People v. Hunt CA3

Filed 10/17/22 P. v. Hunt CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092335

Plaintiff and Respondent, (Super. Ct. No. CR57914)

v. OPINION ON TRANSFER

MICHAEL AVERY HUNT,

Defendant and Appellant.

Defendant Michael Avery Hunt appeals the trial court’s denial of his petition for resentencing under Penal Code former section 1170.95 (now renumbered as section 1172.6 (Stats. 2022, ch. 58, § 10); statutory section citations that follow are found in the Penal Code unless otherwise stated.) Defendant contends the trial court incorrectly relied on the opinion deciding the direct appeal from his conviction without considering several items of evidence he wanted to proffer and that the court lacked sufficient evidence to conclude he was ineligible for relief beyond a reasonable doubt. He also asserts he received ineffective assistance of counsel based on defense counsel’s failure to present the same evidence to the court. We filed an unpublished opinion on April 12, 2022, in which we concluded any error by the trial court was harmless and affirmed the trial court’s order. Our Supreme Court granted review of the matter on June 29, 2022, and transferred the case to us with

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directions to vacate our previous decision and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch. 551). The parties submitted supplemental briefing in which they agree the case should be remanded to the trial court. After reconsidering the matter, we will reverse the trial court’s order and remand the matter for a new evidentiary hearing.

FACTS AND HISTORY OF THE PROCEEDINGS The People request we take judicial notice of the unpublished opinion from defendant’s direct appeal, People v. Hunt (Mar. 9, 1982, 3 Crim. 11199) [nonpub. opn.] (Hunt), and we will grant the request to provide context for defendant’s petition. (Evid. Code, §§ 459, subd. (a), 452, subd. (d).) In our opinion, we described the underlying facts of defendant’s conviction: “On January 15, 1980, defendant and an accomplice, Michael Rinehart, accosted [the victim], the manager of a convenience market outside the store at about 4:30 p.m. [The victim] was carrying a bag containing the daily bank deposit of monies received from the previous 24 hours. Rinehart displayed a gun. [The victim] attempted to walk back to the store, whereupon shots were fired. Defendant shot [the victim] in the back and Rinehart shot him from the front. The cause of death was the bullet which entered [the victim’s] back. The bag with the money was taken by defendant and Rinehart who fled by car.” (Hunt, supra, 3 Crim. 11199.) The prosecution charged defendant with robbery (§ 211) and first degree murder in the course of the robbery (§ 187), and alleged firearm use enhancements (§§ 12022, subd. (a), 12022.5) as to both counts. (Hunt, supra, 3 Crim. 11199.) “A jury found him guilty on all charges and that the weapon allegations and the special circumstances as to the murder were true.” (Ibid.) Defendant appealed and challenged the sufficiency of the evidence for premeditation as to the murder conviction. (Hunt, supra, 3 Crim. 11199.) We rejected