Filed 2/25/22 P. v. Williams 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.

MARC L. WILLIAMS, et al.

Defendants and Appellants.

B303054 c/w B307686

(Los Angeles County

Super. Ct. No. SA006461)

APPEAL from orders of the Superior Court of Los Angeles 

County, Upinder S. Kalra, Judge; Lauren Weis Birnstein, Judge. 

Reversed and remanded.

Jin H. Kim, under appointment by the Court of Appeal, for 

Defendant and Appellant Marc Williams.

Eric R. Larson, under appointment by the Court of Appeal,

for Defendant and Appellant Cobert Davis.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Amanda V. Lopez, Ryan M. Smith and William 

H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________
2

Defendants Marc Williams and Cobert Davis appeal the 

summary denial of their petitions for resentencing under Penal 

Code section 1170.95.1 We conclude defendants’ petitions should 

not have been denied as a matter of law, and remand for the 

court to appoint counsel and determine defendants’ eligibility for

relief under the statute.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Crimes, Conviction and Appeal2

Over a two-week period in 1991, defendants engaged in a 

robbery spree – they committed some of the crimes together and 

others alone or with other accomplices. One of the robberies they 

committed together resulted in the death of the victim, by heart 

attack.

“At approximately 3:30 p.m. on April 1, 1991, Archie 

O’Bryant, a 71-year-old man, was at home working in his garage, 

when he was robbed by defendants. At 3:45 p.m., he came into 

his house and told his wife he had been beaten and robbed. His 

head and finger were bloody. He told his wife to call 9-1-1, which 

she did. O’Bryant and his wife both spoke with the 9-1-1 

operator. O’Bryant told the operator he had been beaten and

robbed by two Black men. O’Bryant then sat down on the 

davenport and told his wife that one of the attackers held a 

shotgun to his stomach and the other hit him over the head with 

a pistol. He did not know what they wanted or why they kept 

1 All undesignated statutory references are to the Penal 

Code.

2 Our discussion of the underlying facts is taken from the 

opinion affirming defendants’ convictions (People v. Williams et 

al. (Dec. 23, 1994, B078600) [nonpub. opn.]) of which we have 

taken judicial notice. 
3

hitting him.[

3] After O’Bryant related his story to his wife, he 

had trouble breathing and died of a heart attack. [¶] The cause 

of death was a combination of arteriosclerotic heart disease and 

blunt force injuries. The trauma assisted in his death in that the 

injuries had the effect of increasing O’Bryant’s heart rate, blood 

pressure and strain on his heart. It was the stress from the 

injuries, not the injuries themselves, which caused the heart 

attack; and the heart attack combined with the blunt force 

injuries caused death. O’Bryant was pronounced dead at 

4:51 p.m., although he had no vital signs as early as 4:37 p.m.”

Defendants thereafter used O’Bryant’s credit card three times on 

the day of the robbery. 

Both Williams and Davis were convicted of first-degree 

murder, with a felony-murder special circumstance, and personal 

use of a firearm.

On appeal, defendants argued that the trial court erred in 

its instruction to the jury on the special circumstance. The jury 

had been instructed with the 1990 version of CALJIC No. 8.80.1, 

which provided that the jury could not find the special 

circumstance true for a defendant unless it found that defendant 

was the actual killer, was an aider and abetter with intent to kill, 

or was a major participant acting with reckless indifference to 

human life. Defendants argued in their appellate briefs that the 

court erred by not sua sponte instructing on the meaning of 

“actual killer” and “reckless indifference.” On December 23, 

3 At the preliminary hearing, the detective testified that Mrs. 

O’Bryant told the police that one of the attackers “put a shotgun 

in his chest and kept asking for his ‘pin number.’ He didn’t know 

what that was so he repeated his social security number and the 

assailants continued to hit him with a gun.”
4

1994, a prior panel of this division affirmed, holding that the 

terms were not used in a technical sense, so no duty to instruct 

on their meaning existed in the absence of a request. The court 

continued, “Moreover, any instructional error was harmless. The 

evidence was overwhelming that both defendants were actual 

killers, therefore any instructional error was harmless beyond a 

reasonable doubt. [Citation.] A defendant is an actual killer if 

that defendant’s conduct was a substantial factor contributing to 

the victim’s death.[

4] (People v. Pock (1993) 19 Cal.App.4th 1263, 

1272-1275.) Both defendants robbed O’Bryant in his garage, and 

it was that robbery which caused O’Bryant’s heart attack. 

