Filed 4/27/22 P. v. Hunter CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060174
v. (Super. Ct. No. 95WF2035)
TREMAINE HUNTER, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Terri K. Flynn-Peister, Judge. Reversed.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B.
Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
Tremaine Hunter appeals from the trial court’s postjudgment order denying
his Penal Code section 1170.951 petition. Hunter argues the court erred by denying his
section 1170.95 petition without issuing an order to show cause and conducting an
evidentiary hearing. We agree and reverse the postjudgment order.
FACTS
We adopt the facts from this court’s prior nonpublished opinion People v.
Hunter (Mar. 30, 2000, G023774).
“Scott Rezac was driving home around 9:20 at night when he saw someone
approach a car and fire two or three fatal gunshots at the driver, Armando Carranza.
Carranza’s car was a brown 1981 Buick. Rezac could not identify the shooter, but
described him as a Black or Hispanic man wearing black pants and sneakers. Carranza’s
Buick had been stopped at an intersection, and a black Pontiac was stopped behind it.
Rezac described the cars as ‘similar [in] body style.’ Rezac saw the shooter come from
the driver’s side of the Pontiac’s front fender area, crouch down, go to Carranza’s
window, and fire the shots.
“Sheriff’s Deputy Brian Irish was dispatched at 9:20 p.m. to the scene of
the shooting and arrived about two minutes later. A second witness, Pedro Perez, was
there when Irish arrived. About five minutes after his arrival, Irish spoke to Perez, who
was calm but appeared upset. Perez was shaking slightly, his eyes appeared wide and his
face was drawn. As he spoke he stuttered. He told Irish a Black man pulled Carranza’s
body onto the pavement, got into Carranza’s car, and drove away.
“Three days later, police found Carranza’s Buick parked near Hunter’s
home. As police watched, Hunter arrived at the car with a second man, Damon Willis.
Willis got into the passenger side, and Hunter began driving the Buick. Hunter and
Willis are both African-American. Police searched the Buick and the home where Hunter
1 All further statutory references are to the Penal Code.
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lived with his mother. They discovered bloodstains and a bloody cloth in the car. A pair
of black jeans, a T-shirt and a pair of white and black athletic shoes were found in his
residence. There were bloodstains on the shoes and clothing, which DNA tests showed
could not have come from Hunter but might have come from Carranza.
“The night before the Carranza shooting, shortly before 10:00 p.m., Ashok
Patel’s black 1992 Pontiac Grand Am was taken from him by three African-American
men. Patel testified one of the men told him he had a gun. Patel was unable to identify
the men, but police found his car near Hunter’s home.
“Hunter was interviewed by police three times. The conversations were
tape recorded and played for the jury at trial. At first, Hunter denied all knowledge of the
Patel carjacking and the Carranza shooting. Eventually, he admitted he and Willis were
involved in carjacking Patel’s Pontiac. During the final interview, Hunter told police
Willis shot Carranza. He also stated Willis had borrowed black jeans and black and
white Nike shoes from him. After Carranza was shot, Willis drove the Buick and Hunter
drove the Pontiac from the scene. Eventually, they went together to Hunter’s father’s
home. Hunter said he watched while Willis buried a shell casing from the shooting in a
backyard at a Los Angeles address. Police recovered the casing in the location
designated by Hunter. During a break in the police interviews, Hunter and Willis were
left alone together. Their conversation was recorded, but the tape was in large part
unintelligible. One part, however, was clear: Hunter said to Willis, ‘They know we took
the car, and there was blood on the seat.’”
A jury convicted Hunter of first degree murder (§ 187, subd. (a)) and
second degree robbery (§§ 211, 212.5, subd. (b), 213, subd. (a)(2)). The jury found true
the robbery special circumstance (§ 190.2, subd. (a)(17)(i)). The jury found not true
personal and vicarious firearm enhancements. The court sentenced Hunter to 25 years to
life in prison. In 2000, we affirmed Hunter’s convictions. (People v. Hunter, supra,
G023774.)
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In January 2019, Hunter filed a section 1170.95 petition. After the trial
court appointed counsel for Hunter, it denied his petition concluding Senate Bill
No. 1437, the bill that enacted section 1170.95, was unconstitutional. We reversed the
court’s order and remanded the matter for further proceedings. (People v. Hunter
(Nov. 12, 2020, G058570) [nonpub. opn.].)
