People v. Williams CA4/2

Opinion

Filed 8/17/21 P. v. Williams CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075436

v. (Super.Ct.No. RIF088153)

CURTIS JOHN WILLIAMS, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.

Affirmed.

John E. Edwards, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity

Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

A jury convicted defendant and appellant Curtis John Williams of second degree

murder and robbery. After the passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.)

(Senate Bill 1437), he filed a petition for resentencing under Penal Code1 section

1170.95. A trial court found that he was not eligible for relief, based on the prosecutor’s

erroneous representation that he was the actual killer, and it summarily denied his

petition. Defendant contends the denial order must be reversed because the court failed

to follow the procedural steps required by section 1170.95 and violated his right to due

process under California law. He further argues the order must be reversed because the

prosecutor’s statement that he was the actual killer amounted to prosecutorial

misconduct, and defense counsel’s agreement with that statement amounted to ineffective

assistance of counsel. We conclude the trial court in denying the petition on the

erroneous ground that defendant was the actual killer but that any error was harmless

beyond a reasonable doubt. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND2

“On December 2, 1995, the victims, Vincent Anes and Sherry Magpali, went to a

birthday party with Jose Menor and his brother Eugene. Anes was driving his car. After

attending the birthday party for an hour, the group went to a bowling alley in Moreno

1 All statutory references will be to the Penal Code unless otherwise noted.

2 The factual background comes directly from our opinion affirming defendant’s convictions in People v. Williams (Sept. 8, 2003, E031301) [nonpub. opn.]. On August 28, 2020, we granted defendant’s request to take judicial notice of this opinion. 2 Valley. After Anes and Magpali bowled for an hour, the group left and went to a fast

food restaurant. The group then went to a restaurant in Corona for dinner for about two

hours. Anes then dropped off the Menor brothers at their home at 12:45 a.m.

“Kenneth Riomales was a high school classmate of Anes and a friend of Anes and

Magpali. Between 1:00 and 2:00 a.m., he was driving in Moreno Valley with three

friends when they saw Anes’s car in a parking lot at a local park. They went to a nearby

golf course to look at the view and returned 20 to 30 minutes later. They decided to

surprise their friends and drove into the parking lot.

“When Riomales looked in the car, he saw a naked body in the back seat. He and

the others realized the person had been shot. They drove to Anes’s home to see if he was

there, found he was absent and then called police.

“Anes had been shot eight times in the head, chest and left arm. Deputies

searching the park found Magpali’s underwear and Anes’s clothing in the park and in the

victims’ car. Magpali was missing but her body was found before 7:00 a.m. on the side

of the 215 freeway in the Sun City area. She had been shot twice in the head. The 10

shell casings collected from both crime scenes were manufactured by six different

companies.

“On January 18, 1996, a Redlands police officer stopped a car for having a

cracked windshield. The car was eventually impounded and a gun was found under the

front seat. It was loaded with different colored bullets from different manufacturers. The

driver, Richard Simon, was arrested. Subsequent testing established that the gun was the

3 gun which had been used to kill Anes and Magpali. The parties stipulated that DNA

evidence established that Simon’s DNA was found on Magpali’s vagina and pants.

“On May 26, 1996, David Fernandez, a sheriff’s deputy arrested Richard Simon

for a homicide in Moreno Valley that had occurred the previous day. A gun was

recovered along with three magazines that were loaded with different colored bullets

from different manufacturers. The homicide occurred outside an apartment occupied by

defendant Williams, and his car was in the parking lot. . . . The car was subsequently

located and carpet and fiber samples were obtained from it. The fiber samples from the

car were similar to the fibers found on Magpali’s body.

“The prosecution also introduced a transcript of excerpts from two tape recordings

of October 1999, jail conversations between Williams and his girlfriend. The recordings

were made when the girlfriend visited Williams at the jail. In the first, Williams referred

to ‘them kids’ and said: ‘Tell you the truth I just snatched her out the car when he

bugged her, threw her to the side of the road . . . .’ In the second, Williams said: ‘He

[presumably Simon] was in the passenger seat too. He had her in the fro [sic] . . . in th

[sic]. . . in this like all with her knees on the ground and her head in his lap. Something

like that I don't really, I can’t even remember everything.’ ”

A jury convicted defendant of the second degree murder of Anes (§ 187, subd. (a),

count 1), the first degree murder of Magpali (§ 187, subd. (a), count 2)), and rape by

force in concert with another (§§ 261, subd. (a)(2), 264.1, count 3). As to counts 1 and 2,

the jury found true the allegation that a principal was armed with a firearm. (§ 12022,

4 subd. (a)(1).) It also found true special circumstance allegations that the murder in count

2 was committed in the course of a kidnapping and rape. (§ 190.2, subd. (a)(17).) A trial

court sentenced defendant to life without the possibility of parole on count 2, 15 years to

life on count 1, and a consecutive two years on the firearm enhancements. The court

stayed the sentence on count 3 pursuant to section 654.

