Filed 11/17/20 P. v. Grundy CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

WILLIAM GRUNDY,

Defendant and Appellant.

B303346

(Los Angeles County

Super. Ct. No. A615700)

APPEAL from an order of the Superior Court of Los 

Angeles County, Tammy C. Ryu, Judge. Reversed and remanded 

with directions.

Vanessa Place, 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, Idan Ivri and Peggy Z. Huang, Deputy 

Attorneys General, for Plaintiff and Respondent.

______________________
2

Defendant and appellant William Grundy was convicted of 

felony murder. Almost forty years later, he filed a petition for 

resentencing under newly-enacted Penal Code section 1170.95.1 

The trial court appointed counsel for defendant and set the 

matter for a hearing, then denied the petition on the basis that 

defendant had not made a prima facie showing of entitlement to 

relief. Defendant appeals. On appeal, the Attorney General

concedes that defendant established a prima facie case. We 

accept the concession and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Crime2

On February 15, 1979, defendant and a 17-year-old 

referred to as Kevin D. went to the victim’s house after discussing

“making some money.”3 Kevin kicked the back door open and the 

victim, Robert Kadous, was standing inside. Kevin demanded 

money and Kadous handed defendant a wallet containing money, 

which defendant removed. 

Defendant “took a brass chime rod from a wall and said, 

‘Man, we are going to have to – we are going to have to take him 

1 All undesignated statutory references are to the Penal 

Code.

2 As we shall discuss, defendant’s conviction resulted in two 

appellate opinions, which are largely identical for our purposes. 

We take our discussion of the facts from the second opinion, 

which was part of the trial court record as an exhibit. (People v. 

Grundy, case No. 2 Crim. 36905, Mar. 20, 1982.) 

3 Defendant’s age is not mentioned in the appellate opinion. 

The probation report states he was 18 years old at the time of the 

offense. 
3

out the game so he won’t say nothing.’ ” Defendant struck 

Kadous on the head, behind the ear, with the chime. Defendant 

fled. Kadous walked from his house, to a neighbor. At the 

neighbor’s house, Kadous complained that two men had come to 

his house and had beaten him. His face was redder than usual. 

After speaking, Kadous turned, slumped to the ground, let out a 

long breath, and was still. By the time the police arrived, he was 

dead.

The autopsy “disclosed that the victim’s heart was enlarged 

and there were several areas of scarring which indicated he had 

had previous heart attacks. The coronary arteries were generally 

in very poor condition. The cause of death was a heart attack.” 

The prosecution offered the testimony of a cardiac specialist that 

“the heart attack suffered by the victim was due to the stress 

which he had just suffered in the encounter with [defendant].” 

The deputy coroner did not agree as to the exact mechanism of 

the heart attack, but nonetheless opined that “the incident in 

which the victim had been involved did produce physiological 

reactions which accounted for the sudden collapse and death of 

the victim.” The defense offered the testimony of two other 

physicians who disagreed with these conclusions.

2. Trial and Appeals

Defendant was charged by information with murder 

(§ 187), with the special circumstances of robbery-murder and 

burglary-murder. Defendant was also charged with burglary 

(§ 459) and robbery (§ 211). The latter charge was later reduced 

to attempted robbery. In connection with the burglary and 

attempted robbery, it was alleged that defendant inflicted great 

bodily injury on the victim (§ 12022.7) and the victim was over 

the age of 60 (§ 1203.09).
4

Defendant waived jury and the matter proceeded by bench 

trial. The trial court found defendant guilty as charged. The 

prosecution had not sought the death penalty, so defendant was 

sentenced to life in prison without the possibility of parole

(LWOP). Terms for burglary and robbery were imposed and 

stayed pending completion of the LWOP sentence. 

Defendant appealed. Division Four of the Second Appellate 

District initially affirmed his conviction, in an opinion dated 

January 21, 1981. On appeal, defendant had argued “there was 

insufficient evidence to show that the cause of death of the 

victim, Mr. Kadous, was related to the burglary and robbery of 

which [defendant] was convicted.” The court disagreed, finding 

substantial evidence “to permit the trial court, in its discretion, to 

determine that the death of the victim was causally related to the 

offenses perpetrated by [defendant] and his companion.” 

