People v. Williams CA6

Filed 10/7/21 P. v. Williams CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048050
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. 211454)

v.

ERIC WILLIAMS,

Defendant and Appellant.

In 2017, a jury found appellant Eric Williams guilty of two counts of first degree
felony murder. (Pen. Code, § 187.1) The trial court sentenced Williams to a prison term
of 50 years to life.
In 2019, Williams filed a petition for resentencing pursuant to section 1170.95
(petition). After appointing counsel and considering briefing submitted by the Santa
Clara County District Attorney (district attorney) and Williams, the trial court denied the
petition without issuing an order to show cause.
On appeal, Williams contends the trial court erred by failing to use the proper
standard when it decided that his petition did not make a prima facie showing of
entitlement to relief. The Attorney General concedes that Williams’s petition stated a

1
Unspecified statutory references are to the Penal Code.
prima facie case and agrees this matter should be remanded for the trial court to issue an
order to show cause and hold an evidentiary hearing on the petition.
We agree with the parties. Accordingly, we reverse the trial court’s March 2,
2020 order denying Williams’s petition and remand with directions to issue an order to
show cause under section 1170.95, subdivision (c), and hold a hearing pursuant to section
1170.95, subdivision (d).
I. FACTS AND PROCEDURAL BACKGROUND
A. Summary of the Offense2
On June 27, 2008, Omar Aquino went to see a movie with Fame Thomas, who
was the younger sister of Kenneth Thomas and Faith Thomas.3 Fame had previously told
Kenneth and Faith that Aquino “ ‘had money.’ ” Faith did not like Aquino and suggested
to Kenneth that they rob Aquino.
After seeing the movie, Fame and Aquino went to Aquino’s residence. Aquino’s
sister, Maria Aquino-Sanchez, was there with her nine-year-old son, who was asleep.
Kenneth Thomas, Faith Thomas, Victoria Thompson, Kim Pham, Michael Adams, and
Williams followed Fame and Aquino from the movie theater to his residence. Thereafter,
Kenneth Thomas, Faith Thomas, Adams, and Williams entered Aquino’s residence.
Witnesses heard four to five gunshots and contacted police. Kenneth Thomas was
seen holding a gun when he exited the residence. The police arrived and found Aquino

2
The judgment of conviction entered against Williams on July 28, 2017, is
pending direct appeal in this court (case No. H045030). Upon request from Williams, we
stayed the direct appeal on February 14, 2019, for the purpose of permitting the trial court
to conduct proceedings pursuant to section 1170.95. In the present appeal, on June 2,
2021, we granted Williams’s request for judicial notice of the appellate record in the
direct appeal. Because this court has not yet decided the direct appeal, and given that an
exposition of the evidence from Williams’s trial is not necessary to our resolution of the
sole issue in this appeal, we only briefly summarize Williams’s offense based on the
probation report filed for his sentencing hearing.
3
Because Fame Thomas, Kenneth Thomas, and Faith Thomas have the same last
name, we will at times refer to them by only their first names.
2
and Aquino-Sanchez dead, lying face down and taped with duct tape. Aquino had been
shot twice, and Aquino-Sanchez had been shot once. The residence had been ransacked,
and items were missing.
B. Procedural History
In October 2009, the grand jury of Santa Clara County returned an indictment
charging Williams and codefendants Adams, Kenneth Thomas, Fame Thomas, and Faith
Thomas with the murders of Aquino and Aquino-Sanchez on or about June 28, 2008
(§ 187; counts 1 & 2). In counts 1 and 2, as to Kenneth Thomas, the indictment alleged
personal and intentional discharge of a handgun in the commission of murder
(§ 12022.53, subds. (b), (c) & (d)) and special circumstances for multiple murder and
robbery murder (§ 190.2, subd. (a)(3), (17)).4 In April 2016, a first amended indictment
was filed, but that indictment did not alter the allegations in counts 1 and 2 of the original
indictment.
Williams, Adams, and Kenneth Thomas were tried together before a jury. In
December 2016, the jury convicted Williams of two counts of first degree “felony
murder” (capitalization omitted). In July 2017, the trial court sentenced Williams to a
prison term of 50 years to life. At the sentencing hearing, Williams’s trial counsel
asserted the trial evidence was “not clear as to whether or not Mr. Williams actually
entered the residence.” The trial court responded, “I believe you’re welcome that [sic]
the evidence indicates Mr. Williams was not in the house at the time of the shooting.
However, he is still guilty of felony murder and . . . I think based upon the fact that there
are two victims in this matter that the sentences should run consec[u]tive.”
In 2019, Williams, on his own behalf, filed a petition for resentencing pursuant to
section 1170.95. The trial court appointed counsel to represent Williams. Williams’s

