The opinion
Filed 11/3/23 P. v. Walker CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306625
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA071076)
v.
KAMARON LEMONT WALKER,
Defendant and Appellant.
THE COURT:
After defendant and appellant Kamaron Lemont Walker
(defendant) appealed the denial of his petition for resentencing
pursuant to Penal Code section 1172.6 (former section 1170.95),1 we
affirmed the order of denial in People v. Walker (Feb. 10, 2021,
B306625) [nonpub. opn.] (Walker I). Defendant filed a petition for
review and by order dated June 28, 2023, the California Supreme Court
transferred the matter to this court with directions to vacate our
1 Section 1170.95 was renumbered section 1172.6, with no change
in text effective June 30, 2022. (Stats. 2022, ch. 58, § 10.) We will refer
to the section by its new numbering only, and all further unattributed
code sections are to the Penal Code unless otherwise stated.
previous decision and reconsider whether to exercise discretion and
conduct an independent review of the record or provide any other relief
in light of People v. Delgadillo (2022) 14 Cal.5th 216, 232–233 &
footnote 6 (Delgadillo) and People v. Lewis (2021) 11 Cal.5th 952
(Lewis).
On August 15, 2023, we vacated our prior opinion and have
reconsidered the previous decision in accordance with the Supreme
Court’s order.2 We have undertaken a limited independent review of
the record which has revealed the arguable issues discussed below.3
We conclude the trial court erred in summarily denying the petition
without appointing counsel. Accordingly, we reverse the order denying
defendant’s petition and remand with directions.
2 Upon reconsideration in light of Delgadillo, supra, 14 Cal.5th at
pages 232–233 & footnote 6, we find our original notice to defendant
regarding appointed counsel’s brief filed pursuant to People v. Wende
(1979) 25 Cal.3d 436, may have been misleading as it did not inform
defendant that if no supplemental brief was filed within 30 days, the
appeal could be dismissed. Although defendant had filed a
supplemental brief, we notified him he was permitted to file, within 30
days of the notice, an additional supplemental brief or letter stating
any grounds for an appeal, contentions, or arguments he wished this
court to consider that were not included in his brief filed November 12,
2020. We added the court was not required to conduct an independent
review for arguable issues before issuing a new opinion as directed by
the California Supreme Court, but would consider any issues raised in
his supplemental brief or briefs.
3 We take judicial notice on our own motion of relevant portions of
the record in People v. Walker (B221399, June 30, 2011 [nonpub opn.]),
the opinion affirming defendant’s judgment after trial, and some of the
procedural facts summarized below have been taken from that opinion.
2
BACKGROUND
In 2009, defendant and codefendant Eric Williams were charged
with murder in the shooting death of Dion Holloway, in violation of
section 187, subdivision (a).4 The information alleged under section
12022.53 that defendant personally used and intentionally discharged a
firearm within the meaning of subdivision (c), and that he personally
and intentionally discharged a firearm, which proximately caused great
bodily injury and death to the victim within the meaning of subdivision
(d). As to both defendants the information alleged a principal
personally and intentionally discharged a firearm which proximately
caused great bodily injury and death to the victim within the meaning
of section 12022.53, subdivision (d), and that a principal personally and
intentionally discharged a firearm within the meaning of section
12022.53, subdivisions (b), (c), (e) and (e)(1).
Defendant was convicted by jury of first degree murder and the
murder was found to have been willful, deliberate and premeditated.
Williams was convicted of second degree murder. As to defendant, the
jury found true the allegation that he personally and intentionally
discharged a firearm which proximately caused the victim’s death. As
to both defendants it was found that a principal personally used and
discharged a firearm, which proximately caused Holloway’s death. The
jury further found defendant committed the crime in association with a
criminal street gang within the meaning of section 186.22, subdivision
(b)(1)(C). Defendant was sentenced to a prison term of 80 years to life,
and the judgment was affirmed on appeal. (See Walker I, supra.)
After defendant’s conviction, the Legislature passed Senate Bill
No. 1437 (2017–2018 Reg. Sess.), which amended sections 188 and 189,
the laws pertaining to felony murder and murder under the natural
4 Defendant and Williams had been charged with codefendant,
Juan Antonio Villatoro, but prior to trial Villatoro was granted
immunity in exchange for his testimony in the case.
3
and probable consequences doctrine, “to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act with
the intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.” (Stats.
2018, ch. 1015, § 1, subd. (f).) The Legislature also provided a
procedure to petition for retroactive relief for those who could not be
convicted under sections 188 and 189 as amended effective January 1,
2019. (See Lewis, supra, 11 Cal.5th at p. 957.)
