People v. Williams CA2/3

Filed 6/30/22 P. v. Williams CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B310320

Plaintiff and Respondent, Los Angeles County
Super. Ct. No. A763191
v.

DARREN CHARLES WILLIAMS,

Defendant and Appellant.

APPEALS from orders of the Superior Court of Los Angeles
County, William C. Ryan, Judge. Reversed and remanded with
instructions; dismissed as moot.
Theresa Osterman Stevenson, 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, Amanda V. Lopez and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
 Darren Charles Williams appeals from an order denying
his petition to vacate his four second degree murder convictions
and for resentencing under Penal Code section 1170.95.1
Reversal is required because the recent legislative amendments
to section 1170.95 no longer permit a trial court to rely on an
appellate opinion’s factual summary to determine a petitioner’s
eligibility for resentencing. Here, the trial court relied almost
exclusively on the California Supreme Court’s 1997 opinion
in Williams’s direct appeal, People v. Williams (1997) 16 Cal.4th
635 (Williams I). Accordingly, we reverse the order denying
Williams’s petition and remand for a new evidentiary hearing.
FACTS AND PROCEDURAL BACKGROUND
1. The murders, trials, appeals, and habeas petition2
On August 31, 1984, police found Ebora Alexander, age 58,
dead in her Los Angeles home from multiple gunshot wounds
to the head. Alexander apparently had been shot while sitting

1 References to statutes are to the Penal Code. On
January 12, 2021, Williams filed a notice of appeal from
the denial of his petition for resentencing. (B310320.) On
February 8, 2021, Williams filed a notice of appeal from the
denial of his motion for reconsideration. (B310963.) We ordered
the two appeals consolidated under case number B310320.
2 We take our procedural history in part from the California
Supreme Court’s opinion in Williams I, as well as from our 2018
opinion in Williams’s appeal from a later resentencing, People v.
Williams (Nov. 29, 2018, B287899) [nonpub. opn.] (Williams III).
In his opening brief, Williams quotes extensively from the
statement of facts in Williams I. We take some facts from
Williams I but recite them not for their truth but only for the
basis of Williams’s conviction. (See People v. Woodell (1998)
17 Cal.4th 448, 459-460.)

2
at her kitchen table having breakfast. Police also discovered
the bodies of Alexander’s 24-year-old daughter Dietria and two
of Alexander’s grandsons, ages 13 and eight. All three had been
shot execution style in their beds. (Williams I, supra, 16 Cal.4th
at pp. 647, 649.)
About six months later, detectives arrested Williams
in Northern California. After waiving his Miranda rights,3
Williams first told the officers he’d heard about the murders
but he hadn’t been involved. Later, he admitted he’d been at
the Alexander house but claimed he’d run away as soon as the
other man who was with him, Tiequon Cox, started shooting.
(Williams I, supra, 16 Cal.4th at pp. 648, 650, 656.) Both Cox
and a third man, Horace Burns, were arrested as well. (Id. at
pp. 647, fn. 1, 648, 650, fn. 3.)4 Williams told the officers he’d
heard that a man named “ ‘Jack’ ” from the Vermont Club had
paid Cox and Burns something like $60,000 to kill a woman
who was suing the club. (Id. at p. 656.)
Williams’s trial began in mid-September 1986. Williams
did not testify, but he presented an alibi defense. (His cousin
testified that, at the time of the murders, Williams was asleep
on her couch.) (Williams I, supra, 16 Cal.4th at p. 650.) The jury
was instructed on aiding and abetting as well as the natural

3 Miranda v. Arizona (1966) 384 U.S. 436.
4 Cox, Burns, and Williams all were tried separately.
Cox—“the actual perpetrator of the murders”—was convicted
and sentenced to death. (People v. Cox (1991) 53 Cal.3d 618.)
Burns—who had waited in a van with the getaway driver—was
convicted and sentenced to life without parole. (People v. Burns
(1987) 196 Cal.App.3d 1440.) (Williams I, supra, 16 Cal.4th at
pp. 647, fn. 1, 648, 650, fn. 3.)

3
and probable consequences doctrine (CALJIC Nos. 3.00, 3.01
(1984 rev.)). The court also instructed the jury on the special
circumstance of multiple murder. The court told the jurors,
“If the defendant, Darren Williams, was an accomplice or aider
and abettor but not the actual killer, it must be proved beyond
a reasonable doubt that he intended to aid in the killing of
a human being before you are permitted to find the alleged
special circumstance of that first degree murder to be true
as to the defendant Darren Williams.”
In December 1986, the jury convicted Williams on
four counts of first degree murder. But the jury failed to reach
a verdict on the special circumstance allegation of multiple
murder. In 1987 the allegation was tried before a second jury.
(Williams I, supra, 16 Cal.4th at p. 647.) The only witness at the
second trial was the court clerk for the judge who presided over
the first trial. She testified she was present in the courtroom
when the guilt phase jury returned verdicts finding Williams
guilty on four counts of first degree murder. (Id. at p. 687.) The
jury in the second trial found the special circumstance allegation
to be true and returned a verdict of death. (Id. at pp. 647, 687.)
On appeal to the California Supreme Court, Williams
raised a host of issues. The court rejected Williams’s claims of
instructional error on aiding and abetting and the natural and
probable consequences doctrine. (Williams I, supra, 16 Cal.4th
at pp. 673-676.) The court concluded the instructions on murder,
intent, and malice—“[c]onsidered together”—“told the jury that
an aider and abettor who shares the actual perpetrator’s intent
to kill must have formed that intent beforehand.” (Id. at pp. 675-
676.)

