People v. Wells CA1/1 ( 2023 )

Filed 6/30/23 P. v. Wells CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A166190
v.
JOSEPH WELLS, (Solano County
Super. Ct. No. VCR 164967)
Defendant and Appellant.
In 2005, a jury convicted defendant Joseph Wells of first degree
murder, with an accompanying enhancement under Penal Code1
section 12022.53, subdivision (d) (section 12022.53(d)), for personally and
intentionally discharging a firearm causing the victim’s death. The trial
court sentenced him to 50 years to life in prison, and this division affirmed
the judgment. (Peoplev. Wells (Feb. 14, 2007, A112173) [nonpub. opn.]
(Wells I).)
In 2019, Wells filed a petition for resentencing under former
section 1170.95, now section 1172.6, based on changes to the law of murder
made by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437)
(Stats.2018, ch. 1015). The following year, we affirmed the trial court’s
denial of the petition on the basis that the section 12022.53(d) enhancement
1 All further statutory references are to the Penal Code.
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constituted a finding that he was the actual killer, meaning he was not
entitled to relief as a matter of law. (People v. Wells (May 14, 2020, A158639)
[nonpub. opn.] (Wells II).)
Wells now appeals from a trial court order dismissing his second
petition for resentencing under Senate Bill No. 1437. His appointed
appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th
216, 221–222, which established the procedural framework for appellate
courts to follow when counsel finds no arguable issues in a section 1172.6
appeal. Under that framework, we gave Wells notice that he had a right to
file a supplemental brief or his appeal could be dismissed. (See Delgadillo, at
pp. 231–232.)
Wells filed a letter in which he claims he is entitled to an evidentiary
hearing under section 1172.6, subdivision (d), because the section 12022.53(d)
enhancement does not render him ineligible for relief. But our review of the
jury instructions, which were not before the trial court, reveals that the only
theory of first degree murder on which the jury was instructed was
premeditated murder. These instructions demonstrate that Wells was not
convicted under any theory of imputed malice abolished by Senate Bill
No. 1437. Thus, even assuming Wells is not precluded from challenging our
holding in Wells II, any error in the petition’s dismissal was necessarily
harmless. Accordingly, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND2
“Wells was charged with one count of first degree murder and various
firearm enhancements based on the 2001 killing of Michael Yokoi. [Fn.
2We quote the facts and procedural history involving Wells’s conviction
and direct appeal from Wells II, which in turn drew them from Wells I.
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omitted.] The evidence presented at trial showed that Wells and another
man, Michael Sinay, who were dating the same woman, ‘engaged in an
escalating series of confrontations involving threats, violence, and property
damage, most of which were initiated by [Wells].’ In December 2001, two
days after Sinay and Yokoi, a friend of Sinay’s, smashed the windows of
Wells’s vehicle, Yokoi was shot to death while standing outside Sinay’s
Vallejo home. Based on the testimony of various witnesses, a man dressed in
dark clothing and a beanie shot Yokoi. The man then got into a dark
Mustang with plates from ‘ “Nino’s” dealership’ and drove away. Four hours
before the murder, Wells was recorded on a store security camera wearing ‘a
black beanie, black shirt, and black pants.’ He had bought ‘a blue Mustang
convertible from Nino’s Motors’ a few weeks earlier, and cell phone data
showed that his phone was in Vallejo around the time of the murder.
“The jury convicted Wells of first degree murder and found the firearm
enhancements true, including the enhancement under section 12022.53(d) for
‘personally and intentionally discharg[ing] a firearm and proximately
caus[ing] . . . death.’ The trial court sentenced him to a term of 25 years to
life for the murder and a consecutive term of 25 years to life for the personal
and intentional discharge of a firearm. Wells appealed, and we affirmed the
judgment in 2007.”
In July 2019, Wells filed his first petition for resentencing, averring
that he was convicted of first degree murder on a theory of felony murder and
was eligible for relief because he was not the actual killer and did not aid and
abet the actual killer with an intent to kill. Without appointing counsel, the
trial court summarily denied the petition, concluding that the section
12022.53(d) enhancement established as a matter of law that Wells was the
actual killer and therefore ineligible for relief.
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Wells appealed, initiating Wells II, and his appointed appellate counsel
filed a no-issues brief. Wells filed a supplemental brief arguing that there
was a second shooter who was the actual killer. He attached documents from
a previous habeas corpus proceeding showing that the prosecutor conceded
there was another, unknown shooter, although the prosecutor also took the
position that Wells was the person who shot the fatal bullets. In our opinion,
we stated, “Even if there [was] a theoretical possibility that someone else
killed Yokoi, we are not free to disregard the jury’s finding that Wells
personally and intentionally discharged a firearm causing death, which
constitutes an implicit finding that he was the actual killer.” We concluded
that in turn, he could not demonstrate that he could no longer be convicted of
murder after Senate Bill No. 1437.
