Opinion
A158315
02-19-2020
THE PEOPLE, Plaintiff and Respondent, v. CHARLES HUNTLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 105653)
Charles Huntley appeals from the denial of his petition for resentencing pursuant to Penal Code section 1170.95, which provides that, in specified circumstances, a person convicted of felony murder or murder under a natural and probable consequences theory may file a petition to have his or her conviction vacated and to be resentenced on any remaining counts.
All subsequent undesignated statutory references are to the Penal Code.
Appellant's court-appointed counsel has filed a brief raising no legal issues and requesting that this court conduct an independent review of the record pursuant to People v. Wende (1979) 25 Cal.3d 436. Counsel represents that he advised appellant of his right to file a supplemental brief in this court within 30 days of the filing of the Wende brief, but appellant filed no such brief.
FACTS AND PROCEEDINGS BELOW
About 20 years ago, on January 12, 1990, appellant was charged with the first degree murder (§ 187) of Chandra Johnson. The information also alleged he had been convicted of seven prior offenses. On July 29, 1991, the jury indicated it was unable to reach a unanimous decision and a mistrial was declared. On September 6, 1991, appellant pleaded no contest to voluntary manslaughter and the priors were dismissed. Before sentencing, appellant asked to withdraw his plea. The court granted the request and the case was placed back on the calendar.
At the second trial, which began on March 23, 1992, the court ruled that appellant's admissions to six of the prior offenses alleged in the first trial would remain in effect, and granted appellant's motion to strike the seventh prior.
On April 6, 1992, the jury found appellant guilty of first degree murder. On April 6, he was sentenced to a term of 37 years to life: an indeterminate term of 25 years to life for the murder conviction, plus consecutive terms of five years each for the fourth and sixth priors, and consecutive one-year terms for the first and second priors. The third and fifth priors were stayed.
On January 21, 1994, the judgment was affirmed by a unanimous panel of this Division in an unpublished opinion. (People v. Huntley (Jan. 21, 1994, A057572) [nonpub opn.].)
Senate Bill No. 1437, which became effective on January 1, 2019, provides that a person cannot be convicted of murder unless he or she acted with malice aforethought unless the defendant was a participant in the commission or attempted commission of a specified felony in which a death occurred and either (1) the defendant was the actual killer; (2) the defendant was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life. Malice may not be imputed to the defendant simply from participation in the designated crime. (§ 189, subd. (e)(1)-(3).)
The petition for resentencing before us was filed by appellant in propria persona on July 3, 2019. As material, it states that appellant "was convicted of first degree murder pursuant to the felony-murder rule or the actual and probable consequences doctrine"; that he "could not now be convicted of that offense because of changes made by sections 188 and 189 that became effective on January 1, 2019," because "I was not the actual killer" and "I did not, with intent to kill, aid, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of murder in the first degree."
Appellant's petition also requested that the superior court appoint counsel for appellant "during this re-sentencing process." However, the failure of the court to rule on this request effectively denied it, and the petition was summarily denied by the Honorable Morris Jacobson without a hearing.
The trial court's order denying the petition was based on the determination that appellant "was not prosecuted under a felony-murder rule or natural and probable consequences theory of murder." The basis of this determination was the description of the trial proceedings that led to appellant's conviction of first degree murder set forth in our 1994 opinion affirming that conviction.
As the court explained in its nine-page order denying the petition for resentencing, relief under "section 1170.95 is unavailable because petitioner was not convicted of murder under a felony murder or natural and probable consequences aider and abettor theory. (Pen. Code, § 1170.95. subd. (a).) A review of the instructions provided to the jury reveals an absence of any instructions regarding felony murder or aider and abettor natural and probable consequences theories of murder. Rather, the only theory of first degree murder on which the jury was instructed was deliberate and premeditated murder. As provided in the opinion in petitioner's direct appeal, there was sufficient evidence of premeditation and deliberation, as there was evidence this was not a sudden, unplanned attack—Mapp told police petitioner was angrily searching for Chandra on the night of her death, and Patricia R. reported that as he was choking Chandra, petitioner indicated he previously had threatened to kill her. Additionally, there was evidence petitioner had a motive for killing as he believed Chandra had cheated him out of money for drugs." Moreover, the order stated, "even if petitioner was convicted under a felony-murder theory, relief under . . . section 1170.95 would still be unavailable, as petitioner was the actual killer. (§ 189, subd. (e)(1).)"
DISCUSSION
As the trial court correctly perceived, the description of appellant's offense and the evidence presented at the trial at which he was convicted of first degree murder set forth in our opinion affirming that conviction unquestionably renders appellant ineligible for relief under the amendment to section 189 effectuated by Senate Bill No. 1437. As our opinion explains in detail, the jury was instructed that "[a]ll murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree," "the jury found the killing premeditated and deliberate," and "substantial evidence supports that conclusion."