4
 As for whether an aider and abettor must have knowledge
of the perpetrator’s unlawful purpose, the court said the
instructions advised the jury an aider and abettor must share
the perpetrator’s intent, and “[i]mplicit in [that] notion” “is
knowledge of that intent and harboring the same purpose
oneself.” (Williams I, supra, 16 Cal.4th at p. 676.)
The court also rejected Williams’s contentions that the
evidence was insufficient to show he intended to kill more than
one person and he’d formed that intent before going to the
Alexander house. The court stated,
“[Williams] directed [Ida] Moore [who drove the
perpetrators to and from the Alexander home]
to drive him, Burns, and Cox to 59th Street.
Once there, [Williams] tried to locate the house
he was looking for by matching its address with
one written on a piece of paper he was holding.
[Williams] voiced no disagreement when
someone in Moore’s van mentioned killing
everyone in the house. [Williams] told Burns
to stay in the van with the women while he and
Cox, both armed, went to the house in question.
After the killings of the four members of the
Alexander family at their home, [Williams]
went to the Vermont Club and, shortly
thereafter, had a large sum of money.
[Williams] told police he had heard that the
Vermont Club’s owner had a ‘contract’ out
‘to get rid of’ a woman who was suing the club,
and that the people who collected on that

5
 contract had gone to the wrong house.”
(Williams I, supra, 16 Cal.4th at pp. 678-679.)
The court concluded, “From this evidence, a reasonable trier
of fact could conclude that [Williams] had decided to collect
on the contract to kill Valarie Taylor, and that on the way to
her house he agreed with Cox and Burns that they would kill
everyone in the house.” (Id. at p. 678.)
The Supreme Court did find error, however, in the jury
instruction on the special circumstance allegation. Under the law
in effect at the time of the 1984 murders, for a defendant tried as
an aider and abettor and charged with the special circumstance
of multiple murder, the jury had to find that he’d been convicted
of more than one offense of murder and that he acted with the
intent to kill. The court in the second trial instructed the jury
the People had to prove only that Williams had been convicted
of more than one offense of murder. (Williams I, supra, 16
Cal.4th at pp. 687-689.)
The People conceded this error but argued it was harmless,
because the jury in the first trial had found intent to kill on
Williams’s part by convicting him of aiding and abetting four
counts of first degree murder. The high court rejected this
argument, noting the court had instructed the jury “on an
alternative theory of aider and abettor liability, namely,
the natural and probable consequences doctrine.” The court
continued, “A defendant guilty as an aider and abettor under
the ‘natural and probable consequences’ doctrine need not share
the perpetrator’s intent to kill.” (Williams I, supra, 16 Cal.4th
at p. 691.) Accordingly, the Supreme Court set aside the jury’s
finding on the special circumstance, reversed the judgment

6
of death, and affirmed the remainder of the judgment. (Id. at
p. 647.)
On remand, the trial court sentenced Williams to four
consecutive terms of 25 years to life. A different panel of this
court affirmed the judgment and sentence (People v. Williams
(Nov. 18, 1999, B120766) [nonpub. opn.] (Williams II)), and
the Supreme Court denied Williams’s petition for review.
(People v. Williams (Mar. 1, 2000, S084630) [nonpub. opn.].)
In November 2016, Williams filed a petition for a writ
of habeas corpus in the superior court, seeking to have his first
degree murder convictions set aside based on People v. Chiu
(2014) 59 Cal.4th 155 (Chiu). (Williams III.) There, our Supreme
Court held “an aider and abettor may not be convicted of first
degree premeditated murder under the natural and probable
consequences doctrine.” (Chiu, at pp. 158-159, italics omitted; see
also id. at p. 165 [holding the natural and probable consequences
doctrine’s primary rationale is served, in the context of murder,
by holding an aider and abettor “culpable for the perpetrator’s
commission of the nontarget offense of second degree murder”].)
The trial court issued an order to show cause and the
People conceded Williams was entitled to be resentenced to
second degree murder under Chiu. In January 2018, the court
granted Williams’s writ petition, reduced his first degree murder
convictions to second degree murder, and resentenced him to
four consecutive terms of 15 years to life. Williams appealed
and we affirmed. (Williams III.)
2. Williams’s petition for resentencing and the
trial court’s decision
On February 14, 2019, Williams filed a document entitled
“Petition and Declaration for Resentencing—SB 1437 (Penal

