Filed 5/14/24 P. v. Williams CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

OCTAVUS VANSHON WILLIAMS,

Defendant and Appellant.

 D080892

 (Super. Ct. No. SCD207315)

APPEAL from a judgment of the Superior Court of San Diego County, 

Robert F. O’Neill, Judge. Affirmed. Request for judicial notice denied. 

Lizabeth Weis, under the appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Christopher P. Beesley and Michael D. Butera, Deputy Attorneys General, 

for Plaintiff and Respondent.
2

In this appeal, we affirm the denial of the petitioner’s second 

resentencing request under Penal Code section 1172.6.1 Contrary to his 

claim, changes made to the resentencing law by Senate Bill No. 775 (Senate 

Bill 775) after the denial of his first petition have no bearing on his 

conviction. And although the trial court should have appointed counsel 

before denying the petition at the prima facie stage, this or any other 

procedural error made by the trial court was harmless because petitioner 

is ineligible for relief as a matter of law.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, Octavus Vanshon Williams was convicted by a jury for the 

murder of Gregory Harper. In 2010, this court affirmed his conviction in 

an unpublished opinion. (People v. Williams (Sept. 21, 2010, D054769)

(Williams I).)2 We offer only a brief summary of the facts, which are 

undisputed in this appeal, for context.

Williams was a high ranking member of the Skyline gang. Offended 

by what he perceived as slights to his status by Harper, a more junior gang 

member, he and another senior gang member, Andre Brown, confronted 

Harper in the apartment of a fourth gang member and beat him up. 

Williams, Brown and Harper then left the apartment. Two days later, 

1 All further undesignated statutory references are to the Penal Code. 

Section 1172.6 was previously numbered 1170.95. For simplicity, we refer to

it as section 1172.6 throughout. 

2 This is the first of two unpublished opinions related to this case that we 

reference under an exception to the general rule that unpublished opinions 

are not citable. (Cal. Rules of Court, rule 8.1115(b)(2) [unpublished opinions 

may be cited when, as here, “the opinion is relevant to a criminal or 

disciplinary action because it states reasons for a decision affecting the same 

defendant or respondent in another such action.”].)
3

Harper’s body was discovered in the back of the car he had driven to meet 

Williams and Brown. He died of strangulation. (Williams I, supra, 

D054769.)

A jury acquitted Williams of first degree murder, necessarily rejecting

theories of premeditation and felony murder. Instead, he was convicted of 

second degree murder with implied malice. (§ 187, subd. (a); Williams I, 

supra, D054769.) Brown subsequently pleaded guilty to the same offense.

In 2019, Williams filed a petition for resentencing under section 1172.6. 

In that matter, “[t]he trial court appointed counsel, received briefing, 

reviewed the record of conviction, and heard argument. The court denied the 

petition, finding Williams was prosecuted as a direct aider and abettor and 

that the jury was not instructed on felony murder for second degree murder 

and the jury was not instructed on the natural and probable consequences 

doctrine for that offense.” (People v. Williams (Oct. 12, 2021, D078714) 

(Williams II).) We affirmed this denial.

Williams subsequently filed a second petition in which he argued that

changes made to section 1172.6 by Senate Bill 775 entitled him to 

resentencing relief. The trial court denied his request summarily, recalling

the basis for its previous denial and reasoning that Williams was collaterally 

estopped from bringing a second petition because “no change in the applicable 

law or facts . . . justify the filing of a successive petition.” That second denial

is the subject of this appeal.

DISCUSSION

Senate Bill No. 1437 “ ‘amend[ed] 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 
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underlying felony who acted with reckless indifference to human life.’ ” 

(People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) To accomplish this, 

it revised sections 188 and 189 and added section 1172.6 to create a 

procedure by which defendants previously convicted of murder under a nowunavailable theory of liability can seek resentencing. (Lewis, at p. 959.) 

