Filed 2/14/22 P. v. Hundley CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092618
Plaintiff and Respondent, (Super. Ct. No. 08F09808 )
v.
RICHARD ANTONIO HUNDLEY,
Defendant and Appellant.
Defendant Richard Antonio Hundley appeals from a postjudgment order denying
his petition for resentencing under Penal Code section 1170.95. 1 He argues the trial court
erred by declining to issue an order to show cause because the court looked beyond his
declaration that he met the requirements of section 1170.95. He further argues the trial
1 Undesignated statutory references are to the Penal Code.
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court erred by determining he was ineligible for resentencing as a matter of law based on
the jury’s felony-murder special circumstance finding. We disagree and affirm.
BACKGROUND
A detailed recitation of the facts underlying defendant’s conviction is not
necessary to resolve his claim on appeal. In short, after meeting the victim, David
Barreda, defendant and his codefendant, Curtis Chapman, discussed a plan to kill Barreda
but decided to rob him instead. After the three had a confrontation, Chapman shot
Barreda in the back of the head. Immediately before Chapman shot Barreda, defendant
told him they were going to “take [his] shit,” he acted to distract Barreda while Chapman
shot him, and after Barreda was shot, as Chapman removed Barreda’s gun, he told
defendant the gun was now theirs. Defendant and his codefendant dragged Barreda from
the kitchen to the garage, placed him in the trunk of his car, and drove the car to a nearby
location. The next day, Barreda’s body was discovered in the truck of his car. He died
from a single gunshot to the back of his head. (People v. Hundley (Jun. 27, 2011,
C063497 [nonpub. opn.] at pp. 4-6, 9-10-12, 14 (Hundley).)2,
A jury found defendant and codefendant guilty of first degree murder (§ 187,
subd. (a)) and found true the special circumstance that the murder was committed while
defendants were engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)).
(Hundley, supra, C063497 at p. 2.) The trial court sentenced defendant to life without the
possibility of parole, and we affirmed his conviction on appeal. (Ibid.)
Defendant appealed his conviction, arguing, as relevant here, there was
insufficient evidence supporting his first degree murder conviction because there was
insufficient evidence he aided or abetted in the robbery or murder of Barreda. (Hundley,
supra, C063497 at p. 13.) We found sufficient evidence supported the murder conviction
2 A copy of our unpublished opinion in Hundley is included in the record on appeal.
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and affirmed the convictions for first degree murder and the special circumstances
finding. (Id. at pp. 15, 30-31.)
In January 2019, defendant petitioned the trial court under section 1170.95 for
resentencing based on changes to the felony-murder rule under recently enacted Senate
Bill No. 1437 (Senate Bill 1437). (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.)
Defendant declared in his petition that the prosecution proceeded “under a theory of
felony murder or murder under the natural and probable consequences doctrine,” he “was
convicted of 1st or 2nd degree murder” and he “could not now be convicted of 1st or 2nd
degree murder because of changes to Penal Code §§ 188 or 189, effective January 1,
2019.” He further alleged he was not the actual killer, did not act with intent to kill or aid
and abet the actual killer, was not a major participant and did not act with reckless
indifference to human life in the commission of the felony. Defendant retained counsel.
The trial court ordered briefing on defendant’s eligibility for relief and the validity
of Senate Bill 1437. After considering the briefing, and reviewing the underlying file, the
trial court denied defendant’s petition finding the record established defendant was
ineligible for resentencing given the jury’s true finding on an alleged robbery-murder
special circumstance under section 190.2. Citing CALCRIM No. 703, with which the
jury was instructed, the trial court reasoned that in order to find the robbery-murder
special circumstance true, the jury had to find defendant was the actual killer, had the
intent to kill, or was a major participant who acted with reckless indifference to human
life. The court also noted defendant had not obtained any order vacating his felony-
murder special circumstance finding under People v. Banks (2015) 61 Cal.4th 788
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), and as such, the trial court
would not assess the validity of that finding.
DISCUSSION
Defendant contends the trial court prejudicially erred by making factual findings at
the pleading stage of the section 1170.95 petition process. He further contends he made a
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prima facie showing he was eligible for relief, that the trial court should have issued an
order to show cause and held an evidentiary hearing, and that he need not challenge the
sufficiency of the evidence supporting the special circumstance finding by habeas corpus.
