Filed 10/23/20 P. v. Lawson CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B296634
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BA281894)
v.
WILBUR LAWSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Lisa B. Lench, Judge. Reversed and remanded.
Boyce & Schaefer and Robert E. Boyce, 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, Assistant Attorney
General, Charles S. Lee and Stephanie C. Santoro, Deputy Attorneys
General, for Plaintiff and Respondent.
By amended information on May 30, 2006, defendant Wilbur
Lawson was charged alongside codefendants Dontae Ray Williams and
Sean Thomas with murder (Pen. Code, § 187, subd. (a), count 1) and
robbery (id., § 211, count 2).1 The information alleged that the murder
had been committed during the commission of the robbery (§ 190.2,
subd. (a)(17)). On both counts, the information alleged inter alia that
defendant personally discharged or used a firearm (§ 12022.53, subds.
(b)–(d)), and that a principal personally used a firearm (former § 12022,
subd. (a)(1)).
On January 30, 2007, a jury convicted defendant of first degree
felony murder and second degree robbery, and found true the
allegations that the murder had occurred while defendant committed
the robbery, and that a principal had been armed with a firearm. The
jury was unable to reach a decision on whether defendant personally
discharged or used a firearm, and the court declared a mistrial as to
those special circumstance allegations. Defendant was sentenced to life
imprisonment without the possibility of parole, plus one year as to the
murder count, and four years as to the robbery count, which the court
stayed (§ 654).2
In 2019, defendant filed a petition for resentencing under section
1170.95, which provides that persons who were convicted under
1 Undesignated statutory references are to the Penal Code. Neither
codefendant is a party to this appeal.
2 During the sentencing hearing, the court dismissed the section
12022.53, subdivisions (b) through (d) allegations against defendant.
2
theories of felony murder or murder under the natural and probable
consequences doctrine, and who could no longer be convicted of murder
following the enactment of Senate Bill No. 1437 (S.B. 1437), may
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).) The trial
court summarily denied defendant’s petition in a written memorandum.
The court noted that section 1170.95 “may” apply to defendant, because
our prior opinion affirming his conviction noted that the identity of the
actual shooter had not been clearly established at trial. However, the
trial court concluded defendant was ineligible for relief as a matter of
law because the jury had found true the robbery-murder special
circumstance (§ 190.2, subd. (a)(17)), which required the jury to find
that if defendant was not the actual killer, he aided and abetted the
murder with the intent to kill the victim, or was a major participant
who aided and abetted the robbery and acted with reckless indifference
to human life.
Defendant appeals from the trial court’s order, and contends that
the trial court’s summary denial of his petition should be reversed
because it relied solely on the robbery-murder special circumstance
finding in violation of People v. Torres (2020) 46 Cal.App.5th 1168
(Torres), review granted June 24, 2020, S262011. In Torres, Division
Five held that a trial court commits reversible error by summarily
denying a section 1170.95 petition based on the jury’s robbery-murder
special circumstance finding that predates People v. Banks (2015) 61
Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark).
(Torres, supra, at p. 1173.) The Attorney General contends that Torres
3
was incorrectly decided, and that we should instead follow People v.
Gomez (2020) 52 Cal.App.5th 1 (Gomez), review granted, S264033,
October 14, 2020.
Consistent with our prior decisions on the issue, we reverse the
trial court’s order in light of Torres, and remand the matter to allow the
trial court to determine whether defendant has made a prima facie
showing that he falls within the provisions of section 1170.95. Should
the court find defendant potentially eligible for resentencing, the trial
court must appoint counsel and order briefing.
FACTUAL BACKGROUND3
Defendant and Thomas’s trial was severed from that of Williams,
who was tried first. We summarize only the evidence presented at
defendant and Thomas’s trial.4
At approximately 6:45 p.m. on February 24, 2005, Brandin
Brinkley encountered defendant outside a 99¢ Store near Vermont and
61st Street. Defendant asked Brinkley where he could purchase gloves.
After Brinkley directed defendant to the 99¢ Store, Brinkley saw him
select a pair of black gloves and a pair of red and black gloves inside the
store. Brinkley left the store and went home.
3 We granted defendant’s request that we take judicial notice of the
appellate record from his prior appeal in People v. Williams et al. (May 20,
2008, B198076) [nonpub. opn.] (Lawson I).) We recite the factual and
procedural background from our prior opinion.
