Opinion
A158639
05-14-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH WELLS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. VCR-164967)
In 2005, a jury convicted defendant Joseph Wells of first degree murder and found true the allegation under Penal Code section 12022.53, subdivision (d) (section 12022.53(d)), that he personally and intentionally discharged a firearm causing the victim's death. He was sentenced to 50 years to life in prison. Subsequently, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill No. 1437) (Stats. 2018, ch. 1015), which altered liability for murder under the theories of felony murder and natural and probable consequences. The bill also established a procedure, under newly enacted section 1170.95, for eligible defendants to petition for recall and resentencing.
All further statutory references are to the Penal Code.
In this appeal, Wells challenges the trial court's summary denial of his section 1170.95 petition. His counsel asked this court for an independent review of the record to determine whether there are any arguable issues. (People v. Wende (1979) 25 Cal.3d 436.) Subsequently, Wells submitted a supplemental brief in which he argues that the trial court erred by denying his petition on the basis that the jury's finding under section 12022.53(d) establishes, as a matter of law, that he was the "actual killer" and thus not entitled to relief under Senate Bill No. 1437. We are not persuaded by Wells's claim, and there are no other arguable issues. Accordingly, we affirm.
I.
BACKGROUND
Wells was charged with one count of first degree murder and various firearm enhancements based on the 2001 killing of Michael Yokoi. The evidence presented at trial showed that Wells and another man, Michael Sinay, who were dating the same woman, "engaged in an escalating series of confrontations involving threats, violence, and property damage, most of which were initiated by [Wells]." In December 2001, two days after Sinay and Yokoi, a friend of Sinay's, smashed the windows of Wells's vehicle, Yokoi was shot to death while standing outside Sinay's Vallejo home. Based on the testimony of various witnesses, a man dressed in dark clothing and a beanie shot Yokoi. The man then got into a dark Mustang with plates from " 'Nino's' dealership" and drove away. Four hours before the murder, Wells was recorded on a store security camera wearing "a black beanie, black shirt, and black pants." He had bought "a blue Mustang convertible from Nino's Motors" a few weeks earlier, and cell phone data showed that his phone was in Vallejo around the time of the murder.
The facts involving Wells's conviction are drawn from our opinion in Wells's direct appeal. (People v. Wells (Feb. 14, 2007, A112173) [nonpub. opn.].)
The jury convicted Wells of first degree murder and found the firearm enhancements true, including the enhancement under section 12022.53(d) for "personally and intentionally discharg[ing] a firearm and proximately caus[ing] . . . death." The trial court sentenced him to a term of 25 years to life for the murder and a consecutive term of 25 years to life for the personal and intentional discharge of a firearm. Wells appealed, and we affirmed the judgment in 2007.
"Effective January 1, 2019, Senate Bill [No.] 1437 amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, '[m]alice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).)" (People v. Turner (2020) 45 Cal.App.5th 428, 433.) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have an intent to kill is not liable for felony murder unless he or she "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).)
Senate Bill No. 1437 also enacted section 1170.95, which authorizes "[a] person convicted of felony murder or murder under a natural and probable consequences theory [to] 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" so long as three conditions are met: "(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. [¶] (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, subd. (a).) Any petition that fails to make "a prima facie showing that the petitioner falls within the provisions of [section 1170.95]" may be denied without a hearing. (§ 1170.95, subds. (c) & (d).)
In July 2019, Wells filed a petition under section 1170.95, averring that he had been convicted of first degree murder on a theory of felony murder and was eligible for relief because he was not the actual killer and did not aid and abet the actual killer with an intent to kill. He also asked for the appointment of counsel.
Wells also checked a box on the petition indicating that a jury or court previously found that he "was not a major participant and/or did not act with reckless indifference to human life" under section 190.2, subdivision (d), but the record does not contain evidence that any such finding was ever made. --------
Later that month, without appointing counsel, the trial court denied Wells's petition for failure to make a prima facie showing of entitlement to relief under section 1170.95. Its order stated, "A review of the court file shows a jury found Petitioner guilty of [m]urder in the [first] degree and found true an enhancement pursuant to . . . [s]ection 12022.53(d). . . . The true finding of the enhancement under . . . [s]ection 12022.53(d) means that, as a matter of law, Petitioner, in carrying out the murder, personally used and discharged a firearm causing death or great bodily injury. Therefore, Petitioner was the 'actual killer.' "
II.
DISCUSSION
In his supplemental brief, Wells argues that he was convicted based on circumstantial evidence and there was in fact a second shooter who was the actual killer. In support of this claim, Wells attaches documents from a previous habeas proceeding, in which the trial court issued an order to show cause but ultimately denied the petition. Those documents reflect the prosecutor's concession that "we always knew there was a second shooter. We just didn't know who it was." Specifically, two types of bullet casings were found at the scene, and witnesses saw another man in the Mustang's passenger seat. As the prosecutor also explained, however, this evidence was consistent with the conclusion that Wells, not any passenger of his, was the person who shot the fatal bullets.
Even if there is a theoretical possibility that someone else killed Yokoi, we are not free to disregard the jury's finding that Wells personally and intentionally discharged a firearm causing death, which constitutes an implicit finding that he was the actual killer. (See People v. Cornelius (2020) 44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410.) And since the jury so found, Wells cannot demonstrate that he "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, subd. (a)(3).) This is because under section 189, subdivision (e)(1), the actual killer may still be found guilty of felony murder.
Assuming, without deciding, that a defendant is entitled to Wende review in an appeal from the denial of a petition under section 1170.95, we have reviewed the record and found no other arguable issues. We note that currently before the Supreme Court are the issues (1) whether a trial court can rely on the record of conviction to conclude that a defendant has failed to make a prima facie showing of eligibility for relief under section 1170.95 and (2) when the right to appointed counsel arises under that statute. (People v. Lewis (2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020, S260958.) Even if the trial court here procedurally erred by summarily denying the petition, however, Wells is ineligible for relief as a matter of law. Thus, he cannot demonstrate prejudice, and remand for the appointment of counsel and a hearing on the petition would be futile. (See People v. Cornelius, supra, 44 Cal.App.5th at p. 58.)
III.
DISPOSITION
The order denying Wells's petition under section 1170.95 is affirmed.
/s/_________
Humes, P.J. WE CONCUR: /s/_________
Margulies, J. /s/_________
Banke, J.