California Court of Appeal Feb 24, 2023 No. E077039AUnpublished
Filed 2/24/23 P. v. Mello CA4/2 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE,
Plaintiff and Respondent, E077039
v. (Super.Ct.No. CR27819)
WILLIAM DOUGLAS MELLO, OPINION ON TRANSFER
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland and Charles C. Ragland, Assistant Attorneys General, Steve
Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.
1
Defendant and appellant, William Douglas Mello, filed a petition for resentencing
pursuant to former Penal Code section 1170.95,1 which the superior court denied. On
appeal, defendant contended the court erred in denying his petition. By opinion filed
On December 21, 2022, the California Supreme Court transferred the matter back
to us with directions to vacate our decision and reconsider the cause in light of People v.
Strong (2022) 13 Cal.5th 698 (Strong). On December 23, 2022, we ordered our opinion
vacated and set a briefing schedule.
Defendant argues that pursuant to Strong, the court erred in determining the jury’s
true finding on the felony-murder special-circumstance allegations rendered prior to the
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) made him ineligible for relief. Defendant maintains the matter
must be reversed and remanded for further proceedings. The People concede that matter
should be remanded. We reverse and remand for further proceedings.
1 All further statutory references are to the Penal Code unless otherwise indicated. Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
2 Defendant also filed a petition for writ of habeas corpus (In re Mello, June 2, 2021, E077163), which we ordered considered with this appeal. The petition was denied. April 8, 2022.
2
I. PROCEDURAL BACKGROUND3
On November 9, 1989, a jury found defendant guilty of first degree murder
(§ 187), first degree burglary (§ 459), and robbery (§ 211). The jury further found true
special circumstance allegations that defendant committed the murder while engaged in a
robbery (§ 190.2, subd. (a)(17)(i)) and while engaged in a burglary (§ 190.2,
subd. (a)(17)(vii)). The court sentenced defendant to imprisonment for life without the
possibility of parole.
On March 15 2021, defendant filed a petition for resentencing pursuant to
section 1170.95. At a hearing on April 9, 2021, the People noted that defendant was
ineligible for the relief requested because the jury had found true special murder
circumstances. The court reviewed its own records and observed there “were two special
allegations that were found. . . . [¶] The defendant is ineligible for relief as a matter of
law. . . . [T]he special circumstance finding would have required the jury to find if
defendant was not the actual killer, the defendant . . . was an aider and abettor [who]
entertained a specific intent to kill or [was] a substantial participant acting with a reckless
disregard.” The superior court denied the petition.
II. DISCUSSION
Defendant argues the superior court erred in denying his petition, and the matter
should be reversed and remanded. The People agree. We reverse and remand the matter
for a new prima facie hearing.
3 We exclude a recitation of the facts as irrelevant to the issue raised.
3
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of”
theories under which malice is imputed to a person based on that person’s participation in
a crime “to effectuate the Legislature’s declared intent ‘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.’” (Strong, supra, 13 Cal.5th at pp. 707-708.) “Senate Bill 1437 also
created a special procedural mechanism for those convicted under the former law to seek
retroactive relief under the law as amended. [Citations.] Under newly enacted section
1172.6, the process begins with the filing of a petition containing a declaration that all
requirements for eligibility are met [citations], including that ‘[t]he petitioner could not
presently be convicted of murder or attempted murder because of changes to . . . Section
188 or 189 made effective January 1, 2019,’ the effective date of Senate Bill 1437.” (Id.
at p. 708, fn. omitted.)
“When the trial court receives a petition containing the necessary declaration and
other required information, the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record
in the case establish conclusively that the defendant is ineligible for relief, the trial court
may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.)
4
Where a defendant’s “case was tried before both Banks and Clark, . . . special
circumstance findings do not preclude him from making out a prima facie case for
resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) A court “err[s]
in concluding otherwise.” (Ibid.)
If, instead, a defendant has made a prima facie showing of entitlement to relief,
“‘the court shall issue an order to show cause.’” (Strong, supra, 13 Cal.5th at p. 708.)
Once the court determines that a defendant has made a prima facie showing, “the court
must [then] hold an evidentiary hearing at which the prosecution bears the burden of
proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted
murder’ under state law as amended by Senate Bill 1437.” (Id. at p. 709.) “Senate Bill
1437 relief is unavailable if the defendant was either the actual killer, acted with the
intent to kill, or ‘was a major participant in the underlying felony and acted with reckless
indifference to human life . . . .’” (Id. at p. 710.)
Here, the jury rendered the special murder circumstance findings before both
Banks and Clark were decided. With respect to those findings, “no judge or jury has ever
found the currently required degree of culpability . . . .” (Strong, supra, 13 Cal.5th at p.
718, italics added.) Thus, the special murder circumstance findings did not, alone, render
defendant per se ineligible for relief. Therefore, the court below erred in denying
defendant’s petition on that basis.
5
III. DISPOSITION
The order denying defendant’s petition is reversed. The matter is remanded with
directions to hold a new prima facie hearing. We express no opinion on whether
defendant is entitled to relief following the hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER Acting P. J. We concur:
MILLER J.
CODRINGTON J.
6
AI Brief
AI-generated · verify before citing
Holding. The court held that pre-Banks and Clark special circumstance findings do not render a defendant ineligible for resentencing relief as a matter of law, requiring a remand for a new prima facie hearing.
Issues
Whether special circumstance findings made prior to Banks and Clark preclude a defendant from establishing a prima facie case for resentencing under Penal Code section 1172.6.
Disposition. reversed and remanded
Quotations verified verbatim against the opinion
“Where a defendant’s “case was tried before both Banks and Clark, . . . special circumstance findings do not preclude him from making out a prima facie case for resentencing under section 1172.6.””
“the special murder circumstance findings did not, alone, render defendant per se ineligible for relief. Therefore, the court below erred in denying defendant’s petition on that basis.”