4 Defendant and Thomas did not present any evidence at trial.
4
Heng Bou testified that he was working in a doughnut store at
60th Street and Vermont on February 24, 2005. Approximately 20 to 30
minutes before he heard sirens and saw an ambulance, Bou saw two
young, Black males purchase doughnuts and sit inside the store; the
males left before Bou heard sirens.
Guadalupe Rivera testified that around 7:15 p.m. the night of the
shooting, she drove to pick up her brother, Osman Alvarado, near a
Dollar Warehouse located at Vermont and 60th Street. As she passed
by, she saw two men standing outside the store, together with a third
man wearing a mask. All three men were wearing hooded sweatshirts.
Rivera parked her car and watched the masked man—the shortest of
the three men outside the store—follow Alvarado into the Dollar
Warehouse.5 Rivera saw the masked man point a gun inside the store
while the other men stood outside, watching him through a glass
window. When the two men entered the store, the masked man
abruptly left, and Rivera heard gunshots. After the three men ran
away, another man emerged from the store holding his back and said he
had been shot.
Alvarado testified that when he approached the Dollar
Warehouse, he saw three men standing outside. One of the men wore a
mask, and the others had hoods over their heads. While inside the
store, Alvarado heard the masked man, accompanied by one of the other
men, demand money, and a cashier responded, “Okay.” When a
5 Investigating officers later established that defendant was several
inches shorter than Williams and Thomas.
5
struggle broke out involving the cashier, one of the men fired a gun, and
Alvarado sought cover. After the three men left, Alvarado saw money
on the floor near the store entrance. Alvarado never saw the robbers’
faces, and he was unsure whether the masked man or the other
accomplices held the gun.
Los Angeles Police Department officers responded and discovered
the victim (Avila Rodriguez) wounded and lying on the ground.
Rodriguez later died of a gunshot wound to his back. Officers found a
gun in front of the store, a pair of gloves 200 feet away from the store,
and sales tags for gloves in the doughnut shop’s trash bin. The gun,
which belonged to Rodriguez’s friend, was kept in the store for
Rodriguez’s protection. Thomas’s fingerprints were identified on the
sales tags, and his DNA matched DNA on one of the recovered gloves.
Investigating officers obtained video surveillance in the 99¢ Store
and the Dollar Warehouse, which were played for the jury. Video
footage of the 99¢ Store showed defendant purchasing two pairs of black
gloves and one pair of red gloves. Footage of the Dollar Warehouse
showed the shooter wearing red gloves, a hooded sweater, and
something covering his face. When Williams was arrested on March 6,
2005, he attempted to discard a firearm. A criminalist could not
determine whether the discarded gun had fired the bullet recovered
from Rodriguez’s body.
When defendant and Thomas were interviewed in April 2005, both
initially denied being around the area during the robbery and shooting.
After Thomas learned that police had recovered his DNA from a
recovered glove, he stated that he intended to participate in the
6
robbery, but later changed his mind and stood across the street from the
Dollar Warehouse while the robbery occurred. When he heard a
gunshot, he ran away. When defendant was shown photographs from
video surveillance of the 99¢ Store, he admitted that he had purchased
the gloves, but stated that he returned to his grandmother’s house a
half-mile away from the Dollar Warehouse. Defendant stated that he
decided not to participate in the robbery because he did not want to get
shot. He denied giving anyone the red gloves, though he could not
recall what he had done with them.
PROCEDURAL BACKGROUND
Defendant was charged with murder (§ 187, subd. (a), count 1)
and robbery (§ 211, count 2). As to count 1, the information alleged that
the murder was committed while defendant was engaged in the
commission of robbery (§ 190.2, subd. (a)(17)). As to counts 1 and 2, the
information alleged that defendant personally used and discharged a
firearm causing death (§ 12022.53, subds. (b)–(d)), and that a principal
in the crime was armed with a firearm (former § 12022, subd. (a)(1)).
Defendant pleaded not guilty to each count and denied the special
circumstance allegations.
Trial was by jury. The jury was instructed on felony murder, a
theory of culpability for first degree murder.6 The jury was also
6 The jury was instructed inter alia that “[e]very person who unlawfully
kills a human being during the commission of the crime of robbery is guilty of
the crime of murder.” The jury was also instructed that “[i]f a human being
is killed by any one of several persons engaged in the commission of the crime
7
instructed on the robbery-murder special circumstance as follows: “If
you find a defendant in this case guilty of murder of the first degree,
you must then determine if the following special circumstance is true or
not true: That the murder of David Rodriguez was committed during
the crime of robbery, within the meaning of [section] 190.2(a)(17).