7
Code Section 1170.95).”5 Williams stated, “As there has been a
prior judicial determination that I was not a major participant
who acted with reckless indifference to human life [sic], and
as the accompanying declaration establishes that I meet the
applicable criteria, I am entitled to be re-sentenced pursuant
to Penal Code § 1170.95(d)(2).”
Williams stated, “[A] jury convicted me of first degree
murder as an aider and abettor under the natural and probable
consequences doctrine. On direct appeal, the California Supreme
Court set aside the special circumstance finding in the case
because ‘defendant was not the perpetrator of the murders but
an aider and abettor.’ ” Williams attached a declaration in which
he stated the information allowed the prosecution “to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine”; he was “convicted of first degree
murder pursuant to the felony murder rule and/or the natural
and probable consequences doctrine”; and he could not now be
convicted because of changes to section 189 as he was not the
actual killer, he did not with the intent to kill aid or abet the
actual killer, and he was not a major participant who acted with
reckless indifference to human life as established by a judicial
determination setting aside the special circumstance allegation
under section 190.2.
Williams did not ask the court to appoint counsel. Williams
attached a copy of Williams III as an exhibit.
On March 11, 2019, the prosecution filed two pleadings:
a “Constitutional Opposition to Resentencing (Pen. Code,

5 While filed in propria persona, the petition appears to have
been prepared by counsel.

8
§ 1170.95),” and a “People’s Response to Petition for Resentencing
(Pen. Code, § 1170.95).” The “People’s Response” conceded
Williams had been convicted under the natural and probable
consequences doctrine but asserted he was ineligible for relief
because (1) he intended to kill; (2) he “was a major participant in
the underlying target offense and acted with reckless indifference
to human life”; and (3) “[t]he record of conviction prove[d] beyond
a reasonable doubt that [he] personally acted with malice
aforethought.”
The prosecution contended Williams was “the mastermind
and shot-caller in a conspiracy to commit murder.” On the major
participant/reckless indifference issue, the prosecution discussed
the factors our Supreme Court set forth in People v. Banks (2015)
61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522 and
their application to the facts of this case. But the prosecution
never identified the underlying felony Williams committed,
during which the victims were killed. The prosecution concluded,
“The record of conviction proves beyond a reasonable doubt that
the murders were a paid hit organized in advance as part of a
conspiracy of which Williams was the leader; that Williams acted
with a specific intent to kill; and that Williams acted with malice
aforethought.”
On March 14, 2019, even though Williams hadn’t requested
counsel, the trial court appointed the Office of the Public
Defender to represent him. On April 26, 2019, Williams filed
a “Motion to Proceed Pro Se; Reply to the People’s Opposition
to Resentencing.” The reply discussed the legislative history of
Senate Bill No. 1437 (Senate Bill 1437), asserted the legislation
was constitutional, and argued “there exists no evidence as to
who actually shot and killed the victim, Maurice Hobbs [sic].”

9
 On May 1, 2019, the trial court granted Williams’s “request
to proceed with his petition in pro se.” On May 24, the court
issued a 21-page order rejecting the prosecution’s constitutional
challenge to Senate Bill 1437. The court also found Williams
had made a prima facie showing he was entitled to relief and,
accordingly, ordered the prosecution to show cause why
Williams’s petition should not be granted.
Williams apparently retained Andrew M. Stein and Joseph
A. Markus to represent him, and Stein appeared on Williams’s
behalf at a status conference on July 16, 2019.6 On February 3,
2020, Markus filed a supplemental reply to the prosecution’s
opposition. Markus asserted that, because the prosecution had
not tried Williams on a felony-murder theory, it could not now
raise that as a bar to eligibility. Markus attached as exhibits
the prosecution’s reply to Williams’s habeas petition based on
Chiu, the Williams I opinion, “reporter’s transcripts and clerk’s
transcript,”7 and Williams’s habeas petition.
On February 21, 2020, the prosecution filed a reply to
Williams’s supplemental reply. The prosecution stated it “did
not intend to argue a felony murder theory in this case,” adding,
“The facts of this case do not appear to support felony murder.”
The prosecution again asserted the “evidence in the record of
conviction” was that Williams “was the architect of a conspiracy

6 The record on appeal does not include either a notice
of appearance by the Stein and Markus firm nor a reporter’s
transcript for the July 16, 2019 date.
7 As discussed below, the documents Markus attached
as Exhibits C and D to his supplemental reply are not part
of the record on appeal.

