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Filed 9/29/21 P. v. Willis CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

KEVIN FITZGERALD WILLIS,

Defendant and Appellant.

 A160625

 (San Mateo County

 Super. Ct. No. SC020481A)

Defendant Kevin Fitzgerald Willis appeals an order denying his 

petition for resentencing pursuant to Penal Code section 1170.95.1 His 

counsel has filed an opening brief raising no issues and asking this court for 

an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436 

(Wende).) Defendant has been apprised of his right personally to file a 

supplemental brief, but he has not done so. 

Our high court is currently considering whether an appellate court 

must conduct an independent review of the record when counsel files a Wende

brief after the trial court denies a petition for resentencing under section 

1170.95. (People v. Delgadillo (Nov. 18, 2020, B304441) [nonpub. opn.] rev. 

granted Feb. 17, 2021, S266305.) Recent published cases have held that we 

1 All statutory references are to the Penal Code.
2

are not required to conduct such a review and may dismiss an appeal as 

abandoned if the defendant does not file a supplemental brief (People v. Cole

(2020) 52 Cal.App.5th 1023, 1031–1032, 1039–1040, review granted October 

14, 2020, S264278; People v. Figueras (2021) 61 Cal.App.5th 108, review 

granted May 21, 2021, S267870), although some cases explain that we have 

discretion to review the record independently for arguable issues, either 

where an initial review does not show the defendant is obviously ineligible for 

relief (such as when the defendant was convicted on a theory he was the 

actual killer) (People v. Scott (2020) 58 Cal.App.5th 1127, 1131, review 

granted Mar. 17, 2021, S266853) or as a routine matter (People v. Flores

(2020) 54 Cal.App.5th 266, 269–274). Similarly, a panel in Division Four of 

this appellate district recently concluded that an order revoking and 

reinstating post-release community supervision is not subject to Wende

review because the appeal is not a direct appeal from a judgment of 

conviction. (People v. Freeman (2021) 61 Cal.App.5th 126, 132–134.) We 

likewise conclude defendant is not entitled to Wende review of an order 

denying a petition for resentencing under section 1170.95. Because 

defendant has not personally filed a supplemental brief, we will dismiss his 

appeal as abandoned.

We note, however, that the result would be the same even if we 

exercised our discretion to conduct an independent review. Our high court 

has recently confirmed that a trial court may look to the record of conviction 

to determine whether a petitioner has made a prima facie case for relief 

under section 1170.95. (People v. Lewis (2021) 11 Cal.5th 952, 970–972

(Lewis).) The record of conviction here shows unambiguously that defendant 

was convicted as the actual killer, not under a theory of imputed malice 

under the doctrine of felony murder or natural or probable consequences. 
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As pertinent here, in a 1989 bench trial the court found defendant 

guilty of first degree murder (§ 187) and found true the special circumstance 

allegation that the murder was committed in the course of a robbery or 

attempted robbery (§§ 190.2, subd. (a)(17); 211), as well as allegations that he 

personally used a deadly and dangerous weapon, a knife (former § 12022, 

subd. (b)), that he personally and intentionally inflicted great bodily injury on 

the victim in the commission of the murder (§ 1203.075), and that he had 

suffered a prior felony conviction and resulting prison term (§ 667.5, 

subd. (b)). Defendant received a sentence of life without parole, with stayed 

terms for two enhancement allegations.

This division affirmed the judgment on March 16, 1990. (People v.

Willis (Mar. 16, 1990, A045985) [nonpub. opn.] (Willis I).) The opinion in 

Willis I explained that defendant was seen struggling with the victim in the 

cab of the victim’s pick-up truck, and the victim fell against the driver’s side 

window. Defendant’s hands were on the victim, and as he withdrew them a 

witness noticed he was holding several dollar bills. Defendant got out of the 

truck, went to the driver’s side door, pushed the victim over, got into the 

driver’s seat next to him, and drove away. After striking two other vehicles, 

defendant jumped out of the truck and ran away. The victim’s body was 

found inside the truck, covered in blood, and a police officer found defendant 

with blood on his hands and clothing. Defendant told the officer he had been 

involved in a homicide. The victim, who died, had been stabbed five times.

