Filed 3/30/22 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, B299053
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA007720
v.
SAUMAL MARTIN WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Salvatore T. Sirna, Judge. Reversed and
remanded with instructions.
Cynthia Grimm, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Idan Ivri, Acting
Supervising Deputy Attorney General, Nancy Lii Ladner and
Allison H. Chung, Deputy Attorneys General, for Plaintiff and
Respondent.
____________________
Saumal Martin Williams pleaded no contest to one count of
second degree murder and one count of attempted murder. He
challenges an order denying his petition for resentencing under
Penal Code section 1170.95. We affirmed this ruling in an
opinion filed June 2, 2020. Pursuant to an order of the California
Supreme Court filed January 26, 2022, we vacate our decision
and reconsider our ruling in light of Senate Bill No. 775 (2021–
2022 Reg. Sess.) and People v. Lewis (2021) 11 Cal.5th 952
(Lewis).
Under Lewis and Senate Bill No. 775, the trial court should
have appointed Williams counsel. Senate Bill No. 775 also
expressly allows petitioners to challenge attempted murder
convictions. Nothing in our record refutes Williams’s section
1170.95 allegations as a matter of law. Therefore, with counsel,
it was reasonably probable the court would not have summarily
denied his petition. We remand for further proceedings.
Undesignated statutory citations are to the Penal Code.
I
A felony complaint charged Williams and two codefendants
with one count of murder (§ 187, subd. (a)) of Alvaro Rojero and
one count of attempted murder (§§ 187, subd. (a), 664) of Alfredo
Acevedo. The complaint alleged Williams and another
codefendant personally used firearms in both offenses
(§§ 1203.06, subd. (a)(1), 12022.5). The complaint also alleged
Williams and that same codefendant intentionally inflicted great
bodily injury and death as a result of discharging a firearm from
a motor vehicle (§ 12022.55), caused the death of the murder
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victim (§ 1203, subd. (e)(10)), and personally inflicted great bodily
injury on the attempted murder victim (§ 12022.7). The
complaint further alleged Williams committed both offenses for
the benefit of a criminal street gang (§ 186.22, subd. (b)(1) & (2))
and had three prior felony convictions and served a prior prison
term.
Williams pleaded no contest to one count of second degree
murder and one count of attempted first degree murder.
We detail the factual basis for Williams’s plea. Our record
contains little information about the underlying crimes. Williams
did not have a preliminary hearing. He signed a two-page plea
form and initialed a box saying, “My attorney will stipulate to a
factual basis for my plea.”
At his plea hearing, the court asked whether Williams and
his counsel “stipulate[d] that the Court can read the police report
in this matter to determine if there is a factual basis for the
pleas[.]” Williams and his counsel said “yes.”
Our record does not contain a police report. It does contain
a probation report that lists as its source an unspecified “Police
Report.” The probation report describes the crimes in 30 lines of
text. In 1991, Williams and two others were in a car and “shots
were fired” from the “front and back passengers[’] side.” Alvaro
Hernandez died and Alfredo Acevedo was injured. “Witnesses at
the scene described the vehicle used and persons involved.” The
three defendants were “believed” to have been retaliating against
another gang for a shooting earlier that day. The report specifies
the murder victim was not a gang member.
The trial court accepted Williams’s plea. It read and
considered the police report and found there was a factual basis
for the plea. The court sentenced Williams to concurrent terms of
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15 years to life for the murder count and life for the attempted
murder count and dismissed the remaining allegations.
In 2019, Williams filed a petition for resentencing under
section 1170.95. He requested counsel. Before the prosecution
filed a response, the trial court found Williams was not entitled to
relief as a matter of law and summarily denied the petition for
several reasons, two of which are relevant to this appeal. First,
according to the court, “the court file reflect[ed] that [Williams]
was the actual killer.” The prosecution did not pursue a felony-
murder or natural and probable consequences theory, so section
1170.95 did not apply to Williams’s murder conviction. Second,
section 1170.95 did not apply to attempted murder, and thus did
not apply to Williams’s attempted murder conviction.
Williams appealed. In our earlier opinion, we affirmed the
order denying relief.
