Filed 11/17/21 P. v. Thietje CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent, C090128
v. (Super. Ct. No. 12F7786)
WILLIAM ROY THIETJE,
Defendant and Appellant.
A jury convicted defendant William Roy Thietje of second degree murder (based
on the provocative act murder doctrine), assault with a deadly weapon, hit and run,
corporal injury to a cohabitant, assault with force likely to cause great bodily injury,
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and false imprisonment by violence. The trial court sentenced defendant to a determinate
term of 16 years four months and an indeterminate term of 15 years to life in prison.
This court affirmed the judgment. (People v. Thietje (June 19, 2018, C078175) [nonpub.
opn.] (Thietje).)
In 2019, defendant filed a petition for resentencing under Penal Code section
1170.95 and requested the appointment of counsel. 1 The trial court denied the petition
without appointing counsel or affording an opportunity for further briefing, finding that
defendant failed to make a prima facie showing of eligibility for resentencing.
Defendant now contends (1) Senate Bill No. 1437 (2017-2018 Reg. Sess.)
effectively abolished the provocative act murder doctrine; (2) the trial court did not
follow the procedure set forth in section 1170.95 because it did not appoint counsel or
allow briefing from the parties; (3) the trial court erred in considering this court’s prior
opinion on direct appeal in denying defendant’s petition for resentencing; and (4) equal
protection principles require that Senate Bill No. 1437 be applied to provocative act
murder convictions.2
We conclude that defendant’s petition did not comply with section 1170.95,
subdivision (b)(1) and defendant cannot aver that he is eligible for relief under section
1170.95, as required under subdivision (b)(1), because, as he concedes, he was not
convicted of felony murder or murder under a natural and probable consequences theory.
Accordingly, we need not address his claim that the trial court erred in considering this
1 Undesignated statutory references are to the Penal Code.
2 Defendant argued in his appellate opening brief that persons convicted of provocative
act murder are entitled to relief under section 1170.95 But he concedes in his appellate
reply brief that section 1170.95 does not apply to provocative act murder convictions.
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court’s prior opinion on direct appeal. His other claims have no merit. We will affirm
the order denying his petition for resentencing.
BACKGROUND
We grant the People’s request to take judicial notice of the nonpublished opinion
in defendant’s prior appeal. (Evid. Code, §§ 452, subd. (d), 459.) Among other things,
that opinion said defendant “deliberately drove a van into the back of his exgirlfriend’s
unoccupied car, propelling the car toward a group of people and provoking one of those
persons to fire a shotgun into the van, killing defendant’s associate.” (Thietje, supra,
C078175.)
After this court affirmed defendant’s convictions, defendant filed a petition for
resentencing pursuant to section 1170.95, averring that (1) a complaint or information
was filed against him that allowed the prosecution to proceed under a theory of
provocative act murder; (2) at trial, he was convicted of first or second degree murder
pursuant to the provocative act murder doctrine; and (3) he could not now be convicted of
second degree murder because of changes made to sections 188 and 189 effective
January l, 2019. Defendant asked the trial court to appoint counsel to represent him.
Defendant crossed out language on the form petition stating that a complaint or
information was filed against him that allowed the prosecution to proceed under the
felony-murder rule or the natural and probable consequences doctrine and that at trial, he
was convicted of first or second degree murder pursuant to the felony-murder rule or the
natural and probable consequences doctrine. He did not check the box on the form
petition averring that he was not a major participant in the underlying felony or did not
act with reckless indifference to human life during the course of the crime.
The trial court denied the petition. It said Senate Bill No. 1437 did not change
punishments for major participants who acted with reckless indifference to human life, or
for principals who committed murder with malice aforethought. It noted that the trial
judge instructed on provocative act murder using CALCRIM No. 560, which required
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findings that defendant intentionally did a provocative act and knew that the natural and
probable consequences of the provocative act were dangerous to human life and then
acted with conscious disregard for life. It further noted that according to this court’s
decision in the prior appeal, the evidence permitted a rational jury to find that defendant
acted with malice. Based on the above, the trial court said defendant failed to make a
prima facie showing of eligibility for relief under section 1170.95.
DISCUSSION
I
Defendant claims the amendment to section 188 under Senate Bill No. 1437
effectively abolished the provocative act murder doctrine.
Senate Bill No. 1437, which became effective on January 1, 2019, restricted the
application of the felony-murder rule and the natural and probable consequences doctrine,
as applied to murder, by amending sections 188 and 189. (People v. Lamoureux (2019)
42 Cal.App.5th 241, 247-249.) Prior to the enactment of Senate Bill No. 1437, “a
defendant could be convicted of murder ‘ “ ‘when the defendant or an accomplice kill[ed]
someone during the commission, or attempted commission, of an inherently dangerous
felony . . . .’ ” ’ [Citation.] . . . ‘[f]elony-murder liability d[id] not require an intent to
kill, or even implied malice, but merely an intent to commit the underlying felony.’
