Filed 6/27/24 P. v. Smith 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

WILLIE DEAN SMITH,

Defendant and Appellant.

 B324922

 (Los Angeles County

 Super. Ct. No. A979634)

APPEAL from an order of the Superior Court of Los 

Angeles County, Ray Jurado, Judge. Reversed and remanded.

Paul Kleven, under appointment by the Court of Appeal, 

for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill, Supervising Deputy 

Attorney General, and Stephanie A. Miyoshi, Deputy Attorney 

General, for Plaintiff and Respondent. 
2

A jury convicted Willie Dean Smith (defendant) of the first 

degree murder and second degree robbery of Willie Gossom, Jr. 

(Gossom). The trial court sentenced him to 25 years to life in 

prison. More recently, after intervening changes in California 

law defining murder, defendant petitioned for resentencing under 

Penal Code section 1172.6 (former Penal Code section 1170.95).1 

We consider whether the trial court erred when it summarily 

denied defendant’s petition for resentencing without appointing 

him counsel and relying solely on this court’s opinion resolving 

defendant’s direct appeal.

I. BACKGROUND

At approximately 2:30 p.m. on November 17, 1988, Gossom 

was shot in the parking lot of a supper club in Los Angeles. Two 

weeks later, defendant was arrested and charged with the 

murder (§ 187) and robbery (§ 211) of Gossom. In connection 

with each offense, defendant was alleged to have personally used 

a firearm (§ 12022.5, subd. (a)). 

A. Defendant’s Trial and Direct Appeal2

According to the evidence at trial, on the afternoon of the 

shooting, sometime between 1:30 p.m. and 2:00 p.m., Gossom 

1 Undesignated statutory references that follow are to the 

Penal Code.

2 At the Attorney General’s unopposed request, we take 

judicial notice of the following documents from defendant’s trial: 

excerpts from the trial transcript, the instructions given to the 

jury, instructions proposed by the prosecution but rejected by the 

trial court, and the verdict forms. 
3

drove to the City of San Fernando and sold his Nissan 200 SX 

automobile to the owner of a brake shop for $1,500 in cash. Both 

before and after the sale of the automobile, the shop’s owner saw 

Gossom chatting with defendant. The last time the owner saw 

the two men, they were standing near a brown station wagon. 

Minutes later, Gossom, defendant, and the brown station wagon 

were gone from the brake shop. 

Approximately a half an hour after the brake shop owner 

last saw defendant and Gossom, Ricky Smith (Ricky), an elevenyear-old boy, was passing near the supper club’s parking lot and

heard a gunshot. Ricky turned and saw a man pointing a gun at 

Gossom, who staggered backwards before falling to the 

pavement. After Gossom collapsed, Ricky saw the man with the 

gun flee the scene in a brown station wagon. Other witnesses

stated they saw two men leave the scene in a brown station 

wagon. Ricky identified defendant as the man with the gun from 

a photo lineup, and then later at defendant’s preliminary hearing

and trial. 

Although Ricky and two other witnesses who were near the 

supper club at the time of the shooting testified they heard one 

gunshot, and although only one spent shell casing was found in 

the parking lot, an autopsy revealed Gossom had been shot three 

times. One bullet entered Gossom’s neck from the front and 

exited through the top of his head. The two other bullets entered 

Gossom’s back in close proximity to each other and each traveled 

downward before lodging inside Gossom’s body. In the opinion of 

the chief forensic examiner for the County of Los Angeles, each 

gunshot wound was potentially fatal. The autopsy also revealed 

an abrasion in Gossom’s lower back surrounded by bruising. 
4

1. Contending theories at trial

According to the prosecutor, the forensic medical evidence 

showed that defendant, after learning Gossom had just received 

$1,500 from the sale of his automobile, jabbed a gun into 

Gossom’s back at the brake shop and forced him at gunpoint into 

the front passenger seat of the brown station wagon. The 

prosecutor argued defendant shot Gossom twice in the back from 

the station wagon’s rear seat and robbed Gossom of the $1,500 as 

a “third unknown person” drove the station wagon. Once they 

arrived at the supper club’s parking lot where defendant and his 

accomplice planned to dump Gossom, defendant delivered the 

third, “coup de grace” shot heard by Ricky and the other 

witnesses. Based on the evidence, the prosecutor advised the 

jury they could find defendant guilty of “standard murder” (i.e., 

“premeditated,” “willful,” “deliberate” murder with “malice 

aforethought”), or “felony murder,” or both. In connection with 

the felony murder theory, the prosecutor told the jurors that to 

convict defendant they need only find that a robbery occurred and 

that during the robbery an unlawful killing by defendant also 

occurred. 