II
A
The Legislature enacted Senate Bill No. 1437 (2017–2018
Reg. Sess.) to limit the felony-murder rule and eliminate the
natural and probable consequences doctrine. (Stats. 2018, ch.
1015, § 4.) Senate Bill No. 1437 amended section 188 to require a
principal to murder to act with malice aforethought. (§ 188,
subd. (a)(3), added by Stats. 2018, ch. 1015, § 2.) It amended
section 189 to require a felony-murder defendant to be the actual
killer, a direct aider and abettor, or a major participant in an
underlying felony who acted with reckless indifference to human
life. (§ 189, subd. (e), added by Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also added section 1170.95, which
created a process to petition the trial court to vacate a murder
conviction and seek resentencing under certain circumstances.
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(§ 1170.95, subd. (a).) During the pendency of this appeal, the
Legislature enacted Senate Bill No. 775, which amended section
1170.95 to apply the law expressly to defendants convicted of
attempted murder. (Stats. 2021, ch. 551, § 2.)
Section 1170.95 requires the following circumstances: (1)
the prosecution filed a complaint, information, or indictment
against the petitioner allowing the prosecution to proceed under
a felony-murder or natural and probable consequences theory; (2)
a jury convicted the petitioner of murder or attempted murder at
trial, or the petitioner accepted a plea offer instead of a trial at
which the jury could have convicted the petitioner of murder or
attempted murder; and (3) the petitioner could not be convicted of
murder or attempted murder because of the amendments to
sections 188 and 189. (§ 1170.95, subd. (a), as amended by Stats.
2021, ch. 551, § 2.)
The trial court must 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 must appoint counsel. (§ 1170.95,
subd. (b)(3).) If the petitioner makes a prima facie showing of
entitlement to relief, the court must issue an order to show cause.
(Id., subd. (c).)
B
Williams was entitled to counsel because he filed a facially
sufficient petition and he requested counsel. (§ 1170.95, subd.
(b)(3); Lewis, supra, 11 Cal.5th at p. 963.) We remand because
the error was not harmless. Section 1170.95, subdivision (a)
applies to Williams’s attempted murder conviction and the trial
court must also address this conviction on remand.
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We review the denial of the right to counsel during the
petition process for prejudice under People v. Watson (1956) 46
Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at pp. 973–974.) To
establish prejudice, Williams must demonstrate that with
counsel, it was reasonably probable the court would not have
summarily denied his petition without an evidentiary hearing.
(See id. at p. 974.)
Although 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 inquiry under subdivision (c) is limited. (Lewis, supra,
11 Cal.5th at p. 971.) A court should not reject factual
allegations on credibility grounds without conducting an
evidentiary hearing and should not engage in factfinding
involving the weighing of evidence or the exercise of discretion.
(Id. at pp. 971–972.)
Williams’s petition set forth a prima facie case and nothing
in the record before us refutes the petition’s allegations as a
matter of law. The prosecution says failure to appoint counsel
was harmless because Williams was prosecuted for and pleaded
no contest to being the actual killer in the murder and the
shooter in the attempted murder, therefore he is ineligible for
relief as a matter of law. The prosecution identifies three sources
to support its argument, but none disprove Williams’s prima facie
case.
First, the prosecution points to the complaint’s charging
language and allegations, but these are not conclusive. The
complaint did not need to mention other potential felonies or
target crimes for the prosecution to pursue murder under the
felony-murder rule or natural and probable cause doctrine. The
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allegation that a defendant committed murder willfully,
unlawfully, and with malice aforethought is a well-recognized
way of charging murder in a generic sense. (People v. Rivera
(2021) 62 Cal.App.5th 217, 233 (Rivera).) This generic manner
for charging murder does not limit the prosecution to a particular
theory. (Ibid.) Furthermore, Williams’s charges cast doubt on
the trial court’s factual finding that Williams was the “actual
killer” because the charges list three defendants.
Nor are the complaint’s unadmitted enhancement
allegations dispositive. Unadmitted allegations do not establish
a defendant admitted acting with the intent to kill. (People v.
