Filed 11/15/22 P. v. Hunter CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

CURTIS MAURICE HUNTER,

Defendant and 

Appellant.

B317637

(Los Angeles County

Super. Ct. No. TA087132-02)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, Sean D. Coen, Judge. Affirmed.

Daniel Milchiker, 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, Scott A. Taryle, Supervising Deputy 
2

Attorney General, and Daniel C. Chang, Deputy Attorneys 

General, for Plaintiff and Respondent.

________________________

Curtis Maurice Hunter, convicted in 2007 on two counts of 

attempted willful, deliberate and premeditated murder, appeals 

the summary denial of his petition for resentencing pursuant to 

Penal Code section 1172.6 (former section 1170.95).1 Although 

the superior court erred in failing to appoint counsel for Hunter 

and to allow briefing before determining whether Hunter was 

ineligible for relief as a matter of law, that error was harmless 

because the record of conviction2establishes that Hunter was not 

found guilty of attempted murder under any theory of liability 

affected by the amendments to the law of murder made by Senate 

Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). We 

affirm.

1 Effective June 30, 2022, Penal Code section 1170.95 was 

renumbered section 1172.6 with no change in text. (Stats. 2022, 

ch. 58, § 10.)

All further statutory references are to the Penal Code.

2 We construed the Attorney General’s request for judicial 

notice of the record in Hunter’s direct appeal (People v. Hunter, 

B205552) as a motion to augment the record pursuant to 

California Rules of Court, rule 8.155(a)(1)(A) and granted the 

motion, incorporating by reference the clerk’s and reporter’s 

transcripts that comprise the record in the prior appeal as part of 

the record in the instant appeal. 
3

FACTUAL AND PROCEDURAL BACKGROUND

1. Hunter’s Conviction for Attempted Murder

Hunter was charged in a two-count information filed 

January 22, 2007 with the attempted willful, deliberate and 

premeditated murder of Anthony Bickham and Shawn Turner. 

Firearm-use and criminal street gang enhancements were 

specially alleged as to both counts. The People’s theory of the 

case, as summarized in our opinion affirming Hunter’s 

convictions (see People v. Hunter (Mar. 18, 2009, B205552) 

[nonpub. opn.]), was that Bickham and Turner, members of a 

Crips gang, were walking near the border of the territory of a 

Bloods gang, when Hunter, a member of the Bloods, recognized 

Bickham and Turner as Crips, pulled a gun and fired several 

shots at them, narrowly missing Bickham and severely injuring 

Turner.

Hunter’s jury was instructed pursuant to CALCRIM 

No. 600 that to prove attempted murder the People had to prove, 

among other elements, “The defendant intended to kill that 

person,” and pursuant to CALCRIM No. 601 that the allegation 

Hunter had acted deliberately, willfully and with premeditation 

required the People to prove, in part, he “intended to kill when he 

acted” and “decided to kill before acting.” The jury was also 

instructed on attempted voluntary manslaughter—heat of 

passion (CALCRIM No. 603) as a lesser included offense of 

attempted murder. There were no instructions on liability for 

attempted murder on a theory of aiding and abetting or the 

natural and probable consequences doctrine.

With respect to the specially alleged enhancements for 

personal use and intentional discharge of a firearm, the jury was 

instructed pursuant to CALCRIM Nos. 3148 and 3150 it had to 
4

find the defendant “personally discharged a firearm during the 

commission or attempted commission of the crime” and “intended 

to discharge the firearm.” 

Hunter was convicted of the attempted deliberate, willful 

and premeditated murder of both men. The jury found that both 

offenses had been committed for the benefit of a criminal street 

gang and that Hunter had personally and intentionally 

discharged a firearm causing great bodily injury to Turner and 

had personally and intentionally discharged a firearm during the 

attempt on Bickham’s life. The court sentenced Hunter to an 

aggregate indeterminate state prison term of 75 years to life.3

2. Hunter’s Petition for Resentencing

On December 13, 2021 Hunter, representing himself, filed a 

petition for resentencing pursuant to former section 1170.95. The 

petition included Hunter’s declaration that he had been charged 

with attempted murder under the natural and probable 

consequences doctrine and could not now be convicted of 

attempted murder because of Senate Bill 1437’s amendments to 

sections 188 and 189. Hunter requested appointment of counsel 

to assist him. (The petition also asserted Turner and Bickham 

had recanted their testimony identifying Hunter as the man who 

shot them and argued his trial counsel had provided 

constitutionally ineffective assistance.) 

