P. v. Williams

Filed 7/20/20 P. v. Williams CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
MELVIN WILLIAMS,
Defendant and Appellant.
B300682
(Los Angeles County
Super. Ct. No. TA124662)
APPEAL from orders of the Superior Court of Los Angeles
County. Laura R. Walton, Judge. Affirmed in part; dismissed in
part.
David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews, Charles S. Lee and
Ryan M. Smith, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * * * * * *

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Defendant and appellant Melvin Williams appeals from the
denial of his petition for resentencing pursuant to Penal Code
section 1170.95 and from the denial of a separate postconviction
motion to dismiss. We affirm the court’s order denying the
petition for resentencing and dismiss defendant’s appeal of the
motion to dismiss on the grounds it is not an appealable order.
In 2013, defendant was charged in a consolidated
information with 10 felony counts, including two counts of
attempted murder arising from assaults on defendant’s former
girlfriend and her brother while threatening them with a
shotgun. Defendant was not charged with murder. After a jury
trial in which defendant testified, defendant was found guilty of
all charges and sentenced to an indeterminate term of 48 years to
life, plus an eight-year determinate term.
This court affirmed defendant’s conviction in People v.
Williams (May 8, 2015, B252994) [nonpub. opn.].
On April 29, 2019, defendant filed a petition in propria
persona requesting resentencing pursuant to Penal Code
section 1170.95, a statutory provision that became effective
January 1, 2019. Defendant’s petition asserted he had been
convicted of murder under a theory of felony murder or the
natural and probable consequences doctrine and requested the
appointment of counsel. In August 2019, defendant filed, in
propria persona, a document designated as both “supplemental
evidence” in support of the resentencing petition and a “motion to
dismiss” for failure to disclose exculpatory evidence.
The trial court denied both the petition for resentencing
and the motion to dismiss without appointing counsel for
defendant, explaining that defendant did not qualify for

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resentencing, and the documents presented as exhibits to his
motion to dismiss were not exculpatory evidence.
Defendant contends the trial court erred in summarily
denying his resentencing petition without appointing counsel
because he presented a prima facie case for relief. Defendant
argues the court’s summary denial is at odds with the statutory
language and legislative history and violates his constitutional
rights. He further argues his due process rights were violated by
the court’s summary denial of his motion to dismiss without the
appointment of counsel.
We disagree. “When we interpret statutes, giving effect to
legislative purpose is the touchstone of our mission.” (People v.
Valencia (2017) 3 Cal.5th 347, 409.) “The text of the statute is
integral to our understanding of the statute’s purpose.” (Ibid.)
“We must take ‘the language . . . as it was passed into law, and
[we] must, if possible without doing violence to the language and
spirit of the law, interpret it so as to harmonize and give effect to
all its provisions.’ ” (Id. at pp. 409-410.)
Penal Code section 1170.95 was enacted as part of the
legislative changes effected by Senate Bill 1437 (2017-2018
Reg. Sess.). “Senate Bill 1437 was enacted 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, subd. (f).)” (People v. Martinez
(2019) 31 Cal.App.5th 719, 723.)
Penal Code section 1170.95, subdivision (c) provides, in
plain language, that the court “shall review the petition and

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determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section.” The
statute thus contemplates an initial eligibility determination by
the court. Allegations stated in a resentencing petition may be
erroneous. Where, as here, there is no reasonable factual dispute
the defendant is not eligible for relief, it would be a waste of
judicial resources to automatically require the appointment of
counsel and briefing.
Several courts have similarly interpreted the statutory
language and have concluded that a defendant seeking
resentencing is entitled to appointment of counsel only after
demonstrating a prima facie case. (See, e.g., People v. Tarkington
(2020) 49 Cal.App.5th 892, 899-900; People v. Verdugo (2020)
44 Cal.App.5th 320, 328-332, review granted Mar. 18, 2020,
S260493; People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review
granted Mar. 18, 2020, S260410 & People v. Lewis (2020)
43 Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020,
S260598.) We adopt the persuasive analyses in these decisions.
Defendant did not present a prima facie case for relief and
the court was therefore justified in issuing a summary denial
without the appointment of counsel. Penal Code section 1170.95,
subdivision (a) provides that only persons “convicted of felony
murder or murder under a natural and probable consequences
theory” may file a petition seeking resentencing. Defendant was
not charged with or convicted of murder, despite his erroneous
assertion otherwise in his petition. Rather, it is undisputed he
was convicted of two counts of attempted murder which he
perpetrated by himself (in addition to numerous other felonies).
At least three courts have rejected the argument that
individuals convicted of attempted murder may seek relief under

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Penal Code section 1170.95: People v. Lopez (2019)
38 Cal.App.5th 1087, review granted November 13, 2019,
S258175; People v. Muñoz (2019) 39 Cal.App.5th 738, review
granted November 26, 2019, S258234; and People v. Dennis
(2020) 47 Cal.App.5th 838, 845-846. Pending guidance from our
Supreme Court on this issue, we adopt the reasoning of Lopez,
Muñoz and Dennis and conclude defendant was not entitled to
sentencing relief pursuant to section 1170.95.
As for the court’s order denying defendant’s jointly titled
“supplemental evidence” in support of resentencing and motion to
dismiss, the denial was not an appealable order. “ ‘It is settled
that the right of appeal is statutory and that a judgment or order
is not appealable unless expressly made so by statute.’ ” (People
v. Mazurette (2001) 24 Cal.4th 789, 792.) Penal Code
section 1237 “establishes the general rule that a criminal
defendant can appeal only from final judgments and those orders
deemed by statute to be final judgments.” (People v. Mazurette,
at p. 792.)
Defendant argues the denial order affected his substantial
rights and is therefore appealable pursuant to subdivision (b) of
Penal Code section 1237. Defendant further argues that he
should have been appointed counsel to pursue the motion before
the court issued a summary denial.
We disagree. The “motion” purports to be supplemental
evidence in support of defendant’s request for resentencing and
argues for reversal of the judgment of conviction and dismissal of
all charges based on the exhibits attached to the motion.
Defendant contends his conviction should be reversed because the
prosecution failed to timely turn over evidence regarding the
two victims of his crimes, including emails from his former

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girlfriend expressing her desire not to testify against him and
information her brother had been previously arrested for driving
under the influence.
Defendant’s motion is an improper attempt to collaterally
attack the judgment of conviction. To the extent defendant
believes he has bases upon which to collaterally challenge his
conviction, the remedy of filing a writ of habeas corpus remains
available to him. Defendant is not entitled to the appointment of
counsel to pursue that remedy. (See, e.g., Pennsylvania v. Finley
(1987) 481 U.S. 551, 555 [“right to appointed counsel extends to
the first appeal of right, and no further”]; In re Barnett (2003)
31 Cal.4th 466, 475 [same]; cf. In re Sanders (1999) 21 Cal.4th
697, 717-718 [distinguishing California state practice of allowing
appointment of counsel for capital defendants in habeas
proceedings].) If defendant believes he has been denied any
discovery necessary to pursue that remedy, he may file a motion
seeking postconviction discovery pursuant to Penal Code
section 1054.9, subdivision (a).
DISPOSITION
The order denying the petition for resentencing is affirmed.
The appeal of the order denying the postconviction motion to
dismiss is dismissed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. STRATTON, J.

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