Defense counsel argued defendant was not guilty of the 

charged offenses for two main reasons. First, the defense 

contended Ricky’s identification of defendant as the parking lot 

shooter was unreliable due to inconsistencies between his 

statement to police, his testimony at the preliminary hearing,

and his trial testimony concerning where he was when the 

shooting occurred and the shooter’s clothing, hair style, and 

complexion. Second, relying on the testimony of defendant’s 

mother and niece, defense counsel asserted his client could not 
5

have been the shooter Ricky saw because defendant was at home

at the time of the shooting. 

2. Jury instructions

Following closing argument, the trial court instructed the 

jury on two theories of first degree murder: deliberate,

premediated, malice murder and felony murder during the course 

of a robbery. 

The court gave CALJIC No. 8.10 to define murder: “Every 

person who unlawfully kills a human being with malice 

aforethought or during the commission or attempted commission 

of robbery is guilty of the crime of murder. . . . [¶] In order to 

prove such a crime, each of the following elements must be 

proved: [¶] 1. A human being was killed. [¶] 2. The killing was 

unlawful, and [¶] 3. The killing was done with malice 

aforethought or occurred during the commission or attempted 

commission of robbery. [¶] A killing is unlawful if it was neither 

justifiable nor excusable.” 

The court gave CALJIC No. 8.21 to explain first degree 

felony murder: “The unlawful killing of a human being, whether 

intentional, unintentional or accidental, which occurs during the 

commission or attempted commission of the crime of robbery is 

murder of the first degree when the perpetrator had the specific 

intent to commit such crime. [¶] The specific intent to commit 

robbery and the commission or attempted commission of such 

crime must be proved beyond a reasonable doubt.”

The trial court also instructed the jury on “unjoined 

perpetrators” using CALJIC No. 2.11.5: “There has been 

evidence in this case indicating that a person other than 

defendant was or may have been involved in the crime for which 
6

defendant is on trial. [¶] Do not discuss or give any 

consideration to why the other person is not being prosecuted in 

this trial or whether [he or she] has been or will be prosecuted.” 

The trial court did not instruct the jury on any theory of 

accomplice or aider and abettor liability. 

3. Verdict

After just three hours of deliberation, the jury found 

defendant guilty of first degree murder and second degree 

robbery.3 For both crimes, the jury also found true defendant 

personally used a firearm. The trial court sentenced defendant to 

13 years on the robbery conviction and a consecutive term of 25 

years to life on the murder conviction. 

4. Direct appeal

On appeal, a different division of this court modified 

defendant’s sentence but otherwise affirmed the judgment. 

(People v. Smith (Oct. 31, 1991, B047260) [nonpub. opn.] (Smith 

I).) In summarizing the evidence at trial, the Smith I opinion 

states: “Ricky Smith, a sixth grader, was walking towards the 

parking lot of [the supper club] when he heard a shot. Ricky 

looked up to see where the sound came from and saw [defendant] 

shoot Gossom.” Although Smith I discussed defendant’s claim 

that the trial court erred by not sua sponte giving a jury

instruction that he argued should have been given, it did not 

otherwise discuss the trial court’s charge to the jury. 

3 The verdict form on the murder charge did not reveal 

whether the jury found defendant guilty of first degree murder 

based on premeditation and deliberation or on felony murder. 
7

B. Defendant’s Petition for Resentencing

In July 2022, defendant filed a form petition for

resentencing pursuant to section 1172.6. Defendant also asked

the trial court to appoint counsel to represent him. Attached to 

defendant’s petition was a copy of Smith I. 