Defendants contend that O’Bryant’s statements to his wife 

demonstrate that only one attacker beat O’Bryant while the other 

pointed a gun at him. Defendants conclude that only the 

assailant who beat O’Bryant was the actual killer, the other was 

an aider and abetter. We disagree. It was not the beating per se 

that killed O’Bryant, but the stress of the robbery that caused his 

heart attack.[

5] Thus, both defendants were substantial causes of 

the heart attack. (See People v. Anderson (1987) 43 Cal.3d 1104, 

1152, fn. 3 (conc. and dis. opn. of Broussard, J.) [death penalty 

4 At this point, the court, in a footnote, rejected Williams’s 

argument that an act is not a substantial factor unless it is an 

intentional act done with conscious disregard for human life and 

likely to cause death. 

5 The court inserted a footnote reading: “This is not a case 

where one of the perpetrators waited in a getaway car while the 

other robbed the victim. Instead, both defendants participated in 

the attack on O’Bryant, even if only one defendant did the actual 

hitting while the other defendant kept O’Bryant in place with his 

weapon.”
5

available for a defendant burglar who startles a resident who 

subsequently dies of a heart attack].) Since both defendants were 

actual killers, any instructional error was harmless beyond a 

reasonable doubt.”

2. Prior Habeas Petition

On June 6, 2018, Davis filed a petition for habeas corpus in 

the trial court. He relied on the intervening decisions in People v. 

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 

63 Cal.4th 522 (Clark), which set forth factors to be considered in 

determining whether a defendant was a major participant who 

acted with reckless indifference to human life. In his petition, 

Davis argued that he was merely “an aid[er] an[d] abettor to the 

planning and robbery of Archie O’Bryant” and did not act with 

reckless indifference. 

On September 13, 2018, the court (Hon. Lauren Weis 

Birnstein) summarily denied Davis’s habeas petition. The trial 

court’s order indicated that it adopted the facts set forth in this 

division’s prior opinion affirming the conviction, which was 

apparently attached to an informal return filed by the district 

attorney. The trial court stated, “In the appellate opinion, the 

Court determined that there was overwhelming evidence that 

both defendants were Mr. O’Bryant’s actual killers because the 

conduct of each was a substantial factor contributing to the 

victim’s death. The court stated that it was not the beating per se

that killed the victim, but the stress of the robbery that caused 

his heart attack. Thus, ‘both defendants were substantial causes 

of the heart attack.’ [¶] Because [Davis] was an actual killer he, 

of course, was a major participant in Mr. O’Bryant’s death.” The 
6

court found that the string of crimes Davis committed with 

Williams demonstrated reckless indifference.6

3. Proceedings on Section 1170.95 Petitions

A. Williams

On June 3, 2019, Williams filed a form petition for 

resentencing under Penal Code section 1170.95.7 In his petition, 

he checked all the necessary boxes – among them, that he was 

6 Our review of the chronology set forth in this division’s

prior opinion indicates that the O’Bryant robbery/murder was the 

first known crime that both defendants committed together. 

Williams had committed a robbery the day before with “an 

unseen accomplice,” but only Williams was convicted of that 

crime. 

7 The section 1170.95 petition in our appellate record is 

marked “received” on June 3, 2019. It is otherwise undated. 

There is a minute order from four months earlier, February 1, 

2019, indicating that Williams’s petition was received and set for

proceedings on April 2, 2019. A minute order on April 2, 2019 

continued proceedings to June 3, 2019 for the prosecution’s 

response to the petition and indicated counsel would be appointed 

for Williams at that time. The reporter’s transcript for June 3, 

2019 shows the presence of a bar panel attorney, who was ready 

to be appointed, but neither the court nor counsel could find 

Williams’s petition. Counsel and the trial court (Hon. Leslie E. 

