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Filed 6/30/23 P. v. Wells CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH WELLS,

Defendant and Appellant.

 A166190

 (Solano County

 Super. Ct. No. VCR 164967)

In 2005, a jury convicted defendant Joseph Wells of first degree 

murder, with an accompanying enhancement under Penal Code1

section 12022.53, subdivision (d) (section 12022.53(d)), for personally and 

intentionally discharging a firearm causing the victim’s death. The trial 

court sentenced him to 50 years to life in prison, and this division affirmed 

the judgment. (Peoplev. Wells (Feb. 14, 2007, A112173) [nonpub. opn.]

(Wells I).)

In 2019, Wells filed a petition for resentencing under former 

section 1170.95, now section 1172.6, based on changes to the law of murder 

made by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill No. 1437)

(Stats.2018, ch. 1015). The following year, we affirmed the trial court’s 

denial of the petition on the basis that the section 12022.53(d) enhancement 

1 All further statutory references are to the Penal Code.
2

constituted a finding that he was the actual killer, meaning he was not 

entitled to relief as a matter of law. (People v. Wells (May 14, 2020, A158639) 

[nonpub. opn.] (Wells II).) 

Wells now appeals from a trial court order dismissing his second 

petition for resentencing under Senate Bill No. 1437. His appointed 

appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 

216, 221–222, which established the procedural framework for appellate 

courts to follow when counsel finds no arguable issues in a section 1172.6 

appeal. Under that framework, we gave Wells notice that he had a right to 

file a supplemental brief or his appeal could be dismissed. (See Delgadillo, at 

pp. 231–232.)

Wells filed a letter in which he claims he is entitled to an evidentiary 

hearing under section 1172.6, subdivision (d), because the section 12022.53(d) 

enhancement does not render him ineligible for relief. But our review of the

jury instructions, which were not before the trial court, reveals that the only 

theory of first degree murder on which the jury was instructed was 

premeditated murder. These instructions demonstrate that Wells was not 

convicted under any theory of imputed malice abolished by Senate Bill 

No. 1437. Thus, even assuming Wells is not precluded from challenging our 

holding in Wells II, any error in the petition’s dismissal was necessarily 

harmless. Accordingly, we affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND2

“Wells was charged with one count of first degree murder and various 

firearm enhancements based on the 2001 killing of Michael Yokoi. [Fn. 

2 We quote the facts and procedural history involving Wells’s conviction

and direct appeal from Wells II, which in turn drew them from Wells I.
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omitted.] The evidence presented at trial showed that Wells and another 

man, Michael Sinay, who were dating the same woman, ‘engaged in an 

escalating series of confrontations involving threats, violence, and property 

damage, most of which were initiated by [Wells].’ In December 2001, two 

days after Sinay and Yokoi, a friend of Sinay’s, smashed the windows of 

Wells’s vehicle, Yokoi was shot to death while standing outside Sinay’s 

Vallejo home. Based on the testimony of various witnesses, a man dressed in 

dark clothing and a beanie shot Yokoi. The man then got into a dark 

Mustang with plates from ‘ “Nino’s” dealership’ and drove away. Four hours 

before the murder, Wells was recorded on a store security camera wearing ‘a 

black beanie, black shirt, and black pants.’ He had bought ‘a blue Mustang 

convertible from Nino’s Motors’ a few weeks earlier, and cell phone data 

showed that his phone was in Vallejo around the time of the murder.

“The jury convicted Wells of first degree murder and found the firearm 

enhancements true, including the enhancement under section 12022.53(d) for 

‘personally and intentionally discharg[ing] a firearm and proximately 

caus[ing] . . . death.’ The trial court sentenced him to a term of 25 years to 

life for the murder and a consecutive term of 25 years to life for the personal 

and intentional discharge of a firearm. Wells appealed, and we affirmed the 

judgment in 2007.” 

In July 2019, Wells filed his first petition for resentencing, averring 

that he was convicted of first degree murder on a theory of felony murder and 

was eligible for relief because he was not the actual killer and did not aid and 

abet the actual killer with an intent to kill. Without appointing counsel, the 

trial court summarily denied the petition, concluding that the section 

12022.53(d) enhancement established as a matter of law that Wells was the 

actual killer and therefore ineligible for relief. 
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Wells appealed, initiating Wells II, and his appointed appellate counsel 

filed a no-issues brief. Wells filed a supplemental brief arguing that there 

was a second shooter who was the actual killer. He attached documents from 

a previous habeas corpus proceeding showing that the prosecutor conceded 

there was another, unknown shooter, although the prosecutor also took the 

position that Wells was the person who shot the fatal bullets. In our opinion, 

we stated, “Even if there [was] a theoretical possibility that someone else 

killed Yokoi, we are not free to disregard the jury’s finding that Wells 

personally and intentionally discharged a firearm causing death, which 

constitutes an implicit finding that he was the actual killer.” We concluded 

that in turn, he could not demonstrate that he could no longer be convicted of 

murder after Senate Bill No. 1437. 

