Filed 1/25/22 P. v. Williams 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(San Joaquin)
----
THE PEOPLE, C090766
Plaintiff and Respondent, (Super. Ct. No.
STKCRFE20060008049,
v. SF099265C )
CHRISTOPHER MICHAEL WILLIAMS,
Defendant and Appellant.
In 2007, a jury found defendant Christopher Michael Williams guilty of multiple
offenses, including the first degree murder of Conrad Celestine. We affirmed his
convictions in People v. Miller et al. (Mar. 10, 2010, C056951) [nonpub. opn.] (Miller),
but modified his sentence to 28 years eight months to life in state prison. Regarding his
first degree murder conviction, we found substantial evidence showed he aided and
abetted the actual killer with the intent to kill.
While he was serving his sentence, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015, §§ 1-4), which
1
amended the law governing murder liability under felony-murder and natural and
probable consequences theories and provided a new procedure under Penal Code section
1170.951 for eligible defendants to petition for recall and resentencing. Defendant filed a
section 1170.95 petition, which the trial court denied after issuing an order to show cause,
obtaining briefing, and holding a hearing.
Defendant appeals, arguing the trial court erred in determining he was ineligible
for resentencing. He contends the trial court applied an incorrect burden of proof and an
inapplicable felony-murder rule standard as well as improperly relied on our prior
opinion in denying his petition. He also argues the trial court violated his constitutional
rights to equal protection and due process by not providing him with a complete copy of
the trial transcript.
On this record, we conclude the trial court was aware of and applied the correct
beyond a reasonable doubt burden of proof, that it did not consider the matter a felony-
murder case, and that the trial court relied on more than this court’s prior opinion,
including evidence from defendant’s original trial, in properly denying the petition. We
also conclude any alleged error regarding the transcripts was invited. We therefore
affirm the trial court’s denial of defendant’s section 1170.95 petition for resentencing as
he was not eligible for relief.
FACTUAL AND PROCEDURAL BACKGROUND
To facilitate our review of the court’s order denying defendant’s section 1170.95
petition, we incorporate the facts and proceedings from our unpublished opinion
affirming defendant’s convictions in Miller. (Miller, supra, C056951 [at pp. 2-14 ]).2
1 Further undesignated statutory references are to the Penal Code.
2 The prosecution attached a copy of our unpublished decision in Miller to its informal
response to defendant’s petition and asked the court to take judicial notice of the opinion.
2
According to our unpublished opinion, in February 20063 defendants Rosetta
Jefferson, the actual killer, Lacy Miller, her brother, and defendant Williams, her
boyfriend, all lived at Jefferson’s home in Stockton. On February 10, Jefferson asked the
victims Conrad Celestine and Crystal Knowles to house sit for her while she and
defendant were out of town. Jefferson’s brother Miller arrived at her home on
February 12, and noticed things had been moved around and some items were missing.
When he confronted Celestine and Knowles, each blamed the other and an argument
ensued.
Jefferson and defendant returned to Jefferson’s home on February 14. Jefferson
noticed rearranged furniture, soiled bedsheets, and missing personal items, including rare
coins and her daughter’s Pokémon card collection. Both she and defendant were upset.
Miller told Jefferson that Knowles and Celestine each blamed the other for what had
transpired at Jefferson’s home in her absence.
Later that afternoon, Jefferson stopped by Knowles’s home and lured Knowles to
her house under the guise of needing help. When they arrived at Jefferson’s home, Miller
and defendant were there. As Knowles entered, Jefferson “stunned [her] to the ground”
with a taser. Jefferson continued to stun her over 50 times while calling her names and
accusing her of taking Jefferson’s property. At one point, Jefferson jabbed Knowles in
the face with the taser and a metal prong broke off in her eye. Jefferson threatened
Knowles with a knife and cut her on her chest, arm, and leg. Defendant threw water on
Knowles and stunned her at least twice. When Knowles’s sister attempted to intervene,
defendant told her to stop or “[b]oth of you bitches would be dead.”