10
to commit murder for hire. An agreement to murder necessarily
involves a willful, deliberate and premeditated intent to kill.”
On April 27, 2020, Markus filed a reply to the prosecution’s
reply to Williams’s supplemental reply. Markus continued to
assert the prosecution—having conceded the application of Chiu
in the habeas proceeding—was “statutorily and constitutionally
barred” from arguing any other “theory of murder liability.”
On May 28, 2020, the trial court ordered the parties
to schedule a hearing on Williams’s petition. The matter was
continued twice due to the pandemic.8 On October 22, 2020,
Stein and Markus filed a waiver signed by Williams of his right
to appear personally “at all 1437 proceedings” in his case.
Counsel appeared before the court on October 28, 2020.
Neither the prosecution nor Williams proposed to call any
witnesses or to submit any additional evidence.9 The prosecutor
stated she was “relying on the record in its entirety and that

8 On October 8, 2020, the prosecution filed a second reply
to Williams’s supplemental reply, citing People v. Duke (2020)
55 Cal.App.5th 113, filed September 28, 2020. The California
Supreme Court later granted review in Duke. (Review granted
Jan. 13, 2021, S265309.) On November 23, 2021, the high court
transferred the case back to the court of appeal with directions
to vacate its decision and reconsider the cause in light of Senate
Bill 775. (S265309.)
9 In its March 2019 response to Williams’s petition, the
prosecutor stated, “[I]t is . . . the People’s intention to present
additional firearms evidence at an evidentiary hearing.”
(Boldface omitted.) This statement seems to be related to the
prosecution’s reference to evidence it contended showed Williams
had fired a revolver inside the Alexander home. The prosecutor
said nothing more about this at the October 2020 hearing.

11
includes the trial transcripts and the trial exhibits.” The
prosecutor referred specifically to a transcript of Williams’s
interrogation when he was arrested, marked for identification
as People’s Exhibit 28B at trial. The prosecutor noted the jury
“was instructed on aiding and abetting as one of the theories of
liability.” She continued, “And the record of conviction in this
case proves not only that Mr. Williams was an aider and abettor,
but that he acted with the intent to kill and was the mastermind
of the conspiracy to commit murder.”
The prosecutor told the court the trial transcripts and
exhibits “show [Williams] planned and directed the entire chain
of events, . . . the entire action from beginning to end.” While
the jury was not instructed on conspiracy, the prosecutor argued,
“The . . . trial transcripts make it clear that a conspiracy existed”
—a conspiracy “in advance” “of a paid murder for hire.”
Citing People v. Ramirez (2019) 41 Cal.App.5th 923
(Ramirez),10 the prosecutor also asserted the court was “bound
by” the California Supreme Court’s opinion. The prosecutor
concluded, “So based upon the trial transcripts and exhibits

10 In that case, an appellate court had granted a habeas
petition defendant Ramirez filed after our Supreme Court
decided Banks and Clark. In so doing, the court found
insufficient evidence that Ramirez was a major participant in
the underlying robbery who acted with a reckless indifference
to human life. Ramirez later filed a section 1170.95 petition,
which the trial court summarily denied. The court of appeal held
this was error: the statute expressly requires a court to vacate
a petitioner’s murder conviction and resentence him if there was
a prior court finding that he was not a major participant who
acted with reckless indifference to human life. (Ramirez, supra,
41 Cal.App.5th at pp. 926-928, 931-933.)

12
and . . . the California Supreme Court, . . . it’s very clear that
[Williams] could now be convicted of murder under exist[ing] law
on both aiding and abetting and [a] conspiracy theory of murder.”
Williams’s counsel then argued. His argument is
somewhat difficult to understand. On the issue of intent, counsel
said, “[T]his jury was hung on the intent to kill by Mr. Williams
knowing it was the wrong house.” Counsel seemed to contend
Williams intended to kill a different victim (presumably, the
woman suing the nightclub) but that intent as an aider and
abettor “ceased” when “he discovered that the [Alexander]
residence was not the residence of the person or the target
he sought.”
In rebuttal, the prosecutor mentioned transferred intent.
(The jury was not instructed on that doctrine.) Citing the
Supreme Court’s decision in Williams I, the prosecutor reiterated,
“[T]here was evidence of intent to kill here and . . . there was
clearly a conspiracy.” In surrebuttal, Williams’s counsel told
the court the prosecution couldn’t rely in a section 1170.95
proceeding on any legal theory they hadn’t pursued at trial
because Williams “has a right to confront and cross-examine
witnesses.”
On December 4, 2020, the trial court issued a memorandum
of decision denying Williams’s petition for resentencing. The
court stated, “The People contend that [they are] not limited to
theories of liability that were used at the time of trial. Rather,
based on currently valid theories of liability, the People argue
that [Williams] is guilty of murder because while he may
not have been the actual killer, he was the mastermind of
the conspiracy to kill the victims or at the very least, directly
aided and abetted the killings.” The court rejected Williams’s

