People v. Bills CA2/4 ( 2024 )

Filed 2/28/24 P. v. Bills CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B325047
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A790003)
v.
WALLACE ARTHUR BILLS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Laura F. Priver, Judge. Affirmed.
Marta I. Stanton, 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, Zee Rodriguez and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
Wallace Bills appeals from the trial court’s summary denial
of his second petition for resentencing under Penal Code section
1172.6.1 We affirm. By returning a true finding on the pre-1990
felony-murder special circumstance allegation, the jury
necessarily found that appellant was either the actual killer or
aided and abetted the actual killer with the intent to kill. He is
therefore ineligible for relief under section 1172.6 as a matter of
law.
BACKRGOUND
I. Conviction
Appellant and a codefendant were charged with the murder
(§ 187, subd. (a)), residential burglary (§ 459), and robbery (§ 211)
of victim Irene Katherine Davis. The amended information
further alleged a felony-murder special circumstance (§ 190.2,
subd. (a)(17)),2 that both appellant and codefendant personally
used a knife in the commission of all three offenses
(§ 12022, subd. (b)), and that both appellant and codefendant
personally used a knife to inflict great bodily injury on Davis
during the robbery and burglary. (§ 12022.7.)
Appellant and codefendant were tried jointly. The jury was
instructed on February 14, 1989. The instructions informed the
jury that to find the special circumstance allegation true, it had
to find beyond a reasonable doubt that appellant “intended to kill
or intended to aid in the killing of the victim.” The jury found
appellant guilty as charged and found the special circumstance
allegation true. Appellant was sentenced to life without the
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 The felony-murder special circumstance allegation
identified both the robbery and burglary as underlying felonies.
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possibility of parole on June 2, 1989.3 A different panel of this
court affirmed his conviction in a partially published opinion filed
September 27, 1995. (People v. Bills (1995) 38 Cal.App.4th 953(Bills I).)
II. First Petition for Resentencing
On March 4, 2019, appellant filed a petition for
resentencing under former section 1170.95.4 The trial court
appointed counsel for appellant and received briefing before
denying the petition on the ground that appellant was ineligible
for relief as the actual killer. Notably, the court relied on facts
recited in Bills I to reach its conclusion.
Appellant timely appealed the ruling. His appointed
appellate counsel filed a brief raising no issues and requesting
independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende). Appellant did not file a
supplemental brief after being timely advised of his right to do so.
A different panel of this court concluded that Wende procedures
were inapplicable to appeals from denials of resentencing under
section 1172.6. (People v. Bills (Aug. 25, 2020, No. B301800)
[nonpub. opn.] (Bills II).) Bills II therefore dismissed the appeal
as abandoned, since neither counsel nor appellant raised any
issues. The Supreme Court later approved this approach in
People v. Delgadillo (2022) 14 Cal.5th 216, 231-232.
3 We previously granted respondent’s request for judicial
notice of the minute order documenting appellant’s sentencing.
4 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)
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III. Second Petition for Resentencing
On June 2, 2022, appellant filed a second petition for
resentencing under section 1172.6, the petition currently at issue.
He requested appointment of counsel.
On July 8, 2022, the trial court denied the petition in a
written ruling, without appointing counsel. In its ruling, the trial
court summarized its previous ruling: “In summarily denying the
original conviction [sic], this court acknowledged that felony
murder jury instructions were given. However, it found from a
review of the information filed by the Petitioner, a summary of
the facts provided by the People and confirmed by the original
Court of Appeal Opinion upholding the conviction and other
documents available to the court, that the Petitioner did not
qualify for relief under this law. Penal Code § 189(e) as amended
did not change the law as to those individuals who are the actual
killer. Therefore, the court denied the petition.”
