People v. Williams CA2/2 ( 2021 )

Filed 12/22/21 P. v. Williams CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B309676
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA071076)
v.
ERIC ALEXANDER
WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Dorothy L. Shubin, Judge. Reversed and
remanded.
Eric R. Larson, 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 Rama R. Maline, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Eric Alexander Williams
(defendant) appeals from the order denying his petition for
resentencing pursuant to Penal Code section 1170.95,1
contending that the trial court erred in finding that he had not
made a prima facie showing of eligibility for relief under that
statute. We agree, reverse the order, and remand the matter to
the superior court with directions to issue an order to show cause
and conduct an evidentiary hearing pursuant to section 1170.95,
subdivision (d).
BACKGROUND
In 2009, defendant and two codefendants, Kamaron Walker
and Juan Villatoro, were charged with the 2007 murder of Dion
Holloway in violation of section 187, subdivision (a).2 The
information alleged pursuant to section 12022.53, subdivisions
(b), (c), (d), (e), and (e)(1), that defendant and a principal
personally used and intentionally discharged a handgun and that
the crime was committed in association with a criminal street
gang within the meaning of section 186.22, subdivision (b)(1)(C).
For purposes of section 667, subdivision (a)(1) and the “Three
Strikes” law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), it was
alleged that defendant had been convicted of a prior serious or
violent felony. A jury convicted Walker of first degree murder
and defendant of second degree murder. The court found
defendant’s prior conviction allegation true. The jury found true
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 Prior to trial Villatoro was allowed to plead guilty to being
an accessory and received a sentence of 12 years in prison.
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the allegation that Walker had personally and intentionally
discharged a firearm, which proximately caused the victim’s
death. As to defendant, the jury found that he had personally
used a firearm and that a principal had personally used and
intentionally discharged a firearm that proximately caused the
victim’s death. The jury also found true the gang allegation. In
January 2010, defendant was sentenced as a second strike
offender to 15 years to life plus 25 years to life due to the firearm
use allegation and five years for the recidivist enhancement. In
2011, we affirmed the judgment against defendant and Walker.
(People v. Walker (June 30, 2011, B221399) [nonpub. opn.]
(appellate opinion).)
The evidence summarized in the appellate opinion (relied
upon by the trial court) showed that the murder occurred at
approximately 10:00 p.m. After hearing multiple gunshots one
witness saw a short, heavyset person wearing a dark-colored
“hoodie,” standing over a body, pointing with what the witness
thought was a gun, before entering the passenger side of an older
model Ford SUV. Two other witnesses saw a black SUV pass by
slowly and saw the victim lying in the street. Two days later a
photograph of the SUV driven that night by defendant was
identified by one of the witnesses.
The victim died after sustaining seven gunshot wounds:
three to the head, one to the neck, one to the back, and two above
the hip. The wounds to the back and hip were consistent with
the victim running away from the shooter when he was shot.
However the shots to the back of the head were consistent with
the victim not running.
Investigators arrived on the scene within two minutes of
the shooting and observed several expended Hornady brand nine-
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millimeter shell casings near the victim’s body. A forensic
specialist testified at trial that he rarely encountered Hornady
brand casings. Approximately two and one-half hours after the
shooting, a Pasadena police officer followed a speeding black Ford
Explorer to Villatoro’s residence, where the occupants were
detained, and the driver was identified as defendant and the
passenger as Villatoro. Both men were wearing dark-colored,
hooded sweatshirts. On top of the residence mailbox an empty
box of Hornady nine-millimeter bullets was found.
Villatoro testified that he and defendant were friends who
in September 2007 saw each other daily. Defendant often drove
Villatoro to sell methamphetamine. On the day of the shooting
defendant arrived at Villatoro’s home with Walker who, when
Villatoro came out to meet them at the front of the house, was
holding a gun. As Villatoro approached Walker wrapped the gun
in a rag and put it into the engine compartment of defendant’s
car. Later Villatoro saw Walker with a second gun, a nine-
millimeter semiautomatic handgun, and saw an ammunition box
in the trash can. Villatoro retrieved it, placed it on top of the
mailbox, and told Walker to dispose of it somewhere else.
Defendant then asked Villatoro to accompany him as he took
Walker home, somewhere in or near Pasadena. When they left
Walker was in the front passenger seat, defendant was driving
and Villatoro was in the back seat.