4
The indictment also alleged two additional charges against Kenneth Thomas for
pimping (§ 266h, subd. (b)(2); count 3) and procuring a minor under age 16 for
prostitution (§ 266i, subd. (b)(2); count 4).
3
counsel filed a supplemental petition. The district attorney filed an opposition to the
petition. Williams filed a reply and a supplemental reply.
On March 2, 2020, the trial court held a hearing on Williams’s petition. At the
hearing, the district attorney confirmed that the only theory presented to the jury for
Williams’s guilt was felony murder and “it was not [the district attorney’s] theory that
Mr. Williams was the actual killer.” The trial court stated that Williams had made an
initial prima facie showing that he falls within the provisions of section 1170.95.
However, the court concluded there was substantial evidence presented at Williams’s trial
that would have supported giving a jury instruction on whether Williams was a major
participant in the underlying felony and acted with reckless indifference to human life.
The court also concluded that “there was substantial evidence by which Mr. Williams
could have been convicted of felony murder under this new law.” On that basis, the court
decided that Williams did not make a “prima facie case for relief” and denied his petition.
Williams timely appealed the trial court’s order denying his petition.
Williams filed an opening brief in this court, and the Attorney General filed a
respondent’s brief fully conceding error. Thereafter, on July 23, 2021, Williams waived
his right to file a reply brief and requested expedited reversal based on the Attorney
General’s concession. On August 20, 2021, the district attorney filed an application for
permission to file an amicus curiae letter brief in support of the trial court’s order denying
Williams’s petition. Williams filed an objection to the district attorney’s request to file
an amicus curiae brief. On September 2, 2021, this court issued an order stating that we
would consider Williams’s request for expedited reversal and the district attorney’s
application to file an amicus curiae brief with the merits of this appeal. Accordingly, we
will address Williams’s request and the district attorney’s application in this opinion,
post.