Defendant had also argued that the LWOP sentence constituted 

cruel and unusual punishment, and noted that the trial court had 

stated it would have exercised its discretion to impose a lesser 

sentence, if it had the power to do so. The court concluded the 

LWOP sentence did not constitute cruel and unusual 

punishment. Defendant petitioned for Supreme Court review.

Thereafter, the California Supreme Court concluded that 

trial courts possess the power to strike special circumstances 

(People v. Williams (1981) 30 Cal.3d 470, superseded by statute 

in § 1385.1). The Supreme Court retransferred the case to the 

Court of Appeal for reconsideration in light of Williams. The 

Court of Appeal issued its second opinion on March 25, 1982. It 

restated, almost word-for-word, its original opinion with respect 

to the facts and the causation issue. Turning to defendant’s cruel 

and unusual punishment argument, the court declined to reach 
5

it. Given that the trial court had indicated an intention to 

exercise discretion to not sentence defendant to LWOP if such 

discretion existed, and the Williams opinion holding that there 

was such discretion, the court remanded to allow the court to 

exercise its discretion. 

On remand, the trial court reduced defendant’s LWOP 

sentence to a term of 25 years to life. 

3. Section 1170.95 Petition 

On March 25, 2019, defendant, representing himself, filed a 

form petition for resentencing under section 1170.95. He checked 

all the relevant boxes entitling him to relief, and requested 

appointment of counsel. While the record on appeal does not 

include any initial order on the petition, it appears that the court 

appointed counsel for defendant, permitted briefing, and 

scheduled a hearing.

On July 3, 2019, the prosecution filed an opposition to the 

petition. The bulk of the opposition was directed to the 

argument, not pursued on appeal, that section 1170.95 is 

unconstitutional. The prosecution also argued, by relying on the 

facts as set forth in the second appellate opinion, that defendant 

was not entitled to relief, on the basis that (1) he was the actual 

killer and (2) he had intent to kill.

On September 17, 2019, the public defender filed a reply on 

defendant’s behalf. The argument was solely directed to the 

constitutionality of section 1170.95, and did not otherwise

attempt to argue an entitlement to relief.4

4 There is no suggestion on appeal that the failure to respond 

to the prosecution’s factual argument constituted a waiver. 
6

The court held a hearing on October 18, 2019.5 At the 

hearing, the 1170.95 court concluded defendant was not eligible 

for relief. The court first suggested that defendant was the 

actual killer, on the basis that the Court of Appeal had found 

sufficient evidence of causation. But even assuming that 

defendant was not the actual killer, the 1170.95 court concluded 

the evidence indicated that defendant was a major participant in 

the robbery who acted with reckless disregard for human life and 

that “is affirmed by the special circumstance finding . . . .” 

The 1170.95 court therefore denied the petition. Defendant 

filed a timely notice of appeal. 

DISCUSSION

1. Proceedings on a Section 1170.95 Petition

In 2018, the Legislature adopted Senate Bill No. 1437 

which, among other things, amended the felony-murder rule. 

(People v. Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo) 

review granted Mar. 18, 2020.) It amended section 189 to provide 

that a defendant who was not the actual killer cannot be 

convicted of felony murder unless the defendant acted with the 

intent to kill or was a major participant who acted with reckless 

indifference to human life.

A section 1170.95 petition provides a means for retroactive 

relief for defendants whose murder convictions do not satisfy the 

requirements of the amended law. Once a section 1170.95 

petition is filed, there follows a multi-step process by which the 

court first determines whether the petition is facially complete, 

and, if so, whether the petitioner has made a prima facie showing 

that he falls within the provisions of statutory eligibility. (People 

5 We refer to this court as the “1170.95 court,” to distinguish 

from the original trial court.
7

v. Torres (2020) 46 Cal.App.5th 1168, 1177 review granted 

June 24, 2020.) If the court determines at this first stage the 

petitioner is ineligible for relief as a matter of law, the petition is 

denied; if not, the court proceeds to the next step. (Id. at p. 1178.) 

