People v. Wilson CA2/3 ( 2021 )

Filed 1/27/21 P. v. Wilson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B300613
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA061488
v.
MICHAEL WILSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael Garcia, Judge. Affirmed.
Adrian K. Panton, 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, Assistant
Attorney General, Paul M. Roadarmel, Jr., and William N.
Frank, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Michael Wilson appeals from the superior court’s order
denying his petition under Penal Code section 1170.95.1 That
statute allows certain defendants convicted of murder under the
felony-murder rule or the natural and probable consequences
doctrine—and who were not the actual killer—to petition the
court to vacate their convictions and for resentencing. Because
Wilson was the actual killer, the superior court summarily denied
his petition without appointing counsel. On appeal, Wilson does
not dispute the court’s conclusion that he was the actual killer.
Rather he challenges the procedure by which the court reviewed
and resolved his petition. We agree with the superior court that,
as the actual killer, Wilson is ineligible for resentencing as a
matter of law. We therefore affirm.
FACTS AND PROCEDURAL BACKGROUND
In his opening brief, Wilson summarizes the facts, taken
from the probation officer’s presentence report. According to
eyewitnesses, around 2:30 a.m. on July 14, 1992, Wilson—
holding a large-caliber silver automatic pistol—“confronted”
Stephanie Byrd. Byrd began to run away. Wilson yelled at her:
“Bitch! Why you running around telling everyone I stole your
chains.” Byrd fell to the ground. Wilson approached Byrd, stood
over her, and fired “multiple gunshot[s].” Byrd was “rushed by
ambulance” to the hospital where she was pronounced dead at
2:50 a.m. from “multiple gunshot wounds to the upper part of
her torso and head.” Later that morning, officers saw Wilson
dressed in attire witnesses had described (a green fatigue jacket
and green fatigue pants) and arrested him. Wilson had a
1 References to statutes are to the Penal Code.
2
10-millimeter semiautomatic pistol in his waistband. Ten-
millimeter ammunition in the pistol matched expended casings
at the scene of the shooting.
The People charged Wilson with Byrd’s murder.
The People alleged Wilson personally used a firearm in the
commission of the crime under then-applicable section 12022.5,
subdivision (a).2 In October 1993, a jury found Wilson guilty
of the first degree murder of Byrd and found the gun allegation
true. At the conclusion of a court trial, the court found true
the People’s allegation that Wilson had suffered a prior conviction
for robbery with a gun. The trial court sentenced Wilson to
35 years to life in the state prison, consisting of 25 years to life
for the murder plus five years for the firearm use plus five years
for the serious felony prior. In January 1996, this court affirmed
Wilson’s conviction. (People v. Wilson (Jan. 26, 1996, B082207)
[nonpub. opn.].)
After Senate Bill No. 1437 (Stats. 2018, ch. 1015, § 4)
(SB 1437) took effect, Wilson filed on February 25, 2019
a petition for resentencing under section 1170.95. Using a
downloadable form, Wilson checked boxes 1, 2a, 4, 7, and 8.
Wilson did not check box 3, which states, “I could not now
be convicted of 1st or 2nd degree murder because of changes
made to Penal Code §§ 188 and 189, effective January 1, 2019.”
Nor did he check box 5 or any of its subboxes, including the box
that states, “I was not the actual killer.”3
2 The People also alleged Wilson killed Byrd to prevent her
from testifying as a witness within the meaning of section 190.2,
subdivision (a)(10). The jury found that allegation not true.
3 Box 1 states an information “was filed against me that
allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
3
On April 16, 2019 the court set a review date for April 26.
On April 26, the court granted the prosecution’s request for an
extension of time to file a response to July 1, 2019.4 The court
also issued an order appointing the Office of the Public Defender
to represent Wilson.
On July 1, 2019, the court issued a minute order denying
the petition. The docket notes Wilson was “not present in court,
and not represented by counsel.” The order states, “In chambers,
off the record: The court has read and considered the petition for
resentencing pursuant to Penal Code section 1170.95(a). Based
on the evidence of the case, the court finds the petitioner was
the sole shooter in the murder conviction; therefore, the petition
is denied.”
