People v. Wickham CA5

Filed 3/10/23 P. v. Wickham CA5
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080934
Plaintiff and Respondent,
(Super. Ct. No. CF93499723)
v.
ANSEL LEANDER WICKHAM, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Jane Cardoza,
Judge.
Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and
Appellant.
Matthew Rodriquez, Acting Attorney General, Rob Bonta, Attorney General,
Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Eric L. Christoffersen and Christina Hitomi Simpson, Deputy
Attorneys General, for Plaintiff and Respondent.
-ooOoo-
*Before Peña, Acting P. J., Smith, J. and De Santos, J.
INTRODUCTION
In a 1996 court trial, defendant Ansel Leander Wickham was convicted of
multiple offenses committed against multiple victims, including robbery and murder of
one of the victims. The court found true multiple enhancements, including a special
circumstance allegation that the murder was committed during the commission of a
robbery pursuant to Penal Code section 190.2, subdivision (a)(17). (Undesignated
statutory references are to the Penal Code.)
In 2019, defendant petitioned for resentencing under Senate Bill No. 1437 (2017–
2018 Reg. Sess.) (Senate Bill 1437). The court appointed defendant counsel and the
parties submitted briefing. The court initially set the matter for an evidentiary hearing,
but it later granted the People’s motion for reconsideration. The court then concluded the
record of conviction established defendant was ineligible for relief as a matter of law.
Accordingly, the court vacated and set aside its initial prima facie determination, the
order to show cause, and the date for the evidentiary hearing and denied defendant’s
petition for resentencing. On appeal, defendant challenges the court’s denial of his
petition.
We previously affirmed the court’s order in an unpublished opinion, concluding
the record established defendant was ineligible for resentencing as a matter of law based
on the true finding on the special circumstance allegation. Defendant petitioned for
review. The California Supreme Court granted and held the petition and deferred action
pending its consideration and disposition in People v. Strong (2022) 13 Cal.5th 698(Strong). It then transferred the case back to us with directions for our court to vacate our
decision and reconsider the cause in light of Strong.
We now reverse the court’s order and remand the matter for the court to issue an
order to show cause and to hold further proceedings consistent with this opinion.
2.
FACTUAL AND PROCEDURAL HISTORY
In a court trial, defendant was convicted of murder and robbery of one victim
(§§ 187, 211, 212.5, subd. (a); counts 1 & 2), kidnapping and robbery of a second victim
(§§ 209, subd. (b), 211, 212.5, subd. (a); counts 3 & 4), and robbery of a third victim
(§§ 211, 212.5, subd. (b); count 5). The court found true a special circumstance
allegation that the murder was committed during the commission of a robbery pursuant to
section 190.2, subdivision (a)(17); firearm enhancements pursuant to section 12022,
subdivision (a)(1) related to counts 1 and 2; and personal use of a firearm enhancements
pursuant to section 12022.5, subdivision (a) related to counts 3, 4, and 5.
In 2019, defendant filed a petition for resentencing pursuant to section 1172.6.1
He averred a charging document had been filed against him allowing the prosecution to
proceed under a felony-murder theory or the natural and probable consequences doctrine;
at trial, he was convicted of first or second degree murder pursuant to the felony-murder
rule or the natural and probable consequences doctrine; and he could not now be
convicted of murder in light of changes made to sections 188 and 189, effective
January 1, 2019 (pursuant to Sen. Bill 1437). He also stated he was convicted of first
degree murder but could not now be convicted because he was not the actual killer; he
did not, with the intent to kill, aid, abet, counsel, command, induce, solicit, request, or
assist the actual killer in the commission of murder in the first degree; and he was not a
major participant in the felony or did not act with reckless indifference to human life
during the course of the crime or felony. He also requested the appointment of counsel.
In their briefing, the People argued defendant was a major participant who acted
with reckless indifference to human life; thus, he was ineligible for relief as a matter of
1Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at
that time, although prior changes had been implemented effective January 1, 2022. There is no
dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the
statute as section 1172.6.
