Filed 3/25/24 P. v. Thomas CA3
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
----
THE PEOPLE, C099379
Plaintiff and Respondent, (Super. Ct. No. 18FE009080)
v.
WILLIAM THOMAS,
Defendant and Appellant.
Defendant William Thomas filed a petition for resentencing on his murder
conviction under Penal Code section 1172.6.1 The trial court denied the petition, finding
defendant failed to make a prima facie showing for relief.
1 Statutory section citations that follow are to the Penal Code unless otherwise stated.
Defendant originally filed his petition in May 2022 under former section 1170.95, which
was renumbered to section 1172.6 without substantive change effective June 30, 2022.
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Defendant appealed the order denying him postconviction relief, and, although this
is not his first appeal as of right, defendant’s appointed counsel filed a brief pursuant to
People v. Delgadillo (2022) 14 Cal.5th 216, asking this court to independently review the
record to determine if there are any arguable errors that would result in a disposition more
favorable to defendant. Defendant filed a supplemental brief raising issues generally
unrelated to the trial court’s denial of his resentencing petition. Having considered
defendant’s supplemental brief in accordance with Delgadillo, we shall affirm.
FACTS AND HISTORY OF THE PROCEEDINGS
In 2020, a jury found defendant guilty of first degree murder and arson. He was
sentenced to 50 years to life in state prison, and the trial court imposed a $10,000
restitution fine under section 1202.4, subdivision (b). (People v. Thomas (Oct. 10, 2022,
C091728) [nonpub. opn.] (Thomas).) Defendant appealed, and this court affirmed the
judgment. (Ibid.)
In May 2022, defendant filed a section 1172.6 petition for resentencing declaring
that a complaint, information, or indictment was filed against him that allowed the
prosecution to proceed on 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, that he was convicted of
murder following a trial, and that he could not presently be convicted of murder because
of changes made to sections 188 and 189, effective January 1, 2019. Defendant requested
the appointment of counsel.
The trial court appointed counsel and received briefing from the parties. The
People opposed the petition, arguing defendant was not entitled to relief as a matter of
law because at the time he was tried and convicted for murder the relevant statutes were
(See Stats. 2022, ch. 58, § 10.) For clarity, we refer to section 1172.6 throughout the
opinion.
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already amended by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015,
§ 2) (Senate Bill No. 1437), and, thus, the jury could not have convicted defendant on a
now-invalid theory. They attached copies of this court’s unpublished decision in Thomas
(C091728) as well as the murder verdict form and the court’s instructions to the jury
during defendant’s trial. In reply, defendant asserted he had made a sufficient prima facie
showing for relief because the record of conviction did not conclusively negate an
imputed malice theory of liability.
In July 2023, the trial court issued a tentative written ruling finding defendant was
not eligible for relief because he was convicted after Senate Bill No. 1437 went into
effect. At the prima facie hearing in August 2023, defense counsel conceded that
defendant was tried as the sole killer and acknowledged that Senate Bill No. 1437
amended the murder statutes before defendant was tried, but he argued the court could
not find as a matter of law that defendant was ineligible for relief because the concept of
what constitutes an “actual killer” had since been refined. The prosecutor reiterated his
argument that defendant’s conviction postdated the changes Senate Bill No. 1437 made to
the felony murder rule and that no aiding and abetting instructions were given at trial.
After considering the parties’ arguments and the jury instructions, the trial court
denied the petition, finding defendant failed to make a sufficient prima facie showing.
The court reasoned that no instructions on aiding and abetting or the natural and probable
consequences doctrine were given, and that under the instructions, the jury necessarily
found beyond a reasonable doubt that defendant actually killed the victim under current
law. Defendant timely appealed.