Brown) also discussed the fact that the trial court had prepared a 

tentative ruling denying Williams’s petition. Upon further 

review of the file, no petition for Williams could be found. 

Thereafter, a new petition for Williams was filed, the court 

appointed counsel, and counsel filed a preemptory challenge to

Judge Brown, who had previously indicated an intention to deny 

the petition. The matter was transferred to a different judge

(Hon. Upinder Kalra), who ruled on the section 1170.95 petition. 
7

convicted of felony murder and was not the actual killer, did not 

act with intent to kill, and was not a major participant acting 

with reckless indifference to human life. The court appointed 

counsel. Prior to the prosecution filing an opposition, the trial 

court summarily denied the petition with a written order. The 

court stated that, having reviewed the Court of Appeal opinion on 

direct appeal, it was clear that Williams could not establish a 

prima facie case of eligibility for relief. Specifically, the court 

stated that “the Court [of Appeal] explicitly found that Petitioner 

was one of the actual killer[s] and not an aider and abettor.”

Williams filed a timely notice of appeal.8

B. Davis

On March 9, 2020, Davis filed a form petition for 

resentencing under section 1170.95, in which he made the same 

assertions as Williams. On July 1, 2020, the court (Judge Weis 

Birnstein) set the matter for a hearing the next day regarding the 

appointment of counsel. At the July 2, 2020 hearing, the court 

initially indicated its understanding that defendant’s jury had 

been instructed on felony murder, and that the court would 

therefore be required to determine whether defendant was a 

major participant who acted with reckless indifference. The court 

stated its intention to appoint counsel. After further discussion, 

Judge Weis Birnstein recalled that she had previously ruled on 

Davis’s habeas petition, and went off the record so the parties 

could review the ruling on the habeas petition. Back on the 

record, the court stated that the habeas ruling addressed the 

8 Williams did not initially file a timely notice of appeal, but 

we granted him relief from default and 10 days in which to file a 

notice of appeal, with which he complied. 
8

issues under Banks, and concluded it was now unnecessary to 

appoint counsel for Davis. 

On July 29, 2020, the court summarily denied Davis’s 

1170.95 petition by written order. Just as Judge Kalra had 

reasoned in denying Williams’s petition, Judge Weis Birnstein

relied on the prior Court of Appeal decision to deny Davis’s 

petition. She stated that the Court of Appeal determined, “that 

there was overwhelming evidence that both defendants were Mr. 

O’Bryant’s actual killers because the conduct of each was a 

substantial factor contributing to the victim’s death. The court 

stated that it was not the beating per se that killed the victim, 

but the stress of the robbery that caused his heart attack. Thus, 

‘both defendants were substantial causes of the heart attack.’ [¶] 

Because Petitioner was an actual killer he, of course, was a major 

participant in Mr. O’Bryant’s death. His behavior throughout 

these multiple, similar crimes, i.e. threatening death, beating 

victims in the head, and using a shotgun to terrorize, a fortiori

demonstrate a reckless indifference to the grave risk of death he 

created by his actions in the O’Bryant crime. The evidence of 

defendant’s individual culpability was overwhelming.”

Davis filed a timely notice of appeal.9 Following briefing, 

we consolidated the matters for oral argument and decision.

9 The minute order which memorialized the court’s ruling 

denying Davis’s section 1170.95 petition erroneously 

characterized it as a habeas petition. For perhaps this reason, 

Davis attempted to challenge the ruling by filing a habeas 

petition with this court. We directed the superior court to file the 

petition as a notice of appeal.
9

DISCUSSION

Section 1170.95 provides an opportunity for resentencing 

for defendants who were convicted of murder on a theory of felony 

murder or natural and probable consequences. When a 

defendant files a petition for resentencing under section 1170.95, 

the trial court is to review it for facial sufficiency. If it is 

factually sufficient and the defendant requests counsel, the court 

must appoint counsel. (People v. Lewis (2021) 11 Cal.5th 952, 957

(Lewis).) Once counsel is appointed, the matter is briefed and the 

court “shall 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.” (§ 1170.95, subd. (c).) 