Knowles eventually told Jefferson that Celestine had let people into Jefferson’s
home while Jefferson was away. She said Celestine was in Jefferson’s bedroom with
3 All dates occurred in 2006 unless otherwise indicated.
3
some “bitch” and acknowledged smoking “dope” in Jefferson’s bedroom. Jefferson
wanted to kill Knowles, but defendant said they should let her go. They ultimately
agreed to let her leave if she promised not to talk and told her they would kill her family
if she reported them to the police.
That evening, Jefferson telephoned Celestine’s home and asked to speak to
Celestine. Upon being advised Celestine was unavailable, she told Celestine’s stepson
that property was missing from her home and that “if it didn’t show up the niggers would
be falling.” Later that same night, Jefferson again telephoned Celestine’s home and told
his wife, Charolett, to “tell [Celestine] it’s on, it’s on.”
The following morning, on February 15, Miller telephoned Celestine’s home and
told Celestine that he was coming over to get Jefferson’s keys. A short time later, Miller
rang the doorbell, and Celestine let him in; Jefferson and defendant were hiding around
the corner and followed Miller into the house.
Jefferson was holding a knife in her hand and demanded to know who had been in
her house. Celestine denied knowing what she was talking about. Jefferson stabbed
Celestine in his side and yelled, “You going to tell me who was in my house.” Charolett
ran for the door, but defendant blocked the doorway and grabbed her by the arm.
Charolett called out Jefferson’s name and pleaded with her not to “do this.” Defendant
responded, “Up, you said her name, now I got to kill him,” and held up a gun. By this
time, Celestine was laying on the floor in the fetal position, attempting to block Jefferson
and Miller’s blows with his legs and arms. Jefferson stabbed him again, while Miller
urged him to tell Jefferson who had her things. Miller then began “slicing and poking”
Celestine with “some ninja-like” three-bladed knife while Jefferson stabbed him
“nonstop” as blood poured out of his side and mouth. When Charolett pleaded with
Jefferson not to kill Celestine, Jefferson responded, “This motherfucker is going to die.
You going to die.” Meanwhile, defendant kept saying, “I’m going to shoot him. Let me
just kill him. Let’s just get it over with. Let me just kill him.”
4
Once they finished stabbing and cutting Celestine, Miller and Jefferson took turns
kicking him in the head. Defendant then kicked Celestine in the side, and his body went
limp, and his eyes rolled back in his head. Celestine had been stabbed eight times, four
of which were potentially fatal. Celestine also had 12 nonfatal “incised” wounds, which
were caused by a cutting or slicing action, as opposed to a stabbing motion, and multiple
blunt force injuries.
After Celestine’s body went limp, Miller said, “That’s enough,” and defendant
walked out the door. Moments later, Miller and defendant returned, and Miller accused
Charolett of calling for help because there was a truck with people outside. Defendant
told Charolett, “If I see any police or anything here, I’ll be back to finish the job to kill
everybody in the house.” Charolett pleaded to call an ambulance, but defendant
responded, “No. Let that motherfucker die.”
Shortly after Jefferson, Miller, and defendant left, Charolett heard a series of
gunshots, ran outside, and saw a truck take off and drive through two fences. 4
Meanwhile, she telephoned 9-1-1 and told them she needed an ambulance but not to send
the police because she feared defendant would make good on his threat. After fleeing the
scene, Miller and defendant were found hiding in the backyard of a nearby residence and
were taken into custody.
Both Miller and defendant testified in their own defense. Jefferson did not.
According to Miller, on the morning of February 15, (the day of Celestine’s
murder), Jefferson asked Miller if he had seen or heard from Celestine. Miller said,
“No,” and immediately thereafter, telephoned Celestine and told him he was going to
stop by and retrieve Jefferson’s key. The three defendants eventually walked to
4 Defendant was charged with attempted murder and shooting at an occupied vehicle for
allegedly shooting at the truck. Because the jury found defendant not guilty of those
charges, we do not further recount the underlying facts here.