DISCUSSION
The independent review procedures in People v. Wende (1979) 25 Cal.3d 436 are
not constitutionally required in an appeal from a postconviction order denying a section
1172.6 petition for resentencing. (People v. Delgadillo, supra, 14 Cal.5th at pp. 222, 224-
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225.) Where, as here, the defendant has been notified that his appeal may be dismissed
pursuant to Delgadillo and he files a supplemental brief raising various issues he wants
considered, we must evaluate the specific arguments presented in the defendant’s
supplemental brief, but we are not required to independently review the record, although
we may exercise our discretion to do so. (Id. at pp. 228-232.)
Applying Delgadillo, we turn to the issues in defendant’s supplemental brief. He
raises several issues which could have been, but were not, raised in his prior direct appeal
of the judgment. Such issues are beyond the scope of the present appeal from the order
denying his section 1172.6 resentencing petition, and we do not consider them.
Absent good cause or justification, a defendant may not raise an issue in a second
appeal that could have been raised in the first appeal. (People v. Senior (1995)
33 Cal.App.4th 531, 535, 538 [“where a criminal defendant could have raised an issue in
a prior appeal, the appellate court need not entertain the issue in a subsequent appeal
absent a showing of justification for the delay”].) An issue not raised in a prior appeal is
waived in a subsequent appeal where “(1) the issue was ripe for decision by the appellate
court at the time of the previous appeal; (2) there has been no significant change in the
underlying facts or applicable law; and (3) the defendant has offered no reasonable
justification for the delay.” (Id. at p. 538.)
Here, defendant’s claim that the $10,000 restitution fine under section 1202.4
should be vacated because the victim did not write a will and her family did not ask for
restitution, and his contentions that various jury instructions should not have been given,
violated the presumption of innocence, deprived him of a unanimity finding or violated
equal protection were all claims that could have been brought in Thomas, supra,
C091728. Defendant offers no explanation for failing to raise these claims in his direct
appeal from the judgment and he cannot belatedly raise them now. (People v. Senior,
supra, 33 Cal.App.4th at p. 538; People v. Jordan (2018) 21 Cal.App.5th 1136, 1141,
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1144-1145 [concluding that because the defendant did not raise the penalty assessment
claims in his original appeal, he could not raise them in a subsequent appeal].)
While defendant does not explicitly raise any issues challenging the trial court’s
denial of his section 1172.6 resentencing petition, we conclude the trial court did not err
in denying the petition at the prima facie stage because defendant was tried and convicted
in February 2020, over a year after Senate Bill No. 1437’s amendments to section 188
and section 189 went into effect. The timing of defendant’s trial and conviction show
that the premise for relief in his petition—that he could not presently be convicted of
murder because of changes made to sections 188 and 189, effective January 1, 2019—
was demonstrably invalid. (See e.g., People v. Reyes (2023) 97 Cal.App.5th 292, 277-
278, 280 [defendant who was convicted after Senate Bill No. 1437 became effective not
entitled to relief under section 1172.6 because the defendant was convicted under current
law].) The record of conviction shows he was not convicted on a now-invalid theory
because the law had already changed when he was tried.
To the extent defendant implies that the trial court erred in concluding the jury was
not instructed on the natural and probable consequences doctrine given the “natural and
probable consequences” language in CALCRIM No. 520 defining implied malice
murder, such language does not transform defendant’s conviction into one for murder
under the natural and probable consequences doctrine within the meaning of section
1172.6. (See e.g., People v. Soto (2020) 51 Cal.App.5th 1043, 1055-1059, review
granted on other grounds Sept. 23, 2020, S263939, and held for People v. Lewis (2021)
11 Cal.5th 952, S263939; review dismissed Nov. 17, 2021, and opinion citable to the
extent not inconsistent with Lewis.)
The trial court did not err in finding defendant failed to state a sufficient prima
facie case under section 1172.6, subdivision (c).
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DISPOSITION
The order denying the section 1172.6 resentencing petition is affirmed.
HULL, Acting P. J.
We concur:
MAURO, J.
RENNER, J.
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