People v. Williams CA2/1 ( 2023 )

Filed 7/19/23 P. v. Williams CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
THE PEOPLE, B308247
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA206529)
v.
DAMIAN MONROE WILLIAMS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Curtis B. Rappe, Judge. Reversed.
Law Offices of Tarik S. Adlai and Tarik S. Adlai for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews, Daniel Chang, David A.
Voet and Amanda V. Lopez, Deputy Attorneys General, for
Plaintiff and Respondent.
____________________________
In 2003, upon being instructed on imputed malice, among
other theories, a jury found petitioner Damian Monroe Williams
guilty of second degree murder. The same jury also convicted
Williams’s codefendant, Tyrone Killingsworth, of murder and
found Killingsworth personally discharged a firearm causing
death to another person. Williams filed a resentencing petition
pursuant to Penal Code section 1170.95 (later renumbered as
section 1172.6), which 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.”1 (Stats. 2018, ch. 1015, § 1, subd. (f).) “Section
1172.6 offers resentencing for petitioners who have not been
determined beyond a reasonable doubt to have the degree of
culpability now required for a murder, attempted murder, or
manslaughter conviction.” (People v. Strong (2022) 13 Cal.5th
698, 720 (Strong).) After a resentencing hearing at which
Williams testified, the resentencing court denied Williams’s
petition.
We conclude the resentencing court erred in relying on our
recitation of facts on Williams’s direct appeal to establish the
facts for deciding William’s petition for resentencing. Section
1172.6, subdivision (d)(3) required the court independently, and
1 Petitioner brought his petition under former
section 1170.95, which was amended effective January 1, 2022,
and then renumbered as section 1172.6 without substantive
change on June 30, 2022. (See Stats. 2022, ch. 58, § 10 (Assem.
Bill No. 200).) We refer to the statute by its current number.
Further statutory references are to the Penal Code unless
otherwise stated.
2
based on admissible evidence, to determine whether petitioner
was guilty beyond a reasonable doubt of murder as defined in the
amended sections 188 and 189. The resentencing court’s failure
to act as an independent fact finder was thus error.
Because the error prejudiced Williams, we reverse the
order denying Williams’s petition. We remand for the
resentencing court to hold a new section 1172.6, subdivision (d)(3)
hearing at which both parties may present evidence. The
resentencing court must act as an independent fact finder to
determine whether Williams is guilty of murder under a
currently valid theory of murder.
BACKGROUND
Relying on the factual summary from this court’s opinion
on direct appeal, the resentencing court summarized the evidence
at trial as follows: “[I]n 2000 [Grover] Tinner, [the murder
victim] operated two houses in which crack cocaine was sold, the
one on Gage Street and the other o[n] Brighton Street in
Los Angeles. Tinner was known to have a ‘nasty disposition,’
particularly involving money, and had said that he would kill
anyone who disrespected him. The Brighton Street house was in
territory controlled by the Eight Trey Gangster Crips street gang,
to which Williams belonged. Killingsworth was a former member
of the Shotgun Crips. (Killingsworth claimed he had not been a
member for the past 16 years), a gang which was friendly with
the Eight Trey Gangsters. Tinner, who lived in Eight Trey
Gangster territory, had previously been associated with the
74 Hoovers gang but was no longer ‘gangbanging’ at the time he
was murdered. The Gage Street house was on the border of
territory claimed by the Eight Trey Gangsters and a rival gang.
Williams and Killingsworth had been at the Brighton Street
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crack house at various times. Once while Killingsworth was
there, he said that he was tired of the crack addicts at the house,
that Tinner ‘ain’t running nothing here,’ and Killingsworth would
be glad when Williams ‘come up.’
“Close to midnight on July 17, 2000, Williams and
Killingsworth arrived at the Gage Street house. They were let in
by Jeffrey Brooks, who was the ‘doorman’ that night. Several
people were inside, including Milton Lewis, who was sitting at a
table in the dining room from which drugs were being dispensed.
