PC 1172.6 Resentencing – Judge Finds Actual Killer?
The following summary of a First Appellate District Court ruling arising of out a double murder in Costa County may send shock waves to those considering a Petition for Resentencing under Penal Code § 1172.6 (the former Penal Code § 1170.95, codifying Senate Bill 1437 with the new felony murder rule).
In 2018, Senate Bill 1437 was enacted 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, 842.
It accomplished this by, among other things, amending Penal Code § 189 such that murder liability is not imposed on persons convicted of felony murder unless they were the actual killer, an aider or abettor who acted with the intent to kill, or a major participant in the underlying felony who acted with reckless indifference to human life.
Senate Bill 1437 also created Penal Code § 1170.95, which established a procedure for defendants convicted of murder under the old law to seek resentencing in the trial court if they believe they could not be convicted of that crime given the amendment to the law.
On June 16, 2003, at about 8:39 p.m., a 911 caller reported that two people had been shot at Triangle Court in Richmond, California.
Police arrived and found three victims. Two people were found dead in a car and a third person, Sheinna Babcock, was found alive nearby, but bleeding profusely from her head.. Ms. Babcock was airlifted to a local hospital in critical condition. Eight bullet casings were found at the crime scene.
While Ms. Babcock was at the hospital, police interviewed Babcock, who told police that Kimiko Kimio Wilson, age 18 at the time, was the killer. Police then went back to the police station and got Mr. Wilson’s photograph. Then then went back to the hospital and had Ms. Babcock identify him, confirming he was the shooter.
About a month later in Humboldt County, police observed Wilson driving and two police SUV’s followed him, activating their flashing lights to get him to pull over. Wilson drove evasively, accelerating to 85 to 90 miles per hour, running stop signs. After about five minutes off being chased, his car’s transmission blew out and Wilson came to a rolling stop. He was then arrested.
The Contra Costa County District Attorney’s Office charged Wilson with two counts of first degree murder (Penal Code § 187(a)) and one count of attempted murder (Penal Code §§ 187(a) / 664(a)). As to each count, it was alleged that he personally used and intentionally discharged a firearm in the commission off the offense, causing great bodily injury and death (Penal Code § 12022.53(b) – (d)).
The jury found Wilson guilty of both counts of first degree murder and the attempted murder of Babcock. The jury was unable to reach a verdict, however, on the personal use and discharge allegations. In July,2007, the court sentenced Wilson to life without the possibility of parole on the murder convictions and life with the possibility of parole on the attempted murder conviction.
In 2018, Senate Bill 1437 became law. Mr. Wilson then filed a petition for resentencing under SB 1437.
The trial court denied the resentencing petition by written order. It found that the evidence established Wilson’s guilt beyond a reasonable doubt under alternative theories: (1) that Mr. Wilson was the actual killer; and (2) if another person was the actual killer, Mr. Wilson aided and abetted in the murder with the intent to kill and that he acted as a major participant in the robbery with reckless indifference to human life.
Mr. Wilson appealed to the First Appellate District, arguing that because the jury did not find he discharged the weapon, the judge could not find he was the actual killer.
The First Appellate District disagreed. It reasoned that because, on an SB 1437, a court may consider new evidence in an evidentiary hearing, including declarations from witnesses, the judge was also free to consider who was the actual killer.
We bring this summary to the reader’s attention because we have had callers explain this exact same factual scenario multiple times and this ruling explains how the 1437 petition would be treated in a new evidentiary hearing.
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