3 On appeal Hunter argued only that the clerk’s minute 

order and abstract of judgment needed to be corrected to 

accurately reflect the sentence actually imposed. We agreed and 

ordered the clerical errors corrected. (People v. Hunter, supra, 

B250552.) 
5

On December 15, 2021 the superior court summarily denied 

Hunter’s petition without appointing counsel. The court stated, 

because Hunter had been convicted of attempted murder, he was 

not eligible for resentencing. 

Hunter filed a timely notice of appeal. 

DISCUSSION

1. Section 1172.6 (Former Section 1170.95)

Senate Bill 1437 substantially modified the law relating to 

accomplice liability for murder, eliminating the natural and 

probable consequences doctrine as a basis for finding a defendant 

guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-

843) and significantly narrowing the felony-murder exception to 

the malice requirement for murder. (§§ 188, subd. (a)(3), 189, 

subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708; 

People v. Lewis (2021) 11 Cal.5th 952, 957.) It also authorized, 

through former section 1170.95, an individual convicted of felony 

murder or murder based on the natural and probable 

consequences doctrine to petition the sentencing court to vacate 

the conviction and be resentenced on any remaining counts if he 

or she could not now be convicted of murder because of Senate 

Bill 1437’s changes to the definitions of the crime. (See Strong, at 

p. 708; Lewis, at p. 957; Gentile, at p. 843.) As amended by 

Senate Bill No. 775 (Stats. 2021, ch. 551, § 2) (Senate Bill 775), 

effective January 1, 2022, these ameliorative changes to the law 

now expressly apply to attempted murder and voluntary 

manslaughter.4

4 Although the superior court summarily denied Hunter’s 

petition prior to Senate Bill 775’s effective date on the ground 

Senate Bill 1437 did not apply to attempted murder, the 
6

If the section 1172.6 petition contains all the required 

information, including a declaration by the petitioner that he or 

she is eligible for relief, the court must appoint counsel to 

represent the petitioner, if requested (§ 1172.6, subd. (b)(3)), and 

direct the prosecutor to file a response to the petition, permit the 

petitioner to file a reply and determine if the petitioner has made 

a prima facie showing that he or she is entitled to relief. 

(§ 1172.6, subd. (c); see Lewis, supra, 11 Cal.5th at pp. 962-963.)

In determining whether the petitioner has carried the 

burden of making the requisite prima facie showing he or she 

falls within the provisions of section 1172.6 and is entitled to 

relief, the superior court properly examines the record of 

conviction, “allowing the court to distinguish petitions with 

potential merit from those that are clearly meritless.” (Lewis, 

supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry 

under subdivision (c) is limited. Like the analogous prima facie 

inquiry in habeas corpus proceedings, the court takes petitioner’s 

factual allegations as true and makes a preliminary assessment 

regarding whether the petitioner would be entitled to relief if his 

or her factual allegations were proved. If so, the court must issue 

an order to show cause. . . . However, if the record, including the 

court’s own documents, contain[s] facts refuting the allegations 

made in the petition, then the court is justified in making a 

credibility determination adverse to the petitioner.” (Id. at 

pp. 970-971, internal quotation marks omitted.)

legislation expanding the reach of Senate Bill 1437’s 

amendments to murder liability had been signed by the Governor 

and chaptered two months earlier—prior even to the filing of 

Hunter’s petition. 
7

When a petitioner has carried the burden of making the 

requisite prima facie showing he or she falls within the 

provisions of section 1172.6 and is entitled to relief, the court 

must issue an order to show cause and hold an evidentiary 

hearing to determine whether to vacate the murder conviction 

and resentence the petitioner on any remaining counts. 