The following month—without appointing counsel for 

defendant, considering briefing from any party, or holding a 

hearing—the trial court summarily denied the petition. The 

court’s minute order states: “In the [Smith I] opinion, the Court 

of Appeal summarized the facts at trial. Defendant was 

identified as the actual shooter of the victim and the jury 

convicted him of first degree murder. As the actual shooter, 

defendant is not entitled to resentencing.” 

II. DISCUSSION

The Attorney General concedes the trial court erred when it 

summarily denied defendant’s petition without first appointing 

counsel and in sole reliance on Smith I’s summary of the trial 

evidence. The Attorney General argues the errors were 

harmless, however, because record of conviction materials other 

than the opinion in Smith I establish defendant was Gossom’s

actual killer.

In the procedural posture in which the case now reaches us, 

we cannot say the errors, particularly the failure to appoint 

counsel, were harmless. We believe there exists a reasonable 

possibility appointed counsel for defendant could establish he is 

not ineligible for resentencing as a matter of law—for instance, 

by emphasizing features of the jury instructions or argument at 

trial that indicate defendant was likely convicted on a felony 
8

murder theory or even by proffering new evidence casting doubt 

on whether defendant was indeed the victim’s actual killer. 

(§ 1172.6, subd. (d)(3) [“The prosecutor and the petitioner may 

also offer new or additional evidence to meet their respective 

burdens”].)

A. Section 1172.6 Procedure

“Effective January 1, 2019, the Legislature passed Senate 

Bill 1437 ‘to amend the felony murder rule and the natural and 

probable consequences doctrine, as it relates to murder, to ensure 

that murder liability is not imposed on a person who is not the 

actual killer, did not act with the intent to kill, or was not a 

major participant in the underlying felony who acted with 

reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, 

subd. (f).)” (People v. Lewis (2021) 11 Cal.5th 952, 959.) 

Because section 1172.6 “‘requires legal and factual inquiry 

into complex legal theories (felony murder, and natural and 

probable consequences) not easily understood by an 

unrepresented litigant’” (Lewis, supra, 11 Cal.5th at 967), our 

Supreme Court in Lewis held a petitioner is “statutorily entitled 

to counsel, if requested, upon the filing of a facially sufficient 

petition.” (Id. at 957; see also id. at 970 [same].) In Lewis’s 

wake, the Legislature amended the statute to codify this holding. 

(Stats. 2021, ch. 551, § 1; see also § 1172.6, subd. (b)(3) [“Upon 

receiving a petition in which the information required by this 

subdivision is set forth or a petition where any missing 

information can readily be ascertained by the court, if the 

petitioner has requested counsel, the court shall appoint counsel 

to represent the petitioner”].)
9

In addition to appointing counsel upon the filing of a 

facially sufficient petition under section 1172.6, the trial court 

must also allow briefing from both sides and hold a hearing to 

determine whether the petitioner has made a prima facie 

showing for relief. (§ 1172.6, subd. (c).) In deciding whether a 

petitioner has made a prima facie showing for relief under section 

1172.6, “‘“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.”’ [Citations.]” (Lewis, supra, 11 Cal.5th 

at 971.) “[T]he ‘prima facie bar was intentionally and correctly 

set very low.’” (Lewis, supra, 11 Cal.5th at 972)

While appellate opinions are “generally considered to be 

part of the record of conviction” (Lewis, supra, 11 Cal.5th at 972), 

their usefulness may be limited; as our Supreme Court has 

cautioned, “‘it is certainly correct that an appellate opinion might 

not supply all answers” (ibid.). At the time of the trial court’s 

ruling on defendant’s petition, the Legislature had already 

limited a lower court’s consideration of a prior appellate opinion 

to “the procedural history of the case cited.” (§ 1172.6, subd. 

(d)(3), as amended by Stats. 2021, ch. 551; People v. Flores (2022) 

76 Cal.App.5th 974, 988 [“If [the factual summary in an appellate 

opinion] may not be considered at an evidentiary hearing to 

determine a petitioner’s ultimate eligibility for resentencing, we 

fail to see how such evidence could establish, as a matter of law, a 

petitioner’s ineligibility for resentencing at the prima facie 

stage”]; People v. Clements (2022) 75 Cal.App.5th 276, 292

[holding that by allowing consideration of “‘the procedural 

history”’ in a prior appellate opinion, the Legislature intended to 
10

prohibit consideration of “the factual summar[y]” in a prior 

appellate opinion].) 

