Filed 2/18/22 P. v. Russell CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

TIMOTHY DAVID RUSSELL,

 Defendant and Appellant.

 G060352

 (Super. Ct. No. C-54962)

 O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, 

Terri K. Flynn-Peister, Judge. Affirmed.

Robert V. Vallandingham, Jr., under appointment by the Court of Appeal, 

for Defendant and Appellant.

No appearance for Plaintiff and Respondent.
2

Appellant Timothy David Russell was convicted in 1986 of the murder of 

Marilyn Lyon, who had been found bludgeoned to death in her home in 1984. Appellant 

was a coworker of the victim and often performed gardening work for her. At trial he 

asserted he had come to the home, found the body, panicked, and fled. The jury

concluded this explanation was late (it was different than his first statements) and was 

contradicted by other evidence. They found him guilty of first degree murder committed 

in the course of a robbery and attempted rape.

In 2019, appellant filed a petition seeking to vacate his murder conviction

pursuant to subsequently-enacted Penal Code1section 1170.95. After appointing counsel 

for appellant, the trial court denied that petition on the basis that it did not “set forth a 

prima facie case for relief under the statute.” That meant there was no need to delve into 

the details of appellant’s case because on its face, his petition did not set out a basis for 

relief.

Section 1170.95 is the procedural mechanism for implementing legislative 

changes in California law which narrow the scope of vicarious liability for murder in two 

ways. First, the Legislature eliminated the natural and probable consequences theory for 

that crime by providing that “[m]alice shall not be imputed to a person based solely on 

his or her participation in a crime.” (§ 188, subd. (a)(3).) Second, it reigned in the felony 

murder rule so that it can only be applied to nonkillers if they aided and abetted the killer 

in committing first degree murder, or they were a major participant in the underlying 

felony and acted recklessly indifferent to human life. (§ 189, subd. (e).) 

In addition to ushering in these changes, the Legislature also enacted 

section 1170.95, which is the procedural mechanism for challenging a murder conviction 

based on vicarious liability. To obtain relief under that section, the defendant must show 

1) he was prosecuted for murder under the felony murder rule or the natural and probable 

1 All further statutory references are to the Penal Code. 
3

consequences doctrine, 2) he was ultimately convicted of first or second degree murder, 

and 3) and – and this is the flaw in appellant’s petition – he would not be liable for 

murder today because of how the Legislature has redefined that offense. (§ 1170.95, 

subd. (a).)

If the defendant makes a prima facie showing to that effect, the trial court is 

required to issue an order to show cause and, absent a concession by the People, conduct 

an evidentiary hearing. (§ 1170.95, subds. (c), (d).) At the hearing, the prosecution must 

prove beyond a reasonable doubt the defendant is ineligible for resentencing because his 

conduct did in fact rise to the level of murder as redefined by SB 1437. (Id., subd. 

(d)(3).) Otherwise, the defendant is entitled to vacatur and resentencing pursuant to the 

terms of section 1170.95. But the trial court here ruled no hearing was required because

the readily discernible facts showed appellant was not eligible for relief under the statute. 

Appellant appealed, and we appointed counsel to represent him. Counsel 

filed a brief which set forth the procedural facts of the case. Counsel did not argue

against appellant but advised us there were no issues in the case that had any chance of 

success. Appellant was invited to express his own objections to the proceedings against 

him and filed two briefs, but – as we will discuss – neither addressed the issues raised in 

his petition. 

We find ourselves in agreement with appellate counsel. There is simply no 

issue here. Relief under section 1170.95 requires that the applicant be someone who 

could not be convicted under the legislative reformation of the felony murder rule. That 

reformation includes that the applicant not be “major participant” in the underlying 

felony. That phrase requires scrutiny in cases where the applicant was an aider or abettor 

of the crime. But appellant was not an aider or abettor. He was the only person involved. 

He was the major participant. The jury found he was the killer. He is therefore ineligible 

for relief under section 1170.95.
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Appellant’s own briefing does not address these issues. It is addressed to 

establishing that he has reformed himself and is deserving of parole. It is accompanied 

by proof of admirable conduct and accomplishments. But we do not have the power to 

address those issues in this appeal. We are limited by law to a review of the proceedings 

under his request for relief under section 1170.95, and we are unable to find any flaw in 

those proceedings.

The order is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.