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 II. DISCUSSION
Williams contends the trial court erred by failing to use the standard articulated by
this court in People v. Drayton (2020) 47 Cal.App.5th 965, 981 (Drayton), overruled on
another ground in People v. Lewis (2021) 11 Cal.5th 952, 962–970 (Lewis). He further
maintains that, under Drayton, we should reverse the trial court because “nothing in [the
trial record] refutes his entitlement to relief as a matter of law.”
The Attorney General “agrees the trial court erred and that the matter should be
remanded for further proceedings.” The Attorney General states that “[w]hile the trial
court’s characterization of the facts [regarding Williams’s participation in the robbery
and actions evincing reckless indifference] appears to be correct, there is no indication in
the record that [Williams] was ineligible for relief as a matter of law. Therefore, the trial
court should have issued an order to show cause and held an evidentiary hearing under
section 1170[.95], subdivision (d), to weigh the evidence and decide whether relief
should be granted. The matter should be remanded for this proceeding to take place.”
A. Applicable Statutes and Legal Principles
“The Legislature enacted Senate Bill [No.] 1437 [(Stats. 2018, ch. 1015)] to
‘amend the felony murder rule and the natural and probable consequences doctrine . . . 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.’ [Citation.] The bill amended sections
188 and 189, which pertain to the definition of malice and the degrees of murder.”
(People v. McClure (2021) 67 Cal.App.5th 1054, 1061 (McClure).)
“The Legislature amended section 188 by adding subdivision (a)(3), which
provides: ‘Except as stated in subdivision (e) of Section 189, in order to be convicted of
murder, a principal in a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a crime.’ [Citations.] And
section 189, subdivision (e), now limits liability for murder to a person who was either
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the actual killer or, though not the actual killer, acted ‘with intent to kill’ and ‘aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the actual
killer’ in the commission of first degree murder, or was ‘a major participant in the
underlying felony and acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.’ ” (McClure, supra, 67 Cal.App.5th at p. 1061.)
“In addition to substantively amending sections 188 and 189 of the Penal Code,
Senate Bill [No.] 1437 added section 1170.95, which provides a procedure for convicted
murderers who could not be convicted under the law as amended to retroactively seek
relief.” (Lewis, supra, 11 Cal.5th at p. 959.)
“Pursuant to section 1170.95, an offender must file a petition in the sentencing
court averring 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 doctrine[;] [¶] (2) The 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) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’
(§ 1170.95, subds. (a)(1)–(3); see also § 1170.95 subd. (b)(1)(A).) Additionally, the
petition shall state ‘[w]hether the petitioner requests the appointment of counsel.’
(§ 1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), ‘the
court may deny the petition without prejudice to the filing of another petition.’
(§ 1170.95, subd. (b)(2).)” (Lewis, supra, 11 Cal.5th at pp. 959–960.) “Where the
petition complies with subdivision (b)’s three requirements, then the court proceeds to
subdivision (c) to assess whether the petitioner has made ‘a prima facie showing’ for
relief. (§ 1170.95, subd. (c).)” (Id. at p. 960.)
Section 1170.95, subdivision (c), “describe[s] [] a single prima facie showing.”
(Lewis, supra, 11 Cal.5th at p. 962.) Further, “a trial court can rely on the record of
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conviction in determining whether that single prima facie showing is made.” (Id. at
p. 970.) The California Supreme Court has explained that “the prima facie inquiry under
subdivision (c) is limited. Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the court takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue an order to show
cause.” ’ [Citation.] ‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing.’ [Citation.]
‘However, if the record, including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ ” (Id. at p. 971, quoting Drayton, supra, 47
Cal.App.5th at pp. 978–979.)
“In reviewing any part of the record of conviction at this preliminary juncture, a
trial court should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ [Citation.] As the People emphasize, the ‘prima facie bar was
intentionally and correctly set very low.’ ” (Lewis, supra, 11 Cal.5th at p. 972; see also
Drayton, supra, 47 Cal.App.5th at p. 980.) “If, accepting the facts asserted in the petition
as true, the petitioner would be entitled to relief because he or she has met the
requirements of section 1170.95[, subdivision] (a), then the trial court should issue an
order to show cause.” (Drayton, at p. 980.)
“If the trial court determines that a prima facie showing for relief has been made,
the trial court issues an order to show cause, and then 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 in the same manner as if the petitioner had not
. . . previously been sentenced, provided that the new sentence, if any, is not greater than
the initial sentence.’ (§ 1170.95, subd. (d)(1).) ‘The prosecutor and the petitioner may
rely on the record of conviction or offer new or additional evidence to meet their
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respective burdens.’ (§ 1170.95, subd. (d)(3).) At the hearing stage, ‘the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ (§ 1170.95, subd. (d)(3).)” (Lewis, supra, 11 Cal.5th at
p. 960.)
Where, as here, our analysis of the trial court’s ruling turns on interpretation of
section 1170.95 and the trial court’s authority to engage in independent factfinding when
summarily denying a petition under section 1170.95, subdivision (c), we review the
ruling de novo. (See Drayton, supra, 47 Cal.App.5th at p. 981; People v. Duchine (2021)
60 Cal.App.5th 798, 811.)
B. Analysis
We agree with the parties that the trial court erred when it evaluated and weighed
the trial evidence to determine, under section 1170.95, subdivision (c), whether Williams
made a prima facie showing that he is entitled to relief. (See Lewis, supra, 11 Cal.5th at
pp. 971, 974; Drayton, supra, 47 Cal.App.5th at pp. 980, 982.)
Williams’s petition asserted that he was charged by an indictment that allowed the
prosecution to proceed under a theory of felony murder, he was convicted of first degree
felony murder at trial, and he could not be convicted of first or second degree murder
under current law. Williams further asserted that he was not the actual killer, did not aid
and abet first degree murder with the intent to kill, was not a major participant in the
underlying felony who acted with reckless indifference to human life, and the victim of
the murder was not a peace officer performing his or her duties. These assertions were
sufficient to trigger the issuance of an order to show cause by the trial court unless readily
ascertainable facts from the record established they were untrue as a matter of law. (See
§ 1170.95, subds. (a) & (c); Drayton, supra, 47 Cal.App.5th at p. 980.)
Nothing in the record from Williams’s conviction established, as a matter of law
and without additional factfinding, that Williams was a major participant in the
underlying felony who acted with reckless indifference to human life. (§ 189, subd. (e).)
8
Moreover, Williams’s jury was not required to find that he acted with malice or was the
actual killer. (§§ 188, 189, subd. (e).) Instead of relying on anything in the record of
conviction that established as a matter of law that Williams was a major participant in the
felony who acted with reckless indifference to human life, the trial court—at the urging
of the district attorney—found that the trial record included “substantial evidence by
which Mr. Williams could have been convicted of felony murder” under Senate Bill
No. 1437’s amendments to sections 188 and 189.
In denying Williams’s petition, the trial court thus engaged in factfinding based
upon its independent review of the trial record and erred by so doing. (See Drayton,
supra, 47 Cal.App.5th at p. 982.) Under the circumstances here, we conclude the trial
court should have issued an order to show cause and conducted a hearing pursuant to
section 1170.95, subdivision (d), at which the prosecution bears the burden of proving,
beyond a reasonable doubt, that Williams is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)
The district attorney has requested permission to file an amicus curiae brief in this
appeal. He urges us to consider his proposed amicus curiae brief because “the Attorney
General has taken a position in this case that [the district attorney] believe[s] to be
inconsistent with the language, legislative history and intent of section 1170.95.”
Specifically, the district attorney maintains that two cases currently pending review
before the California Supreme Court support the trial court’s ruling that Williams failed
to make the requisite prima facie showing given the substantial evidence that he was a
major participant in the underlying felony and acted with reckless indifference to human
life. The two cases relied on by the district attorney are People v. Duke (2020) 55

