People v. Davis CA2/6 ( 2021 )

Filed 9/10/21 P. v. Davis CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B308513
(Super. Ct. No. CR42412B)
Plaintiff and Respondent, (Ventura County)
v.
BILLY LYN DAVIS,
Defendant and Appellant.
Billy Lyn Davis appeals an order denying his petition for
relief under Penal Code section 1170.95.1 We affirm.
FACTS
Davis was convicted of murder (§ 187, subd. (a)) with the
special circumstances that the murder was committed while the
defendant was engaged in kidnapping (§ 190.2, subd. (a)(17)(B))
and the murder was intentional and involved the infliction of
torture (id., subd. (a)(18)).
1 All statutory references are to the Penal Code.
Davis was convicted by a slow plea; that is, he submitted
the matter on transcripts that included the testimony of 17
witnesses who testified before the grand jury and 12 witnesses
who testified at the trial of his codefendant, Spencer Brasure.
The trial court sentenced Davis to life without the possibility of
parole for the murder with special circumstances. Davis
appealed, and we affirmed. (People v. Davis (Nov. 22, 2000,
B137098) [nonpub. opn.].)
Section 1170.95 Petition
Davis petitioned for relief under section 1170.95. He
checked the box on the form petition stating that he was
convicted of first or second degree murder under the felony
murder rule or the natural and probable consequences doctrine.
He also checked boxes stating that he was not an active
participant in the murder, that he did not act with reckless
indifference to human life, and that the victim was not a peace
officer.
At Davis’s request, the trial court took judicial notice of the
entire trial court record in the underlying case, Senate Bill No.
1437, and Senate Concurrent Resolution No. 48.
The trial court appointed counsel for Davis.
The People filed opposition to Davis’s petition. The People
argued that the true finding on the torture special circumstances
alone shows Davis is not entitled to relief, and that the record of
conviction shows Davis was a major participant in the crimes and
that he acted with reckless indifference to human life.
Davis waived an evidentiary hearing and submitted the
matter on his pleadings.
2.
Ruling
The trial court reviewed the record of conviction, including
our opinion in Davis’s original appeal.
The record of conviction shows that Davis and Brasure had
grievances against Anthony Guest. They conspired to kidnap
him. They brought Guest to Davis’s house where they tortured
him for hours. Davis helped transport Guest to a remote location
where they murdered him and lit him on fire. Davis supplied a
magnesium plate from his father’s printing business to attach to
Guest’s head. Davis believed the plate would burn so hot that it
would make it difficult to identify Guest.
The trial court found that Davis was a major participant in
the crime and acted with reckless indifference to human life. The
court denied Davis relief under section 1170.95.
DISCUSSION
I
Davis contends he should have received a hearing on major
participation with reckless indifference. He also contends that he
should have been allowed to challenge the special circumstances
finding that he acted with the intent to kill.
Effective January 1, 2019, the Legislature amended the
definition of murder to eliminate the felony murder rule and the
natural and probable consequences theory of malice. (§§ 188,
189; Stats. 2018, ch. 1015, §§ 2, 3.) Thus, malice can no longer be
imputed from the intent to commit some other target offense.
As part of the reform, the Legislature enacted section
1170.95. (Stats. 2018, ch. 1015, § 4.) Section 1170.95,
subdivision (a) provides:
“(a) A person convicted of felony murder or murder under a
natural and probable consequences theory may file a petition
3.
with the court that sentenced the petitioner to have the
petitioner’s murder conviction vacated and to be resentenced on
any remaining counts when all of the following conditions apply:
“(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of
a trial at which the petitioner could be convicted for first degree
or second degree murder.
“(3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.”
The changes to sections 188 and 189 in the 2019
amendment include the addition of subdivision (a)(3) to section
188:
“Except as stated in subdivision (e) of Section 189, in order
to be convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a person
based solely on his or her participation in a crime.” (§ 188, subd
(a)(3), added by Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e) now provides:
“(e) A participant in the perpetration or attempted
perpetration of a felony listed in subdivision (a) in which a death
occurs is liable for murder only if one of the following is proven:
“(1) The person was the actual killer.
“(2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
4.
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree.
“(3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.”
By the terms of section 1170.95, it applies only to persons
“convicted of felony murder or murder under a natural and
probable consequences theory” and who “could not be convicted of
first or second degree murder because of the changes made to
Section 188 or 189 made effective January 1, 2019.”
That does not describe Davis. His record of conviction
shows he was an active participant in every phase of the
kidnapping, torture, and murder of Guest. Even more definitive
is that the true finding of torture special circumstances is based
on a finding of intent to kill. Davis was not convicted of felony
murder or murder under the natural and probable consequences
theory, and the changes made to section 188 or 189 would have
had no effect on his conviction.
There is nothing about the record of conviction that even
arguably indicates Davis is entitled to relief under section
1170.95. Instead, the record affirmatively shows Davis is not
entitled to relief. Section 1170.95 does not authorize a collateral
attack on all murder convictions.
Moreover, the record shows that Davis waived an
evidentiary hearing and agreed to submit the matter on his
pleadings.
5.
DISPOSITION
The judgment (order) is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
TANGEMAN, J.
6.
Benjamin F. Coats, Judge
Superior Court County of Ventura
______________________________
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
7.