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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ord ered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered publis hed for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.
THANDI EW SHARIF WILSON,
Defendant and Appellant. D078231

(Super. Ct. No. SCD145049)

APPEAL from a n order of the Superior Court of San Diego County, Melinda J. Lasater, Judge. Reversed and remanded with direc tion s

. 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 Attorney s General, Alan Aman, Steve Oetting , and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Respondent.

Thandi ew Sharif Wilson appeal s the order summarily denying his petition for resentencing under statutory changes that narrowed the scope of2

felony

- murder liability and authoriz ed 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 ju r y’ s true findings on felony

- murder special

- ci r c umstance allegations made Wilson ineligible for resentencing. In our initial opinion, we concluded the jury’s findings did not categorically bar relief, r eversed the order , and remanded the matter for further proceedings

. T he 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 felony

murder special

- circumstance allegation did not preclude a petitioner from makin g 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, b ased on Strong , supra , 13 Cal.5th 698, we r everse 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 par ty in a motel room hosted by Henry Mabry, a member of a rival gang. Wilson and his companions left3

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 firear m 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 allege d 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 tha t 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 gui lty on all counts and found true all attached allegations, including the felony

murder special

- circumstance allegations

.4

T he 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 con current 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 authoriz ing those convicted of felony murder to petition for resentencing if they could not be convicted of that crime under the amended statutes h ad 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 ha d 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 re ckless 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 ac tion.

1 The amen d ments are not relevant to this appeal . W e 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)

.5

In an initial response to the p etition, t he People argued the jury’s true findings on the felony

- murder special

- circumstance allegations made Wilson
in eligibl e for relief

. They attached copies of the accusatory pleading, the jury’s verdicts, the s entencing minutes, and other documents from the underlying criminal action. Wilson , now represented by appointed counsel, filed a reply

. He argu ed his petition stated a prima facie case for relief , and urged the superior court
to issue an order to show ca u se 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 special

circumstance allegation made a petitioner ineligible for relief under section 117 2

. 6 as a matter of law

. After reviewing the parties’ written submissions and the special circumstance instructions given to the jury , t he superior court denied the

p etition

. The court ruled the jury’s true findings on the special circum stance 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, w e issued an opinion in which we conclud ed the jury’s true findings on the felony

- murder special

- circumstance allegations did not categorically bar Wilson from relief , revers ed the order denying his pet ition for resentencing , and remand ed 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 jur ies ’ true finding s on felony

- murder special

- circumstance6

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
statu t e defining the special circumstance (§ 190.2, subd. (d)) , do not preclude a defendant from stating a prima facie ca se for relief under section 117 2

. 6

. ( Strong , at p. 7 2 1 .) 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, Supr eme 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 felony

murder special

- circumstance allegations becaus e 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. T he
Peo ple 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, t he Supreme Court recently decided that whe re , as here, a defendant ’ s case “was tried before both Banks and Clark , the special7

circumstance findings do not preclude him from making out a prima facie case for resentencing under section 1172.6 .” ( Strong, sup ra , 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 section s 188 and 189, and “[a] pre
Banks and Clark speci al circumstance finding does not negate th at 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 re ckless 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 [t rial 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 ] eithe r 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 finding s more than a decade before the Supreme Court decided Bank s , supra , 61 Cal.4th
788 , and Clark , supra , 63 Cal.4th 522

. Under Strong , th ose finding s do not preclude Wilson from s tating 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 117 2

. 6 and n othing in the record shows he is ineligible for relief as a matter of law, the superio r court erred by summarily den y ing his petition. W e therefore must remand the matter to the superior court to8

issue an order to show cause and, to the extent necessary, hold an evidentiary hearing. (§ 1172.6 , subd s

. (c), (d) ; Strong , at pp. 708

- 709 ; Peop le v. Duc h ine (2021) 60 Cal.App.5th 798, 816 .) We express no opinion on how the court should ultimate ly rule on the petition.
III. DISPOSITION The opinion filed on September 29, 20 2 1, is vacated. The order denying the p etition for resentencing under sec tion 1172.6 is reversed . The matter is remanded to the superior court with directions to issue an order to show

ca u se and , to the extent necessary, hold an evidentiary hearing.

IRION, J. WE CONCUR:

HUFFMAN , Acting P. J.

O’ROURKE , J.