People v. Wilson CA5

Filed 10/26/22 P. v. Wilson CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT

THE PEOPLE,
F083416
Plaintiff and Respondent,
(Super. Ct. No. 95CM1143)
v.

JOSEPH ALLEN WILSON, OPINION
Defendant and Appellant.

THE COURT*
APPEAL from a judgment of the Superior Court of Kings County. Valerie R.
Chrissakis, Judge.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P. J., Detjen, J. and Peña, J.
 INTRODUCTION
Petitioner Joseph Allen Wilson petitioned the superior court, pursuant to former
section 1170.95 (now § 1172.6) of the Penal Code,1 for resentencing on his conviction
for first degree murder. The superior court denied the petition at the prima facie stage
without appointing counsel or holding a hearing. Based on the factual background as
stated in our opinion in petitioner’s direct appeal (see People v. Wilson (Feb. 4, 1998,
F025854) [nonpub. opn.] (Wilson)), the court determined petitioner aided and abetted in
the murder with intent to kill, a disqualifying factor pursuant to sections 1172.6,
subdivision (a)(3) and 189, subdivision (e)(2).
On appeal, petitioner argues the superior court prejudicially erred in denying the
petition without appointing counsel, issuing an order to show cause, or holding an
evidentiary hearing. We agree the court erred in denying the petition without appointing
counsel. However, we conclude the error was harmless because the jury’s special
circumstance finding establishes petitioner aided and abetted in the murder with intent to
kill. (§ 190.2, subd. (a)(10).) Accordingly, petitioner is ineligible for resentencing as a
matter of law and the petition was properly denied at the prima facie stage.
FACTUAL BACKGROUND
We previously summarized the facts underlying petitioner’s offenses as follows.2

1 Undesignated statutory references are to the Penal Code. Former section
1170.95 recently was renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.) We will refer to the current section 1172.6 in this opinion.
2 We grant petitioner’s May 2, 2022 request for judicial notice of this court’s
opinion, volume VI of the reporter’s transcript, and volumes VIII and IX of the clerk’s
transcript from petitioner’s direct appeal.
We refer to the factual background to provide context for the trial court’s ruling,
but we do not rely on our prior opinion in resolving the issues presented in this appeal.
(See § 1172.6, subd. (d)(3).)

2.
 “On the morning of February 15, 1994, Kings County Sheriff’s
deputies discovered the body of Susan Morales[3] in her home; the
department had been asked to do a ‘check the welfare call’ at Morales’s
residence. She was apparently attacked first in her dining room area, where
she was forced underneath a table and received multiple head wounds; there
was a large pool of blood found in and around the table and carpet. She
then somehow made it to the bathroom, where either she or someone else
tried to place toilet paper on her scalp lacerations. From there, she went to
the master bedroom, where her attacker inflicted two lethal blows to her
head with a dining room chair, fracturing her skull. Evidence suggested
Morales was killed the evening of February 12th.

“It appeared someone had gone through the victim’s purse; its
contents were strewn about the kitchen floor. The house had not been
ransacked, however, though a few items were apparently missing. There
were no signs of forced entry. In the opinion of one detective, this had not
been a random burglary that went awry.

“[Petitioner] and Morales had been romantically involved with one
another in the fall of 1993. Then, in mid-December, [petitioner] and
Morales quarreled and she ‘kicked’ [petitioner] out of her house. She threw
[petitioner]’s things, including clothing and tools, onto the front lawn.
Later that day, [petitioner] suggested to an acquaintance that the two go to
Morales’s house. Drunk and angry, [petitioner] said ‘Let’s go do Suzie.’
The acquaintance interpreted [petitioner]’s remark to mean he planned to
‘either beat her up or something else [violent] to her.’ The acquaintance
refused to be involved.

“Sometime later, [petitioner] went to Morales’s house and took a
VCR and a cable box. Morales yelled at [petitioner] as he left with the
property. Immediately thereafter, [petitioner] went to another residence
where he traded the VCR for narcotics.

“On February 9, 1994, a Kings County deputy sheriff arrested
[petitioner] on a burglary charge initiated by Morales and based upon the
taking of the VCR. Following his arrest, [petitioner] claimed he had
returned the property.