(§ 1172.6, subd. (d)(1).) At that hearing the court may consider 

evidence “previously admitted at any prior hearing or trial that is 

admissible under current law,” including witness testimony. 

(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may 

also offer new or additional evidence. (Ibid.) 

“At the hearing to determine whether the petitioner is 

entitled to relief, the burden of proof shall be on the prosecution 

to prove, beyond a reasonable doubt, that the petitioner is guilty 

of murder or attempted murder under California law as amended 

by the changes to Section 188 or 189 made effective January 1, 

2019. . . . A finding that there is substantial evidence to support 

a conviction for murder, attempted murder, or manslaughter is 

insufficient to prove, beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)

2. The Superior Court Erred in Denying Hunter’s Petition 

Without Appointing Counsel and Allowing Briefing 

Senate Bill 775’s expansion of eligibility for resentencing 

and its revisions to a petitioner’s procedural rights under 

section 1172.6 apply to all cases not yet final on the legislation’s 

effective date. (People v. Basler (2022) 80 Cal.App.5th 46, 56; 

People v. Porter (2022) 73 Cal.App.5th 644, 652; see In re Estrada

(1965) 63 Cal.2d 740, 744-745.) 

By its express terms, former section 1170.95 as enacted by 

Senate Bill 1437 did not authorize a petition to vacate a 
8

conviction for any offense other than murder. As discussed,

however, among other changes Senate Bill 775 amended former 

section 1170.95, subdivision (a), to expressly permit relief for 

petitioners convicted of attempted murder under the natural and 

probable consequences doctrine if they could not now be convicted 

of attempted murder because of changes to sections 188 and 189 

effected by Senate Bill 1437. Because Hunter’s petition included 

his declaration that he satisfied those elements of a prima facie 

showing for resentencing relief, it was error to summarily deny 

his petition without appointing counsel and permitting an initial 

round of briefing. (§ 1172.6, subds. (b)(3), (c); see Lewis, supra, 

11 Cal.5th at p. 963 [“petitioners who file a complying petition 

requesting counsel are to receive counsel upon filing of a 

compliant petition”].)

3. The Superior Court’s Errors Were Harmless: Hunter Is 

Ineligible for Resentencing as a Matter of Law

A superior court’s procedural errors prior to assessing 

whether a petitioner has made a prima facie showing of 

entitlement to relief pursuant to section 1172.6, subdivision (c), is 

state law error only, reviewable for prejudice under the harmless 

error standard of People v. Watson (1956) 46 Cal.2d 818. (Lewis, 

supra, 11 Cal.5th at pp. 957, 973-974.) Specifically, “a petitioner 

‘whose petition is denied before an order to show cause issues has 

the burden of showing “it is reasonably probable that if [he or 

she] had been afforded assistance of counsel his [or her] petition 

would not have been summarily denied without an evidentiary 

hearing.”’” (Lewis, at p. 974.) Here, the jury’s instructions and 

verdict—part of the record of conviction now included in the 
9

record on appeal5—unquestionably establish that Hunter was 

neither tried nor convicted of attempted murder on a now-invalid 

theory of accomplice liability. 

To reiterate, there were no jury instructions concerning 

aider and abettor (accomplice) liability, nor was the jury 

instructed on the natural and probable consequences doctrine. 

To the contrary, as instructed, to find Hunter guilty of attempted 

deliberate, willful and premeditated murder, the jury necessarily 

found he had acted with express malice—that is, that he intended 

to kill his victims. The jury findings of actual malice were 

confirmed by the additional findings that Hunter had personally 

and intentionally discharged a firearm during the two attempted 

murders. 

Because there is no reasonable probability Hunter would 

obtain a more favorable result if the matter were remanded and 

counsel appointed and given the opportunity to file a 

memorandum supporting the petition, the court’s errors in 

denying Hunter’s petition were harmless. (See People v. Mancilla

(2021) 67 Cal.App.5th 854, 864; see generally People v. Watson,

supra, 46 Cal.2d at p. 836.)

5

See footnote 2.
10

DISPOSITION

The postjudgment order denying Hunter’s petition for 

resentencing is affirmed. 

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.