Filed 2/10/21 P. v. Walker CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B306625
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA071076)
v.
KAMARON LEMONT WALKER,
Defendant and Appellant.
THE COURT:
Appellant and petitioner Kamaron Lemont Walker
(defendant) appeals from an order denying his petition for
resentencing pursuant to Penal Code section 1170.95.1 His
appointed counsel filed a brief pursuant to People v. Wende (1979)
25 Cal.3d 436, raising no issues. On October 30, 2020, we
notified defendant of his counsel’s brief and gave him leave to file,
within 30 days, his own brief or letter stating any grounds or
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
argument he might wish to have considered. Because
defendant's appeal is from an order denying post-conviction
relief, he is not entitled to our independent review of the record.
(See People v. Cole (2020) 52 Cal.App.5th 1023, 1038-1039, review
granted Oct. 14, 2020, S264278; People v. Serrano (2012) 211
Cal.App.4th 496, 503.) However, as defendant has filed a
supplemental brief, he is entitled to our evaluation of the
arguments presented in that brief. (See People v. Cole, supra, at
p. 1040.) We affirm the order.
Defendant was charged with a codefendant of murder in
the shooting death of Dion Holloway, in violation of section 187,
subdivision (a).2 In 2009, defendant was convicted of first degree
murder, and the allegation that defendant had personally and
intentionally discharged a firearm which proximately caused the
death of the victim, within the meaning of section 12022.53,
subdivision (d), was found true. The jury further found that
defendant committed the crime for the benefit of, at the direction
of, and in association with a criminal street gang, with the
specific intent to promote, further and assist in criminal conduct
by gang members, within the meaning of section 186.22,
subdivision (b)(1)(C). Defendant was sentenced as a second
strike offender pursuant to sections 1170.12 and 667,
2 We summarize the factual background and some of the
procedural history from our opinion affirming defendant’s
judgment. (See People v. Walker (B221399, June 30, 2011
[nonpub opn.].) Defendant had been charged with two
codefendants, Eric Alexander Williams (Williams) and Juan
Antonio Villatoro (Villatoro). Prior to trial, Villatoro was
granted immunity in exchange for his testimony in the case.
Williams was convicted of second degree murder. (Ibid.)
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subdivisions (b) through (i), to a prison term of 80 years to life.
The judgment was affirmed on appeal. (See People v. Walker,
supra, B221399.)
In August 2019, defendant filed, pro per, a petition for
resentencing pursuant to section 1170.95, which the trial court
summarily denied on October 7, 2019, while the prosecutor's
request for an extension of time to file a response to the petition
was pending. The court found that defendant was ineligible for
relief because the jury found that he personally and intentionally
discharged a firearm, which caused the victim’s death. On
January 22, 2020, defendant filed a second petition for
resentencing pursuant to section 1170.95, this time including as
exhibits, excerpts from his trial transcripts and other trial
documents, with a request for appointment of counsel and a
declaration attesting to eligibility. The exhibits included an
excerpt from Villatoro’s trial testimony which, had the jury
believed it, might have cast doubt on defendant’s role as the
actual killer in the shooting.
On February 23, 2020, the trial court again denied
defendant’s petition on the ground that the court had denied
defendant’s previous petition upon finding that he was ineligible
for relief under section 1170.95. Defendant filed a timely notice
of appeal from the second denial.
In his supplemental brief on appeal, defendant argues that
two “petitioners”3 were charged with murder, the jury was
instructed on several theories of murder, and the jury found that
one of the petitioners personally used a firearm. He concludes
3 Defendant is the only petitioner in this proceeding. We
assume that he is referring to himself and his codefendant in the
2009 trial.
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that this is “sufficient proof that the petitioner who personally
used a firearm was convicted as an actual killer and not under a
felony murder [rule or natural and probable consequences]
theory.”
We agree, and the record of conviction shows that
defendant was the petitioner who personally used a firearm.
Defendant was convicted of first degree murder and the
allegation that he personally and intentionally used a firearm to
commit the crime was found true. Thus the jury implicitly found
that defendant was the “actual killer,” making him ineligible for
relief under section 1170.95. (See People v. Cornelius (2020) 44
Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410.)
Moreover, the record of conviction shows that the jury found
defendant committed the murder with premeditation and
deliberation, which necessarily includes a finding that defendant
harbored the specific intent to kill, which also makes him
ineligible for relief under section 1170.95. (See People v. Verdugo
(2020) 44 Cal.App.5th 320, 335, review granted Mar. 18, 2020,
S260493.) The trial court properly looked to the record of
conviction, which showed defendant was ineligible for section
1170.95 relief as a matter of law. The court did not err in
summarily denying the petition. (See Verdugo, supra, at pp. 328-
330; Cornelius, supra, at pp. 57-58.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P.J. ASHMANN-GERST, J. CHAVEZ, J.
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