Filed 11/2/22 P. v. Wilson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

THANDIEW SHARIF WILSON,

Defendant and Appellant.

 D078231

 (Super. Ct. No. SCD145049)

APPEAL from an order of the Superior Court of San Diego County, 

Melinda J. Lasater, Judge. Reversed and remanded with directions.

Susan S. Bauguess, under 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 Attorneys General, Alan

Aman, Steve Oetting, and Anthony Da Silva, Deputy Attorneys General, for 

Plaintiff and Respondent.

Thandiew Sharif Wilson appeals the order summarily denying his 

petition for resentencing under statutory changes that narrowed the scope of 
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felony-murder liability and authorized resentencing. Wilson was convicted 

on a felony-murder theory after his brother fatally shot the victim during the 

commission of other felonies in which Wilson participated. The superior 

court ruled the jury’s true findings on felony-murder special-circumstance

allegations made Wilson ineligible for resentencing.

In our initial opinion, we concluded the jury’s findings did not 

categorically bar relief, reversed the order, and remanded the matter for 

further proceedings. The Supreme Court of California granted the People’s 

petition for review and held the case for its decision in People v. Strong (2022) 

13 Cal.5th 698 (Strong), where it held a jury’s true finding on a felonymurder special-circumstance allegation did not preclude a petitioner from 

making a prima facie showing of eligibility for resentencing when the jury 

made the finding before the Supreme Court had issued two decisions on key 

phrases in the statute defining the special circumstance. After the Supreme 

Court issued its decision in Strong, it transferred Wilson’s appeal to us with 

directions to vacate our opinion and to reconsider the matter in light of the 

decision.

In compliance with those directions, we hereby vacate our prior 

opinion. And, based on Strong, supra, 13 Cal.5th 698, we reverse the order 

denying Wilson’s resentencing petition and remand the matter for further 

proceedings.

I.

BACKGROUND

A. Fatal Shooting Incident

On July 6, 1999, Wilson, his brother, and another member of the 

Lincoln Park criminal street gang went to a party in a motel room hosted by 

Henry Mabry, a member of a rival gang. Wilson and his companions left 
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after Mabry became angry with them but later returned under the false 

pretense of recovering an item that had been left behind. Upon gaining 

reentry to the motel room, Wilson’s brother pulled out a gun and told the 

guests to get on the floor and surrender their belongings. Wilson himself 

demanded property from one guest and searched through Mabry’s duffle bag. 

When Wilson and his companions realized Mabry was asleep, they began 

beating him and shouting “Lincoln Park.” Mabry fought back, and Wilson’s 

brother fatally shot him in the head. (People v. Wilson (Dec. 23, 2003, 

D041120 [nonpub. opn.].)

B. Charges, Verdicts, and Sentence

The People charged Wilson with first degree murder (Pen. Code, § 187, 

subd. (a); undesignated section references are to this code), first degree 

burglary (§§ 459, 460), robbery (§ 211), and six counts of attempted robbery 

(§§ 211, 664). As to all counts, the People alleged firearm and gang 

enhancements. (§§ 186.22, subd. (b)(1), 12022.53, subds. (b), (c), (d), (e)(1), 

12022.5, subd. (a)(1), 12022, subd. (a)(1).) As to the murder, the People 

alleged special circumstances that the murder occurred during the 

commission or attempted commission of burglary and robbery. (§ 190.2, 

subd. (a)(17)(A), (G).)

The jury was instructed that if it found Wilson was not the actual 

killer, to find the special circumstance allegations true the jury had to be 

satisfied beyond a reasonable doubt that he aided and abetted the murder 

with intent to kill or aided and abetted the burglary, robbery, or attempted 

robbery as a major participant with reckless indifference to human life. 

(CALJIC No. 8.80.1; see § 190.2, subd. (d).) The jury found Wilson guilty on 

all counts and found true all attached allegations, including the felonymurder special-circumstance allegations. 
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The superior court sentenced Wilson in 2002. For the murder, the 

court imposed a term of life without the possibility of parole plus a term of 

25 years to life for the firearm enhancement. (§§ 190.2, subd. (a), 12022.53, 

subds. (d), (e)(1).) The court imposed and stayed execution of prison terms for

the attempted robbery of Mabry and the attached enhancements (§ 654), and 

imposed concurrent prison terms for all the other crimes and attached 

enhancements (§ 669, subd. (a)). 

C. Petition for Resentencing

On January 1, 2019, legislation took effect that, among other things,

narrowed the scope of accomplice liability for felony murder by amending 

sections 188 and 189. (Stats. 2018, ch. 1015, §§ 2, 3.) The legislation also 

added a new statute authorizing those convicted of felony murder to petition 

for resentencing if they could not be convicted of that crime under the 

amended statutes had they been in effect at the time of the killing. (Former 

§ 1170.95, enacted by Stats. 2018, ch. 1015, § 4, amended by Stats. 2021, 

ch. 551, § 2, and renumbered § 1172.6 by Stats. 2022, ch. 58, § 10.)1 Later 

that month, Wilson, acting on his own behalf, filed a form petition alleging he 

could not now be convicted of felony murder because he was not the actual 

killer, he had no intent to kill in aiding and abetting the actual killer, and he 

was not a major participant in the felony and did not act with reckless 

indifference to human life in committing the felony. Wilson attached to the 

petition a short memorandum of points and authorities and copies of the 

abstract of judgment and a few other documents (or portions thereof) from 

the underlying criminal action. 