5
Celestine’s home; they did not discuss anything on the way and Miller did not see
Jefferson or defendant with any weapons. As they neared Celestine’s house, they walked
by a truck occupied by two people who gave them a threatening look. When they
reached Celestine’s house, Miller rang the bell and told Jefferson and defendant to wait
outside because he “didn’t want no fussing [or] arguing.” Celestine answered the door
and Miller went inside. Miller saw Jefferson’s ninja-like knife on the entertainment
center and confronted Celestine about taking things from Jefferson’s home. Celestine
began screaming at Miller, and Jefferson went inside and began screaming at Celestine to
“give me my keys.” Celestine grabbed a gun off the entertainment center and started to
point it at Miller. Miller hit Celestine in the face, and Celestine dropped the gun and fell
to his knees. As Celestine went to pick up the gun, Miller grabbed the ninja-like knife.
When Miller turned back around, Celestine had the gun pointed at him. At that point,
Jefferson stabbed Celestine in his side, and Miller began “swinging” the ninja-like knife.
Miller could not recall anything after that point in time. The next thing he recalled was
being ordered to “get down” by police.
Miller was aware of violent incidents in Celestine’s past and knew Celestine
“could react in a violent fashion.” He had “heard about shootings and about [Celestine]
. . . hitting a certain woman and making her do stuff” at gunpoint. Miller had also
observed Celestine push Knowles’s sister over a table.
In 1990, Celestine threatened a woman with a gun and thereafter was not “crime
free.”
Defendant testified that he was present when Jefferson unexpectedly stunned
Knowles. He urged Jefferson to take Knowles in the back bedroom so that they could
talk calmly. While in the bedroom, Jefferson slapped Knowles, “but nobody else did
anything . . . to her, no kicks, no broken noses.” During cross-examination, however,
defendant acknowledged Jefferson punched Knowles in the face.
6
Defendant denied stunning or striking Knowles or threatening her or her family.
He threw water on Knowles because she said she was thirsty. When he did so, he
believed Jefferson was done stunning her; he was not trying to electrocute her. At some
point, Jefferson “poked” Knowles with a knife. 5 Defendant did not attempt to stop
Jefferson other than eventually telling her to “[c]ut it out, let her go.” After Knowles left,
defendant went to a friend’s house.
Defendant returned to Jefferson’s home around 10:00 p.m. that night and learned
Jefferson had been attempting to contact Celestine while he was gone. Jefferson was
pretty upset.
The next morning, Jefferson was anxious to get her keys from Celestine, and
defendant agreed to accompany her and Miller to Celestine’s home. He denied bringing
any weapons with him or knowing that Miller and Jefferson were armed. He went to
retrieve Jefferson’s keys but did not intend to assault anyone.
When they arrived, Jefferson and Miller went inside while defendant remained
outside with Charolett. Defendant could hear people arguing but did not go inside
because he “had no business in that conversation.” When the argument turned physical,
he ran inside. He saw a gun on the floor and immediately picked it up. He also saw
Celestine on his back attempting to fight off Miller and Jefferson as they stabbed and cut
him. As soon as defendant picked up the gun, Charolett pulled him out of the house.
Defendant told Jefferson and Miller to come out, and they did. Defendant denied striking
Celestine, threatening anyone, or preventing Charolett from going anywhere.
Defendant told Charolett, “No, don’t call the police. It’s not going to do any good
for anybody,” including Celestine. Although he believed Celestine had been beaten up,
5 Defendant initially testified that Jefferson waved a knife at Knowles, but it did not
appear that she was poking her with it. On cross-examination, he admitted seeing
Jefferson “poke [Knowles] in the skin.”
7
he did not know he was mortally wounded. He did, however, tell Charolett she could call
an ambulance.
Defendant eventually threw the gun into a garbage can and returned to Jefferson’s
house. Soon thereafter, he heard the police arrive, and he and Miller climbed out a back
window and hopped the fence.
The jury found defendant guilty of the first degree murder of Celestine, false
imprisonment by violence of Charolett, dissuading a witness (Charolett) by force or
threat, assault by means of force likely to produce great bodily injury upon Knowles, and
possession of a firearm by a felon. It also found true allegations that he used a handgun
in the commission of the murder, and a knife and a taser in the commission of the assault.
