Filed 7/19/23 P. v. Williams CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

DAMIAN MONROE WILLIAMS,

Defendant and Appellant.

 B308247

 (Los Angeles County

 Super. Ct. No. BA206529)

APPEAL from an order of the Superior Court of 

Los Angeles County, Curtis B. Rappe, Judge. Reversed.

Law Offices of Tarik S. Adlai and Tarik S. Adlai for 

Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews, Daniel Chang, David A. 

Voet and Amanda V. Lopez, Deputy Attorneys General, for 

Plaintiff and Respondent.

____________________________
2

In 2003, upon being instructed on imputed malice, among 

other theories, a jury found petitioner Damian Monroe Williams

guilty of second degree murder. The same jury also convicted 

Williams’s codefendant, Tyrone Killingsworth, of murder and 

found Killingsworth personally discharged a firearm causing 

death to another person. Williams filed a resentencing petition 

pursuant to Penal Code section 1170.95 (later renumbered as 

section 1172.6), which was enacted “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.”1 (Stats. 2018, ch. 1015, § 1, subd. (f).) “Section 

1172.6 offers resentencing for petitioners who have not been 

determined beyond a reasonable doubt to have the degree of 

culpability now required for a murder, attempted murder, or 

manslaughter conviction.” (People v. Strong (2022) 13 Cal.5th 

698, 720 (Strong).) After a resentencing hearing at which 

Williams testified, the resentencing court denied Williams’s 

petition. 

We conclude the resentencing court erred in relying on our 

recitation of facts on Williams’s direct appeal to establish the 

facts for deciding William’s petition for resentencing. Section 

1172.6, subdivision (d)(3) required the court independently, and 

1 Petitioner brought his petition under former 

section 1170.95, which was amended effective January 1, 2022, 

and then renumbered as section 1172.6 without substantive 

change on June 30, 2022. (See Stats. 2022, ch. 58, § 10 (Assem. 

Bill No. 200).) We refer to the statute by its current number. 

Further statutory references are to the Penal Code unless 

otherwise stated.
3

based on admissible evidence, to determine whether petitioner 

was guilty beyond a reasonable doubt of murder as defined in the 

amended sections 188 and 189. The resentencing court’s failure 

to act as an independent fact finder was thus error. 

Because the error prejudiced Williams, we reverse the 

order denying Williams’s petition. We remand for the 

resentencing court to hold a new section 1172.6, subdivision (d)(3) 

hearing at which both parties may present evidence. The 

resentencing court must act as an independent fact finder to 

determine whether Williams is guilty of murder under a

currently valid theory of murder.

BACKGROUND

Relying on the factual summary from this court’s opinion

on direct appeal, the resentencing court summarized the evidence 

at trial as follows: “[I]n 2000 [Grover] Tinner, [the murder 

victim] operated two houses in which crack cocaine was sold, the 

one on Gage Street and the other o[n] Brighton Street in 

Los Angeles. Tinner was known to have a ‘nasty disposition,’ 

particularly involving money, and had said that he would kill 

anyone who disrespected him. The Brighton Street house was in 

territory controlled by the Eight Trey Gangster Crips street gang, 

to which Williams belonged. Killingsworth was a former member 

of the Shotgun Crips. (Killingsworth claimed he had not been a 

member for the past 16 years), a gang which was friendly with 

the Eight Trey Gangsters. Tinner, who lived in Eight Trey 

Gangster territory, had previously been associated with the 

74 Hoovers gang but was no longer ‘gangbanging’ at the time he 

was murdered. The Gage Street house was on the border of 

territory claimed by the Eight Trey Gangsters and a rival gang. 

Williams and Killingsworth had been at the Brighton Street 
4

crack house at various times. Once while Killingsworth was 

there, he said that he was tired of the crack addicts at the house, 

that Tinner ‘ain’t running nothing here,’ and Killingsworth would 

be glad when Williams ‘come up.’

“Close to midnight on July 17, 2000, Williams and 

Killingsworth arrived at the Gage Street house. They were let in 

by Jeffrey Brooks, who was the ‘doorman’ that night. Several 

people were inside, including Milton Lewis, who was sitting at a 

table in the dining room from which drugs were being dispensed. 

