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Filed 1/18/23 P. v. Hundley CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD ANTONIO HUNDLEY,

Defendant and Appellant.

C092618

(Super. Ct. No. 08F09808)

OPINION ON TRANSFER

Opinion following transfer from Supreme Court

Defendant Richard Antonio Hundley appeals from a postjudgment order denying 

his petition for resentencing under what is now Penal Code1section 1172.6.

2

 He argues 

1

 Undesignated statutory references are to the Penal Code.

2

 Effective June 20, 2022, section 1170.95 was renumbered as section 1172.6 without 

substantive change. (Stats. 2022, ch. 58, § 10.) We will refer to the section by its new 

numbering.
2

the trial court erred by declining to issue an order to show cause because the court looked 

beyond his declaration that he met the requirements of section 1172.6. He further argues 

the trial court erred by determining he was ineligible for resentencing as a matter of law 

based on the jury’s felony-murder special circumstance finding. 

We filed an unpublished opinion on February 14, 2021, affirming the trial court’s 

order. Our Supreme Court granted review of the matter on April 27, 2022, and on 

November 23, 2022, transferred the case to us with directions to vacate our previous 

decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 

(Strong). Defendant submitted supplemental briefing arguing the case should be 

remanded to the trial court; the People filed a supplemental brief agreeing. We will 

reverse the court’s order denying the petition and direct the court to issue an order to 

show cause and, if necessary, conduct an evidentiary hearing on defendant’s petition.

BACKGROUND

A detailed recitation of the facts underlying defendant’s conviction is not

necessary to resolve his claim on appeal.3 In short, after meeting the victim, David 

Barreda, defendant and his codefendant, Curtis Chapman, discussed a plan to kill Barreda 

but decided to rob him instead. After the three had a confrontation, Chapman shot 

Barreda in the back of the head. Immediately before Chapman shot Barreda, defendant 

told him they were going to “take [his] shit,” he acted to distract Barreda while Chapman 

shot him, and after Barreda was shot, as Chapman removed Barreda’s gun, he told 

defendant the gun was now theirs. Defendant and his codefendant dragged Barreda from 

the kitchen to the garage, placed him in the trunk of his car, and drove the car to a nearby 

location. The next day, Barreda’s body was discovered in the trunk of his car. He died 

3

 We provide the ensuing summary of facts from the prior opinion in defendant’s direct 

appeal solely for context and do not rely on these facts for our analysis or disposition 

here. (See § 1172.6, subd. (d)(3).)
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from a single gunshot to the back of his head. (People v. Hundley (Jun. 27, 2011, 

C063497 [nonpub. opn.] at pp. 4-6, 9-10-12, 14 (Hundley).)4

A jury found defendant and codefendant guilty of first degree murder (§ 187, 

subd. (a)) and found true the special circumstance that the murder was committed while 

defendants were engaged in the commission of a robbery (§ 190.2, subd. (a)(17)(A)). 

(Hundley, supra, C063497 at p. 2.) The trial court sentenced defendant to life without the 

possibility of parole, and we affirmed his conviction on appeal. (Ibid.)

Defendant appealed his conviction, arguing, as relevant here, there was

insufficient evidence supporting his first degree murder conviction because there was 

insufficient evidence he aided or abetted in the robbery or murder of Barreda. (Hundley, 

supra, C063497 at p. 13.) We found sufficient evidence supported the murder conviction 

and affirmed the convictions for first degree murder and the special circumstances 

finding. (Id. at pp. 15, 30-31.)

In January 2019, defendant petitioned the trial court under former section 1170.95 

for resentencing based on changes to the felony-murder rule under recently enacted 

Senate Bill No. 1437 (Senate Bill 1437). (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019.) 

Defendant declared in his petition that the prosecution proceeded “under a theory of 

felony murder or murder under the natural and probable consequences doctrine,” he “was 

convicted of 1st or 2nd degree murder” and he “could not now be convicted of 1st or 2nd 

degree murder because of changes to Penal Code §§ 188 or 189, effective January 1, 

2019.” He further alleged he was not the actual killer, did not act with intent to kill or aid 

and abet the actual killer, was not a major participant and did not act with reckless 

indifference to human life in the commission of the felony. Defendant retained counsel.

4

 A copy of our unpublished opinion in Hundley is included in the record on appeal.
4

The trial court ordered briefing on defendant’s eligibility for relief and the validity 

of Senate Bill 1437. After considering the briefing, and reviewing the underlying file, the 

trial court denied defendant’s petition finding the record established defendant was 

ineligible for resentencing given the jury’s true finding on an alleged robbery-murder 

special circumstance under section 190.2. Citing CALCRIM No. 703, with which the 

jury was instructed, the trial court reasoned that in order to find the robbery-murder 

special circumstance true, the jury had to find defendant was the actual killer, had the 

intent to kill, or was a major participant who acted with reckless indifference to human 

life. The court also noted defendant had not obtained any order vacating his felonymurder special circumstance finding under People v. Banks (2015) 61 Cal.4th 788 

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), and as such, the trial court 

would not assess the validity of that finding.