He was initially sentenced to an aggregate term of 31 years to life in state prison, which
this court subsequently reduced on appeal to 28 years eight months to life. On appeal,
this court found sufficient evidence supported defendant’s first degree murder conviction
because the evidence at trial showed Jefferson intended to kill Celestine, that she
premeditated and deliberated the murder, and that defendant knew of and shared
Jefferson’s murderous intent.
In January 2019, defendant filed a form petition for resentencing pursuant to
section 1170.95. On the form, he checked various boxes stating that a complaint was
filed against him that allowed the prosecution to proceed under a theory of felony murder
or murder under the natural and probable consequences doctrine, 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, and that he could not now be convicted of
first or second degree murder because of changes made to sections 188 and 189, effective
January 1, 2019. He requested the appointment of counsel.
The trial court issued an order to show cause and appointed defendant counsel.
The prosecution filed a written response arguing Senate Bill 1437 was unconstitutional
and that defendant was not entitled to relief because, as we found in Miller and as the
8
evidence presented at trial overwhelmingly showed, he shared Jefferson’s murderous
intent and he directly aided and abetted Celestine’s murder. The prosecution requested
that the trial court judicially notice this court’s opinion in Miller and attached a copy to
its response.
In June 2019, defense counsel filed a response asserting Senate Bill 1437 was
constitutional. While counsel acknowledged that the prosecution presented two theories
at trial for defendant’s murder liability—that defendant was either an aider and abettor of
the actual killer, or that he was an aider and abettor of an assault with a deadly weapon,
the natural and probable consequences being premeditated, willful, and deliberate
murder—defense counsel claimed, given defendant’s own testimony and additional trial
evidence referenced in a prior habeas corpus petition, that the jury could only have relied
on the natural and probable consequences doctrine to find defendant guilty. According to
him, the prosecution and the trial court could not now substitute their own theory of
liability for that of the previous jury. Defendant’s response twice referenced the
applicable burden of proof under section 1170.95—that the prosecutor had to prove
beyond a reasonable doubt that defendant could still be convicted of murder despite
Senate Bill 1437’s changes.
In September 2019, defendant filed a supplemental response. Defendant attached
as exhibits the transcripts of the parties’ closing arguments and the jury instructions given
by the trial court as well as a jury question and the trial court’s response during
deliberations; he requested that the trial court take judicial notice of the attached
materials. Summarizing the transcripts, counsel argued that defendant was prosecuted for
Celestine’s murder based solely on the legal theory of aider and abettor liability, and that
the prosecutor specifically argued defendant aided and abetted Jefferson and Miller in an
assault with a deadly weapon, the natural and probable consequences of which were the
first degree murder of Celestine. According to defendant, the prosecutor did not allege or
9
argue to the jury that defendant had the specific intent to kill, or that he directly aided and
abetted either Jefferson or Miller with the specific intent to kill Celestine.
Defendant’s supplemental reply again highlighted the prosecution’s burden under
section 1170.95 to prove beyond a reasonable doubt that he was ineligible for
resentencing. The supplemental response emphasized that the trial court was required “to
resentence him on his murder conviction, unless the prosecution can prove beyond a
reasonable doubt that he does not qualify for resentencing.”
At the hearing on the petition on November 4, 2019, defense counsel requested
that the trial court strike all of the references in the prosecutor’s brief to the actual trial
transcripts because he had not been provided a free copy of the transcripts. The trial
court refused counsel’s request. The trial court explained that defendant had already been
provided with a free copy of the complete trial transcripts for his direct appeal, and that
the court did not have a budget to pay for a second copy for defendant. The trial court,
however, offered to continue the hearing to allow defense counsel an opportunity to
review the transcripts. After conferring with defendant, defense counsel indicated that
they wished to proceed with the hearing despite not having reviewed a complete copy of
the transcripts. 6
Defense counsel argued that the prosecution had the burden of proving beyond a
reasonable doubt that defendant was not eligible for resentencing, and that the trial court
could not find defendant ineligible for relief based on a theory that was never presented
to his jury. The prosecutor agreed with defense counsel that because the court had issued
an order to show cause, her burden was to show beyond a reasonable doubt that
defendant could still be convicted of murder following Senate Bill 1437’s changes. She
argued that “[t]he analysis is for this Court to consider, could he be convicted of first—or
6 Defendant attached copies of the transcripts of the closing arguments and the trial
court’s instructions to his supplemental response.
