People v. Williams

THE PEOPLE, Plaintiff and Respondent, v. DONTAE RAY WILLIAMS, Defendant and Appellant.

B306138

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

May 18, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BA281894)

APPEAL from an order of the Superior Court of Los Angeles County, Lisa B. Lench, Judge. Affirmed.

Spolin Law, Aaron Spolin and Jeremy Cutcher for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Charles S. Lee and Rama R. Maline, Deputy Attorneys General, for Plaintiff and Respondent.

This appeal is from the trial court's denial of defendant and appellant Dontae Ray Williams' motion for resentencing under Penal Code section 1170.95.¹

In May 2006, by amended information appellant, along with codefendants Wilbur Lawson and Sean Thomas, was charged with murder (§ 187, subd. (a), count 1) and robbery (§ 211, count 2). The information also alleged, inter alia, that the murder had been committed during the commission of robbery (§ 190.2, subd. (a)(17)), that a principal personally used a firearm (former § 12022, subd. (a)(1)), and that appellant was a minor of at least 16 years of age at the time of the crimes (Welf. & Inst. Code, § 707, subd. (d)).

Appellant's trial was severed from that of Lawson and Thomas. After the close of evidence, the trial court determined that appellant was a minor of at least 16 years of age at the time of the crimes. On January 17, 2007, a jury convicted appellant of first degree felony murder and second degree robbery, and found true the allegation that that a principal had used a firearm.² Appellant was sentenced to 25 years to life plus one year on count 1, plus an additional four-year term for robbery, which was stayed under section 654.

In his direct appeal in 2008, appellant requested that we modify the abstract of judgment to impose joint and several liability against all three defendants for the restitution fine the court had previously imposed against each defendant individually. (People v. Williams et al. (May 20, 2008, B198076) [nonpub. opn.] (Williams I).) We agreed, and directed the superior court to prepare amended abstracts of judgment. (Id. at p. *9.) In all other respects, we affirmed appellant's judgment of conviction. (Ibid.)

In 2019, appellant filed a petition for resentencing under section 1170.95, which provides that persons who were convicted under theories of felony murder or murder under the natural and probable consequences doctrine, and who could no longer be convicted of murder following the enactment of Senate Bill No. 1437 (S.B. 1437), may petition the sentencing court to vacate the conviction and resentence on any remaining counts. (Stats. 2018, ch. 1015, § 1, subd. (f).) Following the appointment of counsel and briefing by the parties, the court issued an order to show cause and ordered a hearing under subdivision (d) of section 1170.95. At the hearing, the People requested that the court reconsider its decision to issue the order to show cause, and argued that appellant's record of conviction established beyond a reasonable doubt that he was a major participant who acted with reckless indifference to human life. Appellant argued that he was merely a bystander to the murder.

After taking the matter under submission, the court denied the petition on two grounds. The court first concluded that it had improvidently issued the order to show cause, because appellant'srecord of conviction established that he was a major participant who acted with reckless indifference as a matter of law. "Assuming the court is precluded from reconsideration of its issuance of an order to show cause," the court held that the "facts demonstrate beyond a reasonable doubt that [appellant] was a major participant who acted with reckless indifference to human life."

On appeal, appellant contends that the trial court did not apply the correct standard of review at the order to show cause hearing under subdivision (d)(3) of section 1170.95, which he asserts requires the prosecution to prove his liability for murder beyond a reasonable doubt consistent with People v. Rodriguez (2020) 58 Cal.App.5th 227, review granted March 10, 2021, S266652 (Rodriguez), and People v. Lopez (2020) 56 Cal.App.5th 936, review granted February 10, 2021, S265974 (Lopez). Appellant also contends that the trial court's findings of major participation and reckless indifference are not supported by substantial evidence. The People argue that the trial court in this case applied the beyond-a-reasonable-doubt standard, although it need only have applied the substantial evidence standard of review under People v. Duke (2020) 55 Cal.App.5th 113, review granted January 13, 2021, S265309 (Duke), and that the evidence supports the trial court's ruling.

