Filed 3/29/22 P. v. Williams CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B307212
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A710082
v.
DONALD LEE WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, David W. Stuart, Judge. Affirmed.
Diane E. Berley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Analee J. Brodie, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1991, defendant Donald Lee Williams and a codefendant
were convicted of first degree murder. The jury also found a
felony-murder special circumstance true. Williams appeals from
the denial of his petition for recall and resentencing under Penal
Code section 1170.95. He contends that the trial court improperly
reviewed the record of conviction and that the true finding on the
special circumstance does not bar relief. We conclude that based
on the instructions at trial, the jury could not find the special
circumstance true unless it concluded Williams was either the
actual killer or acted with malice aforethought. Because he could
not have been convicted under a now-invalid theory of murder, he
is ineligible for relief as a matter of law. We therefore affirm.
BACKGROUND
In 1991, a jury convicted Williams of one count of murder
(Pen. Code,1 § 187, subd. (a); count 9) and found true the special-
circumstance that the murder was committed during a robbery
(§ 190.2, subd. (a)(17)). The jury also convicted him of numerous
other crimes and enhancements not relevant here. The court
sentenced Williams to life without the possibility of parole for
count 9 and multiple life sentences for the other counts. By
unpublished opinion, a different panel of this court reversed two
attempted robbery counts because they were lesser-included
offenses of attempted kidnap for robbery, of which the defendants
were also convicted; modified both defendants’ pretrial custody
credits; and otherwise affirmed the judgment. (People v. Williams
1 All undesignated statutory references are to the Penal Code.
2
and Christopher (B065595, June 3, 1995 [nonpub. opn.], pp. 1, 2,
37.)
In March 2019, Williams petitioned for recall and
resentencing under section 1170.95 stating he had been charged
with murder under a theory of felony murder or murder under
the natural and probable consequences doctrine; at trial, he was
convicted of felony murder or murder under the natural and
probable consequences doctrine; and he could not be convicted of
murder under present law because he was not the actual killer, a
direct aider and abettor, or a major participant who acted with
reckless indifference to human life, as described in section 190.2,
subdivision (d). At his request, the court appointed counsel to
represent him. The prosecution filed an opposition and counsel
for Williams filed a reply.
On August 12, 2020, at a contested hearing, the court
denied the petition:
I do find in this case there is no prima facie case
made. Specifically, the pre-Prop. 115 special
circumstance instruction required a finding that the
defendant actually had the intent to kill. And that
was before the extra option of being a major
participant. So, necessarily, the jury found the
defendant had the intent to kill. And he could be
prosecuted today under that theory. So that is my
ruling. The defendant has failed to make a prima
facie showing as required by 1170.95.
Williams filed a timely notice of appeal.
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DISCUSSION
1. The Law of Murder and Senate Bill No. 1437
Murder is “the unlawful killing of a human being … with
malice aforethought.” (§ 187, subd. (a).) Malice may be express or
implied. (§ 188.) Express malice is the intent to kill, whereas
implied malice exists “where the defendant … acted with
conscious disregard that the natural and probable consequences
of [his or her] act or actions were dangerous to human life.
[Citation.]” (People v. Gonzalez (2018) 5 Cal.5th 186, 197.)
Although malice is an element of murder, when Williams was
convicted, the law allowed defendants who did not act with
malice to be liable for murder under certain circumstances.
“First, under the natural and probable consequence[s]
doctrine, a defendant who aids and abets a confederate in
committing a crime (the target offense) is liable for other crimes
committed by the confederate if those further crimes were
natural and probable consequences of the target offense.
[Citation.] Thus, under prior law, if the direct perpetrator of the
target offense committed murder, and the murder was a natural
and probable consequence of the target offense, then an aider and
abettor of the target offense would be liable for the murder even
if the aider and abettor did not act with malice. (People v. Gentile
(2020) 10 Cal.5th 830, 845 [‘until recently, when a person aided
and abetted a nonhomicide crime that then resulted in a murder,
the natural and probable consequences doctrine allowed him or
her to be convicted of murder without personally possessing
malice aforethought’].)” (People v. Eynon (2021) 68 Cal.App.5th
967, 973 (Eynon).)
Second, under prior California law, every accomplice to an
enumerated felony could be convicted of first degree murder if a
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death occurred during the commission of that felony—regardless
of whether the accused killed or intended to kill. (See People v.
Dillon (1983) 34 Cal.3d 441, 462–472.)
Senate Bill No. 1437 (S.B. 1437) was enacted to “amend the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).) It accomplished this “ ‘by amending
sections 188 and 189 to restrict the scope of first degree felony
murder and to eliminate murder liability based on the natural
and probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2–
3.)’ [Citation.]
“Amended section 188 provides that, except for first degree
felony murder, ‘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).) The requirement that the principal
act with malice eliminates all murder liability under the natural
and probable consequences doctrine. [Citation.]
“Amended section 189 limits the first degree felony-murder
rule by imposing new requirements for its application. The
statute provides that, unless the victim is a peace officer killed in
the line of duty, a defendant cannot be liable for first degree
felony murder unless the defendant was the actual killer, acted
with intent to kill, or was a major participant in the underlying
felony and acted with reckless indifference to human life.
[Citations.]” (Eynon, supra, 68 Cal.App.5th at pp. 973–974.)