The trial court then turned to the instant petition, which it
observed used “the current form revised subsequent to the
amendments made to Penal Code section 1170.95 effective
January 1, 2022.” The court concluded there was “nothing in the
amended code section which allows an individual who has
previously filed a 1170.95 petition and had that request denied,
to again seek relief.” It noted that appellant’s previous petition
had been “ruled on, appealed and the appeal dismissed.” It
continued, “There is nothing in the new law which provides a
Petitioner with a second opportunity to be heard or as we say, ‘a
second bite at the apple.’ The facts have not changed, the
Petitioner was the actual killer and, therefore, ineligible for
resentencing. There is nothing to be gained by either the
Petitioner or the court by fruitlessly going through this exchange
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again under these circumstances.” The court accordingly denied
the petition.
Appellant timely appealed. Appellant’s appointed counsel
filed a request to settle the record by directing the trial court “to
state what documents she reviewed in support of her ruling” and
augment the record with those documents. After we granted the
request, the trial court filed a statement indicating that, to the
best of its recollection, it reviewed the following documents in
making its ruling: “1. The petitions filed by the Petitioner dated
4/4/19 [sic] and 6/22/22. 2. Minute orders dated 2/9/89 and
2/14/89. . . . 3. 5 pages of the register of action listing dates from
11/16/86-1/16/96. . . . 4. The original information. 5. The
amended information. 6. The response by the People filed
9/19/2019 and the exhibits attached thereto including the original
appellate court opinion . . . . 7. The appellate court opinion listed
in #6 above.”
DISCUSSION
Appellant contends his second petition is not successive
because it “rests on an intervening change in the law, which now
limits the use of prior appellate opinions to the procedural history
of the case, not the factual summary.” He further argues that he
should have received an evidentiary hearing because the petition
is facially sufficient and nothing in the record conclusively refutes
its allegations. Respondent Attorney General responds that the
petition should be procedurally barred as successive. Respondent
also argues that the petition fails on the merits because the jury’s
true finding on the special circumstance allegation establishes
that appellant was either the actual killer or an aider and abettor
who acted with the intent to kill. We need not decide whether
the petition was successive, because we agree with respondent’s
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latter contention: the jury’s pre-1990 finding on the special
circumstances allegation renders appellant ineligible for relief as
a matter of law.
I. Legal Principles
Senate Bill No. 1437 was enacted 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.” (Stats. 2018, ch. 1015, § 1.) Senate Bill No. 775 modified
the law, now codified at section 1172.6, to “expand the
authorization to allow a person who was convicted of murder
under any theory under which malice is imputed to a person
based solely on that person’s participation in a crime . . . to apply
to have their sentence vacated and be resentenced.” (Stats. 2021,
ch. 551, § 1.)
If a petitioner seeking relief under section 1172.6 makes a
prima facie showing that he or she is entitled to relief, the trial
court is required to issue an order to show cause for an
evidentiary hearing. (People v. Hurtado (2023) 89 Cal.App.5th
887, 891, citing § 1172.6, subd. (c).) In assessing eligibility at the
prima facie stage, the court “‘“takes petitioner’s factual
allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved.”’” (People v. Lewis (2021)
11 Cal.5th 952, 971 (Lewis). If the petition is facially sufficient
and the petitioner has requested counsel, the court must appoint
counsel for him or her, obtain briefing, and determine if the
petitioner has made a prima facie case for relief. (Id. at p. 963;
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§ 1172.6, subds. (b)(3), (c).) “If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall
issue an order to show cause. If the court declines to make an
order to show cause, it shall provide a statement fully setting
forth its reasons for doing so.” (§ 1172.6, subd. (c).) The court
may not engage in factfinding involving the weighing of evidence
or exercise of discretion at this stage, though it may make
credibility determinations adverse to the petitioner if the record
contains facts refuting the allegations of the petition. The court
properly denies the petition if the petitioner is ineligible for relief
as a matter of law. (See id. at pp. 970–972.)
Where a trial court denies a section 1172.6 petition based
on the failure to make a prima facie case for relief, our review is
de novo. (People v. Lopez (2022) 78 Cal.App.5th 1, 14.) If the
record of conviction conclusively shows that the petitioner is
ineligible notwithstanding the trial court’s failure to appoint
counsel or issue an order to show cause, the error is harmless
because the petitioner cannot show a reasonable probability that
the result would have been different absent the error. (See
Lewis, supra, 11 Cal.5th at p. 974 [applying harmless error test
from People v. Watson (1956) 46 Cal.2d 818, 836].) We may
affirm a ruling that is legally correct on any ground. (People v.