After briefing was completed in this case, the Supreme Court issued its opinion in
People v. Lewis (2021) 11 Cal.5th 952, 957-958 (Lewis), holding “that the statutory
language and legislative intent of section 1170.95 make clear that petitioners are entitled
to the appointment of counsel upon the filing of a facially sufficient petition (see
§ 1170.95, subds. (b), (c)) and that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the record of conviction to
determine whether ‘the petitioner makes a prima facie showing that he or she is entitled
to relief.’ (§ 1170.95, subd. (c).)” (Id. at p. 957.)
Statutory Background
Senate Bill 1437, effective January 1, 2019, revised the felony-murder rule in
California “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.” (Stats. 2018,
ch. 1015, § 1, subd. (f).) The bill amended the definition of malice in section 188,
revised the definition of the degrees of murder to address felony-murder liability in
section 189, and 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, citing Stats. 2018, ch. 1015, §§ 2-4.)
Section 1170.95, subdivision (a) states that a person convicted of felony murder or
murder under a natural and probable consequences theory may file a petition with the
court for resentencing “when all of the following conditions apply: [¶] (1) A complaint,
information, or indictment was filed against the petitioner that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural and probable
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consequences doctrine. [¶] (2) The petitioner was convicted of murder, attempted
murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could be convicted of murder or attempted murder. [¶] (3) The
petitioner could not be convicted of murder because of changes to Section 188 or 189
made effective January 1, 2019.”
Subdivision (b) requires the petitioner to submit a declaration that avers eligibility
for relief under the statute (based on the requirements of subdivision (a)) and includes
case information, and whether petitioner requests appointment of counsel. (§ 1170.96,
subd. (b).)
Subdivision (c), which dictates how the court must handle the petition. Under
section 1170.95, subdivision (c), the court reviews the petition to determine if the
petitioner has made a prima facie showing that the petitioner is entitled to relief. (Lewis,
supra, 11 Cal.5th at pp. 957-958.) Once defendant has counsel and the court has received
briefing from the parties, it may rely on the record of conviction in determining whether
that single prima facie showing has been made. (Id. at p. 971.) The record of conviction
includes a prior appellate court opinion, although such an opinion may not supply all
necessary answers. (Id. at p. 972.) “If the petitioner makes a prima facie showing that
the petitioner is entitled to relief, the court shall issue an order to show cause.”
(§ 1170.95, subd. (c).)
“While the trial court may look at the record of conviction after the appointment of
counsel to determine whether a petitioner has made a prima facie case for section
1170.95 relief, the prima facie inquiry under subdivision (c) is limited.” (Lewis, supra,
11 Cal.5th at p. 971.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving the
weighing of evidence or the exercise of discretion.’ ” (Id. at p. 972; People v. Drayton
(2020) 47 Cal.App.5th 965, 980 (Drayton).)
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“Like the analogous prima facie inquiry in habeas corpus proceedings, ‘ “the court
takes petitioner’s factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his or her factual allegations
were proved. If so, the court must issue an order to show cause.” ’ ” (Lewis, supra,
11 Cal.5th at p. 971; Drayton, supra, 47 Cal.App.5th at p. 978.)
Analysis
Although a court should not reject a petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing (Lewis, supra, 11 Cal.5th at
p. 971), the court need not credit factual assertions that are untrue as a matter of law.
(Drayton, supra, 47 Cal.App.5th at p. 980.) Thus, “ ‘if 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, at p. 971; Drayton, at p. 979.)
Fact-Finding
The jury was explicitly instructed on the special circumstances under section
190.2, subdivision (17)(A), that the murder was committed during a robbery. The jury
was instructed with CALCRIM No. 703, as follows: “If you decide that a defendant is
guilty of first degree murder but was not the actual killer, then, when you consider the
special circumstance of murder in the course of robbery, you must also decide whether
the defendant acted either with intent to kill or with reckless indifference to human life.
“In order to prove this special circumstance for a defendant who is not the actual
killer but who is guilty of first degree murder as an aider and abettor, the People must
prove either that the defendant intended to kill, or the People must prove all of the
following:
“1. The defendant’s participation in the crime began before or during the killing.
“2. The defendant was a major participant in the crime;
“AND
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“3. When the defendant participated in the crime, he acted with reckless
indifference to human life.