[Citation.]” (People v. Lee (2020) 49 Cal.App.5th 254, 261, review granted July 15,
2020, S262459 (Lee).) But Senate Bill No. 1437 added section 189, subdivision (e) to
now provide that felony murder requires proof that “(1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, 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 indifference to human life, as
described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
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Senate Bill No. 1437 also eliminated liability for murder under the natural and
probable consequences doctrine. (People v. Offley (2020) 48 Cal.App.5th 588, 595.)
Under that doctrine, a person who knowingly aided and abetted a crime, the natural and
probable consequence of which was murder, could be convicted of not only the target
crime but also of the resulting murder, irrespective of whether he or she harbored malice
aforethought. (People v. Gentile (2020) 10 Cal.5th 830, 843-845; Offley, at p. 595.)
However, Senate Bill No. 1437 amended section 188 to provide that “[e]xcept 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.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
Provocative act murder is also a theory of murder liability. (People v. Concha
(2009) 47 Cal.4th 653, 663 (Concha).) But Senate Bill No. 1437 makes no reference to
provocative act murder. (Stats. 2018, ch. 1015, §§ 1-5.) The provocative act murder
doctrine is different from the felony-murder rule and the natural and probable
consequences doctrine. (People v. Gonzalez (2012) 54 Cal.4th 643, 654 (Gonzalez);
People v. Johnson (2020) 57 Cal.App.5th 257, 261, 267-268 (Johnson) [rejecting
argument that Senate Bill No. 1437’s amendment of section 188 made provocative act
murder a subset of the natural and probable consequences doctrine]; People v. Swanson
(2020) 57 Cal.App.5th 604, 612-613, 616-617, review granted February 17, 2021,
S266262 (Swanson) [rejecting claims that provocative act murder was a subset of the
natural and probable consequences doctrine and that the changes effected by Senate Bill
No. 1437 applied to provocative act murder convictions because first degree provocative
act murder was inextricably intertwined with the felony-murder rule]; Lee, supra, 49
Cal.App.5th at pp. 263, 266, review granted [rejecting claim that provocative act murder
was a combination or subset of felony murder and/or natural and probable consequences
murder].)
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Provocative act murder has a physical and a mental element. (Gonzalez, supra,
54 Cal.4th at p. 655.) The physical element is satisfied when the defendant or an
accomplice intentionally commits a provocative act that proximately causes an unlawful
killing. (Ibid.; see also People v. Mejia (2012) 211 Cal.App.4th 586, 602 (Mejia).) The
felony-murder rule and the natural and probable consequences doctrine do not contain the
same element. (See CALCRIM Nos. 402 and 540C.) In addition, in contrast with the
felony-murder rule, which applies to killings committed by the defendant or his or her
accomplice (Gonzalez, at p. 654), the provocative act doctrine applies to killings
committed by the victim or a third party (ibid.; People v. Bell (2020) 48 Cal.App.5th 1,
11).
With regard to the mental element for provocative act murder, the defendant must
personally harbor malice aforethought. (Gonzalez, supra, 54 Cal.4th at p. 655; Concha,
supra, 47 Cal.4th at p. 663 [explaining that the defendant’s liability for provocative act
murder is fixed in accordance with his or her criminal mens rea]; People v. Cervantes
(2001) 26 Cal.4th 860, 872, fn. 15 [same]; Mejia, supra, 211 Cal.App.4th at pp. 603-604
[stating that under provocative act murder, a defendant cannot be vicariously liable for
the mens rea of his accomplice in the underlying crime].) In comparison, prior to the
enactment of Senate Bill No. 1437, felony murder and natural and probable consequences
murder did not require express or implied malice. (Lee, supra, 49 Cal.App.5th at pp. 261,
264, review granted; Swanson, supra, 57 Cal.App.5th at pp. 610-611, review granted.)
Senate Bill No. 1437 was enacted to ensure that an offender is punished
“according to his or her own level of individual culpability.” (Stats. 2018, ch. 1015, § 1,
subd. (d).) Because it requires proof that the defendant acted with implied malice, the
provocative act murder doctrine is consistent with Senate Bill No. 1437’s stated goal and
it survives the amendment to section 188 under Senate Bill No. 1437. (Compare to
CALJIC No. 8.12 (Fall 2019 ed.) p. 610.)