Defendant testified at trial that he accepted a ride from the victim, who made 

an unwanted sexual advance; when defendant tried to push the victim off, 

the victim lunged at him with a sharp piece of metal. Defendant testified his 

memory was blank from then until he saw the victim was bleeding. 
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In 2018, the Legislature enacted Senate Bill 1437, effective January 1, 

2019. (Stats. 2018, ch. 1015.) In an uncodified section, the Legislature 

declared the law was “necessary 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.” (Id., 

§ 1, subd. (f).) To further this end, the Legislature amended section 188 to 

provide that “[m]alice shall not be imputed to a person based solely on his or 

her participation in a crime” (§ 188, subd. (a)(3)) and amended section 189 to 

provide that a participant in the perpetration or attempted perpetration of 

specified felonies is liable for murder only if the person was the actual killer; 

the person was not the actual killer but, with the intent to kill, aided or 

abetted the actual killer in a first degree murder; or the person was a major 

participant in the underlying felony and acted with reckless indifference to 

human life (§ 189, subd. (e)). 

Section 1170.95 authorizes “[a] person convicted of felony murder or 

murder under a natural and probable consequences theory” to file a petition 

to have the murder conviction vacated and to be sentenced on the remaining 

counts under certain conditions, including that the person could not be 

convicted of first or second degree murder under the changes to sections 188 

and 189. (§ 1170.95, subd. (a).) The court reviews the petition and 

determines whether the petitioner has made a prima facie showing of 

entitlement to relief, in which case the court issues an order to show cause. 

(§ 1170.95, subd. (c); see Lewis, supra, 11 Cal.5th at p. 962.)

In July 2019, defendant filed a petition for resentencing under section 

1170.95, alleging he was convicted of murder pursuant to the felony murder 
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rule or the natural and probable consequences doctrine. He asserted that he 

was not the actual killer because he was in custody at the time the victim 

died and that there was “no charge, conviction, or sentence for Penal Code 

section 211.” The trial court appointed counsel to represent him. 

The People opposed the motion on the ground defendant was ineligible 

for resentencing because he was convicted not under a derivative theory of 

felony murder or natural and probable consequences, but as the actual killer 

who harbored express or implied malice. In response, defendant argued the 

bare allegations of the petition were sufficient to establish a prima facie case 

of eligibility for relief under section 1170.95 so as to require the trial court to 

issue an order to show cause. 

Defendant filed a Marsden motion seeking new counsel on November 

26, 2019. (People v. Marsden (1970) 2 Cal.3d 118.) On July 16, 2020, he 

withdrew his Marsden motion and instead brought a Faretta motion to 

represent himself. (Faretta v. California (1975) 422 U.S. 806.) His counsel 

told the court he had spoken with defendant, that defendant was “quite 

versed in the law,” and that he did not object to defendant representing 

himself. Defendant told the court he had been studying Senate Bill 1437 

extensively and wished to represent himself. After inquiring into whether 

defendant understood his waiver of the right to counsel and advising him 

against representing himself, the trial court granted the Faretta motion. 

The trial court denied defendant’s section 1170.95 petition on July 17, 

2020, finding he was not entitled to relief under section 1170.95 because he 

was convicted as the actual killer. Defendant filed a timely appeal of this 

order, and his counsel subsequently submitted a Wende brief. In light of the 

trial court’s findings on the enhancement allegations—specifically its findings 

that defendant personally used a knife and personally and intentionally 
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inflicted great bodily injury on the victim in the commission of this murder—

we agree with the subsequent determination that the defendant cannot make 

out a prima facie case under section 1170.95, and if we were not dismissing 

this appeal as abandoned we would affirm on this ground.

DISPOSITION

The appeal is dismissed as abandoned.

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

CHOU, J.*

People v. Willis (A160625)

*

 Judge of the Superior Court of California, City and County of San 

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

California Constitution.