People v. Walker CA1/2 ( 2021 )

Filed 8/4/21 P. v. Walker CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Appellant,
A159943
v.
CALVIN DAVID WALKER, (San Mateo County Super.
Ct. No. SC045390A)
Defendant and Respondent.
Defendant Calvin Walker filed a petition to vacate his second degree
murder conviction and for resentencing under the procedures created by
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437), which
amended the felony-murder rule and natural and probable consequences
doctrine. The trial court denied the petition and Walker appeals, contending
the trial court erred in looking beyond the face of his petition in concluding he
was not eligible for relief and that he received ineffective assistance from
counsel the trial court appointed to represent him. We affirm.
BACKGROUND
On December 29, 1999, the San Mateo District Attorney filed an
amended information charging Walker with murder (Pen. Code, § 187, subd.
(a))1 (count 1), possession of cocaine base for the purpose of sale (Health &
1 Further undesignated statutory references are to the Penal Code.
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Saf. Code, § 11351.5, subdivision (a)) (count 2), and being a felon in
possession of a firearm (§ 12021, subd. (a)(1)) (count 3). With respect to count
1, the information alleged that Walker personally and intentionally
discharged a firearm causing great bodily injury or death (§ 12022.53, subd.
(d)).
A jury found Walker guilty on all counts and found true the allegations
of the firearm enhancement. On count 1, the jury found Walker guilty of
second degree murder. The trial court sentenced Walker to 40 years to life
consisting of 15 years on count 1, plus 25 years to life on the section 12022.53,
subdivision (d) enhancement.
Walker appealed and we affirmed. (People v. Walker (Oct. 17, 2001,
A090805) [nonpub. opn.], 2001 WL 1240987, *1.) Our opinion provided the
following summary of the facts of the offense and testimony at trial:
“Walker shot Dennis Cheng to death in the early morning of May 8,
1998, in a failed sale of rock cocaine. Cheng drove to an East Palo Alto
neighborhood in search of the drug, inquired of a woman on the street—
Celestine Strauter—where he could find it, and was guided by her, as a
passenger, to a block on Clarke Street where Walker was selling. There,
Strauter left the car, alerted Walker to Cheng and stood by as the killing took
place. Walker leaned into Cheng’s driver side window, but after Cheng
fumbled with some money, stepped back and fired at him with a .32 caliber
handgun, apparently thinking Cheng was either cheating him or had cheated
him before. The car sped off and crashed into a parked car and chain link
fence. Cheng died of a single bullet to the chest.
“When arrested six weeks later at his girlfriend’s house, Walker had on
him the murder weapon (loaded) and 3.59 grams of cocaine in the form of 10
rocks (indicating possession for sale). Testimony at trial was from Strauter
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(located late in trial, after being arrested in Modesto) and a second
eyewitness (via previous testimony). Also testifying were several people to
whom Walker had made admissions about the killing—some during his post-
arrest incarceration. Walker did not testify but presented witnesses who, if
believed, might have cast doubt on his involvement in the killing. Trial was
protracted due to an unusually large number of witnesses and extensive
impeachment of many as felons, jailhouse informants, immunity recipients
and/or substance abusers.” (People v. Walker, supra, 2001 WL 1240987 at
p. *1.)
In 2018, the Legislature enacted Senate Bill 1437, which amended the
definition of murder to reduce the scope of the felony-murder rule and the
natural and probable consequences doctrine, and added section 1170.95 to
the Penal Code, creating a mechanism by which a defendant convicted of
felony murder or murder under a natural and probable consequences theory
can seek resentencing.
On July 3, 2019, Walker filed a pro se petition for resentencing
pursuant to section 1170.95, using a standard form. On the form, he checked
boxes declaring the following: “A complaint, information, or indictment was
filed against me that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable consequences
doctrine”; “At trial, I was convicted of 1st or 2nd degree murder pursuant to
the felony murder rule or the natural and probable consequences doctrine”; “I
could not now be convicted of 1st or 2nd degree murder because of changes
made to Penal Code §§ 188 and 189, effective January 1, 2019”; and “I was
convicted of 2nd degree murder under the natural and probable consequences
doctrine or under the 2nd degree felony murder doctrine and I could not now
be convicted of murder because of changes to Penal Code § 188, effective
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January 1, 2019.” Walker also checked a box requesting that the trial court
appoint counsel to represent him during the resentencing process.