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Defendant asserts that provocative act murder permits a trier of fact to impute
malice to the defendant based on his or her participation in a nonlethal crime, but under
the amended section 188 malice cannot be imputed to a defendant based solely on his or
her participation in a crime. He also contends that provocative act murder permits a trier
of fact to impute malice to the defendant based on the actions and intent of the victim or a
third party.
Malice aforethought may be express or implied. (Gonzalez, supra, 54 Cal.4th at
p. 653.) “Express malice is an intent to kill. [Citation.] Implied malice does not require
an intent to kill. Malice is implied when a person willfully does an act, the natural and
probable consequences of which are dangerous to human life, and the person knowingly
acts with conscious disregard for the danger to life that the act poses.” (Ibid.) Malice
may be implied from the defendant’s provocative act. (Id. at p. 655; Concha, supra,
47 Cal.4th at p. 662.) “[C]ircumstances set in motion by the defendant which are fraught
with grave and inherent danger to life are sufficient to constitute a provocative act that
allows a jury to raise an inference of malice.” (People v. Briscoe (2001) 92 Cal.App.4th
568, 583.) Here, contrary to defendant’s assertion, malice is implied from the
defendant’s provocative act, and not from a victim or third party’s act. Moreover, malice
is not based solely on the defendant’s participation in the underlying crime but because
the defendant willfully and knowingly committed life-endangering acts with conscious
disregard for the danger to life that the act posed. (Johnson, supra, 57 Cal.App.5th at
p. 268.)
As stated in this court’s prior opinion on direct appeal, the trial court instructed the
jury that a conviction for murder under the provocative act doctrine required proof that
defendant knew the natural and probable consequences of his provocative act were
dangerous to human life and then acted with conscious disregard for life and that
defendant intentionally committed an act whose natural and probable consequences were
dangerous to human life because there was a high probability that the act would provoke
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a deadly response. (Thietje, supra, C078175.) Under the instructions given, the jury
could not have convicted defendant of murder without finding that he acted with implied
malice. Because the jury necessarily found that defendant acted with malice aforethought
when it convicted defendant of provocative act murder, defendant could still be convicted
of first or second degree murder under the changes made pursuant to Senate Bill
No. 1437 and he is, also for that reason, not eligible for relief under section 1170.95.
(§ 1170.95, subd. (a)(3).)
In a related argument, defendant says he was entitled to have appointed counsel
argue that his provocative act murder conviction was invalid because of changes to
section 188. He adds that malice was improperly imputed to him based on the victim’s
behavior and intent. We reject defendant’s claims for the reasons we have stated.
Defendant also asserts that his actions did not invite the use of deadly force. Defendant
fails to demonstrate he is entitled to relitigate the sufficiency of the evidence claims
raised in his prior appeal. (Thietje, supra, C078175.)
II
Defendant contends the trial court did not follow the procedure set forth in
section 1170.95 because it did not appoint counsel or allow briefing from the parties.
The California Supreme Court recently held that section 1170.95 petitioners who
file a facially sufficient petition requesting counsel must receive counsel upon the filing
of the petition, and only after the appointment of counsel and the opportunity for briefing
may the superior court consider the record of conviction to determine whether the
petitioner makes a prima facie showing of entitlement to relief under section 1170.95.
(People v. Lewis (2021) 11 Cal.5th 952, 957, 961-963, 966-967 (Lewis).) We conclude
that the trial court did not err in denying defendant’s petition because defendant did not
file a facially sufficient petition.
Section 1170.95 provides a procedure for persons convicted of felony murder or
murder under a natural and probable consequences theory to “file a petition with the court
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that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts when all of the following conditions apply: [¶] (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. [¶] (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, subd. (a).)
Section 1170.95, subdivision (b)(2) sets out an initial review process for such a
petition. (Lewis, supra, 11 Cal.5th at p. 962.) Under subdivision (b), the trial court
determines whether the petition contains the information required under section 1170.95,
subdivision (b)(1): “(A) A declaration by the petitioner that he or she is eligible for relief
under this section, based on all the requirements of subdivision (a). [¶] (B) The superior
court case number and year of the petitioner’s conviction. [¶] [And] (C) Whether the
petitioner requests the appointment of counsel.” (§ 1170.95, subd. (b)(1).) In sum,
subdivision (b)(1) requires a declaration by the petitioner that a complaint, information or
indictment was filed against him or her that allowed the prosecution to proceed under a
theory of felony murder or murder under the natural and probable consequences doctrine.
(§ 1170.95, subds. (a)(1), (b)(1).)