9
Cal.App.5th 113 (Duke), review granted January 13, 2021, S265309, and People v.
Garcia (2020) 57 Cal.App.5th 100, review granted February 10, 2021, S265692. 5
We do not agree with the district attorney that the Attorney General’s position on
behalf of the People is inconsistent with section 1170.95. In our view, the standard set
forth by the Court of Appeal in Garcia for determining whether an order to show cause
should issue under section 1170.95, subdivision (c), is incompatible with the California
Supreme Court’s more recent statements in Lewis. (See Lewis, supra, 11 Cal.5th at
pp. 971–972.) Further, in People v. Lopez (2020) 56 Cal.App.5th 936, 949–951, review
granted February 10, 2021, S265974, a different panel of this court disagreed with Duke
regarding the applicability of the substantial evidence standard at the post-order-to-show-
cause hearing stage under section 1170.95, subdivision (d). The panel concluded that “to
establish a petitioner’s ineligibility for section 1170.95 relief for failure to satisfy the
third condition [under section 1170.95, subdivision (a)(3)], the prosecutor must prove
beyond a reasonable doubt the elements of first or second degree murder under the
current law.” (Lopez, at p. 951.) Accordingly, we deny the district attorney’s application
for permission to file his proposed amicus curiae brief.
For these reasons, we reverse the trial court’s order denying Williams’s petition
and remand with directions to issue an order to show cause under section 1170.95,

5
In Duke, the California Supreme Court granted review on the question: “Can the
People meet their burden of establishing a petitioner’s ineligibility for resentencing under
Penal Code section 1170.95, subdivision (d)(3) by presenting substantial evidence of the
petitioner’s liability for murder under Penal Code sections 188 and 189 as amended by
Senate Bill No. 1437 (Stats. 2018, ch. 1015), or must the People prove every element of
liability for murder under the amended statutes beyond a reasonable doubt?”
In Garcia, the California Supreme Court granted review and deferred further
action in the matter “pending consideration and disposition of related issues in People v.
Lewis, S260598, and People v. Duke, S265309 (see Cal. Rules of Court, rule
8.512(d)(2)), or pending further order of the court.” We note that Lewis, supra, 11
Cal.5th 952, was decided by our Supreme Court on July 26, 2021.
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subdivision (c), and hold a hearing pursuant to section 1170.95, subdivision (d).6 We
express no opinion about Williams’s ultimate entitlement to relief following the hearing.
(§ 1170.95, subd. (d)(2).)
III. DISPOSITION
The trial court’s March 2, 2020 order denying Williams’s Penal Code section
1170.95 petition for resentencing is reversed. The matter is remanded to the trial court
with directions to issue an order to show cause (Pen. Code, § 1170.95, subd. (c)) and hold
a hearing to determine whether to vacate Williams’s murder conviction and to recall his
sentence and resentence him (Pen. Code, § 1170.95, subd. (d)).

6
Because we reverse the trial court, we deny Williams’s request for expedited
reversal as moot.
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 ______________________________________
Danner, J.

WE CONCUR:

____________________________________
Greenwood, P.J.

____________________________________
Grover, J.

H048050
People v. Williams