Opinion
A158056
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. WILLIE LEE BOLDS, JR., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 124254, 806482)
Defendant filed a petition for resentencing under Penal Code section 1170.95. The trial court denied his petition, finding defendant was the actual killer during the course of a special circumstance homicide, and thus, he was not eligible for relief under the statute. After appellate counsel filed a brief in which she raised no issues and asked us to review the record independently under People v. Wende (1979) 25 Cal.3d 436, defendant submitted a supplemental brief asserting counsel appointed to review his petition and appellate counsel provided ineffective representation. He further asserts that because he was coerced by his trial counsel into accepting a plea offer in lieu of having a trial, section 1170.95 applies. We have reviewed the entire record, defendant's supplemental brief, and the exhibits attached thereto, and have found no arguable issues cognizable in this appeal. We therefore affirm.
All statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 12, 1985, defendant went to the victim's residence and entered the backyard. The victim believed defendant was a roof repairman. After talking about the roof, they went to the front of the house where defendant grabbed the victim by the neck and dragged him back into the house. When the victim did not have enough money to satisfy defendant, he choked the victim, put a pillow over his face, sat on top of the pillow, and then stepped on the victim's throat until he died.
On October 18, 1988, defendant pleaded guilty to first degree murder (§ 187) and admitted two special circumstance allegations that he personally and intentionally committed murder while engaged in the crimes of robbery and burglary. The court sentenced defendant to life without possibility of parole.
Defendant submitted a petition for resentencing pursuant to section 1170.95 in January 2019. He also requested appointment of counsel. The court subsequently appointed counsel to represent defendant. In response to defendant's petition, the prosecutor indicated defendant was the sole perpetrator of the murder.
Defendant filed the petition as a petition for writ of habeas corpus. The trial court later recognized the filing as a petition for resentencing in which defendant sought relief under section 1170.95. --------
On February 22, 2019, the trial court held a hearing on defendant's petition for resentencing. Defendant was not present because his defense attorney had not requested a transportation order. In a letter dated February 20, 2019, attached as exhibit D to defendant's supplemental brief, his appointed counsel explained to defendant why his case did not qualify for relief pursuant to Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). During the hearing, defense counsel submitted the matter. After reviewing the information, the transcript of defendant's guilty plea, the transcript of his recorded interview, and the "order affirming [defendant's] conviction," the court denied defendant's petition, finding he was ineligible for resentencing because he was the actual killer during the course of a special circumstance homicide.
II. DISCUSSION
Defendant's Supplemental Brief
As noted above, defendant filed a supplemental brief raising several issues. He claims section 1170.95 applies because he was "coerced [by trial counsel] into accepting a plea offer in lieu of a trial at which [defendant] could be convicted for first degree or second degree murder."
Defendant further claims he was provided with ineffective assistance of counsel. First, he asserts counsel appointed to review his petition for resentencing did not notify him that she was appointed to explore his eligibility for resentencing. If she had further explored his qualifications for resentencing by consulting with him, she would have been able to present evidence that he was "coerced" by his trial counsel "into pleading guilty to a[n] unconscionable plea agreement" and would have had evidence that in 1988 when he pled guilty, "the trial court had failed to advise [him]of his right to appeal his plea agreement which was unconscionable and void." Because there was no communication between him and his attorney, according to defendant, he was not aware a hearing had been scheduled and, as a result, he was denied "the opportunity to be heard at the hearing." Second, defendant complains his appellate counsel should have argued his counsel at the resentencing hearing breached her duty, again asserting she failed to consult with him before the hearing. He also complains appellate counsel failed to argue that he was denied equal protection and due process because after he pled guilty to the murder, the trial court failed to advise him of his right to appeal the plea agreement.
Senate Bill 1437
"The Legislature enacted Senate Bill No. 1437 'to amend the felony-murder rule and the natural and probable consequences doctrine, as it relates to murder,' such that '[a] person's culpability for murder be premised upon that person's own actions and subjective mens rea.' [Citation.]
"The bill significantly limited the felony-murder rule by adding subdivision (e) to section 189. [Citation.] That subdivision provides that '[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person 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.'