13
contention that “allowing his current second degree murder
convictions to stand based on theories of culpability that were
not presented to the jury in his underlying trials” would violate
his Sixth Amendment rights. Citing cases, the court noted,
“petitions under Penal Code section 1170.95 amount to legislative
acts of lenity and do not invoke the 6th Amendment right to
a jury trial.”
The court then stated it was “bound by” “the recitation
of facts stated by the California Supreme Court” in Williams I.
The court concluded, “Based on these facts, the court finds that
the People have met their burden beyond a reasonable doubt
as to four counts of second degree murder (Penal Code section
189(a)-(b)) whether on conspiracy or direct aiding and abetting
theories of liability.”
On December 15, 2020, Williams filed a motion for
reconsideration. Williams attached the “Special Directive 20-14”
issued on December 7, 2020 by the newly-elected district
attorney. On January 8, 2021, the prosecution filed an opposition
to the motion. On January 12, 2021, the trial court issued a
memorandum of decision denying Williams’s motion. The court
stated the “directive” did “not have the force of law, [did] not
amend penal statutes, and [did] not otherwise reopen final
judgments.” Accordingly, the court said, there was “no basis”
to resentence Williams under the directive “absent a specific
recommendation from the People pursuant to Penal Code section
1170(d)(1).”
3. The record on appeal
On April 8, 2021, court-appointed appellate counsel for
Williams sent a letter to the Los Angeles Superior Court appeals
clerk noting Exhibits C and D to Williams’s February 3, 2020

14
supplemental reply were not included in the clerk’s transcript.
Counsel noted the supplemental reply referenced the “ ‘trial
record and jury instructions’ from trial as ‘submitted herewith
and marked as exhibits C and D, respectively’ ”—but the
clerk’s transcript contained only a cover page titled, “Exhibit ‘C’
[REPORTER’S TRANSCRIPTS and CLERK’S TRANSCRIPT],”
with no document attached, and a cover page titled, “Exhibit ‘D,’ ”
that did not include the jury instructions. Counsel asked that
the record be augmented.
On May 3, 2021, the superior court clerk issued a certificate
stating, “The Supplemental Reply to People’s Opposition to
Resentencing Pursuant to Penal Code section 1170.95 was
copy [sic] exactly as the document is contain [sic] within the
Superior Court File.”
On May 12, 2021, appellate counsel filed a request with
this court to augment the record with (1) People’s Exhibits
28A and 28B admitted into evidence at Williams’s trial, and
(2) the reporter’s transcripts and clerk’s transcripts of the trial—
especially the jury instructions—that were attached as Exhibits
C and D to Williams’s February 2020 reply brief in the trial court.
Counsel stated she’d tried to get copies of the transcripts from
Williams’s trial court counsel (presumably Stein and Markus)
but “was advised that [their] copy was lodged with the superior
court to ensure they were maintained as the record for purposes
of this appeal.”
On June 4, 2021, this court ordered the record augmented
to include the requested items. A supplemental clerk’s transcript
filed on June 28, 2021, contains Exhibit 28B, a 60-page document
entitled, “Transcription of tape recorded interview of Darren
Charles Williams by David Crews and Fred Miller, Detectives,

15
Los Angeles Police Department.” A clerk’s certificate dated
June 11, 2021, states, “The people’s exhibit #28A is cassette tape
and the exhibit #28A is in exhibit storage per Maria Chavez,
custodian exhibit. The exhibit 28B is a transcript to include
in the clerk’s transcript.”
A clerk’s certificate dated June 15, 2021, states:
“The reporter and clerk transcript in appeal
#B120766, including the jury instructions
are not in the dummy file and the imaged
documents connect system. The case is very
old. The appeal in Court of Appeal #B120766
case had issued the remittiture [sic] on
March 10, 2000 as indicated on court’s appeal
website. I have verified the original document
for the supplemental reply to people’s
opposition to resentencing pursuant to P.C.
1170.95 of the Exhibit ‘C’ (Index 1C 230 pg.)
that there are no attachment document to the
exhibit. The supplemental reply to people’s
opposition (2/3/2020) documents are copied as
it is and included in the clerk’s transcript.”
Another clerk’s certificate dated July 13, 2021, states,
“The reporter’s and clerk’s transcripts in appeal
no. B120766, including the jury instructions
which were lodged with the superior court as
Exhibit C are not in the Superior Court file per
Justin Crawford, supervisor has verified the
documents. The exhibit ‘D’ – (CT Index
Pages 231-249) were previously included in
the original clerk’s transcript on January 29,

16
 2021.[11] The Supplemental Reply to People’s
Opposition to Resentencing Pursuant P.C.
1170.95 (2/3/2020), (CT Index Pages 160-249)
were previously included in original clerk’s
transcript and copied exactly as the documents
contained within the Superior Court file.”
On July 27, 2021, this court issued another order, again
ordering the superior court to augment the record with Exhibits
C and D to Williams’s supplemental reply brief. It does not
appear the superior court ever responded to this order. On
August 24, 2021, this court granted Williams’s counsel’s request,
in the alternative, to take judicial notice of the reporter’s and
clerk’s transcripts from Williams’s trial, filed in B120766,
Williams II.12
DISCUSSION
1. Section 1170.95
Senate Bill 1437 took effect on January 1, 2019. (See
Stats. 2018, ch. 1015, § 4.) It limited accomplice liability under
the felony-murder rule and eliminated the natural and probable