With Senate Bill 775, the Legislature expanded this form of relief to include

murder convictions stemming from “any theory under which malice is 

imputed to a person based solely on that person’s participation in a crime,”

as well as attempted murder and manslaughter convictions that were 

similarly based on the prosecution’s ability to proceed under a felony murder 

or natural and probable consequences doctrine. (Stats. 2021, ch. 551 (2021–

2022 Reg. Sess.); § 188, subd. (a)(3).)

Williams claims the trial court erred in dismissing his second section 

1172.6 petition primarily by (1) failing to appoint counsel at the prima facie

stage, (2) relying on records it was prohibited from considering, namely our 

prior opinion, and (3) raising on its own and ultimately invoking the 

collateral estoppel effect of the order denying the first petition. He further 

argues these errors were prejudicial because his record of conviction does not 

conclusively establish he is ineligible for relief as a matter of law. As we 

explain below, Williams should have been afforded the benefit of counsel 

before the court decided whether his petition stated a prima facie case for 

relief. But irrespective of that error or any others, there is no prejudice 

to Williams. As we concluded in the first appeal, the trial court properly 

denied his first petition. And Senate Bill 775, which was enacted thereafter,

made no changes that potentially affected his conviction. As a result,

Williams remains ineligible for resentencing as a matter of law.
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We agree with Williams’s first contention. Consistent with the 

reasoning of Lewis, supra, 11 Cal.5th 952, he was entitled to the appointment 

of counsel “upon the filing of a compliant petition” and before the trial court 

decided whether he had made a prima facie showing.3 (Lewis, at p. 963.) 

The fact that the court chose to raise a legal issue not addressed in Williams’s 

second petition—the collateral estoppel effect of the order denying his first 

petition—as a basis for rejecting it was yet another reason why counsel 

should have been appointed. Even so, any error in failing to appoint counsel 

does not require reversal unless Williams can show it is reasonably probable 

that with the assistance of counsel, his second petition would not have been 

summarily denied without an evidentiary hearing. (Id. at p. 974.) A similar 

prejudice analysis applies to Williams’s claim that the trial court should not 

have raised the collateral estoppel issue on its own motion and that doing so 

violated his due process rights as well as separation of powers principles. 

It does not matter if Williams is correct on all or only some of his 

contentions, because as a matter of law, he remains ineligible for 

3 There was admittedly some confusion in Williams’s petition regarding 

the appointment of counsel. He failed to check a box on the form requesting 

the appointment of counsel, yet he served the Office of the Public Defender 

with a copy of his petition. The Attorney General does not contest that there 

was at least reason for the trial court to inquire whether Williams was 

requesting that counsel be appointed.
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resentencing.4 The question of whether the court properly denied the 

resentencing petition at the prima facie stage is a legal one that we review de 

novo. (People v. Ervin (2021) 72 Cal.App.5th 90, 101.) And putting aside the 

technical application of collateral estoppel or issue preclusion, the fact 

remains that we previously determined—based on a permissible review of the 

record of conviction in the underlying case—that Williams’s first petition was

properly denied. (Williams II, supra, D078714.) As the appellant, it is 

Williams’s burden to show why the denial of his second petition—and not 

merely the reason for the denial—is legally incorrect. 

Williams first emphasizes that the law has changed since the denial of 

his first petition with the amendment of section 1172.6 by Senate Bill 775, 

effective January 1, 2022. But as we made clear in our opinion denying his 

first petition, the record demonstrates that Williams was convicted as the 

direct aider and abettor of an implied malice murder. (Williams II, supra,

D078714 [“The jury instructions demonstrated Williams was tried as a direct 

aider and abettor who acted with implied malice.”].) Generally, caselaw 

interpreting the scope of Senate Bill No. 1437 has clarified that direct aider 

and abettor liability for murder remains a valid legal theory because malice 

is not imputed to the offender. (People v. Powell (2021) 63 Cal.App.5th 689, 

710–714.) Unlike convictions that rest on the natural and probable 

consequences doctrine, a direct aider and abettor is necessarily found to 

4 We are less concerned about Williams’s assertion that the trial court 

improperly relied on prior appellate opinions. As the Supreme Court in Lewis 

made clear, what is prohibited is reference to factual descriptions in appellate 

opinions as a means of “ ‘factfinding involving the weighing of evidence or the 

exercise of discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972, quoting People v. 

