Filed 4/26/23 P. v. Hinton CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B318247
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. TA011942)
ERIC HINTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Reversed.
Cuauhtemoc Ortega, Federal Public Defender, and Jennifer
L. Molayem and Michael Petersen, Deputy Federal Public
Defenders; Tracy Dressner, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, and Charles S. Lee and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
In 1988, defendant and appellant Eric Hinton (defendant)
participated in a failed drug deal that resulted in the shooting
deaths of Tenoa Stevenson (Stevenson), Landis Barnes (Barnes),
and Albert Brown (Brown). Defendant was tried and found guilty
of three counts of first degree murder. In 2021, defendant
petitioned for resentencing under Penal Code section 1172.6
(former Penal Code section 1170.95).1 The trial court found
defendant was ineligible for relief as a matter of law and denied
defendant’s petition without issuing an order to show cause. We
are asked to decide whether the trial court correctly concluded
defendant is ineligible for relief as a matter of law—chiefly
because the prosecutor’s closing argument remedied an otherwise
ambiguous special circumstance jury instruction concerning the
necessity of proving an intent to kill.
I. BACKGROUND
A. The Offense Conduct
On May 24, 1988, defendant drove four wrapped packages
of a white, powdery, cocaine-like substance2 to a planned drug
deal. The prearranged meeting place was a 7-Eleven parking lot
in Monterey Park.
Defendant arrived with another man, Steven Hicks.
Barnes, one of the murder victims and the ostensible seller, drove
to the meeting location in his BMW and Stevenson, the buyer,
arrived separately and accompanied by his cousin, Brown.
1
Undesignated statutory references that follow are to the
Penal Code.
2
It was later determined that the substance in the bundles
was not cocaine.
2
Stevenson suggested that they move the transaction to a nearby
Best Western motel. The other parties agreed.
At the motel, everyone went inside, and defendant put the
bag with the purported cocaine on the dresser and then went to
stand near the door. While Stevenson and Cunningham talked
off to the side, Barnes and Brown walked to the dresser and
tested the product to verify it was cocaine. At that point, gunfire
broke out and Barnes and Brown were killed. Stevenson was
severely injured and fled the motel. Defendant and Hicks gave
chase in Barnes’ BMW. Stevenson ultimately ran into a nearby
used car lot and the BMW’s passenger exited the car and fatally
shot Stevenson in the chest at point blank range.3
B. Criminal Convictions
Defendant was charged with murdering Stevenson, Brown,
and Barnes; attempted first degree residential robbery; and
selling a substance purporting to be a controlled substance
(Health & Safety Code section 11355). In connection with the
murder charges, the information alleged several special
circumstances: multiple murders (section 190.2, subdivision
(a)(3)); commission of the Barnes and Brown murders while
engaged in the commission or attempted commission of a robbery
(section 190.2, subdivision (a)(17)(A)) and burglary (section 190.2,
subdivision (a)(17)(G)); and commission of a prior first degree
murder (section 190.2, subdivision (a)(2)). The jury convicted
3
A witness at defendant’s later trial provided a description
of the passenger that is consistent with defendant’s appearance.
No one affirmatively identified defendant as the passenger,
however.
3
defendant on all counts and found true all special circumstances.
Defendant was sentenced to death. The California Supreme
Court affirmed defendant’s convictions and the judgment of
death. (People v. Hinton (2006) 37 Cal.4th 839.) We take judicial
notice that the conviction was recently reduced, upon the People’s
recommendation for resentencing, to life in prison without the
possibility of parole.
C. Defendant’s Section 1172.6 Petition
In June 2021, defendant, represented by counsel, filed a
section 1172.6 petition for resentencing. Defendant averred he
met the requirements for resentencing because he was tried and
convicted principally on a felony murder theory and could not be
convicted of first or second degree murder under current law.
Specifically, he argued he was not: the actual killer, an aider and
abettor in the commission of murder who acted with intent to
kill, or a major participant in the underlying felony acting with
reckless indifference to human life.4
The People opposed the petition, arguing defendant was
not entitled to relief under section 1172.6 as a matter of law
because the jury had been instructed with CALJIC No. 8.80 and
had “found that [defendant] was the actual killer and/or acted
4
After receiving the petition, the trial court issued a minute
order finding defendant made a prima facie showing of
entitlement to relief and setting a date for an evidentiary
hearing. There is no indication in the record, however, that any
such hearing took place. Instead, after issuance of the minute
order (and after the date set for the evidentiary hearing), the
People filed the opposition to defendant’s section 1172.6 petition
that we next describe.
