Filed 12/13/22 P. v. Wilson CA2/7
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B304453
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA057146-01)
v.
FRED WILSON,
Defendant and Appellant.
APPEAL from a postjudment order of the Superior Court of
Los Angeles County, Jesse I. Rodriguez, Judge. Affirmed as to
the murder of Min and reversed as to the murder of Sun.
Mark D. Lenenberg and Jennifer Peabody, 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,
Supervising Deputy Attorney General, Charles S. Lee and
Marc A. Kohm, Deputy Attorneys General, for Plaintiff and
Respondent.
Fred Wilson was convicted following a jury trial in 2004 on
two counts of first degree murder with special-circumstance
findings and three counts of second degree robbery. The jury also
found firearm enhancement allegations that Wilson in the
commission of the murders had personally and intentionally
discharged a firearm proximately causing death. In November
2019 Wilson petitioned for resentencing pursuant to Penal Code
former section 1170.95 (now section 1172.6).1 The superior court
denied the petition after appointing counsel but without holding
an evidentiary hearing, relying on the true findings on the
firearm enhancement allegations to conclude Wilson was the
actual killer of both victims, Kyung Min Kim (Min) and Kyung
Sun Kim (Sun), and, therefore, ineligible for resentencing relief
as a matter of law.
In our original opinion we agreed with Wilson that the
superior court had erred in relying on the true findings on the
firearm enhancement allegations to conclude he was the actual
killer of Sun. Although Wilson admitted he killed Min, the
evidence at trial established that David Jonathon Harris,
Wilson’s confederate, shot and killed Sun. We nonetheless held
the error was harmless because the record of conviction, which
included the felony-murder special-circumstance findings,
established beyond dispute that Wilson was a major participant
in the robbery of Sun and acted with reckless indifference to
Sun’s life during the robbery. On that basis, we concluded,
Wilson was indisputably ineligible for resentencing relief.
After granting Wilson’s petition for review, the Supreme
Court transferred the case to us with directions to vacate our
1 Statutory references are to this code.
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prior decision and reconsider Wilson’s appeal in light of People v.
Strong (2022) 13 Cal.5th 698 (Strong) and People v. Lewis (2021)
11 Cal.5th 952 (Lewis). In supplemental briefing Wilson
contends we should reverse the denial of his petition for
resentencing for the murder of Sun and remand the matter for an
evidentiary hearing to determine whether he remains liable for
that murder under a still-valid theory. The Attorney General
agrees, as do we.
As to the murder of Min, however, the Attorney General
contends our prior decision remains correct and should be
reaffirmed. Wilson does not argue to the contrary. We agree
Wilson’s admission he was the actual killer of Min, properly
considered as part of the prima facie review of a petition for
resentencing under section 1172.6, subdivision (c), established
Wilson’s ineligibility for resentencing relief as a matter of law.
FACTUAL AND PROCEDURAL BACKGROUND
1. Wilson’s Murder Convictions
The evidence at trial established that Wilson and Harris
walked into a liquor store owned by Sun in late September 2001.
Sun worked at the store with his brother Min and another
employee, Gun Sung Choi. After unsuccessfully bargaining over
the price of two bottles of alcohol, Wilson and Harris left the
store. Wilson and Harris returned to the store about 20 minutes
later. Both men were armed. Harris forcibly entered the cash
register area and shot Sun.
As Harris shot Sun, Choi activated a switch for a red alarm
light in the adjoining fish market, where Sun’s wife, Jenny Ok
Kim (Jenny), and daughter worked. Jenny ran outside and saw
Harris in the cash register area of the liquor store. She returned
to the fish market, pushed the silent alarm and told her daughter
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to call the police. Harris shot Sun a second time and left the
liquor store.
Looking from the fish market, Jenny saw Harris walking
down the street with a gun. After pushing the alarm button
again, Jenny went out to the street and saw Wilson carrying a
gun and a jar filled with money taken from the liquor store.
When Jenny went back inside to push the alarm button a third
time, she heard gun shots, as did Choi, who had remained in the
liquor store. Jenny ran to the alley and discovered Min lying on
the ground. Both Sun and Min died from multiple gunshot
wounds.
