People v. Willis CA3 ( 2023 )

Filed 2/7/23 P. v. Willis 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C096926
Plaintiff and Respondent, (Super. Ct. No. 09F00884)
v.
AUSTIN BILLY WILLIS III,
Defendant and Appellant.
Appointed counsel for defendant Austin Billy Willis III asked this court to review
the record and determine whether there are any arguable issues on appeal. (People v.
Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in
a disposition more favorable to defendant, we will affirm the trial court’s order denying
the petition for resentencing.
I
In 2010, a jury found defendant guilty of two counts of attempted murder, one
count of personally discharging a firearm at an occupied vehicle, and one count of
possession of a firearm by a convicted felon. The jury also found true multiple
enhancement allegations. In March 2022, defendant filed a petition for resentencing
1
under Penal Code former section 1170.95 (now 1172.6).1 The petition alleged defendant
had been charged under 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, or attempted murder under the natural and
probable consequences doctrine; that he was convicted of attempted murder following a
trial; and that he could not now be convicted of murder or attempted murder because of
changes made to sections 188 and 189 effective January 1, 2019.
The trial court appointed counsel and received briefing from the parties. The
People submitted opposition briefing and attached the jury instructions that had been
used at trial. As relevant here, the trial court had instructed the jury using CALCRIM
Nos. 600 [Attempted Murder] and 603 [Attempted Voluntary Manslaughter]. The trial
court had not instructed the jury on felony murder or any theory under the natural and
probable consequences doctrine.
The trial court held a hearing on the petition for resentencing and explained that
it had reviewed the jury instructions and concluded defendant had not been “convicted
under either the natural and probable consequences or the felony murder doctrine.”
The trial court denied the petition.
II
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant did not file a supplemental brief.
1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022,
the Legislature renumbered former section 1170.95 as section 1172.6, without
substantive change. (Stats. 2022, ch. 58, § 10.)
2
The California Supreme Court recently considered whether the Wende
process applies to a trial court’s order denying a petition for postconviction relief
under section 1172.6, and concluded such procedures are not required. (People v.
Delgadillo (2022) 14 Cal.5th 216.) Before dismissing such an appeal, appellate courts
are required to provide notice to defendant “informing the defendant of the right to file a
supplemental letter or brief and that if no letter or brief is filed within 30 days, the court
may dismiss the matter.” (Id. at pp. 231-232.) Alternatively, an appellate court may
conduct “its own independent review of the record in any individual section 1172.6
appeal.” (Id. at p. 232.) In the interest of judicial economy, we have exercised our
discretion to conduct an independent review of the record in this case.
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court’s order denying the petition for resentencing is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
KRAUSE, J.
/S/
MCADAM, J.*
* Judge of the Yolo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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