4
with malice aforethought, satisfying Penal Code sections 188 and
189.” In reply, defendant argued the version of CALJIC No. 8.80
given to the trial jury was ambiguous, as a prior decision by our
Supreme Court so found. (People v. Letner and Tobin (2010) 50
Cal.4th 99, 180-181 (Letner and Tobin).) Specifically, defendant
explained the instruction as given did not inform the jury what it
must find about defendant’s mental state if the jury concluded
defendant was liable as an aider and abettor.
D. The Trial Court’s Ruling
Attorneys for the parties appeared in court in January 2022
after the People’s opposition and defendant’s reply had been filed.
The trial court stated the purpose of the hearing was “to see
whether or not [defendant] has shown a prima facie case so that
his [section 1172.6] petition can move forward.”
The trial court heard argument, mainly focused on the
issue of whether the jury’s special circumstance true findings
foreclosed any possibility of relief in light of the instructions—
particularly CALJIC No. 8.80—given to the trial jury. The trial
court found that CALJIC No. 8.80 was “perfectly clear” in
informing the trial jurors that “if they found that [defendant] was
an aider and abett[o]r, that they had to find . . . beyond a
reasonable doubt that . . . defendant, with the intent to kill[,]
aided and abetted an actor in commission of the murder in the
first degree.” Confronted with the Letner and Tobin holding that
the instruction was not so clear, the trial court stated it simply
disagreed and believed—in its own view as a judicial officer—that
CALJIC No. 8.80 provides only two options: a finding that the
defendant is the actual killer (in which case no mental state
finding need be made) or a finding that the defendant was an
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aider and abettor (in which case the instruction, in the trial
court’s view, requires a finding of intent to kill to find the special
circumstance true). The court accordingly found defendant did
not make a prima facie case for relief because it thought the
jury’s special circumstance finding barred relief as a matter of
law. The court denied the section 1172.6 petition.
II. DISCUSSION
The trial court prematurely denied defendant’s section
1172.6 petition; the trial jury’s special circumstance findings do
not establish he is ineligible for relief as a matter of law. The
CALJIC No. 8.80 instruction that the jury was given has been
held ambiguous by our Supreme Court and the trial court’s
disagreement with that conclusion is of no significance. Indeed,
the Attorney General does not dispute on appeal that the
instruction itself is ambiguous about whether intent to kill must
be found if the jury were certain defendant was an aider and
abettor. Instead, the Attorney General argues the prosecutor’s
closing argument during trial and the jury’s true finding on a
firearm use enhancement practically resolve the instructional
ambiguity and suffice to support the trial court’s finding that
defendant is ineligible for relief as a matter of law. We hold that
is not enough—the prima facie threshold was set “very low”
(People v. Lewis (2021) 11 Cal.5th 952, 972 (Lewis)), the jury was
not bound to accept the prosecutor’s argument, and a firearm use
true finding (which can rest on mere display of a firearm) does
not establish defendant had the intent to kill or was the actual
killer.
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A. Section 1172.6
Under section 1172.6, “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, attempted
murder under the natural and probable consequences doctrine, or
manslaughter,” may file a petition to have that conviction
vacated under certain circumstances. (§ 1172.6, subd. (a).) “After
the parties have had an opportunity to submit briefing[ ], the
court shall hold a hearing to determine whether the petitioner
has made a prima facie case for relief. If the petitioner makes a
prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause. If the court declines to
make an order to show cause, it shall provide a statement fully
setting forth its reasons for doing so.” (§ 1172.6, subd. (c).) The
bar for this prima facie showing was “‘intentionally and correctly
set very low.’” (Lewis, supra, 11 Cal.5th at 972.)
“A petitioner is ineligible for resentencing as a matter of
law if the record of conviction conclusively establishes, with no
factfinding, weighing of evidence, or credibility determinations,
that (1) the petitioner was the actual killer, or (2) the petitioner
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, (3) the petitioner was a major participant in the
underlying felony and acted with reckless indifference to human
life, or (4) the petitioner acted with malice aforethought that was
not imputed based solely on participation in a crime.” (People v.
Lopez (2022) 78 Cal.App.5th 1, 14.)
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B. Defendant is Not Ineligible for Relief as a Matter of
Law
The instruction patterned on CALJIC No. 8.80 that was
given to defendant’s trial jury stated in relevant part: “If you find
beyond a reasonable doubt that the defendant was either the
actual killer or an aider or abettor, but you are unable to decide
which, then you must also find beyond a reasonable doubt that
the defendant with intent to kill aided and abetted an actor in
commission of the murder in the first degree, in order to find the
special circumstance to be true. On the other hand, if you find
beyond a reasonable doubt that the defendant was the actual
killer, you need not find that the defendant intended to kill a
human being in order to find the special circumstance to be true.”