Wilson was convicted following a jury trial on two counts of
first degree murder (§ 187, subd. (a); counts 1-2), three counts of
second degree robbery (§ 211; counts 3-5) and one count of
possession of a firearm by a felon (former § 12021, subd. (a)(1);
count 6). As to counts 1 and 2, the jury found true the special-
circumstance allegations that the murders had been committed
during the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and
that there were multiple murders (§ 190.2, subd. (a)(3)). As to
counts 1 to 4, the jury also found true that Wilson had personally
and intentionally discharged a firearm proximately causing death
(§ 12022.53, subds. (b), (c) & (d)), and as to count 5 that Wilson
had personally and intentionally used and discharged a firearm
(§ 12022.53, subds. (b) & (c)).
In a bifurcated bench trial the trial court found Wilson had
previously been convicted of robbery, a serious or violent felony,
and had served one prior prison term within the meaning of
section 667.5, subdivision (b). The trial court sentenced Wilson to
an aggregate state prison term of two life terms without parole,
plus 81 years to life. We affirmed the convictions on appeal but
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modified Wilson’s sentence to strike the one-year prior-prison
term enhancement imposed under section 667.5. (People v.
Wilson (Nov. 16, 2005, B178497) [nonpub. opn.].)
2. Wilson’s Petition for Resentencing
On November 22, 2019 and again on November 27, 2019
Wilson, representing himself, filed petitions for resentencing
under former section 1170.95, checking boxes on the forms
establishing a facially sufficient case for resentencing relief,
including the boxes stating he had been charged with murder by
complaint, information or indictment that allowed the
prosecution to procced under a theory of felony murder or murder
under the natural and probable consequences doctrine and he
could not now be convicted of first or second degree murder
because of changes made to sections 188 and 189 by Senate Bill
No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). Wilson
requested the court appoint counsel.
On January 8, 2020 the superior court, “[b]ased on a
preliminary review of the Petition,” appointed the Alternative
Public Defender to represent Wilson, and ordered the District
Attorney to file a response within 60 days. Wilson’s appointed
counsel appeared on behalf of Wilson the following day, and the
superior court set a hearing for February 13, 2020. However,
without receiving any additional briefing or holding oral
argument, the superior court summarily denied the petition on
January 14, 2020.
In its order denying the petition the superior court stated,
“The court has received and reviewed a petition for recall and
resentencing pursuant to [former section] 1170.95. The petition
is summarily denied because the petitioner is not entitled to
relief as a matter of law, for the following reason: [¶] The
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petitioner was convicted of two murders. The court file reflects
that the petitioner was the actual killer. [¶] As to both murder
counts 1 and 2, the jury found the petitioner ‘[personally] and
intentionally discharged a firearm, a handgun, which
proximately caused death within the meaning of
[section] 12022.53[, subsection] (D) to be true.’ [¶] . . . [¶] The jury
also found the special circumstance pursuant to Penal Code
section 190.2[, subdivision] (a)(3) to be true as to counts 1 and 2.”
The superior court explained that in making its ruling it had
relied on the court file, the jury instructions that had been given
at trial, and the completed verdict forms.
DISCUSSION
1. Section 1172.6 (Former Section 1170.95)
As is now well known to the bench and bar, Senate
Bill 1437 substantially modified the law relating to accomplice
liability for murder, eliminating the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843) and
significantly narrowing the felony-murder exception to the malice
requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e); see
Strong, supra, 13 Cal.5th at pp. 707-708; Lewis, supra, 11 Cal.5th
at p. 957.)
At the time of Wilson’s trial in 2004, section 189 permitted
a conviction for felony murder by imputing malice to a
participant in an inherently dangerous felony, including robbery,
that resulted in a homicide. (People v. Chun (2009) 45 Cal.4th
1172, 1184; see Strong, supra, 13 Cal.5th at p. 704.) As amended
by Senate Bill 1437, section 188, subdivision (a)(3), now prohibits
imputing malice based solely on an individual’s participation in a
crime and requires proof of malice to convict a principal of
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murder except under the revised felony-murder rule as set forth
in section 189, subdivision (e). That provision requires the People
to prove specific facts relating to the defendant’s individual
culpability: The defendant was the actual killer (§ 189,
subd. (e)(1)); although not the actual killer, the defendant, with
the intent to kill, assisted in the commission of the murder
(§ 189, subd. (e)(2)); or the defendant was a major participant in
an underlying felony listed in section 189, subdivision (a), and
acted with reckless indifference to human life, “as described in
subdivision (d) of Section 190.2,” the felony-murder special-
circumstance provision (§ 189, subd. (e)(3)). (See Strong, at
p. 708.)