We conclude that the trial court applied the beyond-a-reasonable-doubt standard in this case when determining whether appellant was ineligible for resentencing at the section 1170.95, subdivision (d) hearing. Thus, we need not enter the debate as to whether that standard or substantial evidence is the legally required standard. Also, in our review of the trial court's ruling, we conclude that substantialevidence supports the finding that appellant was a major participant who acted with reckless indifference to human life. Thus, we affirm the order.

FACTUAL BACKGROUND³

On the evening of February 24, 2005, Osman Alvarado saw three young men standing in front of a Dollar Warehouse on 60th Street and Vermont Avenue. One of the men was wearing a mask, and the other two men were wearing hoods. Alvarado walked to the Dollar Warehouse and entered the store to look for a drink. When he heard someone demand money near the cash register, he looked up at a circular mirror. Through the mirror, Alvarado saw two men standing in front of the cashier, and one man standing in the doorway of the entrance looking out at the parking lot. One of the men standing in front of the store counter was pointing a gun directly at the cashier. Though the cashier complied, a struggle ensued in which several gunshots were fired. The three men fled the store. According to a medical examiner, the cashier died from a single gunshot wound to his back.

Alvarado's sister, Guadalupe Rivera, witnessed the robbery and shooting from the parking lot. Rivera noticed three men outside theDollar Warehouse because one was wearing a Halloween mask and seemed to be "staring at [her] brother" as he was entering the store. The masked man followed Alvarado into the store, and then took out a gun, pointed it at another man inside the store, and yelled "give me your money." The masked man's two companions watched through the store's glass window. Then, they entered the store and bumped into the masked man as he attempted to exit the store. At that point Rivera heard two or three gunshots, after which she saw the masked man and his companions run away.

Police officers responding to the scene recovered a single glove from the sidewalk outside the store and a pair of gloves in nearby bushes. After receiving information that the robbers may have visited a doughnut shop approximately 80 feet away from the Dollar Warehouse shortly before the incident, officers inspected the doughnut shop and recovered a price tag for a pair of gloves in a trash can.⁴ Surveillance footage obtained from the Dollar Warehouse, which was played for the jury, depicted two men wearing gloves inside the store at the time of the robbery.

Around 1:00 a.m. on March 6, 2005, a deputy sheriff observed appellant walking down the street. As the deputy sheriff and his partner approached, appellant "grabbed his left pocket with his hand and began running [away]." During the ensuing chase, appellant discarded a loaded Iver Johnson Arms revolver, which the officersrecovered after his arrest. A criminalist compared a bullet fired by the recovered revolver to those fired during the store shooting and determined they were of the same caliber and bullet type. The criminalist also opined that the gun used during the shooting was manufactured by U.S. Revolver, Iris Orvia, or Iver Johnson Arms.⁵

On April 17, 2005, Rivera positively identified appellant out of a photographic lineup as one of the men she had seen outside the Dollar Warehouse moments before the robbery and shooting. Appellant was noticeable to Rivera because he had a distinctive "lineup" haircut.

The following day, investigating officers interviewed appellant. Audio of the interview was played for the jury. During the interview, appellant implicated himself, his "homie Sean [Thomas]," and his cousin "Levi" Lawson in the robbery and shooting. Appellant admitted that the robbery was his and Thomas's idea (they needed money for "dope") and that he received more than $50 from the robbery. Appellant also admitted that he had the gun in his possession before the shooting, Lawson used the gun during the robbery, and the gun was returned to him after the robbery. Appellant also admitted he was inside the store or in the store doorway at the time of the shooting.

PROCEDURAL BACKGROUND

On February 26, 2019, appellant filed a petition for resentencing pursuant to section 1170.95, claiming entitlement to relief because he was convicted of first degree murder under a felony-murder theory or the natural and probable consequences doctrine. Appellant requested that counsel be appointed on his behalf. In its response to the petition, the People argued that appellant's conduct established that he was a major participant who acted with reckless...