California Court of Appeal Jul 31, 2023 No. E079621Unpublished
Filed 7/31/23 P. v. Wahlert CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079621
v. (Super. Ct. No. RIF095477)
JOSHUA BLAINE WAHLERT, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Alissa Bjerkhoel, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Donald
W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
1
I.
INTRODUCTION
Defendant and appellant Joshua Blaine Wahlert appeals the trial court’s order
denying his petition to vacate his 2003 murder conviction and for resentencing under 1 2 Penal Code section 1172.6 (formerly section 1170.95). The trial court relied on the
jury’s robbery-kidnapping-murder special-circumstances findings to deny relief at the
prima facie review stage. On appeal, defendant contends the trial court erred in denying
his petition at the prima facie stage because the court failed to adhere to the procedures
articulated in section 1172.6, misapplied the law and failed to appropriately specify the
reasons for the denial. The People agree the order denying the petition should be
reversed and the matter remanded to the trial court for further proceedings consistent with
People v. Strong (2022) 13 Cal.5th 698 (Strong). We also agree. Accordingly, we
reverse the trial court’s order denying the petition and remand the matter for further
proceedings pursuant to section 1172.6.
1 All future statutory references are to the Penal Code. 2 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6, with no substantive change in text. (Stats. 2022, ch. 58, § 10.) We cite to section 1172.6 for ease of reference unless otherwise indicated.
2
II. 3 PROCEDURAL BACKGROUND
On November 3, 2003, a third amended information was filed charging defendant
with first degree murder (§ 187, subd. (a); count 1), being a felon in possession of a
firearm (§ 12021, subd. (a)(1); count 2;), being a felon in possession of ammunition 4 (§ 12316, subd. (b)(1); count 3), and brandishing a firearm (§ 417, subd. (a)(2); count 4).
As to the murder offense, the information alleged two special circumstances that
defendant committed the murder while engaged in the commission of a robbery and
kidnapping (§ 190.2, subd. (a)(17)(A), (B)). Further, in connection with the murder, the
information alleged that defendant personally discharged a firearm causing great bodily
injury or death (§ 12022.53, subd. (d)) and personally used a knife (§ 12022, subd.
(b)(1)).
On December 9, 2003, a jury found defendant guilty as charged on all counts and
found true all enhancement allegations. He was sentenced to life without possibility of
parole on count 1, plus a consecutive sentence of 25 years to life for the gun enhancement
and an additional one year on the arming enhancement.
3 Because the factual background is not relevant to the legal issues raised in this appeal, we will not recount the details of defendant’s underlying offenses. Those details can be found in our partially published opinion from defendant’s direct prior appeal. (See People v. Wahlert, et al. (2005) 31 Cal.Rptr.3d 603; previously published at 130 Cal.App.4th 709.) 4 The information also contained allegations against defendant’s codefendant, Tracey Garrison. Those allegations are omitted here.
3
On June 24, 2005, we affirmed defendant’s convictions in a partially published
opinion in People v. Wahlert, et al., supra, 31 Cal.Rptr.3d 603, but modified defendant’s
sentence on counts 2, 3 and 4 by directing the trial court to stay defendant’s sentence on
counts 3 and 4 pursuant to section 654. We also directed the court to correct certain
clerical errors and ordered victim restitution to be paid jointly and severally. (Ibid.)
On March 7, 2022, defendant in propria persona filed a petition to vacate his
murder conviction and for resentencing pursuant to former section 1170.95.
The trial court appointed counsel for defendant and heard the petition on August
19, 2022. The prosecutor argued the petition should be denied due to the robbery-
kidnapping-murder special circumstances findings and also pointed out that defendant
was the actual killer who admitted shooting the victim in the head and slitting his throat.
Defense counsel conceded but made an objection for the record. The trial court denied
the petition based on the special circumstances findings. Defendant timely appealed.
III.
DISCUSSION
Defendant argues the trial court erred in denying his petition at the prima facie
stage because the court failed to adhere to the procedures articulated in section 1172.6
and misapplied the law. The People agree that under Strong, supra, 13 Cal.5th 698 the
court’s order denying defendant’s petition for resentencing at the prima facie stage should
be reversed and the matter remanded for further proceedings. Because his conviction
predates our Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788
4
(Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), we concur that the trial court
erred in denying defendant’s petition at the prima facie stage and remand for further 5 proceedings.
A. Legal Background
In 2015 and 2016, our Supreme Court decided Banks and Clark, respectively,
which discuss when section 190.2 authorizes a special circumstance life without parole
sentence for a felony-murder defendant convicted as an aider and abettor. (Banks, supra,
61 Cal.4th at p. 794; Clark, supra, 63 Cal.4th at pp. 609-610.) Those decisions held that
participation in an armed robbery, on its own, is insufficient to support a finding the
defendant acted with reckless indifference to human life. Instead, the factfinder must
consider “the defendant’s personal role in the crimes leading to the victim’s death and
weigh the defendant’s individual responsibility for the loss of life, not just his or her
vicarious responsibility for the underlying crime.” (Banks, supra, at p. 801, italics
omitted.) “The defendant must be aware of and willingly involved in the violent manner
in which the particular offense is committed,” thereby “demonstrating reckless
indifference to the significant risk of death his or her actions create.” (Ibid., italics
added.) Banks provided a non-exhaustive list of factors to consider when determining
whether the defendant was a major participant in the underlying felony. (Id. at p. 803.)
5 Since we are remanding the matter for further proceedings pursuant to section 1172.6 in light of Strong, we need not address defendant’s specific contentions.
5
And Clark offered a similar list for determining whether the defendant acted with
reckless indifference to human life. (Clark, supra, at pp. 619-623.)
Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 “‘to amend
the felony murder rule and the natural and probable consequences doctrine, as it relates to
murder, 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.’” (People v. Gentile (2020) 10
Cal.5th 830, 846-847; see Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature
accomplished this by amending sections 188 and 189. Effective January 1, 2022, Senate
Bill No. 775 expanded the scope of those changes to encompass, among other things,
murder convictions “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.” (§ 1172.6, subd. (a), as amended by Stats. 2021, ch. 551, § 2.)
Senate Bill No. 1437 also created a procedure for offenders previously convicted
of felony murder or murder under the natural and probable consequences doctrine to seek
retroactive relief if they could no longer be convicted of murder under the new law.
(§ 1172.6, subd. (a); People v. Gentile, supra, 10 Cal.5th at p. 843; People v. Lewis
(2021) 11 Cal.5th 952, 959 (Lewis); Strong, supra, 13 Cal.5th at p. 708.) “[T]he process
begins with the filing of a petition containing a declaration that all requirements for
eligibility are met [citation], including that ‘[t]he petitioner could not presently be
convicted of murder or attempted murder because of changes to . . . [s]ection 188 or 189
6
made effective January 1, 2019’ . . . .” (Strong, supra, at p. 708.) “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.” (Ibid.)
In Lewis, supra, 11 Cal.5th 952, our Supreme Court explained the trial court’s role
when faced with a section 1172.6 petition: Petitioners who request counsel “are entitled
to the appointment of counsel upon the filing of a facially sufficient petition . . . .” (Id. at
p. 957.) “[O]nly after the appointment of counsel and the opportunity for briefing may
the superior court consider the record of conviction to determine whether ‘the petitioner
makes a prima facie showing that he or she is entitled to relief.’” (Ibid., italics omitted;
see id. at p. 966 [“a complying petition is filed; the court appoints counsel, if requested;
the issue is briefed; and then the court makes [its] prima facie determination”].) The