People v. Williams CA3 ( 2021 )

Filed 9/24/21 P. v. Williams 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,
Plaintiff and Respondent, C092130
v. (Super. Ct. No. 73394)
CLIFTON WILLIAMS,
Defendant and Appellant.
In 1986 a jury found defendant Clifton Williams guilty of robbery and first degree
murder after he snatched Emy Emiko Tanimoto’s purse and pushed her down the stairs.
We affirmed his convictions on appeal. (People v. Williams (Jun. 25, 1987, C001524)
[nonpub. opn.].)1 In 2019, defendant filed a petition for resentencing under Penal Code
1 We previously took judicial notice of this court’s prior opinion. Having done so, we
granted the parties the opportunity to file supplemental briefing to address it, because it
was not found in the original record. Defendant did not provide supplemental briefing
and the People submitted a letter standing by their position in their responsive brief.
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section 1170.95,2 which the trial court denied after appointing counsel and ordering
briefing. On appeal, defendant contends the trial court erred by relying on the record of
conviction to deny the petition without first issuing an order to show cause and granting
him an evidentiary hearing. We find no error and affirm the trial court’s order.
BACKGROUND
To facilitate our review, we will state the relevant background facts from this
court’s opinion in defendant’s previous appeal from the underlying conviction. (People
v. Williams, supra, C001524.)
One evening in 1985, Tanimoto was found lying unconscious at the bottom of the
stairs leading to her apartment in downtown Sacramento. She was found clutching a
cloth strap in her hand, but there was no purse attached. One hour earlier, she had been
walking home carrying a purse with a shoulder strap. Tanimoto died two weeks later due
to head injuries and associated complications consistent with a severe fall from a stairway
onto concrete.
Several days after Tanimoto’s death, an informant told police that defendant told
him that he had snatched an Asian woman’s purse in the downtown area. Defendant said
he had run down some stairs and grabbed her purse, but the woman held on to the purse
and fell down the stairs. Defendant also said he took the purse, which contained money
and credit cards. Tanimoto’s purse was never found. Defendant later told the informant
defendant had called the hospital and found out Tanimoto’s condition was improving.
Defendant said he was hiding out at a Sacramento residence. On the evening of the
incident, authorities lifted prints from the railing of the stairs at the victim’s apartment
building that matched defendant’s right palm print.
2 Undesignated statutory references are to the Penal Code.
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Defendant testified he was at the home of friends on the day of the incident. He
denied killing the victim and denied making any of the statements that the informant said
defendant had made. Defendant claimed that, at about 11:00 p.m. the night of the crime,
he jogged near the victim’s apartment building and touched the hand railing.
A jury found defendant guilty of robbery (§ 211) and first degree murder (§ 187,
subd. (a)). The trial court found that defendant had a prior serious felony conviction
(§§ 667, subd. (a)(1), 1192.7, subd. (c)). It sentenced defendant to five years, plus
25 years to life. This court affirmed the judgment on appeal. (People v. Williams, supra,
C001524.)
In January 2019, defendant petitioned the trial court for resentencing under
section 1170.95. In his petition, defendant declared that he was charged with and
convicted of first or second degree murder pursuant to the felony murder rule or the
natural and probable consequences doctrine, and that he could not now be convicted of
first or second degree murder because of the changes made to sections 188 and 189,
effective January 1, 2019. Defendant did not check the box declaring that he was not the
actual killer.
The trial court appointed counsel for defendant and ordered briefing on the
petition. The People opposed the petition, arguing in relevant part that defendant’s
petition failed because he was the actual killer and thus cannot obtain relief under
section 1170.95. Defendant in turn argued that his petition stated a prima facie case,
which entitled him to an order to show cause and an evidentiary hearing. Relying on the
court file and this court’s Williams opinion, the trial court denied the petition, finding
defendant was the actual killer and acted alone. It noted that the jury found defendant
guilty of first degree felony murder and that it was not instructed on any theory of
accomplice liability or any lesser included offense of first degree murder. Thus, the trial
court concluded that defendant failed to state a prima facie case for relief under
section 1170.95 and denied the petition. Defendant appeals from that order.
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DISCUSSION
Defendant argues that the trial court erred when it reviewed the record of
conviction and then denied defendant’s petition without issuing an order to show cause
and conducting an evidentiary hearing. Relying on the First District Court of Appeal’s
opinion in People v. Cooper (2020) 54 Cal.App.5th 106 (Cooper), review granted
November 10, 2020, S264684, defendant argues that the trial court was not permitted to
review documents and engage in independent fact-finding at the initial prima facie stage.
He avers that he was prejudiced by the trial court’s review of the record prior to holding
an evidentiary hearing, because he was unable to respond to the documents relied upon
by the trial court. The People counter that the trial court properly denied the petition
because he was ineligible for relief as the actual killer. They further contend that
defendant was given sufficient due process under the law. We agree with the People.
