Filed 3/8/21 P. v. Wallace 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.

PETER WALLACE,

Defendant and Appellant.

B304414

(Los Angeles County 

Super. Ct. No. A079619)

APPEAL from an order of the Superior Court of Los 

Angeles County, Upinder S. Kalra, Judge. Reversed and 

remanded.

John Lanahan, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles S. Lee and Chung L. Mar, Deputy 

Attorneys General, for Plaintiff and Respondent.

__________________________
2

Defendant and appellant Peter Wallace was convicted, 

following a bench trial, of two counts of felony-murder, with 

felony-murder and multiple-murder special circumstances. 

Almost 40 years later, he filed a petition for resentencing under 

Penal Code section 1170.95, arguing that he was eligible for 

resentencing because the trial court had expressly found he was 

not the actual killer. The following day, the trial court 

summarily denied the petition, on the basis that the true felonymurder special circumstance findings established that even if 

defendant was not the actual killer, he either had the intent to 

kill or was a major participant acting with reckless disregard for 

human life.

On appeal, defendant contends, the prosecution concedes, 

and we agree, that the trial court erred in summarily denying the 

petition. Specifically, a felony-murder special circumstance 

finding in 1981 did not necessarily require a finding of intent to 

kill. (Carlos v. Superior Court (1983) 35 Cal.3d 131, 135, 

overruled in part by People v. Anderson (1987) 43 Cal.3d 1104, 

1138-1139 [intent to kill is not an element for the actual killer].) 

Similarly, while the felony-murder special circumstance can be 

satisfied by a finding the defendant was a major participant in 

the crime acting with reckless indifference to life, that 

requirement was added to the law by Proposition 115, in 1990, 

well after defendant’s trial. (Tapia v. Superior Court (1991) 

53 Cal.3d 282, 286, 297-298.)

The prosecution similarly does not attempt to justify denial 

of the petition on the basis of the multiple-murder special 

circumstance. Our Supreme Court did not hold that intent to kill 

was required for the multiple-murder special circumstance until 
3

1984. (People v. Turner (1984) 37 Cal.3d 302, 328-329, overruled 

in part by People v. Anderson, supra, 43 Cal.3d at pp. 149-1150.) 

Because the trial court erred in summarily denying the 

petition, we remand for the appointment of counsel and further 

proceedings on defendant’s petition.1

DISPOSITION

The trial court’s order denying defendant’s resentencing 

petition is reversed and remanded to the trial court for the 

appointment of counsel (if requested) and further proceedings.

RUBIN, P. J.

WE CONCUR:

BAKER J.

MOOR, J.

1 Both in its Respondent’s Brief (at page 17) and at oral 

argument, the Attorney General agreed that on remand counsel 

should be appointed for defendant, if he so requests, even though 

defendant did not expressly request counsel in his petition.