People v. Wallace CA2/5

Filed 3/8/21 P. v. Wallace 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B304414
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A079619)
v.
PETER WALLACE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Upinder S. Kalra, Judge. Reversed and
remanded.
John Lanahan, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Chung L. Mar, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant and appellant Peter Wallace was convicted,
following a bench trial, of two counts of felony-murder, with
felony-murder and multiple-murder special circumstances.
Almost 40 years later, he filed a petition for resentencing under
Penal Code section 1170.95, arguing that he was eligible for
resentencing because the trial court had expressly found he was
not the actual killer. The following day, the trial court
summarily denied the petition, on the basis that the true felony-
murder special circumstance findings established that even if
defendant was not the actual killer, he either had the intent to
kill or was a major participant acting with reckless disregard for
human life.
On appeal, defendant contends, the prosecution concedes,
and we agree, that the trial court erred in summarily denying the
petition. Specifically, a felony-murder special circumstance
finding in 1981 did not necessarily require a finding of intent to
kill. (Carlos v. Superior Court (1983) 35 Cal.3d 131, 135,
overruled in part by People v. Anderson (1987) 43 Cal.3d 1104,
1138-1139 [intent to kill is not an element for the actual killer].)
Similarly, while the felony-murder special circumstance can be
satisfied by a finding the defendant was a major participant in
the crime acting with reckless indifference to life, that
requirement was added to the law by Proposition 115, in 1990,
well after defendant’s trial. (Tapia v. Superior Court (1991)
53 Cal.3d 282, 286, 297-298.)
The prosecution similarly does not attempt to justify denial
of the petition on the basis of the multiple-murder special
circumstance. Our Supreme Court did not hold that intent to kill
was required for the multiple-murder special circumstance until
2
1984. (People v. Turner (1984) 37 Cal.3d 302, 328-329, overruled
in part by People v. Anderson, supra, 43 Cal.3d at pp. 149-1150.)
Because the trial court erred in summarily denying the
petition, we remand for the appointment of counsel and further
proceedings on defendant’s petition.1
DISPOSITION
The trial court’s order denying defendant’s resentencing
petition is reversed and remanded to the trial court for the
appointment of counsel (if requested) and further proceedings.
RUBIN, P. J.
WE CONCUR:
BAKER J.
MOOR, J.
1 Both in its Respondent’s Brief (at page 17) and at oral
argument, the Attorney General agreed that on remand counsel
should be appointed for defendant, if he so requests, even though
defendant did not expressly request counsel in his petition.
3