Filed 6/21/21 P. v. Williams CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B305302
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A325611)
v.
ROBERT LEE WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Drew E. Edwards, Judge. Reversed and
remanded with directions.
Donna L. Harris, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Nima Razfar,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Robert Lee Williams appeals the summary denial of his
petition for resentencing under Penal Code section 1170.95.1
Williams contends, and the Attorney General agrees, that
because the record of conviction does not demonstrate that
Williams is ineligible for relief as a matter of law, the superior
court summarily denied the petition in error. We agree and
remand the matter to the superior court for further proceedings,
including the issuance of an order to show cause and an
evidentiary hearing in accordance with Penal Code section
1170.95, subdivision (d).
FACTUAL BACKGROUND2
In 1976, appellant was one of a group of heroin addicts
including Albert Young, Sylvia Ramon, Paul Sam, and Kim Curry
who obtained their heroin by robbing and burglarizing the homes
of elderly people and trading the stolen property for heroin at a
secondhand store called Walter’s Ltd.
Minnie Devereaux, an elderly woman who lived in a four-
unit apartment complex, collected the rents from the other
tenants for the owner of the property. On February 12, 1976,
Devereaux’s grandson discovered her body on the floor of her
apartment. She died from six stab wounds to the upper back, but
she had also been struck nine times in the head and face with a
1 Undesignated statutory references are to the Penal Code.
2 Due to the age of appellant’s conviction in this case, the
superior and appellate court files are no longer retrievable. The
statement of facts is drawn from this court’s decision filed on
August 9, 1978, in the direct appeal from the conviction. (People
v. Young and Williams (Aug. 9, 1978, 2. CRIM. NO. 31804)
[nonpub. opn.]; People v. Cruz (2017) 15 Cal.App.5th 1105, 1110
[appellate opinion is part of the record of conviction].)
2
heavy blunt instrument. A piece of cloth had been tied around
her head covering her eyes, nose and mouth, another piece of
cloth had been stuffed into her mouth, and she had ligature
marks on her left wrist. Her residence had been ransacked and
various items of personal property, including a fur coat, a sewing
machine, and a stereo, had been taken.
Kim Curry testified that the day before the murder, one of
the tenants in Devereaux’s complex told appellant and Albert
Young it was possible to get money from his landlord. Around
10:00 a.m. on February 12, appellant, Young, Curry, and Paul
Sam drove to Devereaux’s apartment. Curry and Sam waited in
the car while appellant and Young went to the back of
Devereaux’s residence. Appellant returned a few minutes later
and motioned for Curry and Sam to join him in the back.
When Curry entered Devereaux’s apartment, she saw
appellant strike Devereaux with a metal object five or six times
on the head. Young then tied Devereaux’s hands together,
gagged her, and stabbed her repeatedly. The four then left the
apartment with several items of Devereaux’s personal property.
They drove to Walter’s Ltd. where they exchanged a coat, a
sewing machine, and a stereo for heroin.
3
DISCUSSION
Appellant Alleged Facts Sufficient to State a
Prima Facie Case for Relief Under Section 1170.95,
Subdivision (c); Accordingly, the Trial Court
Erred in Failing to Issue an Order to Show Cause
and Conduct an Evidentiary Hearing Pursuant to
Section 1170.95, Subdivisions (c) and (d)
A. Relevant proceedings
Appellant was convicted by a jury in 1978 of the robbery,
burglary, and first degree murder of Devereaux, and sentenced to
life in prison.3 On March 28, 2019, appellant filed a petition for
resentencing pursuant to section 1170.95. The trial court
appointed counsel. Following briefing from the parties, the court
summarily denied the petition. The court concluded that
appellant is ineligible for relief under section 1170.95 as a matter
of law on the ground that he “was convicted of felony murder but
the record of conviction including the appellate court opinion
affirming the petitioner’s conviction, reflects that the petitioner
was a major participant in the killing of the victim in this case
who acted with reckless indifference to human life.”