11 There is no clerk’s transcript in this case dated January 29,
2021. The first clerk’s transcript was filed March 2, 2021.
Page 231 of that clerk’s transcript is the cover page for Exhibit D.
Pages 232-248 are Williams’s habeas petition based on Chiu.
12 At this juncture, more than 22 years after Williams’s
appeal in B120766, our record consists of 61 volumes of reporter’s
transcripts and four volumes of clerk’s transcripts. The clerk’s
transcripts contain only some items, such as Williams’s motion
for a new trial and the California Supreme Court’s August 1997
opinion. They do not include the information, minute orders
of the proceedings, or the jury instructions.

17
consequences doctrine as it relates to murder, to ensure a
person’s sentence is commensurate with his or her individual
criminal culpability. (People v. Gentile (2020) 10 Cal.5th 830,
842-843 (Gentile); People v. Lewis (2021) 11 Cal.5th 952, 957, 971
(Lewis).)
Senate Bill 1437 amended the felony-murder rule by
adding section 189, subdivision (e). It provides that a participant
in the perpetration of qualifying felonies is liable for felony
murder only if the person: (1) was the actual killer; (2) was
not the actual killer but, with the intent to kill, acted as a
direct aider and abettor; or (3) was a major participant in
the underlying felony and acted with reckless indifference to
human life as described in section 190.2, subdivision (d). (See
Gentile, supra, 10 Cal.5th at p. 842.) It amended the natural
and probable consequences doctrine by adding subdivision (a)(3)
to section 188, which states that “[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
Senate Bill 1437 also authorized, through new section
1170.95, an individual convicted of felony murder or murder
based on the natural and probable consequences doctrine to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he could not have been
convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, supra, 11 Cal.5th at
pp. 959-960; Gentile, supra, 10 Cal.5th at p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that
he was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivisions (b)(3) and (c)

18
require the court to appoint counsel to represent the petitioner,
if requested; to direct the prosecutor to file a response to the
petition and permit the petitioner to file a reply; and to determine
if the petitioner has made a prima facie showing that he is
entitled to relief. (See Lewis, supra, 11 Cal.5th at pp. 959-960.)
If he has, the trial court must issue an order to show cause,
and then must hold a hearing to determine whether to vacate
the murder conviction and recall the sentence. (Id. at p. 960.)
Senate Bill No. 775 (2021-2022 Reg. Sess.) (Senate Bill
775), effective as of January 1, 2022, amended section 1170.95
in various respects.13 Senate Bill 775 clarified that the burden
of proof at a section 1170.95 hearing is beyond a reasonable doubt
and a trial court’s finding that there is substantial evidence
to support a conviction is insufficient to meet this burden.
(§ 1170.95, subd. (d)(3).) The bill also clarified the standards
for the admissibility of evidence at the evidentiary hearing.
Section 1170.95, subdivision (d)(3) now provides, “The admission
of evidence in the hearing shall be governed by the Evidence
Code, except that the court may consider 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 prosecutor and the petitioner may also offer

13 Appellate courts in this district and elsewhere have held
the new amendments to section 1170.95 apply retroactively to
appeals from the denial of petitions not yet final as of January 1,
2022. (People v. Perez (2022) 78 Cal.App.5th 192, 204-205
(Perez); People v. Porter (2022) 73 Cal.App.5th 644, 652; People
v. Montes (2021) 71 Cal.App.5th 1001, 1006-1007.)

19
new or additional evidence to meet their respective burdens.”
(§ 1170.95, subd. (d)(3).) The Legislature’s specific reference to
“the procedural history of the case recited in any prior appellate
opinion” indicates the Legislature has decided trial judges
should not rely on the factual summaries in those decisions
when a section 1170.95 petition reaches the stage of a full-fledged
evidentiary hearing. (People v. Clements (2022) 75 Cal.App.5th
276, 291-292 (Clements).)
2. The prosecution is not limited to theories it relied
on at trial
In the trial court proceedings, and again here, Williams
asserts the prosecution cannot now rely on either conspiracy to
commit murder or direct aiding and abetting as theories that—
if proved beyond a reasonable doubt—would render him ineligible
for resentencing. Williams is mistaken.
One of the requirements for resentencing is that “[t]he
petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(3), italics added.) Section
188 defines express and implied malice, and provides, in cases
not involving felony murder, “[I]n 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).) (Section 189
contains the felony-murder rule. The parties agree this is not
a felony-murder case.)
Williams contends we should read the plain language of
section 1170.95 “to incorporate principles of estoppel and issue
preclusion, for a determination of whether the petitioner could
be convicted of murder under a theory that remains viable under