DISCUSSION

Defendant contends the trial court prejudicially erred by making factual findings at 

the pleading stage of the section 1172.6 petition process. He further contends he made a 

prima facie showing he was eligible for relief, that the trial court should have issued an 

order to show cause and held an evidentiary hearing, and that he need not challenge the 

sufficiency of the evidence supporting the special circumstance finding by habeas corpus. 

Statutory Background

Senate Bill 1437, effective January 1, 2019, revised the felony-murder rule in 

California “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 amended the definition of malice in section 188, 

revised the definition of the degrees of murder to address felony-murder liability in 

section 189, and created a “procedure by which those convicted of murder can seek 
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retroactive relief if the changes in the law would affect their previously sustained 

convictions.” (People v. Gutierrez-Salazar (2019) 38 Cal.App.5th 411, 417, citing Stats. 

2018, ch. 1015, §§ 2-4.)

Under the resentencing procedure, a person convicted of felony murder or murder 

under a natural and probable consequences theory may file a petition with the court for 

resentencing “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 or other theory under which malice is imputed to a person based 

solely on that person’s participation in a crime. . . . [¶] (2) The 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 be convicted of murder or attempted murder. 

[¶] (3) The petitioner could not be convicted of murder because of changes to Section 

188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a).)

Section 1172.6, subdivision (b) requires the petitioner to submit a declaration that 

avers eligibility for relief under the statute (based on the requirements of subdivision (a)) 

and includes case information, and whether petitioner requests appointment of counsel. 

(§ 1172.6, subd. (b).)

Section 1172.6, subdivision (c) dictates how the court must handle the petition. It

requires, the court to review the petition to determine if the petitioner has made a prima 

facie showing that the petitioner is entitled to relief. (People v. Lewis (2021) 11 Cal.5th 

952, 957-958 (Lewis).) Once defendant has counsel and the court has received briefing 

from the parties, the court may rely on the record of conviction in determining whether 

that single prima facie showing has been made. (Id. at p. 971.) The record of conviction 

includes a prior appellate court opinion, although such an opinion may not supply all 

necessary answers. (Id. at p. 972.) “If the petitioner makes a prima facie showing that 
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the petitioner is entitled to relief, the court shall issue an order to show cause.” (§ 1172.6, 

subd. (c).)

On transfer from the Supreme Court, defendant maintains the trial court erred in 

relying on the jury’s felony-murder special-circumstance finding to determine he was 

precluded from relief under Senate Bill 1437. Following the Supreme Court’s recent 

opinion in Strong, supra, 13 Cal.5th 698, the People concede defendant has made a prima 

facie case for relief and we accept their concession. 

As relevant here, section 190.2, subdivision (d) provides that for the purposes of 

the special-circumstance allegations based on the enumerated felonies in paragraph (17) 

of subdivision (a), which include robbery, an aider and abettor must, at a minimum, have 

been a “major participant” and have acted “with reckless indifference to human life.” 

(§ 190.2, subd. (d); see People v. Banks, supra, 61 Cal.4th at pp. 797-798.)

In Strong, resolving a split of authority, the Supreme Court held “[f]indings issued 

by a jury before Banks and Clark do not preclude a defendant from making out a prima 

facie case for relief under Senate Bill 1437. This is true even if the trial evidence would 

have been sufficient to support the findings under Banks and Clark.” (Strong, supra, 

13 Cal.5th 698 at p. 710.) Further, our Supreme Court concluded, “Banks and Clark both 

substantially clarified the law governing findings under . . . section 190.2, subdivision 

(d): Banks elucidated what it means to be a major participant and, to a lesser extent, what 

it means to act with reckless indifference to human life, while Clark further refined the 

reckless indifference inquiry.” (Strong, at pp. 706-707.) The court concluded these two 

rulings reflected a significant change in the law and justified the denial of giving 

preclusive effect to jury findings made before this change in law. (Id. at pp. 716-718.)

Applying the principles articulated in Strong, we conclude the trial court 

improperly denied defendant’s petition at the prima facie stage. The jury made its special 

circumstance finding long before Banks and Clark. Under Strong, that finding does not 

preclude defendant from stating a prima facie case for relief. (Strong, supra, 13 Cal.5th 
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at p. 721.) Contrary to the trial court’s view, a habeas petition is not the only proper 

forum to raise Banks and Clark factors; indeed, habeas cannot provide equivalent relief to 

a section 1172.6 petition since habeas only challenges the special circumstance finding 

and not the underlying murder conviction. (Strong, supra, at pp. 711-713.) Nor is the 

trial court’s review of the evidence applying Banks and Clark factors a proper basis to 

deny a petition under section 1172.6. (Strong, supra, at pp. 719-720.)

Defendant’s section 1172.6 petition was facially sufficient and alleged the 

essential facts necessary for relief. The record does not contain anything establishing that 

defendant is ineligible for relief as a matter of law. Therefore, we must remand the 

matter to the trial court to issue an order to show cause, and, as necessary, conduct an 

evidentiary hearing. (§ 1172.6, subd. (d).) 

DISPOSITION

The order denying the petition is reversed. The case is remanded to the trial court 

for issuance of an order to show cause and to hold an evidentiary hearing on the petition. 

 ,

HULL, Acting P. J.

We concur:

 ,

KRAUSE, J.

 ,

EARL, J.