That step requires the court to appoint counsel for the defendant, 

if requested, and permit briefing on the issue of the defendant’s 

entitlement to relief under the statute. (Verdugo, supra, 

44 Cal.App.5th at p. 330.) If the defendant establishes “the postbriefing prima facie showing the petitioner is ‘entitled to relief’ ” 

(id, at p. 329), then the court issues an OSC and proceeds to the 

third stage. At the third stage, the court holds a hearing to 

determine whether to vacate the murder conviction, recall the 

sentence, and resentence the defendant on any remaining counts. 

(§ 1170.95, subds. (c) & (d); Verdugo, at p. 328.)

Here, the 1170.95 court apparently found initial eligibility, 

appointed counsel, and permitted briefing on entitlement to 

relief. It did not issue an OSC, as it concluded defendant did not 

establish a post-briefing prima facie showing of entitlement to 

relief.

2. Defendant Established a Prima Facie Showing of 

Entitlement to Relief

On defendant’s appeal, the Attorney General initially 

argued defendant was not entitled to relief because he was the 

actual killer or acted with intent to kill, as a matter of law, based 

on the trial court having found the felony-murder special 

circumstances true. Upon further review of the law applicable at 

the time of defendant’s conviction, the Attorney General filed a 

supplemental brief, conceding defendant is not ineligible for relief 

as a matter of law. We accept the concession.
8

Section 189, as amended by Senate Bill No. 1437, provides 

that a participant in a felony murder is liable for murder only if 

the defendant (1) was the actual killer; (2) with the intent to kill 

aided and abetted the actual killer; or (3) was a major participant 

in the underlying felony who acted with reckless indifference to 

human life. (§ 189, subd. (e).) We briefly address whether any of 

these three alternatives has been established as a matter of law.

A. Actual Killer

The 1170.95 court concluded that defendant was the actual 

killer, on the basis that the Court of Appeal upheld defendant’s 

conviction against a challenge that there was insufficient 

evidence of causation. But recent authority has held that the 

“actual killer is the person who personally kills the victim,”

(People v. Garcia (2020) 46 Cal.App.5th 123, 152, 155), and the 

opinion resolving defendant’s direct appeal did not decide that 

precise question. Exploration of that issue via an order to show 

cause is accordingly necessary.

B. Intent to Kill

The trial court found the felony-murder special 

circumstances true. The question is whether, in 1979, a felonymurder special circumstance required a finding of intent to kill. 

The answer is “not necessarily.”

As discussed by the Attorney General in its supplemental 

brief, in 1983, the Supreme Court concluded that the 1978 death 

penalty initiative (Proposition 7) must be interpreted to require 

an intent to kill as an element of the felony-murder special 

circumstance. (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].) But how had the initiative been interpreted in 1979, at 
9

the time of defendant’s crime and trial? It was not clear; the 

Carlos opinion itself acknowledges that the issue was raised by a 

number of pending appeals. (Carlos, at p. 136, fn. 6.) There were 

cases, during this era, in which the jury was not instructed that 

intent to kill was a necessary element of felony-murder. (See, 

e.g., People v. Poggi (1988) 45 Cal.3d 306, 315, 326 [crime 

committed in 1980, jury not instructed that intent to kill was a 

necessary element]; People v. Kelly (1985) 163 Cal.App.3d 619, 

621-622 [crime committed in 1979, jury not instructed that intent 

to kill was a necessary element].) It is therefore not certain that, 

at the bench trial, the court concluded defendant had an intent to 

kill.6

C. Major Participant Acting With Reckless 

Indifference

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. 

(Tapia v. Superior Court (1991) 53 Cal.3d 282, 286, 297-298.) 

Defendant’s trial, which predated this development by over 10 

years, could not have conclusively resolved the issue.

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

reversed and the matter remanded with directions for the trial 

6 While there is evidence that would support a finding 

defendant intended to kill – specifically, his statement about 

taking Kadous out of the game – there is also evidence that the 

trial court did not make such a finding. Specifically, the first 

appellate court opinion, in its discussion of the cruel and unusual 

punishment argument, indicates, “The trial judge stated he did 

not believe that the appellant intended to kill the victim.” 
10

court to issue an order to show cause and hold a hearing on 

whether defendant’s murder conviction should be vacated.

RUBIN, P. J. 

WE CONCUR:

BAKER, J.

KIM, J.