A
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) was enacted
to “amend the felony murder rule and the natural and probable consequences doctrine,
. . . to ensure that murder liability is not imposed on a person who is not the actual killer,
did not act with the intent to kill, or was not a major participant in the underlying felony
who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1(f), italics
added.) Senate Bill 1437 achieved these goals by amending section 188 to require that a
principal act with express or implied malice (§ 188, as amended by Stats. 2018, ch. 1015,
§ 2), and by amending section 189 to state that a person can be liable for felony murder
only if (1) “[t]he person was the actual killer”; (2) the person, with an intent to kill, was
an aider or abettor “in the commission of murder in the first degree”; or (3) “[t]he person
was a major participant in the underlying felony and acted with reckless indifference to
human life . . . .” (§ 189, subd. (e), as amended by Stats. 2018, ch. 1015, § 3, italics
added.)
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Senate Bill 1437 also added section 1170.95 to provide the resentencing petition
process for a “person convicted of felony murder or murder under a natural and probable
consequences theory.” (§ 1170.95, subd. (a).) After a defendant submits a petition and
the court performs an initial review for missing information, subdivision (c) of section
1170.95 provides, in part: “The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court shall appoint counsel
to represent the petitioner. The prosecutor shall file and serve a response within 60 days
of service of the petition and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served. . . . If the petitioner makes a prima facie showing that
he or she is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95,
subd. (c).)
A defendant must show the following to make a prima facie showing that he/she
falls within the provisions of section 1170.95: “(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. [¶] [And] (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.” (§ 1170.95, subd. (a).)
As recently explained by our Supreme Court in People v. Lewis (2021) 11 Cal.5th
952, 966 (Lewis), “section 1170.95, subdivision (c) does not envision a structure by
which courts can make an initial determination without briefing and without the
appointment of counsel. Instead, there is a much more logical interpretation of this
provision, and it is the one we adopt here: a complying petition is filed; the court appoints
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counsel, if requested; the issue is briefed; and then the court makes one (not two) prima
facie determination.”
B
While defendant contends that the trial court erred by considering the record of
conviction to deny the motion without holding an evidentiary hearing, the Supreme Court
has rejected this argument in Lewis. In Lewis, the court addressed whether a trial court
may consider the record of conviction in determining if a defendant has made a prima
facie showing of eligibility for relief under section 1170.95. It concluded that once a
defendant files a facially sufficient petition, as described in subdivision (c), and is
appointed counsel, “ ‘the court may – with the benefit of advocacy for both sides –
consider the record of conviction at [the prima facie] stage.’ ” (Lewis, supra, 11 Cal.5th
at pp. 970-971) A defendant’s prior appellate opinion, Lewis notes, is part of the record
of conviction. (Id. at p. 972.) Accordingly, we conclude it was proper for the trial court
to consider the record of conviction to determine whether defendant made a prima facie
showing that he fell within the provisions of section 1170.95.
Lewis also cautions that although the trial court may consider the record of
conviction in its prima facie review, the prima facie inquiry is “limited” and the trial
court may not, at that stage, engage in “ ‘factfinding involving the weighing of evidence
or the exercise of discretion.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 972.) Here,
consistent with Lewis, the trial court properly relied on the record of conviction without
making any impermissible findings of fact. Specifically, the trial court relied on this
court’s prior opinion, and the jury instructions, to find defendant ineligible for section
1170.95 relief as a matter of law because he was the actual killer.
Indeed, a review of this court’s prior opinion shows that defendant actually killed
the victim by pushing her down the stairs. In Williams, this court rejected defendant’s
sufficiency of the evidence claim, concluding “the jury could have inferred that defendant
forcibly took the victim’s purse from her, causing her to fall and sustain fatal injuries.
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The jury properly could believe [the informant’s] testimony and determine that defendant
was lying. In sum, the evidence is sufficient to support the verdicts.” (People v.
Williams, supra, C001524, at pp. 7-8.) The trial court also correctly concluded the jury
was instructed solely on a first degree felony-murder theory based on robbery murder,
and was not instructed on any lesser included offenses or on an accomplice liability
theory as to defendant. Thus, the record reflects that the jury found defendant was the
actual killer. In fact, in line with the jury’s verdict, defendant’s form petition did not aver
he was not the actual killer, and he is accordingly not eligible for relief.
Defendant’s reliance on Cooper, supra, 54 Cal.App.5th 106, review granted, does
not convince us otherwise. While Lewis now upholds Cooper’s conclusion that a
defendant is entitled to one prima facie review after briefing aided by counsel (Lewis,
supra, 11 Cal.5th at pp. 962-967), the trial court here did, in fact, appoint counsel and
receive briefing prior to conducting a prima facie review and denying the petition. Thus,
the trial court met the procedural requirements set forth in Cooper and now upheld in
Lewis.
Further, Cooper is factually distinguishable. In Cooper, the trial court relied on
facts in the record that may not have formed the basis for his plea to deny the petition,
thus engaging in improper judicial factfinding. (Cooper, supra, 54 Cal.App.5th at p. 108,
review granted.) Here, in contrast, the jury made the factual finding, as set forth in the
Williams opinion and based on the jury instructions, that defendant was the actual killer
and was guilty of first degree murder. Thus, there is no question under these
circumstances that defendant was not eligible for section 1170.95 prima facie relief.
Because defendant was the actual killer, defendant is ineligible for resentencing as
a matter of law under section 1170.95. He simply does not come within the provisions of
the statute. No further briefing or evidence could aid the court in reaching this
conclusion. The trial court’s denial of the petition was proper.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
HOCH, J.
/S/
KRAUSE, J.
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