“While the trial court may look at the record of conviction 

after the appointment of counsel to determine whether a 

petitioner has made a prima facie case for section 1170.95 relief, 

the prima facie inquiry under subdivision (c) is limited. Like the 

analogous prima facie inquiry in habeas corpus proceedings, 

‘ “the court takes petitioner’s factual allegations as true and 

makes a preliminary assessment regarding whether the 

petitioner would be entitled to relief if his or her factual 

allegations were proved. If so, the court must issue an order to 

show cause.” ’ [Citation.] ‘[A] court should not reject the 

petitioner’s factual allegations on credibility grounds without 

first conducting an evidentiary hearing.’ [Citation.] ‘However, if 

the record, including the court’s own documents, “contain[s] facts 

refuting the allegations made in the petition,” then “the court is 

justified in making a credibility determination adverse to the 

petitioner.” ’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 971.)
10

Defendants contend, and the Attorney General now agrees, 

that the trial court erred by denying their petitions without 

allowing briefing by counsel for defendants.10 (Lewis, supra, 

11 Cal.5th at p. 957.) The only issue left for determination is 

whether that error was harmless. The error is one of state law, 

reviewed for prejudice under the standard of People v. Watson

(1956) 46 Cal.2d 818, 836. (Lewis, at pp. 957-958.) Under that

standard, defendants have the burden to demonstrate a 

reasonable probability that they would have obtained a more 

favorable result had counsel been appointed. (Id. at p. 974.)

The Attorney General argues that the error is harmless as 

a matter of law because defendants were nonetheless ineligible 

for relief for two reasons: (1) the jury’s true finding on the 

special circumstance precludes relief; and (2) the prior opinion of 

this court established that both defendants were actual killers. 

We disagree.

A. The Special Circumstance Finding Does Not Preclude 

Relief

Defendants were convicted prior to the opinions in Banks

and Clark which “construed the meanings of ‘major participant’

and ‘reckless indifference to human life’ ‘in a significantly 

different, and narrower manner than courts had previously.’ 

[Citation.]” (People v. Smith (2020) 49 Cal.App.5th 85, 93

(Smith), review granted July 22, 2020, S262835.) We have held 

10 Counsel was appointed for defendant Williams, but the 

court denied the petition prior to briefing or a hearing. The 

Attorney General concedes this was error. Similarly, the 

Attorney General concedes the trial court erred by “terminating 

its order to appoint counsel” for Davis. 
11

that a felony murder special circumstance which predates Banks

and Clark is an insufficient basis on which a trial court may deny 

a petition for relief at the first stage, which determines only if the 

defendant is ineligible for relief as a matter of law. (People v. 

Torres (2020) 46 Cal.App.5th 1168, 1179 (Torres). See also People 

v. Mejorado (2022) 73 Cal.App.5th 562, 571.) Because Banks and 

Clark “clarif[ied]” the law, a special circumstance which predated 

those cases does not necessarily satisfy the current, more narrow 

requirements. (Torres, at p. 1179.)11

11 A number of cases have disagreed with Torres, and held 

that a pre-Banks/Clark special circumstance is a sufficient basis 

on which to conclude a defendant is ineligible for relief under 

section 1170.95, suggesting that the proper procedure for the 

defendant to raise Banks and Clark is via a habeas petition. 

