People v. Williams CA4/1 ( 2021 )

Filed 10/12/21 P. v. Williams CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078714
Plaintiff and Respondent,
v. (Super. Ct. No. SCD207315)
OCTAVUS VASHON WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Robert F. O’Neill, Judge. Affirmed.
Stephen M. Hinkle, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C.
Ragland and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff
and Respondent.
In 2008, a jury convicted Octavus Vanshon Williams of second degree
murder (Pen. Code,1 § 187, subd. (a)) and found the crime was committed for
the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). Williams was
sentenced to an indeterminate term of 15 years to life in prison. Williams
appealed, and this court affirmed the judgment in an unpublished opinion,
People v. Williams, D054769 (Sept. 21, 2010).2
In 2019, Williams filed a petition for resentencing under
section 1170.95.
The trial court appointed counsel, received briefing, reviewed the
record of conviction, and heard argument. The court denied the petition,
finding Williams was prosecuted as a direct aider and abettor and that the
jury was not instructed on felony murder for second degree murder and the
jury was not instructed on the natural and probable consequences doctrine
for that offense.
Williams filed a timely notice of appeal.
STATEMENT OF FACTS
We include the facts of the offense as they were stated in our previous
opinion in this case.3 (People v. Williams, supra, D054769.)
“On January 24, 2007, Williams, [A.] Brown, [K.] Johnson, [T.] Morris,
and [G.] Harper gathered with other members and associates of the O’Farrell
Park gang at an apartment on 63rd Street in San Diego.
1 All further statutory references are to the Penal Code.
2 At respondent’s request, we granted judicial notice of our records in
case No. D054769.
3 We do so in nearly verbatim fashion except to sometimes use last
names and/or initials in naming third parties involved in the subject offenses
to protect privacy as much as possible.
2
“Williams, called “Big Homey” by Harper, was a shot-caller; he had the
highest status among members of the O’Farrell Park gang. Brown was also a
senior member of the gang. Younger members such as Harper, Jones, and
Johnson were called the O’Farrell Park Banksters and were lower in the
hierarchy. Morris had been documented as a member of the Skyline criminal
street gang, which was much larger than the O’Farrell Park gang, but he
frequented the O’Farrell Park gang territory. The O’Farrell Park gang was
‘tight’ with the Skyline gang and the two gangs ‘r[a]n together.’
“Detective Joseph Castillo, the prosecution’s gang expert, testified that
snitching is a major violation of a gang’s unwritten rules. In addition,
younger gang members like Harper were supposed to ‘kick up’ money to older
members such as Williams and Brown. They were expected to help older
gang members if asked. The younger gang members could be disciplined or
‘checked’ if they failed to do so. Detective Castillo opined that checking,
which ranges from a tongue lashing to a beating, assists the gang by letting
other members know there are repercussions for behavior that violates the
gang’s code. He acknowledged that a beating is not necessarily designed to
kill the offending gang member.
“Sometime before the killing, Williams complained to Jones that he had
done favors for Harper, but Harper had ‘just looked over him like it was
nothing.’ Harper’s girlfriend, [L.C.], testified that Harper received several
cell phone calls from Williams in December and January before Harper
disappeared. She did not know whether Williams asked Harper for money or
to borrow a gun. Harper had money because he had a job and was selling
marijuana.
“Harper drove to the apartment in a white Dodge Magnum. . . .
Williams followed Harper into the kitchen. While Williams was getting
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marijuana from Harper, Williams demanded, ‘Why didn’t you answer your
phone?’ Brown walked into the kitchen and either he or Williams asked
Harper, ‘What are you doing bringing this faggot shit into the neighborhood,
fucking with faggots?’ Harper responded, ‘That’s bullshit. What are you
talking about? . . . You got me fucked up. Fucking with some guys? Are you
fucking crazy?’ Williams and Brown also demanded money from Harper.
Williams and Harper began fighting, eventually moving into the living room.
At that point, when the fight was one-on-one, Harper was able to fight back.
Brown picked up Harper’s ‘weed’ and money from the floor. As the fight
continued, Williams and Brown worked together to attack Harper, telling
him not to come back to the neighborhood. When Brown hit Harper in the
face, Harper fell into the entertainment system, knocking over the television.
Harper called out for Jones to help him.
“Jones joined his girlfriend, [A.T.], in Jones’s bedroom. One of them
turned up the volume of the television. [A.T.] still heard Harper screaming
and yelling ‘like a girl.’ Morris entered Jones’s bedroom and asked him why
he did not intervene to stop his ‘Hommies’ from tearing up the living room.
Jones, who was very upset, yelled from the bedroom doorway that everyone
had to get out. He did not open the door fully because he did not want to risk
harm to himself or [A.T.]. At one point during the fight, Brown came into
Jones’s bedroom and asked Morris if he had a ‘whop,’ meaning a gun; Morris
said he did not.
“Morris left shortly afterwards and saw that Williams and Brown had
cornered Harper in the living room. Harper was alive and dressed, Williams
was trying to stop his nose from bleeding, and Morris thought everyone had
given up on the fight. He testified he did not intervene, because ‘I didn’t have
no beef with none of these dudes.’
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“When things quieted down, Jones looked out of the bedroom through a
crack in the door. He saw Brown in what he described as an ‘aggressive’
stance, like he was thinking, ‘What the hell am I going to do next?’ Jones and
[A.T.] stayed in the bedroom for what could have been 15 minutes longer
before they entered the living room. Johnson was the only person left in the
room.
