People v. Williams

57 Cal.App.5th 652

271 Cal.Rptr.3d 582

The PEOPLE, Plaintiff and Respondent,

v.Albert Alvin WILLIAMS, Defendant and Appellant.

A157917

Court of Appeal, First District, Division 3, California.

Filed November 20, 2020

Office of Attorney General, Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Rene Chacon, Supervising Deputy Attorney General, Bruce Ortega, Deputy Attorney General, for Plaintiff and Respondent.

First District Appellate Project, Kyle Gee, for Defendant and Appellant.

Petrou, J. Defendant Albert Alvin Williams (Williams) appeals the denial of his Penal Code ¹ section 1170.95² petition to vacate his conviction for first degree murder and for resentencing. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Background

The below facts are gleaned from documents in the record (including the information, minute orders for twelve days of trial, and sentencing transcript) along with our prior opinion affirming Williams’ murder conviction (People v. Williams (Mar. 2, 1971; 1 Crim. No. 8770) [nonpub. opn.] (Williams I )).

In the early morning hours of February 27, 1969, then 20-year-old Williams and two juvenile accomplices committed an attempted robbery of a delivery milkman in the course of which the milkman was fatally shot. The Alameda County District Attorney filed an information charging Williams with murder (§ 187) without further specification.

Williams was convicted of first-degree murder by a jury that heard testimony from the People's witnesses (including the two juvenile accomplices³ ) and defense witnesses (including Williams); 65 exhibits were introduced into evidence. The jury was instructed on felony murder and murder in the first degree and second degree. During deliberations, the jury, at its request, was reinstructed on first and second-degree murder. After conviction, Williams waived a jury trial on the possible imposition of the death penalty.

At the November 1969 sentencing, the trial court rejected the death penalty and sentenced Williams to life imprisonment with the possibility of parole. The trial court explained that it reviewed the probation report and determined the death penalty was not appropriate as the killing was not deliberate and premeditated, albeit senseless and cruel. Further, although there was "no question" in the trial court's mind that Williams was properly convicted "because the evidence was overwhelming that he was present at the scene and participated in the attempted robbery," the trial court had "some doubt" that Williams "did the actual killing."

In January 1970, a section 1203.01⁴ "Statement by Judge and District Attorney" (hereinafter "1203.01 statement") signed by the trial judge and the deputy district attorney who prosecuted the case was filed by the court clerk. The trial judge incorporated "by reference" the information and the sentencing transcript as setting forth his view of the case and Williams. The trial prosecutor stated as follows:

"This defendant is responsible for a brutal, senseless killing in an aborted robbery where the defendant and two accomplices gained nothing material. The victim was shot and killed while running away from the defendant and his accomplices. At the time of the murder trial, the defendant had a 459 P.C. pending which was dismissed after his conviction. The defendant should serve maximum time prior to being considered for parole."

The section 1203.01 statement included the following description of the crime.

"On Thursday, February 27, 1969, at approximately 10:50 a.m., the victim ... was delivering milk at ... [a named market.] The victim was a route delivery salesman [for a named milk company]. The victim had just completed his delivery at the above location and had just finished pushing his dolly to the rear of the [parked] delivery truck.... It was at this point when he was confronted by the defendant and two juvenile codefendants. [The victim] made an attempt to flee by running [down a street]. There were three shots fired from a .25 [caliber] automatic pistol. The victim was struck once behind the left ear and was, as a result of the impact, knocked to the street. The victim was found in approximately the middle of [the] [s]treet ... laying face down. The victim was transported to Highland Hospital and was pronounced dead at approximately 4:00 p.m. the same day he was shot. The three defendants were observed to run westbound ... and southbound .... There was apparently no loss. [¶] The defendant's participation in this offense as a principal was clearly established by the testimony of [two named witnesses] and [two named juvenile accomplices]."