10
second degree murder today, and the answer has to be yes, not just based on the Third
DCA’s opinion, but the facts that I put forth in my brief.” Based on the jury instructions
given (CALCRIM Nos. 400 and 401), the prosecutor also argued that defendant was tried
under both a direct aiding and abetting theory as well as aiding and abetting a target
offense, the natural and probable consequences of which was a murder. Because the
verdict did not specify which theory the jury relied upon, there was no way to know
whether defendant was convicted as a direct aider and abettor or based on the natural and
probable consequences doctrine. Nevertheless, the evidence showed that defendant could
still be convicted as a direct aider and abettor with the intent to kill.
After reviewing the parties’ written submissions and considering their arguments
at the hearing, the trial court denied the petition, finding defendant ineligible for relief.
The trial court ruled that it had initially issued the order to show cause because the jury
had been instructed on the natural and probable consequences doctrine. However, the
court found that “the evidence was overwhelming in many different ways that
[defendant] [was] not eligible for relief.” The trial court noted this court’s decision in
Miller, which found that defendant’s conduct and statements before, during, and after the
attack provided overwhelming evidence that he shared Jefferson’s murderous intent and
aided and facilitated Celestine’s murder. In addition, the trial court found that defendant
“was a major participant by any measure,” and that “he shared the intent to kill by the
bulk of the evidence . . . .” The trial court did not consider defendant’s case particularly
close.
Defendant timely appealed.
DISCUSSION
I
Overview of Senate Bill 1437
Senate Bill 1437 was enacted to “amend the felony murder rule and the natural
and probable consequences doctrine, . . . to ensure that murder liability is not imposed on
11
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).) Senate Bill 1437 achieves these goals by amending
section 188 to require that a principal act with express or implied malice (§ 188, as
amended by Stats. 2018, ch. 1015, § 2), and by amending section 189 to state that a
person can be liable for felony murder only if (1) the “person was the actual killer”;
(2) the person, with an intent to kill, was an aider or abettor 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.” (§ 189, subd. (e), as amended by Stats.
2018, ch. 1015, § 3.)
Senate Bill 1437 also added section 1170.95 to provide the resentencing petition
process for a “person convicted of felony murder or murder under a natural and probable
consequences theory.” (§ 1170.95, subd. (a).) After a defendant submits a petition and
the court performs an initial review for missing information, subdivision (c) of section
1170.95 provides: “The court shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the provisions of this section.
If the petitioner has requested counsel, the court shall appoint counsel to represent the
petitioner. The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the prosecutor’s
response is served. These deadlines shall be extended for good cause. If the petitioner
makes a prima facie showing that he or she is entitled to relief, the court shall issue an
order to show cause.”
Following an order to show cause, the court must hold a hearing “to determine
whether to vacate the murder conviction and to recall the sentence . . . .” (§ 1170.95,
subds. (c), (d)(1).) At that hearing, the prosecution bears the burden of proving beyond a
reasonable doubt that the defendant is not eligible for resentencing. (§ 1170.95, subd.
(d)(3).) “The prosecutor and the petitioner may rely on the record of conviction or offer
12
new or additional evidence to meet their respective burdens.” (Ibid.) The parties also
may waive a resentencing hearing and stipulate that a defendant “is eligible to have his or
her murder conviction vacated and for resentencing.” (§ 1170.95, subd. (d)(2).)
II
Denial of Section 1170.95 Petition
Defendant contends the trial court erroneously denied his resentencing petition
based on an incorrect burden of proof and an inapplicable felony-murder theory; he also
argues the court inappropriately relied on this court’s prior opinion to deny the petition.
These alleged errors, he argues, were structural, requiring automatic reversal, or, at the
very least, they were not harmless. We are not persuaded.