In early 2022, Wells submitted the resentencing petition at issue. He 

averred that the charging document “allowed the prosecution to proceed 

under a theory of felony murder, murder under the natural and probable 

consequences doctrine[,] or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime,” and that he 

“could not presently be convicted of murder . . . because of changes made [by 

Senate Bill No. 1437].” In an accompanying declaration, he stated that he 

was not the actual killer, and he reviewed evidence supporting that 

conclusion. He also argued that “the [j]ury was allowed to impute [m]alice” in 

convicting him of first degree murder. 

The trial court appointed an alternate public defender to represent 

Wells, but based on a conflict of interest, a private attorney was substituted. 

Meanwhile, the prosecution filed a response to the resentencing petition 

stating that Wells failed to make a prima facie showing of eligibility for relief 

under section 1172.6, based on the trial court’s previous ruling that he was 
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the actual killer. An “in-chambers criminal minute order” of a proceeding

that was not reported reflects that on August 11, 2022, both counsel 

“stipulate[d] to vacate” the next hearing date, as “[d]efense counsel found 

that there was no viable basis for the [section] 1172.6 petition.” The order 

also said the petition was dismissed “without prejudice.” 

Shortly after dismissing Wells’s resentencing petition, the trial court 

received his Faretta3 motion for self-representation based on a claimed 

conflict of interest with the private attorney. In an August 17, 2022 memo to 

staff, the court directed that a letter be sent to Wells informing him that his 

attorney and the prosecutor had “agreed to dismissal of [the] petition,” and 

the Faretta motion was therefore moot. The following day, the court entered 

an order formally denying that motion as moot and reiterating that it had 

“dismissed [Wells’s] petition for resentencing without prejudice.”

II.

DISCUSSION

A. Senate Bill No. 1437 and Section 1172.6

“Effective January 1, 2019, Senate Bill [No.] 1437 amended murder 

liability under the felony-murder and natural and probable consequences 

theories. The bill redefined malice under section 188 to require that the 

principal acted with malice aforethought. Now, ‘[m]alice shall not be imputed 

to a person based solely on his or her participation in a crime.’ (§ 188, 

subd. (a)(3).)” (People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill 

also amended section 189 to provide that a defendant who was not the actual 

killer and did not have an intent to kill is not liable for felony murder unless 

the defendant “was a major participant in the underlying felony and acted 

3 Faretta v. California (1975) 422 U.S. 806.
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with reckless indifference to human life, as described in subdivision (d) of 

Section 190.2.” (§ 189, subd. (e).)

Senate Bill No. 1437 also enacted former section 1170.95, now 

section 1172.6, which provides a procedure for eligible defendants to petition 

for resentencing. Under the current statute, “[a] person convicted of felony 

murder or murder under the natural and probable consequences doctrine or 

other theory under which malice is imputed to a person based solely on that 

person’s participation in a crime, attempted murder under the natural and 

probable consequences doctrine, or manslaughter may file a petition with the 

court that sentenced the petitioner to have the petitioner’s murder, 

attempted murder, or manslaughter conviction vacated and to be resentenced 

on any remaining counts” as long as three requirements are met: (1) the 

charging document allowed the prosecution to proceed under a theory of 

felony murder, murder or attempted murder under the natural and probable 

consequences doctrine, or other theory of imputed malice; (2) the petitioner 

was convicted of murder, attempted murder, or manslaughter; and (3) the 

petitioner could not presently be convicted of the crime after Senate Bill 

No. 1437’s changes to the law. (§ 1172.6, subd. (a).) 

Upon receiving a facially sufficient petition alleging that all three 

requirements are met and requesting counsel, the trial court must appoint 

counsel, permit the parties to submit briefing, and “hold a hearing to 

determine whether the petitioner has made a prima facie case for relief. If 

the petitioner makes a prima facie showing that the petitioner is entitled to 

relief, the court shall issue an order to show cause” and hold an evidentiary 

hearing on whether the petitioner is guilty of murder or attempted murder 

beyond a reasonable doubt. (§ 1172.6, subds. (b)(3), (c)–(d); People v. Lewis

(2021) 11 Cal.5th 952, 957.) “If the court declines to make an order to show 
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cause, it shall provide a statement fully setting forth its reasons for doing so.” 

(§ 1172.6, subd. (c).)

B. The Order at Issue Is Appealable Even Though the Dismissal Was 

“Without Prejudice.”

Initially, we address whether the order dismissing Wells’s resentencing 

petition is appealable. “We raise[] this question on our own motion because a 

reviewing court is ‘without jurisdiction to consider an appeal from a 

nonappealable order, and has the duty to dismiss such an appeal upon its 

own motion.’ ” (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.) We 

conclude that even though the trial court purported to dismiss the petition 

without prejudice, Wells could appeal from the order.

