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Filed 3/22/22 P. v. Hunter CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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 TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIUANA LASHANAE HUNTER,

Defendant and Appellant.

E073825

(Super.Ct.No. RIF1105356)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Reversed and remanded with directions.

Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta and Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, 

Acting Assistant Attorney General, Charles C. Ragland and James H. Flaherty III, 

Deputy Attorneys General, for Plaintiff and Respondent.
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I

INTRODUCTION

Originally charged with first degree murder along with her mother, in 2013 

defendant and appellant Briuana Lashanae Hunter ultimately pleaded guilty to one count 

of voluntary manslaughter (Pen. Code,1 § 192, subd. (a)) and three counts of attempted 

murder (§§ 664 & 187, subd. (a)). Defendant also admitted that a principal used a 

firearm (§ 12022, subd. (a)(1)) during the commission of the voluntary manslaughter. 

In 2019, defendant filed a petition for resentencing pursuant to section 1170.95. 

The trial court denied the petition finding voluntary manslaughter and attempted murder

convictions were ineligible for relief under the statute, which was the correct result at the 

time, and in a prior nonpublished opinion, People v. Hunter (Oct. 19, 2020, E073825) 

(Hunter I), we affirmed the trial court’s order. The Legislature, however, since has 

passed and the Governor has signed Senate Bill No. 775 (2020-2021 Reg. Sess.) (Senate 

Bill 775), which makes clear that persons convicted of attempted murder and voluntary 

manslaughter can seek resentencing relief. (Stats. 2021, ch. 551, § 2.) 

Following the issuance of our prior opinion upholding the trial court’s order, 

defendant filed a petition for review in the California Supreme Court (S265569). The 

court granted review, and on December 29, 2021, remanded the matter to us with 

directions to vacate our prior decision and reconsider the cause in light of Senate 

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 All future statutory references are to the Penal Code unless otherwise stated.
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Bill 775. We vacated our decision on January 7, 2022, and allowed the parties to file 

supplemental briefs.

In supplemental briefing, defendant contends that she is eligible for resentencing 

under section 1170.95, as amended by Senate Bill 775, and thus the matter should be 

remanded for the superior court to reconsider her petition. The People argue that remand 

is not necessary because defendant’s “admission of the factual basis for her guilty plea, 

unequivocally demonstrates beyond a reasonable doubt that [defendant] was a direct 

aider and abettor to the killing and that she acted with malice aforethought.” 

Alternatively, the People assert that if the record does not conclusively establish 

ineligibility for relief as a matter of law, we should remand with directions to the trial 

court to permit the parties to brief whether defendant has established a prima facie 

basis for resentencing relief and, if so, to hold further proceedings consistent with 

section 1170.95, subdivision (c). 

Because section 1170.95, as amended by Senate Bill 775, will provide 

resentencing relief for individuals charged with attempted murder and voluntary 

manslaughter under certain circumstances, and because the record does not conclusively 

establish ineligibility as a matter of law, we will reverse the trial court’s order and 

remand the matter for the court to reconsider defendant’s petition in the first instance.
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II

BACKGROUND

In 2013, defendant pleaded guilty to one count of voluntary manslaughter (§ 192, 

subd. (a)) and three counts of attempted murder (§§ 664 & 187, subd. (a)). Defendant 

also admitted that a principal used a firearm (§ 12022, subd. (a)(1)) during the 

commission of the voluntary manslaughter. In return, the remaining charges and 

enhancement allegations were dismissed, and defendant was sentenced to a total term of 

18 years in prison.2

While defendant was serving her 18-year prison term, the Legislature enacted 

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, §§ 1-4) (Senate 

Bill 1437), which amended the law governing murder liability under the felony murder 

and natural and probable consequences theories and provided a new procedure under 

section 1170.95 for eligible defendants to petition for recall and resentencing.

On August 29, 2019, defendant filed a petition to vacate her voluntary

manslaughter and attempted murder convictions and for resentencing pursuant to 

section 1170.95. 

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 Defendant was originally sentenced to 18 years four months. However, 

pursuant to a letter submitted by the California Department of Corrections and 

Rehabilitation, in July 2018, the trial court amended defendant’s sentence to a total term 

of 18 years. The court stayed the one-year term for the gun enhancement and ordered an 

amended abstract of judgment. The amended abstract of judgment incorrectly indicates 

defendant’s total sentence of 19 years and fails to note the firearm enhancement was 

stayed. 
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On September 13, 2019, the trial court summarily denied the petition without 

prejudice, finding defendant had not established a prima facie case for resentencing, as 

she was not convicted of murder. Defendant timely appealed from the trial court’s order.

In October 2020, this court issued a nonpublished opinion affirming the trial 

court’s denial of defendant’s petition, concluding attempted murder and voluntary 

manslaughter were ineligible for relief as a matter of law under section 1170.95, because 

the plain language of the statute referred to a “murder conviction” but not attempted 

murder or voluntary manslaughter. (HunterI, supra, E073825, at pp. 3-18.) Defendant 

subsequently filed a petition for review with the Supreme Court (S265569). 