[¶] . . . [¶] If you are satisfied beyond a reasonable doubt that a
defendant actually killed a human being, you need not find that the
defendant intended to kill in order to find the special circumstance to be
true. [¶] If you find that a defendant was not the actual killer of a
human being, 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, or assisted any
actor in the commission of the murder in the first degree, or with
reckless indifference to human life and as a major participant, aided,
abetted, or assisted in the commission of the crime of robbery, which
resulted in the death of a human being.”
During deliberations, the jury asked: “If we cannot unanimously
find on any ‘special circumstances’ question, is it ok to leave the
question unanswered?” The court responded that if the jury reached a
unanimous decision on a guilty verdict, but could not reach a
unanimous decision on the special allegations, the foreperson “should
complete the guilty verdict form, answer true or not true as to any
of robbery, all persons, who either directly and actively commit the act
constituting that crime, or who . . . aid, promote, encourage, or instigate by
act or advice its commission, are guilty of murder of the first degree, whether
the killing is intentional, unintentional, or accidental.”
8
special allegation for which you have unanimously agreed, and leave
blank any special allegation for which you are unable to agree.”
By verdict on January 30, 2007, the jury found defendant guilty of
first degree felony murder, and found true the allegation that the
murder was committed while defendant was engaged in the commission
of robbery (§ 190.2, subd. (a)(17)). It also found true the allegation that
a principal in the crime was armed with a firearm (former § 12022,
subd. (a)(1)). The jury left blank portions of the verdict form pertaining
to the allegations under section 12022.53, subdivisions (b) through (d).
The verdict form did not specify whether the jury found beyond a
reasonable doubt that defendant was the actual killer, intended to kill
as an aider and abettor, or acted as a major participant with reckless
indifference to human life.
The court sentenced defendant to life imprisonment without the
possibility of parole, plus one year for the murder count, and four years
for the robbery count, which the court stayed under section 654.
This court affirmed defendant’s judgment of conviction in 2008.
(Lawson I, supra, at p. 1.) We concluded that substantial evidence
supported defendant’s conviction for murder and robbery. (Id. at p. 7.)
In doing so, we noted that the evidence supported “the reasonable
conclusion that Lawson was the masked robber.” (Id. at p. 17.)
On January 25, 2019, defendant filed a petition for resentencing
pursuant to section 1170.95, claiming entitlement to relief because he
was convicted of first degree murder under a felony-murder theory or
the natural and probable consequences doctrine. Defendant requested
that counsel be appointed on his behalf.
9
In a written memorandum of decision, the trial court summarily
denied defendant’s petition. The court explained that based on the
statement of facts in our prior decision, “the identity of the actual
shooter was not clearly established at trial.” Thus, the court found
defendant “may” be entitled to relief of his first degree felony murder
conviction. Nevertheless, the court found defendant was ineligible for
relief as a matter of law because the jury had found the robbery-murder
special circumstance true, which required the jury to find that if
defendant was not the actual killer, he had intended to kill the victim or
was a major participant who acted with reckless indifference to human
life.
Defendant timely filed a notice of appeal from the order denying
his petition.
DISCUSSION
1. Governing Law
The legislature enacted S.B. 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); accord,
§ 189, subd. (e).)
S.B. 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted,
10
S260493, Mar. 18, 2020.) Under the revised section 188, subdivision
(a)(3), “‘[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43
Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who
were convicted of felony-murder or murder under the natural and
probable consequences doctrine, but who could not be convicted of
murder following S.B. 1437’s changes to sections 188 and 189, to
petition the sentencing court to vacate the conviction and resentence on
any remaining counts. (§ 1170.95, subd. (a).) A petition for relief under
section 1170.95 must include a declaration by the petitioner that he is
eligible for relief under section 1170.95 based on all the requirements of
subdivision (a), the superior court case number and year of the
petitioner’s conviction, and a request for appointment of counsel, should
petitioner seek appointment. (§ 1170.95, subd. (b)(2).)
If the petition includes the required information, subdivision (c) of
section 1170.95, prescribes “a two-step process” for the court to
determine if it should issue an order to show cause. (Verdugo, supra, 44
Cal.App.5th at p. 327.) The court first “review[s] the petition and
determine[s] if the petitioner has made a prima facie showing that the
petitioner falls within the provisions of this section.” (§ 1170.95, subd.
