Filed 8/31/22 P. v. Williams CA1/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A161928
v.
(Contra Costa County
BRIAN LAMAR WILLIAMS, Super. Ct. No. 5-971571-5)
Defendant and Appellant.
Brian Lamar Williams appeals from the superior court’s denial of his
petition for resentencing under former Penal Code section 1170.95,1 now
renumbered as section 1172.6. (Stats. 2022, ch. 58, § 10.) In relevant part,
the trial court ruled that Williams was precluded from making a prima facie
showing of eligibility for resentencing because a jury found that the killing
underlying his conviction was committed while Williams was “engaged in . . .
the commission of” a felony under section 190.2, subdivision (a)(17). Applying
the Supreme Court’s recent holding in People v. Strong (2022) 13 Cal.5th 698,
we note that the verdict in Williams’s case was rendered years before the
Supreme Court clarified the law of felony murder liability in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
All subsequent statutory references are to the Penal Code unless
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otherwise noted.
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(Clark). Accordingly, we reverse the denial and remand the matter with
instructions for further proceedings.
BACKGROUND
On August 3, 1999, a jury convicted Williams of first degree murder
(§ 187) with a special circumstance finding that the “murder was committed
while [Williams] was engaged in, or was an accomplice in, the commission of,
attempted commission of, or the immediate flight after committing, or
attempting to commit” a felony under section 190.2, subdivision (a)(17). The
jury also found true a sentencing enhancement under section 12022.5,
subdivision (a), imposing additional punishment on Williams for his personal
use of “a firearm in the commission of a felony or attempted felony.” For
these offenses and others, Williams was sentenced to life without the
possibility of parole.
On November 18, 2019, Williams filed a petition to have his murder
conviction vacated and to be resentenced under former section 1170.95. After
the trial court appointed counsel for Williams, the People filed an opposition
to resentencing and Williams filed a reply. The trial court denied the
petition, finding that Williams had failed to make a prima facie showing that
he satisfied the requirements of former section 1170.95. According to the
trial court, Williams was ineligible for resentencing because he fell short of
the criterion set forth in former section 1170.95, subdivision (a)(1), requiring
that “[t]he petitioner could not be convicted of first or second degree murder
because of changes to Section . . . 189 made effective January 1, 2019.”
The trial court rested that conclusion on two grounds. First, Williams’s
jury found true a special circumstance under section 190.2, subdivision
(a)(17); therefore, “as a matter of law,” Williams “could . . . still be convicted
of felony murder under” section 189, subdivision (e), which ascribes felony
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murder liability to any “major participant in the underlying felony [who]
acted with reckless indifference to human life.” (§ 189, subd. (e).) Second,
the “jury’s verdict finding that [Williams] personally used the firearm in
commission of the murder means that, as a matter of law, Petitioner was the
‘actual killer’ and would remain liable for murder under” section 189,
subdivision (e)(1).
This appeal followed.
DISCUSSION
Williams disputes both grounds for the trial court’s denial of his
petition. First, he rejects the trial court’s suggestion that he “could . . . still
be convicted of felony murder” under section 189, subdivision (e), noting that
his 1999 conviction pre-dated our Supreme Court’s clarifications of “major
participant” and “reckless indifference to human life” in Banks and Clark.
(§ 189, subd. (e).) Second, he argues that the jury’s true finding as to the
firearm allegation does not compel the conclusion that he was the “actual
killer.” (§ 189, subd. (a).) The People concede the latter point, and we accept
the concession. Firearm “ ‘use’ ” under section 12022.5 “means more than
possession of a weapon . . . but does not require conduct that actually
produces harm.” (People v. Funtanilla (1991) 1 Cal.App.4th 326, 330–331,
disapproved on another ground in People v. Masbruch (1996) 13 Cal.4th 1001,
1013, fn. 7; see also CALCRIM 3146 [defendant “personally uses a firearm if
he or she intentionally . . . [¶] . . . [d]isplays the weapon in a menacing
manner” (italics omitted)].)
As for the issue raised by Williams in connection with Banks and
Clark, it has been resolved definitively by the decision in People v. Strong,
supra, 13 Cal.5th 698. There, our Supreme Court held that “[f]indings issued
by a jury before Banks and Clark do not preclude a defendant from making
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out a prima facie case for relief under” section 1172.6. (Strong, at p. 710.)
For that reason, it was error for the trial court here to conclude that Williams
was rendered ineligible for resentencing by a special circumstance finding
made in 1999, some 16 years before Banks and Clark.
Upon “a prima facie showing that the petitioner is entitled to relief, the
court shall issue an order to show cause.” (§ 1172.6, subd. (c).) As relevant
here, a petitioner is entitled to relief if he was “convicted of felony murder”
under the following circumstances: an “information . . . was filed against the
petitioner that allowed the prosecution to proceed under a theory of felony
murder”; he “was convicted of murder . . . following a trial . . . at which the
petitioner could have been convicted of murder or attempted murder”; and he
“could not presently be convicted of murder or attempted murder because of
changes to Section 188 or 189 made effective January 1, 2019.” (§ 1172.6,
subd. (a).) Here, in his November 18, 2019, petition, Williams declared under
penalty of perjury that he met those criteria. We take these factual
allegations as true in determining whether a prima facie case has been
established, unless the record “ ‘ “contain[s] facts refuting the allegations
made in the petition.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971.) The
People’s sole argument that the record refutes the allegations in Williams’s
petition was based on the preclusive effect of the jury’s verdict. Having now
rejected this argument, we conclude Williams made a prima facie showing of
eligibility, and the trial court should have issued an order to show cause in
turn.
DISPOSITION
We reverse the trial court’s denial of Williams’s petition and remand
the matter with instructions to issue an order to show cause under section
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1172.6, subdivision (c), and to conduct further proceedings not inconsistent
with this opinion.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
People v. Williams (A161928)
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