People v. Williams CA4/3 ( 2023 )

Filed 2/14/23 P. v. Williams CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061618
v. (Super. Ct. No. 02CF2397)
ELLIS CHARLES WILLIAMS, OPI NION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Patrick
H. Donahue, Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
There is very little we can say about this appeal. Appellant was convicted
in 2007 of four counts of attempted murder and one count each of shooting from a motor
vehicle and shooting at an inhabited dwelling. This all grew out of a classic revenge
drive-by. Allegations he had suffered other felony convictions were found to be true.
The trial court stayed some punishments and constructed a 32 years-to-life term of
imprisonment.
In 2022, appellant filed this action, seeking relief pursuant to newly enacted
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Penal Code section 1170.95. 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 reined 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).)
To obtain relief under the new section, the defendant must show 1) he was
prosecuted for murder under the felony murder rule or the natural and probable
consequences doctrine, 2) he was ultimately convicted of first or second degree murder,
and 3) and he would not be liable for murder today because of how the Legislature has
redefined that offense. (§ 1170.95, subd. (a).)
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That statute has since been renumbered as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.)
Because that change was nonsubstantive and it occurred after briefing in this case was complete, we will cite to
Penal Code section 1170.95 for ease of reference. All further statutory references are to the Penal Code.
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The trial court heard appellant’s motion under this section and denied it.
He appealed and we appointed counsel to represent him. Counsel reviewed the record in
the case and concluded there was no issue he could argue that had a reasonable chance of
success. He did not argue against his client but requested – as the law provides – that we
independently review the case and see if we could find an issue that might be arguable.
(People v. Wende (1979) 25 Cal.3d 436 (Wende).) Appellant was given the opportunity
to write to us and tell us what issues he thought might be found in the record but did not
respond.
It should be emphasized that a Wende review is not for arguments that
would necessarily be successful, but merely arguments that could be made, arguments
whose proposal would not violate ethical prohibitions about frivolous appeals. Our
review of the case was aimed at merely finding something an attorney could ethically
argue in favor of reversal. We have made such a review and found nothing.
Appellant simply does not come within the rubrics of the statute he is
seeking to apply to his case. There was no application of the felony murder rule or the
natural and probable consequences doctrine in his case. The jury found he had personally
used a firearm in his crimes. And there is no chance under the facts of his case that he
would not be convicted of the same crimes today.
What’s more, appellant has already had one appeal. We affirmed his
conviction in 2009. This is not his “first appeal of right.” Under the recently decided
California Supreme Court case of People v. Delgadillo (2022) 14 Cal.5th 216, appellant
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is not entitled to appointed counsel to raise this issue; Wende review is not an entitlement
for him.
For both these reasons, the judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
SANCHEZ, J.
DELANEY, J.
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