Defendant appealed, and this court affirmed the judgment. (People v. Williams,

supra, E031301.)

Defendant subsequently filed a petition for resentencing under section 1170.95, in

propria persona, in the superior court as to the murder of Magpali. The trial court denied

the petition, and this court affirmed the denial in a recent opinion. (People v.

Williams (Oct. 8, 2020, E072975) [nonpub. opn.], review granted Dec. 16, 2020,

S265368.)3

On December 12, 2019, defendant filed a second in propria persona petition under

section 1170.95, regarding the murder of Anes. He filed a preprinted form and only

checked the box stating that he was convicted of second degree murder under the natural

and probable consequences doctrine or under the second degree felony murder doctrine,

and he could not now be convicted of murder because of changes to section 188, effective

3 The Supreme Court deferred any further action in this matter pending consideration and disposition of a related issue in People v. Lewis (2020) 43 Cal.App.5th 1128, review granted March 18, 2020, S260598, or pending further order of the court. We note that, during the pendency of this appeal, the Supreme Court issued People v. Lewis (July 26, 2021, S260598) __ Cal.5th __ [2021 Cal.LEXIS 5258] (Lewis). 5 January 1, 2019. He did not request the court to appoint counsel for him. The People

apparently did not file a response.

The court set a status conference hearing for December 27, 2019. The hearing was

continued to January 10, 2020 and again to March 13, 2020.

On January 14, 2020, the Riverside County Public Defender filed a notice of

declaration of conflict of interest, stating that the Law Offices of the Public Defender was

appointed to represent defendant in his section 1170.95 petition. However, the public

defender declared a conflict of interest as to defendant in this matter.

On March 13, 2020, the court held a status conference. The court relieved the

public defender and appointed conflict defense lawyers to represent defendant. The court

then set a status conference for May 22, 2020. The status conference was continued

again to July 10, 2020.

At the status conference hearing on July 10, 2020, the prosecutor made an oral

motion to dismiss the petition. He stated that, “[a]ccording to the 2003 appellate opinion

in imaging, it shows [defendant] is the actual killer in both murders.” Defense counsel

stated that he looked at the opinion, and he “[did not] disagree with [the prosecutor] on

the facts.” He then objected for the record. The court summarily denied the petition.

Defendant filed a timely notice of appeal.

6 DISCUSSION

The Court’s Summary Denial of Defendant’s Petition Was Improper; However, Any

Error Was Harmless

Defendant contends the court erred in summarily denying his section 1170.95

petition for resentencing since it failed to follow the procedural requirements mandated

by section 1170.95 and thereby violated his right to due process. He further argues that

the prosecutor committed misconduct by misrepresenting to the court that the 2003

appellate opinion showed he was the actual killer, and that his counsel rendered

ineffective assistance by agreeing with the prosecutor that the opinion showed him to be

the actual killer. We conclude that the court erred in denying the motion on the

erroneous ground that defendant was the actual killer but that any error was harmless

beyond a reasonable doubt.

A. Senate Bill 1437

The California Supreme Court recently provided the following explanation of

Senate Bill No. 1437 and summary of procedures for seeking relief under section

1170.95:

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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.’ (Stats. 2018, ch. 1015, § 1,

7 subd. (f).) In addition to substantively amending sections 188 and 189 of the Penal Code,

Senate Bill 1437 added section 1170.95, which provides a procedure for convicted

murderers who could not be convicted under the law as amended to retroactively seek

relief. [Citation.]

“Pursuant to section 1170.95, an offender must file a petition in the sentencing

court averring that: ‘(1) A complaint, information, or indictment was filed against the

petitioner that allowed the prosecution to proceed under a theory of felony murder or

murder under the natural and probable consequences doctrine[;] [¶] (2) The petitioner

was convicted of first degree or second degree murder following a trial or accepted a plea

offer in lieu of a trial at which the petitioner could be convicted for first degree or second

degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second

degree murder because of changes to Section 188 or 189 made effective January 1, 2019.’

(§ 1170.95, subds. (a)(1)-(3); see also § 1170.95, subd. (b)(1)(A).) Additionally, the

petition shall state ‘[w]hether the petitioner requests the appointment of counsel.’ (§

1170.95, subd. (b)(1)(C).) If a petition fails to comply with subdivision (b)(1), ‘the court

may deny the petition without prejudice to the filing of another petition.’ (§ 1170.95,

subd. (b)(2).)

“Where the petition complies with subdivision (b)’s three requirements, then the

court proceeds to subdivision (c) to assess whether the petitioner has made ‘a prima facie

showing’ for relief. (§ 1170.95, subd. (c).)