“From his jail cell, [petitioner] made several telephone calls in which
he expressed his anger towards Morales and complained bitterly about her

3 The victim’s first name is spelled Susan in the opinion but is spelled Suzanne in
the information and in the superior court’s order denying the petition.

3.
actions in pressing charges against him. Morales also apparently had a
book detailing [petitioner]’s drug connections and purportedly had
threatened to surrender it to the police. [Petitioner] was not only worried
about the possible release of the book but also about the time he could serve
for the burglary.

“[Petitioner] telephoned his cousin and asked him to contact certain
people who could get the book from Morales and persuade her to drop the
burglary charge. The cousin never made the contact. [Petitioner] was also
overheard to angrily say on the telephone: ‘Fuck you, bitch, drop the
charges;’ ‘[I]f I was out there I would go ahead and kill you;’ and ‘I’ll have
somebody else kill you, somebody else.’ Fellow cellmates also overheard
[petitioner] on the telephone say, in an angry voice, ‘tell the bitch to drop
the charges’ and that he wanted the charges dropped ‘by any means.’
Furthermore, [petitioner] told one cellmate that he was ‘[g]oing to have the
bitch killed if she did not drop the charges’ and that he would ‘ “have that
bitch killed, whatever it took.” ’ In a similar vein, [petitioner] told a jail
trustee that his ([petitioner]’s) father could have Morales ‘ “did up” ’ or
killed so she would be unable to testify against him in court.

“Though police interviewed [petitioner] soon after the discovery of
Morales’s body, no charges were filed against him at that time. In late
February, the burglary case was dismissed.

“During the summer of 1994, at a family gathering, [petitioner] was
asked whether he had anything to do with Morales’s death. He smirked but
did not verbally answer the question. At a later point in 1994, he confided
to a new girlfriend that his uncle and his close friend Larry Hartwell had
killed Morales.

“In 1995, [petitioner] was again incarcerated in the Kings County
Jail. He was housed in the same cell as Terry [P.], the trustee with whom
he had spoken in February 1994. Over time, [petitioner] admitted he
arranged through his father to have his uncle kill Morales so that she would
not be able to testify against him on the burglary charge. [Petitioner] also
did not want the book describing his drug connections to be discovered.

“[Petitioner] went so far as to write a letter of instructions describing
how he wanted Morales killed. He wanted the killer ‘to bust her in the
head.’ This way he would know that the hired killer ‘did it.’ [Petitioner]
did not want Morales killed with a gun because the houses in her
neighborhood were so close together that the neighbors would hear a
gunshot and the killer would not have enough time to leave town. He also
wanted the killer to take a few things in order to simulate a robbery.

4.
 [Petitioner] gave his letter to an inmate scheduled to be released and asked
that it be mailed at the nearest mailbox.

“[Petitioner] also discussed some details of the murder with [Terry].
He described how his uncle, who was already known to Morales, just
knocked on her door and she let him in. In addition, [petitioner] said the
killer hit Morales over the head with something from the house and threw
Morales’s body on the bed, where detectives later found her.” (Wilson,
supra, F025854, fns. omitted.)
PROCEDURAL HISTORY
On February 26, 1996, a jury found petitioner guilty of first degree murder (§ 187,
subd. (a); count I) and dissuading a witness (§ 136.1, subd. (c)(1); count II). As to
count I, the jury found true the special circumstance that the murder victim was a witness
to a crime and was intentionally killed for the purpose of preventing her from testifying
(§ 190.2, subd. (a)(10)). Petitioner was sentenced on count I to a term of life without the
possibility of parole. Sentence on count II was imposed and stayed (§ 654). On appeal,
we affirmed. (Wilson, supra, F025854.)
On July 5, 2019, petitioner, in propria persona, filed a petition for resentencing
pursuant to section 1172.6. On August 14, 2019, he filed a corrected petition.4 Both
petitions requested the appointment of counsel.
On August 27, 2019, the People opposed the petition. The People referred to the
statement of facts from this court’s opinion in petitioner’s direct appeal and argued the
facts showed that petitioner was a direct aider and abettor in the murder and acted with
implied malice.
On November 1, 2019, petitioner again requested the appointment of counsel.
On June 3, 2020, the superior court denied the petition in a written order, without
appointing counsel or holding a hearing. The court stated it had reviewed the court file,

4 In the first petition, petitioner erroneously checked a box stating that he was
convicted of second degree murder under the natural and probable consequences doctrine
or a felony-murder theory.