In August 2019, defendant filed a petition in propria persona for
resentencing pursuant to section 1172.6, which the trial court
summarily denied prior to any response from the prosecution, and
without appointing counsel for defendant. In January 2020, defendant
filed a second section 1172.6 petition, this time including as exhibits,
excerpts from his trial transcripts, including some of the jury
instructions given and other trial documents, with a request for
appointment of counsel. On February 13, 2023, the trial court
summarily denied the second petition on the ground that the court had
denied the prior petition. The trial court did not appoint counsel or
require a response from the prosecution. Defendant filed a timely
notice of appeal from the order of denial.
DISCUSSION
After we filed our opinion in Walker I, affirming the trial court’s
denial of defendant’s petition, the California Supreme Court published
Lewis, supra, which clarified certain procedural provisions for
determining whether a petition for resentencing had demonstrated
prima facie eligibility for relief under section 1172.6. As relevant here,5
section 1172.6, subdivision (a) provides that a person may file a petition
to have his or her murder conviction vacated and be resentenced on any
5 The prosecution proceeded on the natural and probable
consequences doctrine and not on a felony-murder theory.
4
remaining counts when all of the following conditions apply: “(1) [An]
information . . . was filed against the petitioner that allowed the
prosecution to proceed under a theory of . . . murder under the natural
and probable consequences doctrine or other theory under which malice
is imputed to a person based solely on that person’s participation in a
crime . . . . [¶] (2) The petitioner was convicted of murder . . . . [¶]
(3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.”
When a section 1172.6 petition alleges the three qualifying
conditions specified in subdivision (a)(1) through (3), the trial court is
required to take the allegations as true, appoint counsel if requested,
and entertain briefing, regardless of whether the record of conviction
demonstrates that the defendant is not entitled to relief. (Lewis, supra,
11 Cal.5th at pp. 957, 960, 962–964, 971–972; see § 1172.6, subds. (b),
(c).) After the appointment of counsel and considering the parties’
briefs a trial court is permitted to review the record of conviction to
determine the truth of the allegations of the petition and to aid the
court in assessing whether a petitioner has made a prima facie showing
of eligibility. (Lewis, at pp. 957, 972.) At this stage, however, only
where the record of conviction contains established facts showing that
petitioner is ineligible for resentencing as a matter of law may the court
find no prima facie showing has been made. (See Lewis, supra, at
p. 971; People v. Duchine (2021) 60 Cal.App.5th 798, 815.) “[A]s a
matter of law” means that the record of conviction conclusively refutes
the allegations of the petition without resorting to factfinding, weighing
of evidence, or credibility determinations. (People v. Lopez (2022) 78
Cal.App.5th 1, 14.) For example, where the record of conviction shows
no jury instructions were given regarding felony murder or the natural
and probable consequences doctrine, a petitioner is ineligible for relief
as a matter of law. (People v. Daniel (2020) 57 Cal.App.5th 666, 677.)
5
Defendant’s petition alleged the three conditions of subdivision
(a)(1) through (3) of section 1172.6, and requested appointment of
counsel.6 As defendant’s petition alleged the three required conditions,
the trial court erred in failing to appoint counsel and allow briefing.
(See Lewis, supra, 11 Cal.5th at pp. 957, 972.) The People filed a
supplemental letter brief after the Supreme Court transferred the
matter back to this court, urging us to again affirm the order of denial
on the ground that the error was harmless because the record of
conviction shows defendant is ineligible for relief as matter of law.
The People rely on the same pre-Lewis reasoning set forth in our
opinion in Walker I, supra, and on People v. Cornelius (2020) 44
Cal.App.5th 54, 58 (Cornelius), review granted March 18, 2020, to
argue that the jury’s finding under section 12022.53, subdivision (d)
meant the jury implicitly found defendant was the actual killer.
However, as the People acknowledge, subsequent to our opinion in
Walker I, the Supreme Court dismissed the petition for review in
Cornelius, remanded the matter, and deemed the case “non-citable and
nonprecedential ‘to the extent it is inconsistent with’ [the] decision in
Lewis[, supra, 11 Cal.5th 952].” (People v. Cornelius (Oct. 27, 2021,
S260410) [review dism.].) We now find Cornelius is inconsistent with
the decision in Lewis, because a firearm enhancement under section
12022.53 does not establish that defendant was the actual killer as a
matter of law.7
6 Attached to defendant’s petition was a copy of a portion of
Villatoro’s testimony which might have cast doubt on defendant’s role
as the actual killer in the shooting, as well as a copy of the jury
instruction given at trial regarding aiding and abetting under the
natural and probable consequences doctrine.
7 In addition, Cornelius is not comparable to the facts of this case
as that defendant was the sole perpetrator of the killing, and he was
ineligible under section 1172.6 as a matter of law because he was not
6
The People also argue that a true finding under section 12022.53,
subdivision (d) shows as a matter of law that defendant was not only
the actual killer but also that defendant acted with an intent to kill.
“Section 12022.53, subdivision (d) provides that a defendant must have
intended to discharge a firearm, but does not refer to an ‘intent to
achieve any additional consequence.’ [Citation.] It is thus a general
intent enhancement, and does not require the prosecution to prove that
the defendant harbored a particular mental state as to the victim’s
injury or death.” (People v. Offley (2020) 48 Cal.App.5th 588, 598.)