1 The amendments are not relevant to this appeal. We shall cite the 

current version of the statute (§ 1172.6) in this opinion even though Wilson 

filed his petition under the former version (§ 1170.95).
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In an initial response to the petition, the People argued the jury’s true 

findings on the felony-murder special-circumstance allegations made Wilson 

ineligible for relief. They attached copies of the accusatory pleading, the 

jury’s verdicts, the sentencing minutes, and other documents from the 

underlying criminal action. 

Wilson, now represented by appointed counsel, filed a reply. He argued 

his petition stated a prima facie case for relief, and urged the superior court 

to issue an order to show cause and to hold an evidentiary hearing.

The parties filed supplemental briefs discussing the split in Court of 

Appeal decisions on whether a jury’s true finding on a felony-murder specialcircumstance allegation made a petitioner ineligible for relief under 

section 1172.6 as a matter of law. 

After reviewing the parties’ written submissions and the special 

circumstance instructions given to the jury, the superior court denied the 

petition. The court ruled the jury’s true findings on the special circumstance 

allegations made Wilson ineligible for resentencing. 

D. Prior Appellate Proceedings

On Wilson’s appeal of the superior court’s order summarily denying his 

section 1172.6 petition, we issued an opinion in which we concluded the jury’s 

true findings on the felony-murder special-circumstance allegations did not 

categorically bar Wilson from relief, reversed the order denying his petition

for resentencing, and remanded the matter to the superior court for further 

proceedings. (People v. Wilson (2021) 69 Cal.App.5th 665, cause transferred 

and opinion rendered not citable by order of Supreme Court filed Sept. 28, 

2022, S271604.) The Supreme Court of California granted review and held 

Wilson’s case for its decision in Strong, supra, 13 Cal.5th 698. The Supreme 

Court ruled that juries’ true findings on felony-murder special-circumstance 
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allegations made before its decisions in People v. Banks (2015) 61 Cal.4th 788 

(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), which for the first 

time provided substantial guidance on the meanings of the phrases “major 

participant” and “with reckless indifference to human life” as used in the 

statute defining the special circumstance (§ 190.2, subd. (d)), do not preclude 

a defendant from stating a prima facie case for relief under section 1172.6. 

(Strong, at p. 721.) After issuing its decision, the Supreme Court transferred 

Wilson’s appeal back to us with directions to vacate our initial opinion and to 

reconsider the matter in light of the decision. (People v. Wilson, S271604, 

Supreme Ct. Mins., Sept. 28, 2022.)

II.

DISCUSSION

Wilson contends the superior court erred by summarily denying his 

petition for resentencing based on the jury’s true findings on the felonymurder special-circumstance allegations because those findings were made

before the Supreme Court decided Banks, supra, 61 Cal.4th 788, and Clark, 

supra, 63 Cal.4th 522. He asks us to reverse the superior court’s order and to 

remand the matter with directions to issue an order to show cause. The 

People initially disagreed with Wilson and urged us to affirm the superior 

court’s order. But after the Supreme Court decided Strong, supra, 13 Cal.5th 

698, the People agree that “the special circumstance findings rendered by the 

jury against [Wilson] do not, alone, render him per se ineligible for 

resentencing relief” and that the matter should be remanded with directions 

to the superior court to issue an order to show cause and to hold an 

evidentiary hearing. We agree with the parties.

As noted earlier, the Supreme Court recently decided that where, as 

here, a defendant’s case “was tried before both Banks and Clark, the special 
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circumstance findings do not preclude him from making out a prima facie 

case for resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at

p. 721.) The Supreme Court reasoned that section 1172.6 requires the 

petitioner to make a prima facie showing that he could not be convicted of 

murder under the amended versions of sections 188 and 189, and “[a] preBanks and Clark special circumstance finding does not negate that showing 

because the finding alone does not establish that the petitioner is in a class of 

defendants who would still be viewed as liable for murder under the current 

understanding of the major participant and reckless indifference 

requirements.” (Strong, at pp. 717-718.) “This is true even if the trial 

evidence would have been sufficient to support the findings under Banks and

Clark.” (Strong, at p. 710; see People v. Montes (2021) 71 Cal.App.5th 1001, 

1008 [trial court may not deny section 1172.6 petition at prima facie stage 

based on its own determination defendant was major participant in felony 

and acted with reckless disregard for human life].) Thus, “[n]either the jury’s 

pre-Banks and Clark findings nor a court’s later sufficiency of the evidence 

review amounts to the determination section 1172.6 requires, and neither set 

of findings supplies a basis to reject an otherwise adequate prima facie 

showing and deny issuance of an order to show cause.” (Strong, at p. 720.)

In Wilson’s case, the jury made its special circumstance findings more 

than a decade before the Supreme Court decided Banks, supra, 61 Cal.4th 

788, and Clark, supra, 63 Cal.4th 522. Under Strong, those findings do not 

preclude Wilson from stating a prima facie case for relief. (Strong, supra, 

13 Cal.5th at p. 721.) Because Wilson’s petition alleged the facts necessary 

for relief under section 1172.6 and nothing in the record shows he is ineligible 

for relief as a matter of law, the superior court erred by summarily denying 

his petition. We therefore must remand the matter to the superior court to 
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issue an order to show cause and, to the extent necessary, hold an evidentiary 

hearing. (§ 1172.6, subds. (c), (d); Strong, at pp. 708-709; People v. Duchine 

(2021) 60 Cal.App.5th 798, 816.) We express no opinion on how the court 

should ultimately rule on the petition.

III.

DISPOSITION

The opinion filed on September 29, 2021, is vacated. The order denying 

the petition for resentencing under section 1172.6 is reversed. The matter is 

remanded to the superior court with directions to issue an order to show 

cause and, to the extent necessary, hold an evidentiary hearing.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O’ROURKE, J.