5.
as well as this court’s opinion in petitioner’s direct appeal, and concluded petitioner
failed to state a prima facie case for relief. Specifically, the court stated:

“While incarcerated at Kings County Jail for burglary against the
victim (Ms. Suzanne Morales), [p]etitioner made multiple statements to
cellmates that he or someone else would kill her if she did not drop the
charges. Petitioner was overheard making similar statements on telephone
calls. One inmate witness heard [p]etitioner state the following on a phone
call, ‘I’ll have somebody else kill you, somebody else.’ After the victim
was found dead, [p]etitioner told his current girlfriend and a friend that
[p]etitioner’s uncle, Mr. Larry Hartwell, killed the victim. Petitioner had
drafted a letter containing instructions for Mr. Hartwell describing how he
wanted the victim killed. Petitioner wanted her head busted open so he
would know the hired killer did it. In the letter, [p]etitioner advised against
use of a gun because the neighbors would hear the noise. The victim
sustained blunt force trauma to her skull. Petitioner subsequently told
another cellmate he arranged to have his uncle kill the victim. Petitioner
knew that the victim was hit in the head with an object. He also knew the
location in the home where her body was located.

“Based on the record, [p]etitioner, with an intent to kill, aided and
abetted Mr. Hartwell to kill the victim. He prepared instructions and made
multiple admissions about arranging the killing to prevent the victim from
testifying against him. [Citation.] Senate Bill [No.] 1437 does not change
the legality of his conviction.”
Petitioner then filed a motion to reconsider or modify his restitution fine based on
his inability to pay. The court denied the motion.
Petitioner submitted another petition for resentencing pursuant to section 1172.6,
which was dated March 26, 2021. On April 27, 2021, the petition was returned to
petitioner without having been filed on the ground his prior petition was denied on
June 3, 2020.
On June 7, 2021, petitioner filed an untimely notice of appeal. We subsequently
granted petitioner leave to file a belated notice of appeal within 60 days, and issued a writ
of mandamus directing the superior court clerk to treat such notice of appeal as timely
filed. (In re Wilson (Sept. 24, 2021, F083030) [nonpub. opn.].)

6.
 This appeal followed.
DISCUSSION
I. Applicable Law
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017-2018
Reg. Sess.) “to amend the felony murder rule and the natural and probable consequences
doctrine . . . 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).) The bill accomplished this task by adding three separate
provisions to the Penal Code. (People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile).)
First, to amend the natural and probable consequences doctrine, the bill added section
188, subdivision (a)(3), which requires a principal to act with malice aforethought before
he or she may be convicted of murder. (§ 188, subd. (a)(3); accord, Gentile, at pp. 842-
843.) Second, to amend the felony-murder rule, the bill added section 189,
subdivision (e):

“A participant in the perpetration or attempted perpetration of [qualifying
felonies] in which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person was not the actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The person
was a major participant in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of Section
190.2.”5 (§ 189, subd. (e); accord, Gentile, at p. 842.)
Finally, the bill added former section 1170.95, now section 1172.6, to provide a
procedure for those convicted of a qualifying offense “to seek relief under the two
ameliorative provisions above.” (Gentile, at p. 843.) This procedure is available to

5Additionally, section 189 was amended to allow for felony-murder liability
where the victim is a peace officer. (§ 189, subd. (f); accord, People v. Daniel (2020) 57
Cal.App.5th 666, 672.)

