People v. Walker CA2/5

Filed 2/25/21 P. v. Walker CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
THE PEOPLE, B305337
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA057505)
v.
CHARLES WALKER et al.,
Defendants and
Appellants.
APPEALS from postjudgment orders of the Superior Court
of the County of Los Angeles, Edmund Wilcox Clarke, Jr., Judge.
Reversed and remanded with directions.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant Charles Walker.
G. Matthew Missakian, under appointment by the Court of
Appeal, for Defendant and Appellant Gary Holden.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
_________________________________________
I. INTRODUCTION
Defendants Charles Walker and Gary Holden appeal from
the trial court’s orders denying their petitions for resentencing
under Penal Code section 1170.95.1 According to defendants, the
court erred by summarily denying their petitions based on its
finding that they had failed to make the requisite prima facie
showing of entitlement to relief under section 1170.95,
subdivision (c). We agree and therefore reverse the court’s orders
and remand with directions.
II. BACKGROUND
A. The Shooting
On January 30, 2004, defendants and another man, C.W.,
confronted the victim, who was waiting at a bus stop in local gang
territory. An altercation ensued during which the victim was
first punched and then fatally shot with a handgun. Various
eyewitnesses, including C.W., described all or parts of the
shooting.
1 All further statutory references are to the Penal Code.
2
B. The Trial and Murder Convictions
In a one-count information, the District Attorney jointly
charged defendants with murder in violation of section 187,
subdivision (a). The District Attorney alleged that Holden
personally used and discharged a handgun causing the death of
the victim within the meaning of sections 12022.53, subdivisions
(b) through (d). The District Attorney also alleged, as to Walker,
that a principal personally used and discharged a handgun
causing the death of the victim in violation of section 12022.53,
subdivisions (b) through (e). And, the District Attorney alleged
that the offense was committed for the benefit of, at the direction
of, or in association with a criminal street gang with the specific
intent to promote, further, and assist criminal conduct by gang
members.
At defendants’ joint trial, the trial court gave, among
others, instructions on first and second degree murder, direct
aider and abettor liability, and the natural and probable
consequences doctrine as it related to the target offense of
assault. During argument, the prosecutor asserted that Walker
first punched the victim and Holden then intentionally shot him.
According to the prosecutor, Holden was therefore liable for first
degree premeditated murder and Walker either knew of Holden’s
intent, and was therefore liable as a direct aider and abettor of
that murder, or was liable for second degree murder under the
natural and probable consequences doctrine based on his assault
of the victim.
Following trial, the jury found Holden guilty of second-
degree murder and found the gang allegation as to him true, but
found all of the gun use allegations as to him “false.” The jury
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also found Walker guilty of second degree murder, found the gang
allegation as to him true, and found true the allegations that a
principal personally used and discharged a handgun causing the
death of the victim.
The trial court sentenced Holden to 15 years to life on the
murder count, plus a consecutive 10-year term for the gang
enhancement, for an aggregate sentence of 25 years to life. The
court sentenced Walker to 15 years to life on the murder count,
plus a consecutive 25-year term for the firearm enhancement, for
an aggregate sentence of 40 years to life.
C. Petitions for Resentencing
On January 9, 2019, Holden filed a petition to recall his
sentence pursuant to section 1170.95. According to Holden, he
was entitled to resentencing because he was convicted of murder
as an aider and abettor under the natural and probable
consequences doctrine. He also maintained that there was
insufficient evidence to show that he intentionally planned the
victim’s murder or otherwise shared in the perpetrator’s intent.
The District Attorney initially opposed the petition solely
on constitutional grounds, and Holden replied to those
arguments, including a request for judicial notice.2
On June 21, 2019, Walker filed his petition for
resentencing, alleging that he was convicted of murder under the
natural and probable consequences doctrine and requesting
appointment of counsel.
2 On May 20, 2019, Holden filed a request for appointment of
counsel.
4
On July 30, 2019, the District Attorney filed a further
response to Holden’s petition, asserting, in addition to certain
constitutional grounds, that the record evidence showed that
Holden, if retried, could be convicted of second degree murder as
either a direct aider and abettor or as the actual shooter. Holden,
who was now represented by counsel, filed a reply to the District
Attorney’s latest submission addressing only the constitutional
issues, and in a separate submission, he reasserted that there
was insufficient evidence of his intent to kill and that the jury
was instructed that he could be convicted of murder under the
natural and probable consequences doctrine as an aider and
abettor of assault.