In early 2022, Wells submitted the resentencing petition at issue. He
averred that the charging document “allowed the prosecution to proceed
under a theory of felony murder, murder under the natural and probable
consequences doctrine[,] or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime,” and that he
“could not presently be convicted of murder . . . because of changes made [by
Senate Bill No. 1437].” In an accompanying declaration, he stated that he
was not the actual killer, and he reviewed evidence supporting that
conclusion. He also argued that “the [j]ury was allowed to impute [m]alice” in
convicting him of first degree murder.
The trial court appointed an alternate public defender to represent
Wells, but based on a conflict of interest, a private attorney was substituted.
Meanwhile, the prosecution filed a response to the resentencing petition
stating that Wells failed to make a prima facie showing of eligibility for relief
under section 1172.6, based on the trial court’s previous ruling that he was
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the actual killer. An “in-chambers criminal minute order” of a proceeding
that was not reported reflects that on August 11, 2022, both counsel
“stipulate[d] to vacate” the next hearing date, as “[d]efense counsel found
that there was no viable basis for the [section] 1172.6 petition.” The order
also said the petition was dismissed “without prejudice.”
Shortly after dismissing Wells’s resentencing petition, the trial court
received his Faretta3 motion for self-representation based on a claimed
conflict of interest with the private attorney. In an August 17, 2022 memo to
staff, the court directed that a letter be sent to Wells informing him that his
attorney and the prosecutor had “agreed to dismissal of [the] petition,” and
the Faretta motion was therefore moot. The following day, the court entered
an order formally denying that motion as moot and reiterating that it had
“dismissed [Wells’s] petition for resentencing without prejudice.”
II.
DISCUSSION
A. Senate Bill No. 1437 and Section 1172.6
“Effective January 1, 2019, Senate Bill [No.] 1437 amended murder
liability under the felony-murder and natural and probable consequences
theories. The bill redefined malice under section 188 to require that the
principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed
to a person based solely on his or her participation in a crime.’ (§ 188,
subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill
also amended section 189 to provide that a defendant who was not the actual
killer and did not have an intent to kill is not liable for felony murder unless
the defendant “was a major participant in the underlying felony and acted
3 Faretta v. California (1975) 422 U.S. 806.
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with reckless indifference to human life, as described in subdivision (d) of
Section 190.2.” (§ 189, subd. (e).)
Senate Bill No. 1437 also enacted former section 1170.95, now
section 1172.6, which provides a procedure for eligible defendants to petition
for resentencing. Under the current statute, “[a] person convicted of felony
murder or murder under the natural and probable consequences doctrine or
other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and
probable consequences doctrine, or manslaughter may file a petition with the
court that sentenced the petitioner to have the petitioner’s murder,
attempted murder, or manslaughter conviction vacated and to be resentenced
on any remaining counts” as long as three requirements are met: (1) the
charging document allowed the prosecution to proceed under a theory of
felony murder, murder or attempted murder under the natural and probable
consequences doctrine, or other theory of imputed malice; (2) the petitioner
was convicted of murder, attempted murder, or manslaughter; and (3) the
petitioner could not presently be convicted of the crime after Senate Bill
No. 1437’s changes to the law. (§ 1172.6, subd. (a).)
Upon receiving a facially sufficient petition alleging that all three
requirements are met and requesting counsel, the trial court must appoint
counsel, permit the parties to submit briefing, and “hold a hearing to
determine whether the petitioner has made a prima facie case for relief. If
the petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause” and hold an evidentiary
hearing on whether the petitioner is guilty of murder or attempted murder
beyond a reasonable doubt. (§ 1172.6, subds. (b)(3), (c)–(d); People v. Lewis
(2021) 11 Cal.5th 952, 957.) “If the court declines to make an order to show
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cause, it shall provide a statement fully setting forth its reasons for doing so.”
(§ 1172.6, subd. (c).)
B. The Order at Issue Is Appealable Even Though the Dismissal Was
“Without Prejudice.”
Initially, we address whether the order dismissing Wells’s resentencing
petition is appealable. “We raise[] this question on our own motion because a
reviewing court is ‘without jurisdiction to consider an appeal from a
nonappealable order, and has the duty to dismiss such an appeal upon its
own motion.’ ” (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.) We
conclude that even though the trial court purported to dismiss the petition
without prejudice, Wells could appeal from the order.