B. Applicable law
The Legislature enacted Senate Bill No. 1437 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
3 Appellant was also convicted of the robbery, burglary, and
attempted murder of Leroy Brown. Following an appeal from the
judgment of conviction, this court reversed the attempted murder
conviction and affirmed the judgment in all other respects.
(People v. Young and Williams, supra, 2. CRIM. NO. 31804.)
4
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.” (Stats. 2018, ch. 1015, § 1, subd. (f);
People v. Gentile (2020) 10 Cal.5th 830, 842 (Gentile); People v.
Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) To
accomplish this objective, Senate Bill No. 1437 amended the
natural and probable consequences doctrine by adding section
188, subdivision (a)(3), defining malice, to require that all
principals to murder must act with express or implied malice to
be convicted of that crime, with the exception of felony murder
under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2;
Gentile, at pp. 842–843.)
The Legislature also “amended section 189 to limit the
scope of liability for murder on a felony-murder theory.” (People
v. Drayton (2020) 47 Cal.App.5th 965, 972 (Drayton).) As
amended, section 189 now includes the requirement that a
participant in a specified felony during which a death occurs may
be convicted of murder for that death only if it is proved that the
defendant was the actual killer, an aider and abettor to the
murder who acted with the intent to kill, or a major participant
in the underlying felony who acted with reckless indifference to
human life. (Stats. 2018, ch. 1015, § 3; § 189, subd. (e)(1)–(3);
Gentile, supra, 10 Cal.5th at p. 842.)
In addition to these amendments, Senate Bill No. 1437
added section 1170.95 to provide a procedure by which those
convicted of felony murder or murder under a natural and
probable consequences theory may seek retroactive relief if they
could no longer be convicted of murder because of the changes to
sections 188 or 189. (Gentile, supra, 10 Cal.5th at p. 843;
Martinez, supra, 31 Cal.App.5th at pp. 722–723.)
5
Subdivision (a) of section 1170.95 sets forth the three
conditions for eligibility for relief: (1) the charging document
“allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine”; (2) “petitioner was convicted of first or second degree
murder”; and (3) “petitioner could not be convicted of first or
second degree murder because of changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (a); Drayton,
supra, 47 Cal.App.5th at p. 973.) Subdivision (b) in turn
“describes where and how the petition must be filed and specifies
its required content,” including a declaration by the petitioner
that he or she “is eligible for relief according to the criteria set
out in subdivision (a).” (Drayton, at p. 973.)
If a petition for resentencing under section 1170.95 meets
the requirements of subdivisions (a) and (b), the superior court
undertakes a two-step prima facie analysis set forth in
subdivision (c) before an order to show cause may issue.4 (People
v. Nunez (2020) 57 Cal.App.5th 78, review granted Jan. 13, 2021,
S265918; Drayton, supra, 47 Cal.App.5th at pp. 974–975; People
v. Verdugo (2020) 44 Cal.App.5th 320, 327–328, review granted
4 Section 1170.95, subdivision (c) provides: “The court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines
shall be extended for good cause. If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.”
6
Mar. 18, 2020, S260493 (Verdugo); People v. Lewis (2020) 43
Cal.App.5th 1128, 1136, 1140, review granted Mar. 18, 2020,
S260598 (Lewis).) In the first step of this analysis, the superior
court may examine readily ascertainable information in the
record of conviction in conducting a sua sponte screening of the
petition to verify the petitioner’s eligibility for relief under the
statute. (Lewis, at p. 1140, rev.gr.; Verdugo, at p. 329, rev.gr.;
People v. Offley (2020) 48 Cal.App.5th 588, 597; People v.
Edwards (2020) 48 Cal.App.5th 666, 674–675, review granted
July 8, 2020, S262481; People v. Tarkington (2020) 49
Cal.App.5th 892, 900, review granted Aug. 12, 2020, S263219
(Tarkington).)
