People v. Russell CA4/3 ( 2022 )

Filed 2/18/22 P. v. Russell CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060352
v. (Super. Ct. No. C-54962)
TIMOTHY DAVID RUSSELL, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Terri K. Flynn-Peister, Judge. Affirmed.
Robert V. Vallandingham, Jr., under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant Timothy David Russell was convicted in 1986 of the murder of
Marilyn Lyon, who had been found bludgeoned to death in her home in 1984. Appellant
was a coworker of the victim and often performed gardening work for her. At trial he
asserted he had come to the home, found the body, panicked, and fled. The jury
concluded this explanation was late (it was different than his first statements) and was
contradicted by other evidence. They found him guilty of first degree murder committed
in the course of a robbery and attempted rape.
In 2019, appellant filed a petition seeking to vacate his murder conviction
pursuant to subsequently-enacted Penal Code1 section 1170.95. After appointing counsel
for appellant, the trial court denied that petition on the basis that it did not “set forth a
prima facie case for relief under the statute.” That meant there was no need to delve into
the details of appellant’s case because on its face, his petition did not set out a basis for
relief.
Section 1170.95 is the procedural mechanism for implementing legislative
changes in California law which narrow the scope of vicarious liability for murder in two
ways. First, the Legislature eliminated the natural and probable consequences theory for
that crime by providing that “[m]alice shall not be imputed to a person based solely on
his or her participation in a crime.” (§ 188, subd. (a)(3).) Second, it reigned in the felony
murder rule so that it can only be applied to nonkillers if they aided and abetted the killer
in committing first degree murder, or they were a major participant in the underlying
felony and acted recklessly indifferent to human life. (§ 189, subd. (e).)
In addition to ushering in these changes, the Legislature also enacted
section 1170.95, which is the procedural mechanism for challenging a murder conviction
based on vicarious liability. To obtain relief under that section, the defendant must show
1) he was prosecuted for murder under the felony murder rule or the natural and probable
1 All further statutory references are to the Penal Code.
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consequences doctrine, 2) he was ultimately convicted of first or second degree murder,
and 3) and – and this is the flaw in appellant’s petition – he would not be liable for
murder today because of how the Legislature has redefined that offense. (§ 1170.95,
subd. (a).)
If the defendant makes a prima facie showing to that effect, the trial court is
required to issue an order to show cause and, absent a concession by the People, conduct
an evidentiary hearing. (§ 1170.95, subds. (c), (d).) At the hearing, the prosecution must
prove beyond a reasonable doubt the defendant is ineligible for resentencing because his
conduct did in fact rise to the level of murder as redefined by SB 1437. (Id., subd.
(d)(3).) Otherwise, the defendant is entitled to vacatur and resentencing pursuant to the
terms of section 1170.95. But the trial court here ruled no hearing was required because
the readily discernible facts showed appellant was not eligible for relief under the statute.
Appellant appealed, and we appointed counsel to represent him. Counsel
filed a brief which set forth the procedural facts of the case. Counsel did not argue
against appellant but advised us there were no issues in the case that had any chance of
success. Appellant was invited to express his own objections to the proceedings against
him and filed two briefs, but – as we will discuss – neither addressed the issues raised in
his petition.
We find ourselves in agreement with appellate counsel. There is simply no
issue here. Relief under section 1170.95 requires that the applicant be someone who
could not be convicted under the legislative reformation of the felony murder rule. That
reformation includes that the applicant not be “major participant” in the underlying
felony. That phrase requires scrutiny in cases where the applicant was an aider or abettor
of the crime. But appellant was not an aider or abettor. He was the only person involved.
He was the major participant. The jury found he was the killer. He is therefore ineligible
for relief under section 1170.95.
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Appellant’s own briefing does not address these issues. It is addressed to
establishing that he has reformed himself and is deserving of parole. It is accompanied
by proof of admirable conduct and accomplishments. But we do not have the power to
address those issues in this appeal. We are limited by law to a review of the proceedings
under his request for relief under section 1170.95, and we are unable to find any flaw in
those proceedings.
The order is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
FYBEL, J.
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