Walker gave directions to defendant as he drove. When
they saw a group of African-American men Walker directed
defendant to turn left, descend the hill, stop, and park. Walker
explained that he needed to handle something. Walker then
went to the front of the car and defendant released the hood lock
at Walker’s request. Walker returned with gloves and the nine-
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millimeter handgun and called the group of men “slobs,” which
was a derogatory term for members of a Blood gang. Villatoro
watched from the car as Walker walked uphill to a man walking
downhill. The two spoke, and a few seconds later Walker began
shooting at the man, who turned and ran. Walker chased him
while shooting. When the man fell to the ground Walker
continued to shoot him. Walker then returned to the car, put the
gun back under the hood, and told defendant to drive away at a
normal pace. After first making a few stops, Walker was taken
home where he took the guns from the engine compartment and
went into his house. After a break during trial, Villatoro
recanted his testimony and instead testified that he was not with
defendant and Walker at the time of the shooting.
The cell phone records of all three men corroborated their
location at the time of the shooting. Walker’s live-in girlfriend
told officers that Walker did not come home that night until
sometime after 10:00 p.m. In addition a recorded conversation
between defendant and Walker later in the jail bus captured
defendant telling Walker that the police were tracking them
through their cell phones, to which Walker replied, “Your boy told
on us.” Both defendant and Walker said they were “ex-gang
members.” Defendant mentioned “[t]he box with the shells,” and
Walker replied, “They told me at his house or something.”
Detective Grant Curry was called to testify by Walker.
Detective Curry testified that he initially suspected defendant as
the shooter because the police stated that defendant was short
and stocky and wearing a black hooded sweatshirt. He later
changed his mind because he did not think defendant was
sufficiently stocky.
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In July 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. The trial court appointed counsel
for defendant and scheduled briefing. After briefing by both
parties and hearing the argument of counsel, the court found that
defendant had failed to make a prima facie showing of eligibility
under the statute and summarily denied the petition without
issuing an order to show cause.
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant contends that as the record of conviction did not
establish that he was ineligible for relief as a matter of law, the
trial court erred in denying his section 1170.95 petition without
issuing an order to show cause and by weighing the evidence.
The People agree.
Section 1170.95 provides a procedure for convicted
murderers to retroactively seek relief if they could not be
convicted under sections 188 and 189 as amended effective
January 1, 2019. (People v. Lewis (2021) 11 Cal.5th 952 (Lewis);
see § 1170.95, subd. (c).) Under the amended statutes an aider
and abettor may not be convicted of felony murder or murder
under the natural and probable consequences doctrine if he was
“‘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,
subd. (f).)” (People v. Gentile (2020) 10 Cal.5th 830, 842.) A
person is entitled to relief under section 1170.95 if, as relevant
here, (1) “[a] complaint, information, or indictment was filed
against [him] that allowed the prosecution to proceed . . . under
the natural and probable consequences doctrine,” (2) he “was
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convicted of . . . second degree murder following a trial,” and (3)
he “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 defendant’s petition alleged all three conditions and
requested appointment of counsel, the trial court properly
appointed counsel, received briefing and then held a hearing to
consider whether defendant had made a prima facie showing of
eligibility under the statute. (See Lewis, supra, 11 Cal.5th at
pp. 957, 962; see also § 1170.95, subd. (c).) The trial court was
entitled to consider the record of conviction in making that
determination. (Lewis, supra, at p. 971.) However, “[i]n
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.’” (Id. at
p. 972, quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980
(Drayton).) “[T]he ‘prima facie bar was intentionally and
correctly set very low.’” (Lewis, supra, at p. 972.)
“[W]hen assessing the prima facie showing, the trial court
should assume all facts stated in the section 1170.95 petition are
true. [Citation.] The trial court should not evaluate the
credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law—for
example, a petitioner’s assertion that a particular conviction is
eligible for relief where the crime is not listed in subdivision (a) of
section 1170.95 as eligible for resentencing. Just as in habeas
corpus, if the record ‘contain[s] facts refuting the allegations
made in the petition . . . the court is justified in making a
credibility determination adverse to the petitioner.’ [Citation.]