20
current law that is consistent with the prior verdicts and findings
in his or her case.” We decline Williams’s invitation to rewrite
the legislation. “The statutes clearly contemplate an opportunity
for the prosecution to present new or additional evidence to show
that defendants can still be convicted under a valid theory of
aiding and abetting.” (Perez, supra, 78 Cal.App.5th at pp. 204-
205 [reversing attempted murder counts where jury was
instructed on natural and probable consequences doctrine,
and “remanding the matter to give the prosecution the
opportunity to retry the attempted murder counts”].)
Williams also argues the prosecution—by conceding in
the habeas proceeding that he was entitled to be resentenced to
second degree murder under Chiu—admitted it could not prove
beyond a reasonable doubt that he could be convicted of murder
under any other viable theory. To permit the prosecution now
to prove Williams could presently be convicted of murder on
theories of conspiracy or direct aiding and abetting, he says,
“violates [his] due process and confrontation rights.” Again,
Williams is mistaken.
In Perez, even though the prosecutor acknowledged at trial
that there was insufficient evidence to support a direct aiding
and abetting theory, we remanded the case and directed the trial
court to allow the prosecutor to retry those counts based on a
currently valid theory. We noted, “Where the prosecution makes
its case under the law as it stood at trial, double jeopardy is not
implicated as it would otherwise be where there is insufficient
evidence.” (Perez, supra, 78 Cal.App.5th at p. 205. See also
People v. Hola (2022) 77 Cal.App.5th 362, 369-377 [reversing
murder conviction on direct appeal and remanding matter
to the trial court “to afford the prosecution the opportunity to

21
advance a valid murder theory at a new trial”; it is “well settled”
that, “[w]hen there has been a postconviction change in the
statutory or decisional law that invalidates a theory upon which
the conviction was based and reversal is warranted, appellate
courts remand the case to the trial court to allow the prosecution
to retry the defendant on a legally valid theory”].)
Moreover, the retroactive relief section 1170.95 provides
reflects an act of lenity by the Legislature that does not
implicate a defendant’s rights under double jeopardy rules
or the confrontation clause. (See People v. Hernandez (2021)
60 Cal.App.5th 94, 111 [evidentiary hearing under section
1170.95 is a resentencing procedure, not a new prosecution;
double jeopardy clauses under federal and state constitutions
are not implicated]; People v. Silva (2021) 72 Cal.App.5th 505,
520 [appellate courts consistently have held section 1170.95
proceedings do not implicate defendants’ Sixth Amendment
rights]; People v. James (2021) 63 Cal.App.5th 604, 610 [same];
People v. Anthony (2019) 32 Cal.App.5th 1102, 1156 [relief
afforded by Senate Bill 1437 “constituted an act of lenity that
does not implicate defendants’ Sixth Amendment rights”].)
Both direct aiding and abetting and conspiracy to commit
murder remain valid theories after the enactment of section
1170.95. (See People v. Medrano (2021) 68 Cal.App.5th 177
(Medrano).) “ ‘Senate Bill 1437 does not eliminate direct aiding
and abetting liability for murder because a direct aider and
abettor to murder must possess malice aforethought.’ ” (Id. at
p. 183, quoting Gentile, supra, 10 Cal.5th at p. 848. See People v.
Estrada (2022) 77 Cal.App.5th 941 [defendant who acted as aider
and abettor with intent to kill is ineligible for resentencing].)

22
 As for conspiracy, our colleagues in Division Five recently
held section 1170.95 does not “provide[ ] a mechanism for
challenging a conviction for conspiracy to murder.” (People v.
Whitson (2022) 79 Cal.App.5th 22, 34 (Whitson).) “[C]onspiracy
is a specific intent crime requiring an intent to agree or conspire,
and a further intent to commit the target crime, here murder,
the object of the conspiracy.” (People v. Swain (1996) 12 Cal.4th
593, 602.) Under California law, conspiracy to commit murder
may be based on an agreement to kill “ ‘a human being’ ” who
is not specifically identified. (United States v. Wicker (9th Cir.
2005) 151 Fed.Appx. 563, 565.)
As Justice Moor explained, “The plain language of
section 1170.95 does not indicate that it applies to convictions
for conspiracy to murder. Conspiracy to murder is not mentioned
in the statute. This is particularly significant because the
Legislature promulgated Senate Bill 775 in part to amend
section 1170.95 to expressly include convictions for attempted
murder and manslaughter in the list of crimes subject to petition.
Those crimes had not been identified in the original statute.
(See Stats. 2020, ch. 551, § 1, subd. (a).)” (Whitson, supra,
79 Cal.App.5th at pp. 34-35.) When it added this language,
“the Legislature had the opportunity to extend section 1170.95
relief to conspiracy to murder convictions alongside attempted
murder and manslaughter convictions, but did not.” (Id. at
p. 35.)
Apart from “the express, unambiguous language of the
statute, the omission of convictions for conspiracy to murder
is consistent with the Legislature’s purpose in enacting Senate
Bills 1437 and 775—to ensure, with certain exceptions related
to felony murder[,] that ‘a conviction for murder requires that

