People v. Walker CA2/2

Filed 5/17/22 P. v. Walker CA2/2
(Opinion on remand 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302037
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA242819)
v.
OPINION ON REMAND
MAURICE LAVELLE
WALKER, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. William C. Ryan, Judge. Affirmed.
Jeralyn B. Keller, 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, Scott A. Taryle and Daniel C. Chang, Deputy
Attorneys General, for Plaintiff and Respondent.
Pursuant to an order by the California Supreme Court, we
vacate our original opinion and issue this opinion instead.
In 2003, a jury found defendant and appellant Maurice
Lavelle Walker, Jr., guilty of one count of first degree murder
(Pen. Code, § 187, subd. (a); count 1)1 and two counts of
attempted murder (§§ 664/187, subd. (a); counts 2 & 3). The jury
also found true the allegations that the attempted murders were
committed willfully, deliberately, and with premeditation (§ 664,
subd. (a)), that in the commission of the offenses defendant
personally used a firearm within the meaning of section
12022.53, subdivisions (b), (c), (d), and (e)(1), and that the
offenses were committed for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)). He was sentenced to state prison for a
term of 75 years to life, and on direct appeal, we affirmed.
(People v. Walker (Apr. 7, 2005, B171963) [nonpub. opn.], p. 1
(Walker I).)
In 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. The trial court denied the petition,
finding that defendant was convicted as the actual killer and not
pursuant to either the felony murder rule or the natural and
probable consequences doctrine. The trial court implicitly
rejected any resentencing relief as to the attempted murder
convictions.
Defendant timely filed a notice of appeal. On March 2,
2021, we affirmed the trial court’s order on the ground that
defendant was convicted as the actual shooter, not under either
the felony murder rule or the natural and probable consequences
doctrine. We also rejected defendant’s contention that section
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
1170.95 applies to his convictions for attempted murder. (People
v. Walker (Mar. 2, 2021, B302037) [nonpub. opn.] (Walker II).)
Defendant filed a petition for review with the California
Supreme Court. While this case was pending, our Legislature
enacted and the Governor signed into law Senate Bill No. 775
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 551) (Sen. Bill 775).
Sen. Bill 775 amended section 1170.95 to expand eligibility for
resentencing to persons convicted of attempted murder.
On May 12, 2021, the California Supreme Court granted
review in this case, and, in an order filed January 26, 2022,
transferred the case back to us with directions to vacate our prior
opinion and reconsider the cause in light of Sen. Bill 775 and
People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
We remain convinced that defendant is not entitled to
resentencing relief. Accordingly, we affirm the trial court’s order.
FACTUAL BACKGROUND
The Shooting
“On October 25, 2002, at 3:00 p.m., school let out at Dorsey
High School (Dorsey), which is located near the intersection of
Jefferson Boulevard and Farmdale Avenue. Gemelle Jenkins
(Jenkins) drove out of the school parking lot in his black and
silver, 1985 Oldsmobile Cutlass, with Henry Hall (Hall) in the
passenger seat.” (Walker I, supra, B171963, at p. 2.)
Carita Dixon (Dixon) and Shermanice Wilson (Wilson),
Dorsey students, who had known defendant for years, saw him
after school wearing a black, hooded sweatshirt and metal
rimmed glasses, in the front passenger seat of a Jeep Cherokee
traveling down Farmdale in front of Jenkins’s car. “Wilson saw
[defendant] looking in the rear view mirror. She then heard what
she believed to be gunshots but was unable to see anyone actually
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shooting. Dixon saw the Jeep moving and then stop at a stop
light, at the intersection of Jefferson and Farmdale. [Defendant]
and another occupant wearing black sweatshirts exited the Jeep
and were shooting.” (Walker I, supra, B171963, at p. 3.)
“Evelyn Sanchez (Sanchez), who was not a Dorsey student
but was standing near the intersection of Jefferson and Farmdale
waiting for a bus, also heard shooting. She heard approximately
a dozen shots, turned toward the noise and saw a male wearing a
sweater and holding a gun, standing in the intersection and
shooting at a gray car. She saw the side of his face.” (Walker I,
supra, B171963, at p. 3.)
Jenkins testified that when he arrived at the intersection of
Jefferson and Farmdale, the Jeep was stopped directly in front of
him. Suddenly, shots “rang out from the direction of the Jeep, as
well as from another direction.” (Walker I, supra, B171963, at
p. 3.) While he did not see the shooter’s face, he saw someone
wearing a black sweatshirt outside the Jeep. (Id. at pp. 3–4.)
