People v. Williams CA4/2

Filed 8/10/23 P. v. Williams CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E078376

v. (Super. Ct. No. FVA023840)

KEIAN WADE WILLIAMS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Cara Hutson,

Judge. Reversed with directions.

Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, Assistant Attorney General, Alan L. Amann, and

Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

1
 I.

INTRODUCTION

Keian Williams and his uncle, Julian Jones, robbed two men while they were

sitting in a car. Williams ordered one of the victims to lie down in the back of the car,

and Jones shot and killed him. Williams pled guilty to second-degree murder and was

sentenced to 15 years to life.
1
Years later, Williams petitioned under Penal Code section 1172.6 (former section

1170.95) to have his murder conviction vacated. After an evidentiary hearing, the trial

court denied the petition. Williams appeals, and we reverse and remand.

II.
2
FACTUAL AND PROCEDURAL BACKGROUND

Alicia Fowlkes, Lilian Johnson, Williams, and Jones devised a plan to commit

robberies. The plan was for Folkes and Lilian to try to lure men outside of a nightclub by

flirting with them and then Williams and Jones would rob them.

The victims, Dwight Fleming and Mark Rodriguez, were in Fleming’s car outside

of the nightclub when Fowlkes and Johnson hailed them. Fleming pulled over and the

four of them began chatting. Jones and Williams parked nearby and walked up to

1
All further statutory references are to the Penal Code.
2
The following facts are drawn largely from the transcript of Williams’s
preliminary hearing. We address his argument that the transcript was inadmissible
below.

2
Fleming’s car while Fowlkes and Johnson walked away. Jones walked to the driver’s

side and Williams went to the passenger side.

Jones pointed a gun at Fleming’s face and demanded his property while Williams

demanded Rodriguez’s property. Williams then opened the door and told Rodriguez to

get out. Rodriguez complied while holding his hands up and Williams had him lie down

in the backseat of the car. Within seconds, Jones shot Rodriguez in the head.

Jones and Williams walked back to their car and got in. Fleming got out of the car

and opened the backdoor to check on Rodriguez, but immediately jumped back into the

driver’s seat, without shutting the back car door, because Jones and Williams had gotten

out of their car and were walking toward him. Fleming drove to a hospital, but

Rodriguez died.

In 2007, Williams pled guilty to one count of second-degree murder and was

sentenced to 15 years to life. Williams did not appeal. A jury convicted Jones and

Johnson for Rodriguez’s murder, and this court affirmed their convictions in unpublished

opinions. (People v. Jones (E048437), 2010 WL 4975659 [nonpub. opn.]; People v.

Johnson (E042972), 2008 WL 2922392 [nonpub. opn.].)

After Senate Bill No. 1437 was enacted, Williams petitioned to have his

conviction vacated. The trial court found he had made a prima facie showing and ordered

an evidentiary hearing. In his brief, Williams asked the trial court to take judicial notice

of our unpublished opinion affirming Jones’s conviction. The prosecution also asked the

3
trial court to take judicial notice of Williams’s preliminary hearing transcript, among

other evidence, and submitted a video recording of surveillance footage of the murder.

The trial court held the evidentiary hearing on Williams’s petition on December

17, 2021. Before addressing the merits, the court and counsel discussed at length

whether the court could consider the preliminary hearing transcript and this court’s

unpublished opinions affirming Jones’s and Johnson’s convictions.

Counsel did not object to the court’s consideration of this court’s opinions, and

everyone agreed that, effective January 1, 2022, the transcript would no longer be

admissible at an evidentiary hearing on Williams’s petition due to the enactment of

Senate Bill No. 775 (SB 775). The prosecutor, however, argued that the law in effect at

the time of the hearing controlled, stating that “the People are presuming and proceeding

based on what the current state of the law is.”

Defense counsel stated that he did not “necessarily want the preliminary hearing

[transcript] coming in” because it contains inadmissible hearsay. Counsel explained,

however, that he would not object to its admission because he was in “an awkward

position” where the transcript was “the only source of information for the Court to base

its decision on.”

The trial court therefore ruled that the preliminary hearing transcript was

admissible “since that is the only evidence,” and proceeded with the hearing “at the

expense of having to do this all over in another three years” due to the potential

retroactive application of SB 775’s evidentiary provisions.