3.
law. They asserted the appellate court rejected defendant’s challenge to the special
circumstance allegation. They quoted the appellate opinion’s statement that,
“‘[a]ppellant concedes that he was a “major participant” in the robbery of [the murder
victim] but contends that there was insufficient evidence that appellant acted “with
reckless indifference to human life.” (Pen. Code, 190.2, subd. (d).) We disagree.’” They
also argued Senate Bill 1437 was unconstitutional. In supplemental points and
authorities, the People further relied upon the trial judge’s factual findings, made beyond
a reasonable doubt.
In a letter brief to the court, defense counsel asserted “the State alleged a special
circumstance in their information, but the Information contains no allegations that
[defendant] was a major participant or acted with reckless indifference. Had they proved
such an allegation, it would be binding on the court in this proceeding. No such
allegations were made and [the trial judge] did not make such a finding when he rendered
his verdict. He simply stated that he found all the charges were proven beyond any
doubt.”
On December 12, 2019, the trial court held a hearing on defendant’s petition
during which it noted the lack of case law interpreting the language of then section
1170.95. The court acknowledged former section 1170.95 expressly provided that the
record of conviction could be relied upon at the evidentiary hearing.2 However, the court
noted, “[t]here’s no mention of the record of conviction … in determining whether the
petitioner has made a prima facie showing that he falls within the provisions of this code
section.” It concluded, “had the legislature wanted the Court to consider the record of
conviction in determining whether the petitioner had made a prima facie showing, I think
the state legislature would have so stated. It’s absent.” Thus, the court stated it did not
2This language of the statute was subsequently revised by Senate Bill No. 775 (2021–
2022 Reg. Sess.) (Senate Bill 775), which, in part, eliminated the reference to the record of
conviction. (See § 1172.6, subd. (d)(3).)
4.
believe “that for the purposes of a prima facie showing … I can rely on the record of
conviction which would include all those things that we’ve been discussing: the
appellate decision, any specific findings made by [the trial judge], the trial
transcripts ….” As a result, the court concluded defendant’s facially sufficient petition
entitled him to an evidentiary hearing to determine whether he was entitled to relief.
In January 2020, the People moved for reconsideration of the court’s order in light
of developing law in the area. Relying upon two appellate court opinions that issued after
the court’s order, People v. Lewis (2020) 43 Cal.App.5th 1128 and People v. Verdugo
(2020) 44 Cal.App.5th 320, which were subsequently overruled in part on other grounds
in People v. Lewis (2021) 11 Cal.5th 952, the People argued the trial court could and
should consider defendant’s record of conviction, including the appellate opinion, in
evaluating whether or not a prima facie case had been made. They further argued, based
on the record of conviction in this case, the court should reconsider its conclusion
defendant established a prima facie case for relief and vacate its issuance of the order to
show cause.
At the hearing on the motion for reconsideration, defense counsel again argued the
trial judge did not find defendant was a major participant who acted with reckless
indifference to human life. He argued defendant was entitled to an evidentiary hearing
where the People were required to prove he was a major participant who acted with
reckless indifference to human life. The People disagreed, arguing the trial judge
necessarily found defendant was a major participant who acted with reckless indifference
by finding the special circumstance allegation true. They further asserted defendant
conceded he was a major participant in his appeal and the appellate court confirmed there
was ample evidence he acted with reckless indifference to the murder victim’s life.
In ruling on the motion, the court stated:
“These two cases, People v[.] Lewis and People v[.] Verdugo, have
provided trial courts throughout the State of California with much needed
5.
guidance as a matter of first impression on what a trial court can consider in
determining whether a defendant has made a prima facie showing of
eligibility within the scope of … Section 1170.95. Accordingly, this Court
has determined that there has been a change of law that warrants this Court
to reconsider its prior order issuing an order to show cause and its order
concluding that [defendant] had, in fact, shown and had made and
established a prima facie showing of eligibility.
“In light of Lewis and Verdugo, this Court can and shall consider the
defendant’s court file and his record of conviction. Accordingly, this court
vacates and sets aside its finding that the defendant established a prima
facie showing for relief and also vacates the issuance of an order to show
cause for an evidentiary hearing in this case.”
