Filed 7/13/21 P. v. Hulbert CA2/5
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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, Robert E. Boyce, under appointment by
the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Paul S. Thies,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
Defendant and appellant Reuel Hulbert appeals from the
trial court’s postjudgment order denying his petition for
resentencing pursuant to Penal Code section 1170.951 and Senate
Bill No. 1437 (Senate Bill 1437). Section 1170.95 provides for
vacatur of a murder conviction obtained under either the natural
and probable consequences doctrine or, under certain
circumstances, the felony murder theory of liability. (People v.
Martinez (2019) 31 Cal.App.5th 719, 723.)
Hulbert contends the trial court erred by denying his
petition without first appointing counsel, ordering briefing, and
issuing an order to show cause. Relying on People v. Cooper
(2020) 54 Cal.App.5th 106 (Cooper), Hulbert argues that he met
his burden of making a prima facie showing that he falls within
the provisions of section 1170.95, subdivision (c), by filing a
facially sufficient petition, and that he is entitled to counsel,
briefing, and a hearing.
We 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, the trial court ruled that
the record of conviction, and the verdict forms in particular,
4
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.
DISCUSSION
Hulbert’s sole argument on appeal3 is that this court
should follow the opinion of the Court of Appeal, First Appellate
District, Division One in Cooper, supra, 54 Cal.App.5th 106, and
hold that the trial court was obligated to appoint counsel and
order briefing because he filed a facially sufficient petition that
satisfied the requirements of section 1170.95, subdivision (b)(1).4
3 Hulbert also asserts that “[i]n light of the allegations in
the petition, and the rule requiring the superior 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”].)
4 Section 1170.95, subdivision (b)(1), requires the petitioner
to file a petition containing “(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.”
5
Preliminarily, we note that the record shows that Hulbert
was represented by appointed counsel at the hearing in which the
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 questions of whether the trial court may review the
record of conviction and when the right to appointment of counsel
attaches are currently before the Supreme Court. (See People v.
Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020,
S260598.) As Hulbert acknowledges, with the exception of
Cooper, supra, 54 Cal.App.5th 106, at page 109, all appellate
courts to consider these issues, including this court, have held
that the trial court may consider the record of conviction when
determining whether the petitioner falls within the provisions of
section 1170.95, and that the trial court is not required to appoint
Subdivision (a) provides “A person convicted of felony
murder or murder under a natural and probable consequences
theory may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder 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 or murder under the natural and
probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of
a trial at which the petitioner could be convicted for first degree
or second degree murder.
“(3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.”
6
counsel or order briefing where the record of conviction
establishes that the petitioner is ineligible for relief as a matter
of law. (See, e.g., People v. Cornelius (2020) 44 Cal.App.5th 54,
58, review granted Mar. 18, 2020, S260410 [jury verdict
necessarily encompassed jury finding that petitioner was actual
killer]; People v. Verdugo (2020) 44 Cal.App.5th 320, 332–333,
review granted Mar. 18, 2020, S260493 [prior appellate court
opinion established petitioner acted with express malice]; People
v. Torres (2020) 46 Cal.App.5th 1168, 1178 [trial court may
consider record of conviction, but jury’s true finding on a robbery
murder special circumstance does not preclude relief under all
circumstances].) Hulbert offers no argument that persuades us
to reconsider our position.
Although Hulbert does not argue that his petition is
meritorious, a trial court’s denial of the petition is inappropriate
at this stage unless the petitioner is ineligible for relief as a
matter of law, so it is necessary to address the merits. 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.) We conclude that Hulbert is not
eligible for relief as a matter of law, and affirm the trial court’s
denial of his petition for resentencing under section 1170.95.
To the extent that Hulbert is petitioning for resentencing
with respect to his attempted murder conviction,5 Senate Bill
1437, including the petitioning procedure codified in section
1170.95, authorizes relief only for defendants convicted of
5 Inthe opening brief, Hulbert stated that he petitioned for
resentencing with respect to his convictions for murder and
attempted murder in the trial court. He does not make any
arguments specific to the attempted murder.
7
murder, not attempted murder, and that limitation does not
contravene constitutional equal protection guarantees. (People v.
Harris (2021) 60 Cal.App.5th 557, 566, review granted Apr. 21,
2021, S267529; People v. Love (2020) 55 Cal.App.5th 273, 279,
review granted Dec. 16, 2020, S265445; People v. Alaybue (2020)
51 Cal.App.5th 207, 222–225; People v. Dennis (2020) 47
Cal.App.5th 838, 841, review granted July 29, 2020, S262184;
People v. Munoz (2019) 39 Cal.App.5th 738, 753–769, review
granted Nov. 26, 2019, S258234; People v. Lopez (2019) 38
Cal.App.5th 1087, 1103–1112, review granted Nov. 13, 2019,
S258175.)
With respect to the murder convictions, to be eligible for
resentencing, Hulbert was required to show that he “could not be
convicted of first or second degree murder because of changes to
Section 188 or 189” made by Senate Bill 1437. (§ 1170.95, subd.
(a)(3).) The record of conviction conclusively demonstrates that
Hulbert cannot make such a showing. “[P]otential relief under
section 1170.95 extends only to those convicted of murder by
operation of the natural and probable consequence doctrine or of
felony murder. [Citation.]” (People v. Soto (2020) 51 Cal.App.5th
1043, 1056, review granted Sept. 23, 2020, S263939; see also
People v. Lee (2020) 49 Cal.App.5th 254, 263–265, review granted
July 15, 2020, S262459.) The jury was not instructed on either
the natural and probable consequences doctrine or the felony-
murder rule; therefore, Hulbert could not have been convicted
based on either of these theories. (People v. Edwards (2020) 48
Cal.App.5th 666, 674, review granted July 8, 2020, S262481
[where jury instructions showed petitioner was not convicted
under felony-murder rule or natural and probable consequences
8
theory, he could not meet the statutory prerequisites for
resentencing under § 1170.95].)
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