Filed 9/12/22 P. v. Hanes CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

PHILIP THOMAS HANES,

 Defendant and Appellant.

2d Crim. No. B318807

(Super. Ct. No. 14C-21538)

(San Luis Obispo County)

Philip Thomas Hanes appeals an order denying his Penal 

Code section 1170.95 (now § 1172.6)1 petition for resentencing on

his second degree murder conviction. He contends he is entitled 

to relief because jurors convicted him based on the natural and 

probable consequences doctrine. For reasons we shall explain, we 

dismiss the appeal.

1 All statutory references are to the Penal Code. Effective 

June 30, 2022, section 1170.95 was renumbered as section 

1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
2

Jurors convicted Hanes of second degree murder for the 

stabbing death of Tina Beddow. The trial court imposed a state 

prison sentence of 15 years to life plus one year for using a deadly 

weapon. We affirmed his conviction on direct appeal. (People v.

Hanes (Feb. 27, 2017, B269116) [nonpub. opn.].)

Hanes filed a petition for resentencing under section 1172.6

in October 2021.

2 The petition stated he “was convicted of 2nd

degree murder pursuant to the natural and probable 

consequences doctrine” and “could not now be convicted of . . .

murder because of changes made to Penal Code §§ 188 and 189, 

effective January 1, 2019.” The trial court appointed counsel and 

heard the petition on February 2, 2022. It found Hanes “failed to 

make a prima facie showing that he is entitled to relief under 

[section 1172.6].” He appealed. 

We appointed counsel to represent Hanes in this appeal. 

After examining the record, counsel filed a brief raising no issues 

as contemplated in People v. Serrano (2012) 211 Cal.App.4th 496, 

501 (Serrano). Hanes subsequently filed a 24-page supplemental 

2 Section 1172.6, subdivision (a) provides, in relevant part, 

“A person convicted of felony murder or murder under the

natural and probable consequences doctrine . . . 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 murder . . . following a trial . . . . [¶] (3) The 

petitioner could not presently be convicted of murder . . . because 

of changes to Section 188 or 189 made effective January 1, 2019.”
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letter brief enumerating the reasons he believed the court should 

have granted his petition.

Because this is an appeal from an order denying 

postconviction relief, Hanes is not entitled to our independent 

review pursuant to People v. Wende (1979) 25 Cal.3d 436. (People 

v. Serrano, supra, 211 Cal.App.4th at p. 501; People v. Cole (2020) 

52 Cal.App.5th 1023, 1039-1040, review granted Oct. 14, 2020, 

S264278.) We do, however, consider the issues raised in his

supplemental brief. (Cole, at p. 1040.)

Hanes contends the trial court instructed the jury on the 

doctrine of natural and probably consequences when it gave them 

a modified version of CALCRIM No. 520 which stated, in relevant 

part: “The defendant acted with implied malice if: [¶] 1. He 

intentionally committed an act; [¶] 2. The nature and probable 

consequences of the act were dangerous to human life; [¶] 3. At the 

time he acted, he knew his act was dangerous to human life; [¶]

AND [¶] 4. He deliberately acted with conscious disregard for 

human life.” (Italics added.) Hanes argues this language entitles 

him to resentencing under section 1172.6 because it led jurors to 

convict him on the second degree murder charge. He cites jurors’ 

questions about the meaning of “acts” in the first degree murder 

instruction, CALCRIM No. 521, and the trial court’s response to 

those questions, as steering jurors toward the above language at 

a critical time in their deliberation. 

Hanes assumes section 1172.6 applies whenever jurors 

were instructed by the trial court to consider the “natural and 

probable consequences” of a homicide defendant’s act or failure to 

act. He reads the statute too broadly. Section 1172.6 addresses

only those convictions based on the defendant’s vicarious liability

for a killing perpetrated by another. The Legislature amended 
4

prior law 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); People v. Gentile (2020) 10 Cal.5th 830, 842, 

superseded by statute as stated in People v. Birdsall (2022) 77 

Cal.App.5th 859, 866, fn. 19.) Hanes conflates the “natural and 

probable consequences” element in CALCRIM No. 520 with the 

natural and probable consequences doctrine used to establish the 

guilt of an accomplice or aider and abettor for murder under prior 

law.

3 Section 1172.6 applies only to the latter. 

Section 1172.6 would not prevent Hanes’s conviction if he 

were tried again under California’s amended homicide statutes. 

Prosecutors presented evidence that Hanes stabbed Beddow 

when she threatened to end their relationship. Hanes 

maintained he acted in self-defense after Beddow attacked him 

during a methamphetamine-induced psychosis. His conviction 

rested on jurors finding his act or acts directly caused the victim’s 

stabbing death, not on his vicarious liability for a killing that 

occurred in the course of a separate target offense. 

Hanes’s supplemental brief describes his trouble 

communicating with counsel and the court during his section 

1172.6 proceedings. He also takes issue with the final hearing 

going forward without him present. While these may be genuine 

3 The doctrine provided that “‘[a] person who knowingly 

aids and abets criminal conduct is guilty of not only the intended 

crime [target offense] but also of any other crime the perpetrator 

actually commits [nontarget offense] that is a natural and 

probable consequence of the intended crime.’” (See People v. 

Medina (2009) 46 Cal.4th 913, 920.)
5

sources of frustration for Hanes, they do not address his petition’s 

substantive defects. In addition, the record confirms the trial 

court considered his supporting papers (including his full 

response to the People’s opposition) and the arguments of 

appointed counsel at the hearing. His supplemental brief raises 

no other arguable issue on appeal from the order denying his 

petition. As such, we dismiss the appeal as abandoned. (People 

v. Serrano, supra, 211 Cal.App.4th at pp. 503-504.)

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED.

PERREN, J.*

We concur:

GILBERT, P.J.

YEGAN, J.

* Retired Associate Justice of the Court of Appeal, Second 

Appellate District, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
6

Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Richard B. Lennon, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.