Cash and a .22-caliber revolver were also on the table. Tinner 

was not there. While Killingsworth stayed by the front door, 

Williams approached Lewis and asked who was running the 

house. Lewis said that he was. Williams then picked up the 

revolver (the act that provided the basis of the grand theft 

conviction) and loudly identified himself by his gang moniker, 

Football. Williams repeatedly said that he was from Eight Trey, 

that he and Killing[s]worth were not there to rob or hurt anyone, 

but that they were ‘going to shut this motherfucker down,’ and 

that he ‘do[es] it like Al Capone.’ Williams tossed the gun to 

Killingsworth who remained near the front door. Someone from 

the house went to get Tinner, telling him that the Gage Street 

house was being robbed.

“Williams next went to one of the bedrooms of the house 

and ordered the people inside to come out and get on the floor. 

Williams returned to the dining room, told Lewis he knew there 

was another gun in the house and said, ‘You’re already dead, give 

me the gun.’ When Lewis did not comply, Williams touched his 

waist area and said, ‘You might not see my gun but my gun is 

closer than what you think.’ Lewis then gave Williams a 

.44-caliber revolver that was in a nearby shoe box. Williams 
5

handed the gun to Killingsworth and told him to return to the 

area of the front door, adding, ‘You know what to do, T. Don’t let 

me down.’ Williams also told Lewis that if Tinner did not arrive 

in 20 minutes, Lewis would ‘be the first motherfucker to get it in 

the head.’ 

“While waiting for Tinner to arrive, Williams put a $20 bill 

on the table where Lewis was sitting and took some cocaine off 

the table. Williams asked if the people in the house wanted any 

and provided cocaine to those who asked for it. In addition, 

during that time, Williams threatened to shoot two of the women 

at the house, one because she was moving around too much and 

the other when she reacted to the threat. At some point Williams 

took out a big rock of cocaine from his sock and told the people at 

the house that he knew their faces ‘and if I catch you all buying 

from over here you know what’s going to happen.’ (The 

prosecution presented evidence that during this time defendants 

committed robberies of people at the house. Defendants were 

acquitted of these charges.)

“Tinner eventually arrived at the house. As he [Tinner] 

approached, Killingsworth, from his [Killingsworth’s] vantage 

point by the front door, [Killingsworth] said to Williams, ‘Get 

ready, man. Here come the boy.’ Williams again told 

Killingsworth, ‘Don’t let me down,’ and, ‘You know what to do.’ 

Tinner knocked on the front door, which Killingsworth opened. 

Tinner walked in holding a .45-caliber handgun and angrily 

asked what was going on. Killingsworth remained standing 

behind the open door. Williams identified himself as ‘Football’ 

and said he was not there to rob Tinner but wanted to talk to 

him. 
6

“Meanwhile, Tinner’s nephew, Don Toombs, had entered 

the house through another door. Toombs grabbed Williams’s 

head. Williams yelled, ‘T.,’ and Killingsworth stepped out from 

behind the door. Tinner pointed his gun at Killingsworth and the 

two struggled for each other’s gun. During the struggle, 

Killing[s]worth’s gun discharged, hitting Tinner in the leg. 

Tinner ran out the front door and away from the house. Muriel 

Coleman, who was approaching the house to buy cocaine, saw a 

man running from the house and saw three shots being fired. 

One of the shots hit Tinner in the back. After running a short 

distance to an alleyway, Tinner collapsed and died. Williams 

managed to get away from Toombs and fled.

“Tinner sustained two gunshot wounds, one to his right 

thigh and a fatal ‘through-and-through’ wound that entered his 

upper back, passed through his heart and other vital organs, and 

exited his body through the abdomen on a downward trajectory. 

Police found a .22-caliber revolver and a .44-caliber revolver near 

the scene of the murder. The .22-caliber revolver was loaded and 

had no expended casings. The .44-caliber revolver had four

expended casings and two live rounds. The wound to Tinner’s 

thigh had been from a .44-caliber weapon.” 

1. Information

In an amended information filed February 7, 2003, the 

People charged Williams and codefendant Killingsworth with 

murdering Tinner (count one). The People also alleged a gang 

enhancement. Among other firearm enhancements, the People 

alleged that codefendant Killingsworth personally and 

intentionally discharged a firearm which caused great bodily 

injury and death. With respect to Williams, the People alleged, 

among other firearm enhancements, that a principal personally 
7

and intentionally discharged a firearm causing great bodily 

injury and death.

The People alleged the murder occurred while Williams and 

Killingsworth were engaged in the commission of a burglary and 

robbery and by means of lying in wait. The People also alleged 

Williams suffered a 1993 felony conviction for mayhem (§ 203). 