23
a person act with malice aforethought,’ and that ‘culpability
for murder [is] premised upon that person’s own actions and
subjective mens rea.’ (Stats. 2018, ch. 1015, § 1, subd. (g).)”
(Whitson, supra, 79 Cal.App.5th at p. 35.) “Both bills left
section 187, which defines murder as ‘the unlawful killing
of a human being, or a fetus, with malice aforethought[,]’
unchanged. (§ 187, subd. (a).) The legislation also left
unchanged section 182, which sets the penalty for conspiracy
to commit murder as ‘that prescribed for murder in the first
degree.’ ” (Ibid.) The crime as the Penal Code defines it “is
based on the conspirator defendant’s own subjective mens rea:
conspiracy to murder requires that a defendant either act
with malice or intend to kill.” (Ibid. See also Medrano, supra,
68 Cal.App.5th at pp. 182-183.)
3. We must remand the case for a new evidentiary
hearing consistent with the amendments to
section 1170.95
At the time of the evidentiary hearing on Williams’s
petition in October 2020, section 1170.95, subdivision (d)(3)
allowed “[t]he prosecutor and the petitioner [to] rely on the record
of conviction or offer new or additional evidence to meet their
respective burdens” at the evidentiary hearing. Appellate courts
had interpreted this language to mean that an appellate decision
was part of the record of conviction admissible in post-trial
evidentiary proceedings under section 1170.95. (See, e.g.,
People v. Williams (2020) 57 Cal.App.5th 652, 661-663 [holding
trial court could consider appellate court’s fact summaries in
an opinion at section 1170.95 hearing because those summaries
were “reliable hearsay”].) However, as we noted, the revised
section 1170.95, subdivision (d)(3) permits the court to consider

24
“the procedural history of the case recited in any prior appellate
opinion.” In including this language in Senate Bill 775, the
Legislature omitted any reference to the use of fact summaries
and conclusions of fact in subdivision (d)(3). Accordingly, at
least one published case has concluded this omission means
trial courts no longer should rely on fact summaries from
appellate court opinions at the evidentiary stage of a section
1170.95 proceeding. (Clements, supra, 75 Cal.App.5th at p. 292.)
Here, the trial court stated it was “bound by” “the recitation
of facts stated by the California Supreme Court” in Williams I.
The court then summarized those facts before concluding,
“[b]ased on these facts, the court finds that the People have
met their burden beyond a reasonable doubt as to four counts
of second degree murder . . . whether on conspiracy or direct
aiding and abetting theories of liability.”
At the hearing, the prosecutor told the court, “I will be
relying on the record in its entirety and that includes the trial
transcripts and the trial exhibits, which I’ve referenced in my
motions [sic], most particularly 28 . . . .” She continued, “[T]he
trial transcripts and exhibits . . . show [Williams] planned and
directed the entire chain of events, including telling the driver
of the van where to go, telling them where to stop, telling them
who to pick up. Directing the entire action from beginning
to end.” Williams’s counsel apparently submitted the trial
transcripts (both clerk’s transcript and reporter’s transcripts)
as well as the jury instructions to the court as exhibits to one
of its reply briefs. As we have said, those transcripts and
instructions are not included in the (quite small) record we
received from the superior court in this appeal. We simply

25
cannot determine what portions of the trial record, if any,
the trial court considered in denying Williams’s petition.
Over the course of about nine court days in November
and December 1986, a number of witnesses—prosecution and
defense—testified in the guilt phase. Later, over about 11 court
days in April and May 1987, more witnesses testified for both
the prosecution and the defense in the penalty phase. But,
both at the evidentiary hearing and in its written memorandum
of decision, the trial court did not cite or refer to any specific
testimony at trial, or any exhibit or other evidence. In acting
as the factfinder, the court appears to have relied heavily—if
not exclusively—on the Supreme Court’s factual summary and
factual conclusions in Williams’s direct appeal. After Senate
Bill 775’s changes to the statute, this is no longer permissible.
The required remedy is to remand the matter for a new
evidentiary hearing. The amended statute expressly authorizes
the court to consider “evidence previously admitted at any prior
hearing or trial that is admissible under current law, including
witness testimony . . . .” (§ 1170.95, subd. (d)(3).) The statute
also permits both the prosecution and the petitioner to “offer
new or additional evidence to meet their respective burdens.”
(Ibid.)

26
 DISPOSITION
The order denying the section 1170.95 petition is reversed.
The case is remanded to the trial court for a new evidentiary
hearing consistent with this opinion and the amended statutory
provisions. In light of this disposition, Williams’s appeal from
the denial of his motion for reconsideration is dismissed as moot.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J.

KALRA, J.


Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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