Cash and a .22-caliber revolver were also on the table. Tinner
was not there. While Killingsworth stayed by the front door,
Williams approached Lewis and asked who was running the
house. Lewis said that he was. Williams then picked up the
revolver (the act that provided the basis of the grand theft
conviction) and loudly identified himself by his gang moniker,
Football. Williams repeatedly said that he was from Eight Trey,
that he and Killing[s]worth were not there to rob or hurt anyone,
but that they were ‘going to shut this motherfucker down,’ and
that he ‘do[es] it like Al Capone.’ Williams tossed the gun to
Killingsworth who remained near the front door. Someone from
the house went to get Tinner, telling him that the Gage Street
house was being robbed.
“Williams next went to one of the bedrooms of the house
and ordered the people inside to come out and get on the floor.
Williams returned to the dining room, told Lewis he knew there
was another gun in the house and said, ‘You’re already dead, give
me the gun.’ When Lewis did not comply, Williams touched his
waist area and said, ‘You might not see my gun but my gun is
closer than what you think.’ Lewis then gave Williams a
.44-caliber revolver that was in a nearby shoe box. Williams
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handed the gun to Killingsworth and told him to return to the
area of the front door, adding, ‘You know what to do, T. Don’t let
me down.’ Williams also told Lewis that if Tinner did not arrive
in 20 minutes, Lewis would ‘be the first motherfucker to get it in
the head.’
“While waiting for Tinner to arrive, Williams put a $20 bill
on the table where Lewis was sitting and took some cocaine off
the table. Williams asked if the people in the house wanted any
and provided cocaine to those who asked for it. In addition,
during that time, Williams threatened to shoot two of the women
at the house, one because she was moving around too much and
the other when she reacted to the threat. At some point Williams
took out a big rock of cocaine from his sock and told the people at
the house that he knew their faces ‘and if I catch you all buying
from over here you know what’s going to happen.’ (The
prosecution presented evidence that during this time defendants
committed robberies of people at the house. Defendants were
acquitted of these charges.)
“Tinner eventually arrived at the house. As he [Tinner]
approached, Killingsworth, from his [Killingsworth’s] vantage
point by the front door, [Killingsworth] said to Williams, ‘Get
ready, man. Here come the boy.’ Williams again told
Killingsworth, ‘Don’t let me down,’ and, ‘You know what to do.’
Tinner knocked on the front door, which Killingsworth opened.
Tinner walked in holding a .45-caliber handgun and angrily
asked what was going on. Killingsworth remained standing
behind the open door. Williams identified himself as ‘Football’
and said he was not there to rob Tinner but wanted to talk to
him.
5
“Meanwhile, Tinner’s nephew, Don Toombs, had entered
the house through another door. Toombs grabbed Williams’s
head. Williams yelled, ‘T.,’ and Killingsworth stepped out from
behind the door. Tinner pointed his gun at Killingsworth and the
two struggled for each other’s gun. During the struggle,
Killing[s]worth’s gun discharged, hitting Tinner in the leg.
Tinner ran out the front door and away from the house. Muriel
Coleman, who was approaching the house to buy cocaine, saw a
man running from the house and saw three shots being fired.
One of the shots hit Tinner in the back. After running a short
distance to an alleyway, Tinner collapsed and died. Williams
managed to get away from Toombs and fled.
“Tinner sustained two gunshot wounds, one to his right
thigh and a fatal ‘through-and-through’ wound that entered his
upper back, passed through his heart and other vital organs, and
exited his body through the abdomen on a downward trajectory.
Police found a .22-caliber revolver and a .44-caliber revolver near
the scene of the murder. The .22-caliber revolver was loaded and
had no expended casings. The .44-caliber revolver had four
expended casings and two live rounds. The wound to Tinner’s
thigh had been from a .44-caliber weapon.”
1. Information
In an amended information filed February 7, 2003, the
People charged Williams and codefendant Killingsworth with
murdering Tinner (count one). The People also alleged a gang
enhancement. Among other firearm enhancements, the People
alleged that codefendant Killingsworth personally and
intentionally discharged a firearm which caused great bodily
injury and death. With respect to Williams, the People alleged,
among other firearm enhancements, that a principal personally
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and intentionally discharged a firearm causing great bodily
injury and death.
The People alleged the murder occurred while Williams and
Killingsworth were engaged in the commission of a burglary and
robbery and by means of lying in wait. The People also alleged
Williams suffered a 1993 felony conviction for mayhem (§ 203).