In count two, the People alleged the robbery of money from 

Kenneth Hammond. In count three, the People alleged the 

robbery of money from Steve Finley. In count four, the People 

alleged the robbery of a handgun from Milton Lewis. Count five 

also alleged the robbery of a handgun from Milton Lewis. In 

count six, the People alleged the burglary of a commercial 

building occupied by Jeffrey Brooks and Milton Lewis with the 

intent to commit larceny or any other felony. 

2. Jury findings

In 2003, a jury found Williams and Killingsworth guilty of 

second degree murder, having failed to find him guilty of the first 

degree murder charge. The jury found true the allegation that 

“Grover Tinner was intentionally killed for the benefit of, at the 

direction of, or in association with a criminal street gang with the 

specific intent to promote, further or assist criminal conduct of 

gang members, pursuant to Penal Code section 186.22(B)(1) . . . .” 

The jury also found true that Williams committed grand theft of a 

.22-caliber handgun from Milton Lewis and found true the gang 

enhancement with respect to that offense. The jury found 

not true the robberies alleged in counts two and three (money

from persons inside the crackhouse) and not true the allegation 

that a principal in the second degree murder personally and 

intentionally discharged a firearm causing great bodily injury of 

Tinner. The jury also found not true other firearm allegations. 
8

The trial court declared a mistrial on counts 5 (robbery of a gun 

from Lewis) and 6 (burglary).

3. Prior appellate opinion (People v. Killingsworth

et al. (Oct. 31, 2005, B171869) [nonpub. opn.]

(Killingsworth))

Our opinion on direct appeal states, “Tyrone Killingsworth 

and Damian Williams appeal from the judgments entered 

following a joint jury trial in which each was convicted of second 

degree murder and grand theft of a firearm, with further findings 

that the crimes were committed for the benefit of a criminal 

street gang and Killingsworth personally discharged a firearm 

that proximately caused death to another person. In bifurcated 

bench proceedings, defendants were also found to have suffered 

prior felony convictions.” (Killingsworth, supra, B171869.) 

The opinion further states, “The prosecutor argued that 

Williams and Killingsworth planned to kill Tinner when Tinner 

entered the house and that Killingsworth fired three shots from 

outside the front door, one of which inflicted the fatal wound. 

Defendants argued self-defense and that the prosecution had 

failed to prove who shot Tinner.” (Killingsworth, supra, 

B171869.) 

Presuming the existence of every fact in the light most 

favorable to the judgment (Killingsworth, supra, B171869), we 

rejected William’s argument that insubstantial evidence 

supported that “Killingsworth killed Tinner with either express 

or implied malice.” (Ibid.) We also held sufficient evidence 

supported Williams “aided and abetted a second degree murder

that was committed with both express and implied malice.” 

(Ibid.) 
9

We affirmed both defendants’ judgments of conviction but 

concluded the trial court had improperly added a 10-year term for 

the gang enhancement. (Killingsworth, supra, B171869.)

4. Williams’s petition for resentencing

On February 15, 2019, Williams filed a petition for 

resentencing. In opposition, the People primarily argued that 

Williams was guilty of murdering Tinner because he acted as a 

major participant with reckless indifference to human life.2 The 

People also argued the same evidence supporting that Williams 

had reckless indifference to human life showed he harbored 

intent to kill. In reply, Williams asserted he had no intent to kill 

and was not a major participant in an underlying felony who 

acted with reckless indifference to human life.

The resentencing court issued an order to show cause and 

held an evidentiary hearing. Although Williams did not testify at 

trial, he did testify at the order to show cause hearing. No one 

else testified. 

Williams testified he went to the Gage Street house not to 

hurt or rob anyone, but only to conduct business with Tinner.

When he saw a .22-caliber gun lying on a table, he picked it up 

and handed it to Killingsworth. Williams then saw Lewis reach 

for a .44 Magnum, which Lewis gave to Williams and Williams 

handed to Killingsworth. Williams denied telling Killingsworth 

2 At the resentencing hearing, the prosecutor did not 

identify the underlying felony in which Williams was a major 

participant. Under current law, however, unless the victim is a 

peace officer, to be convicted of felony murder a person must, 

inter alia, be a major participant in an underlying felony. (§ 189, 

subd. (e)(3).) 
10

as he handed him the second gun, “ ‘ Okay, you know what to 

do.’ ” Williams testified he expected Killingsworth to “[h]old the 

gun until we leave.” 