(E.g., People v. Galvan (2020) 52 Cal.App.5th 1134 (Galvan), 

review granted Oct. 14, 2020, S264284; see also People v. Nunez

(2020) 57 Cal.App.5th 78 (Nunez), review granted Jan. 13, 2021, 

S265918; People v. Jones (2020) 56 Cal.App.5th 474, 483-485 

(Jones), review granted Jan. 27, 2021, S265854; People v. Allison

(2020) 55 Cal.App.5th 449, 452 (Allison); People v. Murillo (2020) 

54 Cal.App.5th 160, 173 (Murillo), review granted Nov. 18, 2020, 

S264978; People v. Gomez (2020) 52 Cal.App.5th 1, 16-17 

(Gomez), review granted Oct. 14, 2020, S264033.) On appeal, the 

Attorney General cites to several of these cases and argues 

against Torres. We have already addressed and disagreed with 

Galvan’s analysis (People v. York (2020) 54 Cal.App.5th 250, 260-

263, review granted Nov. 18, 2020, S264954). We also 

respectfully disagree with Nunez, Jones, Allison, Murillo and 

Gomez, and adhere to the rule we expressed in Torres. The 

Supreme Court will resolve the dispute in People v. Strong

(Dec. 18, 2020, C091162), 2020 WL 7417057 [nonpub. opn.], 

review granted Mar. 10, 2021, S266606.)
12

The Attorney General argues, in the alternative, that even 

if Torres is correct and a pre-Banks and Clark special 

circumstance finding does not render the defendant ineligible for 

relief as a matter of law, any error was harmless. The argument 

continues that whether a defendant’s conviction satisfies Banks

and Clark is a legal determination which should be made de novo 

by this court on appeal. If the de novo determination shows that 

the Banks and Clark requirements were satisfied, any error by 

the court under section 1170.95 would be harmless. We have 

previously rejected this argument as well. The determination of 

whether a defendant was a major participant acting with reckless 

indifference within the meaning of Banks and Clark is a factual 

determination which cannot be conducted at this stage as a 

matter of law by simply reviewing the existing record. (Smith, 

supra, 49 Cal.App.5th at p. 95; contra People v. Law (2020) 

48 Cal.App.5th 811, 816, 822, review granted July 8, 2020, 

S262490.) This is so because the factual record “is not the only 

consideration the trial court must take into account for purposes 

of section 1170.95. Where the record of conviction does not 

preclude a petitioner from making a prima facie showing that he 

falls within the statute’s provisions as a matter of law, the 

petitioner is not confined to presenting evidence contained in the 

record of conviction in seeking relief.” (Smith, at p. 95.)

B. The Prior Appellate Opinion Is Not Binding

We now come to the reason given by both trial courts for 

denying defendants’ section 1170.95 petitions (and defendant 

Davis’s prior petition for habeas corpus) – that the prior opinion 

by a different panel of this court stated “[t]he evidence was 

overwhelming that both defendants were actual killers . . . .”
13

The California Supreme Court in Lewis confirmed that a 

trial court, in evaluating whether the moving defendant has 

established a prima facie case under 1170.95, may “look at the 

record of conviction.” (Lewis, supra, 11 Cal.5th at p. 971.) This

includes the prior appellate opinion. (Id. at p. 972.) However, 

“[i]n reviewing any part of the record of conviction at this 

preliminary juncture, a trial court should not engage in 

‘factfinding involving the weighing of evidence or exercise of 

discretion.’ [Citation.] As the People emphasize, the ‘prima facie 

bar was intentionally and correctly set very low.’ ” (Ibid.)

12 

In People v. Langi (2022) 73 Cal.App.5th 972 [2022 WL 

110250], Division Four of the First Appellate District addressed 

the issue of reliance on factual determinations in prior appellate

opinions. In Langi, the defendant was one of four men who beat 

and robbed a group of men. One of the victims died after 

someone in defendant’s group punched him, causing him to fall 

and hit his head. (Id. at p. *1.) On direct appeal, the court’s 

opinion affirming defendant’s conviction stated that defendant 

was the individual who threw the fatal punch. (Id. at p. *1.) 

