Filed 3/23/22 P. v. Williams CA2/8
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B300682
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA124662)
v.
MELVIN WILLIAMS,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Laura R. Walton, Judge. Dismissed in part; reversed in
part and remanded with directions.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews, Charles S. Lee and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.
**********
In 2013, defendant was charged in a consolidated information
with 10 felony counts, including two counts of attempted murder
arising from assaults on defendant’s former girlfriend and her
brother while threatening them with a shotgun. After a jury trial
in which defendant testified, defendant was found guilty of all
charges and sentenced to an indeterminate term of 48 years to life,
plus an eight-year determinate term.
We affirmed defendant’s conviction. (People v. Williams
(May 8, 2015, B252994) [nonpub. opn.].)
After the passage of Senate Bill 1437 (2017–2018 Reg. Sess.)
in 2018, defendant filed, in propria persona, a petition for
resentencing pursuant to Penal Code section 1170.95.
Section 1170.95 was enacted as part of the legislative changes
effected by Senate Bill 1437 and became effective January 1, 2019.
(Stats. 2018, ch. 1015, § 4.)
In his petition, defendant erroneously asserted he had been
convicted of murder (instead of attempted murder) under a theory
of felony murder or the natural and probable consequences doctrine
and requested the appointment of counsel. In support of his
petition, defendant filed a document designated as both
“supplemental evidence” in support of the resentencing petition and
a “motion to dismiss” for failure to disclose exculpatory evidence.
The trial court denied both the petition for resentencing and
the motion to dismiss without appointing counsel for defendant,
explaining that defendant did not qualify for resentencing, and the
documents presented as exhibits to his motion to dismiss were not
exculpatory evidence.
Defendant appealed both denials. In our original decision, we
affirmed the denial of defendant’s petition for resentencing and
dismissed his appeal to the extent it sought to challenge the denial
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of his motion to dismiss. (People v. Williams (July 20, 2020,
B300682) [nonpub. opn.].)
Defendant filed a petition asking the Supreme Court to grant
review to consider whether the superior court had committed error
in summarily denying his petition for resentencing without
appointing counsel. On September 30, 2020, the Supreme Court
granted review.
While this case was pending in the Supreme Court, the Court
issued its decision in People v. Lewis (2021) 11 Cal.5th 952 (Lewis)
and the Legislature passed Senate Bill 775 (2021–2022 Reg. Sess.)
which amended Penal Code section 1170.95 by, among other things,
expanding the scope of individuals entitled to petition for
resentencing, including those convicted of attempted murder under
a natural and probable consequences theory. (Stats. 2021, ch. 551,
§ 2.)
On January 26, 2022, the Supreme Court transferred this
case to us with directions to vacate our decision and reconsider the
matter in light of the passage of Senate Bill 775 and Lewis, supra,
11 Cal.5th 952. Having vacated our original decision and
reconsidered the issues presented in light of the new legislation and
Lewis, we reverse the order denying defendant’s petition for
resentencing and remand with directions to the superior court to
appoint counsel for defendant and conduct further proceedings in
accordance with Penal Code section 1170.95, subdivision (c) and if
necessary, subdivision (d), as amended.
As to the motion to dismiss, we again dismiss that portion of
the appeal.
DISCUSSION
1. The Petition for Resentencing
The trial court summarily denied defendant’s petition without
appointing counsel on the grounds defendant was not convicted of
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murder and therefore was ineligible for relief as a matter of law
according to the statutory language at that time. In light of the
passage of Senate Bill 775 amending the statute to include
attempted murder, the trial court’s order must be reversed.
Further, although the record of conviction discloses that
defendant acted alone in committing the offenses, it does not
demonstrate as a matter of law that defendant was not convicted
under a natural and probable consequences theory. We cannot say
on this record that the failure to appoint counsel was harmless.
(Lewis, supra, 11 Cal.5th at pp. 957–958, 972–973 [failure to
appoint counsel upon the filing of a facially compliant petition is
“state law error” subject to harmless error analysis under People v.
Watson (1956) 46 Cal.2d 818].) Reversal is warranted to allow the
matter to be briefed for the court and for the court to undertake a
new prima facie eligibility determination.
Defendant is entitled to the appointment of counsel upon
remand to assist him in seeking resentencing. (Lewis, supra,
11 Cal.5th at p. 957 [“petitioners are entitled to the appointment of
counsel upon the filing of a facially sufficient petition”].)
On remand, defendant, with the assistance of appointed
counsel, and respondent shall be entitled to file their respective
briefs. “After the parties have had an opportunity to submit
briefings, 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. If the court declines to
make an order to show cause, it shall provide a statement fully
setting forth its reasons for doing so.” (Pen. Code, § 1170.95,
subd. (c).)
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If the court issues an order to show cause, the court shall
conduct further proceedings in accordance with Penal Code
section 1170.95, subdivision (d), as amended.
2. The Motion to Dismiss
The denial of defendant’s jointly titled “supplemental
evidence” in support of resentencing and motion to dismiss was not
an appealable order. “ ‘It is settled that the right of appeal is
statutory and that a judgment or order is not appealable unless
expressly made so by statute.’ ” (People v. Mazurette (2001)
24 Cal.4th 789, 792.) Penal Code section 1237 “establishes the
general rule that a criminal defendant can appeal only from final
judgments and those orders deemed by statute to be final
judgments.” (Mazurette, at p. 792.)
Defendant argued the denial order affected his substantial
rights and was therefore appealable pursuant to subdivision (b) of
Penal Code section 1237. Defendant further argued he should have
been appointed counsel to pursue the motion before the court issued
a summary denial.
We disagree. The “motion” purported to be supplemental
evidence in support of defendant’s request for resentencing and
argued for reversal of the judgment of conviction and dismissal of
all charges based on the exhibits attached to the motion. Defendant
contended his conviction should be reversed because the prosecution
failed to timely turn over evidence regarding the two victims of his
crimes, including e-mails from his former girlfriend expressing her
desire not to testify against him and information her brother had
been previously arrested for driving under the influence.
Defendant’s motion is an improper attempt to collaterally
attack the judgment of conviction. To the extent defendant believes
he has bases upon which to collaterally challenge his conviction, the
remedy of filing a writ of habeas corpus remains available to him.
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Defendant is not entitled to the appointment of counsel to pursue
that remedy. (See, e.g., Pennsylvania v. Finley (1987) 481 U.S. 551,
555 [“right to appointed counsel extends to the first appeal of right,
and no further”]; In re Barnett (2003) 31 Cal.4th 466, 475 [same];
cf. In re Sanders (1999) 21 Cal.4th 697, 717–718 [distinguishing
California state practice of allowing appointment of counsel for
capital defendants in habeas proceedings].) If defendant believes he
has been denied any discovery necessary to pursue that remedy, he
may file a motion seeking postconviction discovery pursuant to
Penal Code section 1054.9, subdivision (a).
DISPOSITION
The order denying the petition for resentencing is reversed
and the case remanded to the superior court. On remand, the
superior court is directed to appoint counsel and conduct further
proceedings pursuant to Penal Code section 1170.95, subdivision (c),
as amended. If the court issues an order to show cause, the court
shall conduct further proceedings in accordance with
section 1170.95, subdivision (d), as amended.
The appeal of the order denying the postconviction motion to
dismiss is dismissed.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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