. (People v. Saibu (2022) 81 Cal.App.5th 709, 715, fn. 3.)
"[W]hen a petitioner files a facially sufficient petition, the trial court must appoint counsel to represent the petitioner. The trial court may consider the record of conviction to determine whether the petitioner makes a prima facie showing only after the appointment of counsel and the opportunity for briefing has occurred. [Citation.] At the prima facie hearing, the court must take the petitioner's factual allegations as true. However, if the record contains facts refuting the allegations made in the petition, the court may deny the petition without issuing an order to show cause." (Reyes, supra, 97 Cal.App.5th at p. 298.)
Analysis
The trial court correctly denied appellant's petition. Appellant was not tried and convicted under the prior law, but entered his plea in 2022 with the advice and consent of legal counsel, when the now-invalid theories of imputed malice had already been eliminated for attempted murder convictions. Consequently, appellant received the benefits of Senate Bill 1437. (Reyes, supra, 97 Cal.App.5th at p. 298.) Appellant "is not the type of defendant this retroactive procedure was intended to benefit, and any contrary interpretation of this statute would lead to absurd results." (Id. at p. 299.) II. Appellant's Letter Brief
In his letter brief, appellant contends at the section 1172.6 hearing his attorney "should have pursued Senate Bill [No.] 81 [(2021-2022 Reg. Sess.) (Senate Bill 81)] remedies where multiple enhancements are alleged in a single case."
Senate Bill 81 amended section 1385, subdivision (c), effective January 1, 2022, to require a trial court to dismiss an enhancement if it is in furtherance of justice to do so, affording "great weight to evidence offered by the defendant to prove" that specified mitigating circumstances are present, unless the court finds that dismissal would endanger public safety. (§ 1385, subd. (c)(1) &(2); People v. Coleman (2024) 98 Cal.App.5th 709, 723-724.) These mitigating circumstances include when multiple enhancements are imposed in a single case, the current offense is connected to mental illness, prior victimization or childhood trauma, or the defendant was a juvenile. (§ 1385, subd. (c)(2)(B), (D), (E) &(G).)
Even if appellant's contention was cognizable in a section 1172.6 petition, appellant already had the benefit of Senate Bill 81's amendments because his plea and sentencing occurred nearly five months after the effective date of the changes to section 1385, subdivision (c). (People v. Coleman, supra, 98 Cal.App.5th at pp. 724-725.) Appellant entered into the negotiated disposition and admitted the deadly weapon and great bodily injury enhancements, and the trial court exercised its discretion to dismiss the premeditation allegations and on-bail enhancement. He thus received the benefit of the amendments to section 1385, subdivision (c).
Appellant further argues he should be resentenced because he was a first-time offender who suffered from a traumatic brain injury at the time of the offense, this injury caused him to misunderstand the consequences of his plea agreement, and he has a good record in prison without disciplinary violations. To the extent that appellant is challenging his plea and/or the sentence imposed pursuant to the negotiated disposition, or relying on his postjudgment conduct as the basis for resentencing, he cannot raise these issues in a section 1172.6 petition. (People v. Farfan (2021) 71 Cal.App.5th 942, 947; People v. DeHuff (2021) 63 Cal.App.5th 428, 438.)
DISPOSITION
The trial court's order of January 16, 2024, denying appellant's petition for resentencing, is affirmed.
[*] Before Poochigian, Acting P. J., Snauffer, J. and DeSantos, J.