Senate Bill 1437 also authorized, through former
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 or she could not now
be convicted of murder because of Senate Bill 1437’s changes to
the definitions of the crime. (See Strong, supra, 13 Cal.5th at
p. 708; Lewis, supra, 11 Cal.5th at p. 957; People v. Gentile,
supra, 10 Cal.5th at p. 843.) As amended by Senate Bill No. 775
(Stats. 2021, ch. 551, § 2) (Senate Bill 775), these ameliorative
changes to the law now expressly apply to attempted murder and
voluntary manslaughter.
If the petition contains all the required information,
including a declaration by the petitioner that he or she is eligible
for relief (§ 1172.6, subd. (b)(1)(A)), the court must appoint
counsel to represent the petitioner, if requested (§ 1172.6,
subd. (b)(3)), and direct the prosecutor to file a response to the
petition, permit the petitioner to file a reply and determine if the
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petitioner has made a prima facie showing that he or she is
entitled to relief. (§ 1172.6, subd. (c); see Lewis, supra, 11 Cal.5th
at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing, the superior
court properly examines the record of conviction, “allowing the
court to distinguish petitions with potential merit from those that
are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971; see
People v. Mancilla (2021) 67 Cal.App.5th 854, 864-865.)
However, “the prima facie inquiry under subdivision (c) is
limited. Like the analogous prima facie inquiry in habeas corpus
proceedings, the court takes petitioner’s factual allegations as
true and makes a preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual
allegations were proved. If so, the court must issue an order to
show cause. . . . However, if the record, including the court’s own
documents, contain[s] facts refuting the allegations made in the
petition, then the court is justified in making a credibility
determination adverse to the petitioner.” (Lewis, at p. 971,
internal quotation marks omitted.)
When a petitioner has carried the burden of making the
requisite prima facie showing he or she falls within the
provisions of section 1172.6 and is entitled to relief, the court
must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1172.6, subd. (d)(1).) At that hearing the court may consider
evidence “previously admitted at any prior hearing or trial that is
admissible under current law,” including witness testimony.
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(§ 1172.6, subd. (d)(3).) The petitioner and the prosecutor may
also offer new or additional evidence. (Ibid.)
2. Any Procedural Errors in Denying Wilson’s Petition As It
Related to the Murder of Min Were Harmless
The superior court erred in determining Wilson failed to
carry his burden of making a prima facie case for relief without
first requiring the prosecutor to file a response to the petition and
providing Wilson’s appointed counsel with an opportunity to file a
reply, as required by Lewis, supra, 11 Cal.5th at pages 961
through 970, and by former section 1170.95, subdivision (c), as
amended by Senate Bill 775. Nonetheless, in his original briefing
following denial of the petition for resentencing, Wilson admitted
he was the actual killer of Min, arguing only that the superior
court erred in ruling the jury’s finding he had personally
discharged a firearm proximately causing death in connection
with the murder of Sun established as a matter of law he was the
actual killer of Sun.2 As discussed, pursuant to section 189,
2 Citing People v. Oates (2004) 32 Cal.4th 1048, 1055-1056,
we explained in affirming imposition of the firearm enhancement
in Wilson’s direct appeal that the section 12022.53,
subdivision (d), enhancement was properly imposed as to the
murder of Sun “because Wilson personally discharged his firearm
proximately causing the death of Min ‘in the commission of’ Sun’s
murder. . . . The number of enhancements imposed under
section 12022.53, subdivision (d), is not limited by the number of
actual injuries inflicted by Wilson’s personal discharge of his
firearm.” (People v. Wilson, supra, B178497.)
The Attorney General conceded in his initial respondent’s
brief in this appeal that a properly imposed section 12022.53,
subdivision (d), enhancement “does not always prove a
defendant’s actual killer status under all fact patterns, including
here as to the murder of victim Sun.” However, the Attorney
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subdivision (e)(1), as amended by Senate Bill 1437, a participant
in the perpetration of a robbery in which a death occurred
remains liable for murder if the person was the actual killer.