We affirmed the conviction in an unpublished opinion, rejecting Williams’ constitutional challenge to the admission of testimony given under a grant of immunity. (Williams I , supra , at pp. 1-2; also rejecting challenge to the admission of evidence of witness identifications.) We found that Williams waived his argument regarding admission of the testimony given under a grant of immunity by failing to raise it to the trial court but also noted that: "the claim on the merits cannot be supported. The code section, which permits grant of immunity to a witness has repeatedly been held constitutionally valid (e.g. People v. Boeh[m] [ (1969) ] 270 Cal.App.2d 13, 21 [75 Cal.Rptr. 590] ; People v. Northrup [ (1962) ] 203 Cal.App.2d 470, 474 [21 Cal.Rptr. 448] ; People v. Fowler [ (1953) ] 119 Cal.App.2d 657, 664 [260 P.2d 89] ) and not subject to either of the attacks here made. We note that appellant held the murder weapon when it was fired, thus establishing a reasonable basis for prosecuting him alone." (Williams I , supra , at p. 1.)

After serving seven years in prison, Williams was released on parole. Approximately two years later, in late 1979, he committed another murder. In 1980, Williams was convicted of second-degree murder and sentenced to a life term with the possibility of parole.

II. Section 1170.95 Proceeding

In March 2019, while serving his life sentence on the 1980 murder conviction, Williams, appearing in propria persona, sought to vacate his 1969 first-degree murder conviction by filing a verified petition under section 1170.95. He averred he was eligible and entitled to relief based on the following "facts" of the case. "In and around February 1969, two guys and myself, were at my home planning a robbery. We did not know what we were going to rob or even where. Across the street from my home was a corner market .... When I and my two friends left my home, there was a milk truck double-parked in front of the corner market, and one of my friends said, ‘hey, there's a milkman,’ and I immediately said ‘hell naw man, we can't do nothing there.’ But as I was explaining why we won't do anything there, the milk truck driver came out of his truck and the one friend (to my surprise) pulled a gun out to rob him. The milkman tried to run, but he was shot and killed. Weeks later, my two friends were arrested with the weapon that murdered the milkman. April of 1969, a month or so after my two friends, I was arrested and charged with First Degree Murder, there after convicted. On November 4th, 1969, I was sentenced to ‘Life’ in prison."

Williams asked the superior court to consider two documents attached to his petition: (1) portion of the sentencing transcript in which the trial court had stated the crime " ‘was a senseless and cruel killing but ... not deliberate and premeditated,’ " and " ‘although there is no question in the Court's mind that the defendant was properly convicted, because the evidence was overwhelming that he was present at the scene and participated in the attempted robbery, the Court does have some doubt that he did the actual killing’ "; and (2) portion of a June 4, 2014 decision by former Governor Edmund G. Brown Jr. reversing a favorable parole recommendation of the Board of Parole Hearings (hereinafter "2014 parole denial"), in which the former Governor described the circumstances of the 1969 murder as follows: Williams "and a group of friends were committing a robbery, when one of Mr. Williams’ crime partners shot and killed a milkman."

The People filed an opposition and attached the sentencing transcript, the section 1203.01 statement (opining it was "a reasonably reliable account of the evidence presented at trial"), and a copy of our prior opinion in Williams I . Williams conceded Williams I was part of the record of conviction but sought, on hearsay grounds, exclusion of any facts mentioned in the opinion.

The superior court held a contested hearing in July 2019. Without objection, the superior court took judicial notice of the documents relating to the section 1170.95 petition and the 67 microfilmed pages of the court file relating to the murder conviction, and expressly admitted as exhibits: (1) the sentencing transcript (Exhibit 1); (2) the section 1203.01 statement (Exhibit 2); (3) Williams I (Exhibit 3); (4) defense counsel's written evidentiary objection to a portion of Williams I (Exhibit A); (5) the 2014 parole denial (Exhibit B); and (6) the section 1170.95 petition filed by Williams (Exhibit C).

Following argument by counsel and after consideration of the factors in People v. Clark (2016) 63 Cal.4th 522, 203 Cal.Rptr.3d 407, 372 P.3d 811 ( Clark ) and People v. Banks (2015) 61 Cal.4th 788, 189 Cal.Rptr.3d 208, 351 P.3d 330 ( Banks) , the superior court found Williams was not eligible for resentencing because he could have been found guilty of first-degree murder under the newly amended section 189 as a major participant who acted with reckless indifference to human life in the commission of the felony murder. Williams "was the oldest of the three defendants. He was an adult. The others were juveniles. He was 20 years old at the time. They had to be under the age of 18. He indicated in his petition that he planned the robbery with those two, that that occurred at...