People v. Williams CA2/5

Filed 2/25/22 P. v. Williams CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B303054 c/w B307686

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA006461)
v.

MARC L. WILLIAMS, et al.

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles
County, Upinder S. Kalra, Judge; Lauren Weis Birnstein, Judge.
Reversed and remanded.
Jin H. Kim, under appointment by the Court of Appeal, for
Defendant and Appellant Marc Williams.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant Cobert Davis.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez, Ryan M. Smith and William
H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
 Defendants Marc Williams and Cobert Davis appeal the
summary denial of their petitions for resentencing under Penal
Code section 1170.95.1 We conclude defendants’ petitions should
not have been denied as a matter of law, and remand for the
court to appoint counsel and determine defendants’ eligibility for
relief under the statute.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Crimes, Conviction and Appeal 2
Over a two-week period in 1991, defendants engaged in a
robbery spree – they committed some of the crimes together and
others alone or with other accomplices. One of the robberies they
committed together resulted in the death of the victim, by heart
attack.
“At approximately 3:30 p.m. on April 1, 1991, Archie
O’Bryant, a 71-year-old man, was at home working in his garage,
when he was robbed by defendants. At 3:45 p.m., he came into
his house and told his wife he had been beaten and robbed. His
head and finger were bloody. He told his wife to call 9-1-1, which
she did. O’Bryant and his wife both spoke with the 9-1-1
operator. O’Bryant told the operator he had been beaten and
robbed by two Black men. O’Bryant then sat down on the
davenport and told his wife that one of the attackers held a
shotgun to his stomach and the other hit him over the head with
a pistol. He did not know what they wanted or why they kept

1 All undesignated statutory references are to the Penal
Code.

2 Our discussion of the underlying facts is taken from the
opinion affirming defendants’ convictions (People v. Williams et
al. (Dec. 23, 1994, B078600) [nonpub. opn.]) of which we have
taken judicial notice.

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hitting him.[3] After O’Bryant related his story to his wife, he
had trouble breathing and died of a heart attack. [¶] The cause
of death was a combination of arteriosclerotic heart disease and
blunt force injuries. The trauma assisted in his death in that the
injuries had the effect of increasing O’Bryant’s heart rate, blood
pressure and strain on his heart. It was the stress from the
injuries, not the injuries themselves, which caused the heart
attack; and the heart attack combined with the blunt force
injuries caused death. O’Bryant was pronounced dead at
4:51 p.m., although he had no vital signs as early as 4:37 p.m.”
Defendants thereafter used O’Bryant’s credit card three times on
the day of the robbery.
Both Williams and Davis were convicted of first-degree
murder, with a felony-murder special circumstance, and personal
use of a firearm.
On appeal, defendants argued that the trial court erred in
its instruction to the jury on the special circumstance. The jury
had been instructed with the 1990 version of CALJIC No. 8.80.1,
which provided that the jury could not find the special
circumstance true for a defendant unless it found that defendant
was the actual killer, was an aider and abetter with intent to kill,
or was a major participant acting with reckless indifference to
human life. Defendants argued in their appellate briefs that the
court erred by not sua sponte instructing on the meaning of
“actual killer” and “reckless indifference.” On December 23,

3 At the preliminary hearing, the detective testified that Mrs.
O’Bryant told the police that one of the attackers “put a shotgun
in his chest and kept asking for his ‘pin number.’ He didn’t know
what that was so he repeated his social security number and the
assailants continued to hit him with a gun.”

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1994, a prior panel of this division affirmed, holding that the
terms were not used in a technical sense, so no duty to instruct
on their meaning existed in the absence of a request. The court
continued, “Moreover, any instructional error was harmless. The
evidence was overwhelming that both defendants were actual
killers, therefore any instructional error was harmless beyond a
reasonable doubt. [Citation.] A defendant is an actual killer if
that defendant’s conduct was a substantial factor contributing to
the victim’s death.[4] (People v. Pock (1993) 19 Cal.App.4th 1263,
1272-1275.) Both defendants robbed O’Bryant in his garage, and
it was that robbery which caused O’Bryant’s heart attack.
Defendants contend that O’Bryant’s statements to his wife
demonstrate that only one attacker beat O’Bryant while the other
pointed a gun at him. Defendants conclude that only the
assailant who beat O’Bryant was the actual killer, the other was
an aider and abetter. We disagree. It was not the beating per se
that killed O’Bryant, but the stress of the robbery that caused his
heart attack.[5] Thus, both defendants were substantial causes of
the heart attack. (See People v. Anderson (1987) 43 Cal.3d 1104,
1152, fn. 3 (conc. and dis. opn. of Broussard, J.) [death penalty

4 At this point, the court, in a footnote, rejected Williams’s
argument that an act is not a substantial factor unless it is an
intentional act done with conscious disregard for human life and
likely to cause death.