Accordingly, Wilson is ineligible as a matter of law for
resentencing relief as to the murder of Min, and any procedural
errors by the superior court were necessarily harmless. In his
supplemental brief following transfer by the Supreme Court,
Wilson does not contend otherwise.
3. Wilson Is Entitled to an Evidentiary Hearing To
Determine His Right to Resentencing Relief for the
Murder of Sun
More than a decade after Wilson’s conviction for Sun’s
murder, the overlapping factors for assessing whether a
defendant was a major participant in an underlying serious
felony and acted with reckless indifference to human life for
purposes of section 190.2, subdivision (d) (and thus for continued
liability for felony murder under the current iteration of
section 189, subdivision (e)(3)) were detailed by the Supreme
Court in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark).
In Strong, supra, 13 Cal.5th 698 the Supreme Court held,
when, as here, the case of an individual convicted under a felony-
murder theory “was tried before both Banks and Clark, the
special circumstance findings do not preclude him from making
out a prima facie case for resentencing under section 1172.6.”
(Id. at p. 721.) “This is true even if the trial evidence would have
General urged us to affirm the denial of the petition as to Sun
based on the jury’s true finding of the felony-murder special-
circumstance allegation in connection with that murder
conviction.
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been sufficient to support the findings under Banks and Clark.”
(Id. at p. 710.) A pre-Banks/Clark special-circumstance finding,
the Court explained, does not defeat the petitioner’s prima facie
showing he or she could not now be convicted of murder “because
the finding alone does not establish that the petitioner is in a
class of defendants who would still be viewed as liable for murder
under the current understanding of the major participant and
reckless indifference requirements.” (Id. at p. 718.)
In addition, under Lewis, supra, 11 Cal.5th 952 a reviewing
court may not find harmless any procedural errors by the
superior court at the prima facia stage and affirm the denial of a
petition for resentencing by independently examining the record
of conviction, applying the Banks and Clark factors and
determining that the record established beyond dispute that the
petitioner was a major participant and had acted with reckless
indifference to the murder victim’s life when committing a
qualifying serious felony. At that stage neither the superior court
nor the reviewing court may engage in judicial factfinding. (Id.
at pp. 971-972.) Moreover, although procedural errors at the
prima facie stage are tested for prejudice under the state law
standard articulated in People v. Watson (1956) 46 Cal.2d 818
(Lewis, at p. 958), the inquiry, when a petition was denied before
issuance of an order to show cause, is whether the petitioner has
shown it is reasonably probable the “‘“petition would not have
been summarily denied without an evidentiary hearing”’” if the
error had not occurred (Lewis, at p. 974), not, as we assumed in
our original opinion affirming the full denial of Wilson’s petition,
whether it is reasonably probable the petitioner will be entitled to
resentencing relief if an evidentiary hearing is held.
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As Wilson argues, and the Attorney General concedes,
Strong and Lewis establish the superior court’s erroneous denial
of Wilson’s petition for resentencing at the prima facie stage as to
the murder of Sun must be reversed. The pre-Banks/Clark true
finding on the felony-murder special-circumstance allegation with
respect to Sun does not preclude resentencing relief as a matter
of law, and harmless error review that includes applying the
Banks and Clark factors to the record of conviction without a
section 1172.6, subdivision (d)(3), evidentiary hearing is
improper. (See Strong, supra, 13 Cal.5th at pp. 719-720
[section 1172.6 requires a finding on the Banks and Clark factors
by a finder of fact, following an evidentiary hearing, using a
beyond-a-reasonable-doubt degree of certainty].) Accordingly, the
postjudgment order denying Wilson’s petition as to count 1, the
murder of Sun, must be reversed, and the cause remanded for
issuance of an order to show cause and an evidentiary hearing
pursuant to section 1172.6, subdivision (d)(3).
DISPOSITION
The postjudgment order denying Wilson’s petition for
resentencing is affirmed as to the murder of Min and reversed as
to the murder of Sun. On remand the superior court is to issue
an order to show cause concerning the petition as it relates to
Sun and to conduct further proceedings in accordance with
section 1172.6, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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