At a hearing on August 7, the trial court appointed counsel for Walker.
A further hearing was held on the petition on September 24, in advance
of which the Attorney General filed opposition to Walker’s petition, and
attached two exhibits: our October 17, 2001 unpublished opinion affirming
Walker’s conviction on direct appeal, and the 2000 probation report prepared
in connection with Walker’s original sentencing.
On February 6, 2020, a brief hearing was held on the petition and
counsel presented argument. Defense counsel indicated that Walker had
“complained about the fact that I thought there was no prima facia [sic] case
indicating he might want to do a Marsden or request for additional—other
counsel. He’s of the opinion that second degree implied malice of murder has
been abolished. I had difficulty convincing him that it’s different than second
degree felony murder, which I do believe has been abolished as imputed
malice, which is no longer available [under Senate Bill] 1437.” Defense
counsel went on to indicate that based on his review of the jury instructions
from Walker’s trial, “i[t] does appear that [Walker] was not convicted under
an improper theory.” The trial court agreed and denied the petition:
“[T]oday the record makes clear that he was convicted as the actual killer and
[the] petition is denied.”
Walker appeals.
DISCUSSION
Walker argues that the trial court erred in relying on the original
probation report, our opinion affirming his conviction on direct appeal, and
the representations of his counsel in denying his petition, and that his
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counsel provided ineffective assistance by conceding that he is not eligible for
resentencing under Senate Bill 1437.
Senate Bill 1437
Enacted in 2018, Senate Bill 1437 amended the definition of murder in
sections 188 and 189 to reduce the scope of the felony-murder rule and the
natural and probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2–3.)
Specifically, it was enacted 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, subd. (f).)” (People v.
Martinez (2019) 31 Cal.App.5th 719, 723; see § 189, subd. (e), as amended by
Stats. 2018, ch. 1015, § 3, p. 92.)
Senate Bill 1437 also added section 1170.95 to the Penal Code, creating
a mechanism by which a defendant who was convicted of felony murder or
murder under a natural and probable consequences theory may seek to have
his or her conviction vacated and be resentenced on any remaining counts.
(§ 1170.95, subd. (a), added by Stats. 2018, ch. 1015, § 4, p. 830.) Such a
defendant may petition the sentencing court to have his or her conviction
vacated if the following three conditions are satisfied:
“(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.
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“(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)(1)–(3).)
A petition for relief must include: “(A) A declaration by the petitioner
that he or she is eligible for relief under this section, based on all the
requirements of subdivision (a). [¶] (B) The superior court case number and
year of the petitioner’s conviction. [¶] (C) Whether the petitioner requests the
appointment of counsel.” (§ 1170.95, subd. (b)(1)(A)–(C).)
If the petition contains all of the required information, “[t]he 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 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.”
(§ 1170.95, subd. (c), added by Stats. 2018, ch. 1015, § 4, p. 830.) After
issuing an order to show cause, the court must then hold an evidentiary
hearing to determine whether the petitioner is entitled to relief. (Id., subd.
(d), added by Stats. 2018, ch. 1015, § 4, p. 830.)
The Trial Court Did Not Err In Looking Beyond the Four
Corners of Walker’s Petition
Although Walker’s argument is not clearly made, he appears to contend
that the trial court erred in considering the original probation report, our
opinion affirming his conviction on direct appeal, and the representations of
his counsel in determining whether he had made a prima facie showing that
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he is “entitled to relief” under section 1170.95 sufficient to justify issuing an
order to show cause and an evidentiary hearing. (§ 1170.95, subd. (c).)
To begin with, the record supports the trial court’s conclusion that
Walker was ineligible, as a matter of law, for relief under section 1170.95
because he was the “actual killer,” and could therefore still be convicted of
first or second degree murder after the changes made by Senate Bill 1437.