While this matter was pending, the Legislature enacted Senate Bill 775, which 

amended section 1170.95 to clarify that persons convicted of manslaughter and attempted 

murder may be eligible for resentencing under that section. As amended, section 1170.95 

expressly applies to persons “convicted of . . . attempted murder under the natural and 

probable consequences doctrine, or manslaughter.” (§ 1170.95, subd. (a).)

On December 29, 2021, S265569, the Supreme Court transferred defendant’s case 

back to this court with directions to vacate our prior decision and reconsider the cause in 

light of Senate Bill 775. We vacated our prior opinion and permitted the parties to file 

supplemental briefs.
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III

DISCUSSION

Effective January 1, 2019, the Legislature passed Senate Bill 1437 (2017-2018 

Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences 

doctrine . . . 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 also added section 1170.95 to provide a procedure for 

those convicted of a qualifying offense to seek vacatur of their conviction and 

resentencing on any remaining counts. (See former § 1170.95, subd. (a).)

Prior to the enactment of Senate Bill 775, the California Courts of Appeal were 

uniform in concluding that resentencing relief under section 1170.95 was limited to 

murder convictions and did not extend to persons convicted of manslaughter or 

attempted murder. (See, e.g., People v. Sanchez (2020) 48 Cal.App.5th 914, 919;

People v. Turner (2020) 45 Cal.App.5th 428, 435-436; People v. Paige (2020) 51 

Cal.App.5th 194, 201-204.) Since then, however, the Legislature has enacted Senate 

Bill 775, which took effect on January 1, 2022. This bill amends section 1170.95 in 

various ways, and the most significant for our purposes is an amendment that

expressly permits defendants convicted of attempted murder and/or manslaughter to seek 

relief. (Stats. 2021, ch. 551, § 2; see Stats. 2021, ch. 551, § 1, subd. (a) [“[T]his 

legislation . . . ¶ . . . [c]larifies that persons who were convicted of attempted murder or 
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manslaughter under a theory of felony murder and the natural [and] probable 

consequences doctrine are permitted the same relief as those persons convicted of murder 

under the same theories”].)

There is no dispute that Senate Bill 775 is applicable in this case, or that defendant 

may seek resentencing relief for her attempted murder and voluntary manslaughter 

convictions. Indeed, defendant’s appeal from the order denying her resentencing petition 

was pending when the amendments to section 1170.95 became effective, and thus apply 

to her. (People v. Vieira (2005) 35 Cal.4th 264, 305.) 

There is also no argument by the parties that defendant’s petition alleges that she 

was convicted of murder, rather than attempted murder and/or manslaughter. In other 

words, defendant had checked the box on the form petition stating that she had “pled 

guilty or no contest to 1st or 2nd degree murder in lieu of going to trial . . . .” Arguably, 

at the time defendant filed her petition for resentencing relief, section 1170.95 was 

limited to those convicted of murder, and there was no place on the form petitions to 

check convictions for attempted murder and/or manslaughter. 

A petition for resentencing relief under section 1170.95 must include: “A 

declaration by the petitioner that the petitioner is eligible for relief under this section, 

based on all the requirements of subdivision (a)” of section 1170.95. (§ 1170.95, 

subd. (b)(1)(A).) Under amended section 1170.95, the petitioner must allege that he or 

she satisfies the following requirements: (1) “A complaint, information, or indictment 

was filed against the petitioner that allowed the prosecution to proceed under a theory of 
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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) “[t]he 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,” and (3) “[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)(1)-

(3).)

Here, the petition is facially sufficient under section 1170.95, both as originally 

enacted and as amended by Senate Bill 775, because the petition meets the requirements 

of subdivision (b)(1) of section 1170.95. However, the petition would still fail at the 

prima facie review stage, even after Senate Bill 775, because its allegation that defendant 

was convicted of murder is refuted by the record of conviction, and the petition does not 

allege that she was convicted of manslaughter and/or attempted murder. 

Because these proceedings begin with the filing of a valid petition, we reverse and 

remand to the trial court with directions to grant defendant leave to file an amended 

petition under amended section 1170.95. (See § 1170.95, subd. (b)(2).) Once defendant 

files a valid petition, the trial court must determine in the first instance whether she has 

stated a prima facie case of entitlement to relief under subdivision (c) of section 1170.95. 

(§ 1170.95, subd. (c).) If the court finds a prima facie case is stated, it shall issue an 
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order to show cause and hold a hearing “to determine whether to vacate the . . . attempted 

murder, or manslaughter conviction[s] and to recall the sentence and resentence the

[defendant] on any remaining counts . . . .” (§ 1170.95, subd. (d)(1).) 

IV

DISPOSITION

Our previous opinion having been vacated, we reverse the superior court’s order 

denying defendant’s petition for resentencing under section 1170.95. The matter is 

remanded with directions to grant defendant leave to file an amended petition under 

amended section 1170.95. 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

RAPHAEL

J.

MENETREZ

J.