Filed 6/12/23 P. v. Williams CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE, C092913
Plaintiff and Respondent, (Super. Ct. No. 94F04063)
v. OPINION ON TRANSFER
BRIAN WILLIAMS,
Defendant and Appellant.
This appeal comes to us pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende).
In 1994, defendant shot and killed the victim, his girlfriend’s estranged husband,
after an argument. A jury found defendant guilty of second degree murder (Pen. Code,
§§ 187, 189; statutory section citations that follow are to the Penal Code) and found true
a personal firearm use enhancement (former § 12022.5, subd. (a)(1)). Defendant pleaded
no contest to unlawful possession of a firearm (former § 12021, subd. (a)(1)) and
admitted a prior strike conviction (§ 667, subds. (b) - (i)). We affirmed defendant’s
convictions on appeal but remanded the case for the court to exercise its discretion as to a
sentencing issue. (People v. Williams (July 14, 1997, C021467) [nonpub. opn.].)
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In 2019, defendant filed a former section 1170.95 petition for resentencing under
Senate Bill No. 1437 (2017-2018 Reg. Sess.). (Former section 1170.95 has since been
renumbered section 1172.6, with no change in text [see stats. 2022, ch. 58, § 10].) The
trial court received briefing from the parties. The court then issued a written order
denying the petition, saying defendant was ineligible for relief because “[h]e was the
actual killer, and no felony-murder instruction was given [at trial], nor any instruction on
the natural and probable consequences doctrine that applies to accomplice liability.”
Defendant appealed and appointed counsel for defendant asked this court to
independently review the record pursuant to Wende.
We dismissed the appeal as abandoned. The California Supreme Court granted
review of the case and later transferred the matter back to this court with instructions to
vacate the dismissal and reconsider the case in light of People v. Delgadillo (2022)
14 Cal.5th 216 (Delgadillo). This court vacated the dismissal and sent defendant a letter
notifying him of his obligations under Delgadillo. Appointed counsel filed a brief asking
the court to consider the issues raised in defendant’s supplemental brief and conduct an
independent review of the record. Defendant has filed a supplemental brief raising
various issues. We have considered defendant’s arguments and will affirm the trial
court’s order.
DISCUSSION
The California Supreme Court has considered whether the Wende process
applies to a trial court’s order denying a petition for postconviction relief under
former section 1170.95 and concluded such procedures are not required. (People v.
Delgadillo, supra, 14 Cal.5th at pp. 221-222.) The Supreme Court laid out
applicable procedures for such cases, saying, where, as here, a defendant has filed a
supplemental brief, “the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion. The filing of a
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supplemental brief or letter does not compel an independent review of the entire
record to identify unraised issues.” (Id. at p. 232.)
Defendant argues section 1172.6 violates his equal protection rights because it
treats him, as the actual killer, differently than someone who was convicted under
an imputed malice accomplice liability theory. But actual killers are not similarly
situated to aiders/abettors convicted of murder under an imputed malice theory for
the purposes of the legislation at issue. (People v. Brown (2012) 54 Cal.4th 314,
328 [equal protection claims require a showing that “ ‘ “the state has adopted a
classification that affects two or more similarly situated groups in an unequal
manner” ’ ”].) When enacting section 1172.6, the Legislature explained the
purpose of the section was to “more equitably sentence offenders in accordance
with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1, subd. (b).) An
actual killer has more involvement in a murder than someone who is only convicted
under an imputed malice theory and thus is not similarly situated to such a person
for the purposes of this legislation.
The Legislature expressly made this distinction; the legislation permits felony
murder liability for, among others, actual killers. (Stats. 2018, ch. 1015, § 1, subd.
(f).) “Where two or more groups are properly distinguishable for purposes of the
challenged law, it is immaterial if they are indistinguishable in other
respects. [Citation.] Nor, absent this threshold requirement, is an equal protection
inquiry into the justification for any legislative distinction necessary. [Citation.]”
(People v. Barrett (2012) 54 Cal.4th 1081, 1107.) We thus reject defendant’s equal
protection claim.
Defendant further claims he was denied due process because he did not
receive a hearing on his petition as required by section 1172.6, subdivision (c). He
also states the trial court did not review the record in this case, including the jury
instructions. First, the record indicates the court did, in fact, review the jury
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instructions given at trial. The court’s order mentions specific instructions relevant
to its decision, and its failure to specifically discuss an instruction defendant
mentioned in his briefing does not mean the court did not review the instructions.
Second, any failure to hold a hearing, even if required, was harmless error
because there is no reasonable probability defendant would have obtained a better
result had he received a hearing at the prima facie stage. (People v. Hurtado (2023)
89 Cal.App.5th 887, 892 [Watson harmless error applies for “omissions at the first
step of the section 1172.6 process”].) As the trial court noted, defendant alone
committed the murder, and the jury was only instructed on murder, voluntary
manslaughter, and involuntary manslaughter, without any instructions on
accomplice liability, felony-murder, or the natural and probable consequences
doctrine. The jury could not have convicted defendant on a theory on which it was
not instructed. (People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review granted
Sept. 23, 2020, S263939.) No hearing before the trial court could have changed
this fact. Any error was therefore harmless.
Finally, defendant argues the trial court failed to consider People v. Robertson
(2004) 34 Cal.4th 156, overruled by People v. Chun (2009) 45 Cal.4th 1172, and In
re Ferrell (2023) 14 Cal.5th 593, which all considered the use of assaultive felonies
as the underlying crimes in felony-murder convictions. As noted above, however,
defendant could not have been convicted on a felony-murder theory because his
jury was not instructed on such a theory. Consequently, the trial court would have
had no reason to address any of these cases.
Nor does the fact that the court instructed defendant’s jury on gross
negligence using CALJIC No. 3.36, just as the jury in People v. Robertson was
instructed, mean that defendant was convicted under a felony-murder theory. In
Robertson, the instruction was used to define the phrase “gross negligence” as it
was used in the predicate felony of discharging a firearm in a grossly negligent
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manner. (People v. Robertson, supra, 34 Cal.4th at p. 168.) Here, the instruction
was used to define the same phrase as it applied to the lesser included crime of
involuntary manslaughter. The instruction is not, by itself, evidence that a felony-
murder theory was applied in defendant’s case.
We find no merit in defendant’s arguments.
DISPOSITION
The trial court’s order denying defendant’s section 1172.6 petition is
affirmed.
HULL, Acting P. J.
We concur:
RENNER, J.
KRAUSE, J.
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