The People v. Williams

1

THE PEOPLE, Plaintiff and Respondent, v. KEITH WILLIAMS, JR., Defendant and Appellant.

C096809

California Court of Appeals, Third District, Sacramento

August 29, 2023

NOT TO BE PUBLISHED

(Super. Ct. No. 10F02827)

EARL P. J.

In 2013, defendant Keith Williams, Jr., was convicted of first degree murder with special circumstances of lying in wait and active participation in a street gang, as well as attempted premeditated murder. In 2021, he filed a petition for resentencing pursuant to former Penal Code section 1170.95 which the trial court summarily denied. On appeal, he argues that the trial court erred in denying his petition, as he made a prima facie showing that he was entitled to relief notwithstanding the fact the jury found true two special circumstances associated with the murder charge that required a finding of specific intent to kill as well as a separate finding of premeditation while committing the attempted murder. As explained below, we affirm the denial of the petition as to defendant's murder conviction but must reverse as to his attempted murder conviction.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The following background is taken from this court's nonpublished opinion in defendant's direct appeal, People v. Williams (Sept. 29, 2015, C076196):

"Around 11:00 p.m. on May 19, 2009, Ja'Ron Franklin was sitting in his front yard with his friend and neighbor, Paul Cousins. Franklin saw two males he did not recognize walking on the other side of the street. The shorter^[1] of the two men crossed the street and started firing a gun at them. The man stumbled and dropped the weapon, then picked it up, pointed it at Franklin and Cousins, and asked for their possessions. After Cousins and Franklin replied that he had the wrong people, the man fired into Cousins's chest. Franklin tried to take cover behind a green electrical box, but was shot six times. Franklin survived but Cousins died, also having sustained multiple gunshot wounds. According to Franklin, the taller male fled with the shorter man after the shooting.

"David Rodriguez, who lived nearby, heard gunshots as he was about to go to bed that night. He looked out an upstairs window and heard a couple of men running to a car. He then saw a white Cadillac coupe drive off with its headlights off.

"Marquice Corona shared siblings with Cousins and was very close to him. Cousins told him that he hung out with members of the Gunz street gang. These members were Cousins's friends. About a month before he was killed, Cousins told Corona that he was getting into it with some guys from Starz. Cousins said some people 'want problems with him.' At that time, Gunz was 'beefing' with the StarzUp gang. While he was never a member of the Gunz gang, when Cousins had problems with members of Starz, he would represent himself to be a Gunz guy.

"Kevin Robinson, a member of the Starz gang, contacted law enforcement with information about the case, a conversation he had with Deandre Ellison concerning defendant's involvement in the shooting. Ellison agreed to give information about the shooting in exchange for assistance in a pending case.^[2] He told officers that defendant 'got into [it] with some GunzUp dude' and began shooting.^[3]

"After conversing with law enforcement, Ellison decided to write a letter to defendant in order to learn more about the shooting. Defendant replied by telling him that 'two people got hit' and that he emptied a nine-millimeter handgun. Law enforcement set up three pretext calls between Ellison and defendant, who was on juvenile probation at the Woodward Academy in Iowa. They also asked Ellison to duplicate from memory the letter he sent to defendant.

"During the first pretext call, defendant told Ellison there were 'two of them' and he 'emptied the whole bag,' a term for using all the bullets. Defendant also said he used a 'nip,' which meant a nine-millimeter handgun. In the second pretext call, defendant claimed responsibility for several other shootings. He also referred to details of the charged shooting, such as seeing two men sitting on the 'little green thing,' a reference to the green electrical box at Franklin's house. Defendant also mentioned a white Cadillac and claimed to have been the shooter. At one point during the second call, Ellison asked defendant, 'And them, them was GDs^[4] wasn't they?' Defendant replied: 'Yeah. Cause, cause, cause, I, uh hit him up with it and they, they threw it back at me, so that's how I knew they was one.' According to defendant, 'they said what's up,' and so he 'melted them.' Defendant also took credit for being the shooter in the third pretext call.

