Opinion
H047278
05-21-2020
THE PEOPLE, Plaintiff and Respondent, v. SAMUEL WINDHAM, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. MCR4493)
I. INTRODUCTION
Defendant Samuel Windham appeals from a postjudgment order denying his petition for resentencing pursuant to Penal Code section 1170.95, which allows individuals convicted of felony murder to petition the sentencing court to vacate the conviction under recent changes to the law.
All further statutory references are to the Penal Code.
For reasons that we will explain, we will dismiss the appeal.
II. PROCEDURAL BACKGROUND
On April 17, 1985, a trial court found defendant guilty of first degree murder (§ 187), three counts of assault (§ 245, subd. (a)(1)), burglary (§ 459), and arson (§ 451a). The court also found true the special circumstances allegations that defendant committed the murder during the commission of arson (§ 190.2, subd. (a)(17)(viii)) and that the murder was intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). The court sentenced defendant to 25 years to life for murder consecutive to life without the possibility of parole for the special circumstances. The court imposed concurrent terms for the remaining offenses.
Defendant appealed, and in case No. H000726, this court modified the judgment to strike the 25 years to life term imposed for murder and stay the concurrent term imposed for burglary. This court affirmed the judgment as modified.
On April 22, 2019, defendant filed a petition for resentencing pursuant to section 1170.95. The sentencing court appointed defendant counsel. The prosecution filed an opposition to the petition and attached this court's opinion in case No. H000726 as an exhibit. Defense counsel filed a response, arguing that defendant's murder conviction should be vacated because defendant was not the actual killer and requesting the court to issue an order to show cause for the determination of whether defendant was a major participant in the offense who acted with reckless disregard for human life.
The sentencing court heard the matter on August 21, 2019. The court denied the petition, stating that it had reviewed the parties' papers and determined that defendant had not made a prima facie showing for relief. The court found: "The facts underlying this case are remarkable in their tragedy. It is a situation where the defendant went to the home of the victim where she had . . . escaped him, and along with a friend broke into the home, poured gasoline on her during a struggle, and ignited her. She had burns over . . . 95 percent of her body and died within hours, leaving children in the home who were unconscious, but did survive." The court also quoted this court's opinion in case No. H00726 as follows: " 'We fully agree with the trial [c]ourt's observation that where one holds another down, saturates her with gas, threatens her with death, and asks for a match, the only reasonable conclusion is that the actor intends and desires to cause both intense pain and death by burning her.' "
Defendant timely filed a notice of appeal. This court appointed counsel to represent defendant. On December 3, 2019, appointed counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano), stating the case and facts but raising no issues. On December 10, 2019, we notified defendant of his right to submit written argument on his own behalf within 30 days. On December 23, 2019, defendant filed a letter brief on his own behalf, which he submitted "in anticipation" of filing a formal supplemental brief. On January 6, 2020, defendant filed a supplemental brief.
III. DISCUSSION
A. Statutory Background
Senate Bill No. 1437, effective January 1, 2019, amended sections 188 and 189, which pertain to the definition of malice and the degrees of murder. (Stats. 2018, ch. 1015, §§ 2-3.) As amended, section 188 provides: "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (Stats. 2018, ch. 1015, § 2; § 188, subd. (a)(3).) "New section 189, subdivision (e), in turn, provides with respect to a participant in the perpetration or attempted perpetration of a felony listed in section 189, subdivision (a), in which a death occurs—that is, as to those crimes that provide the basis for the charge of first degree felony murder—that the individual 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.' " (People v. Lopez (2019) 38 Cal.App.5th 1087, 1099, fn. omitted, review granted Nov. 13, 2019, S258175.)
"Additionally, Senate Bill No. 1437 added section 1170.95, which permits a person with an existing conviction for felony murder or murder under the natural and probable consequences doctrine to petition the sentencing court to have the murder conviction vacated and to be resentenced on any remaining counts if he or she could not have been convicted of murder as a result of the other legislative changes implemented by Senate Bill No. 1437. (§ 1170.95, subd. (a).)" (People v. Flores (2020) 44 Cal.App.5th 985, 992 (Flores).) A petition for relief under section 1170.95 must include: "(A) A declaration by the petitioner that he or she is eligible for relief under this section, based on all the requirements of subdivision (a). [¶] (B) The superior court case number and year of the petitioner's conviction. [¶] (C) Whether the petitioner requests the appointment of counsel." (§ 1170.95, subd. (b)(1).) "If the petitioner makes a prima facie showing of entitlement to relief, the court must issue an order to show cause and, absent a waiver and stipulation by the parties, hold a hearing to determine whether to vacate the murder conviction, recall the sentence, and resentence the petitioner. ([§ 1170.95], subds. (c) & (d)(1).)" (Flores, supra, at p. 992.)
B. Analysis
Defendant raises several claims in his supplemental brief. First, defendant contends that the sentencing court erred when it denied the petition by "relying solely on the prosecution['s] allegations" and failing to issue an order to show cause after he demonstrated entitlement to relief. The record belies defendant's initial assertion. The sentencing court explicitly stated that it had reviewed defendant's petition, the prosecution's opposition, and defendant's response to the prosecution's opposition. Moreover, the court did not rely on the prosecution's allegations, but rather premised its decision on the record of conviction, including this court's decision in case No. H000726. (See People v. Woodell (1998) 17 Cal.4th 448, 455 [record of conviction includes appellate court opinion].)
