People v. Wilson CA4/1

Filed 11/2/22 P. v. Wilson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078231
Plaintiff and Respondent,
v. (Super. Ct. No. SCD145049)
THANDIEW SHARIF WILSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Melinda J. Lasater, Judge. Reversed and remanded with directions.
Susan S. Bauguess, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorneys General, Alan
Aman, Steve Oetting, and Anthony Da Silva, Deputy Attorneys General, for
Plaintiff and Respondent.
Thandiew Sharif Wilson appeals the order summarily denying his
petition for resentencing under statutory changes that narrowed the scope of
felony-murder liability and authorized resentencing. Wilson was convicted
on a felony-murder theory after his brother fatally shot the victim during the
commission of other felonies in which Wilson participated. The superior
court ruled the jury’s true findings on felony-murder special-circumstance
allegations made Wilson ineligible for resentencing.
In our initial opinion, we concluded the jury’s findings did not
categorically bar relief, reversed the order, and remanded the matter for
further proceedings. The Supreme Court of California granted the People’s
petition for review and held the case for its decision in People v. Strong (2022)
13 Cal.5th 698 (Strong), where it held a jury’s true finding on a felony-
murder special-circumstance allegation did not preclude a petitioner from
making a prima facie showing of eligibility for resentencing when the jury
made the finding before the Supreme Court had issued two decisions on key
phrases in the statute defining the special circumstance. After the Supreme
Court issued its decision in Strong, it transferred Wilson’s appeal to us with
directions to vacate our opinion and to reconsider the matter in light of the
decision.
In compliance with those directions, we hereby vacate our prior
opinion. And, based on Strong, supra, 13 Cal.5th 698, we reverse the order
denying Wilson’s resentencing petition and remand the matter for further
proceedings.
I.
BACKGROUND
A. Fatal Shooting Incident
On July 6, 1999, Wilson, his brother, and another member of the
Lincoln Park criminal street gang went to a party in a motel room hosted by
Henry Mabry, a member of a rival gang. Wilson and his companions left
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after Mabry became angry with them but later returned under the false
pretense of recovering an item that had been left behind. Upon gaining
reentry to the motel room, Wilson’s brother pulled out a gun and told the
guests to get on the floor and surrender their belongings. Wilson himself
demanded property from one guest and searched through Mabry’s duffle bag.
When Wilson and his companions realized Mabry was asleep, they began
beating him and shouting “Lincoln Park.” Mabry fought back, and Wilson’s
brother fatally shot him in the head. (People v. Wilson (Dec. 23, 2003,
D041120 [nonpub. opn.].)
B. Charges, Verdicts, and Sentence
The People charged Wilson with first degree murder (Pen. Code, § 187,
subd. (a); undesignated section references are to this code), first degree
burglary (§§ 459, 460), robbery (§ 211), and six counts of attempted robbery
(§§ 211, 664). As to all counts, the People alleged firearm and gang
enhancements. (§§ 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d), (e)(1),
12022.5, subd. (a)(1), 12022, subd. (a)(1).) As to the murder, the People
alleged special circumstances that the murder occurred during the
commission or attempted commission of burglary and robbery. (§ 190.2,
subd. (a)(17)(A), (G).)
The jury was instructed that if it found Wilson was not the actual
killer, to find the special circumstance allegations true the jury had to be
satisfied beyond a reasonable doubt that he aided and abetted the murder
with intent to kill or aided and abetted the burglary, robbery, or attempted
robbery as a major participant with reckless indifference to human life.
(CALJIC No. 8.80.1; see § 190.2, subd. (d).) The jury found Wilson guilty on
all counts and found true all attached allegations, including the felony-
murder special-circumstance allegations.
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The superior court sentenced Wilson in 2002. For the murder, the
court imposed a term of life without the possibility of parole plus a term of
25 years to life for the firearm enhancement. (§§ 190.2, subd. (a), 12022.53,
subds. (d), (e)(1).) The court imposed and stayed execution of prison terms for
the attempted robbery of Mabry and the attached enhancements (§ 654), and
imposed concurrent prison terms for all the other crimes and attached
enhancements (§ 669, subd. (a)).
C. Petition for Resentencing
On January 1, 2019, legislation took effect that, among other things,
narrowed the scope of accomplice liability for felony murder by amending
sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2, 3.) The legislation also
added a new statute authorizing those convicted of felony murder to petition
for resentencing if they could not be convicted of that crime under the
amended statutes had they been in effect at the time of the killing. (Former
§ 1170.95, enacted by Stats. 2018, ch. 1015, § 4, amended by Stats. 2021,
ch. 551, § 2, and renumbered § 1172.6 by Stats. 2022, ch. 58, § 10.)1 Later
that month, Wilson, acting on his own behalf, filed a form petition alleging he
could not now be convicted of felony murder because he was not the actual
killer, he had no intent to kill in aiding and abetting the actual killer, and he
was not a major participant in the felony and did not act with reckless
indifference to human life in committing the felony. Wilson attached to the
petition a short memorandum of points and authorities and copies of the
abstract of judgment and a few other documents (or portions thereof) from
the underlying criminal action.
1 The amendments are not relevant to this appeal. We shall cite the
current version of the statute (§ 1172.6) in this opinion even though Wilson
filed his petition under the former version (§ 1170.95).