5 The court inserted a footnote reading: “This is not a case
where one of the perpetrators waited in a getaway car while the
other robbed the victim. Instead, both defendants participated in
the attack on O’Bryant, even if only one defendant did the actual
hitting while the other defendant kept O’Bryant in place with his
weapon.”

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available for a defendant burglar who startles a resident who
subsequently dies of a heart attack].) Since both defendants were
actual killers, any instructional error was harmless beyond a
reasonable doubt.”
2. Prior Habeas Petition
On June 6, 2018, Davis filed a petition for habeas corpus in
the trial court. He relied on the intervening decisions in People v.
Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark), which set forth factors to be considered in
determining whether a defendant was a major participant who
acted with reckless indifference to human life. In his petition,
Davis argued that he was merely “an aid[er] an[d] abettor to the
planning and robbery of Archie O’Bryant” and did not act with
reckless indifference.
On September 13, 2018, the court (Hon. Lauren Weis
Birnstein) summarily denied Davis’s habeas petition. The trial
court’s order indicated that it adopted the facts set forth in this
division’s prior opinion affirming the conviction, which was
apparently attached to an informal return filed by the district
attorney. The trial court stated, “In the appellate opinion, the
Court determined that there was overwhelming evidence that
both defendants were Mr. O’Bryant’s actual killers because the
conduct of each was a substantial factor contributing to the
victim’s death. The court stated that it was not the beating per se
that killed the victim, but the stress of the robbery that caused
his heart attack. Thus, ‘both defendants were substantial causes
of the heart attack.’ [¶] Because [Davis] was an actual killer he,
of course, was a major participant in Mr. O’Bryant’s death.” The

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court found that the string of crimes Davis committed with
Williams demonstrated reckless indifference.6
3. Proceedings on Section 1170.95 Petitions
A. Williams
On June 3, 2019, Williams filed a form petition for
resentencing under Penal Code section 1170.95. 7 In his petition,
he checked all the necessary boxes – among them, that he was

6 Our review of the chronology set forth in this division’s
prior opinion indicates that the O’Bryant robbery/murder was the
first known crime that both defendants committed together.
Williams had committed a robbery the day before with “an
unseen accomplice,” but only Williams was convicted of that
crime.

7 The section 1170.95 petition in our appellate record is
marked “received” on June 3, 2019. It is otherwise undated.
There is a minute order from four months earlier, February 1,
2019, indicating that Williams’s petition was received and set for
proceedings on April 2, 2019. A minute order on April 2, 2019
continued proceedings to June 3, 2019 for the prosecution’s
response to the petition and indicated counsel would be appointed
for Williams at that time. The reporter’s transcript for June 3,
2019 shows the presence of a bar panel attorney, who was ready
to be appointed, but neither the court nor counsel could find
Williams’s petition. Counsel and the trial court (Hon. Leslie E.
Brown) also discussed the fact that the trial court had prepared a
tentative ruling denying Williams’s petition. Upon further
review of the file, no petition for Williams could be found.
Thereafter, a new petition for Williams was filed, the court
appointed counsel, and counsel filed a preemptory challenge to
Judge Brown, who had previously indicated an intention to deny
the petition. The matter was transferred to a different judge
(Hon. Upinder Kalra), who ruled on the section 1170.95 petition.