In count two, the People alleged the robbery of money from
Kenneth Hammond. In count three, the People alleged the
robbery of money from Steve Finley. In count four, the People
alleged the robbery of a handgun from Milton Lewis. Count five
also alleged the robbery of a handgun from Milton Lewis. In
count six, the People alleged the burglary of a commercial
building occupied by Jeffrey Brooks and Milton Lewis with the
intent to commit larceny or any other felony.
2. Jury findings
In 2003, a jury found Williams and Killingsworth guilty of
second degree murder, having failed to find him guilty of the first
degree murder charge. The jury found true the allegation that
“Grover Tinner was intentionally killed for the benefit of, at the
direction of, or in association with a criminal street gang with the
specific intent to promote, further or assist criminal conduct of
gang members, pursuant to Penal Code section 186.22(B)(1) . . . .”
The jury also found true that Williams committed grand theft of a
.22-caliber handgun from Milton Lewis and found true the gang
enhancement with respect to that offense. The jury found
not true the robberies alleged in counts two and three (money
from persons inside the crackhouse) and not true the allegation
that a principal in the second degree murder personally and
intentionally discharged a firearm causing great bodily injury of
Tinner. The jury also found not true other firearm allegations.
7
The trial court declared a mistrial on counts 5 (robbery of a gun
from Lewis) and 6 (burglary).
3. Prior appellate opinion (People v. Killingsworth
et al. (Oct. 31, 2005, B171869) [nonpub. opn.]
(Killingsworth))
Our opinion on direct appeal states, “Tyrone Killingsworth
and Damian Williams appeal from the judgments entered
following a joint jury trial in which each was convicted of second
degree murder and grand theft of a firearm, with further findings
that the crimes were committed for the benefit of a criminal
street gang and Killingsworth personally discharged a firearm
that proximately caused death to another person. In bifurcated
bench proceedings, defendants were also found to have suffered
prior felony convictions.” (Killingsworth, supra, B171869.)
The opinion further states, “The prosecutor argued that
Williams and Killingsworth planned to kill Tinner when Tinner
entered the house and that Killingsworth fired three shots from
outside the front door, one of which inflicted the fatal wound.
Defendants argued self-defense and that the prosecution had
failed to prove who shot Tinner.” (Killingsworth, supra,
B171869.)
Presuming the existence of every fact in the light most
favorable to the judgment (Killingsworth, supra, B171869), we
rejected William’s argument that insubstantial evidence
supported that “Killingsworth killed Tinner with either express
or implied malice.” (Ibid.) We also held sufficient evidence
supported Williams “aided and abetted a second degree murder
that was committed with both express and implied malice.”
(Ibid.)
8
We affirmed both defendants’ judgments of conviction but
concluded the trial court had improperly added a 10-year term for
the gang enhancement. (Killingsworth, supra, B171869.)
4. Williams’s petition for resentencing
On February 15, 2019, Williams filed a petition for
resentencing. In opposition, the People primarily argued that
Williams was guilty of murdering Tinner because he acted as a
major participant with reckless indifference to human life.2 The
People also argued the same evidence supporting that Williams
had reckless indifference to human life showed he harbored
intent to kill. In reply, Williams asserted he had no intent to kill
and was not a major participant in an underlying felony who
acted with reckless indifference to human life.
The resentencing court issued an order to show cause and
held an evidentiary hearing. Although Williams did not testify at
trial, he did testify at the order to show cause hearing. No one
else testified.
Williams testified he went to the Gage Street house not to
hurt or rob anyone, but only to conduct business with Tinner.
When he saw a .22-caliber gun lying on a table, he picked it up
and handed it to Killingsworth. Williams then saw Lewis reach
for a .44 Magnum, which Lewis gave to Williams and Williams
handed to Killingsworth. Williams denied telling Killingsworth
2 At the resentencing hearing, the prosecutor did not
identify the underlying felony in which Williams was a major
participant. Under current law, however, unless the victim is a
peace officer, to be convicted of felony murder a person must,
inter alia, be a major participant in an underlying felony. (§ 189,
subd. (e)(3).)