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In an initial response to the petition, the People argued the jury’s true
findings on the felony-murder special-circumstance allegations made Wilson
ineligible for relief. They attached copies of the accusatory pleading, the
jury’s verdicts, the sentencing minutes, and other documents from the
underlying criminal action.
Wilson, now represented by appointed counsel, filed a reply. He argued
his petition stated a prima facie case for relief, and urged the superior court
to issue an order to show cause and to hold an evidentiary hearing.
The parties filed supplemental briefs discussing the split in Court of
Appeal decisions on whether a jury’s true finding on a felony-murder special-
circumstance allegation made a petitioner ineligible for relief under
section 1172.6 as a matter of law.
After reviewing the parties’ written submissions and the special
circumstance instructions given to the jury, the superior court denied the
petition. The court ruled the jury’s true findings on the special circumstance
allegations made Wilson ineligible for resentencing.
D. Prior Appellate Proceedings
On Wilson’s appeal of the superior court’s order summarily denying his
section 1172.6 petition, we issued an opinion in which we concluded the jury’s
true findings on the felony-murder special-circumstance allegations did not
categorically bar Wilson from relief, reversed the order denying his petition
for resentencing, and remanded the matter to the superior court for further
proceedings. (People v. Wilson (2021) 69 Cal.App.5th 665, cause transferred
and opinion rendered not citable by order of Supreme Court filed Sept. 28,
2022, S271604.) The Supreme Court of California granted review and held
Wilson’s case for its decision in Strong, supra, 13 Cal.5th 698. The Supreme
Court ruled that juries’ true findings on felony-murder special-circumstance
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allegations made before its decisions in People v. Banks (2015) 61 Cal.4th 788(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which for the first
time provided substantial guidance on the meanings of the phrases “major
participant” and “with reckless indifference to human life” as used in the
statute defining the special circumstance (§ 190.2, subd. (d)), do not preclude
a defendant from stating a prima facie case for relief under section 1172.6.
(Strong, at p. 721.) After issuing its decision, the Supreme Court transferred
Wilson’s appeal back to us with directions to vacate our initial opinion and to
reconsider the matter in light of the decision. (People v. Wilson, S271604,
Supreme Ct. Mins., Sept. 28, 2022.)
II.
DISCUSSION
Wilson contends the superior court erred by summarily denying his
petition for resentencing based on the jury’s true findings on the felony-
murder special-circumstance allegations because those findings were made
before the Supreme Court decided Banks, supra, 61 Cal.4th 788, and Clark,
supra, 63 Cal.4th 522. He asks us to reverse the superior court’s order and to
remand the matter with directions to issue an order to show cause. The
People initially disagreed with Wilson and urged us to affirm the superior
court’s order. But after the Supreme Court decided Strong, supra, 13 Cal.5th
698, the People agree that “the special circumstance findings rendered by the
jury against [Wilson] do not, alone, render him per se ineligible for
resentencing relief” and that the matter should be remanded with directions
to the superior court to issue an order to show cause and to hold an
evidentiary hearing. We agree with the parties.
As noted earlier, the Supreme Court recently decided that where, as
here, a defendant’s case “was tried before both Banks and Clark, the special
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circumstance findings do not preclude him from making out a prima facie
case for resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at
p. 721.) The Supreme Court reasoned that section 1172.6 requires the
petitioner to make a prima facie showing that he could not be convicted of
murder under the amended versions of sections 188 and 189, and “[a] pre-
Banks and Clark special circumstance finding does not negate that showing
because the finding alone does not establish that the petitioner is in a class of
defendants who would still be viewed as liable for murder under the current
understanding of the major participant and reckless indifference
requirements.” (Strong, at pp. 717-718.) “This is true even if the trial
evidence would have been sufficient to support the findings under Banks and
Clark.” (Strong, at p. 710; see People v. Montes (2021) 71 Cal.App.5th 1001,
1008 [trial court may not deny section 1172.6 petition at prima facie stage
based on its own determination defendant was major participant in felony
and acted with reckless disregard for human life].) Thus, “[n]either the jury’s
pre-Banks and Clark findings nor a court’s later sufficiency of the evidence
review amounts to the determination section 1172.6 requires, and neither set
of findings supplies a basis to reject an otherwise adequate prima facie
showing and deny issuance of an order to show cause.” (Strong, at p. 720.)
In Wilson’s case, the jury made its special circumstance findings more
than a decade before the Supreme Court decided Banks, supra, 61 Cal.4th
788, and Clark, supra, 63 Cal.4th 522. Under Strong, those findings do not
preclude Wilson from stating a prima facie case for relief. (Strong, supra,
13 Cal.5th at p. 721.) Because Wilson’s petition alleged the facts necessary
for relief under section 1172.6 and nothing in the record shows he is ineligible
for relief as a matter of law, the superior court erred by summarily denying
his petition. We therefore must remand the matter to the superior court to
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issue an order to show cause and, to the extent necessary, hold an evidentiary
hearing. (§ 1172.6, subds. (c), (d); Strong, at pp. 708-709; People v. Duchine
(2021) 60 Cal.App.5th 798, 816.) We express no opinion on how the court
should ultimately rule on the petition.
III.
DISPOSITION
The opinion filed on September 29, 2021, is vacated. The order denying
the petition for resentencing under section 1172.6 is reversed. The matter is
remanded to the superior court with directions to issue an order to show
cause and, to the extent necessary, hold an evidentiary hearing.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O’ROURKE, J.
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