Our Supreme Court has explained an instruction in this
form is ambiguous because it does not clearly inform a jury what
it must find about a defendant’s mental state if the jury is certain
that defendant was an aider and abettor in a charged murder
(i.e., not the actual killer and not unsure whether the defendant
was the actual killer or an aider and abettor). In the words of our
Supreme Court in Letner and Tobin: “[T]he flaw in this
instruction . . . is that it failed to instruct the jury explicitly that,
under then existing law, an aider and abettor must have had the
intent that the victim be killed in order for the special
circumstance allegation to be true. [Citation.] The jury was told
that if it determined one of the defendants was the actual killer,
intent to kill was not required, and that if it could not decide
whether one of the defendants was the actual killer or an aider
and abettor, it must find intent to kill in order to make a true
finding. The jury, however, was not informed what was required
in the event the jury determined that a particular defendant was
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an aider and abettor. The omission of this third alternative made
the instruction ambiguous.” (Letner and Tobin, supra, 50 Cal.4th
at 180-181, fn. omitted.) Accordingly, looking at the instruction
alone, we cannot be confident the jury’s special circumstance true
findings are necessarily predicated on a finding defendant
intended to kill Stevenson or the other victims (or that he was
Stevenson’s actual killer).
The Attorney General does not contend otherwise. Instead,
the Attorney General endeavors to import the Letner and Tobin
court’s harmlessness analysis of the instructional error in that
direct appeal for his use in this section 1172.6 proceeding.
Specifically, the Attorney General points to a snippet of the
closing argument of the trial prosecutor and argues that must
have cured the ambiguity about whether the jury must find
intent to kill if it believed defendant was an aider and abettor.5
We are not called to perform a harmlessness analysis in this
appeal, however. Instead, we decide only whether the People
proved defendant is ineligible for section 1172.6 relief as a matter
of law—and the prosecutor’s argument is insufficient for that
purpose. Courts “‘presume that jurors treat the court’s
instructions as a statement of the law by a judge, and the
prosecutor’s comments as words spoken by an advocate in an
attempt to persuade.’ (People v. Clair (1992) 2 Cal.4th 629, 663,
fn. 8.) ‘[P]rosecutorial commentary should not be given undue
weight in analyzing how a reasonable jury
5
During closing argument, the prosecutor told the jury: “if
you think [appellant] was not the actual shooter, but was an
aider and abettor, . . . one [of] the elements that you have to find
is that [appellant] actually intended to kill—had an actual intent
to kill [the victims].”
9
understood . . . instructions. Juries are warned in advance that
counsel’s remarks are mere argument, missteps can be
challenged when they occur, and juries generally understand that
counsel’s assertions are the “statements of advocates.” Thus,
argument should “not be judged as having the same force as an
instruction from the court.”’ [Citation.]” (People v. Cortez (2016)
63 Cal.4th 101, 131.)
Again relying on the harmlessness analysis in Letner and
Tobin, the Attorney General also argues it is unlikely the jury
felt compelled to resolve any possible ambiguity with regard to
the intent required for an aider and abettor. (Letner and Tobin,
supra, 50 Cal.4th at 182 [jury unlikely to feel compelled to resolve
ambiguity where there were two defendants on trial and there
was insufficient evidence to prove one of the two defendants was
the actual killer].) Even assuming this sort of harmlessness
analysis is a reliable guide here, the circumstances in this case
are still quite different.
There was little evidence at defendant’s trial about who
actually killed Barnes and Brown inside the motel room, so
defendant’s special circumstances liability for those murders
must have been predicated on direct aider or abettor liability.
That alone would have required resolution of the CALJIC No.
8.80 instructional ambiguity. As to Stevenson, there was
evidence defendant was the shooter, but that evidence was
contested and the People have never argued below or in this court
that defendant is ineligible for section 1172.6 relief as a matter of
law as Stevenson’s actual killer.
Finally, insofar as the Attorney general would also point to
the jury’s personal use of a firearm finding as demonstrating the
jury must have found defendant had the intent to kill, the
10
contention is unpersuasive. To find the firearm use allegation
true, the jury was only required to find that defendant displayed
a firearm in a menacing way, intentionally fired it, or
intentionally struck or hit someone with it. The jury was not
required to specifically find which of those actions defendant
took. The jury could have found that defendant displayed the
firearm in a menacing manner in the course of the underlying
crimes while never actually firing it. Further, even if he had
fired the gun, that does not necessarily mean that he intended to
kill anyone.
Because there is no valid basis to determine the trial jury
must have found defendant harbored an intent to kill, there is no
basis for holding defendant is ineligible for section 1172.6 relief.
That determination must come, if at all, after issuance of an
order to show cause and further proceedings described by statute.
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DISPOSITION
The order denying defendant’s petition for resentencing
under section 1172.6 is reversed and the cause is remanded with
directions to issue an order to show cause under section 1172.6,
subdivision (c) and to thereafter proceed as required by section
1172.6, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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