However, this authority to make determinations without
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conducting an evidentiary hearing pursuant to section 1170.95,
subd[ivision] (d) is limited to readily ascertainable facts from the
record (such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless
indifference to human life in the commission of the crime). [¶] If,
accepting the facts asserted in the petition as true, the petitioner
would be entitled to relief because he or she has met the
requirements of section 1170.95(a), then the trial court should
issue an order to show cause.” (Drayton, supra, 47 Cal.App.5th at
pp. 980-981; accord, People v. Aleo (2021) 64 Cal.App.5th 865,
871-872; People v. Duchine (2021) 60 Cal.App.5th 798, 811-812.)
Here, after considering the record of conviction and the
parties briefs, the trial court found that defendant had not made
a prima facie showing of eligibility for relief under section
1170.95 and that the prosecution had met its burden to prove
beyond a reasonable doubt that defendant was ineligible for
resentencing. We find that the trial court erred. Though the
court stated it had not weighed the evidence because no contrary
evidence was presented, it then denied defendant’s request for an
evidentiary hearing. The court extensively analyzed the facts
presented in the appellate opinion, drew inferences, and
independently concluded that the facts supported a conviction
under an aiding and abetting theory. The court emphasized that
Walker and defendant socialized the day of the murder; they are
fellow gang members; Walker placed a gun in the engine
compartment of defendant’s car; defendant drove into and around
rival gang territory at a time of high tension and multiple
shootings between the two gangs; Walker identified rival gang
members; defendant parked, popped the hood, and Walker
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retrieved the gun and gloves; defendant waited in the car for
Walker and then drove away at a speed intended not to attract
attention; and evidence showed a gang motive.
The question to be resolved by the court at the prima facie
stage is not whether there is evidence in the record of conviction
that supports defendant’s murder conviction, but rather, taking
the allegations of the petition as true, whether “‘“the petitioner
would be entitled to relief if his or her factual allegations were
proved. If so, the court must issue an order to show cause.”’”
(Lewis, supra, 11 Cal. 5th at p. 971, quoting Drayton, supra, 47
Cal.App.5th at p. 978.)
Defendant’s petition included the required allegations that
(1) “[a] complaint, information, or indictment . . . allowed the
prosecution to proceed . . . under the natural and probable
consequences doctrine,” (2) he “was convicted of . . . second degree
murder following a trial,” and (3) he “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); see
Lewis, supra, 11 Cal.5th at pp. 957, 962.) Thus, to refute those
allegations at this stage the record of conviction must have shown
that defendant’s trial could not have proceeded on a natural and
probable consequences theory or that defendant could still be
convicted of murder under a theory that remains valid after the
recent amendments to the murder laws.
The trial court indicated that it had read the papers
submitted by the parties and the record of conviction, including
the transcript and the appellate opinion, but neither the court
nor the prosecution pointed to anything in the record of
conviction that would show that defendant could not have been
convicted under the natural and probable consequences doctrine,
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despite the jury instruction and prosecution argument allowing it
to do so.3 There is also no indication in the reasons given by the
trial court for its ruling that there had been a jury finding that
defendant was the actual killer, harbored an intent to kill, or was
a major participant who acted with reckless indifference to
human life. Thus the record of conviction did not refute the truth
of the allegations of defendant’s petition, requiring the trial court
to issue an order to show cause. (See Lewis, supra, 11 Cal.5th at
p. 971, citing Drayton, supra, 47 Cal.App.5th at p. 978.)
The trial court conducted the sort of analysis that is left to
the evidentiary hearing held pursuant to section 1170.95,
subdivision (d) after an order to show cause has been issued. At
such hearing the prosecution has the burden to prove beyond a
reasonable doubt that defendant is guilty of murder under a still
valid theory of murder. (See People v. Duchine, supra, 60
Cal.App.5th at pp. 815-816; Drayton, supra, 47 Cal.App.5th at
p. 982.)4
DISPOSITION
The order denying the section 1170.95 petition is reversed,
and the matter is remanded for the issuance of an order to show
3 In its opposition to the petition the prosecution merely
made the argument that no prima facie showing was made
because sufficient evidence supported a murder conviction under
a direct aiding and abetting theory.
4 In the alternative, “[t]he parties may waive a resentencing
hearing and stipulate that the petitioner is eligible to have his or
her murder conviction vacated and for resentencing.” (§ 1170.95,
subd. (d)(2).)
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cause and an evidentiary hearing pursuant to section 1170.95,
subdivision (d).
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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