People v. Willis CA1/3 ( 2021 )

Filed 9/29/21 P. v. Willis CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication or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 THREE
THE PEOPLE,
Plaintiff and Respondent,
A160625
v.
KEVIN FITZGERALD WILLIS, (San Mateo County
Super. Ct. No. SC020481A)
Defendant and Appellant.
Defendant Kevin Fitzgerald Willis appeals an order denying his
petition for resentencing pursuant to Penal Code section 1170.95.1 His
counsel has filed an opening brief raising no issues and asking this court for
an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436(Wende).) Defendant has been apprised of his right personally to file a
supplemental brief, but he has not done so.
Our high court is currently considering whether an appellate court
must conduct an independent review of the record when counsel files a Wende
brief after the trial court denies a petition for resentencing under section
1170.95. (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.] rev.
granted Feb. 17, 2021, S266305.) Recent published cases have held that we
1 All statutory references are to the Penal Code.
1
are not required to conduct such a review and may dismiss an appeal as
abandoned if the defendant does not file a supplemental brief (People v. Cole
(2020) 52 Cal.App.5th 1023, 1031–1032, 1039–1040, review granted October
14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review
granted May 21, 2021, S267870), although some cases explain that we have
discretion to review the record independently for arguable issues, either
where an initial review does not show the defendant is obviously ineligible for
relief (such as when the defendant was convicted on a theory he was the
actual killer) (People v. Scott (2020) 58 Cal.App.5th 1127, 1131, review
granted Mar. 17, 2021, S266853) or as a routine matter (People v. Flores
(2020) 54 Cal.App.5th 266, 269–274). Similarly, a panel in Division Four of
this appellate district recently concluded that an order revoking and
reinstating post-release community supervision is not subject to Wende
review because the appeal is not a direct appeal from a judgment of
conviction. (People v. Freeman (2021) 61 Cal.App.5th 126, 132–134.) We
likewise conclude defendant is not entitled to Wende review of an order
denying a petition for resentencing under section 1170.95. Because
defendant has not personally filed a supplemental brief, we will dismiss his
appeal as abandoned.
We note, however, that the result would be the same even if we
exercised our discretion to conduct an independent review. Our high court
has recently confirmed that a trial court may look to the record of conviction
to determine whether a petitioner has made a prima facie case for relief
under section 1170.95. (People v. Lewis (2021) 11 Cal.5th 952, 970–972
(Lewis).) The record of conviction here shows unambiguously that defendant
was convicted as the actual killer, not under a theory of imputed malice
under the doctrine of felony murder or natural or probable consequences.
2
As pertinent here, in a 1989 bench trial the court found defendant
guilty of first degree murder (§ 187) and found true the special circumstance
allegation that the murder was committed in the course of a robbery or
attempted robbery (§§ 190.2, subd. (a)(17); 211), as well as allegations that he
personally used a deadly and dangerous weapon, a knife (former § 12022,
subd. (b)), that he personally and intentionally inflicted great bodily injury on
the victim in the commission of the murder (§ 1203.075), and that he had
suffered a prior felony conviction and resulting prison term (§ 667.5,
subd. (b)). Defendant received a sentence of life without parole, with stayed
terms for two enhancement allegations.
This division affirmed the judgment on March 16, 1990. (People v.
Willis (Mar. 16, 1990, A045985) [nonpub. opn.] (Willis I).) The opinion in
Willis I explained that defendant was seen struggling with the victim in the
cab of the victim’s pick-up truck, and the victim fell against the driver’s side
window. Defendant’s hands were on the victim, and as he withdrew them a
witness noticed he was holding several dollar bills. Defendant got out of the
truck, went to the driver’s side door, pushed the victim over, got into the
driver’s seat next to him, and drove away. After striking two other vehicles,
defendant jumped out of the truck and ran away. The victim’s body was
found inside the truck, covered in blood, and a police officer found defendant
with blood on his hands and clothing. Defendant told the officer he had been
involved in a homicide. The victim, who died, had been stabbed five times.
Defendant testified at trial that he accepted a ride from the victim, who made
an unwanted sexual advance; when defendant tried to push the victim off,
the victim lunged at him with a sharp piece of metal. Defendant testified his
memory was blank from then until he saw the victim was bleeding.
3
In 2018, the Legislature enacted Senate Bill 1437, effective January 1,
2019. (Stats. 2018, ch. 1015.) In an uncodified section, the Legislature
declared the law was “necessary 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.” (Id.,
§ 1, subd. (f).) To further this end, the Legislature amended section 188 to
provide that “[m]alice shall not be imputed to a person based solely on his or
her participation in a crime” (§ 188, subd. (a)(3)) and amended section 189 to
provide that a participant in the perpetration or attempted perpetration of
specified felonies is liable for murder only if the person was the actual killer;
the person was not the actual killer but, with the intent to kill, aided or
abetted the actual killer in a first degree murder; or the person was a major
participant in the underlying felony and acted with reckless indifference to
human life (§ 189, subd. (e)).
Section 1170.95 authorizes “[a] person convicted of felony murder or
murder under a natural and probable consequences theory” to file a petition
to have the murder conviction vacated and to be sentenced on the remaining
counts under certain conditions, including that the person could not be
convicted of first or second degree murder under the changes to sections 188
and 189. (§ 1170.95, subd. (a).) The court reviews the petition and
determines whether the petitioner has made a prima facie showing of
entitlement to relief, in which case the court issues an order to show cause.
(§ 1170.95, subd. (c); see Lewis, supra, 11 Cal.5th at p. 962.)
In July 2019, defendant filed a petition for resentencing under section
1170.95, alleging he was convicted of murder pursuant to the felony murder
4
rule or the natural and probable consequences doctrine. He asserted that he
was not the actual killer because he was in custody at the time the victim
died and that there was “no charge, conviction, or sentence for Penal Code
section 211.” The trial court appointed counsel to represent him.
The People opposed the motion on the ground defendant was ineligible
for resentencing because he was convicted not under a derivative theory of
felony murder or natural and probable consequences, but as the actual killer
who harbored express or implied malice. In response, defendant argued the
bare allegations of the petition were sufficient to establish a prima facie case
of eligibility for relief under section 1170.95 so as to require the trial court to
issue an order to show cause.
Defendant filed a Marsden motion seeking new counsel on November
26, 2019. (People v. Marsden (1970) 2 Cal.3d 118.) On July 16, 2020, he
withdrew his Marsden motion and instead brought a Faretta motion to
represent himself. (Faretta v. California (1975) 422 U.S. 806.) His counsel
told the court he had spoken with defendant, that defendant was “quite
versed in the law,” and that he did not object to defendant representing
himself. Defendant told the court he had been studying Senate Bill 1437
extensively and wished to represent himself. After inquiring into whether
defendant understood his waiver of the right to counsel and advising him
against representing himself, the trial court granted the Faretta motion.
The trial court denied defendant’s section 1170.95 petition on July 17,
2020, finding he was not entitled to relief under section 1170.95 because he
was convicted as the actual killer. Defendant filed a timely appeal of this
order, and his counsel subsequently submitted a Wende brief. In light of the
trial court’s findings on the enhancement allegations—specifically its findings
that defendant personally used a knife and personally and intentionally
5
inflicted great bodily injury on the victim in the commission of this murder—
we agree with the subsequent determination that the defendant cannot make
out a prima facie case under section 1170.95, and if we were not dismissing
this appeal as abandoned we would affirm on this ground.
DISPOSITION
The appeal is dismissed as abandoned.
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
CHOU, J.*
People v. Willis (A160625)
Judge of the Superior Court of California, City and County of San
*
Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
6