Regarding defendant's claim that an order to show cause should have been issued because he demonstrated entitlement to relief, defendant argues that his petition "satisfied all three requirements of section 1170.95, subdivision (b)(1)" because it included his name, superior court case number, conviction date, and the date the information was filed and that defendant "averred in his declaration that he could not have been convicted of murder under the changes to [the] felony murder rule."
Although defendant properly included in his petition the information required under section 1170.95, subdivision (b), a greater showing is required for the sentencing court to issue an order to show cause. (See § 1170.95, subd. (c); People v. Verdugo (2020) 44 Cal.App.5th 320, 328 (Verdugo).) If the petition contains all the required information, section 1170.95, 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, at p. 328.) A court may rely on the record of conviction to determine a petitioner's entitlement to relief. (See People v. Drayton (2020) 47 Cal.App.5th 965, 975.) Although the court must generally accept the petition's allegations as true, "if the record, including the court's own documents, 'contain[s] facts refuting the allegations made in the petition,' then 'the court is justified in making a credibility determination adverse to the petitioner.' " (Id. at p. 979.)
Here, the record of conviction established that defendant was convicted of felony murder and that the circumstances of the offense included the following. Defendant, angry at the victim, broke into the victim's house with his friend R.J. After defendant beat the victim and pushed her to the floor, he urged R.J. to pour gasoline on her. Defendant had brought the gasoline into the house. The victim could be heard screaming, " '[s]top' " on a 911 call as a man says, " 'Pour it, R.J.! Pour it' " several times. The victim was also heard exclaiming, " 'R.J., stop!' " After a pause in the victims screams, an explosion sounded and the phone went dead. The victim's family members testified that "[t]hey heard defendant say pour it and the sound of liquid spilling. Defendant then asked for a match and told [the victim], 'You can come with me or you can die here.' " The victim died a few hours later of severe burns. Gasoline was present on her clothes. Arson investigators concluded that the fire was intentional and occurred after a large amount of gasoline had been poured in the kitchen, where the fire started.
Based on the facts contained in the record of conviction, we conclude that defendant has not presented an arguable issue on appeal regarding the sentencing court's denial of defendant's petition absent the issuance of an order to show cause.
Second, defendant asserts that he is entitled to Wende review of the sentencing court's decision because this is his " 'first petition under the new . . . law.' " "In Wende, the California Supreme Court 'approved a modified procedure to ensure an indigent criminal defendant's right to effective assistance of counsel' " that "require[s] the appellate court to conduct an independent review of the record 'when counsel is unable to identify any arguable issue on appeal.' [Citation.]" (Serrano, supra, 211 Cal.App.4th at p. 500.) However, as Serrano explains, Wende review is limited to a defendant's first appeal of right from a criminal conviction. (Serrano, supra, at p. 503.) The instant appeal originates from a postconviction proceeding and not a first appeal of right, and therefore defendant is not entitled to Wende review. (See Serrano, supra, at pp. 503-504.)
Third, defendant challenges the trial court's special circumstances findings and its determination that defendant was guilty of three counts of assault. Defendant's contentions regarding the validity of his convictions are not cognizable arguments in this appeal. This court affirmed defendant's convictions in 1987. That decision has long been final. Defendant cannot now raise any issues related to the judgment.
Fourth, defendant contends that he was not the actual killer or a major participant in the underlying felonies, which renders the revised felony murder statute inapplicable to him and entitles him to relief. Defendant asserts that the record shows that his "only actions [were] arguing and fighting on the kitchen floor with [the victim]." We are not persuaded. As we stated above, based on the facts contained in the record of conviction, we conclude that defendant has not presented an arguable issue on appeal regarding the sentencing court's denial of defendant's petition.
Fifth, defendant contends that his due process rights were violated during the trial on his guilt based on a witness' absence that prevented his presentation of a defense. As we stated above, however, defendant's convictions are final. He is therefore barred from bringing claims related to the judgment in this appeal.
Sixth, defendant asserts that the prosecution's opposition to his section 1170.95 petition contained factual misstatements. In light of the sentencing court's decision, which denied the petition based on facts in the record of conviction, and the factual circumstances established by the record of conviction, we conclude that defendant's contentions regarding the prosecution's opposition do not raise an arguable issue on appeal.
Seventh, defendant contends that he was foreclosed from presenting evidence in support of his petition to the sentencing court because defense counsel did not make him aware of the hearing on his petition in a timely manner. Defendant states, "I received correspondence from appointed counsel . . . that [the] petition was 'denied' at a hearing held in July 2019." However, the sentencing court denied defendant's petition on August 21, 2019, not in July 2019, and it did so without issuing an order to show cause. The right to present evidence in support of the resentencing petition arises only when the sentencing court issues an order to show cause. (§ 1170.95, subd. (d)(1), (3).) Thus, defendant was not foreclosed from presenting evidence to the court based on any failure by defense counsel to apprise defendant of the hearing date.
As nothing in defendant's supplemental brief raises an arguable issue on appeal from the order denying the petition for resentencing, we must dismiss the appeal. (Serrano, supra, 211 Cal.App.4th at pp. 503-504.)
We have also reviewed the letter brief filed by defendant on his own behalf on December 23, 2019. Although the letter brief includes some additional factual allegations, no additional claims are raised. The letter brief does not raise an arguable issue on appeal.
IV. DISPOSITION
The appeal is dismissed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
ELIA, J.