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convicted of felony murder and was not the actual killer, did not
act with intent to kill, and was not a major participant acting
with reckless indifference to human life. The court appointed
counsel. Prior to the prosecution filing an opposition, the trial
court summarily denied the petition with a written order. The
court stated that, having reviewed the Court of Appeal opinion on
direct appeal, it was clear that Williams could not establish a
prima facie case of eligibility for relief. Specifically, the court
stated that “the Court [of Appeal] explicitly found that Petitioner
was one of the actual killer[s] and not an aider and abettor.”
Williams filed a timely notice of appeal. 8
B. Davis
On March 9, 2020, Davis filed a form petition for
resentencing under section 1170.95, in which he made the same
assertions as Williams. On July 1, 2020, the court (Judge Weis
Birnstein) set the matter for a hearing the next day regarding the
appointment of counsel. At the July 2, 2020 hearing, the court
initially indicated its understanding that defendant’s jury had
been instructed on felony murder, and that the court would
therefore be required to determine whether defendant was a
major participant who acted with reckless indifference. The court
stated its intention to appoint counsel. After further discussion,
Judge Weis Birnstein recalled that she had previously ruled on
Davis’s habeas petition, and went off the record so the parties
could review the ruling on the habeas petition. Back on the
record, the court stated that the habeas ruling addressed the

8 Williams did not initially file a timely notice of appeal, but
we granted him relief from default and 10 days in which to file a
notice of appeal, with which he complied.

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issues under Banks, and concluded it was now unnecessary to
appoint counsel for Davis.
On July 29, 2020, the court summarily denied Davis’s
1170.95 petition by written order. Just as Judge Kalra had
reasoned in denying Williams’s petition, Judge Weis Birnstein
relied on the prior Court of Appeal decision to deny Davis’s
petition. She stated that the Court of Appeal determined, “that
there was overwhelming evidence that both defendants were Mr.
O’Bryant’s actual killers because the conduct of each was a
substantial factor contributing to the victim’s death. The court
stated that it was not the beating per se that killed the victim,
but the stress of the robbery that caused his heart attack. Thus,
‘both defendants were substantial causes of the heart attack.’ [¶]
Because Petitioner was an actual killer he, of course, was a major
participant in Mr. O’Bryant’s death. His behavior throughout
these multiple, similar crimes, i.e. threatening death, beating
victims in the head, and using a shotgun to terrorize, a fortiori
demonstrate a reckless indifference to the grave risk of death he
created by his actions in the O’Bryant crime. The evidence of
defendant’s individual culpability was overwhelming.”
Davis filed a timely notice of appeal.9 Following briefing,
we consolidated the matters for oral argument and decision.

9 The minute order which memorialized the court’s ruling
denying Davis’s section 1170.95 petition erroneously
characterized it as a habeas petition. For perhaps this reason,
Davis attempted to challenge the ruling by filing a habeas
petition with this court. We directed the superior court to file the
petition as a notice of appeal.

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 DISCUSSION
Section 1170.95 provides an opportunity for resentencing
for defendants who were convicted of murder on a theory of felony
murder or natural and probable consequences. When a
defendant files a petition for resentencing under section 1170.95,
the trial court is to review it for facial sufficiency. If it is
factually sufficient and the defendant requests counsel, the court
must appoint counsel. (People v. Lewis (2021) 11 Cal.5th 952, 957
(Lewis).) Once counsel is appointed, the matter is briefed and the
court “shall hold a hearing to determine whether the petitioner
has made a prima facie case for relief. If the petitioner makes a
prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause.” (§ 1170.95, subd. (c).)
“While the trial court may look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
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.” ’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 971.)

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 Defendants contend, and the Attorney General now agrees,
that the trial court erred by denying their petitions without
allowing briefing by counsel for defendants. 10 (Lewis, supra,
11 Cal.5th at p. 957.) The only issue left for determination is
whether that error was harmless. The error is one of state law,
reviewed for prejudice under the standard of People v. Watson
(1956) 46 Cal.2d 818, 836. (Lewis, at pp. 957-958.) Under that
standard, defendants have the burden to demonstrate a
reasonable probability that they would have obtained a more
favorable result had counsel been appointed. (Id. at p. 974.)
The Attorney General argues that the error is harmless as
a matter of law because defendants were nonetheless ineligible
for relief for two reasons: (1) the jury’s true finding on the
special circumstance precludes relief; and (2) the prior opinion of
this court established that both defendants were actual killers.
We disagree.
A. The Special Circumstance Finding Does Not Preclude
Relief
Defendants were convicted prior to the opinions in Banks
and Clark which “construed the meanings of ‘major participant’
and ‘reckless indifference to human life’ ‘in a significantly
different, and narrower manner than courts had previously.’
[Citation.]” (People v. Smith (2020) 49 Cal.App.5th 85, 93
(Smith), review granted July 22, 2020, S262835.) We have held

10 Counsel was appointed for defendant Williams, but the
court denied the petition prior to briefing or a hearing. The
Attorney General concedes this was error. Similarly, the
Attorney General concedes the trial court erred by “terminating
its order to appoint counsel” for Davis.