The court then set forth the procedural history of the case. It concluded
defendant’s “contention that he was not a major participant in the underlying felony and
that he did not act with reckless indifference to human life is refuted by the record.” The
court noted it considered defendant’s petition, the court file, and the opinion of the court
of appeal in rendering its decision. The court held, “After reviewing the defendant’s
record of conviction, including [the trial judge’s] findings, and the court of appeal[’]s
unpublished opinion, this Court concludes that the defendant has failed to make a prima
facie showing that he is eligible for resentencing. Thus, he’s not entitled to an
evidentiary hearing on this petition.” Accordingly, the court denied defendant’s petition.
DISCUSSION
I. Senate Bill 1437 and Senate Bill 775
On September 30, 2018, the Governor signed Senate Bill 1437, which became
effective on January 1, 2019. Senate Bill 1437 “amend[s] 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, subd. (f).) It amends section
6.
188, which defines malice, and section 189, which defines the degrees of murder to
address felony-murder liability. (Stats. 2018, ch. 1015, §§ 2–3.)
Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a crime shall act with
malice aforethought. Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, italics added.) The change reflects the Legislature’s
intent that “[a] person’s culpability for murder must be premised upon that person’s own
actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
Additionally, section 189 previously stated, “All murder … which is committed in
the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary,
mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288,
288a, or 289, or any murder which is perpetrated by means of discharging a firearm from
a motor vehicle, intentionally at another person outside of the vehicle with the intent to
inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in
part, by adding subdivision (e), which provides:
“A participant in the perpetration or attempted perpetration of a felony
listed in subdivision (a) in which a death occurs is liable for murder only if
one of the following is proven: [¶] (1) The person was the actual killer.
[¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murder in the first degree.
[¶] (3) 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.”
The legislation also added section 1172.6 (former § 1170.95), which provides a
procedure by which defendants whose cases are final can seek retroactive relief if the
changes in the law would affect their previously sustained convictions. (Stats. 2018, ch.
1015, § 4.) Initially, this section permitted those “convicted of felony murder or murder
under a natural and probable consequences theory [to] file a petition with the court that
7.
sentenced the petitioner to have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts ….” (Stats. 2018, ch. 1015, § 4, subd. (a).)
In Senate Bill 775, effective January 1, 2022, the Legislature amended the
language of section 1172.6 to expand the scope of the petitioning procedure to defendants
convicted of attempted murder or manslaughter under a now prohibited theory. The
legislation also clarified some of the procedural requirements in the statute.
Pursuant to amended section 1172.6, upon receiving a petition, if the petitioner has
requested counsel, the court must appoint counsel to represent the petitioner. (§ 1172.6,
subd. (b)(3).) “After the parties have had an opportunity to submit briefings, the court
shall hold a hearing to determine whether the petitioner has made a prima facie case for
relief.” (§ 1172.6, subd. (c).) If the petitioner has made such a showing that the
petitioner is entitled to relief, the court “shall issue an order to show cause.” (Ibid.) “If
the court declines to make an order to show cause, it shall provide a statement fully
setting forth its reasons for doing so.” (Ibid.)
Within 60 days after the order to show cause has issued, the trial court must then
hold a hearing “to determine whether to vacate the murder, attempted murder, or
manslaughter 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.”
(§ 1172.6, subd. (d)(1).) At the hearing. the burden of proof is on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted
murder under the amended laws. (§ 1172.6, subd. (d)(3).)
The admission of evidence at the evidentiary hearing “shall be governed by the
Evidence Code, except that the court may consider evidence previously admitted at any
prior hearing or trial that is admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court may also consider the
procedural history of the case recited in any prior appellate opinion.” (§ 1172.6, subd.
8.
(d)(3).) The prosecutor and petitioner may also offer new or additional evidence to meet
their respective burdens. (Ibid.) “If the prosecution fails to sustain its burden of proof,
the prior conviction, and any allegations and enhancements attached to the conviction,
shall be vacated and the petitioner shall be resentenced on the remaining charges.” (Ibid.)