(c).) The court then appoints counsel, if requested, and reviews the
petition a second time after briefing by the parties to determine if
petitioner has established a prima facie case for relief. (Ibid.; see Lewis,
supra, 43 Cal.App.5th at p. 1140.) If the court concludes the petitioner
11
has made a prima facie showing, it must issue an order to show cause.
(§ 1170.95, subd. (c); Verdugo, supra, at p. 328.)
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction and to
recall the sentence and resentence the petitioner on any remaining
counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327, citing § 1170.95,
subd. (d)(1).) The parties may rely on the record of conviction or present
“new or additional evidence” to support their positions. (§ 1170.95,
subd. (d)(3).)
2. Analysis
Defendant contends the trial court’s summary denial of petition
was in error, because it could not rely on the jury’s special circumstance
finding made in 2007, before the Supreme Court’s decision in Banks and
Clark. We agree with defendant. The jury’s 2007 robbery-murder
special circumstance finding alone does not, as a matter of law, render
defendant ineligible for relief. (Torres, supra, 46 Cal.App.5th at
p. 1178.)
As amended by S.B. 1437, subdivision (e) of section 189 provides
that participation in the perpetration or attempted perpetration of an
enumerated felony (here, robbery) in which a death occurs renders a
person liable for murder “only if one of the following is proven: . . .
[¶] . . . [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted . . . or assisted the actual killer in the
commission of murder in the first degree [or] [¶] (3) The person was a
major participant in the underlying felony and acted with reckless
12
indifference to human life, as described in subdivision (d) of Section
190.2.”
Section 190.2, subdivision (d), in turn, provides that “every person,
not the actual killer, who, with reckless indifference to human life and
as a major participant, aids, abets . . . or assists in the commission of a
felony enumerated in paragraph (17) of subdivision (a) which results in
the death of some person or persons, and who is found guilty of murder
in the first degree therefor, shall be punished by death or imprisonment
in the state prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.” Section 190.2, subdivision (a)(17)
lists robbery as a qualifying felony.
The special circumstance finding in this case indicates that the
jury found that defendant was the actual killer, or “with the intent to
kill[,] aided, abetted, or assisted any actor in the commission of the
murder in the first degree, or with reckless indifference to human life
and as a major participant, aided, abetted, or assisted in the
commission of the crime of robbery, which resulted in the death of a
human being.” (Italics added.) At first blush, these findings appear to
be in agreement with the findings required for upholding a first (or
second) degree murder conviction following the issuance of S.B. 1437.
However, because the jury rendered its findings in 2007 (about eight
years prior to the Banks and Clark decisions) in a verdict that did
specify whether defendant was the actual killer, defendant is not
precluded from showing that he could not be convicted of first (or
13
second) degree murder as redefined by S.B. 1437. (Torres, supra, 46
Cal.App.5th at p. 1179.)
Torres explains: “[O]ur Supreme Court’s decisions, clarifying
what it means for an aiding and abetting defendant to be a ‘major
participant’ in an underlying felony and to act with ‘reckless
indifference to human life,’ construed section 190.2, subdivision (d) in a
significantly different, and narrower manner than courts had previously
construed the statute.” (Torres, supra, 46 Cal.App.5th at p. 1179.) The
Supreme Court in “Banks, supra, 61 Cal.4th 788, which elucidated the
meaning of ‘major participant,’ was decided in 2015, and Clark, supra,
63 Cal.4th 522, which addressed the meaning of ‘reckless indifference to
human life,’ was decided in 2016.” (Ibid.)
Both Banks and Clark were decided about eight years after the
jury made its findings in defendant’s case. Thus, when determining if
defendant “could be convicted today of first degree murder, we cannot
simply defer to the jury’s pre-Banks and Clark factual findings that
[defendant] was a major participant who acted with reckless
indifference to human life as those terms were interpreted at the time.”
(Torres, supra, 46 Cal.App.4th at p. 1179 [defendant’s claim that the
evidence presented against him failed to support robbery-murder
special circumstance after Banks and Clark requires resolution of
whether the facts as given “are legally sufficient in light of Banks and
Clark”]; accord, In re Miller (2017) 14 Cal.App.5th 960, 979–980.)