After the parties filed additional briefing, the trial court again denied
Hunter’s section 1170.95 petition, this time concluding he did not make a prima facie
case of eligibility. Based on the jury instructions and the verdicts, the court opined the
jury concluded Hunter had an intent to kill. Acknowledging a split of authority on the
issue, the court reasoned the meaning of “major participant” in People v. Banks (2015)
61 Cal.4th 788 (Banks), and “reckless indifference to human life” as stated in People v.
Clark (2016) 63 Cal.4th 522 (Clark), did not undermine the jury’s verdict post- or pre-
Banks and Clark. (People v. Allison (2020) 55 Cal.App.5th 449, 458; but see People v.
York (2020) 54 Cal.App.5th 250, 257-258, review granted Nov. 18, 2020, S264954.)
Finally, the court concluded a section 1170.95 petition was not the proper vehicle to
litigate the truth of the robbery special circumstance vis-à-vis Clark and Banks.
DISCUSSION
Relying on this court’s recent opinion in People v. Gonzalez (2021)
65 Cal.App.5th 420 (Gonzalez), review granted August 18, 2021, S269792, Hunter
argues the trial court erred by denying his petition.2 We agree.
“Under section 1170.95, if the petitioner makes a prima facie showing, the
court must issue an OSC and, absent a waiver and stipulation by the parties, hold a
hearing to determine whether to vacate the murder conviction, recall the sentence, and
resentence the petitioner. (§ 1170.95, subds. (c) & (d)(1).) A prima facie showing under
2 Our Supreme Court is currently considering this legal question in People v.
Strong (Dec. 18, 2020, C091162) [nonpub. opn.], review granted March 10, 2021,
S266606, and oral argument is imminent.
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section 1170.95 requires the following: (1) an accusatory pleading was filed against the
petitioner allowing the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine; (2) he or she was convicted of first
or second degree murder following a trial, or accepted a plea offer to first or second
degree murder in lieu of trial, at which he or she could have been so convicted; and (3) he
or she could not be convicted of murder due to the amendments to sections 188 and 189.
(§ 1170.95, subd. (a)(1)-(3).)” (Gonzalez, supra, 65 Cal.App.5th at p. 428.)
We face here the identical issue the Gonzalez court faced—does the felony-
murder-robbery special circumstance make Hunter ineligible for section 1170.95 relief as
a matter of law. This was the only basis upon which the jury could have concluded he
had the intent to kill. The jury’s verdicts on the firearm enhancements establish it
concluded Hunter was not the shooter. The felony-murder special circumstance
allegations required the jury to find Hunter acted with reckless indifference to human life
and as a major participant in the robbery that resulted in Carranza’s death (§ 190.2, subd.
(a)(17)(A)).
In Banks, the Supreme Court identified the factors courts should consider in
determining whether a defendant was a “major participant.” (Banks, supra, 61 Cal.5th at
p. 803.) The Clark court outlined considerations relevant to determining whether a
defendant had acted with “reckless indifference to human life.” (Clark, supra, 63 Cal.4th
at pp. 529-532.)
In Gonzalez, we disagreed petitioner had to challenge the robbery special
circumstance in a habeas corpus proceeding before filing a section 1170.95 petition
because nothing in section 1170.95 required that. (Gonzalez, supra, 65 Cal.App.5th at
p. 431.) We likewise reject the Attorney General’s same claim here. As to the merits,
the Gonzalez court stated the following: “Gonzalez’s petition is made possible by
changes to section 189, not because of the clarifications made in Banks and Clark. (See
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§ 1170.95, subd. (a)(3) [allowing petition if ‘[t]he petitioner could not be convicted of
first or second degree murder because of changes to Section 188 or 189 made effective
January 1, 2019’].) Accordingly, Gonzalez properly challenged the underlying murder
conviction pursuant to section 1170.95. Furthermore, as discussed below, any evidence
supporting the robbery special circumstance finding has never been reviewed under the
Banks and Clark standards. Because the trial court may not engage in factfinding at this
early stage, any analysis under Banks and Clark was improper without first conducting an
evidentiary hearing pursuant to section 1170.95, subdivision (d).” (Ibid.)
The trial court here did not have the benefit of Gonzalez when it ruled.
We adopt the Gonzalez court’s reasoning and conclude the trial court must issue an order
to show cause and conduct an evidentiary hearing pursuant to section 1170.95,
subdivision (d). We decline the Attorney General’s invitation to engage in factfinding on
appeal because section 1170.95, subdivision (d)(3), provides that a petitioner may meet
his or her burden by offering new or additional evidence. (People v. Smith (2020)
49 Cal.App.5th 85, 96, review granted July 22, 2020, S262835.)
DISPOSITION
The postjudgment order is reversed.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
SANCHEZ, J.
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