12 At the time of the petitions filed in this case, and the 

Supreme Court’s Lewis opinion, section 1170.95, subd. (d)(3) 

provided that, at “the hearing to determine whether the 

petitioner is entitled to relief,” the parties may “rely on the record 

of conviction.” As amended by Senate Bill No. 775, effective 

January 1, 2022, that clause has been removed; the statute 

instead provides that the court “may consider any evidence 

previously admitted at any prior hearing or trial that is 

admissible under current law, including witness testimony, 

stipulated evidence, and matters judicially noticed. The court 

may also consider the procedural history of the case recited in 

any prior appellate opinion.” The parties have not briefed the 

effect of this amendment, and we do not consider it.
14

When defendant subsequently pursued a section 1170.95 petition, 

the trial court denied the petition on the basis that the appellate 

opinion had stated defendant was the one who had thrown that 

punch, and was therefore the actual killer. (Id. at p. *2.) On 

appeal, the court explained that the trial court treated the prior 

appellate opinion “as conclusively establishing that the jury 

found appellant guilty as the actual killer. Although 

understandable in view of explicit statements in this court’s prior 

opinion, the trial court erred in treating those statements as 

conclusive.” (Id. at p. *3.) “Despite the statement in our prior 

opinion that appellant threw the punch leading to the victim’s 

death, for which the record does include evidence, the record as a 

whole leaves room to question that conclusion.” (Id. at p. *4.) 

“The jury was not required to find, and did not necessarily find, 

that it was appellant who threw that punch. Read with the 

caution dictated by Lewis, the prior opinion does not conclusively 

establish that appellant was convicted as the actual killer.” (Id.

at p. *4.)

The observations by the Langi court apply equally here. 

Our division’s prior opinion itself states that defendants were 

“convicted of felony murder.” There is nothing in the opinion, or 

the limited record before us, confirming that the jury was 

required to find, or did find, that either defendant was the actual 

killer of O’Bryant. The opinion acknowledges only one defendant 

struck O’Bryant, and it is unknown which of the two defendants 

did so.

To the extent the Attorney General relies on the prior 

panel’s conclusion that any jury instruction error was harmless 

because the evidence defendants were both actual killers “was 

overwhelming,” the argument misperceives the limited nature of 
15

the prima facie inquiry and fails to take into account the 

inconsistencies of the prior panel’s opinion.

13 The question before 

the trial court at the prima facie hearing is whether the 

petitioners would be entitled to relief if their factual allegations 

were proven. (Lewis, supra, 11 Cal.5th at p. 971.) The issue is 

not whether there was overwhelming evidence at trial that 

defendants were actual killers, but whether the record 

conclusively proves defendants would be unable to establish the 

contrary assertion in their petitions. Given that the jury did not 

necessarily find that both were actual killers, the inconsistencies 

in the description of cause of death as described in the appellate 

opinion and defendants’ ability to argue based on additional parts 

of the record, we cannot find the prior opinion’s evaluation of the 

then-existing evidence preclusive.14

This is particularly so because the standard for 

determining “actual killer” has changed in the intervening years. 

While the prior panel of this division relied on the substantial 

factor standard of People v. Pock, supra, 19 Cal.App.4th at 

pages 1272-1275, recent authority has concluded the proper 

standard is whether the defendant “personally” killed the victim. 

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

personally killed standard interacts with the felony murder 

13 We emphasize, however, that no prima facie hearing, with 

counsel, was actually held for either defendant. Our inquiry here 

is not whether the trial courts made erroneous determinations at 

prima facie hearings, but whether the trial court failures to hold 

such hearings was harmless.

14 The trial court’s summary denial of Davis’s habeas petition 

is similarly not controlling. (Torres, supra, 46 Cal.App.5th at 

p. 1180, fn. 4.)
16

liability if the robbery itself (rather than only the beating) causes

the death (People v. Stamp (1969) 2 Cal.App.3d 203, 210-211) is 

an issue not yet ripe for analysis given the limited scope of our 

review.

DISPOSITION

The orders denying defendants’ petitions for resentencing 

are reversed. The matters are remanded for the court to hold 

hearings under section 1170.95, subdivision (c).

RUBIN, P. J.

WE CONCUR:

MOOR, J.

KIM, J.