Jenkins later told a police officer that one of the shooters yelled a
gang name. Jenkins was struck by five bullets. (Id. at p. 4.)
Hall, who was also shot, did not see defendant or the
shooter’s face. (Walker I, supra, B171963, at p. 4.)
A bystander was killed during the shooting by a single
gunshot wound to the head. (Walker I, supra, B171963, at p. 4.)
Identification of Defendant
“The police showed several witnesses a photographic six-
pack that included a photograph of [defendant]. Dixon identified
the photograph of [defendant] as one of the individuals in the
Jeep. Wilson also identified [defendant] as the person she saw in
the black sweatshirt with metal rimmed glasses.” (Walker I,
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supra, B171963, at p. 5.) Sanchez also selected defendant’s
photograph, “stating that he looked like the shooter.” (Ibid.)
Relevant Jury Instructions
At defendant’s trial, the jury was not instructed on either
the natural and probable consequences doctrine or felony murder.
Rather, the jury was instructed pursuant to CALJIC Nos. 8.10
and 8.11 [malice murder] and 3.01 [direct aiding and abetting
theory of liability].
Walker I
After his conviction, defendant appealed. (Walker I, supra,
B171963, at p. 2.) We modified the judgment to include a $20
security fee and affirmed his conviction. (Ibid.) In so doing, we
specifically noted the “volume of both direct and circumstantial
evidence that [defendant] was the shooter.” (Id. at p. 13.) In fact,
the evidence “was consistent in the essential details necessary to
establish [defendant] as the shooter.” (Id. at p. 14.)
PROCEDURAL BACKGROUND
I. Defendant’s Section 1170.95 Petition
On July 12, 2019, defendant filed a petition to be
resentenced pursuant to section 1170.95. He alleged, inter alia,
that a complaint, information, or indictment was filed against
him that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable
consequences doctrine; he was convicted of first or second degree
murder pursuant to the felony murder rule or the natural and
probable consequences doctrine; he could no longer be convicted
of first degree murder because of changes made to section 189; he
was not the actual killer and did not act with the intent to kill; he
was not a major participant in the felony and did not act with
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reckless indifference to human life; and the victim was not a
peace officer. He requested the appointment of counsel.
II. Trial Court Order on Defendant’s Petition
On September 16, 2019, the trial court denied defendant’s
petition. In so ruling it reasoned: “The instant petition warrants
summary denial because [defendant] has not established that his
conviction falls within the scope of section 1170.95. [¶]
[Defendant] indicates that he was convicted of first degree
murder under a theory of felony murder, and that he could not
now be convicted of murder because of the changes to section 189.
Here, [defendant] was convicted of first degree murder with the
personal use of a firearm and two counts of attempted murder
with the personal use of a firearm after a drive-by shooting
between rival gang members result[ing] in the death of an
innocent bystander and injur[ing] others. Several eyewitnesses,
including some who had known [defendant] for a long time,
identified [defendant] as the shooter through photographic
lineups. [Defendant] was also a known member of the involved
gang. The record therefore reflects that [defendant] was
convicted as the actual killer, and not under a theory of felony
murder or murder under a natural and probable consequences
theory. [Defendant] is therefore ineligible for [resentencing]
relief as a matter of law pursuant to section 1170.95.”
DISCUSSION
I. Standard of Review
To the extent we are called upon to interpret section
1170.95, subdivision (c), we review the trial court’s order de novo.
(See Martinez v. Brownco Construction Co. (2013) 56 Cal.4th
1014, 1018 [application of law to undisputed facts]; A.S. v. Miller
(2019) 34 Cal.App.5th 284, 290 [statutory interpretation].)
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II. Relevant Law
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Sen. Bill 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, subd. (f).) To accomplish this,
Sen. Bill 1437 amended sections 188 and 189. (Stats. 2018,
ch. 1015, §§ 2-3.)