If the trial court, after briefing, determines the petitioner 

has made a prima facie showing, the court must issue an order to 

show cause and hold a hearing to determine whether to vacate 

the murder conviction. (§ 1172.6, subds. (c) & (d)(1).) At this 

evidentiary hearing, “the burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, that the 

petitioner is guilty of murder . . . under California law as 

amended by the changes to [s]ection 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (d)(3).) And, as already 

mentioned, a defendant (or the prosecution) is entitled to come 

forward with new evidence at a hearing held pursuant to an 

order to show cause. (§ 1172.6, subd. (d)(3); see also People v. 

Smith (2020) 49 Cal.App.5th 85, 96 [“[T]he Legislature provided 

that a petitioner may meet his or her burden by offering new or 

additional evidence. Therefore, we cannot say at this stage of the 

proceedings that failure to appoint counsel was harmless ‘given 

the trial evidence’; by the express terms of section 117[2.6], 

subdivision (d)(3), counsel is not limited to the trial evidence”].)

B. The Trial Court Prejudicially Erred When It Did Not

Appoint Counsel for Defendant and Relied Solely on 

Facts Recited in Smith I to Summarily Deny the 

Petition

Defendant filed a facially sufficient petition. He alleged all 

the requirements under section 1172.6, subdivision (a) to be 

eligible for relief: the prosecution at his trial proceeded under a 

theory of felony murder (or other now-invalid theory), he was 

convicted of murder, and he could not now be convicted of murder 
11

because of the changes the Legislature made to sections 188 and 

189. (§ 1172.6, subd. (a)(1)-(3).) Under Lewis and section 1172.6 

as amended, the trial court should have appointed counsel for 

defendant. In addition, the trial court erred when it summarily 

denied the petition without briefing or a hearing based solely on 

Smith I’s summary of the evidence at trial. (People v. Langi

(2022) 73 Cal.App.5th 972, 979 [“In this case, the trial court 

treated this court’s opinion in Langi I 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”].) 

The trial court’s errors were prejudicial because there is a 

reasonable probability appointment of counsel would have made 

a difference, i.e., that his petition would not have been denied 

without issuance of an order to show cause. (Lewis, supra, 11 

Cal.5th at 973-974 [error in deciding not to appoint counsel is 

reviewed for prejudice under the harmless error standard of 

People v. Watson (1956) 46 Cal.2d 818, 836].) Defendant’s jury 

was instructed on felony murder and the prosecution argued that 

theory to the jury. Even looking only to the evidence at 

defendant’s trial, there is evidence (multiple gunshots and 

testimony from witnesses who saw two men leave the scene of the 

murder) from which a factfinder could infer defendant was not 

the victim’s actual killer.

4

 Appointed counsel for defendant would 

4

Indeed, the jury was instructed with CALJIC No. 2.11.5 

because there was evidence of an uncharged perpetrator. Though 

we highlight for present purposes the inferences that the trial 

evidence might additionally permit, that does not of course cast 

doubt on the factual recitation included in Smith I. “[I]t is 
12

not be limited to the trial evidence, though; if given a chance to 

brief the matter, counsel could proffer additional evidence that 

might be introduced at a hearing after issuance of an order to 

show cause or attempt to highlight features of the instructions 

given to defendant’s jury and explain why they do not foreclose 

relief as a matter of law. In short, as this court explained in 

Smith, supra, 49 Cal.App.5th at page 96, “we cannot say at this 

stage of the proceedings that failure to appoint counsel was 

harmless ‘given the trial evidence.’”

DISPOSITION

The order denying defendant’s section 1172.6 petition is 

reversed and the cause is remanded with directions to appoint 

counsel for defendant and to thereafter proceed consistent with 

section 1172.6, subdivisions (c) and (d).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J. LEE, J.

*

axiomatic that cases are not authority for propositions not 

considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.)

*

Judge of the San Bernardino County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.