II. Analysis
In his initial briefing, defendant argued he submitted a facially sufficient petition,
so the court should have issued an order to show cause and proceeded to an evidentiary
hearing.3 He analogized his case to People v. Drayton (2020) 47 Cal.App.5th 965,
overruled in part by People v. Lewis, supra, 11 Cal.5th 952, to argue the court erred in
denying his petition. He asserted the court improperly relied on the trial judge’s
comments and findings from defendant’s 1996 trial along with his failure on appeal to
dispute that he was a major participant to find him ineligible for relief. He also argued
the court erred by going beyond the four corners of his petition and relying on the true
finding on the felony-murder special circumstance to conclude he was ineligible for
relief. He argued “neither [the court] nor the original trier of fact made the requisite
factual finding that [defendant] acted with reckless indifference to human life under the
law that applies today.” In support, he relied on People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), both decided after his
conviction. The People initially responded the special circumstance finding rendered
defendant categorically ineligible for relief. They argued Banks and Clark did not
automatically invalidate defendant’s robbery-murder special circumstance finding and
defendant did not challenge it after Banks and Clark were decided; thus, the special
circumstance finding remains valid and precludes defendant from relief. In supplemental
3In his opening brief, defendant acknowledged the California Supreme Court granted
review in People v. Lewis, supra, 43 Cal.App.5th 1128, to consider whether a trial court could
consider the record of conviction in determining whether a defendant has made a prima facie
showing of eligibility for relief.
9.
briefing, defendant conceded the record of conviction may be considered at the prima
facie stage pursuant to the California Supreme Court’s decision in People v. Lewis, supra,
11 Cal.5th at p. 971. However, he argued “the record of conviction did not indisputably
establish that [he] was ineligible for resentencing,” assuming for purposes of his
argument a true finding on a felony-murder special circumstance made prior to the
decisions in Banks and Clark did not render him ineligible for resentencing as a matter of
law. He also asserted Senate Bill 775 establishes a trial court cannot consider the facts
from a prior appellate decision at the evidentiary hearing; thus, by the same reasoning, a
court cannot use the facts in an appellate decision as a basis to deny relief at the prima
facie stage.
We previously affirmed the court’s order in an unpublished opinion, concluding
the record established defendant was ineligible for resentencing as a matter of law based
on the true finding on the special circumstance allegation. Defendant petitioned for
review. The California Supreme Court granted and held the petition and deferred action
pending its consideration and disposition in Strong, supra, 13 Cal.5th 698. It then
transferred the case back to us with directions for our court to vacate our decision and
reconsider the cause in light of Strong.
In Strong, supra, 13 Cal.5th 698, the California Supreme Court held that a special
circumstance finding entered pursuant to section 190.2, subdivision (a)(17) prior to the
court’s decisions in Clark and Banks does not preclude a section 1172.6 petitioner from
making a prima facie showing of eligibility for relief.4 (Strong, at p. 703.) In light of
Strong, we advised the parties of our intention to reverse and remand this matter with
directions for the trial court to issue an order to show cause and to hold further
proceedings as provided for in section 1172.6. We afforded the parties an opportunity to
4Banks and Clark “substantially clarified the law” regarding “what it means to be a major
participant and … to act with reckless indifference to human life.” (Strong, supra, 13 Cal.5th at
pp. 706–707.)
10.
file objections to this proposed disposition. Neither party responded nor objected to the
proposed disposition.
Because, here, the special circumstance finding was made before Banks and Clark,
it is not preclusive on prima facie review of the petition under section 1172.6. (Strong,
supra, 13 Cal.5th at p. 703.) The petition was facially sufficient and alleged the essential
facts necessary for relief under section 1172.6. And the People have presented no other
basis to deny the petition at the prima facie stage. So, the order denying the petition must
be reversed and the matter remanded with directions for the trial court to issue an order to
show cause and, to the extent necessary, to conduct an evidentiary hearing under
subdivision (d) of section 1172.6. We express no opinion on the ultimate resolution of
the petition.
DISPOSITION
The order denying defendant’s petition for resentencing is reversed and the matter
is remanded with directions for the trial court to issue an order to show cause and, to the
extent necessary, to hold an evidentiary hearing pursuant to section 1172.6, subdivision
(d).
11.