1

Filed 11/25/20 P. v. Bell 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or
or dered 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. WALTER LEE BELL,
Defendant and Appellant. A158213

(Contra Costa County Super. Ct. No. 5

- 110611

- 1)

Walter Lee Bell appeals from an order summarily denying his petition
for resentencing pursuant to Penal Code 1 section 1170.95. (See § 1237,

subd. (b) ; Teal v. Superior Court (2014) 60 Cal.4th 595, 597 .) Bell’ s appointed
appellate counsel has filed a brief pursuant to People v. Wende (1979)

25 Cal.3d 436, 441

– 442 ( Wende )

. Although Bell’ s appellate counsel advised

Bell of his right to file a supplemental brief

— bring ing to this court ’ s attention
any issue he believe d deserve d review

— Bell has not done so

. There is currently a split among appellate courts regarding whether an
appeal from the summary denial of a section 1170.95 petition should be
subject to Wende review. (See People v. Flores (2020) 54 Cal.App.5th 266, 269
[“when an appointed counsel files a Wende brief in an appeal from a summary

1 All statutory references are to the Penal Code unless otherwise specified.2

denial of a section 1170.95 petition, a Court of Appeal is not required to
independently review the entire record, but the court can and should do so in
the interests of justice”] ; People v. Cole (2020) 52 Cal.App.5 th 1 023, 1028

–

1029

, review granted Oct . 1 4 , 2020, S26 4278 [dismissing as abandoned

Wende appeal from the summary denial of a section 1170.95 petition ; noting

that the “ court has the duty to address any issues raised by the defendant [in
supplemental briefing] but otherwise may dismiss the appeal without

conducti ng an independent review of the record”] .) Assuming without
deciding that Wende review is available in these proceedings, o ur independent review of the record has reveal ed no arguable issues . W e

therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND 2

The Contra Costa County District Attorney filed an information in
Contra Costa County Superior Court on May 9, 2011, charging Bell with the
January 20, 2009 malice aforethought murder of Rylan Fuchs (§ 187,

subd. (a).) The information included a special a llegation that Bell
intentionally and personally discharged a firearm, causing great bodily injury
and death to Fuchs within the meaning of section 12022.53, subdivision (d).
It also alleged that the murder had occurred during the commission of an

attempt ed robbery within the meaning of section 190.2, subd ivision (a)(17).
At the subsequent jury trial, “ [t]he prosecution ’ s theory of the case was
that Bell, Aaron Marks, and others planned to rob Rylan Fuchs, a marijuana

2 In addition to the record before us, this factual recitation is drawn from our prior unpublished opinion in the matter ( People v. Bell ( Dec. 31

, 2014, A1 39053 ) [nonpub. opn .] ), a part of Bell’s underlying record of conviction which the trial court judicia lly noticed in its consideration of the instant petition. (See People v. Woodell (1998) 17 Cal.4th 448, 456

– 457; People v. Brimmer (2014) 230 Cal.App.4th 782, 800.)3

seller, under the pretext of buying four ounces of marijuana from him; Bell
shot Fuchs during the botched robbery attempt. The defense was that
defendant went with Marks to buy marijuana, did not know Marks planned
to rob Fuchs, and Marks shot Fuchs.” ( People v. Bell

, supra , A139053 .) On
May 13, 2013, the jury found Bell guilty as charged and found the special
allegations true. Bell was sentenced on June 21, 2013, to life without the
possibility of parole, with a consecutive sentence of 25 years to life on the

enhancement under section 1 2022.53, subdivision (d). On appeal, we
affirmed Bell’s conviction in December 2014. ( People v. Bell

, supra , A139053.)
In March 2019, Bell filed a form petition seeking resentencing pursuant
to section 1170.95 and requested appointment of counsel. The court
appointed counsel for Bell that same month. Thereafter, in May 2019, both
the prosecutor and Bell’s attorney indicated they were submitting the matter
on the petition without further briefing. The trial court summarily denied
the petition by order dated July 17, 2019, finding that Bell was not eligible

for relief under section 1170.95 because he was the actual killer.

DISCUSSION
In 2018, Senate Bill No. 1437 was enacted “to amend the felony murder

rule and the natural and probable consequences d octrine, 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(f).) Thus, s ection 1170.95 relief is not
available for a defendant who personally commits murder. ( People v.

Cornelius (2020) 44 Cal.App.5th 54, 58 , review granted Mar. 18, 2020,

S260410 ( Cornelius ) ; see People v. Edwards (2020) 48 Cal.App.5th 666, 674

–4

675 , review granted July 8, 2020, S262481 ( Edwards ) .) As detailed above,

the record of conviction contains the jury’s finding beyond a reasonable doubt
that Bell personally discharged a firearm, killing Fuc hs. Here, the question
at trial was the identity of the shooter. Thus, by making this finding the jury
necessarily found that Bell was the actual killer. (Cf. People v. Jones (2003)
30 Cal.4th 1084, 1120.)
We are aware that the Supreme Court has grante d review on the issue
of whether the trial court can rely on the record of conviction to conclude that

a petitioner has failed to make a prima facie showing of eligibility for relief

under section 1170.95. (See People v

. Lewis (2020) 43 Cal.App.5th 1128,

review granted Mar. 18, 2020, S260 59 8.) However , in this appeal we are
required to judicially notice our prior opinion in this matter, as the trial court
took judicial notice of it during its consideration of the instant petit ion. (See
Evid. Code, § 459, subd. (a).) And our opinion establishes as a matter of law
that Bell is ineligible for relief under section 1170.95. Thus, even if the trial
court here erred by summarily denying the petition, Bell cannot demonstrate
prejudi ce, and remand for any further hearing on the petition would be futile.
(See Edwards, supra, 48 Cal.App.5th at p. 675; Cornelius

, supra ,
44 Cal.App.5th at p. 58.) T he law does not require idle acts. (Civ. Code,
§ 3532.)

DISPOSITION

The order denying Bell ’s section 1170

. 95 petition is affirmed.5 _________________________ Sanchez, J.

WE CONCUR:

_________________________ Margulies, Acting P. J.

_________________________ Banke, J.