(See § 189, subd. (e); People v. Tarkington (2020) 49 Cal.App.5th 892, 899,
review granted Aug. 12, 2020, S263219.) Our opinion in his direct appeal,
which described the evidence presented at trial, demonstrates that the
murder involved a single perpetrator, Walker; it was not a situation in which
multiple persons carried out the attack. The jury found Walker guilty of
second degree murder and also found true the special allegation that he
personally and intentionally discharged a firearm proximately causing death
(§ 12022.53, subd. (d)). (See People v. Cornelius (2020) 44 Cal.App.5th 54, 58
[trial court did not err in denying petition where the “jury convicted
[defendant] of second degree murder and found true that he personally and
intentionally used a firearm to commit the crime” and thus “implicitly found
[defendant] was the ‘actual killer,’ and the changes to sections 188 and 189
are inapplicable”], review granted Mar. 18, 2020, S260410). And Walker has
not any identified any factual scenario, before the trial court or in this
appeal, in which he was not the “actual killer”—indeed, the statement of facts
in his opening brief says that he “shot Dennis Cheng to death on May 8, 1998,
during a[n] attempted sale of rock cocaine.”
In any event, after briefing in this case was completed, our Supreme
Court decided People v. Lewis (July 26, 2021, S260598) __ Cal.5th __ [2021
WL 3137434], agreeing with numerous Courts of Appeal that in considering
whether the required prima facie showing under section 1170.95 has been
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made, “a trial court can rely on the record of conviction,” and “[a]ppellate
opinions . . . are generally considered to be part of the record of conviction.”
(Id. at pp. 22–24; see People v. Tarkington, supra, 49 Cal.App.5th at p. 898
[court can review “readily ascertainable information in the record of
conviction and the court file”], review granted Aug. 12, 2020, S263219;
People v. Edwards (2020) 48 Cal.App.5th 666, 674–675 [court can review
“readily available record of conviction” including “charging information and
jury instructions”], review granted July 8, 2020, S262481; People v. Torres
(2020) 46 Cal.App.5th 1168, 1177–1178 [court can review “information that is
readily ascertained”], review granted June 24, 2020, S262011; People v.
Verdugo (2020) 44 Cal.App.5th 320, 327–330 [court “must at least examine
the complaint, information or indictment filed against the petitioner; the
verdict form or factual basis documentation for a negotiated plea; and the
abstract of judgment”], review granted Mar. 18, 2020, S260493.) Under these
authorities, we conclude that the trial court did not err in relying on the
record of conviction, including our previous opinion in Walker’s direct appeal,
in considering and rejecting Walker’s section 1170.95 petition.
Walker’s Ineffective Assistance of Counsel Claim Fails
We will also reject Walker’s claim of ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel in violation of the
Sixth Amendment, the defendant “must show that (1) counsel’s
representation was deficient, i.e., it fell below an objective standard of
reasonableness under prevailing professional norms; and (2) counsel’s
deficient performance subjected the defendant to prejudice, i.e., there is a
reasonable probability that, but for counsel’s failings, the result would have
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been more favorable to the defendant.”2 (In re Alvernaz (1992) 2 Cal.4th 924,
936–937; see Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) Even
assuming that Walker’s counsel provided deficient representation by
conceding he was not eligible for resentencing, given the evidence in the
record that Walker was the actual killer and therefore ineligible as a matter
of law for relief under Senate Bill 1437, Walker has not shown a reasonable
probability of a different result but for his counsel’s allegedly deficient
performance.
DISPOSTION
The order is affirmed.
2 We assume without deciding that a petitioner has a constitutional
right to effective assistance of counsel in section 1170.95 proceedings,
although there is authority suggesting otherwise. (See People v. Daniel
(2020) 57 Cal.App.5th 666, 676, review granted Feb. 24, 2021, S266336 [“a
petitioner’s right to counsel under section 1170.95(c) is not protected by the
federal Constitution”]; People v. Anthony (2019) 32 Cal.App.5th 1102, 1156
[“the Legislature’s changes [in Senate Bill 1437] constituted an act of lenity
that does not implicate defendants’ Sixth Amendment rights”]; People v. Cole
(2020) 52 Cal.App.5th 1023, 1032, review granted Oct. 14, 2020, S264278
[“having a constitutional right to the appointment of counsel is not the same
as having a constitutional right to the effective assistance of that counsel”
and the “Supreme Court has steadfastly held that ‘there is no constitutional
right to the effective assistance of counsel’ in state postconviction
proceedings”].)
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_________________________
Richman, Acting P. J.
We concur:
_________________________
Stewart, J.
_________________________
Miller, J.
People v. Walker (A159943)
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