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2. Section 1170.95
In addition to changing the law of murder prospectively,
S.B. 1437 gave people who had been convicted under one of the
now-invalid theories of murder the opportunity to petition for
resentencing under newly-enacted section 1170.95. (Stats. 2018,
ch. 1015, § 4.)2 Section 1170.95, subdivision (a)(3), describes who
may petition for resentencing under the statute. Subdivision (b)
explains what information the petition must contain, where the
petitioner must file it, who the petitioner must serve, and what
the court should do if it’s incomplete. Subdivision (c) describes the
process the court uses to determine whether the petitioner is
entitled to an evidentiary hearing: Appoint counsel, if requested;
wait for the prosecutor’s required response and the petitioner’s
optional reply; if the petitioner makes a prima facie showing that
he or she is entitled to relief, issue an order to show cause.
(Lewis, supra, 11 Cal.5th at p. 966.)
As relevant here, a petitioner makes a prima facie showing
that he is entitled to relief by demonstrating:
(1) A complaint, information, or indictment was
filed against the petitioner that allowed the
prosecution to proceed under a theory of …
murder under the natural and probable
consequences doctrine.
2 As enacted, section 1170.95 applied only to people convicted of
murder, but on October 5, 2021, the Governor signed Senate Bill
No. 775, which expanded eligibility under the statute to people who
had been charged with either murder or attempted murder and
convicted of attempted murder or manslaughter. (Stats. 2021, ch. 551,
§ 2.)
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(2) The petitioner … accepted a plea offer in lieu of
a trial at which the petitioner could have been
convicted of murder or attempted murder.
(3) The petitioner could not presently be convicted
of murder … because of changes to Section 188
or 189 made effective January 1, 2019.
(§ 1170.95, subd. (a); Stats. 2021, ch. 551, § 2.)
“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.” (Lewis,
supra, 11 Cal.5th at p. 971.) The court may deny a petition at this
stage only if the petitioner is ineligible for relief as a matter of
law. A petitioner is ineligible for relief as matter of law if the
record of conviction shows that he or she could not have been
convicted under any theory of liability affected by S.B. 1437—
such as where malice aforethought was the only theory presented
to the jury.
“In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 972.)
Instead, the record should be consulted at the prima facie stage
only to determine “ ‘readily ascertainable facts,’ ” such as the
crime of conviction and findings on enhancements. (People v.
Duchine (2021) 60 Cal.App.5th 798, 815; Lewis, at p. 972.) “ ‘[T]he
prima facie bar was intentionally and correctly set very low.’ ”
(Lewis, at p. 972.)
If the petitioner establishes a prima facie entitlement to
relief, the court must issue an order to show cause.
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Subdivisions (d)–(g) describe the procedures for holding an
evidentiary hearing, the type of evidence that may be admitted,
the burden of proof, and the requirements for resentencing an
eligible petitioner.
We independently review the trial court’s determination
that Williams’s record of conviction refuted his allegations that
he is eligible for relief under section 1170.95. (See Eynon, supra,
68 Cal.App.5th at p. 975.)
3. Williams was convicted under a still-valid theory of
murder.
The People contend, and we agree, that Williams is
ineligible for relief as a matter of law. The jury in this case was
instructed that it could return a true finding on the felony-
murder special circumstance only if it found beyond a reasonable
doubt that Williams was either the actual killer or an aider and
abettor who acted with the specific intent to kill:
If you find a defendant in this case guilty of murder
of the first degree, you must then determine if the
following special circumstance is true or not true: the
murder was committed by the defendant(s) Donald
Lee Williams and/or Anthony Christopher … in the
commission or attempted commission of the crime of
robbery.
[¶] … [¶]
If you find beyond a reasonable doubt that a
defendant was either the actual killer[,] a co-
conspirator, or [an] aider and abettor, but are unable
to decide which, then you must also find beyond a
reasonable doubt that a defendant with intent to kill
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participated as a co-conspirator with or aided and
abetted an actor in the commission of the murder in
the first degree, in order to find the special
circumstance to be true. [¶] On the other hand, if you
find beyond a reasonable doubt that a defendant was
the actual killer, you need not find that the
defendant intended to kill a human being in order to
find the special circumstance to be true.
(Italics added.)
The jury was also instructed:
Before the special circumstance allegation can be
found true, you must find that a non-shooting
defendant had the specific intent to kill at the time of
the actual shooting of Mr. Morales. While you may
consider as circumstantial evidence any act, whether
before or after the killing, the prosecution must prove
a specific intent to kill at the time of the actual
killing.
(Italics added.) And:
Before a special circumstance allegation can be
found true as to an aider or abett[o]r or co-
conspirator, who did not actually kill, the prosecution
must prove that such defendant had a specific intent
to kill … . [¶] While a major participant in violent
felonies such as armed robberies may frequently
anticipate that lethal force might be used to
accomplish the underlying felony, that is not the
test. You must find that the non-shooting defendant
specifically wished and intended that another person
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would die. If the prosecution has not proven the
intent to kill beyond a reasonable doubt, you must
find that allegation to be untrue.
(Italics added.) And again:
As to a non-shooting defendant, evidence that he
acted with reckless indifference to human life during
the commission of an armed robbery which resulted
in the death of a human being is insufficient to
sustain a finding that such defendant had a specific
intent to kill.
(Italics added.)
Finally, although the jury was instructed on felony murder
and the natural and probable consequences doctrine, it was
specifically told that those instructions did not apply to the
felony-murder special-circumstance allegation.
Based on these instructions, the jury found the felony-
murder special circumstance true. In so doing, the jury
necessarily found that Williams either was the actual killer or
acted with malice aforethought. Because the jury instructions
and verdicts, without more, establish that Williams was
convicted under a still-valid theory of murder, he is ineligible for
section 1170.95 relief as a matter of law. (Lewis, supra,
11 Cal.5th, at pp. 971–972.) As such, the petition was properly
denied.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
LIPNER, J.*
* Judgeof the Los Angeles County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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