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that a felony murder special circumstance which predates Banks
and Clark is an insufficient basis on which a trial court may deny
a petition for relief at the first stage, which determines only if the
defendant is ineligible for relief as a matter of law. (People v.
Torres (2020) 46 Cal.App.5th 1168, 1179 (Torres). See also People
v. Mejorado (2022) 73 Cal.App.5th 562, 571.) Because Banks and
Clark “clarif[ied]” the law, a special circumstance which predated
those cases does not necessarily satisfy the current, more narrow
requirements. (Torres, at p. 1179.)11

11 A number of cases have disagreed with Torres, and held
that a pre-Banks/Clark special circumstance is a sufficient basis
on which to conclude a defendant is ineligible for relief under
section 1170.95, suggesting that the proper procedure for the
defendant to raise Banks and Clark is via a habeas petition.
(E.g., People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan),
review granted Oct. 14, 2020, S264284; see also People v. Nunez
(2020) 57 Cal.App.5th 78 (Nunez), review granted Jan. 13, 2021,
S265918; People v. Jones (2020) 56 Cal.App.5th 474, 483-485
(Jones), review granted Jan. 27, 2021, S265854; People v. Allison
(2020) 55 Cal.App.5th 449, 452 (Allison); People v. Murillo (2020)
54 Cal.App.5th 160, 173 (Murillo), review granted Nov. 18, 2020,
S264978; People v. Gomez (2020) 52 Cal.App.5th 1, 16-17
(Gomez), review granted Oct. 14, 2020, S264033.) On appeal, the
Attorney General cites to several of these cases and argues
against Torres. We have already addressed and disagreed with
Galvan’s analysis (People v. York (2020) 54 Cal.App.5th 250, 260-
263, review granted Nov. 18, 2020, S264954). We also
respectfully disagree with Nunez, Jones, Allison, Murillo and
Gomez, and adhere to the rule we expressed in Torres. The
Supreme Court will resolve the dispute in People v. Strong
(Dec. 18, 2020, C091162), 2020 WL 7417057 [nonpub. opn.],
review granted Mar. 10, 2021, S266606.)

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 The Attorney General argues, in the alternative, that even
if Torres is correct and a pre-Banks and Clark special
circumstance finding does not render the defendant ineligible for
relief as a matter of law, any error was harmless. The argument
continues that whether a defendant’s conviction satisfies Banks
and Clark is a legal determination which should be made de novo
by this court on appeal. If the de novo determination shows that
the Banks and Clark requirements were satisfied, any error by
the court under section 1170.95 would be harmless. We have
previously rejected this argument as well. The determination of
whether a defendant was a major participant acting with reckless
indifference within the meaning of Banks and Clark is a factual
determination which cannot be conducted at this stage as a
matter of law by simply reviewing the existing record. (Smith,
supra, 49 Cal.App.5th at p. 95; contra People v. Law (2020)
48 Cal.App.5th 811, 816, 822, review granted July 8, 2020,
S262490.) This is so because the factual record “is not the only
consideration the trial court must take into account for purposes
of section 1170.95. Where the record of conviction does not
preclude a petitioner from making a prima facie showing that he
falls within the statute’s provisions as a matter of law, the
petitioner is not confined to presenting evidence contained in the
record of conviction in seeking relief.” (Smith, at p. 95.)
B. The Prior Appellate Opinion Is Not Binding
We now come to the reason given by both trial courts for
denying defendants’ section 1170.95 petitions (and defendant
Davis’s prior petition for habeas corpus) – that the prior opinion
by a different panel of this court stated “[t]he evidence was
overwhelming that both defendants were actual killers . . . .”

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 The California Supreme Court in Lewis confirmed that a
trial court, in evaluating whether the moving defendant has
established a prima facie case under 1170.95, may “look at the
record of conviction.” (Lewis, supra, 11 Cal.5th at p. 971.) This
includes the prior appellate opinion. (Id. at p. 972.) However,
“[i]n 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 exercise of
discretion.’ [Citation.] As the People emphasize, the ‘prima facie
bar was intentionally and correctly set very low.’ ” (Ibid.)12
In People v. Langi (2022) 73 Cal.App.5th 972 [2022 WL
110250], Division Four of the First Appellate District addressed
the issue of reliance on factual determinations in prior appellate
opinions. In Langi, the defendant was one of four men who beat
and robbed a group of men. One of the victims died after
someone in defendant’s group punched him, causing him to fall
and hit his head. (Id. at p. *1.) On direct appeal, the court’s
opinion affirming defendant’s conviction stated that defendant
was the individual who threw the fatal punch. (Id. at p. *1.)

