P. v. Walker

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Filed 4/28/20 P. v. Walker CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
ROY LEE WALKER,
Defendant and Appellant.
A157758
(Alameda County
Super. Ct. No. 137327)
Defendant Roy Lee Walker appeals the denial of his petition for
resentencing pursuant to Penal Code1 section 1170.95, which provides for
resentencing of individuals convicted of felony murder or murder under a
natural and probable consequences theory if they can no longer be convicted
of murder under January 1, 2019 amendments to the Penal Code. Walker
contends the trial court erred in failing to appoint him counsel and ordering
briefing before reviewing his petition. Because the record discloses that
Walker was ineligible for relief as a matter of law, even if we assume that the
trial court erred in not appointing him counsel, any such error was harmless.
We therefore affirm the order of denial.
1 All further statutory references are to the Penal Code unless
otherwise specified.

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I. FACTUAL AND PROCEDURAL BACKGROUND2
In 1999, Walker was charged with the murder of Barry Bell (§ 187),
with a special circumstance allegation that Walker committed the murder by
means of lying in wait (§ 190.2, subd. (a)(15)). Walker was also charged with
possession for sale of a cocaine-based controlled substance (Health & Saf.
Code, § 11351.5) and personal use and discharge of a firearm (§§ 1203.06,
12022.53, subd. (c)). (Walker, supra, A106926.) To find true the special
circumstance of lying in wait, the jury was instructed that the People must
prove beyond a reasonable doubt that defendant was either the actual killer
or, with the intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted another in commission of murder in the first
degree. (See Walker, A106926.)
The jury convicted Walker of first degree murder and possession of
cocaine for sale, and found true the lying-in-wait special circumstance as well
as the firearm enhancement. (Walker, supra, A106926.) Walker was
sentenced to life without the possibility of parole for the murder conviction, a
consecutive 20-year term for the firearm use enhancement, and a concurrent
four-year term for the possession for sale conviction. (Ibid.) In 2005, this
Court affirmed the judgment. (Ibid.)
In 2018, the Legislature enacted Senate Bill. No. 1437 (2017–2018 Reg.
Sess.) (Senate Bill 1437), which took effect on January 1, 2019. (Stats. 2018,
ch. 1015.) Among other changes, Senate Bill 1437 amended section 189 to
limit liability for murder under a felony murder or natural and probable
consequences theory to a person who is the actual killer, who “with the intent
to kill” aids and abets the actual killer, or who is a major participant in the
2 The evidence presented at trial is set forth in our opinion in People v.
Walker (Sept. 29, 2005, A106926 [nonpub. opn.]) (Walker).

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underlying felony and acted with reckless indifference to human life. (Stats.
2018, ch. 1015, §§ 1(f), § 3(e); see § 189, subd. (e).) Senate Bill 1437 permits
an individual convicted of murder under these theories to petition the
sentencing court to vacate the conviction and to be resentenced on any
remaining counts under certain enumerated procedures. (Stats. 2018,
ch. 1015, § 4; see § 1170.95.)
In April 2019, Walker petitioned for sentencing relief under section
1170.95. In a form petition, Walker averred that he was convicted of first or
second degree murder pursuant to the felony murder rule or the natural and
probable consequences doctrine and that he could not now be convicted of
first or second degree murder because of the amendments to Penal Code
sections 188 and 189. He further declared: “I was not the actual killer”; “I
did not, with the intent to kill, aid, abet, counsel, command, induce, solicit,
request, or assist the actual killer in the commission of murder in the first
degree”; and “I was not a major participant in the felony or I did not act with
reckless indifference to human life during the course of the crime or felony.”
Walker also requested the appointment of counsel.
After taking judicial notice of Walker’s record of conviction, including
the appellate opinion in Walker, supra, A106926, the trial court denied the
petition without appointing counsel or ordering briefing. The court concluded
that Walker is ineligible for resentencing as a matter of law because the jury
had found that Walker “was either the actual killer or, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or
assisted the actual killer in the commission of murders in the first degree.”
The court thus determined that Walker “was convicted on a valid theory of
murder which survives the changes to sections 188 and 189 made by SB
1437.” This appeal followed.