Moreover, when there are two or more shooters or a bullet is not
the cause of death, a true finding under section 12022.53, subdivision
(d) does not establish that defendant fired the fatal bullet. (See People
v. Palmer (2005) 133 Cal.App.4th 1141, 1151–1153, citing People v.
Bland (2002) 28 Cal.4th 313.) In Bland, the California Supreme Court
explained: “Section 12022.53(d) requires that the defendant
‘intentionally and personally discharged a firearm’ . . . , but only that he
‘proximately caused’ the great bodily injury or death. . . . Proximately
causing and personally inflicting harm are two different things.”8
(People v. Bland, supra, at p. 336.) Thus, a true finding was possible
whether it was defendant, defendant’s accomplice, or an event set in
motion by the discharge of the firearm that directly caused the victim’s
convicted of felony murder or murder under a natural and probable
consequences theory. (Cornelius, supra, 44 Cal.App.5th at p. 58.)
8 The trial court’s order of denial gives no reason for its decision
but refers to its order denying defendant’s first petition. In the prior
decision the trial court erroneously construed the jury’s true finding
under section 12022.53, subdivision (d) as a finding that defendant “
‘directly cause[d] the death’ ” of the victim by personally and
intentionally discharging a firearm. (Italics added.) (See People v.
Zarazua (2008) 162 Cal.App.4th 1348, 1361–1362.)
7
death. (See id. at pp. 335–336.)9 In sum, either defendant or his
accomplices may have personally discharged a firearm proximately
causing the victim’s death.
In a footnote in their letter brief the People set forth facts from
the summary of evidence adduced at defendant’s 2009 trial, as stated in
People v. Walker, supra, B221399, suggesting that defendant was the
actual killer. The People’s summary consists mostly of Villatoro’s
testimony, which was recanted in portions of the transcript attached to
defendant’s petition. “In reviewing any part of the record of conviction
at this preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion.’ ” (Lewis, supra, 11 Cal.5th at p. 972.)
The People further assert the jury’s finding that the murder was
premeditated and deliberated necessarily included a finding that
defendant was the actual killer who acted with an intent to kill.
Defendant was convicted in 2009, at a time when an accomplice to the
actual perpetrator could be convicted of premeditated murder under
the natural and probable consequences doctrine, without having the
intent to kill or even knowing his accomplice harbored a premeditated
intent to kill. (See People v. Favor (2012) 54 Cal.4th 868, 879–880.)
The information also alleged and the jury found true as to defendant
that a principal personally and intentionally discharged a firearm
which proximately caused great bodily injury and death to the victim
within the meaning of section 12022.53, subdivision (d), and that a
principal personally and intentionally discharged a firearm within the
meaning of section 12022.53, subdivisions (b), (c), (e) and (e)(1). Thus, a
principal other than defendant may have personally discharged a
firearm proximately causing the victim’s death and may have done so
9 The jury was instructed with CALJIC No. 17.19.5 that “[t]he
proximate cause of death is an act that sets in motion a chain of events
that produces as direct, natural, and probable consequence of the act
the death without which the death would not have occurred.”
8
with premeditation and deliberation, imposing liability for the murder
on defendant without his sharing or having had knowledge of the other
principal’s intent.
Apparently implying a collateral estoppel claim, the People argue
without authority that because codefendant Williams was convicted of
only second degree murder, it was defendant who acted with express
malice and who premeditated and deliberated. “Nonmutual collateral
estoppel does not apply to verdicts in criminal cases.” (People v.
Superior Court (Sparks) (2010) 48 Cal.4th 1, 5.) “[A] verdict regarding
one defendant has no effect on the trial of a different defendant . . . .”
(Id. at p. 5.) For example, “ ‘[it] is always possible for a jury to exercise
lenity and acquit some of the defendants while convicting others who
are in fact no more guilty . . . .’ ” (People v. Palmer (2001) 24 Cal.4th
856, 865.) Thus, it may be that an aider and abettor could be convicted
of first degree murder while the actual killer was convicted of second
degree murder, and collateral estoppel would not apply. (See People v.
Lawley (2002) 27 Cal.4th 102, 163–164.)
It may be that the record of conviction will ultimately show
defendant was the actual killer. We do not express an opinion on that
point, but as defendant submitted a facially adequate petition and the
allegations were not shown to be untrue as a matter of law, that
determination was premature. We thus reverse the trial court’s order
and remand for further proceedings.
DISPOSITION
The order of February 13, 2023 denying the section 1172.6
petition is reversed and the matter remanded. The trial court is
directed to appoint counsel for defendant and thereafter proceed as
required by section 1172.6, subdivisions (c) and (d).
NOT TO BE PUBLISHED.
____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.
9