"Senate Bill No. 1437 also eliminated liability for murder under the natural and probable consequences doctrine. [Citation.] It did so by amending section 188, which now provides, 'Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' [Citations.] In short, after the enactment of Senate Bill No. 1437, a defendant cannot be convicted of murder absent a showing of malice, with the exception of felony murder as limited by section 189, subdivision (e)." (People v. Lee (2020) 49 Cal.App.5th 254, 261-262, italics added (Lee), review granted Jul. 15, 2020, S262459.) Section 1170.95
"Section 1170.95 permits '[a] person convicted of felony murder or murder under a natural and probable consequences theory' to petition the trial court for resentencing if, among other things '[t]he petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 effected under Senate Bill No. 1437. [Citation.] After confirming that a petition contains the statutorily required information, '[t]he [trial] 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.' [Citations.] If the trial court determines the petitioner has made an adequate prima facie showing, the court must appoint counsel for the petitioner and conduct further proceedings as set forth in the statute." (Lee, supra, 49 Cal.App.5th at p. 262.)
In determining whether a petitioner has made out a prima facie showing for purposes of section 1170.95, the trial court may review the record of conviction including the opinion from the petitioner's original appeal from his or her conviction. Section 1170.95 Does Not Apply to Defendant
Here, before denying defendant's petition for resentencing, the trial court reviewed the information, the transcript of defendant's guilty plea, the transcript of his recorded interview, and the "order affirming [his] conviction," concluding defendant was the actual killer during the course of a special circumstance homicide. We too have reviewed defendant's guilty plea transcript and his interview transcript in addition to the rest of the appellate record, including our 1990 nonpublished opinion, People v. Bolds (Oct. 22, 1990, A044352). We are fully satisfied that defendant was the sole perpetrator of the special circumstance homicide, and therefore, section 1170.95 does not apply.
Though defendant claims section 1170.95 applies to him because he was coerced by trial counsel into accepting a plea agreement in lieu of trial, this claim is unrelated to his petition for resentencing as it pertains here. Whether defendant was coerced into accepting a plea agreement is an issue he should have raised in his original appeal or in a petition for writ of habeas corpus, not in a petition for resentencing. The same is true with respect to defendant's contention that the trial court failed to advise him of his right to appeal from the plea.
Defendant's Lack of Presence at the Hearing
It is undisputed defendant was not present at the resentencing hearing because his counsel did not seek a transportation order. Because defendant was not brought to the hearing, he contends he was denied his opportunity to be heard.
" 'Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article 1 of the California Constitution, and sections 977 and 1043.' [Citation.] That right extends to sentencing and resentencing proceedings, including resentencing under section 1170.18. [Citation.] A criminal defendant's right to attend critical proceedings against him is subject to recognized limitations. '[I]t is well established' for example, that there is no such 'constitutional or statutory right to be present to address purely legal questions or where [the defendant's] "presence would not contribute to the fairness of the proceeding." ' " (People v. Simms (2018) 23 Cal.App.5th 987, 996.) The violation of a right to be present "may be deemed harmless only if we can conclude beyond a reasonable doubt that the deprivation did not affect the outcome of the proceeding." (Id. at p. 998.)
Section 1170.95 does not explicitly entitle a defendant to be present at a hearing on a petition pursuant to it. No case law has addressed the issue of a defendant's entitlement to be present at a section 1170.95 hearing.
However, even assuming arguendo that defendant was entitled to be present at the hearing, we hold any error was harmless beyond a reasonable doubt. Defendant was convicted of first degree special circumstance murder as the actual and sole perpetrator. In his recorded interview, defendant admitted he killed the victim, and later entered a plea of guilty to special circumstance murder. Hence, his presence at the hearing would have made absolutely no difference.
Ineffective Assistance of Counsel
As to defendant's claim that both his resentencing counsel and appellate counsel provided him with ineffective representation, we disagree. In order to demonstrate prejudicial ineffective assistance of counsel, a defendant must show deficient representation and prejudice from counsel's performance. (People v. Vines (2011) 51 Cal.4th 830, 875-876, overruled on other grounds by People v. Hardy (2018) 5 Cal.5th 56, 104.) Our review of the entire record convinces us defendant received competent representation. As discussed above, defendant, as the sole perpetrator, was not statutorily eligible for relief pursuant to section 1170.95, any failure by counsel to have him transported for the resentencing hearing was harmless beyond a reasonable doubt, and his claims that his plea was coerced and the trial court failed to advise him of his right to appeal the plea are not subject to review under section 1170.95. Thus, defense counsel and appellate counsel did not render deficient representation and defendant's ineffective assistance of counsel claim fails.
Conclusion
Having reviewed the entire record in this matter, there is nothing in defendant's supplemental brief that raises an arguable issue on appeal from the order denying his petition for resentencing.
III. DISPOSITION
The order denying the petition for resentencing is affirmed.
/s/_________
Margulies, J. We concur: /s/_________
Humes, P. J. /s/_________
Sanchez, J.