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II. DISCUSSION
A. Senate Bill 1437 and Section 1170.95
To be convicted of murder, a jury must ordinarily find that the
defendant acted with “ ‘malice aforethought.’ ” (People v. Chun (2009)
45 Cal.4th 1172, 1181, quoting § 187, subd. (a).) The felony murder rule
provided an exception that makes “a killing while committing certain felonies
murder without the necessity of further examining the defendant’s mental
state.” (Chun, at p. 1182.) Under a separate rule known as the natural and
probable consequences doctrine, a “ ‘ “person who knowingly aids and abets
criminal conduct is guilty of not only the intended crime . . . but also of any
other crime the perpetrator actually commits . . . that is a natural and
probable consequence of the intended crime.” ’ ” (People v. Chiu (2014)
59 Cal.4th 155, 161.)
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.’ ”
(People v. Lewis (2020) 43 Cal.App.5th 1128, 1135 (Lewis), review granted
Mar. 18, 2020, S260598,3 quoting Stats. 2018, ch. 1015, § 1(f).) To effectuate
this purpose, Senate Bill 1437 amended the definition of malice in section 188
to provide that “[m]alice shall not be imputed to a person based solely on his
3 On March 18, 2020, the Supreme Court granted review on the
following questions that directly bear on Walker’s appeal: “(1) May superior
courts consider the record of conviction in determining whether a defendant
has made a prima facie showing of eligibility for relief under Penal Code
section 1170.95? (2) When does the right to appointed counsel arise under
Penal Code section 1170.95, subdivision (c).” (Lewis, supra, S260598.)

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or her participation in a crime.” (§ 188, subd. (a)(3); People v. Verdugo (2020)
44 Cal.App.5th 320, 326 (Verdugo), review granted Mar. 18, 2020, S260493.)
As a result of these amendments, the natural and probable consequences
doctrine can no longer be used to support a murder conviction. (See People v.
Lopez (2019) 38 Cal.App.5th 1087, 1103 & fn. 9, review granted Nov. 13,
2019, S258175); Stats. 2018, ch. 1015, §§ 1(f), 1(g).)
As noted above, Senate Bill 1437 amended section 189 to limit liability
for murder under a felony murder theory to a person who (1) was the actual
killer; (2) though not the actual killer, acted “with intent to kill” and “aided,
abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer” in the commission of first degree murder; or (3) was “a major
participant in the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e);
Verdugo, supra, 44 Cal.App.5th at p. 326.)
Senate Bill 1437 did not “alter the law regarding the criminal liability
of direct aiders and abettors of murder because such persons necessarily
‘know and share the murderous intent of the actual perpetrator.’ ” (Lewis,
supra, 43 Cal.App.5th at p. 1135.) Accordingly, “[o]ne who directly aids and
abets another who commits murder is thus liable for murder under the new
law just as he or she was liable under the old law.” (Ibid.)
Section 1170.95 provides that “[a] person convicted of felony murder or
murder under a natural and probable consequences theory may file a petition
with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts.”
(§ 1170.95, subd. (a).) A petition may be filed when the following three
conditions are met: “(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory

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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. [¶]
(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)–(a)(3).)
The petitioner must declare that he or she is eligible for relief based on
the requirements above, provide the case number and year of conviction, and
specify whether the petitioner requests the appointment of counsel.
(§ 1170.95, subd. (b)(1).) “If any of the information required by this
subdivision is missing from the petition and cannot be readily ascertained by
the court, the court may deny the petition without prejudice to the filing of
another petition and advise the petitioner that the matter cannot be
considered without the missing information.” (§ 1170.95, subd. (b)(2).)
Section 1179,95, subdivision (c) sets forth the trial court’s obligations
upon the submission of a complete petition: “The court shall review the
petition and determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent the petitioner.
The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the
prosecutor response is served. . . . If the petitioner makes a prima facie
showing that he or she is entitled to relief, the court shall issue an order to
show cause.” Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction and to recall

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the sentence and resentence the petitioner on any remaining counts.
(§ 1170.95, subd. (d)(1).)
B. The Court Correctly Concluded that Walker Is Ineligible for
Resentencing Under Section 1170.95
Walker contends that the trial court erred in summarily denying his
petition for resentencing without appointing counsel on his behalf or ordering
briefing from the parties. In essence, he claims that a facially valid petition
under section 1170.95 requires the trial court to appoint counsel if requested
and to order briefing before it can determine whether the petitioner has
established a prima facie basis for relief. He maintains that the trial court
may not look beyond the face of the petition at this stage of inquiry.
Recent appellate court decisions have rejected similar contentions that
section 1170.95, subdivision (c) mandates the appointment of counsel and
briefing whenever, as here, a facially sufficient petition has been filed. (See
Lewis, supra, 43 Cal.App.5th at pp. 1139–1140; Verdugo, supra,
44 Cal.App.5th at pp. 323, 328, 332–333; People v. Cornelius (2020)
44 Cal.App.5th 54, 58 (Cornelius), review granted Mar. 18, 2020, S260410.)
For example, the Verdugo court determined that subdivisions (b) and (c) of
section 1170.95 together prescribe a “three-step evaluation” process before
determining if an order to show cause should issue. (See Verdugo, supra,
55 Cal.App.5th at pp. 332–333.) It explained that upon the filing of a section
1170.95 petition, the trial court first screens the petition to determine if it
contains the basic averments required by subdivision (b)(1)(A) and (B). (See
Verdugo, at pp. 323, 327–328.) The court may deny the petition at this stage
without prejudice to refiling if the petition lacks required elements or is
facially inadequate. (§ 1170.95, subd. (b)(2); Verdugo, at p. 328.) “This initial