9
as he handed him the second gun, “ ‘ Okay, you know what to
do.’ ” Williams testified he expected Killingsworth to “[h]old the
gun until we leave.”
Williams further testified he was not carrying a weapon
and had nothing to do with the shooting. “We wasn’t there to
hurt nobody. It all just went bad so fast. We didn’t expect none
of this type of stuff to take place . . . . [¶] . . . [¶] I didn’t go there
to take over his business. I only went there to try to do business
with this man, to sell some product that I had . . . .”
According to Williams, when Tinner entered the house, Don
Toombs put a gun to Williams’s head and Williams “tuss[led]”
with Toombs. Williams could not see if anyone was shot.
Killingsworth told Toombs to “ ‘let my homie go.’ ” Toombs let go
and Williams took the gun from him and left through the front
door in an opposite direction from Killingsworth. The next day
Williams turned himself in because he “didn’t do nothing. I had
no reason to lie.”
During cross-examination Williams testified that after the
shooting, he told Toombs, “ ‘I didn’t kill nobody.’ ” Williams
further testified on cross-examination that he did not know who
killed Tinner and “didn’t even know what happened.”
5. The resentencing court denied Williams’s
resentencing petition
After the parties’ presentations, the resentencing court
stated, “[T]his isn’t a retrial. It’s not a motion for new trial where
I am the finder of fact.” Rather, the court stated because the
appellate opinion had found sufficient evidence to support
implied or express malice, it would deny Williams’s petition.
In a written order, the resentencing court quoted the facts
set forth above from our opinion on direct appeal and stated the
10
appellate court found evidence sufficient to support Williams’s
conviction as a direct aider and abettor. The court concluded
Williams could have acted with express malice because our
opinion on direct appeal established that sufficient evidence
supported such a theory.
Although the resentencing court did not identify the
underlying felony, the court also concluded Williams could be
convicted of felony murder because he was a major participant in
an underlying felony and acted with reckless indifference to
human life. The court found Williams had planned the entire
criminal enterprise to “shut down Tinner’s crack house . . . and
eliminate Tinner as a competitor.”
DISCUSSION
We conclude the resentencing court misapplied section
1172.6 by not acting as an independent fact finder, but instead,
relying on facts recited in our opinion on direct appeal. We also
conclude this error was prejudicial. Accordingly, we remand for a
new hearing under section 1172.6, subdivision (d)(3).
A. Section 1172.6 Narrowed the Felony-Murder Theory,
Rejected Imputed Malice for Murder, and
Established Procedures for Eligibility for
Resentencing Under These Substantive Changes
“In Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate
Bill 1437), the Legislature significantly narrowed the scope of the
felony-murder rule. It also created a path to relief for defendants
who had previously been convicted of murder on a felony-murder
theory but who could not have been convicted under the new law.
Resentencing is available under the new law if the defendant
neither killed nor intended to kill and was not ‘a major
11
participant in the underlying felony [who] acted with reckless
indifference to human life, as described in subdivision (d) of
[Penal Code] Section 190.2.’ [Citations.]” (Strong, supra,
13 Cal.5th at p. 703.) The Legislature also eliminated murder
liability based on the natural and probable consequences
doctrine. (Id. at p. 707, fn. 1.)
“Section 189, as amended, now provides that in cases where
a death occurs during the perpetration or attempted perpetration
of a felony listed in section 189, subdivision (a), a person is liable
for murder only if the person was the actual killer, the person
acted with intent to kill in aiding, assisting, or soliciting the
killer, or if the person ‘was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.’ (§ 189, subd. (e)(3).)
Our Supreme Court has recognized, however, that
‘notwithstanding Senate Bill 1437’s elimination of natural and
probable consequences liability for second degree murder, an
aider and abettor who does not expressly intend to aid a killing
can still be convicted of second degree murder if the person knows
that his or her conduct endangers the life of another and acts
with conscious disregard for life.’ [Citation.]” (People v. Schell
(2022) 84 Cal.App.5th 437, 442 (Schell), quoting People v. Gentile
(2020) 10 Cal.5th 830, 850.) Thus, second degree murder based
on implied malice is still a valid theory of murder. (Schell, supra,
at p. 444.)