If the record of conviction does not indicate ineligibility as a
matter of law, the court must proceed to step two of the prima
facie analysis. There, section 1170.95, subdivision (c) requires
the court to appoint counsel if requested and accept briefing from
the parties on the issue of whether the petitioner is “ ‘entitled to
relief.’ ” (Drayton, supra, 47 Cal.App.5th at p. 976; Verdugo,
supra, 44 Cal.App.5th at pp. 332–333, rev.gr.) At this stage, with
the benefit of the parties’ briefing, the trial court may conduct a
more thorough review of the record, including the jury
instructions, verdict form(s), and any special findings or
enhancement allegations the jury found true to determine if the
petition makes a prima facie showing of entitlement to relief.
(People v. Duchine (2021) 60 Cal.App.5th 798, 815 (Duchine);
People v. Gomez (2020) 52 Cal.App.5th 1, 16, review granted
Oct. 14, 2020, S264033; see also Verdugo, at pp. 335–336.) But in
this second prima facie review, as in the first, the court does not
engage in factfinding: Rather, the court “assume[s] all facts
stated in the section 1170.95 petition are true” (Drayton, at
7
p. 980), and draws “all factual inferences in favor of the
petitioner” (Verdugo, at p. 329, rev.gr.; Drayton, at pp. 968, 982).
At this stage, although the trial court does not weigh the
credibility of the petition’s assertions, it also need not blindly
accept factual assertions that are demonstrably false or untrue as
a matter of law (for example, where the record shows the
petitioner was not convicted of first or second degree murder or
the murder conviction was predicated on a theory of actual
malice). (Drayton, supra, 47 Cal.App.5th at p. 980; People v.
Turner (2020) 45 Cal.App.5th 428, 438 [§ 1170.95 excludes
manslaughter convictions]; Lewis, supra, 43 Cal.App.5th at
pp. 1138–1139, rev.gr.; see also In re Serrano (1995) 10 Cal.4th
447, 456 [in conducting prima facie review of habeas petition,
court is justified in making credibility determination adverse to
petitioner where the record contains facts refuting allegations
made in petition]; People v. Karis (1988) 46 Cal.3d 612, 656
[conclusory allegations in habeas corpus petition “made without
any explanation of the basis for the allegations do not warrant
relief, let alone an evidentiary hearing”].) The trial court’s
authority to make determinations without issuing an order to
show cause and conducting an evidentiary hearing in accordance
with section 1170.95, subdivision (d) is thus circumscribed by
“readily ascertainable facts from the record (such as the crime of
conviction), rather than factfinding involving the weighing of
evidence or the exercise of discretion (such as determining
whether the petitioner showed reckless indifference to human life
in the commission of the crime).” (Drayton, supra, 47
Cal.App.5th at p. 980; Duchine, supra, 60 Cal.App.5th at p. 813.)
If, after the parties’ briefing, the petitioner has made a
prima facie showing that he is entitled to relief because there
8
remains no proof of ineligibility as a matter of law, “the court
shall issue an order to show cause” why relief should not be
granted. (§ 1170.95, subd. (c), italics added; Drayton, supra, 47
Cal.App.5th at p. 980; see Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 851 [“A prima facie showing is one that is
sufficient to support the position of the party in question”]; In re
Edward H. (1996) 43 Cal.App.4th 584, 593 [“A ‘prima facie’
showing refers to those facts which will sustain a favorable
decision if the evidence submitted in support of the allegations by
the petitioner is credited”].)
Upon issuance of the order to show cause under section
1170.95, subdivision (c), the trial court “must then conduct a
hearing pursuant to the procedures and burden of proof set out in
section 1170.95, [subdivision] (d) unless the parties waive the
hearing or the petitioner’s entitlement to relief is established as a
matter of law by the record. (§ 1170.95, subd. (d)(2).) Notably,
following the issuance of an order to show cause, the burden of
proof will shift to the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3).)” (Drayton, supra, 47 Cal.App.5th at
p. 981.)
