People v. Huber CA2/5

Filed 12/30/20 P. v. Huber CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE

THE PEOPLE, B301360

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA048904)
v.

EILEEN MARIE HUBER,

Defendant and Appellant.

APPEAL from an order o

Filed 12/30/20 P. v. Huber CA2/5
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE


THE PEOPLE,                                             B301360

        Plaintiff and Respondent,                       (Los Angeles County
                                                        Super. Ct. No. BA048904)
        v.

EILEEN MARIE HUBER,

        Defendant and Appellant.


     APPEAL from an order of the Superior Court of Los
Angeles County, Bruce F. Marrs, Judge. Reversed.
     Valerie G. Wass, under appointment by the Court of
Appeal, for Defendant and Appellant.
     No appearance by Plaintiff and Respondent.
      A jury convicted Eileen Marie Huber (defendant) and her
four co-defendants of multiple crimes arising out of a two-month
crime spree in the summer of 1991 that left five people dead. We
are asked to decide whether the trial court erred in denying her
more recent Penal Code section 1170.95 petition for resentencing
without first appointing counsel for her.

                         I. BACKGROUND
       Among the specific offenses for which defendant was found
guilty were three first degree murder convictions for her role in
killing Jose Avina, Willie Sams, and Shirley Denogean. As to
each of these murders, the jury found two special circumstance
allegations true: that defendant “intentionally killed the victim
while lying in wait, within the meaning of [Former Penal Code]
Section 190.2(a)(15) and while “engaged in the commission of the
crime of Second Degree Robbery . . . , within the meaning of
[Former Penal Code] Section 190.2(a)(17).”1 As to the murder of
victim Denogean only, the jury also found true a multiple murder
special circumstance (Former Pen. Code, § 190.2, subd. (a)(3)).
The trial court sentenced defendant to three terms of life in
prison without the possibility of parole.
       On direct appeal, this court affirmed the judgment with
modifications. (People v. Hubbard, et al. (Oct. 3, 1994, B074596
[nonpub. opn.] (Hubbard).) Hubbard’s summary of the evidence
indicates defendant was not prosecuted as the murder victims’
actual killer, but the jury was instructed on aiding and abetting
principles and principles of felony murder.


1
      The quoted language is taken from the verdict forms the
jury completed.




                                2
       Among the arguments defendant raised on direct appeal
was the argument (also made by her co-defendants) that the trial
court erred by instructing the jury on lying in wait murder and
on special circumstances liability with CALJIC No. 8.80.1. The
opinion quotes CALJIC No. 8.80.1, as given to the jury, as
follows: “‘If you find that a defendant was not the actual killer of
a human being or if you are unable to decide whether the
defendant was the actual killer or an aider and abettor or co-
conspirator, you cannot find the special circumstance to be true
as to that defendant unless you are satisfied beyond a reasonable
doubt that such defendant, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested or assisted
any actor in the commission of the murder in the first degree or
with reckless indifference to human life as a major participant
aided, abetted, counseled, commanded, induced, solicited,
requested or assisted in the commission of the crime of Penal
Code section 190 subdivision (a) subdivision (17), crime [sic]
which resulted in the death of a human being.’”
       Hubbard rejected both of these arguments. The opinion
holds there was substantial evidence the murders were
committed under circumstances constituting lying in wait and, as
to defendant’s CALJIC No. 8.80.1 assignment of error, that it was
forfeited and meritless anyway because there was substantial
evidence defendant and her conspirators were major participants
who acted with reckless indifference to human life. Hubbard
does not decide, however, whether there was evidence that would
support finding defendant guilty of murder as a direct aider and
abettor. (See generally People v. McCoy (2001) 

25 Cal. 4th 1111

,
1118 [a direct aider and abettor “must know and share the
murderous intent of the actual perpetrator”].)




                                 3
       Long after this court resolved defendant’s direct appeal,
defendant petitioned for resentencing pursuant to Penal Code
section 1170.95, which was enacted as part of Senate Bill 1437
(2017-2018 Reg. Sess.). The trial court denied defendant’s
petition without first appointing counsel for her as she requested,
although the court did receive an opposition to her resentencing
petition filed by the People. The trial court accomplished its
denial via a two-page, check-the-box order that found: “The
appellate opinion [i.e., Hubbard] affirming [defendant’s]
conviction and sentence reflects that [defendant] was not the
actual killer and was convicted of murder on a theory of being a
direct perpetrator and with the intent to kill or a major
participant and with reckless indifference to human life.
(Opinion, pg. 26).”2
       Defendant noticed an appeal from the trial court’s denial of
her Penal Code section 1170.95 petition. This court appointed
counsel to represent her, and after examining the record, counsel
initially filed an opening brief pursuant to People v. Wende (1979)

25 Cal. 3d 436

that raised no issues, asked us to independently
review the record, and included a declaration from counsel
stating she “remain[ed] available to brief any issues that this
Court requests.”
       In a June 30, 2020, order, we requested supplemental
briefing from defendant’s appointed counsel to address “whether


2
       Page 26 of Hubbard is the aforementioned portion of the
opinion that holds substantial evidence supports a conclusion
that the defendants who “did not fire the fatal shots” were
nevertheless major participants who acted with reckless
indifference to human life.




