Filed 3/8/22 P. v. Hulbert CA2/5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305259
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA067335)
v.
REUEL HULBERT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jesus I. Rodriguez, Judge. Affirmed.
Boyce & Schaefer and Robert E. Boyce, under appointment
by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Charles S. Lee, Paul
S. Thies and Amanda V. Lopez, Deputy Attorneys General, for
Plaintiff and Respondent.
______________________________
In 2020, defendant and appellant Reuel Hulbert
appealed from the trial court’s postjudgment order denying
his petition for vacatur of his convictions for murder and
attempted murder and resentencing pursuant to Penal Code
section 1170.951 and Senate Bill No. 1437 (Senate Bill 1437).
We affirmed the trial court’s order.
Subsequently, our Supreme Court granted Hulbert’s
petition for review. On December 29, 2021, the Supreme
Court transferred the matter back to this court, with
directions to vacate our decision and reconsider the cause in
light of Senate Bill No. 775 (Stats. 2021, ch. 551, §§ 1–2)
(Senate Bill 775), which became effective on January 1,
2022.
We vacated our July 13, 2021 opinion, and now issue
this opinion. We again affirm the trial court’s order.
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
PROCEDURAL HISTORY2
Convictions and Sentencing
The jury found Hulbert guilty of the attempted murder of
Shannon Cole (§§ 664, 187, subd. (a) [count 5]), and found true
the allegation that Hulbert caused great bodily injury to Cole by
personally discharging a handgun (§ 12022.53, subd.(d)). The
jury also found Hulbert guilty of the first degree murders of
Daniel Chantha (count 8), Woodtee Bunthung (count 10), and
Sakorn Phan (count 11). (§ 187, subd. (a).) It found true the
allegations that Hulbert personally discharged a handgun
causing the deaths in counts 8, 10, and 11 (§ 12022.53, subd. (d)),
and found true that the crimes were committed to benefit a
criminal street gang (§ 186.22, subd. (b)). Hulbert was found
guilty of being a felon in possession of a firearm (§ 12021, subd.
(a) [count 12]), and the jury found true that the crime was
committed to benefit a criminal street gang (§ 186.22, subd. (b)).
Because the three murders were alleged as special
circumstances under section 190.2, subdivision (a), a separate
penalty phase trial was held in which the jury fixed the penalty
at life without the possibility of parole. The trial court imposed
sentences of life without parole for the murders, plus the 25-year
enhancement for personal firearm use causing death and the 10-
2 We have taken judicial notice of this court’s prior
unpublished opinion in People v. Hulbert (Jul. 29, 2010, B213895)
(Hulbert), from which the procedural history prior to Hulbert’s
filing of his section 1170.95 petition is drawn. We do not set forth
the facts of the crimes, as they are not necessary to resolution of
the issues before us.
3
year gang enhancement on each. For the attempted murder,
Hulbert received a consecutive term of 15 years to life, enhanced
by the 25-year enhancement for personal firearm use with great
bodily injury. The court imposed a concurrent middle term
sentence of 2 years for the firearm possession offense with a
consecutive 10-year gang enhancement.
Appeal
On appeal, Hulbert argued insufficient evidence, jury
tampering, and sentencing error. Another panel of this court
remanded the cause for the trial court to correct various
sentencing errors and to correct the abstract of judgment, but
otherwise affirmed the judgment.
Petition for Resentencing
On May 1, 2019, Hulbert filed a petition for vacatur of the
attempted murder and murder convictions and resentencing
under section 1170.95. He utilized a standardized form, and
indicated that he was convicted of first or second degree murder
under the felony murder doctrine or the natural and probable
consequences doctrine and could not now be convicted of murder
due to the changes to sections 188 and 189, effective January 1,
2019. He requested that counsel be appointed to him.
Trial Court’s Ruling
At a hearing on January 31, 2020, Hulbert’s counsel
submitted on the basis of his conversations with the prosecution.
4
The prosecutor stated that, based on the jury instructions and
verdict forms that the prosecution submitted to the court, it was
clear that Hulbert was not eligible for relief. The trial court ruled
that the record of conviction, and the verdict forms in particular,
established that Hulbert had failed to make a prima facie case of
eligibility. The court elaborated that one of the convictions
challenged was an attempted murder, and that the jury found
true the personal gun use allegations with respect to all three
murders pursuant to section 12022.53, subdivision (d).