7.
persons convicted of “felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is imputed to a person based
solely on that person’s participation in a crime, attempted murder under the natural and
probable consequences doctrine, or manslaughter.” (§ 1172.6, subd. (a).)
“Section [1172.6] lays out a process” for a person convicted of one of the
aforementioned offenses “to seek vacatur of his or her conviction and resentencing.”
(Gentile, supra, 10 Cal.5th at p. 853.) First, an offender must file a petition in the
sentencing court averring that:

“(1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder,
murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that
person’s participation in a crime, or attempted murder under the natural and
probable consequences doctrine[;]

“(2) The petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a trial at
which the petitioner could have been convicted of murder or attempted
murder[; and]

“(3) The petitioner 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)(1)-(3); see § 1172.6, subd. (b)(1)(A); accord,
People v. Lewis (2021) 11 Cal.5th 952, 959-960 (Lewis).)
Additionally, the petition shall state “[w]hether the petitioner requests the appointment of
counsel.” (§ 1172.6, subd. (b)(1)(C).)
If a petition fails to contain the required information and the information cannot be
“readily ascertained” by the court, the petition may be denied without prejudice to the
filing of another petition. (§ 1172.6, subd. (b)(2).) Otherwise, counsel must be
appointed, if requested. (§ 1172.6, subd. (b)(3).) The prosecutor must file a response and
the petitioner may file a reply. The trial court must then hold a hearing to determine if
the petitioner has made a prima facie showing that he or she is entitled to relief.

8.
(§ 1172.6, subd. (c); accord, Lewis, supra, 11 Cal.5th at pp. 961-963, 967.) In making
this determination, the court may rely on the record of conviction. (Lewis, at pp. 970-
971.) However, the prima facie inquiry is limited and, at this stage of the proceedings,
the court “should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Id. at p. 972.)
If the court determines the petitioner has met his or her prima facie burden, “the
trial court must issue an order to show cause and hold a hearing to determine whether to
vacate the murder[, attempted murder, or manslaughter] conviction and to resentence the
petitioner on any remaining counts.” (Gentile, supra, 10 Cal.5th at p. 853; accord,
§ 1172.6, subds. (c), (d)(1).) At the hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder
. . . under California law as amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (d)(3).)
To demonstrate prejudice from the denial of a section 1172.6 petition before the
issuance of an order to show cause, the petitioner must show it is reasonably probable
that, absent error, his or her petition would not have been summarily denied without an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at pp. 972-974; see People v. Watson
(1956) 46 Cal.2d 818, 836.)
II. Appointment of Counsel
Petitioner contends, and the People concede, the trial court erred in failing to
appoint counsel.
At the time the trial court ruled on the petition, our Supreme Court had not
resolved whether section 1172.6 requires the appointment of counsel or further briefing
immediately upon the filing of a facially sufficient petition. (See Lewis, supra, 11
Cal.5th at pp. 961-967.) However, our Supreme Court and Legislature have since
clarified that counsel must be appointed if requested, and briefing must proceed, so long
as the petition complies with the requirements of section 1172.6, subdivision (b)(1)

9.
and (2). (§ 1172.6, subd. (b)(3); accord, Lewis, at pp. 962-963, 967.) Here, the People do
not suggest the petition failed to meet the requirements of section 1172.6, subdivision (b).
Accordingly, appointment of counsel and a full opportunity for briefing were required by
section 1172.6, subdivisions (b)(3) and (c). (See Lewis, supra, 11 Cal.5th at pp. 961-963,
967.) The court erred in disposing of the petition without following these procedures.
III. Prejudice
Because the trial court erred in failing to appoint counsel, we may affirm only if
petitioner was not prejudiced by the error. (Lewis, supra, 11 Cal.5th at pp. 972-974.) As
we explain, we conclude petitioner was not prejudiced because the jury’s special
circumstance finding establishes he is ineligible for resentencing as a matter of law.
Pursuant to section 1172.6, a petitioner is ineligible for resentencing if he or she
was the actual killer, aided and abetted in the murder with intent to kill, or was a major
participant in the underlying felony who acted with reckless indifference to human life.
(§§ 189, subd. (e), 1172.6, subd. (a)(3); see Gentile, supra, 10 Cal.5th at p. 842.) Here,
the jury found true a special circumstance pursuant to section 190.2, subdivision (a)(10),
which imposes a sentence of death or life without the possibility of parole for a murder
where “[t]he victim was a witness to a crime who was intentionally killed for the purpose
of preventing his or her testimony in any criminal or juvenile proceeding.” To find the
special circumstance true, the jury was required to find either that petitioner (1) was the
actual killer and intended to kill the victim, or (2) aided and abetted in the commission of
first degree murder with the intent to kill. (§ 190.2, subds. (a)(10), (b), (c); accord,
People v. Fayed (2020) 9 Cal.5th 147, 201-202 [considering murder for financial-gain
special circumstance pursuant to § 190.2, subd. (a)(1)].) The true finding on the special
circumstance therefore establishes the jury made the findings necessary to sustain the
murder conviction under the law as amended by Senate Bill No. 1437 (2017-2018 Reg.
Sess.). Petitioner is ineligible for resentencing as a matter of law. (See People v. Strong