“A person acts with reckless indifference to human life when he or she knowingly
engages in criminal activity that he or she knows involves a grave risk of death.
“The People do not have to prove that the actual killer acted with intent to kill or
with reckless indifference to human life in order for the special circumstances of murder
in the course of robbery to be true.
“If you decide that the defendant is guilty of first degree murder, but you cannot
agree whether the defendant was the actual killer, then, in order to find this special
circumstance true, you must find either that the defendant acted with intent to kill or you
must find that the defendant acted with reckless indifference to human life and was a
major participant in the crime.
“If the defendant was not the actual killer, then the People have the burden of
proving beyond a reasonable doubt that he acted with either the intent to kill or with
reckless indifference to human life and was a major participant in the crime for the
special circumstance of murder in the course of robbery to be true. If the People have not
met this burden, you must find this special circumstance has not been proved true.”
The jury found the felony-murder special-circumstance allegation true; that is, the
jury resolved the issue of whether defendant’s conduct demonstrated reckless
indifference to human life against defendant. The jury’s true finding on this special
circumstance tracks the requirements of first degree murder liability for a participant even
after Senate Bill 1437’s modifications because it found that, at a minimum, defendant
was a major participant who acted with reckless indifference to human life. (§ 189, subd.
(e)(3).) Other than a bare assertion, belied by the record, defendant asserted no facts in
his petition or declaration which, if true, would show he was not a major participant or
acted with reckless indifference. Accordingly, the trial court here did not engage in
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improper factfinding when it relied on facts determined true by the jury as reflected in the
record of conviction to determine defendant was ineligible for relief.
We note, defendant filed supplemental briefing contending, in relevant part, that
Senate Bill No. 775 (2021-2022 Reg. Sess.) effective in January 2022, amends section
1170.95, subdivision (c) to require a hearing at the prima facie stage, which defendant did
not receive here.3 (§ 1170.95, subd. (c) [“After the parties have had an opportunity to
submit briefings, the court shall hold a hearing to determine whether the petitioner has
made a prima facie case for relief”].) However, even assuming defendant is entitled to
the benefits of Senate Bill No. 775, the trial court’s failure to hold a hearing was harmless
under People v. Watson (1956) 46 Cal.2d 818. A hearing could not have altered the jury
verdict, which is dispositive to defendant’s petition. (See Lewis, supra, 11 Cal.5th at
pp. 957-958 [deprivation of the defendant’s right to counsel under section 1170.95 was
state law error subject to Watson harmless error analysis].) Accordingly, section
1170.95, subdivision (c) as amended does not change our analysis.
Banks/Clark
Relatedly, defendant also contends the trial court’s reliance on the jury’s special
circumstance finding, a finding made before Banks, supra, 61 Cal.4th 788 and Clark,
supra, 63 Cal.4th 522, was in error as the findings have significantly different meanings
now.
Since defendant’s conviction, the Supreme Court has refined the analysis for who
qualifies as a major participant acting with reckless indifference to human life in Banks,
supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522. In some cases, defendants
convicted prior to Banks and Clark have subsequently had their special circumstances
3 The supplemental brief also cites to Lewis, supra, 11 Cal.5th 952, which we have
incorporated into our opinion.
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findings reversed for insufficient evidence under the modified analysis. (See In re
Scoggins (2020) 9 Cal.5th 667, 683.)
“The requirements for the felony-murder special circumstance did not change as a
part of Senate Bill No. 1437, and are identical to the new requirements for felony murder
following the enactment of Senate Bill No. 1437. In both instances, the defendant must
have either actually killed the victim [citations]; acted with the intent to kill in aiding,
abetting, counseling, commanding, inducing, soliciting, requesting, or assisting in the
killing [citations]; or been a major participant in the underlying felony and acted with
reckless indifference to human life [citations]. By finding a special circumstance
allegation true, the jury makes precisely the same finding it must make in order to convict
a defendant of felony murder under the new law. Because a defendant with a felony-
murder special-circumstance could still be convicted of murder, he is ineligible as a
matter of law to have his murder conviction vacated.” (People v. Galvan (2020)
52 Cal.App.5th 1134, 1140-141, review granted Oct. 14, 2020, S264284; see People v.
Jones (2020) 56 Cal.App.5th 474, review granted Jan. 27, 2021, S265854; People v.