Hulbert timely appealed.
DISCUSSION3
Hulbert contends that this court should hold that the trial
court was obligated to appoint counsel and order briefing because
3 Hulbert also asserts that “[i]n light of the allegations in
the petition, and the rule requiring the superior [court] to take
them as true,” the court should have issued an order to show
cause. He cites to no authority for this proposition and makes no
substantive argument to support it, so we decline to address it
further. (Badie v. Bank of America (1998) 67 Cal.App.4th 779,
784–785 [“[w]hen an appellant fails to raise a point, or asserts it
but fails to support it with reasoned argument and citations to
authority, we treat the point as waived”].) Regardless, the
amendments to section 1170.95 require issuance of an order to
show cause only after the trial court has made a determination
that the petitioner has made a prima facie case for relief.
(§ 1170.95, subd. (c).)
5
he filed a facially sufficient petition that satisfied the
requirements of section 1170.95, subdivision (b)(1). 4
Preliminarily, we note that the record shows that Hulbert
was represented by appointed counsel at the hearing in which the
4 Section 1170.95, subdivision (b)(1), requires the petitioner
to file a petition containing “(A) A declaration by the petitioner
that the petitioner 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.”
Subdivision (a) provides “A person convicted of felony
murder or 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,
attempted murder under the natural and probable consequences
doctrine, or manslaughter may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder,
attempted murder, or manslaughter conviction vacated and to be
resentenced on any remaining counts 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, 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) 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 have been convicted
of murder or attempted murder.
“(3) The petitioner could not presently be convicted of
murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.”
6
trial court denied the petition. Hulbert cannot complain that
counsel was not appointed. His only potential argument is that
the trial court did not consider briefing from the parties.
The amendments to section 1170.95 effected by Senate Bill
775 require the prosecutor to file and serve a response within 60
days after service of a facially sufficient petition and permit the
petitioner to file a reply 30 days after the response is served.
(§ 1170.95, subd. (c).) After the parties have had an opportunity
to submit briefing, the court is to hold a hearing to determine
whether the petitioner has made a prima facie case for relief.
(Id.)
Here, Hulbert submitted a facially sufficient petition, but
briefing was not submitted prior to the hearing at which the trial
court denied the petition. By the terms of section 1170.95, it was
error for the trial court to rule without first considering briefing.
The error, however, was statutory, and is harmless if it is
not reasonably probable that Hulbert would have obtained a
more favorable result in the absence of error. (See People v.
Lewis (2021) 11 Cal.5th 952, 973 [an error of state law is
evaluated under the harmless error test set forth in People v.
Watson (1956) 46 Cal.2d 818 unless it is analogous to the total
deprivation of the right to counsel at trial].)
Here, the error is harmless, because the instructions given
at trial reveal that Hulbert was not convicted under a theory of
liability which would qualify him for relief, and is therefore
ineligible for resentencing as a matter of law.5 (See People v.
Mancilla (2021) 67 Cal.App.5th 854, 866–867 [where the record
5 We “‘review the ruling, not
the court’s reasoning, and if
the ruling was correct on any ground, we affirm.’” (People v.
Chism (2014) 58 Cal.4th 1266, 1295, fn. 12.)
7
shows that petitioner was not convicted under a theory of liability
affected by section 1170.95 or the amendments to section 188 and
189, the petitioner is ineligible for relief as a matter of law].)
As relevant here, amended section 1170.95, subdivision (a),
affords relief to “person[s] convicted of felony murder or 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 persons convicted of]
attempted murder under the natural and probable consequences
doctrine. . . .” With respect to his murder convictions, Hulbert’s
jury was not instructed on felony murder, the natural and
probable consequences doctrine, or any theory of murder liability
under which malice is imputed to him based solely on his
participation in a crime. Nor was the jury instructed on the
natural and probable consequences doctrine in relation to the
charge of attempted murder. It is not reasonably probable that
Hulbert would have obtained a more favorable result if the trial
court had considered briefing prior to ruling on his petition.
8
DISPOSITION
We affirm the trial court’s order denying Hulbert’s petition
for resentencing under section 1170.95.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
9