“Later that afternoon, Williams and Brown returned to the apartment
in a white van. Jones refused to let Brown inside. Brown dropped $200 on
the ground and said that if he had broken anything, the money would take
care of it.
“Harper’s sister, [A.] Taylor, contacted media outlets the next day to
report Harper missing. She had learned that his girlfriend, [L.C.], had not
heard from Harper since the day before. Taylor posted her brother’s picture
and a description of his car on MySpace.com. [L.C.] filed a missing person’s
report with the police. Harper’s body was found in the trunk of the Dodge
Magnum on January 26, 2007, clothed only in boxer shorts and socks. The
medical examiner determined that Harper died of strangulation.
“Investigators collected evidence from the Dodge Magnum, including a
bunched up shirt that appeared to have been used to wipe something down.
The shirt had Harper’s blood near the logo and Williams’s DNA on the inside
of the collar. A palm print found on the rear bumper belonged to Williams.
“Williams and Brown were both charged with Harper’s murder, but the
court ordered separate trials with Williams tried first. Jones, Morris, [L.C.],
Johnson and [A.T.] testified that they and their families had been threatened
with retaliation because of their appearances at trial. Jones testified the
accusation that Harper was gay was ‘obviously bullshit.’ He had never heard
rumors that Harper was gay. Johnson said it seemed like Williams and
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Brown were checking Harper. He testified that the purpose of checking was
‘to get somebody’s attention . . . not necessarily to kill them.’ ”
DISCUSSION
Williams contends the trial court erred in summarily denying his
petition without first issuing an order to show cause (OSC). He argues the
court engaged in factfinding. We will find the trial court properly reviewed
the record of conviction from which the court could find Williams was not
eligible for relief under section 1170.95.
A. Legal Principles
The question of whether the court properly reviewed the record of
conviction in determining Williams was not eligible for relief is one of law,
which we will review de novo. (People v. Gonzalez (2017) 2 Cal.5th 1138,
1141.)
Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437) was
enacted to “ ‘amend[ ] the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, 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.’ ” (People v. Gentile (2020) 10
Cal.5th 830, 842.)
Section 1170.95, subdivision (c) provides: “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. These deadlines shall be extended for good
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cause. 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.”
When a trial court reviews a petition for resentencing, the court first
determines if the petitioner has shown a prima facie case for relief under the
statute. If so, the court must issue an OSC and hold an evidentiary hearing
on the petition. (People v. Lewis (2021) 11 Cal.5th 952, 962 (Lewis).)
However, the court may deny the petition if the person is ineligible as a
matter of law. (People v. Drayton (2020) 47 Cal.App.5th 965, 980-981.) The
court may review the record of conviction, including any prior appellate
opinion, to determine if the petitioner’s allegations are rebutted by the
record. (Lewis, at p. 972.) However, the court may not engage in factfinding
and weighing credibility at the prima facie stage of petition review. (Drayton,
at p. 979.)
When a petition is filed under section 1170.95 the petitioner must
present a prima facie case for relief. Alleging the conviction was based on
grounds now made impermissible under Senate Bill 1437 will show a prima
facie case for relief. Absent anything to change the showing, the court should
issue an OSC and conduct an appropriate evidentiary hearing.
Our Supreme Court recently determined that after appointment of
counsel, the court can consider the record of conviction, as well as any
appellate opinion involved in the record. The limitation on such review is the
trial court may not engage in factfinding. The court reasoned the prima facie
showing of the petition could be rebutted by the record. (Lewis, supra, 11
Cal.5th at pp. 970-971.) The court said: “ ‘However, if the record, including
the court’s own documents, “contain[s] facts refuting the allegations made in
the petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.” ’ ” (Id. at p. 971.) “Appellate
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opinions . . . are generally considered to be part of the record of conviction.”
(Id. at p. 972.) “In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in ‘factfinding involving
the weighing of evidence or the exercise of discretion.’ ” (Ibid.) “In sum, the
parties can, and should, use the record of conviction to aid the trial court in
reliably assessing whether a petitioner has made a prima facie case for relief
under [section 1170.95], subdivision (c).” (Ibid.)
The court noted that examining the file, including jury instructions
given at the trial did not constitute prohibited factfinding. Such material can
rebut the prima facie showing in the petition without the necessity of an
evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 971.)
B. Analysis
Williams contends the court should not have considered the record of
conviction and should not have used the record to rebut his contentions in his
petitions. Williams does not argue the court’s interpretation of the record,
the jury instructions, and this court’s opinion as to the nature of the
prosecution’s presentation was wrong. His argument is the court should not
have conducted such review at the prima facie stage of the petition review.
Williams’s position on appeal is understandable because his opening brief
was filed before our Supreme Court filed its Lewis opinion. It is now clear the
trial court correctly considered the record of conviction.
The jury instructions demonstrated Williams was tried as a direct aider
and abettor who acted with implied malice. Although there was a first
degree murder instruction given on felony murder, the jury acquitted him of
first degree murder. No instruction was given on second degree felony
murder nor was there an instruction for second degree murder liability under
the doctrine of natural and probable consequences arising from an underlying
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felony. The prosecution’s case for second degree murder was based on
implied malice from the beating Williams inflicted on the victim.
The trial court properly determined Williams was not convicted on any
of the impermissible theories of murder liability in Senate Bill 1437 (Stats.
2018, ch. 1015). The court properly found Williams is not eligible for
resentencing.
DISPOSITION
The order denying Williams’s petition for resentencing under
section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
GUERRERO, J.
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