DISCUSSION
SB 1437 “ ‘amend[ed] 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 . . . .’ ” (People v. Gutierrez-
Salazar (2019) 38 Cal.App.5th 411, 417, quoting Stats. 2018,
ch. 1015, § 1, subd. (f); see Pen. Code, § 189, subd. (e)(1).)
doctrine.” Box 2a states, “At trial, I was convicted of 1st or 2nd
degree murder pursuant to the felony murder rule or the
natural and probable consequences doctrine.” Box 4 asks
the court to appoint counsel. Box 7 states, “There has been
a prior determination by a court or jury that I was not a major
participant and/or did not act with reckless indifference to
human life under Penal Code § 190.2(d).” Box 8 concerns
service of the petition.
4 The record on appeal does not contain the prosecution’s
request for an extension of time, nor any response the
prosecution may have filed to Wilson’s petition.
4
Concurrently with his respondent’s brief, the Attorney General
asked us “to take judicial notice of the record in case number
B082207,” Wilson’s direct appeal. That appeal was decided more
than 23 years before Wilson filed his petition, and our record in
that appeal no longer exists. In response to a court order, the
Attorney General filed a supplemental request for judicial notice,
attaching the preliminary hearing transcript, the information
and an amendment to it, parts of the trial transcript (including
the court’s instructions to the jury and counsel’s closing
arguments), dockets of the verdicts and sentencing, the abstract
of judgment, and our 1996 opinion in Wilson’s direct appeal.
Wilson agrees three pages of the court records—superior
court docket entries reflecting the verdicts and sentencing, and
the abstract of judgment—are proper subjects of judicial notice.
Wilson otherwise objects to judicial notice of the nearly 400 pages
attached to the Attorney General’s request, including notice of
our 1996 opinion affirming Wilson’s conviction. Wilson contends
“there is no indication in the appellate record” that the trial court
considered our opinion or “any other materials in this court’s file
in B082207.”
A number of appellate courts have held a court considering
a resentencing petition properly may “examine readily available
portions of the record of conviction to determine whether a
prima facie showing has been made that the petitioner falls
within the provisions of section 1170.95.” (People v. Verdugo
(2020) 44 Cal.App.5th 320, 323-324, 329-330 (Verdugo) [record
of conviction includes complaint or information, verdict form,
abstract of judgment, and jury instructions], review granted
Mar. 18, 2020, S260493; People v. Lewis (2020) 43 Cal.App.5th
1128, 1137-1139 (Lewis) [record of conviction includes court of
appeal’s opinion on direct appeal], review granted, Mar. 18, 2020,
S260598; People v. Edwards (2020) 48 Cal.App.5th 666, 671, 674-
5
675 (Edwards) [same], review granted July 8, 2020, S262481;
People v. Tarkington (2020) 49 Cal.App.5th 892, 899 (Tarkington)
[jury instructions as well as opinion on direct appeal are part
of record of conviction], review granted, Aug. 12, 2020, S263219;
People v. Perez (2020) 54 Cal.App.5th 896, 904-905 [preliminary
hearing transcript is part of record of conviction], review granted
Dec. 9, 2020, S265254.)
Some courts also have held section 1170.95 does not
require the court to appoint counsel before it determines whether
a petitioner has made a prima facie showing that he falls within
the provisions of the statute. When a court—making all factual
inferences in favor of the petitioner—concludes the petitioner
is ineligible for relief as a matter of law, it may summarily deny
the petition without appointing counsel. (Verdugo, supra, 44
Cal.App.5th at pp. 327-333; Lewis, supra, 43 Cal.App.5th at
pp. 1139-1140; Tarkington, supra, 49 Cal.App.5th at pp. 899-902;
People v. Roldan (2020) 56 Cal.App.5th 997, review granted
Jan. 20, 2021, S266031; People v. Cornelius (2020) 44 Cal.App.5th
54, 58 (Cornelius), review granted Mar. 18, 2020, S260410;
but see People v. Cooper (2020) 54 Cal.App.5th 106, 109 [right
to counsel attaches upon filing of facially sufficient petition
that alleges entitlement to relief], review granted Nov. 10, 2020,
S264684.)5
These issues are before our Supreme Court, which has
granted review in Lewis, designating as the issues: “(1) May
5 Although Wilson filed his opening brief three months
after Verdugo and Cornelius were decided, he did not cite either
of those decisions. He cited Lewis in a footnote only to note
the Supreme Court’s grant of review. In his reply brief, Wilson
argues all three of those cases—as well as Edwards and
Tarkington—“were wrongly decided.”