                                 4
reversal is required in light of People v. Smith (2020) 

49 Cal. App. 5th 85

[, review granted July 22, 2020, S262835 (Smith)],
People v. Torres (2020) 

46 Cal. App. 5th 1168

[, review granted
June 24, 2020, S262011], or People v. Lewis (2020) 

43 Cal. App. 5th 1128

[, review granted Mar. 18, 2020, S260598].” We
also directed the Attorney General to file a response to defense
counsel’s supplemental brief. No such response was forthcoming,
however. We accordingly decide the appeal on the record as it
stands, without the Attorney General’s participation. (See Cal.
Rules of Court, rule 8.360(c).)

                          II. DISCUSSION
       Penal Code section 1170.95 was enacted as part of Senate
Bill 1437, which “amend[ed] 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).) The statute creates “a petitioning process by
which a defendant convicted of murder under a felony murder [or
natural and probable consequences murder] theory of liability
could petition to have his conviction vacated and be resentenced.
[Penal Code s]ection 1170.95 initially requires a court to
determine whether a petitioner has made a prima facie showing
that he or she falls within the provisions of the statute as set
forth in subdivision (a), including that ‘(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




                                 5
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 [Penal Code s]ection 188 or 189 made effective
January 1, 2019.’ [Citations.] If it is clear from the record of
conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. [Citation.]
If, however, a determination of eligibility requires an assessment
of the evidence concerning the commission of the petitioner’s
offense, the trial court must appoint counsel and permit the filing
of the submissions contemplated by [Penal Code] section 1170.95.
[Citations.]” 

(Smith, supra

, 49 Cal.App.5th at 92, rev. gr.)
       Here, the only record that was before the trial court when it
denied defendant’s petition—without first appointing counsel—
was this court’s opinion in Hubbard. The trial court’s order
concedes defendant was not the actual killer but apparently
determines she was ineligible for Penal Code section 1170.95
relief as a matter of law because Hubbard held there was
substantial evidence she was a major participant in the murders
who acted with reckless indifference to human life.3 Hubbard’s


3
       The phrasing in the order is somewhat confused. Relying
on page 26 of Hubbard, the order states defendant “was convicted
of murder on a theory of being a direct perpetrator and with the
intent to kill or a major participant and with reckless indifference
to human life.” It is true that Hubbard quotes an instruction
that required the jury to find, if it found a special circumstance
true, either that defendant was a direct aider and abettor who
harbored an intent to kill or was a major participant who acted



                                 6
holding, however, came well before our Supreme Court’s decisions
People v. Banks (2015) 

61 Cal. 4th 788

(Banks) and People v.
Clark (2016) 

63 Cal. 4th 522

(Clark). As we have held, such a pre-
Banks and Clark holding does not establish defendant is
ineligible for Penal Code section 1170.95 relief as a matter of law.
(People v. York (2020) 

54 Cal. App. 5th 250

, 258, review granted
Nov. 18, 2020, S264954; Smith, 

supra, 49 Cal. App. 5th at 92

-93,
rev. gr.)
         It may ultimately turn out that defendant is ineligible for
relief as to at least one of her murder convictions because her
conspiracy conviction—if predicated on proper instructions—
establishes she must have harbored an intent to kill at least one
of the victims.4 (See generally People v. Swain (1996) 

12 Cal. 4th 593

.) And it may also be true, upon a fuller examination of the
evidence relevant to whether defendant had an intent to kill, that
defendant is ineligible for relief on more than one, or all, of her
murder convictions. 

(Smith, supra

, 49 Cal.App.5th at 92, rev. gr.
[“If . . . a determination of eligibility requires an assessment of


with reckless indifference to human life. But Hubbard concludes
substantial evidence supported only the latter of these two
possibilities, which was sufficient to affirm on that ground on
direct appeal. Nothing in Hubbard resolves on which of these
two theories the jury’s special circumstances findings rests or
assesses the sufficiency of the evidence of direct aiding and
abetting.
4
      CALJIC No. 8.80.1 appears to have (erroneously) permitted
the jury to make a multiple murder special circumstance finding
without concluding she actually killed or intended to kill one of
the victims. (People v. Mora and Rangel (2018) 

5 Cal. 5th 442

,
495.)




                                 7
the evidence concerning the commission of the petitioner’s
offense, the trial court must appoint counsel and permit the filing
of the submissions contemplated by [Penal Code] section
1170.95”].) But the trial court will have to sort all this out on
remand, with the benefit of input from appointed counsel and by
following the procedure prescribed by Penal Code section
1170.95, subdivision (c). On the slim record before us, there is no
proper basis for the trial court’s finding that defendant is entirely
ineligible for relief as a matter of law.




                                  8
                          DISPOSITION
       The order denying defendant’s Penal Code section 1170.95
petition is reversed. The cause is remanded with instructions to
appoint counsel for defendant and to thereafter proceed
consistent with this opinion and Penal Code section 1170.95.

    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                           BAKER, J.

We concur:



     RUBIN, P. J.



     KIM, J.




                                9

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