10.
(2022) 13 Cal.5th 698, 710, 715 (Strong) [special circumstance findings requiring proof
of intent to kill are ordinarily dispositive of resentencing eligibility].)
Nonetheless, petitioner relies on People v. Pacheco (2022) 76 Cal.App.5th 118,
review granted May 18, 2022, S274102 (Pacheco), to argue the special circumstance
finding does not establish the jury convicted him as a direct aider and abettor, and
therefore does not establish his ineligibility for resentencing as a matter of law. In
Pacheco, the Court of Appeal determined the jury’s true finding on a gang special
circumstance did not establish the petitioner’s liability for murder as a direct aider and
abettor. (Pacheco, at p. 128.) The court noted the special circumstance instruction
required the jury to find the perpetrator intentionally killed the victim and “ ‘[t]he
defendant had an intent to kill at the time of the killing.’ ” (Id. at pp. 127-128, italics
omitted.) Based on this instruction, the court held the special circumstance finding
established the petitioner “intended to kill [the victim] at the time of his killing (the mens
rea). But the gang [special] circumstance instruction does not establish—as a matter of
law—that [the petitioner] directly aided and abetted the killing of [the victim] (the actus
reus).” (Id. at p. 128, italics omitted.) Furthermore, the special circumstance finding did
not constitute a finding that the petitioner did anything to “ ‘aid, facilitate, promote,
encourage, or instigate’ the target crime of murder,” as opposed to aiding and abetting a
different target crime, such as disturbing the peace. (Ibid.)
Here, section 190.2 required the jury to find that petitioner either (1) was the
actual killer and intended to kill the victim, or (2) aided and abetted in the commission of
first degree murder with the intent to kill. (§ 190.2, subds. (a)(10), (b), (c).) Our
Supreme Court has suggested that such findings are ordinarily dispositive and not “open
to reexamination and relitigation in a section 1172.6 proceeding.” (Strong, supra, 13
Cal.5th at p. 715.) Nonetheless, we acknowledge the high court has granted review in
Pacheco and deferred further action pending disposition in People v. Curiel (S272238),
which involves a question of whether a jury finding on a gang-related special

11.
circumstance (§ 190.2, subd. (a)(22)) precludes a defendant from making a prima facie
showing of resentencing eligibility under section 1172.6.
Even if we assume that Pacheco is correct, and that a section 1172.6 petitioner
may relitigate whether an ambiguous jury instruction permitted a jury to find the special
circumstance true without finding all essential elements to have been proved beyond a
reasonable doubt, petitioner remains ineligible for relief. Here, the jury was instructed, in
relevant part, as follows: “[If you find beyond a reasonable doubt that [petitioner] was an
aider and abettor, then you must also find beyond a reasonable doubt that [petitioner]
with intent to kill [aided [and abetted]] an actor in commission of the murder in the first
degree, in order to find the special circumstance to be true.]” Thus, unlike in Pacheco,
the special circumstance finding establishes the jury found petitioner directly aided and
abetted in the commission of murder in the first degree.
On that basis, petitioner is ineligible for resentencing as a matter of law. He
therefore was not prejudiced by the court’s summary denial of his petition prior to the
appointment of counsel. (Lewis, supra, 11 Cal.5th at pp. 972-974.)
DISPOSITION
The order is affirmed.

12.