People v. Wilson CA4/2

• Court: California Court of Appeal
• Decided: September 10, 2020
• Docket: E072959
• Status: Unpublished

Opinion

Filed 9/10/20 P. v. Wilson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E072959

v. (Super.Ct.No. RIF079858)

LESTER HARLAND WILSON, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Eric A. Keen, Judge.

Affirmed.

Mark D. Johnson, 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, Charles C. Ragland, Alana Cohen

Butler and TeresaTorreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant Lester Harland Wilson was sentenced to death and his

direct appeal to the California Supreme Court is currently pending. After the provisions

of Senate Bill No. 1437 (2017-2018 Reg. Sess.) went into effect, defendant petitioned the

superior court pursuant to Penal Code section 1170.95 to vacate his first degree murder

conviction and resentence him, arguing he was not the actual killer and can no longer be

found guilty of first degree murder under the natural and probable consequences doctrine

or under the felony-murder rule. The People opposed the petition, contending Senate Bill

No. 1437 is unconstitutional. Defendant filed no reply. And at the hearing, counsel

appointed for defendant agreed with the prosecutor’s assertion that the record of

conviction demonstrated defendant was the actual killer and, therefore, he is not eligible

for relief under Penal Code section 1170.95. The superior court denied defendant’s

petition without prejudice.

Defendant now appeals. But he does not contend the superior court erred by

finding he is ineligible for relief under Penal Code section 1170.95. Instead, he argues

the superior court had no jurisdiction to rule on the petition because his judgment of

death is on appeal before the Supreme Court. Defendant invited the error he now

challenges. We find no error and affirm.

I.

PROCEDURAL BACKGROUND

In 2000, a Riverside County jury found defendant guilty of first degree murder,

among other crimes, found true special circumstances, and set the penalty as death. Eight

years later, the Supreme Court affirmed defendant’s convictions but reversed the death

2 sentence. (People v. Wilson (2008) 44 Cal.4th 758.) Two years later, a second jury

found true special circumstances, and the trial court sentenced defendant to death.

Defendant’s direct appeal from the judgment of death is currently pending before the

California Supreme Court. (People v. Wilson, S189373.)1

Effective January 1, 2019, Senate Bill No. 1437 prospectively amended Penal

Code sections 188 and 189 (Stats. 2018, ch. 1015, §§ 2, 3) to limit the application of the

felony-murder rule and the crime of murder under the natural and probable consequences

doctrine to persons who are the actual killer, who act with the intent to kill, or who are a

major participant in a felony and who act with reckless indifference for human life. In

addition, Senate Bill No. 1437 enacted Penal Code section 1170.95 (Stats. 2018,

ch. 1015, § 4), which permits persons previously convicted of first or second degree

murder under the felony-murder rule or the natural and probable consequences doctrine,

but who could not be so convicted under the amendments enacted by Senate Bill

No. 1437, to petition the superior court to vacate their murder convictions and to

resentence them on any remaining counts.

1 The court has reviewed appellant’s request for judicial notice filed November 14, 2019. On December 2, 2019, we reserved ruling on the request for consideration with the appeal. We now grant defendant’s unopposed request for judicial notice of the Supreme Court docket in his pending appeal. (Evid. Code, §§ 452, 459.)

3 On January 24, 2019, defendant filed a petition for resentencing in the superior

court requesting relief under Penal Code section 1170.95. The district attorney opposed

the petition, arguing Senate Bill No. 1437 was unconstitutional.2 The trial court

appointed counsel for defendant, but counsel filed no written reply to the opposition.

At the hearing on the petition, the prosecutor argued that, even if the court were to

conclude Senate Bill No. 1437 was constitutional, the opinion of the Supreme Court

affirming defendant’s first degree murder conviction demonstrated defendant beat,

tortured, and murdered the victim, so he was not eligible for relief under Penal Code

section 1170.95. The trial court asked, “So it seems like he’s the actual killer?” The

prosecutor answered, “Yes,” and defendant’s appointed attorney replied, “I have no

reason to doubt what [the prosecutor] said based upon my reading of the case.”

Therefore, the trial court denied the petition, “without prejudice.” Defendant timely

appealed.

II.

DISCUSSION

On appeal, defendant argues the superior court lost jurisdiction over his case once

the appeal from his sentence of death was perfected, and it therefore lacked jurisdiction to

make any ruling on his petition. He contends the order denying the petition must be

vacated. The People respond that defendant did not object to the ruling, and he agreed

2This court recently rejected the same arguments made by the prosecutor and concluded Senate Bill No. 1437 is constitutional. (People v. Johns (2020) 50 Cal.App.5th 46.)

4 with the prosecutor that his petition failed to make a prima facie showing of relief, so he

“should not be permitted to complain on appeal when he agreed that the petition should

be denied.” In addition, the People argue that, even if defendant did not forfeit his claim

of error, there was no error because the order denying defendant’s petition did not affect

the judgment on appeal. We agree.

Generally, “[t]he filing of a valid notice of appeal vests jurisdiction of the cause in

the appellate court until determination of the appeal and issuance of the remittitur.”

(People v. Perez (1979) 23 Cal.3d 545, 554.) Thus, the filing of a valid notice of appeal

deprives the trial court of jurisdiction to make any order affecting the judgment. (In re

Osslo (1958) 51 Cal.2d 371, 379-380.)

There is little question the trial court lacked jurisdiction to grant defendant’s

petition for resentencing because such an order would have affected the judgment of

death that is on appeal or interfered with the Supreme Court’s exclusive appellate

jurisdiction. However, the automatic stay on appeal did not prevent the trial court from

denying the petition without prejudice (whether on the merits or for lack of jurisdiction)

because the order will have no effect whatsoever on the judgment. (Townsel v. Superior

Court (1999) 20 Cal.4th 1084, 1089-1091 [trial court had jurisdiction to order appointed

appellate counsel to have no contact with jurors because the order addressed collateral or

supplemental issues unrelated to judgment of death on appeal, and the order did not

interfere with Supreme Court’s jurisdiction].)

Therefore, we find no error and affirm the order.

5 III.

DISPOSITION

The order denying defendant’s petition for resentencing pursuant to Penal Code

section 1170.95 is affirmed. The denial of defendant’s petition is without prejudice to

him filing a new one in the future that addresses the same arguments made in the instant

petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER Acting P. J. We concur:

FIELDS J.

MENETREZ J.