Section 1172.6 resentencing procedures are designed to
allow petitioners to “seek [ ] prospective relief from a murder
conviction that was presumptively valid at the time.” (Strong,
supra, 13 Cal.5th at p. 713.) If a petition states a prima facie
case for resentencing, the resentencing court must issue an order
12
to show cause, and “must hold a hearing ‘to determine whether to
vacate the murder conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not . . . previously been
sentenced, provided that the new sentence, if any, is not greater
than the initial sentence.’ [Citation.]” (People v. Lewis (2021)
11 Cal.5th 952, 960 (Lewis); § 1172.6, subd. (d)(1).)
At the hearing stage, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, . . . . that the
petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).)
At the evidentiary hearing, the resentencing court sits as an
independent fact finder (People v. Vargas (2022) 84 Cal.App.5th
943, 951) and may consider new theories not presented at trial
(Schell, supra, 84 Cal.App.5th at pp. 444–445). Either party may
present new evidence. (§ 1172.6, subd. (d)(3).) The resentencing
court may consider the procedural history outlined in an
underlying appellate opinion, but not its factual recitation.
(Ibid.) If a petitioner could be convicted of murder under current
law, the petitioner is not entitled to resentencing. (People v.
Guillory (2022) 82 Cal.App.5th 326, 333.)
B. The Resentencing Court’s Failure To Evaluate the
Evidence Independently Prejudiced Williams
In concluding that Williams could still be convicted of
second degree murder if he harbored malice aforethought, the
resentencing court relied on facts recited in our opinion on
Williams’s direct appeal. As respondent acknowledges, this was
error. (People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9
(Cooper) [“Senate Bill 775 prevents a trial court from relying on
facts recited in an appellate opinion to rule on a petition under
section 1170.95”].) Under section 1172.6, the resentencing court
13
must act as an independent fact finder “to determine beyond a
reasonable doubt whether [a] defendant is guilty of murder under
a valid theory of murder.” (People v. Garrison (2021)
73 Cal.App.5th 735, 745 (Garrison), italics added; see also People
v. Guiffreda (2023) 87 Cal.App.5th 112, 123 [“Senate Bill No. 775
clarified that the trial court’s role in a section 1172.6 proceeding
is to act as an independent fact finder and determine, in the first
instance, whether the petitioner committed murder under the
law as amended by Senate Bill No. 1437.”].)
The error in applying the incorrect standard to evaluate the
evidence is not structural (Garrison, supra, 73 Cal.App.5th at
pp. 746–747), but it was prejudicial here under either Chapman
v. California (1967) 386 U.S. 18, 24 or People v. Watson (1956)
46 Cal.2d 818, 836. First, an independent trier of fact could find
Williams credible, and based on his testimony at the hearing,
conclude Williams did not harbor malice aforethought in Tinner’s
killing. Indeed, the resentencing court recognized that Williams’s
testimony “creates an issue of fact if there were a retrial” but did
not consider the factual issue because the court concluded
resentencing hearing was not a “retrial.”
Second, an independent trier of fact at the hearing may
view the trial transcript in a manner more favorable to Williams
than we did on direct review because our review was only for
substantial evidence. Our standard of review also required us to
take all inferences in favor of the judgment and not to engage in
credibility determinations or reweigh evidence. In contrast, the
resentencing court must independently find facts. For example,
Williams claims the trial transcript supports the theory that he
and Killingsworth were friendly with Tinner and “did not go to
Tinner’s crackhouse intending assault, let alone [to] kill, Tinner
14
or commit any other crime.” According to Williams’s testimony,
his goal was only to do business with Tinner.
Third, the resentencing court misconstrued Killingsworth,
which considered Killingsworth’s, but not Williams’s, mental
state. (Killingsworth, supra, B171869.) The resentencing court
thus prejudicially erred in relying on our appellate decision to
conclude Williams acted with implied or express malice.