Sen. Bill 1437 also added section 1170.95, which provides a
mechanism whereby people “who believe they were convicted of
murder for an act that no longer qualifies as murder following
the crime’s redefinition in 2019[] may seek vacatur of their
murder conviction and resentencing by filing a petition in the
trial court.” (People v. Drayton (2020) 47 Cal.App.5th 965, 973,
overruled in part on other grounds in People v. Lewis, supra,
11 Cal.5th 952.)
In order to obtain resentencing relief, the petitioner must
file a facially sufficient section 1170.95 petition. (§ 1170.95,
subds. (a)(1)-(3), (b)(1)(A).) If a petitioner does so, then the trial
court proceeds to section 1170.95, subdivision (c), to assess
whether the petitioner has made a prima facia showing for relief,
thereby meriting an evidentiary hearing. (People v. Lewis, supra,
11 Cal.5th at p. 957.) When making this determination, “the trial
court should assume all facts stated in the section 1170.95
petition are true. [Citation.] The trial court should not evaluate
the credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law . . . . [I]f the
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record ‘contain[s] facts refuting the allegations made in the
petition . . . the court is justified in making a credibility
determination adverse to the petitioner.’ [Citation.] However,
this authority to make determinations without conducting an
evidentiary hearing . . . is limited to readily ascertainable facts
from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of
discretion (such as determining whether the petitioner showed
reckless indifference to human life in the commission of the
crime).” (People v. Drayton, supra, 47 Cal.App.5th at p. 980; see
also People v. Lewis, supra, 11 Cal.5th at pp. 970–971.) In other
words, a defendant is ineligible for relief only where the record
conclusively shows that the jury actually relied—and the
defendant’s murder conviction actually rests—upon a theory of
liability that is unaffected by section 1170.95.
In deciding whether a petitioner is ineligible for
resentencing, a trial court may consider its own file and record of
conviction. (People v. Lewis, supra, 11 Cal.5th at p. 970.) The
record of conviction includes a reviewing court’s opinion. (Id. at
p. 972.)
III. Trial Court Properly Denied Defendant’s Petition for
Resentencing
The trial court properly denied defendant’s petition for
resentencing because he does not fall within the scope of section
1170.95. As set forth in Walker I and demonstrated by the record
of defendant’s conviction, defendant was convicted as the actual
shooter, not under either the felony murder rule or the natural
and probable consequences doctrine. (People v. Lewis, supra,
11 Cal.5th at pp. 970, 972; Walker I, supra, B171963, at p. 14 [the
trial evidence was “consistent in the essential details necessary to
8
establish [defendant] as the [actual] shooter”].) Nor could he
have been. The jury was not instructed on either of those two
theories. (People v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5,
review granted July 22, 2020, S262835 [“if the jury was not
instructed on a natural and probable consequences or felony-
murder theory of liability, the petitioner could not demonstrate
eligibility as a matter of law because relief is restricted to persons
convicted under one of those two theories”]; People v. Soto (2020)
51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020,
S263939, and review dismissed and case ordered “non-citable and
nonprecedential ‘to the extent it is inconsistent with’” People v.
Lewis, Nov. 17, 2021 [trial court may rely on jury instructions,
which are part of the record of conviction, in assessing the prima
facie showings under § 1170.95, subd. (c)].)
Moreover, the jury found that defendant personally used
and discharged a firearm in the commission of the crimes.
(Walker I, supra, B171963, at p. 2.) Under the circumstances
presented in this case, this factual finding necessarily labeled
him as the “actual killer” and therefore ineligible for relief under
section 1170.95. (See People v. Cornelius (2020) 44 Cal.App.5th
54, 58, review granted Mar. 18, 2020, S260410, and review
dismissed and case ordered “non-citable and nonprecedential ‘to
the extent it is inconsistent with’” People v. Lewis, Oct. 27, 2021
[“The jury convicted [the petitioner] of second degree murder and
found true that he personally and intentionally used a firearm to
commit the crime,’” thereby “implicitly [finding that the
petitioner] was the ‘actual killer,’” and rendering “the changes to
sections 188 and 189 . . . inapplicable”].)
Because section 1170.95 “applies only to qualifying
defendants convicted of felony murder or murder under a natural
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and probable consequences theory” (People v. Flores (2020)
44 Cal.App.5th 985, 997), defendant is ineligible for resentencing
as a matter of law.
To the extent the trial court denied defendant’s petition on
different grounds, namely by noting that the evidence showed
that defendant was the actual shooter, we still affirm the trial
court’s order. (People v. Smithey (1999) 20 Cal.4th 936, 972
[appellate court upholds a trial court order if it is supported by
any legally correct theory]; Smyth v. Berman (2019)
31 Cal.App.5th 183, 196 [“we may affirm on any ground
supported by the record”].)
For the same reasons, defendant is not entitled to
resentencing relief on the attempted murder charges as well. As
set forth above, where the record of conviction shows that
defendant was not convicted under any theory of liability affected
by Sen. Bill 1437, he is ineligible for resentencing as a matter of
law. (People v. Mancilla (2021) 67 Cal.App.5th 854, 866–867.)
That limitation on eligibility did not change under Sen. Bill 775.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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