P. v. Hutchinson

Filed 4/30/20 P. v. Hutchinson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
ANTONE HUTCHINSON,
Defendant and Appellant.
B299078
(Los Angeles County
Super. Ct. No. NA102378)
APPEAL from an order of the Superior Court of Los
Angeles County, Richard R. Romero, Judge. Affirmed.
Vanessa Place, 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, Acting
Senior Assistant Attorney General, Amanda V. Lopez and Heidi
Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________

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This appeal requires us to decide whether a defendant who
pleads guilty to unpremeditated attempted murder is entitled to
resentencing pursuant to Penal Code section 1170.95 and Senate
Bill No, 1437. Our answer is no.
FACTUAL BACKGROUND
In 2017, appellant Antone Hutchinson pled guilty to one
count of unpremeditated attempted murder, for which he was
sentenced to the high term of nine years; and one count of
discharging a firearm at an inhabited dwelling, for which he was
sentenced to one-third of the mid-term of one year eight months.
He also admitted a gang allegation, for which he received an
additional 10 years. Hutchinson’s aggregate sentence is 20 years
eight months in prison.
We do not have the record of conviction before us on appeal.
With no preliminary hearing transcript, information, probation
report, or other document to provide the facts underlying
Hutchinson’s offense, we rely on Hutchinson’s reply to the
People’s opposition to his petition for resentencing to provide
skeletal details of the offense. On appeal neither party disputes
the facts of the offenses as set out in this opinion. Details of what
transpired in the trial court with respect to the guilty plea,
however, remain opaque.
Upon their request, appellant Hutchinson agreed to give
Deshawn Freeman and Dyllin Pressey a ride to a store. When
Hutchinson later pulled over, Freeman and Pressey exited the
car and began shooting. Four people were injured. Freeman
then ordered Hutchinson to drive across town, where Freeman
and Pressey again exited the car and one of them shot at a
building.

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PROCEDURAL BACKGROUND
On January 11, 2019, Hutchinson filed a petition for
resentencing under Penal Code section 1170.95.1 Hutchinson
alleged: (1) a complaint, information, or indictment was filed
against him that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and
probable consequences doctrine; (2) he pled guilty or no contest to
first or second degree murder in lieu of going to trial because he
believed he could have been convicted of first or second degree
murder at trial pursuant to the felony murder rule or the natural
and probable consequences doctrine; and (3) he could not now be
convicted of first or second degree murder because of changes
made to Sections 188 and 189.
The People opposed the petition on statutory and
constitutional grounds. The constitutional grounds are not at
issue on appeal so we do not discuss them. As to the statutory
grounds, the People argued Hutchinson was not convicted of
murder under a felony murder or natural and probable
consequences theory. Rather, he was convicted of attempted
murder. The People also argued section 1170.95 applies to
convictions for first or second degree murder only, not attempted
murder. The People concluded Hutchinson was not eligible for
resentencing because his culpability for attempted murder arose
from aiding and abetting the crimes to which he pled guilty.
In his reply, Hutchinson argued he could not have been
convicted of attempted murder under any theory other than the
natural and probable consequences doctrine because Freeman
1 All further references are to the Penal Code unless
otherwise indicated.

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was never charged with a crime related to the incident and
Pressey’s juvenile transfer hearing under Proposition 57 was still
pending in the juvenile court. Although he was not convicted of
murder, Hutchinson urged the court to conclude that the
Legislature intended to include within the ameliorative
provisions of Senate Bill No. 1437 the crime of attempted murder
based on the natural and probable consequences doctrine.
Hutchinson also alleged in his reply that he was factually
innocent of the charges and pleaded guilty because he could not
safely testify in his own behalf.
The court denied the section 1170.95 petition, finding
Hutchinson “was not convicted under a theory of felony murder
or natural and probable consequences. In fact, he was not
convicted of murder and pled to attempted murder and shooting
at an inhabited dwelling with a gang allegation. Nor was he ever
charged with murder.”
Hutchinson filed a motion for reconsideration. The court
denied the motion, determining Hutchinson “necessarily would
have an intent to kill as an aider and abettor to attempted
murder. With an intent to kill, petitioner is not entitled to
resentencing.”2
Hutchinson timely appealed.
DISCUSSION
The doctrine of natural and probable consequences is an
aiding and abetting theory whereby a defendant guilty of one
crime (the target crime) is also held liable for a crime committed
2 All further references are to the Penal Code unless
otherwise indicated.