Gomez (2020) 52 Cal.App.5th 1, review granted Oct. 14, 2020, S264033 (Gomez);
People v. Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020, S264978;
People v. Allison (2020) 55 Cal.App.5th 449.)
We recognize some appellate courts have come to contrary conclusions and the
issue is currently pending in our Supreme Court. (See People v. Torres (2020)
46 Cal.App.5th 1168, review granted June 24, 2020, S262011; People v. Law (2020)
48 Cal.App.5th 811, review granted July 8, 2020, S262490; People v. Smith (2020)
49 Cal.App.5th 85, review granted July 22, 2020, S262835; People v. York (2020)
54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954; People v. Harris (2021)
60 Cal.App.5th 939.) We, however, find the Galvan line of cases more persuasive.
If petitioner wishes to challenge the sufficiency of the evidence supporting the
felony-murder special circumstance finding, his remedy is to pursue extraordinary relief
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by way of habeas corpus. As our Supreme Court recently explained, Banks and Clark
merely clarified the law. (In re Scoggins, supra, 9 Cal.5th at p. 674.) Where a decision
does not announce a new rule of law but merely “clarifies the kind of conduct proscribed
by a statute, a defendant whose conviction became final before that decision ‘is entitled
to post-conviction relief upon a showing that his [or her] conduct was not prohibited by
the statute’ as construed in the decision. [Citation.] ‘In such circumstances, it is settled
that finality for purposes of appeal is no bar to relief, and that habeas corpus or other
appropriate extraordinary remedy will lie to rectify the error.’ ” (Id. at pp. 673-674.)
Habeas Corpus Relief
There is also a split of authority on whether a defendant must first seek relief
under Banks/Clark through a habeas petition before filing a section 1170.95 petition.
(See Gomez, supra, 52 Cal.App.5th at p. 17, review granted [defendants seeking relief on
the basis of Banks/Clark must do so through habeas corpus]; People v. Galvan, supra,
52 Cal.App.5th at pp. 1142-1143, review granted [same]; People v. Allison, supra,
55 Cal.App.5th at pp. 457-459 [same]; People v. York, supra, 54 Cal.App.5th at pp. 258,
260, review granted [“We part ways with Galvan and Gomez because we do not agree
that section 1170.95 requires a defendant to challenge a pre-Banks and Clark special
circumstance finding in a habeas corpus proceeding before he or she may successfully
challenge the underlying murder conviction in a section 1170.95 proceeding”].) Like in
Gomez, Galvan, and Allison, we conclude defendant must first set aside his robbery-
murder special circumstance in a habeas proceeding. (Gomez, at p. 17; see Galvan, at
pp. 1142-1143; Allison, at pp. 457-459.)
The purpose of section 1170.95 is to permit resentencing for individuals who
could not now be convicted under sections 188 and 189 because of Senate Bill 1437.
(Stats. 2018, ch. 1015 [“This bill would provide a means of vacating the conviction and
resentencing a defendant” where “the defendant could not be charged with murder after
the enactment of this bill”].) One of the three initial conditions for section 1170.95 to
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apply is “[t]he petitioner could not presently be convicted of murder or attempted murder
because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a)(3).) Defendants who are potentially eligible for relief because of the modified
special circumstances analysis do not satisfy this initial hurdle because they would have
been able to seek relief via a habeas petition regardless of Senate Bill 1437. (See In re
Miller (2017) 14 Cal.App.5th 960, 976-977, 980 [granting a habeas corpus petition before
passage of Senate Bill 1437 after finding insufficient evidence supported special
circumstance finding under Banks and Clark].)
Permitting a Banks/Clark challenge through a section 1170.95 petition would also
unjustifiably shift the burden from the defendant under a substantial evidence review (as
in a habeas petition challenging the sufficiency of the evidence) to the prosecutor under a
beyond-a-reasonable-doubt standard (as in a § 1170.95 hearing). (See Gomez, supra,
52 Cal.App.5th at p. 17, review granted.)
In summary, the jury’s robbery-murder special circumstance remains valid even
after Banks and Clark because defendant has not first sought relief through a habeas
corpus proceeding.
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DISPOSITION
The trial court’s order denying defendant’s section 1170.95 petition is affirmed.
\s\ ,
BLEASE, J.
We concur:
\s\ ,
RAYE, P. J.
\s\ ,
HULL, J.
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