The only legal questions are whether the trial court erred in (1) declining to grant appellant's request for the appointment of counsel, or in (2) failing to conduct a hearing, or in (3) basing the determination of ineligibility for resentencing relief solely on the information memorialized by this court in its opinion affirming the judgment convicting appellant of first degree murder.
The court did not err in any of those respects.
Subdivision (c) of section 1170.95 provides that a petition for relief under that statute must include "(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction, [¶] (C) Whether the petitioner requests the appointment of counsel." (§ 1170.95, subd. (b)(1).) If the petition contains all of the required information, subdivision (c) prescribes a two-step process for the court to determine whether an order to show cause should issue: "The court shall review the petition and determine whether the petitioner has made a prima facie showing that the petitioner falls within the provisions of this section. If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner. . . . If the petitioner makes a prima facie showing that he or she is entitled to relief, the court shall issue an order to show cause." (§ 1170.95, subd. (c).)
Once the order to show cause issues, the court must hold a hearing to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) If the prosecutor does not stipulate to vacating the conviction and resentencing, the People may present new and additional evidence at the hearing to show that the petitioner is ineligible for relief and the petitioner may present new or additional evidence to support eligibility. (§ 1170.95, subd. (d)(1), (2).)
In People v. Verdugo (2020) 44 Cal.App.5th 320 (Verdugo), the appellant claimed that the court's role in conducting the first prima facie review of the petition required by subdivision (c) is simply to determine whether the petition is facially sufficient; but the court rejected that claim. Pointing out that the judicial duty in interpreting section 1170.95 is "to give meaning to all parts of the statute to the extent possible," the court reasoned that "the prebriefing determination whether the petitioner has made a prima facie showing he or she 'falls within the provisions of this section' must also be different from the postbriefing prima facie showing the petitioner 'is entitled to relief,' required for issuance of an order to show cause, if only in the nature and extent of materials properly presented to the court in connection with the second prima facie step, or else the two prima facie showings specified in subdivision (c) would be redundant. [¶] . . . Although subdivision (c) does not define the process by which the court is to make this threshold determination, subdivisions (a) and (b) of section 1170.95 provide a clear indication of the Legislature's intent. . . . [S]ubdivision (b)(2) directs the court in considering the facial sufficiency of the petition to access readily ascertainable information. The same material that may be evaluated under subdivision (b)(2)—that is, documents in the court file or otherwise part of the record of conviction that are readily ascertainable—should similarly be available to the court in connection with the first prima facie determination required by subdivision (c)." (Verdugo, at p. 329.)
The trial court in Verdugo found that the petitioner was not entitled to relief as a matter of law, and summarily denied the petition for resentencing stating, among other things, that " 'the appellate opinion affirming the petitioner's conviction and sentence reflects that the petitioner was convicted as a direct aider and abettor, with malice aforethought, and not on a theory of felony murder of any degree or a theory of natural and probable consequences.' " (Verdugo, supra, 44 Cal.App.5th at p. 325.) Verdugo explicitly concluded that "[a] court of appeal opinion, whether or not published, is part of the appellant's record of conviction. [Citations.]" (Id. at p. 333.) Accordingly, the Verdugo court determined that it was proper for the superior court to consider the unpublished opinion affirming Verdugo's convictions for conspiracy to murder and first degree murder in determining him ineligible for relief under section 1170.95.
Verdugo also holds that subdivision (c) of section 1170.95 does not require appointment of counsel prior to the trial court's initial prima facie review. As the court explained, it would not "make sense as a practical matter to appoint counsel earlier in the process since counsel's first task is to reply to the prosecutor's response to the petition." (Verdugo, supra, 44 Cal.App.5th at p. 332.)
The rationale by which Verdugo found it unnecessary to appoint counsel also renders it unnecessary to conduct a hearing, which would necessitate the appointment of counsel.
The reasoning and conclusions set forth in Verdugo are consistent with those in People v. Lewis (2020) 43 Cal.App.5th 1128 and People v. Cornelius (2020) 44 Cal.App.5th 54 which both issued about a week before Verdugo was decided. All three cases justify the summary denial of a petition for resentencing pursuant to section 1170.95 without the appointment of counsel and a hearing where, as here, the record of conviction set forth in an appellate opinion clearly indicates the petitioner is ineligible for such relief as a matter of law.
Having reviewed the record thoroughly, we find no issues requiring further briefing. The ruling of the trial court is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.