People v. Hanes CA2/6

California Court of Appeal Sep 12, 2022 No. B318807Unpublished

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Holding. The court dismissed the appeal because the defendant failed to raise any arguable issues regarding the denial of his petition for resentencing under Penal Code section 1172.6.

Issues

Whether the trial court erred in denying a petition for resentencing under Penal Code section 1172.6.
Whether the use of the phrase 'natural and probable consequences' in a jury instruction for implied malice murder triggers eligibility for relief under section 1172.6.

Disposition. dismissed

Quotations verified verbatim against the opinion

“Section 1172.6 addresses only those convictions based on the defendant’s vicarious liability for a killing perpetrated by another.”

“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.”

“As such, we dismiss the appeal as abandoned.”

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B318807 (Super. Ct. No. 14C-21538) Plaintiff and Respondent, (San Luis Obispo County)

PHILIP THOMAS HANES,

Defendant and Appellant.

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.

All statutory references are to the Penal Code. Effective 1

June 30, 2022, section 1170.95 was renumbered as section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).

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

People v. Hanes CA2/6

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

PHILIP THOMAS HANES,

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