Filed 9/10/20 P. v. Wilson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072959
v. (Super.Ct.No. RIF079858)
LESTER HARLAND WILSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Eric A. Keen, Judge.
Affirmed.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Alana Cohen
Butler and TeresaTorreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant Lester Harland Wilson was sentenced to death and his
direct appeal to the California Supreme Court is currently pending. After the provisions
of Senate Bill No. 1437 (2017-2018 Reg. Sess.) went into effect, defendant petitioned the
superior court pursuant to Penal Code section 1170.95 to vacate his first degree murder
conviction and resentence him, arguing he was not the actual killer and can no longer be
found guilty of first degree murder under the natural and probable consequences doctrine
or under the felony-murder rule. The People opposed the petition, contending Senate Bill
No. 1437 is unconstitutional. Defendant filed no reply. And at the hearing, counsel
appointed for defendant agreed with the prosecutor’s assertion that the record of
conviction demonstrated defendant was the actual killer and, therefore, he is not eligible
for relief under Penal Code section 1170.95. The superior court denied defendant’s
petition without prejudice.
Defendant now appeals. But he does not contend the superior court erred by
finding he is ineligible for relief under Penal Code section 1170.95. Instead, he argues
the superior court had no jurisdiction to rule on the petition because his judgment of
death is on appeal before the Supreme Court. Defendant invited the error he now
challenges. We find no error and affirm.
I.
PROCEDURAL BACKGROUND
In 2000, a Riverside County jury found defendant guilty of first degree murder,
among other crimes, found true special circumstances, and set the penalty as death. Eight
years later, the Supreme Court affirmed defendant’s convictions but reversed the death
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sentence. (People v. Wilson (2008) 44 Cal.4th 758.) Two years later, a second jury
found true special circumstances, and the trial court sentenced defendant to death.
Defendant’s direct appeal from the judgment of death is currently pending before the
California Supreme Court. (People v. Wilson, S189373.)1
Effective January 1, 2019, Senate Bill No. 1437 prospectively amended Penal
Code sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to limit the application of the
felony-murder rule and the crime of murder under the natural and probable consequences
doctrine to persons who are the actual killer, who act with the intent to kill, or who are a
major participant in a felony and who act with reckless indifference for human life. In
addition, Senate Bill No. 1437 enacted Penal Code section 1170.95 (Stats. 2018,
ch. 1015, § 4), which permits persons previously convicted of first or second degree
murder under the felony-murder rule or the natural and probable consequences doctrine,
but who could not be so convicted under the amendments enacted by Senate Bill
No. 1437, to petition the superior court to vacate their murder convictions and to
resentence them on any remaining counts.
1 The court has reviewed appellant’s request for judicial notice filed November
14, 2019. On December 2, 2019, we reserved ruling on the request for consideration with
the appeal. We now grant defendant’s unopposed request for judicial notice of the
Supreme Court docket in his pending appeal. (Evid. Code, §§ 452, 459.)
3
On January 24, 2019, defendant filed a petition for resentencing in the superior
court requesting relief under Penal Code section 1170.95. The district attorney opposed
the petition, arguing Senate Bill No. 1437 was unconstitutional.2 The trial court
appointed counsel for defendant, but counsel filed no written reply to the opposition.
At the hearing on the petition, the prosecutor argued that, even if the court were to
conclude Senate Bill No. 1437 was constitutional, the opinion of the Supreme Court
affirming defendant’s first degree murder conviction demonstrated defendant beat,
tortured, and murdered the victim, so he was not eligible for relief under Penal Code
section 1170.95. The trial court asked, “So it seems like he’s the actual killer?” The
prosecutor answered, “Yes,” and defendant’s appointed attorney replied, “I have no
reason to doubt what [the prosecutor] said based upon my reading of the case.”
Therefore, the trial court denied the petition, “without prejudice.” Defendant timely
appealed.
II.
DISCUSSION
On appeal, defendant argues the superior court lost jurisdiction over his case once
the appeal from his sentence of death was perfected, and it therefore lacked jurisdiction to
make any ruling on his petition. He contends the order denying the petition must be
vacated. The People respond that defendant did not object to the ruling, and he agreed
2This court recently rejected the same arguments made by the prosecutor and
concluded Senate Bill No. 1437 is constitutional. (People v. Johns (2020) 50 Cal.App.5th
46.)
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with the prosecutor that his petition failed to make a prima facie showing of relief, so he
“should not be permitted to complain on appeal when he agreed that the petition should
be denied.” In addition, the People argue that, even if defendant did not forfeit his claim
of error, there was no error because the order denying defendant’s petition did not affect
the judgment on appeal. We agree.
Generally, “[t]he filing of a valid notice of appeal vests jurisdiction of the cause in
the appellate court until determination of the appeal and issuance of the remittitur.”
(People v. Perez (1979) 23 Cal.3d 545, 554.) Thus, the filing of a valid notice of appeal
deprives the trial court of jurisdiction to make any order affecting the judgment. (In re
Osslo (1958) 51 Cal.2d 371, 379-380.)
There is little question the trial court lacked jurisdiction to grant defendant’s
petition for resentencing because such an order would have affected the judgment of
death that is on appeal or interfered with the Supreme Court’s exclusive appellate
jurisdiction. However, the automatic stay on appeal did not prevent the trial court from
denying the petition without prejudice (whether on the merits or for lack of jurisdiction)
because the order will have no effect whatsoever on the judgment. (Townsel v. Superior
Court (1999) 20 Cal.4th 1084, 1089-1091 [trial court had jurisdiction to order appointed
appellate counsel to have no contact with jurors because the order addressed collateral or
supplemental issues unrelated to judgment of death on appeal, and the order did not
interfere with Supreme Court’s jurisdiction].)
Therefore, we find no error and affirm the order.
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III.
DISPOSITION
The order denying defendant’s petition for resentencing pursuant to Penal Code
section 1170.95 is affirmed. The denial of defendant’s petition is without prejudice to
him filing a new one in the future that addresses the same arguments made in the instant
petition.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
FIELDS
J.
MENETREZ
J.
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