Generally, an order is not appealable unless made so by statute. (In re 

Mario C., supra, 124 Cal.App.4th at p. 1307.) Under section 1237, 

subdivision (b), a criminal defendant may appeal “[f]rom any order made 

after judgment, affecting the substantial rights of the party.” Arguably, the 

order dismissing the resentencing petition did not affect Wells’s substantial 

rights because it was “without prejudice” to his filing another petition. (See

People v. Cress (2023) 87 Cal.App.5th 421, 425 [dismissal of section 1172.6 

petition without prejudice permitted defendant to refile it].) 

A trial court’s “characterization of its own order . . . is not controlling,” 

however. (In re Lauren P. (1996) 44 Cal.App.4th 763, 768.) Rather, the 

question is whether the ruling was in fact on the merits. (Ibid.; Guenter v. 

Lomas & Nettleton Co. (1983) 140 Cal.App.3d 460, 465.) Counsel for Wells 

took the position below that the petition had “no viable basis,” suggesting the 

dismissal was not based on a mere procedural deficiency. Indeed, given this 

statement, it is unclear that the trial court and parties contemplated that 

Wells could simply refile the petition. Moreover, Wells’s Faretta motion 

suggests that he did not agree with his counsel’s assessment of the petition’s 
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merits. In short, based on this record, we are unable to conclude that the 

order dismissing the petition did not affect Wells’s substantial rights. 

Accordingly, it was appealable.

C. Wells Is Ineligible for Relief Under Section 1172.6. Because He 

Was Convicted of Premeditated Murder.

Wells’s primary claim is that the section 12022.53(d) enhancement does 

not establish that he was the actual killer, meaning that he was entitled to 

an evidentiary hearing on his eligibility for relief. In Wells II, we held that 

the enhancement did amount to a finding that he was the actual killer. 

Thus, the law of the case doctrine would normally bar him from raising this 

argument. (See People v. Jurado (2006) 38 Cal.4th 72, 94.) 

Nonetheless, we elect to address the claim on the merits. In the

original resentencing petition, Wells alleged only that he was convicted of 

felony murder, but in the current petition, he also alleges that he was 

convicted under the natural and probable consequences doctrine or some 

other theory under which malice was imputed to him. At least one court has 

held that a section 12022.53(d) enhancement, standing alone, does not 

preclude the possibility that a defendant was convicted under the natural and 

probable consequences doctrine. (People v. Offley (2020) 48 Cal.App.5th 588, 

598–599.) And given the evidence that another person was involved in 

Yokoi’s murder, we do not think it is prudent to attempt to resolve Wells’s 

claim based solely on the jury’s verdict.

Rather, to provide certainty, we have consulted the jury instructions 

from Wells’s trial, which were not part of the record before the trial court 

when it decided either resentencing petition.4 The only theory of first degree 

4 On our own motion, we take judicial notice of the appellate record in 

Wells I, which includes the jury instructions given at trial. (See Evid. Code, 

§ 452, subd. (d).)
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murder on which the jury was instructed was willful, deliberate, and 

premeditated murder under CALJIC 8.20. The jury was also instructed 

under CALJIC 8.30 that murder with malice aforethought is second degree 

murder if there is insufficient evidence of deliberation and premeditation. No 

instructions on felony murder, aiding and abetting liability based on the 

natural and probable consequences doctrine, or any other theory of vicarious 

liability were given. 

Thus, even if the jury’s finding on the section 12022.53(d) enhancement

alone did not preclude relief, Wells is nonetheless ineligible for resentencing 

as a matter of law because he was not “convicted of felony murder or murder 

under the natural and probable consequences doctrine or other theory under 

which malice is imputed to a person based solely on that person’s 

participation in a crime.” (§ 1172.6, subd. (a), italics added.) Although Wells

states that he is innocent, section 1172.6 does not provide a mechanism for 

relitigating what the jury already found beyond a reasonable doubt—that he 

committed premeditated murder. (See People v. Clayton (2021) 

66 Cal.App.5th 145, 157 [noting other procedures for raising claim of factual 

innocence and concluding the Legislature intended “to honor prior jury 

findings” in former section 1170.95 proceedings].)

Because Wells is categorically ineligible for relief under section 1172.6, 

any error in the trial court’s disposition of his resentencing petition was

necessarily harmless. (See, e.g., People v. Lewis, supra, 11 Cal.5th at 

pp. 957–958 [assessing prejudice from failure to appoint counsel under 

former section 1170.95].) As a result, we reject Wells’s remaining claims, 

including that the private attorney had a conflict of interest. For the same 

reason, having exercised our discretion to independently review the record, 
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we do not perceive any arguable issues. (See People v. Delgadillo, supra, 

14 Cal.5th at p. 232.)

III.

DISPOSITION

The August 11, 2022 order dismissing Wells’s petition for resentencing 

is affirmed.
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

People v. Wells A166190