Filed 9/20/23 P. v. Williams CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D081186
Plaintiff and Respondent,
v. (Super. Ct. No. SCD150358)
TASHION WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Evan P. Kirvin, Judge. Reversed and remanded.
Aurora E. Bewicke, 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, Arlene A.
Sevidal, Lynne G. McGinnis and Andrew Mestman, Deputy Attorneys
General, for Plaintiff and Respondent.
MEMORANDUM OPINION1
Tashion Williams appeals from an order denying his petition for
resentencing of a 2001 special circumstance murder conviction under Penal
Code section 1172.6.2 The People concede the trial court erred by finding
Williams ineligible for relief as a matter of law at the prima facie stage. We
accept the concession.
Williams and his co-defendant, Darnell Johnson, were each charged
with murder (§ 187, subd. (a)) and conspiracy to commit murder (§ 182,
subd. (a)(1)), with a lying-in-wait special circumstance (§ 190.2, subd. (a)(15)).
Williams alone was charged with personal use of a deadly weapon. (§ 12022,
subd. (b).) Both men were tried in a single trial with two different juries.
The Williams jury and Johnson jury convicted each defendant of first degree
murder with the special circumstance of lying in wait, but acquitted on the
charge of conspiracy to commit murder. The Williams jury also found true
that Williams personally used a deadly weapon in the commission of the
murder. The trial court sentenced both defendants to life without the
possibility of parole. On direct appeal, we affirmed the judgment as to both
defendants. (People v. Johnson (Jan. 7, 2003, D038107) [nonpub. opn.] 2003
WL 42502.)
1 We resolve this case by memorandum opinion pursuant to California
Standards of Judicial Administration, section 8.1.
2 All further statutory references are to the Penal Code. Williams
brought his petition under former section 1170.95, which was amended
effective January 1, 2022, and then renumbered as section 1172.6 without
substantive change on June 30, 2022. (See Stats. 2022, ch. 58, § 10, (Assem.
Bill No. 200).) We will refer to the statute by its current number.
2
In March 2022, Williams filed a petition for resentencing under section
1172.6. The trial court appointed counsel for Williams, and the parties
submitted briefing on whether he had established a prima facie case for
relief. After a hearing, the court issued an order denying the petition.
Relying on “the record of conviction, including the Court of Appeal opinion” in
the prior appeal “and the trial court file, including the jury instructions,” the
court concluded that Williams had failed to establish a prima facie case for
relief. It explained: “According to the jury instructions and appellate opinion
in this case, the only theory advanced, and the only theory under which the
jury could have convicted [Williams], was that [Williams] intentionally and
personally killed the victim with a deadly weapon.”
Williams contends the trial court erred by finding him ineligible for
relief at the prima facie stage under section 1172.6, subdivision (c). He
claims the jury did not necessarily find that he was the actual killer or that
he aided and abetted the killing with malice aforethought. The Attorney
General agrees with Williams. Based on the instructions given⎯including
the instructions on aiding and abetting (CALJIC Nos. 3.00 and 3.01) and the
pre-Banks3 and pre-Clark4 instruction on the lying-in-wait special
circumstance (CALJIC Nos. 8.80.1 and 8.81.15)⎯the Attorney General
concedes “although it was unlikely, it is possible [Williams] was convicted
under an aiding and abetting theory” and thus “it cannot be conclusively said
3 People v. Banks (2015) 61 Cal.4th 788.
4 People v. Clark (2016) 63 Cal.4th 522.
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that [Williams] is ineligible for relief because the jury found he was the
actual killer.”5
As a general rule, courts may consider a prior appellate opinion as part
of the record of conviction at the prima facie stage of a section 1172.6 petition.
(See People v. Lewis (2021) 11 Cal.5th 952, 972.) However, as the Lewis court
cautioned, “the probative value of an appellate opinion is case-specific” and
“ ‘might not supply all answers.’ ” (Ibid.) Here, based on the parties’
agreement, we will accept (without deciding) that this is a case in which the
prior appellate opinion does not supply all the answers. We further agree
with the parties the jury instructions and verdicts alone do not conclusively
establish that the jury convicted Williams as the actual killer. Accordingly,
we shall accept the Attorney General’s concession and remand the matter for
an evidentiary hearing under section 1172.6, subdivision (d). We express no
opinion on the outcome of that hearing.
5 At oral argument, the Attorney General acknowledged the prosecutor
in his closing argument to the jury relied on the alternative theory Williams
could be convicted under an aiding and abetting theory.
4
DISPOSITION
We reverse the trial court’s order denying the petition. On remand, the
trial court is directed to issue an order to show cause pursuant to section
1172.6, subdivisions (b)(3) and (c), and to conduct an evidentiary hearing
pursuant to subdivision (d).
DO, J., Acting P.J.
WE CONCUR:
BUCHANAN, J.
RUBIN, J.
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