12 At the time of the petitions filed in this case, and the
Supreme Court’s Lewis opinion, section 1170.95, subd. (d)(3)
provided that, at “the hearing to determine whether the
petitioner is entitled to relief,” the parties may “rely on the record
of conviction.” As amended by Senate Bill No. 775, effective
January 1, 2022, that clause has been removed; the statute
instead provides that the court “may consider any evidence
previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court
may also consider the procedural history of the case recited in
any prior appellate opinion.” The parties have not briefed the
effect of this amendment, and we do not consider it.

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When defendant subsequently pursued a section 1170.95 petition,
the trial court denied the petition on the basis that the appellate
opinion had stated defendant was the one who had thrown that
punch, and was therefore the actual killer. (Id. at p. *2.) On
appeal, the court explained that the trial court treated the prior
appellate opinion “as conclusively establishing that the jury
found appellant guilty as the actual killer. Although
understandable in view of explicit statements in this court’s prior
opinion, the trial court erred in treating those statements as
conclusive.” (Id. at p. *3.) “Despite the statement in our prior
opinion that appellant threw the punch leading to the victim’s
death, for which the record does include evidence, the record as a
whole leaves room to question that conclusion.” (Id. at p. *4.)
“The jury was not required to find, and did not necessarily find,
that it was appellant who threw that punch. Read with the
caution dictated by Lewis, the prior opinion does not conclusively
establish that appellant was convicted as the actual killer.” (Id.
at p. *4.)
The observations by the Langi court apply equally here.
Our division’s prior opinion itself states that defendants were
“convicted of felony murder.” There is nothing in the opinion, or
the limited record before us, confirming that the jury was
required to find, or did find, that either defendant was the actual
killer of O’Bryant. The opinion acknowledges only one defendant
struck O’Bryant, and it is unknown which of the two defendants
did so.
To the extent the Attorney General relies on the prior
panel’s conclusion that any jury instruction error was harmless
because the evidence defendants were both actual killers “was
overwhelming,” the argument misperceives the limited nature of

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the prima facie inquiry and fails to take into account the
inconsistencies of the prior panel’s opinion.13 The question before
the trial court at the prima facie hearing is whether the
petitioners would be entitled to relief if their factual allegations
were proven. (Lewis, supra, 11 Cal.5th at p. 971.) The issue is
not whether there was overwhelming evidence at trial that
defendants were actual killers, but whether the record
conclusively proves defendants would be unable to establish the
contrary assertion in their petitions. Given that the jury did not
necessarily find that both were actual killers, the inconsistencies
in the description of cause of death as described in the appellate
opinion and defendants’ ability to argue based on additional parts
of the record, we cannot find the prior opinion’s evaluation of the
then-existing evidence preclusive.14
This is particularly so because the standard for
determining “actual killer” has changed in the intervening years.
While the prior panel of this division relied on the substantial
factor standard of People v. Pock, supra, 19 Cal.App.4th at
pages 1272-1275, recent authority has concluded the proper
standard is whether the defendant “personally” killed the victim.
(People v. Garcia (2020) 46 Cal.App.5th 123, 152.) How the
personally killed standard interacts with the felony murder

13 We emphasize, however, that no prima facie hearing, with
counsel, was actually held for either defendant. Our inquiry here
is not whether the trial courts made erroneous determinations at
prima facie hearings, but whether the trial court failures to hold
such hearings was harmless.

14 The trial court’s summary denial of Davis’s habeas petition
is similarly not controlling. (Torres, supra, 46 Cal.App.5th at
p. 1180, fn. 4.)

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liability if the robbery itself (rather than only the beating) causes
the death (People v. Stamp (1969) 2 Cal.App.3d 203, 210-211) is
an issue not yet ripe for analysis given the limited scope of our
review.
DISPOSITION
The orders denying defendants’ petitions for resentencing
are reversed. The matters are remanded for the court to hold
hearings under section 1170.95, subdivision (c).

RUBIN, P. J.
WE CONCUR:

MOOR, J.

KIM, J.

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