The Attorney General contends this court should not follow
Torres, but should instead follow Gomez, supra, 52 Cal.App.5th 1. In
14
Gomez, the petitioner appealed from the summary denial of her section
1170.95 petition and argued there was insufficient evidence to support
the jury’s pre-Banks and pre-Clark kidnapping and robbery special
circumstance findings. (Id. at p. 13.) In rejecting the contention, the
court of appeal noted that it had already upheld the special
circumstance findings in a prior appeal from the judgment. (Id. at
pp. 16–17.) It also held that “the proper procedure for [the petitioner] to
challenge her special circumstance findings based on clarification of the
relevant law in Banks and Clark is to bring a petition for habeas
corpus.” (Id. at p. 17.)
In a more recent decision, our colleagues in Division One
disagreed with the Torres decision, though the court did not
“necessarily agree with all the reasoning in Gomez.” (People v. Galvan
(2020) 52 Cal.App.5th 1134, 1142 (Galvan), rev. granted, S264284, Oct.
14, 2020.) Under the reasoning set forth in Galvan, defendants like
Lawson would not be entitled to relief under the plain language of
section 1170.95, because the present inability to convict was not
“‘because of changes’” made by S.B. 1437 (see § 1170.95, subd. (a)(3)
[petitioner entitled to relief because he “‘could not be convicted of . . .
murder because of changes to Section[s] 188 or 189 made effective”
January 1, 2019], but because of the “clarification of the requirements
for the special circumstance finding in Banks and Clark.” (Galvan,
supra, at p. 1142.) The Galvan court agreed with Gomez that petitions
under section 1170.95 are not “proper vehicle[s]” for challenging a
special circumstance finding. (Id. at p. 1141.)
15
Mindful of the conflicts in the law, we continue to follow Torres.
Defendant’ section 1170.95 petition seeks to have his “murder
conviction vacated and to be resentenced” on any remaining counts.
(§ 1170.95, subd. (a); see People v. York (2020) 54 Cal.App.5th 250, 260
[“[o]ur analyses in Torres and [People v.] Smith [(2020) 49 Cal.App.5th
85, review granted July 22, 2020, S262835,] recognized that section
1170.95 permits a petitioner to challenge a murder conviction”].) Thus,
because a petitioner’s entitlement to section 1170.95 relief may require
consideration of the verdict (including any special circumstance
findings), the Banks and Clark decisions remain relevant for making
such determination. The verdict in this case reveals a true finding
under section 190.2, subdivision (a)(17). Because the jury was not
instructed on the standards as enunciated in Banks and Clark, and
because the jury did not find that defendant was the actual killer (the
jury did not reach a decision on whether defendant personally used or
discharged a firearm under section 12022.53, subdivisions (b) through
(d)), we cannot conclude that defendant is precluded from relief as a
matter of law at this preliminary prima facie step.
Anticipating this result, the Attorney General argues that any
error under Torres was harmless under the standard set forth in People
v. Watson (1956) 46 Cal.2d 818, because it is evident from defendant’s
record of conviction that his conduct satisfies the Banks and Clark tests
for major participation and reckless indifference to human life. We
disagree. Watson does not apply when a trial court erroneously
concludes a petitioner is ineligible for relief as a matter of law at the
16
first prima facie stage under section 1170.95. The court’s role at this
stage “is simply to decide whether the petitioner is ineligible for relief
as a matter of law, making all factual inferences in favor of the
petitioner. [Citation.]” (Verdugo, supra, 44 Cal.App.5th at p. 329,
italics added; see also ibid. [first prima facie stage “must also be
different from the postbriefing prima facie showing . . . if only in the
nature and extent of materials properly presented to the court in
connection with the second prima facie step”].) Contrary to the
Attorney General’s suggestion, we cannot collapse the first prima facie
step into the second.
Therefore, because it is possible that defendant was punished for
conduct that is not prohibited by section 190.2 as currently understood
after Banks and Clark, we conclude “that the trial court erred in ruling
that the pre-Banks and Clark robbery-murder special circumstance
finding[] preclude [defendant] from relief as a matter of law.” (Torres,
supra, 46 Cal.App.5th at p. 1180.) We remand to the trial court to
determine whether, considering the record of conviction, defendant is
otherwise ineligible for relief as a matter of law, or is entitled to
appointment of counsel and briefing in accordance with section 1170.95.
//
//
//
//
//
//
17
DISPOSITION
We remand the matter for the trial court to determine whether
defendant has made a prima facie showing that he falls within the
provisions of section 1170.95. If the trial court finds defendant is
potentially eligible for resentencing under section 1170.95, it must
appoint counsel and order briefing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
18