"Defendant, testifying on his own behalf, said that in 2009 he was 17 years old and a member of the StickUp Starz gang. On the night of the shooting, defendant was at a friend's recording studio with Ellison and some others. Defendant left in a white Cadillac with two men, thinking they were going to a party; he sat in the back seat and was intoxicated. On the way, the men stopped the car and got out, one of them, 'Bama,' started to shoot. All three of them ran away after the shooting. A few days later, defendant called Ellison and told him about the shooting.

"Defendant admitted to the shooting in his correspondence with Ellison because he did not want to appear to be weak within his gang." (People v. Williams, supra C076196.)

B. Procedural Background

Defendant's jury was instructed, inter alia, with CALCRIM Nos. 400, 401, 403, 601, 705, 728, and 736, but was not instructed with CALCRIM No. 702.

The jury found defendant guilty of first degree murder and found true the special circumstances of lying in wait and active participation in a criminal street gang (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15) &(a)(22))^[5] and attempted premeditated murder (§§ 187, subd. (a), 664). The jury found the allegations that defendant personally used and/or discharged a firearm during the offenses not true. The jury also found the allegation that defendant personally inflicted great bodily injury upon the attempted murder victim to be not true. The trial court sentenced defendant, who was a juvenile when the crimes were committed, to 32 years to life. (People v. Williams, supra, C076196.)

On appeal, a different panel of this court affirmed defendant's convictions. In particular, this court agreed the trial court erred in giving CALCRIM No. 403 on liability for first degree murder under a natural and probable consequences theory because that theory of guilt cannot be used to support a conviction for first degree murder. This court noted that in People v. Chiu (2014) 59 Cal.4th 155 (Chiu), "the Supreme Court said the public policy supporting the natural and probable consequences doctrine 'loses its force in the context of a defendant's liability as an aider and abettor of a first degree premeditated murder.' (Id. at p. 166.) The [Supreme C]ourt explained that the mental state for first degree murder is uniquely subjective and personal, and the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated. (Ibid.)" (People v. Williams, supra, C076196.)

However, this court also noted that under Chiu, aiders and abettors may still be convicted of first degree premeditated murder but the" 'prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission. [Citation.]'" (People v. Williams, supra, C076196, quoting Chiu, supra, 59 Cal.4th at p. 167.) This court further quoted Chiu for the standard of review when a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect:" 'Defendant's first degree murder conviction must be reversed unless we conclude beyond a reasonable doubt that the jury based its verdict on the legally valid theory that defendant directly aided and abetted the premeditated murder. [Citation.]'" (Williams, supra, C076196, quoting Chiu, supra, 59 Cal.4th at p. 167.)

Utilizing that standard, this court found that "[t]he two theories of accomplice liability are not tied to the evidence submitted by the prosecution. The prosecution's case overwhelmingly points to defendant as the shooter." (People v. Williams, supra, C076196.) This court also relied on case law that holds "a jury that finds the defendant was lying in wait 'necessarily' finds that the defendant also 'premeditated and intended the killings.'" (Ibid., quoting People v. Boyette (2002) 29 Cal.4th 381, 436.) This court found that "[a]s a matter of law, the jury's true finding on the lying-in-wait special circumstance necessarily included the finding that defendant acted with the requisite mens rea for first degree murder." This court concluded that "it is clear beyond a reasonable doubt that the jury found that defendant both intended and premeditated the killing, the error in instructing with CALCRIM No. 403 on the first degree murder charge was harmless." (People v. Williams, supra, C076196.)

This court also rejected defendant's contention that the special circumstance findings must be vacated because it could not be determined whether the jury found defendant guilty of first degree murder based on the natural and probable consequences theory. This court concluded that because both the lying-in-wait and gang-murder special circumstances each required the jury to find that defendant intentionally killed his victim, the jury necessarily found that defendant intended to kill Cousins and there was no error regarding the special circumstances. As stated, this court affirmed the...