Cooper (2020) 54 Cal.App.5th 106, 125.) The allegations would
not have prevented the prosecution from trying Williams on a
theory of felony murder or natural and probable consequences.
Nor do these unadmitted allegations establish his plea was to
murder and attempted murder with the requisite intent. The
complaint does not conclusively prove Williams is ineligible for
relief as a matter of law.
Second, the prosecution directs us to Williams’s plea, but
this argument is wrong for similar reasons. During the plea, the
prosecution used the same language as the charges: Williams
committed murder and attempted murder willfully, unlawfully,
and with malice aforethought. Again, this is generic charging
language. Malice aforethought is defined as an element of first
and second degree murder, but before Senate Bill No. 1437,
malice could be imputed based on participation in a crime.
(Rivera, supra, 62 Cal.App.5th at p. 234.) Williams’s plea does
not prove he is ineligible for relief.
The prosecution identifies a statement by the attorney of
one of Williams’s codefendants during the plea, but relying on
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this statement would require factfinding, which is not allowed at
the prima facie stage. When Williams pleaded no contest, one of
his codefendants entered a plea to identical charges. The
codefendant’s attorney said the codefendant was the driver and
not a shooter. This self-serving statement is not an established
fact and does not prove Williams was the actual killer or the
shooter in the attempted murder. Williams’s plea does not prove
he is ineligible as a matter of law.
Third, the prosecution relies on the probation report, but
Williams never stipulated to the factual basis of this report and
the report does not show conclusively that Williams was the
actual killer or the shooter.
Because Williams did not stipulate to the factual basis of
the report, the court could not rely on it at the prima facie stage.
(See People v. Davenport (2021) 71 Cal.App.5th 476, 481–484
[error to rely on facts of preliminary hearing transcript at prima
facie stage where defendant did not stipulate to the transcript as
a factual basis of plea].)
Williams did stipulate to the court examining a police
report, but the police report is not in our record. The probation
report purports to be drawn from an unspecified police report.
The prosecution seemingly infers the probation report’s reference
to a police report is to the same police report the court examined
during Williams’s plea and the probation report accurately and
completely reflects the police report. These inferences are
improper at the prima facie stage.
Reliance on the probation report to determine Williams was
the actual killer and shooter at the prima facie stage is flawed for
a second reason. The report’s description of the crime is brief,
vague, and often uses the passive voice. As one example, the
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words “shots were fired” prove little in a shooting involving three
codefendants. The description of the crime in the probation
report does not prove as a matter of law that Williams is
ineligible for relief.
Williams challenges the reliability of the probation report
in part based on an inconsistency between a victim’s name in the
probation report and the complaint. Our decision does not rely
on this ground. The probation report calls the murder victim
“Alvaro Hernandez” in its description of the crime and also lists
his full name as “Alvaro Rojero Hernandez.” The complaint uses
the name “Alvaro Rojero.” This difference is not material.
As to the police report, Williams argues he did not stipulate
to any facts in that report. We need not decide this issue.
Williams’s position distinguishes between (1) stipulating the
court may review a record to determine whether there is a factual
basis for a plea and (2) stipulating to a record’s factual basis. The
trial court did not say it relied on the police report to deny the
petition and the police report is not before us on appeal. The
prosecution cites to the probation report, only. We do not address
whether Williams stipulated to facts in this unspecified police
report.
In sum, the prosecution’s third source—the probation
report—does not disprove Williams’s prima facie case.
Nothing in the record of conviction conclusively refutes
Williams’s allegations as a matter of law. Had the trial court
appointed counsel, there is a reasonable probability the court
would have found Williams established a prima facie case and
would have granted an evidentiary hearing. The trial court’s
failure to appoint counsel was not harmless.
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We reverse the trial court’s order denying Williams’s
petition and remand with instructions to the trial court to
appoint counsel and hold further proceedings under subdivision
(c) and, if appropriate, subdivision (d) of section 1170.95. On
remand, the court must consider both Williams’s murder
conviction and his attempted murder conviction.
DISPOSITION
The order denying the petition is reversed; we remand the
matter to appoint counsel for Williams and hold further
proceedings in accordance with section 1170.95, subdivision (c)
and, if appropriate, subdivision (d).
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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