4
 After a lengthy hearing, the trial court explained its decision denying Williams’s

petition. The court noted at the outset that “I really started paying attention” when the

video recording of the incident started because “it made [Williams’s actions] even

clearer.” The court made no finding as to whether Williams had a gun, but explained,

“What the Court knows from reading the opinion from Mr. Fleming’s testimony is that

not only was a gun held to his temple, he was actually being violently pistol-whipped

with that weapon. The Court read that in several opinions from the testimony that

counsel got to cross-examine on.” Given that context from this court’s opinions, the

court saw in the video that Williams could have acted differently, but he instead had

Rodriguez lie down in the back of the car, which the court found to be “tantamount to an

action of execution.”

In the court’s view, it could not grant the petition knowing that “the video shows

no reaction when the gun went off.” Instead, Williams seemingly looked in the front

seat, left the door open, and walked away with Jones. Then, when Fleming got out of his

car, the court found that the video showed “two ominous individual[s] which scared Mr.

Fleming back into the car.”

The court then found, “just looking at the video in combination with the facts

clearly shows” that Williams was a major participant who acted with reckless disregard

for human life. The court therefore denied his petition.

5
 III.

DISCUSSION

Williams argues the trial court erroneously denied his section 1172.6 petition

because there is insufficient evidence that he acted with reckless indifference to human

life and, in any event, his trial counsel was ineffective. In making his first argument,

Williams contends the evidentiary rule changes created by SB 775 apply retroactively

here.

We need not decide whether the evidentiary provisions enacted by SB 775 apply

retroactively here because, regardless of whether they do apply, we conclude that the

appropriate course is to reverse and remand the matter for the trial court to conduct a new

evidentiary hearing. As a result, we need not address Williams’s claim that his counsel

was ineffective.

A. Governing Law

Effective January 1, 2019, the Legislature passed Senate Bill 1437 (2017-2018

Reg. Sess.) “‘to amend the felony murder rule and the natural and probable consequences

doctrine, as it relates to murder, 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.’”

(People v. Lewis (2021) 11 Cal.5th 952, 959; Stats. 2018, ch. 1015, § 4.)

Senate Bill No. 1437 also created a procedure for offenders previously convicted

of felony murder or murder under the natural and probable consequences doctrine to seek

6
retroactive relief if they could no longer be convicted of murder under the new law.

(§ 1172.6, subd. (a); People v. Gentile (2020) 10 Cal.5th 830, 843; People v. Lewis,

supra, 11 Cal.5th at p. 959; People v. Strong (2022) 13 Cal.5th 698, 708.) “[T]he process

begins with the filing of a petition containing a declaration that all requirements for

eligibility are met [citations], including that ‘[t]he petitioner could not presently be

convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189

made effective January 1, 2019 . . . .’” (People v. Strong, supra, at p. 708.) “When the

trial court receives a petition containing the necessary declaration and other required

information, the court must evaluate the petition ‘to determine whether the petitioner has

made a prima facie case for relief.’ [Citations.]” (Ibid., citing § 1172.6, subd. (c).) If the

defendant makes a prima facie showing of entitlement to relief, the court must issue an

order to show cause and hold an evidentiary hearing to determine whether relief should

be granted. (§ 1172.6, subds. (c), (d)(3).)

In 2021, “the Legislature modified section 1170.95 both substantively and

procedurally by the passage of [SB 775],” which went into effect on January 1, 2022.

(People v. Owens (2022) 78 Cal.App.5th 1015, 1026.) As relevant here, SB 775

modified section 1170.95 (now section 1172.6) to specify that the Evidence Code shall

apply to evidentiary hearings on an order to show cause, and “[t]his may mean that,

absent some exception, hearsay contained in probation, presentence reports, appellate

7
opinions/orders, and other documents, are not now admissible at a section 1170.95
3
hearing.” (Ibid.)

B. Retroactivity of SB 775

Several appellate courts have held that other, substantive provisions of SB 775

apply retroactively (see, e.g., People v. Porter (2022) 73 Cal.App.5th 644, 651-652), but

no published decision has squarely held that the evidentiary provisions at issue here apply

retroactively with meaningful analysis. One court broadly held that the “procedures

within section [1172.6],” including section 1172.6, subdivision (d)(3)’s evidentiary

provisions, apply retroactively. (People v. Basler (2022) 80 Cal.App.5th 46, 56.)