Williams further testified he was not carrying a weapon 

and had nothing to do with the shooting. “We wasn’t there to 

hurt nobody. It all just went bad so fast. We didn’t expect none 

of this type of stuff to take place . . . . [¶] . . . [¶] I didn’t go there 

to take over his business. I only went there to try to do business 

with this man, to sell some product that I had . . . .” 

According to Williams, when Tinner entered the house, Don 

Toombs put a gun to Williams’s head and Williams “tuss[led]” 

with Toombs. Williams could not see if anyone was shot. 

Killingsworth told Toombs to “ ‘let my homie go.’ ” Toombs let go 

and Williams took the gun from him and left through the front 

door in an opposite direction from Killingsworth. The next day 

Williams turned himself in because he “didn’t do nothing. I had 

no reason to lie.” 

During cross-examination Williams testified that after the 

shooting, he told Toombs, “ ‘I didn’t kill nobody.’ ” Williams 

further testified on cross-examination that he did not know who 

killed Tinner and “didn’t even know what happened.”

5. The resentencing court denied Williams’s 

resentencing petition

After the parties’ presentations, the resentencing court 

stated, “[T]his isn’t a retrial. It’s not a motion for new trial where 

I am the finder of fact.” Rather, the court stated because the 

appellate opinion had found sufficient evidence to support 

implied or express malice, it would deny Williams’s petition.

In a written order, the resentencing court quoted the facts 

set forth above from our opinion on direct appeal and stated the 
11

appellate court found evidence sufficient to support Williams’s 

conviction as a direct aider and abettor. The court concluded 

Williams could have acted with express malice because our 

opinion on direct appeal established that sufficient evidence 

supported such a theory.

Although the resentencing court did not identify the 

underlying felony, the court also concluded Williams could be 

convicted of felony murder because he was a major participant in

an underlying felony and acted with reckless indifference to 

human life. The court found Williams had planned the entire 

criminal enterprise to “shut down Tinner’s crack house . . . and 

eliminate Tinner as a competitor.”

DISCUSSION

We conclude the resentencing court misapplied section 

1172.6 by not acting as an independent fact finder, but instead, 

relying on facts recited in our opinion on direct appeal. We also 

conclude this error was prejudicial. Accordingly, we remand for a 

new hearing under section 1172.6, subdivision (d)(3).

A. Section 1172.6 Narrowed the Felony-Murder Theory, 

Rejected Imputed Malice for Murder, and 

Established Procedures for Eligibility for 

Resentencing Under These Substantive Changes

“In Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate 

Bill 1437), the Legislature significantly narrowed the scope of the 

felony-murder rule. It also created a path to relief for defendants 

who had previously been convicted of murder on a felony-murder 

theory but who could not have been convicted under the new law. 

Resentencing is available under the new law if the defendant 

neither killed nor intended to kill and was not ‘a major 
12

participant in the underlying felony [who] acted with reckless 

indifference to human life, as described in subdivision (d) of 

[Penal Code] Section 190.2.’ [Citations.]” (Strong, supra, 

13 Cal.5th at p. 703.) The Legislature also eliminated murder 

liability based on the natural and probable consequences 

doctrine. (Id. at p. 707, fn. 1.) 

“Section 189, as amended, now provides that in cases where 

a death occurs during the perpetration or attempted perpetration 

of a felony listed in section 189, subdivision (a), a person is liable 

for murder only if the person was the actual killer, the person 

acted with intent to kill in aiding, assisting, or soliciting the 

killer, or if the person ‘was a major participant in the underlying 

felony and acted with reckless indifference to human life, as 

described in subdivision (d) of Section 190.2.’ (§ 189, subd. (e)(3).) 

Our Supreme Court has recognized, however, that 

‘notwithstanding Senate Bill 1437’s elimination of natural and 

probable consequences liability for second degree murder, an 

aider and abettor who does not expressly intend to aid a killing 

can still be convicted of second degree murder if the person knows 

that his or her conduct endangers the life of another and acts 

with conscious disregard for life.’ [Citation.]” (People v. Schell

(2022) 84 Cal.App.5th 437, 442 (Schell), quoting People v. Gentile

(2020) 10 Cal.5th 830, 850.) Thus, second degree murder based 

on implied malice is still a valid theory of murder. (Schell, supra, 

at p. 444.) 