Generally, an order is not appealable unless made so by statute. (In re
Mario C., supra, 124 Cal.App.4th at p. 1307.) Under section 1237,
subdivision (b), a criminal defendant may appeal “[f]rom any order made
after judgment, affecting the substantial rights of the party.” Arguably, the
order dismissing the resentencing petition did not affect Wells’s substantial
rights because it was “without prejudice” to his filing another petition. (See
People v. Cress (2023) 87 Cal.App.5th 421, 425 [dismissal of section 1172.6
petition without prejudice permitted defendant to refile it].)
A trial court’s “characterization of its own order . . . is not controlling,”
however. (In re Lauren P. (1996) 44 Cal.App.4th 763, 768.) Rather, the
question is whether the ruling was in fact on the merits. (Ibid.; Guenter v.
Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 465.) Counsel for Wells
took the position below that the petition had “no viable basis,” suggesting the
dismissal was not based on a mere procedural deficiency. Indeed, given this
statement, it is unclear that the trial court and parties contemplated that
Wells could simply refile the petition. Moreover, Wells’s Faretta motion
suggests that he did not agree with his counsel’s assessment of the petition’s
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merits. In short, based on this record, we are unable to conclude that the
order dismissing the petition did not affect Wells’s substantial rights.
Accordingly, it was appealable.
C. Wells Is Ineligible for Relief Under Section 1172.6. Because He
Was Convicted of Premeditated Murder.
Wells’s primary claim is that the section 12022.53(d) enhancement does
not establish that he was the actual killer, meaning that he was entitled to
an evidentiary hearing on his eligibility for relief. In Wells II, we held that
the enhancement did amount to a finding that he was the actual killer.
Thus, the law of the case doctrine would normally bar him from raising this
argument. (See People v. Jurado (2006) 38 Cal.4th 72, 94.)
Nonetheless, we elect to address the claim on the merits. In the
original resentencing petition, Wells alleged only that he was convicted of
felony murder, but in the current petition, he also alleges that he was
convicted under the natural and probable consequences doctrine or some
other theory under which malice was imputed to him. At least one court has
held that a section 12022.53(d) enhancement, standing alone, does not
preclude the possibility that a defendant was convicted under the natural and
probable consequences doctrine. (People v. Offley (2020) 48 Cal.App.5th 588,
598–599.) And given the evidence that another person was involved in
Yokoi’s murder, we do not think it is prudent to attempt to resolve Wells’s
claim based solely on the jury’s verdict.
Rather, to provide certainty, we have consulted the jury instructions
from Wells’s trial, which were not part of the record before the trial court
when it decided either resentencing petition.4 The only theory of first degree
4 On our own motion, we take judicial notice of the appellate record in
Wells I, which includes the jury instructions given at trial. (See Evid. Code,
§ 452, subd. (d).)
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murder on which the jury was instructed was willful, deliberate, and
premeditated murder under CALJIC 8.20. The jury was also instructed
under CALJIC 8.30 that murder with malice aforethought is second degree
murder if there is insufficient evidence of deliberation and premeditation. No
instructions on felony murder, aiding and abetting liability based on the
natural and probable consequences doctrine, or any other theory of vicarious
liability were given.
Thus, even if the jury’s finding on the section 12022.53(d) enhancement
alone did not preclude relief, Wells is nonetheless ineligible for resentencing
as a matter of law because he was not “convicted of felony murder or murder
under the natural and probable consequences doctrine or other theory under
which malice is imputed to a person based solely on that person’s
participation in a crime.” (§ 1172.6, subd. (a), italics added.) Although Wells
states that he is innocent, section 1172.6 does not provide a mechanism for
relitigating what the jury already found beyond a reasonable doubt—that he
committed premeditated murder. (See People v. Clayton (2021)
66 Cal.App.5th 145, 157 [noting other procedures for raising claim of factual
innocence and concluding the Legislature intended “to honor prior jury
findings” in former section 1170.95 proceedings].)
Because Wells is categorically ineligible for relief under section 1172.6,
any error in the trial court’s disposition of his resentencing petition was
necessarily harmless. (See, e.g., People v. Lewis, supra, 11 Cal.5th at
pp. 957–958 [assessing prejudice from failure to appoint counsel under
former section 1170.95].) As a result, we reject Wells’s remaining claims,
including that the private attorney had a conflict of interest. For the same
reason, having exercised our discretion to independently review the record,
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we do not perceive any arguable issues. (See People v. Delgadillo, supra,
14 Cal.5th at p. 232.)
III.
DISPOSITION
The August 11, 2022 order dismissing Wells’s petition for resentencing
is affirmed.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Banke, J.
People v. Wells A166190
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