It is “presumed that official duty has been regularly performed.” (Evid. Code,
§ 664; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Trial courts, moreover, are
presumed to know and apply the correct statutory and case law. (People v. Coddington
(2000) 23 Cal.4th 529, 644, disapproved on another ground in Price v. Superior Court
(2001) 25 Cal.4th 1046, 1069, fn. 13. Nothing defendant cites overcomes this
presumption.
He argues, based on the trial court’s comments during the hearing, that the trial
court applied an incorrect burden of proof in finding he had an intent to kill by the “bulk
of the evidence” rather than by the statutorily required beyond a reasonable doubt
standard. The trial court’s comment, however, cannot be viewed in isolation. When
properly viewed in context, the record affirmatively shows that the trial court was well
aware that the prosecutor bore the burden of proving beyond a reasonable doubt that
defendant was ineligible for resentencing under section 1170.95. (§ 1170.95, subd. (d)(3)
[at a hearing to determine whether to vacate the murder conviction and recall the
sentence, the prosecutor bears the burden to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing].)
13
Counsel for both parties agreed that the beyond a reasonable doubt standard found
in section 1170.95, subdivision (d)(3) applied, and that it was the prosecutor’s burden to
meet it. The parties noted the standard in the written briefs and during oral argument at
the evidentiary hearing after the trial court issued the order to show cause. And the trial
court expressly stated that it had “read all the moving papers.”
With the applicable beyond a reasonable doubt standard of proof highlighted by
the parties, the trial court ruled that it “[did not] think this is a particularly close case.”
While it is true the court never used the phrase “beyond a reasonable doubt” during the
hearing, defendant concedes such exact “magic words” were not necessarily required.
Furthermore, the court’s comment referencing our decision in Miller where we found that
defendant’s conduct and statements before, during, and after the attack provided
“overwhelming evidence” that he shared Jefferson’s murderous intent and aided and
facilitated Celestine’s murder does not mean the court held the prosecutor to some sort of
“overwhelming evidence” standard of proof rather than the beyond the reasonable doubt
standard called for in section 1170.95. The same applies to the trial court’s “bulk of the
evidence” comment regarding defendant’s intent to kill. We interpret the trial court’s
statements to mean simply that, in the trial court’s view, the case for relief was not even
close because the evidence overwhelmingly showed defendant directly aided and abetted
Jefferson with the intent to kill Celestine. Thus, the trial court was implicitly convinced
beyond a reasonable doubt that defendant was not eligible for resentencing.
Similarly, the trial court’s comment that the evidence showed defendant was “a
major participant by any measure” does not mean, as defendant contends, that the trial
court was laboring under the misapprehension that the felony-murder rule applied.
Neither party, we note, ever argued that the felony-murder rule applied to defendant’s
case since the assault on Celestine merged with the homicide, making the felony-murder
rule inapplicable. (People v. Chun (2009) 45 Cal.4th 1172, 1200 [“[w]hen the underlying
felony is assaultive in nature . . . the felony merges with the homicide and cannot be the
14
basis of a felony-murder instruction[;] [a]n ‘assaultive’ felony is one that involves a
threat of immediate violent injury”].) The court, moreover, did not find that defendant
was a major participant who acted with reckless indifference to human life as required by
the amended felony-murder rule in section 189, subdivision (e). (§ 1170.95, subd.
(e)(3).) The comment, when considered against the backdrop of all the evidence
presented on the petition, shows that the trial court believed defendant’s participation in
the murder was not merely as a passive participant as his counsel argued, but rather that
he directly aided and abetted the murder.
We are also not persuaded that the trial court was misguided by defense counsel’s
reference to the trial court as a reviewing court that could not substitute its own feelings
about the credibility and strength of the evidence. As the People point out, the prosecutor
emphasized that ruling on the petition was a postconviction proceeding where, as when
applying Propositions 36, 47, and 64, courts could consider the strength and credibility of
the evidence. And the trial court expressly found that “[it did not think it] was a
particularly close case” as opposed to finding that some hypothetical jury could still have
found defendant guilty beyond a reasonable doubt.