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by an accomplice (the nontarget crime) that a reasonable person
would know was a natural and probable consequence of the
target crime committed by the defendant. (CALCRIM 402;
People v. Chiu (2014) 59 Cal.4th 155, 161-162.)
In 2018, the Legislature enacted Senate Bill No. 1437 to
“amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, 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).)
Senate Bill No. 1437 amended the definition of malice in section
188 to provide, “Except as stated in subdivision (e) of Section 189,
in order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
As of January 1, 2019, the effective date of Senate Bill
No. 1437, a person can no longer be liable for murder under the
natural and probable consequences doctrine. (People v. Lopez
(2019) 38 Cal.App.5th 1087, 1093 (Lopez).)
Pursuant to Senate Bill No. 1437, the Legislature also
added section 1170.95, which permits those “convicted of . . .
murder under a natural and probable consequences theory” to
“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.” (§ 1170.95, subd. (a).)
The court may only grant the petition upon a prima facie showing
that: “(1) [a] complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed

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under a theory of felony murder or murder under the natural and
probable consequences doctrine[;] (2) [t]he 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[; and]
(3) [t]he petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a).) Those convicted of
murder under a natural and probable consequences theory whose
convictions are not final may not obtain relief on direct appeal;
instead they must use the petitioning procedure outlined in
Section 1170.95. (People v. Martinez (2019) 31 Cal.App.5th 719,
722; People v. Anthony (2019) 32 Cal.App.5th 1102, 1147.)
Two cases have held that all ameliorative provisions in
Senate Bill No. 1437 do not apply to final or nonfinal convictions
for attempted murder under a natural and probable consequences
theory. (Lopez, supra, 38 Cal.App.5th at p. 1093; People v. Munoz
(2019) 39 Cal.App.5th 738, 743 (Munoz).) Two cases have held
that although section 1170.95 is not available to those convicted
of attempted premeditated murder under a natural and
consequences theory, Senate Bill No. 1437 did eliminate liability
for attempted murder under a natural and probable consequences
theory. (People v. Medrano (2019) 42 Cal.App.5th 1001, 1008;
People v. Larios (2019) 42 Cal.App.5th 956, 996.) People v.
Medrano further held that Senate Bill No. 1437 is retroactive to
nonfinal judgments on appeal. (Medrano, at p. 1008.) The issue
is now under review by the California Supreme Court in People v.
Lopez, review granted November 13, 2019, S258175; People v.
Munoz, review granted November 26, 2019, S258234; People v.
Medrano, review granted March 11, 2020, S259948; People v.

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Larios, review granted February 26, 2020, S259983; and People v.
Mejia, review granted January 2, 2020, S258796. Specifically,
the Supreme Court asked for briefing on the following two issues:
“(1) Does Senate Bill No. 1437 (Stats. 2018, ch. 1015) apply to
attempted murder liability under the natural and probable
consequences doctrine? (2) In order to convict an aider and
abettor of attempted willful, deliberate and premeditated murder
under the natural and probable consequences doctrine, must a
premeditated attempt to murder have been a natural and
probable consequence of the target offense? In other words,
should People v. Favor (2012) 54 Cal.4th 868 [143 Cal.Rptr.3d
659, 279 P.3d 1131] be reconsidered in light of Alleyne v. United
States (2013) 570 U.S. 99 [186 L.Ed.2d 314, 133 S.Ct. 2151]
and People v. Chiu (2014) 59 Cal.4th 155 [172 Cal.Rptr.3d 438,
325 P.3d 972]?” (People v. Lopez, S258175, Supreme Ct. Mins.
Nov. 13, 2019.)
As the law stands today, no court has held that persons
convicted of attempted murder whose convictions are final are
eligible for relief under Section 1170.95.
Hutchinson urges us to so hold. He raises three
arguments: (1) principles of statutory interpretation reveal the
Legislature intended section 1170.95 to apply to attempted
murder convictions; (2) excluding those convicted of attempted
murder from obtaining relief under 1170.95 violates the right to
equal protection under the California and United States
Constitutions; and (3) because attempted murder requires a
finding the defendant personally harbored the intent to kill, i.e.,
malice, and because malice can no longer be imputed vicariously
to a defendant under the natural and probable consequences
doctrine, the legislature must have intended to eliminate the