8 “If the trial court determines that a prima facie showing for relief has been made,

the trial court issues an order to show cause, and then must hold a hearing ‘to determine

whether to vacate the murder conviction and to recall the sentence and resentence the

petitioner on any remaining counts in the same manner as if the petitioner had not . . .

previously been sentenced, provided that the new sentence, if any, is not greater than the

initial sentence.’ ” (Lewis, supra, __ Cal.5th __ [pp. 6-7].)

B. Any Error on the Court’s Part Was Harmless

Defendant argues the denial of his petition without briefing and a hearing violated

his right to due process.{AOB 18-20} He further asserts the prosecutor misrepresented

to the court the basis for the underlying conviction by claiming that this court’s prior

opinion demonstrated he was the actual killer.{AOB 20-21} The court appears to have

erroneously denied defendant’s petition based solely upon the prosecutor’s representation

that the 2003 opinion showed defendant was the actual killer. However, we conclude any

error on the court’s part was harmless.

The court appointed counsel and summarily denied defendant’s petition at a status

conference hearing, pursuant to the prosecutor’s oral motion to dismiss the petition. The

prosecutor stated: “According to the 2003 appellate opinion in imaging, it shows

[defendant] is the actual killer in both murders.” Defense counsel responded that he

looked at the opinion and “[did not] disagree with [the prosecutor] on the facts.” The

court then denied the petition.

9 The record before the trial court appears sparse and apparently did not include the

2003 appellate opinion that the prosecutor cited.4 Thus, there is no indication the court

even reviewed the opinion, or any portion of the record of conviction, before denying the

petition; rather, it simply relied upon the prosecutor’s representation. Furthermore, the

prosecutor’s assertion that the 2003 opinion showed defendant was the actual killer was

in error. The opinion does not clearly show that defendant was the actual killer. Rather,

it reflects that he was “prosecuted on the theory that [he] shared the killer’s deliberation

and premeditation or was guilty on a felony murder theory, . . .” (People v. Williams,

supra, E031301 at p. 6.) The opinion also states that “a felony murder theory was

asserted and eventually submitted to the jury.” (Id. at p. 8.) We further note one of

defendant’s claims in the 2003 appeal was that there was insufficient evidence to support

his conviction for the Anes murder. The opinion discusses possible inferences from the

evidence and concludes there was substantial evidence “to support the conclusion that

defendant was present in the park and participated in the murder of Anes.” (Id. at p. 14.)

As the People point out, even if the court erred in summarily denying the petition

without ordering briefing and relying on the prosecutor’s representation, any error was

harmless since “[t]he record of conviction shows that appellant’s conviction was based on

4 The clerk’s transcript on appeal includes the information, the January 29, 2002 minute order reflecting the jury’s verdict, minutes orders from the penalty phase, a copy of the probation report, the abstract of judgment, defendant’s petition for resentencing, the notice and minute orders regarding the status conference hearing, the notice and minute orders regarding appointed counsel’s conflict of interest, and the minute order from the hearing when the court dismissed the petition. 10 a finding he was an actual killer or a direct aider and abettor and that he acted with

express malice.” In support of this claim, the People asked us to take judicial notice of

the record on appeal in case No. E031301, and they point to the prosecutor’s closing

argument at trial and instructions given to the jury on aiding and abetting principles,

malice aforethought, first degree murder, and second degree murder. The People further

assert that the jury was not instructed on the second degree felony murder doctrine or

second degree murder under the natural and probable consequences doctrine. They

conclude that, in light of the record, defendant “could not establish that he was ‘convicted

of 2nd degree murder under the natural and probable consequences doctrine or under the

2nd degree felony murder doctrine.’ ” We agree.5

Harmless error analysis is appropriate in evaluating errors in post-sentencing

proceedings, including those involving erroneous denials of petitions under section

1170.95. (Lewis, supra, __ Cal.5th __ [pp. 34-37].) The jury here returned a verdict of

second degree express or implied malice murder in count 1. As this court pointed out in

its prior opinion, “[t]he prosecutor argued, and the jury was instructed that defendant

could be found guilty either on a felony-murder theory or on a theory that the killing was

deliberate and premeditated. Since the killing of Anes, as alleged in count 1, was found

to be second degree murder, the jury must have found the unlawful killing of a human

5 In light of our conclusion, we find it unnecessary to address defendant’s claims of prosecutorial misconduct and ineffective assistance of counsel. 11 being with malice aforethought with intent to kill but without sufficient evidence of

deliberation and premeditation.” (People v. Williams, supra, E031301 at p. 21.)

Therefore, because the record of conviction demonstrates conclusively that

defendant was not convicted of felony murder or murder under a natural and probable

consequences theory, but rather second degree murder based upon malice, he is not

eligible for relief under section 1170.95. Accordingly, the error in denying his petition

based on the prosecutor’s representation was harmless.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J.

We concur:

RAMIREZ P. J.

RAPHAEL J.