Another court suggested that the provisions would not apply retroactively, but did not

“definitively rule” on the issue. (People v. Owens, supra, 78 Cal.App.5th at p. 1027; see

also id. at p. 1028 [conc. opn. of Tangeman, J.] [“The majority’s pronouncements on [the

retroactivity of SB 775] are dicta because the appellant did not raise [SB] 775.”].)

Although Williams argues in his opening brief that SB 775’s evidentiary

provisions apply retroactively, the People do not address the issue in their brief. We need

3
Section 1172.6, subdivision (d)(3) now provides in relevant part: “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. However, hearsay evidence that was admitted in a
preliminary hearing pursuant to subdivision (b) of [s]ection 872 shall be excluded from
the hearing as hearsay, unless the evidence is admissible pursuant to another exception to
the hearsay rule . . . .”

8
not decide the issue because a remand is appropriate whether or not the provisions apply

retroactively.

C. Analysis

We first assume without deciding that the evidentiary provisions of section

1172.6, subdivision (d)(3), as amended by SB 775, apply retroactively. In similar

situations where the retroactive application of a new statutory procedure would benefit

the defendant, our Supreme Court has concluded that the proper remedy is to remand for

further proceedings under the new statutory scheme. (See, e.g., People v. Padilla (2022)

13 Cal.5th 152, 158-159; People v. Frahs (2020) 9 Cal.5th 618, 637-640; People v.

Superior Court (Lara) (2018) 4 Cal.5th 299, 310, 313.) Following the Court’s guidance

from these cases, we conclude that even if SB 775’s evidentiary provisions apply

retroactively, the appropriate course is to remand the matter for a new evidentiary hearing

under the law now in effect.

We would reach the same conclusion even if we were to hold that SB 775’s

evidentiary provisions apply only prospectively. Assuming we so held, Williams still

could file a new section 1172.6 petition, which would be decided by the law now in

effect. (See People v. Farfan (2021) 71 Cal.App.5th 942, 949-951.) Under section 1260,

we have the authority to “remand the cause to the trial court for such further proceedings

as may be just under the circumstances.” It would be a waste of judicial resources to

affirm the trial court’s order denying Williams’s petition and require him to refile a new

9
petition. We therefore conclude the most appropriate disposition is to remand the matter

for a new evidentiary hearing under section 1172.6, as amended by SB 775.

D. Harmless Error

In response to Williams’s ineffective assistance claim, the People argue that he

cannot show prejudice. They argue that his counsel’s failure to object to the trial court’s

consideration of the preliminary hearing transcript and this court’s opinion was harmless

because the trial court found the surveillance footage video to be “dispositive,” regardless

of the other evidence. We will address the argument even though the People do not

address whether SB 775 applies retroactively because, if correct, remand would be futile.

(See People v. Ellis (2019) 43 Cal.App.5th 925, 946.)

We disagree with the People’s reading of the trial court’s ruling. The surveillance

footage video was no doubt central to the trial court’s analysis, but it was not the only

evidence the court relied on. The trial court stated that it learned “from reading [this

court’s] opinion[s]” that Williams was aware that Jones held a gun to Fleming’s head and

“violently pistol-whipped [him].” “Just looking at the video in combination with the

facts” drawn from this court’s opinions, the trial court found that Williams was not

entitled to relief because he was a major participant and acted with reckless disregard for

human life.

It would be difficult, if not impossible, for the trial court to have found the video

“dispositive” without considering other evidence. The video is grainy, poor quality, and

much of Jones’s key conduct—including pistol-whipping and shooting Rodriguez—is out

10
of frame. The trial court could not understand what the video captured without other

evidence giving it context.

We therefore conclude it is reasonably probable that Williams may have received

a more favorable outcome had the trial court been required to disregard some of the

evidence it had previously relied upon under SB 775’s amendments. (See People v.

Myles (2021) 69 Cal.App.5th 688, 706 [Watson standard applies to erroneous admission

of evidence at hearing on section 1172.6 petition for resentencing].) As a result, we

cannot conclude that the trial court’s reliance on our opinions was harmless.

IV.

DISPOSITION

The trial court’s order denying Williams’ section 1172.6 petition for resentencing

is reversed, and the matter is remanded for the trial court to conduct a new evidentiary

hearing pursuant to the provisions of section 1172.6 currently in effect.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

RAMIREZ
P. J.

FIELDS
J.

11