Respondent argues that like in Garrison, supra,
73 Cal.App.5th 735, 745, the failure here to act as an
independent fact finder was not prejudicial. In Garrison, the
petitioner admitted to personally using a handgun in the course
of a murder, which we concluded was “tantamount to admitting
that he was the actual killer.” (Ibid.) Here, there was no similar
admission. Finally, respondent’s citation to cases finding
substantial evidence supporting second degree murder suffers
from the same shortcoming as our factual recitation on direct
appeal because in applying the substantial evidence standard of
review, appellate courts view evidence in the light most favorable
to the verdict.
C. On Remand, the Parties May Present Additional
Evidence at the New Order To Show Cause Hearing
We reject Williams’s argument that the People may not
present any new evidence on remand. At the time of the
resentencing hearing, the law was unsettled. Subsequent to
Williams’s resentencing hearing, Courts of Appeal disagreed as to
the appropriate standard in an order to show cause hearing. (See
Garrison, supra, 73 Cal.App.5th at p. 745 [explaining that prior
to the Supreme Court vacating People v. Duke (2021)
286 Cal.Rptr.3d 703, there was a disagreement in the law
concerning the resentencing court’s role in evaluating the
15
evidence at a §1172.6, subd. (d)(3) hearing].) The resentencing
court’s reliance on what turned out to be an incorrect standard
does not show that Williams is eligible for resentencing as a
matter of law. We thus remand for a new hearing at which either
party may present new evidence consistent with section 1172.6
subdivision (d)(3). (See Cooper, supra, 77 Cal.App.5th at p. 418
[where the resentencing court erred in the evidentiary hearing on
a petition under former § 1170.95, the appellate court concluded
it was “appropriate to remand the matter for a new hearing on
whether [the petitioner] is entitled to relief”]; see also People v.
Henley (2022) 85 Cal.App.5th 1003, 1021 (Henley).)
The resentencing court’s reliance on our prior opinion also
is not an error that forecloses the People from presenting new
evidence. In advance of the prior resentencing hearing, the
People indicated that the resentencing court should consider “the
appellate record and opinion affirming the judgment” and
Williams agreed, also stating that the resentencing court could
consider “the appellate record and opinion affirming the
judgment . . . .” (Boldface omitted from first quotation.) Neither
the parties nor the court could have anticipated the Legislature’s
subsequent amendment to section 1172.6 allowing consideration
of an appellate opinion only for its recitation of procedural
history.
On remand, the People may seek to prove a currently valid
murder theory. (People v. Hernandez (2021) 60 Cal.App.5th 94,
110.) However, we caution the resentencing court that absent
new relevant evidence, it cannot rely on the opposite of a fact
found by the jury. Cooper, supra, 77 Cal.App.5th 393, which we
find persuasive, holds that a resentencing court, which is a trier
of fact at a section 1172.6, subdivision (d)(3) hearing, cannot deny
16
relief based on a finding “inconsistent with a previous acquittal
when no [relevant] evidence other than that introduced at trial is
presented.” (Cooper, supra, at p. 398; see also Henley, supra,
85 Cal.App.5th at p. 1019 [following Cooper].) We decline to
opine whether the trial transcript and prior section 1172.6,
subdivision (d)(3) hearing transcript would support a currently
valid murder theory because the parties may present new
evidence upon remand. We further observe that the resentencing
court may not increase Williams’s punishment even if arguendo it
finds that new evidence would support a first degree murder
theory. (People v. Mitchell (2022) 81 Cal.App.5th 575, 588
[resentencing petition cannot “hurt a defendant”]; Lewis, supra,
11 Cal.5th at p. 960 [new sentence cannot be greater than initial
sentence].)
17
DISPOSITION
The order denying Damian Monroe Williams’s resentencing
petition is reversed. On remand, the resentencing court shall
hold a new Penal Code section 1172.6, subdivision (d)(3) hearing
consistent with this opinion. Our opinion neither limits the
People’s ability to pursue a currently valid murder theory nor
endorses any such finding by the resentencing court. If the
prosecution meets its burden of proof beyond a reasonable doubt
that Williams is guilty of murder under current law, the
resentencing court must deny Williams’s petition for
resentencing. (People v. Gonzalez (2023) 87 Cal.App.5th 869,
880–881.) If the prosecution does not meet its burden of proof,
the court shall vacate Williams’s murder conviction and
resentence him on his remaining convictions. (Id. at p. 881.)
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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