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applicability of the natural and probable consequences to
attempted murder. For the last argument, appellant relies on
People v. Fontenot (2019) 8 Cal.5th 57 (Fontenot), People v. Chiu,
supra, 59 Cal.4th 155, People v. Favor (2012) 54 Cal.4th 868
(Favor), and People v. Mejia, supra, 40 Cal.App.5th 42, which we
discuss below.
Our district has previously rejected appellant’s arguments.
In Lopez and Munoz, our colleagues in the Seventh and Fourth
Divisions, respectively, thoroughly addressed whether Senate Bill
No. 1437 applies to attempted murder convictions and concluded
it does not. We agree with and do not here repeat their reasoned
analyses and conclusions.
Nevertheless, we make three notes.
First, Hutchinson alleges the trial court incorrectly
concluded Hutchinson, as an aider and abettor to attempted
murder, must have had the intent to kill.3 Yet, this was a plea
for which Hutchinson has provided no record. We do not know
under what theory Hutchinson entered his plea because
Hutchinson has not carried his burden as appellant to provide an
adequate record on appeal. Nor have we been provided with a
charging document. Consequently we do not know under what
alleged theories Hutchinson was prosecuted. We know, based on
his sentence of nine years, Hutchinson was convicted of un-
3 We must correct Hutchinson on one point: the court denied
Hutchinson’s motion for reconsideration, not the original petition,
based on its conclusion Hutchinson was a direct aider and
abettor. The trial court had already denied Hutchinson’s original
petition, finding Hutchinson was not convicted under a felony
murder or natural and probable consequences theory, and that he
was not convicted of murder at all.

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premeditated attempted murder as pre-meditated attempted
murder carries a mandatory statutory sentence of life with the
possibility of parole after seven years. (§§ 664 subd. (a); 3046,
subd. (a)(1).) In any event, for all we know, Hutchinson admitted
facts at his plea establishing that Freeman or Pressey was the
direct perpetrator, whom he knowingly aided and abetted. We
don’t know, and the absence of that information renders it
impossible for us to accept as fact that Hutchinson pleaded guilty
under the natural and probable consequences theory of
culpability.
Nevertheless, the issue is moot because we conclude section
1170.95 decidedly does not apply to those convicted of attempted
murder under the natural and probable consequences doctrine.
Second, Hutchinson argues People v. Favor is now
disfavored precedent in light of Senate Bill No. 1437. In Favor,
the California Supreme Court held a defendant can be liable for
the nontarget offense of willful, deliberate, and premeditated
attempted murder under a natural and probable consequences
theory. (Favor, supra, 54 Cal.4th at p. 880.) In Mejia, the Fourth
District disagreed, and the issue is now under review by our
Supreme Court. (Mejia, supra, 40 Cal.App.5th at p. 50.)
Nonetheless, Favor remains good law until the Supreme Court
rules otherwise. (Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455.). This appeal involves a conviction for
attempted murder. If a defendant can be liable under a natural
and probable consequences theory for attempted premeditated
murder, it reasonably follows a defendant can be liable under the
same theory for an unpremeditated attempted murder.

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Finally, we find none of the cases relied upon by appellant
help to resolve the issue at hand. The analyses in People v.
Favor, People v. Mejia, and People v. Chiu deal with the distance
between a defendant’s culpability for the target crime and his or
her culpability for an attempted or completed murder committed
willfully and with premeditation and deliberation. Favor, Chiu,
and Mejia address whether the specific mens rea of willful and
deliberate premeditation can be permissibly imputed to the
perpetrator of the target crime under a natural and probable
consequences theory of liability. They are therefore not directly
applicable to the attempted murder conviction here.
The last case relied upon by appellant, Fontenot, supra,
8 Cal.5th 57, analyzed when an attempt can properly be
considered a lesser included offense of a completed crime. (Id. at
p. 65.) “Murder, for instance, requires an act causing the death of
another, but not the intent to kill, as implied malice will suffice.
Attempted murder, which does require intent to kill, is therefore
not a lesser included offense of murder.” (Id. at p. 80, fn. 2. (conc.
opn. of Kruger, J.).)
Hutchinson acknowledges, and we agree, that whether
attempted murder is a lesser included offense of murder is
irrelevant to the issue on appeal. Nonetheless, he posits Fontenot
held “to be guilty of an attempt, the mens rea of the aiding and
abetting defendant must be at least equal to that required by the
completed crime. ([Fontenot], supra, 8 Cal.5th at p. 70.)” Not so.
Fontenot nowhere analyzes the liability of an aider and abettor of
an attempted crime. We do not find Fontenot apt to the factual or
procedural posture of this appeal.

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Ultimately, whether Senate Bill No. 1437 applies to
attempted murder was for the Legislature to decide. We cannot
escape the fact that the plain language of Senate Bill No. 1437
and the legislative history behind it clearly demonstrate the
Legislature did not intend to include attempted murder within
the ambit of its ameliorative provisions.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
WILEY, J.

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