People v. Russell CA4/3

Filed 2/18/22 P. v. Russell CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G060352

v. (Super. Ct. No. C-54962)

TIMOTHY DAVID RUSSELL, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Terri K. Flynn-Peister, Judge. Affirmed. Robert V. Vallandingham, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Appellant Timothy David Russell was convicted in 1986 of the murder of Marilyn Lyon, who had been found bludgeoned to death in her home in 1984. Appellant was a coworker of the victim and often performed gardening work for her. At trial he asserted he had come to the home, found the body, panicked, and fled. The jury concluded this explanation was late (it was different than his first statements) and was contradicted by other evidence. They found him guilty of first degree murder committed in the course of a robbery and attempted rape. In 2019, appellant filed a petition seeking to vacate his murder conviction pursuant to subsequently-enacted Penal Code1 section 1170.95. After appointing counsel for appellant, the trial court denied that petition on the basis that it did not “set forth a prima facie case for relief under the statute.” That meant there was no need to delve into the details of appellant’s case because on its face, his petition did not set out a basis for relief. Section 1170.95 is the procedural mechanism for implementing legislative changes in California law which narrow the scope of vicarious liability for murder in two ways. First, the Legislature eliminated the natural and probable consequences theory for that crime by providing that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) Second, it reigned in the felony murder rule so that it can only be applied to nonkillers if they aided and abetted the killer in committing first degree murder, or they were a major participant in the underlying felony and acted recklessly indifferent to human life. (§ 189, subd. (e).) In addition to ushering in these changes, the Legislature also enacted section 1170.95, which is the procedural mechanism for challenging a murder conviction based on vicarious liability. To obtain relief under that section, the defendant must show 1) he was prosecuted for murder under the felony murder rule or the natural and probable