Defendant’s contention that the trial court erred in relying on this court’s prior
opinion to deny relief is likewise without merit. An appellate opinion is part of the
record of conviction that the trial court may consider under section 1170.95. (See, e.g.,
People v. Lewis (2021) 11 Cal.5th 952, 971-972 (Lewis) [after appointment of requested
counsel and consideration of briefs, a trial court may consider the record of conviction,
including a prior appellate court opinion, in determining whether a petitioner has made
the single prima facie showing required under section 1170.95, subdivision (c)];
People v. Woodell (1998) 17 Cal.4th 448, 456 [an appellate opinion is a part of the record
of conviction]; see also, § 1170.95, subd. (d)(3) [the parties may rely on the record of
conviction to meet their respective burdens during evidentiary hearing].) In any event,
while it is true the trial court cited our prior opinion in denying the petition, the
15
prosecutor specifically referenced evidence admitted at trial in her responsive brief and
the trial court refused to strike the evidence when defense counsel requested that it do so
at the hearing because it believed considering all the available evidence was appropriate.
Defendant’s supplemental response also included the transcript of closing arguments and
the jury instructions for the court’s consideration. The trial court recited that it had read
and considered all of the moving papers, which included the evidence presented in the
written submissions. Because the trial court did not solely rely on this court’s Miller
opinion to deny the petition, the fact that we applied a substantial evidence standard of
review on appeal is irrelevant.
To the extent defendant argues that it is unclear whether the jury convicted
defendant on a direct aiding and abetting theory or a natural and probable consequences
theory, the controlling question for eligibility under section 1170.95 was whether
defendant could still be convicted of murder under a theory permitted by section 188 or
189, not whether a jury relied on that same theory at trial. (§ 1170.95, subd. (a)(3).)
Likewise, the proper inquiry on the petition was not whether the jury instructions given
during his trial are still valid in light of subsequent changes in the law, but whether the
prosecutor proved beyond a reasonable doubt that defendant could still be convicted of
murder under the newly revised statutes. (§ 1170.95, subds. (a)(3), (d)(3).)
Senate Bill 1437 did not “alter the law regarding the criminal liability of direct
aiders and abettors of murder because such persons necessarily ‘know and share the
murderous intent of the actual perpetrator.’ ” (People v. Lewis (2020) 43 Cal.App.5th
1128, 1135, abrogated on other grounds in Lewis, supra, 11 Cal.5th 952.) “One who
directly aids and abets another who commits murder is thus liable for murder under the
new law just as he or she was liable under the old law.” (People v. Lewis, supra,
43 Cal.App.5th at p. 1135.) The trial court implicitly found that defendant aided and
abetted Celestine’s killing with a murderous intent. Substantial evidence amply supports
the trial court’s conclusion. (People v. Lopez (2020) 56 Cal.App.5th 936, 953
16
[sufficiency of the evidence standard applies when reviewing postjudgment denial of a
petition for resentencing under section 1170.95 following issuance of an order to show
cause and evidentiary hearing], review granted February 10, 2021, S265974.)
The evidence at trial showed defendant was present when Jefferson first attacked
Knowles, stunning her over 50 times with a taser, cutting her multiple times with a knife,
and physically assaulting her because she was so outraged that Knowles had allowed
people into her home while housesitting for her. Defendant threw water on Knowles and
stunned her at least twice; he also drop-kicked her in the face with his boot. During the
attack defendant threatened Knowles’s sister not to intervene or else both she and
Knowles “would be dead.” Defendant later threatened Knowles that if she told anyone of
the attack, they would come back and kill her family.