Section 1172.6 resentencing procedures are designed to 

allow petitioners to “seek [ ] prospective relief from a murder 

conviction that was presumptively valid at the time.” (Strong, 

supra, 13 Cal.5th at p. 713.) If a petition states a prima facie 

case for resentencing, the resentencing court must issue an order 
13

to show cause, and “must hold a hearing ‘to determine whether to 

vacate the murder conviction and to recall the sentence and 

resentence the petitioner on any remaining counts in the same 

manner as if the petitioner had not . . . previously been 

sentenced, provided that the new sentence, if any, is not greater 

than the initial sentence.’ [Citation.]” (People v. Lewis (2021) 

11 Cal.5th 952, 960 (Lewis); § 1172.6, subd. (d)(1).)

At the hearing stage, “the burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, . . . . that the 

petitioner is ineligible for resentencing.” (§ 1172.6, subd. (d)(3).) 

At the evidentiary hearing, the resentencing court sits as an 

independent fact finder (People v. Vargas (2022) 84 Cal.App.5th 

943, 951) and may consider new theories not presented at trial 

(Schell, supra, 84 Cal.App.5th at pp. 444–445). Either party may 

present new evidence. (§ 1172.6, subd. (d)(3).) The resentencing

court may consider the procedural history outlined in an 

underlying appellate opinion, but not its factual recitation. 

(Ibid.) If a petitioner could be convicted of murder under current 

law, the petitioner is not entitled to resentencing. (People v. 

Guillory (2022) 82 Cal.App.5th 326, 333.) 

B. The Resentencing Court’s Failure To Evaluate the 

Evidence Independently Prejudiced Williams

In concluding that Williams could still be convicted of 

second degree murder if he harbored malice aforethought, the 

resentencing court relied on facts recited in our opinion on 

Williams’s direct appeal. As respondent acknowledges, this was 

error. (People v. Cooper (2022) 77 Cal.App.5th 393, 400, fn. 9 

(Cooper) [“Senate Bill 775 prevents a trial court from relying on 

facts recited in an appellate opinion to rule on a petition under 

section 1170.95”].) Under section 1172.6, the resentencing court 
14

must act as an independent fact finder “to determine beyond a 

reasonable doubt whether [a] defendant is guilty of murder under 

a valid theory of murder.” (People v. Garrison (2021) 

73 Cal.App.5th 735, 745 (Garrison), italics added; see also People 

v. Guiffreda (2023) 87 Cal.App.5th 112, 123 [“Senate Bill No. 775 

clarified that the trial court’s role in a section 1172.6 proceeding 

is to act as an independent fact finder and determine, in the first 

instance, whether the petitioner committed murder under the 

law as amended by Senate Bill No. 1437.”].) 

The error in applying the incorrect standard to evaluate the 

evidence is not structural (Garrison, supra, 73 Cal.App.5th at 

pp. 746–747), but it was prejudicial here under either Chapman 

v. California (1967) 386 U.S. 18, 24 or People v. Watson (1956) 

46 Cal.2d 818, 836. First, an independent trier of fact could find 

Williams credible, and based on his testimony at the hearing,

conclude Williams did not harbor malice aforethought in Tinner’s

killing. Indeed, the resentencing court recognized that Williams’s 

testimony “creates an issue of fact if there were a retrial” but did 

not consider the factual issue because the court concluded 

resentencing hearing was not a “retrial.”

Second, an independent trier of fact at the hearing may 

view the trial transcript in a manner more favorable to Williams 

than we did on direct review because our review was only for 

substantial evidence. Our standard of review also required us to 

take all inferences in favor of the judgment and not to engage in 

credibility determinations or reweigh evidence. In contrast, the 

resentencing court must independently find facts. For example, 

Williams claims the trial transcript supports the theory that he 

and Killingsworth were friendly with Tinner and “did not go to 

Tinner’s crackhouse intending assault, let alone [to] kill, Tinner 
15

or commit any other crime.” According to Williams’s testimony, 

his goal was only to do business with Tinner.

Third, the resentencing court misconstrued Killingsworth, 

which considered Killingsworth’s, but not Williams’s, mental 

state. (Killingsworth, supra, B171869.) The resentencing court

thus prejudicially erred in relying on our appellate decision to 

conclude Williams acted with implied or express malice. 