Cortes (2022) 75 Cal.App.5th 198, 204.)
II. Analysis
The Supreme Court has held that a specific jury finding
that a defendant had the intent to kill “is generally preclusive in
section 1172.6 proceedings, i.e., it ‘ordinarily establish[es] a
defendant’s ineligibility for resentencing under Senate Bill [No.]
1437 and thus preclude[s] the defendant from making a prima
facie case for relief.’” (People v. Curiel (2023) 15 Cal.5th 433,
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453–454 (Curiel), quoting People v. Strong (2022) 13 Cal.5th 698,
710 (Strong).) Indeed, the Supreme Court observed that “it is
difficult to foresee a situation in which a relevant jury finding,
embodied in a final criminal judgment, would not meet the
traditional elements of issue preclusion.” (Id. at p. 454.)
The jury made such a finding here. The jury found true the
special circumstance allegation that the murder was committed
during the course of the robbery and/or burglary of Davis. At the
time of appellant’s trial in 1989,5 this finding came with the
requirement that “when the defendant is an aider and abettor
rather than the actual killer, intent must be proved.” (People v.
Anderson (1987) 43 Cal.3d 1104, 1147.) Thus, to find the
allegation true, the jury either had to find that appellant was the
actual killer or that he aided and abetted the codefendant with
the intent to kill. Under either scenario, appellant is ineligible
for relief under section 1172.6. (See § 189, subds. (e)(1), (e)(2);
Strong, supra, 13 Cal.5th at p. 708 [“Penal Code section 189, as
amended, now limits liability under a felony-murder theory
principally to ‘actual killer[s]’ [citation] and those who, ‘with the
intent to kill,’ aid or abet ‘the actual killer in the commission of
murder in the first degree.’”].)
The record of conviction—namely, a discussion of the case’s
procedural history in Bills I—establishes that appellant’s jury
received an instruction that precludes relief here. (See § 1172.6,
5 Proposition 115, enacted by voters in 1990, amended
section 190.2 to apply the felony-murder rule to an aider and
abettor who was not the actual killer “with no required finding
that [the] defendant had an intent to kill.” (People v. Hoyos
(2007) 41 Cal.4th 872, 890, abrogated on other grounds by People
v. McKinnon (2011) 52 Cal.4th 610; see also Strong, supra, 13
Cal.5th at pp. 704-705.)
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subd. (d)(3) [“The court may also consider the procedural history
of the case recited in any prior appellate opinion.”].) Specifically,
“[t]he trial court instructed the jury that in order to find special
circumstances against either defendant as an aider and abettor of
the underlying burglary or robbery, the jury must find beyond a
reasonable doubt ‘that he intended to kill or intended to aid in
the killing’ of the victim.” Appellant and his codefendant both
argued on direct appeal that the instructions as given to the jury
were “confusing or misleading and failed to convey to the jury the
requirements of Carlos v. Superior Court (1983) 35 Cal.3d 131and People v. Anderson[, supra,] 43 Cal.3d [at p.] 1147, that
intent to kill must be found.” Bills I rejected this argument,
holding that no reasonable jury would interpret the instruction to
“find special circumstances without determining intent to kill,
upon merely finding that the defendant intended to aid and abet
the underlying burglary or robbery.”
We presume the jury understood and followed the
instructions given. (People v. Sanchez (2001) 26 Cal.4th 834, 852
[“Jurors are presumed able to understand and correlate
instructions and are further presumed to have followed the
court’s instructions”].) Thus, even if appellant was not the actual
killer, by finding the special circumstance true, the jury
necessarily found that he acted with the intent to kill. This jury
finding on the issue of appellant’s intent has preclusive effect and
bars relief under section 1172.6 in this case, notwithstanding the
facially sufficient nature of appellant’s petition or any error in
the trial court’s reasoning.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, P. J.
ZUKIN, J.
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