Having witnessed and participated in the attack on Knowles, the next day
defendant accompanied Jefferson and Miller to Celestine’s house. Each was armed with
a weapon, defendant with a gun and Jefferson and Miller with knives. Defendant
brandished his gun and prevented Charolett from escaping the apartment to get help
while Jefferson and Miller continuously stabbed Celestine as he lay defenseless on the
floor. During the stabbing defendant threatened to shoot Celestine if Charlotte tried to
help him, and also stated, “Let me shoot him. Let me shoot him.” He told Charlotte he
was “going to shoot him,” and repeatedly told Jefferson, “Let me just kill him. Let’s just
get it over with. Let me just kill him.” Defendant said he had to kill Celestine after
Charlotte said Jefferson’s name when begging her to stop, and later kicked him in the
side causing Celestine’s body to jump and go limp. He threatened to finish the job and
kill everyone in the house if he saw any police, and when Charlotte asked if she could
call an ambulance defendant responded, “No. Let that mother fucker die.”
Given the above, more than sufficient evidence supports the trial court’s finding
that defendant shared Jefferson’s murderous intent and aided and abetted Jefferson in
17
killing Celestine. The trial court applied the correct standard of proof and did not err in
denying defendant’s petition.
III
Equal Protection and Due Process Rights to Access to Complete Trial Transcript
Defendant contends the trial court’s refusal to provide a second copy of the
complete trial transcript, free of charge, before ruling on the petition violated his rights to
equal protection and due process. The People argue defendant had adequate alternatives
to review the transcript, and also invited the alleged error. We agree that any alleged
error was invited.
We need not decide whether the parameters of the equal protection or due process
clauses mandate that the State provide a second free copy of the transcript of an indigent
defendant’s prior trial for purposes of a postconviction hearing under section 1170.95.
(See e.g., Griffin v. Illinois (1956) 351 U.S. 12, 18-19 [100 L.Ed. 891] [under equal
protection, an indigent defendant is entitled to free transcript of prior proceedings if
necessary for proper appellate review or an effective defense]; People v. Hosner (1975)
15 Cal.3d 60, 65-66 [extending holding in Griffin to require that an indigent defendant be
provided the transcript from a mistrial caused by a hung jury, upon request, where the
defendant seeks the transcript to aid in his defense at a retrial].) This is because the
invited error doctrine bars defendant from raising the issue.
“The doctrine of invited error is designed to prevent an accused from gaining a
reversal on appeal because of an error made by the trial court at his behest.” (People v.
Wickersham (1982) 32 Cal.3d 307, 330, disapproved on other grounds by People v.
Barton (1995) 12 Cal.4th 186.) A party who, by his conduct induces the commission of
an error, is estopped from asserting it as a ground for reversal on appeal. (Geffcken v.
D’Andrea (2006) 137 Cal.App.4th 1298, 1312.) The doctrine requires affirmative
conduct demonstrating a deliberate tactical choice on the part of the challenging party.
(Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 706.)
18
In this case, the trial court repeatedly offered to continue the hearing to give
defense counsel an adequate opportunity to review the full trial transcript. After the trial
court said it would not strike the People’s references to the trial transcript citations in its
response, but offered to give defendant more time to review the trial transcript, defense
counsel conferred with defendant and agreed that they wanted to proceed with the
hearing. This appears to have been a tactical decision because counsel had a “pretty good
understanding” of the facts of defendant’s case since he had reviewed this court’s prior
opinion, which set forth in detail the evidence presented at trial, and had also reviewed a
habeas corpus petition defendant previously filed, which also included a summary of the
evidence presented at trial. Defendant had also obtained at least a portion of the trial
transcript because he attached over 200 pages of the transcript to his supplemental
response, including the closing arguments and jury instructions. After further discussion
about how the trial court did not have budgetary means to supply defendant with a second
copy of the full trial transcript since he had already been provided with a free copy on his
direct appeal, counsel again indicated that he wanted to have the hearing despite not
having reviewed the entire transcript. The parties and the trial court then proceeded with
the hearing.
Based on counsel’s comments of the materials he had reviewed and his discussion
with defendant before informing the trial court that they wanted to proceed even without
having reviewed the entire trial transcript, defendant invited any alleged error by the
court in electing to proceed with the hearing. He cannot now complain on appeal that he
was not provided with a second free copy of the entire trial transcript before the trial
court ruled on the petition.
DISPOSITION
The order denying defendant’s petition for resentencing under section 1170.95 is
affirmed.
19
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
DUARTE, J.
\s\ ,
RENNER, J.
20