Walker, through counsel, filed a response in support of his
petition, arguing that because the jury was instructed on the
natural and probable consequences doctrine with assault as the
target crime, there was no evidence in the record demonstrating
as a matter of law that, if retried, he could be convicted of first or
second degree murder under a currently valid legal theory.
On February 19, 2020, the District Attorney filed a
supplemental response to Walker’s petition, supported by the
trial transcripts, arguing that because the jury had been
instructed concerning Walker’s liability as a direct aider and
abettor, he could still be convicted of murder if retried under
current law.
D. Hearing on and Denial of the Petitions
On February 26, 2020, the trial court conducted a hearing
on defendants’ resentencing petitions. Among other evidence
from the trial record, the court cited the testimony of C.W. and
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another eyewitness to the shooting and reasoned that because
one of the defendants must have been the shooter, they both
could be convicted of murder under current law as either the
actual shooter or as a direct aider and abettor. Following
argument from counsel, the court denied the petitions based on
its finding that defendants failed “to make the necessary prima
facie showing that [they] could not be convicted as a direct aider
and abettor in this case.”
III. DISCUSSION
A. Senate Bill No. 1437’s Amendments to Sections 188 and 189
and Addition of Section 1170.95
“Through section 1170.95, Senate Bill [No.] 1437 created a
petitioning process by which a defendant convicted of murder
under a felony murder theory of liability could petition to have
his conviction vacated and be resentenced. Section 1170.95
initially requires a court to determine whether a petitioner has
made a prima facie showing that he or she falls within the
provisions of the statute as set forth in subdivision (a), including
that ‘(1) [a] complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine[,] [¶] (2) [t]he petitioner was
convicted of first degree or second degree murder following a trial
or accepted a plea offer in lieu of a trial at which the petitioner
could be convicted for first degree or second degree murder[, and]
[¶] (3) [t]he petitioner could not be convicted of first or second
degree murder because of changes to [s]ection[s] 188 or 189 made
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effective January 1, 2019.’ (See § 1170.95, subd. (c); People v.
Verdugo (2020) 44 Cal.App.5th 320, 327 . . . , review granted
Mar. 18, 2020, [S260493 (Verdugo)].) If it is clear from the record
of conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. (Verdugo,
[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination
of eligibility requires an assessment of the evidence concerning
the commission of the petitioner’s offense, the trial court must
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95. (Verdugo, [supra, 44
Cal.App.5th] at p. 332; [People v.] Lewis [(2020)] 43 Cal.App.5th
[1128,] 1140, rev[iew] granted [Mar. 18, 2020, S260598].)”
(People v. Smith (2020) 49 Cal.App.5th 85, 92, review granted
July 22, 2020, S262835, fn. omitted.) “If the petitioner makes a
prima facie showing that he or she is entitled to relief, the court
shall issue an order to show cause.” (§ 1170.95, subd. (c).)
B. Analysis
Defendants contend that the trial court erred in concluding
they had not made a prima facie showing of eligibility for relief.
Because they alleged facts showing that their second degree
murder convictions could have been based on the natural and
probable consequences doctrine, defendants maintain that they
made the required prima facie showing and therefore that the
matter must be reversed and remanded with directions to issue
an order to show cause and hold an evidentiary hearing under
section 1170.95, subdivision (d).
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The Attorney General concedes the error and agrees that
the denials should be reversed and remanded with directions to
issue an order to show cause and conduct a hearing.
Here, the record affirmatively demonstrated that each
defendant was charged with murder, that the jury was instructed
on second degree murder and the natural and probable
consequences doctrine, and that the jury returned verdicts of
second degree murder as to each defendant. In light of that
record, the trial court could not determine at the initial stage of
the process—as a matter of law and without resort to
factfinding—that the jury did not base its second degree murder
findings on the natural and probable consequences doctrine.
(Verdugo, supra, 44 Cal.App.5th at p. 329 [when evaluating
section 1170.95 petitioner’s eligibility under subdivision (c), the
court must make “all factual inferences in favor of the
petitioner”].) Because the record showed that defendants could
have been convicted under a theory of murder that was no longer
viable under the revisions to sections 188 and 189, the court
erred in denying the petitions at this stage in the proceedings.
Accordingly, the orders denying the petitions must be reversed
and the matters remanded with directions to issue orders to show
cause and hold a hearing under section 1170.95, subdivision (d).
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IV. DISPOSTION
The orders denying defendants’ petitions for resentencing
under section 1170.95 are reversed and remanded with directions
to hold further proceedings on those petitions consistent with this
opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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