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review thus determines the facial sufficiency of the petition.” (Verdugo, at
p. 328.)
The Verdugo court further explained, “Subdivision (c) then prescribes
two additional court reviews before an order to show cause may issue, one
made before any briefing to determine whether the petitioner has made a
prima facie showing he or she falls within section 1170.95—that is, that the
petitioner may be eligible for relief—and a second after briefing by both sides
to determine whether the petitioner has made a prima facie showing he or
she is entitled to relief.” (Verdugo, supra, 55 Cal.App.5th at p. 328.) The
initial prima facie review is “to decide whether the petitioner is ineligible for
relief as a matter of law, making all factual inferences in favor of the
petitioner.” (Verdugo, at p. 329.) At this stage of review, the trial court may
rely upon the petitioner’s record of conviction, including the charging
documents, jury instructions, verdict forms, and appellate decision, to
conclusively establish ineligibility for relief. (See § 1170.95, subd. (a)(1)-(2);
Verdugo, at p. 333; Lewis, supra, 43 Cal.App.5th at pp. 1137–1138.)
“[I]f the petitioner’s ineligibility for resentencing under section 1170.95
is not established as a matter of law by the record of conviction, the court
must direct the prosecutor to file a response to the petition, permit the
petitioner (through appointed counsel if requested) to file a reply and then
determine, with the benefit of the parties’ briefing and analysis, whether the
petitioner has made a prima facie showing he or she is entitled to relief.”
(Verdugo, supra, 44 Cal.App.5th at p. 330; see § 1170.95, subd. (c).) After the
second review, if the trial court concludes that the petitioner has established
a prima facie basis of eligibility for resentencing, it must issue an order to
show cause. (Verdugo, at p. 328; Lewis, supra, 43 Cal.App.5th at p. 1140.)

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As noted above, Walker disagrees with the Verdugo court’s formulation
of a two-step prima facie review process and contends he was entitled to
appointed counsel when he filed a facially sufficient petition. The issue of
when the right to appointed counsel arises under section 1170.95, subdivision
(c) is currently before the Supreme Court in Lewis, supra, S260598, Verdugo,
supra, S260493, and Cornelius, supra, S260410.
We need not resolve this question, however, because even if section
1170.95, subdivision (c) required the trial court to appoint counsel upon the
presentation of a facially valid petition, any such error in failing to do so was
harmless. That is because the record conclusively establishes that he is
ineligible for relief as a matter of law.
It is undisputed that a jury convicted Walker of first degree murder
(§ 187, subd. (a)) while lying in wait (§ 190.2, subd. (a)(15)), and this court
affirmed the judgment of conviction (Walker, supra, A106926). Because the
jury found true the lying-in-wait special circumstance, there is no possibility
that Walker was convicted of felony murder or murder under a natural and
probable consequences theory. (See People v. Ruiz (1988) 44 Cal.3d 589, 614
[“Proof of lying-in-wait . . . acts as the functional equivalent of proof of
premeditation, deliberation and intent to kill”]; see also People v. Epps (1986)
182 Cal.App.3d 1102, 1122 [“Ordinary first degree murder, which requires
premeditation and deliberation with malice aforethought, and felony murder
are not the same crimes because malice is not an element of felony murder”].)
Indeed, Walker concedes “that the [appellate] opinion supports the trial
court’s conclusion the jury found he was either the actual killer or aided and
abetted the killing with the intent to kill, either of which would make him
ineligible for 1170.95 relief.” (See Walker, supra, A106926.)

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Thus, even with the benefit of counsel, Walker would not be able to
refute the trial court’s conclusion that he “was convicted of a valid theory of
murder which survives the changes to sections 188 and 189.” Accordingly,
Walker suffered no prejudice by the trial court’s failure to appoint counsel
and it would be futile to remand the case for the appointment of an attorney
on this record.
III. DISPOSITION
The order denying the petition is affirmed.

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_________________________
Sanchez, J.
WE CONCUR:
_________________________
Humes, P.J.
_________________________
Margulies, J.
8A157758 People v. Walker

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