In sum, “the time for weighing and balancing and making
findings on the ultimate issues arises at the evidentiary hearing
stage rather than the prima facie stage, at least where the record
is not dispositive on the factual issues. Thus, absent a record of
conviction that conclusively establishes that the petitioner
engaged in the requisite acts and had the requisite intent, the
trial court should not question his evidence. The court may, as
the Sixth District said in Drayton, consider the record of
conviction at the prima facie stage, but may not evaluate the
9
evidence, make credibility findings adverse to the petitioner,
engage in factfinding or exercise discretion. (Drayton, supra, 47
Cal.App.5th at pp. 981–982.) The record should be consulted at
the prima facie stage only to determine ‘readily ascertainable
facts,’ such as the crime of conviction and findings on
enhancements. (Id. at p. 980.) Once the petitioner has made a
prima facie showing, true factfinding should be reserved and
exercised only after an order to show cause is issued and the
parties are permitted to supplement the record with new
evidence, including, if requested, through an evidentiary hearing.
(Id. at pp. 980–981.)” (Duchine, supra, 60 Cal.App.5th at p. 815.)
C. Appellant alleged facts sufficient to state a prima
facie case entitling him to relief, and the trial court erred
by engaging in judicial factfinding before issuing an order
to show cause and conducting an evidentiary hearing.
Here, appellant’s petition for resentencing satisfied the
requirements of section 1170.95, subdivisions (a) and (b), and
stated a prima facie case for relief. The record does not establish
ineligibility as a matter of law, and the trial court should have
issued an order to show cause and held a hearing in accordance
with section 1170.95, subdivision (d) to weigh the evidence.
Instead, the trial court engaged in judicial factfinding based on
this court’s opinion in the direct appeal to conclude that appellant
was a major participant in the burglary who acted with reckless
indifference to human life, and deny the petition.
But there is nothing in the prior appellate decision in this
case that indicates appellant was necessarily convicted of felony
murder based on a theory that he was an aider and abettor with
actual malice or was a major participant in the burglary who
acted with reckless indifference to human life. Before Senate Bill
10
No. 1437’s amendments, section 189 permitted a conviction for
felony murder by imputing malice to a person who committed a
felony inherently dangerous to human life which resulted in a
homicide. (People v. Chun (2009) 45 Cal.4th 1172, 1184 [“ ‘The
felony-murder rule imputes the requisite malice for a murder
conviction to those who commit a homicide during the
perpetration of a felony inherently dangerous to human life’ ”].)
Accordingly, no finding that appellant was the actual killer, an
aider and abettor with actual malice, or a major participant with
reckless indifference to human life was required. And nothing in
the appellate opinion addresses these elements.
The sole basis for the trial court’s conclusion that appellant
is ineligible for relief as a matter of law was its own evaluation of
the facts stated in the appellate opinion. But as the Duchine and
Drayton courts observed, “[t]he major participant and reckless
indifference findings the trial court made based solely on the
record evidence entail the weighing of evidence, drawing of
inferences, and assessment of credibility that should be left to the
factfinding hearing process contemplated by section 1170.95,
subdivision (d).” (Duchine, supra, 60 Cal.App.5th at p. 816;
Drayton, supra, 47 Cal.App.5th at p. 982.)
In sum, the Legislature contemplated that the trial judge
would engage in factfinding, but only after an order to show
cause is issued and an evidentiary hearing held. The trial court’s
error requires reversal and remand to afford appellant a hearing
in accordance with section 1170.95, subdivision (d) at which the
prosecutor will bear the burden of proving beyond a reasonable
doubt, based on the record of conviction and any additional
11
evidence the parties submit, that appellant is guilty of murder
under a theory still valid under California law.5
DISPOSITION
The postjudgment order is reversed. The matter is
remanded to the superior court for the issuance of an order to
show cause and further proceedings in accordance with Penal
Code section 1170.95, subdivision (d).
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
5 Of course, in remanding this matter to the superior court
for proceedings in accordance with section 1170.95,
subdivision (d), “[w]e express no opinion about [appellant’s]
ultimate entitlement to relief following the hearing.” (Drayton,
supra, 47 Cal.App.5th at p. 983.)
12