Respondent argues that like in Garrison, supra, 

73 Cal.App.5th 735, 745, the failure here to act as an 

independent fact finder was not prejudicial. In Garrison, the 

petitioner admitted to personally using a handgun in the course 

of a murder, which we concluded was “tantamount to admitting 

that he was the actual killer.” (Ibid.) Here, there was no similar 

admission. Finally, respondent’s citation to cases finding 

substantial evidence supporting second degree murder suffers

from the same shortcoming as our factual recitation on direct 

appeal because in applying the substantial evidence standard of 

review, appellate courts view evidence in the light most favorable 

to the verdict.

C. On Remand, the Parties May Present Additional 

Evidence at the New Order To Show Cause Hearing

We reject Williams’s argument that the People may not 

present any new evidence on remand. At the time of the 

resentencing hearing, the law was unsettled. Subsequent to 

Williams’s resentencing hearing, Courts of Appeal disagreed as to 

the appropriate standard in an order to show cause hearing. (See 

Garrison, supra, 73 Cal.App.5th at p. 745 [explaining that prior 

to the Supreme Court vacating People v. Duke (2021) 

286 Cal.Rptr.3d 703, there was a disagreement in the law 

concerning the resentencing court’s role in evaluating the 
16

evidence at a §1172.6, subd. (d)(3) hearing].) The resentencing

court’s reliance on what turned out to be an incorrect standard 

does not show that Williams is eligible for resentencing as a 

matter of law. We thus remand for a new hearing at which either 

party may present new evidence consistent with section 1172.6 

subdivision (d)(3). (See Cooper, supra, 77 Cal.App.5th at p. 418 

[where the resentencing court erred in the evidentiary hearing on 

a petition under former § 1170.95, the appellate court concluded 

it was “appropriate to remand the matter for a new hearing on 

whether [the petitioner] is entitled to relief”]; see also People v. 

Henley (2022) 85 Cal.App.5th 1003, 1021 (Henley).) 

The resentencing court’s reliance on our prior opinion also 

is not an error that forecloses the People from presenting new 

evidence. In advance of the prior resentencing hearing, the 

People indicated that the resentencing court should consider “the 

appellate record and opinion affirming the judgment” and 

Williams agreed, also stating that the resentencing court could 

consider “the appellate record and opinion affirming the 

judgment . . . .” (Boldface omitted from first quotation.) Neither 

the parties nor the court could have anticipated the Legislature’s

subsequent amendment to section 1172.6 allowing consideration 

of an appellate opinion only for its recitation of procedural 

history. 

On remand, the People may seek to prove a currently valid 

murder theory. (People v. Hernandez (2021) 60 Cal.App.5th 94, 

110.) However, we caution the resentencing court that absent 

new relevant evidence, it cannot rely on the opposite of a fact 

found by the jury. Cooper, supra, 77 Cal.App.5th 393, which we 

find persuasive, holds that a resentencing court, which is a trier 

of fact at a section 1172.6, subdivision (d)(3) hearing, cannot deny 
17

relief based on a finding “inconsistent with a previous acquittal 

when no [relevant] evidence other than that introduced at trial is 

presented.” (Cooper, supra, at p. 398; see also Henley, supra, 

85 Cal.App.5th at p. 1019 [following Cooper].) We decline to 

opine whether the trial transcript and prior section 1172.6, 

subdivision (d)(3) hearing transcript would support a currently 

valid murder theory because the parties may present new 

evidence upon remand. We further observe that the resentencing 

court may not increase Williams’s punishment even if arguendo it 

finds that new evidence would support a first degree murder 

theory. (People v. Mitchell (2022) 81 Cal.App.5th 575, 588 

[resentencing petition cannot “hurt a defendant”]; Lewis, supra, 

11 Cal.5th at p. 960 [new sentence cannot be greater than initial 

sentence].) 
18

DISPOSITION

The order denying Damian Monroe Williams’s resentencing 

petition is reversed. On remand, the resentencing court shall 

hold a new Penal Code section 1172.6, subdivision (d)(3) hearing

consistent with this opinion. Our opinion neither limits the 

People’s ability to pursue a currently valid murder theory nor 

endorses any such finding by the resentencing court. If the 

prosecution meets its burden of proof beyond a reasonable doubt 

that Williams is guilty of murder under current law, the 

resentencing court must deny Williams’s petition for 

resentencing. (People v. Gonzalez (2023) 87 Cal.App.5th 869, 

880–881.) If the prosecution does not meet its burden of proof, 

the court shall vacate Williams’s murder conviction and 

resentence him on his remaining convictions. (Id. at p. 881.)

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.