Drayton (2020) 47 Cal.App.5th 965, 980.) As our opinion in Williams II made 

clear, we construed the trial court’s ruling as being properly based on the 

record of conviction including the jury instructions. (Williams II, supra,

D078714.) 
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have personally possessed malice toward the victim. (People v. Gentile (2020) 

10 Cal.5th 830, 848 [“Senate Bill 1437 does not eliminate direct aiding and 

abetting liability for murder because a direct aider and abettor to murder 

must possess malice aforethought”5]; People v. Superior Court (Valenzuela)

(2021) 73 Cal.App.5th 485, 501–502 (Valenzuela) [discussing both the actus 

reus and the mens rea requirement for direct aider and abettor murder 

liability].)

Contrary to Williams’s position, Senate Bill 775 does nothing to change 

this. As we have already explained, “Senate Bill 775 does not . . . affect our 

conclusion that direct aiding and abetting implied malice murder remains

a valid form of murder liability, because a person convicted of aiding and 

abetting implied malice murder [does not have] malice [ ] imputed [to him] 

based solely on the person’s participation in a crime.” (People v. Vizcarra

(2022) 84 Cal.App.5th 377, 391 (Vizcarra); see also People v. Glukhoy (2022) 

77 Cal.App.5th 576, 591 [“But nothing in Senate Bill 775 or its legislative 

history indicates a rejection of our high court’s observation concerning the 

availability of direct aiding and abetting implied malice murder as a theory 

of accomplice liability . . . . If the Legislature intended to abrogate aiding and 

abetting implied malice murder, we think it would have expressly done so in 

Senate Bill 775.”].)

Williams’s only response as to prejudice is to assert a contrary view in 

which murder liability for a direct aider and abettor requires a specific intent 

to kill or express malice. He maintains and asks us to conclude “Powell and 

5 Malice aforethought can be either express or implied. (§ 188, subd. (a).) 

In this context, it makes no difference which kind of malice an aider and 

abettor harbored. (People v. Soto (2020) 51 Cal.App.5th 1043, 1057 (“Senate 

Bill No. 1437 changed the circumstances under which a person could be 

convicted of murder without a showing of malice, but it did not exclude from 

liability persons convicted of murder for acting with implied malice.”).)
8

the decisions following that analysis were wrongly decided.” But this court

has already rejected the identical argument in three published cases. 

(Valenzuela, supra, 73 Cal.App.5th at pp. 501–503; Vizcarra, supra, 84 

Cal.App.5th at pp. 390–391; People v. Werntz (2023) 90 Cal.App.5th 1093, 

1111–1113.) We have no reason to reach a different conclusion here. As a 

result, Williams cannot show that any claimed error by the trial court in 

denying his second petition for resentencing under section 1172.6 could have 

adversely affected the outcome, because the record of his conviction 

conclusively establishes as a matter of law that he was not entitled to relief. 

Finally, we address Williams’s request for judicial notice. This pertains 

to documents showing that Brown (the other gang member convicted for 

Harper’s murder) was able to withdraw his 2008 plea to second degree 

murder and plead instead to voluntary manslaughter in 2022. Williams 

argues this creates an unfair result and asserts it as another reason his 

resentencing petition should not have been denied. But he cites no authority 

for his argument, and we are unaware of any decision indicating that a plea 

deal given to one defendant who committed a crime must match the 

treatment of a codefendant. This falls squarely within the purview of 

prosecutorial discretion and has no bearing on our analysis of William’s 

eligibility for resentencing. Because it is not pertinent to our decision, we 

deny the request for judicial notice. (Evid. Code, §§ 452 & 454, subd. (a)(1).)
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DISPOSITION

The trial court’s order denying petitioner’s request for resentencing is 

affirmed.

DATO, J.

WE CONCUR:

IRION, Acting P. J.

RUBIN, J.