6
superior courts consider the record of conviction in determining
whether a defendant has made a prima facie showing of
eligibility for relief under Penal Code section 1170.95? (2) When
does the right to appointed counsel arise under Penal Code
section 1170.95, subdivision (c)?” (Lewis, supra, S260598.)
The superior court’s order denying Wilson’s petition does
not specify what portions of the record it read and relied on.
The court stated only that, “[b]ased on the evidence of the case,”
it found Wilson “was the sole shooter.” “To facilitate appellate
review and ensure a clear record, a court ruling on a section
1170.95 petition should indicate on the record, and in its order
or in a minute order, what materials it reviewed and relied
upon to make its eligibility finding.” (Tarkington, supra,
49 Cal.App.5th at p. 910.) This omission, however, does not
require reversal of the trial court’s order.
The Attorney General contends Wilson’s jury was not
instructed on either the felony murder rule or the natural
and probable consequences doctrine for accomplice liability.6
The Attorney General also quotes at length from our opinion
in Wilson’s direct appeal, in which we summarized the evidence
that Wilson was the person who shot Byrd. As noted, Wilson
6 The Attorney General notes the jury was instructed on
implied malice, apparently referring to CALJIC No. 8.11. That
instruction states malice is implied when the killing resulted
from an intentional act, “[t]he natural consequences of the act
are dangerous to human life,” and “[t]he act was deliberately
performed with knowledge of the danger to, and with
conscious disregard for, human life.” This reference to “natural
consequences” as used in the definition of implied malice is
not the same as the natural and probable consequences doctrine.
(People v. Soto (2020) 51 Cal.App.5th 1043, 1056-1058, review
granted Sept. 23, 2020, S263939.)
7
objects to the Attorney General’s request for judicial notice
of these documents, arguing it’s unclear if the trial court read
or relied on them.
But we don’t need the jury instructions or our earlier
opinion to decide this appeal. Wilson’s own statement of facts
in his opening brief summarizes the facts in the probation
officer’s report. That report is part of the record on appeal.
(Cf. People v. Hall (2019) 39 Cal.App.5th 831, 837 [hearsay
in probation report admissible to determine Proposition 47
eligibility].) Wilson’s own brief states eyewitnesses testified
Wilson was holding a large automatic pistol, he “approached
Byrd”—who had tripped and fallen—“and fired several shots
at her,” and the cause of Byrd’s death was “ ‘multiple gunshot
wounds.’ ”7
Because Wilson was the actual killer, he is ineligible
for resentencing under SB 1437 as a matter of law. Moreover,
(1) Wilson’s brief, (2) the probation report, and (3) the docket
entries for the verdict and sentencing all reflect the jury’s true
finding on the allegation that Wilson personally used a firearm
in the commission of the crime within the meaning of
section 12022.5, subdivision (a). (See Tarkington, supra,
49 Cal.App.5th at pp. 895-896, 899 [as actual killer, petitioner
is not entitled to resentencing]; People v. Gallo (2020) 57
Cal.App.5th 594; People v. Daniel (2020) 57 Cal.App.5th 666[trial court’s failure to appoint counsel for petitioner was
harmless because petitioner was actual killer]; Cornelius, supra,
44 Cal.App.5th at pp. 57-58 [jury’s true finding on firearm
7 Accordingly, we grant the Attorney General’s request for
judicial notice of the docket entries for October 28, 1993 (verdicts)
and December 1, 1993 (priors trial and sentencing) and of the
abstract of judgment. We otherwise deny the request for judicial
notice as unnecessary to our decision.
8
allegation constitutes implicit finding that petitioner was
the actual killer and thus “indisputably ineligible for relief”];
cf. Edwards, supra, 48 Cal.App.5th at p. 671 [based on review
of record of conviction and appellate opinion on direct appeal,
trial court found petitioner’s conviction was based on him being
the killer].)
DISPOSITION
We affirm the superior court’s order denying Michael
Wilson’s petition to vacate his murder conviction and for
resentencing under section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.
9