Defendant crossed out language on the form petition stating that a complaint or
information was filed against him that allowed the prosecution to proceed under the
felony-murder rule or the natural and probable consequences doctrine. Instead, he
averred that a complaint or information was filed against him that allowed the
prosecution to proceed under a theory of provocative act murder. Because his petition
did not include a declaration that complied with section 1170.95, subdivision (b)(1),
defendant did not file a facially sufficient petition.
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If any of the required information “is missing from the petition and cannot be
readily ascertained by the court, the court may deny the petition without prejudice to the
filing of another petition and advise the petitioner that the matter cannot be considered
without the missing information.” (§ 1170.95, subd. (b)(2).) But defendant cannot aver
that he is eligible for relief under section 1170.95 based on all of the requirements of
section 1170.95, subdivision (a), as required under subdivision (b)(1). This is because, as
he concedes on appeal, defendant was not convicted of murder under the felony-murder
rule or the natural and probable consequences doctrine; he was convicted of murder
based on the provocative act doctrine. And as defendant also concedes, section 1170.95
does not apply to provocative act murder convictions. Section 1170.95 does not
authorize persons convicted of murder under the provocative act doctrine to file a petition
for resentencing. (§ 1170.95, subd. (a) [“A person convicted of felony murder or murder
under a natural and probable consequences theory may file a petition . . . .”]; Swanson,
supra, 57 Cal.App.5th at pp. 608, 612, review granted; Johnson, supra, 57 Cal.App.5th at
pp. 261, 266-268; Lee, supra, 49 Cal.App.5th at pp. 257-258, 263, review granted.)
Additionally, section 1170.95 only applies when, among other things, the petitioner could
not be convicted of first or second degree murder because of changes made under Senate
Bill No. 1437. (§ 1170.95, subd. (a)(3).) But for reasons we have stated in the preceding
section, the statutory changes made pursuant to Senate Bill No. 1437 would not affect
defendant’s second degree murder conviction. We will affirm the order denying the
petition. Because we conclude that defendant’s petition was not facially sufficient, we do
not consider his contention that the trial court erred in considering the opinion on direct
appeal in denying his petition.
We deny defendant’s request for judicial notice of an August 28, 2018 letter from
the Judicial Council of California to Senator Nancy Skinner, one of the authors of Senate
Bill No. 1437, and a September 13, 2018 letter from the Judicial Council of California to
then Governor Edmund G. Brown, Jr. There is no showing that the Judicial Council’s
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letters were considered by the Legislature as a whole. (Kaufman & Broad Communities,
Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 39.) The letter to the
Governor was sent after Senate Bill No. 1437 was enacted by the Legislature, and
consequently cannot shed any light on the Legislature’s intent. (Alfaro v. Superior Court
(2020) 58 Cal.App.5th 371, 388, fn. 16; Witt Home Ranch, Inc. v. County of Sonoma
(2008) 165 Cal.App.4th 543, 558, fn. 8.)
III
In addition, defendant claims equal protection principles require that Senate Bill
No. 1437 be applied to provocative act murder convictions.
“ ‘The concept of equal protection recognizes that persons who are similarly
situated with respect to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, “ ‘[t]he first prerequisite to a meritorious claim under the equal protection
clause is a showing that the state has adopted a classification that affects two or more
similarly situated groups in an unequal manner.’ ” [Citation.] “This initial inquiry is not
whether persons are similarly situated for all purposes, but ‘whether they are similarly
situated for purposes of the law challenged.’ ” ’ ” (People v. Valencia (2017) 3 Cal.5th
347, 376.) “If persons are not similarly situated for purposes of the law, an equal
protection claim fails at the threshold.” (People v. Buffington (1999) 74 Cal.App.4th
1149, 1155.)
For purposes of the objective of Senate Bill No. 1437 “to more equitably sentence
offenders in accordance with their involvement in homicides” (Stats. 2018, ch. 1015, § 1,
subd. (b)), those convicted of provocative act murder and persons convicted of felony
murder or murder under the natural and probable consequences doctrine are not similarly
situated. (Johnson, supra, 57 Cal.App.5th at pp. 270-271.) Unlike persons convicted of
felony murder or murder under the natural and probable consequences doctrine, persons
convicted of provocative act murder personally harbored the mental state of malice.
(Ibid.) Because the threshold inquiry is not established, we need not consider whether
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the exclusion of provocative act murder convictions from resentencing under Senate Bill
No. 1437 passes the strict scrutiny or rational relationship test.
DISPOSITION
The trial court’s order denying the petition for resentencing is affirmed.
/S/
MAURO, J.
We concur:
/S/
RAYE, P. J.
/S/
ROBIE, J.
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