Filed 2/2 5 /22 P. v. Williams 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

MARC L. WILLIAMS, et al.

Defendant s and Appellant s

. B 303054 c/w B 307686

(Los Angeles County Super. Ct. No. SA006461 )

APPEAL from order s 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 Attorney s General, for Plaintiff and Respondent.

__________________________2 Defendant s Marc Williams and Cobert Davis appeal the summary denial of their petition s for resentencing under Penal
Code section 1170.95. 1 We conclude defendants ’ petition s 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 Appeal 2
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

. H e 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 unde rly ing facts is taken from the opinion affirming defendants ’ conviction s ( People v. Williams et al. ( Dec. 23, 1994 , B 078600 ) [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 attac k. [ ¶ ] 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
circumstan ce 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

. D efendants argued in their appellate briefs that the

co urt 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

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

on thei r meaning exist ed 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 ga rage, 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
assaila nt 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 cause s 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 argume nt that an act is not a substantial factor unless it is an intentional ac t done with conscious disregard for human life and likely to cause death

.

5 The court inserted a footnote read ing : “ This is not a case where one of the perpetrators waited in a ge taway 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, D a vis filed a petition for habeas corpus in
the trial court. He relied on the intervening decisions in People v.
Bank s (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,
Dav is 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 d istrict

a ttorney. 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 be c ause the
conduct of each was a substantial facto r contributing to the

v i ctim ’ s death. The c ourt 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. ’ [¶] Becau se [Davis] was an actual killer he, of course, was a major participant in Mr. O ’ Bryant ’ s death. ” The6

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 accomp l ic e, ” but only Williams was convicted of that crime.

7 The section 1170.95 petition in our appellate record is

m arked “ received ” on June 3, 2019. It is otherwise undated. There is a minute order from four months earl ier , February 1, 2019, indicat ing tha t 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 indicate d 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 ten t ative ruling denying Williams ’ s petition. Upon further review of the fil e, no petition for Williams could be found. Thereafter, a new petition for Williams was filed, t he 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 pet ition

.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 o rder. 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 J uly 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 understan ding 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 , w ith 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

reason ed 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 w e re Mr.
O ’ Bryant ’ s actual killers because the conduct of each was a substantial factor contributing to the victim ’ s death. The c ourt 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 Pe titioner 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 usi ng 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 ap peal. 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 s uperior c ourt to file the petition as a not ice 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 cou rt 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

c ourt “ 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, sub d. (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. Lik e 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 rec ord, 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, defendant s ha ve the burden to demonstrate a reasonable probability that t he y 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 b ecause 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 disagre e. 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, a nd 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 “ terminatin g 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 ineligib le 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, sugges ting 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 ( Nune z ), 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

ag ainst 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 adhe re 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 defend ant 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 det ermination 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 act ing 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 do es 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 o f 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 junct ure, 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. Lang i (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 defen dant was one of four men who beat and robbed a group of m en. 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 J anuary 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 ha ve 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 therefo re the actual killer. ( Id. at p. *2.) On appeal

, t he 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 exp licit 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 rec ord 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 dictate d by Le wis , the prior opinion does not conclusively
establis h 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 a cknowledges 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 we re both actual killers “ was overwhelming, ” the argument misperceives the limited nature of15

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 he aring 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 particular ly so becau s e the standard for determining “ actual killer ” has changed in the intervening years. While the prior panel of this division relied on the substan tial
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, howev er, 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 h armless

.

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 anal ysis 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.