People v. Shaw CA2/7 ( 2021 )

Filed 5/13/21 P. v. Shaw CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306212
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054450)
v.
IRVIN RANDOLPH SHAW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa Mangay Chung, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Daniel C. Chang and Peggy Z.
Huang, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
In March 2012 the trial court sentenced Irvin Randolph
Shaw to, among other prison terms for other crimes not relevant
to this appeal, consecutive life terms for convictions on two counts
of attempted willful, deliberate, and premeditated murder
(Pen. Code, §§ 187, subd. (a), 664).1 In 2019 Shaw filed a petition
for resentencing under section 1170.95 and asked the court to
appoint counsel to represent him. The superior court summarily
denied the petition, without granting Shaw’s request for counsel,
finding he failed to make a prima facie showing he was entitled to
relief under section 1170.95 because he was not convicted of first
or second degree murder. Shaw has timely appealed.
Shaw contends the superior court erred in summarily
denying his petition and not appointing counsel because section
1170.95 applies to convictions for attempted murder. He also
contends that the court’s failure to appoint counsel violated his
constitutional rights to due process and assistance of counsel and
that the summary denial of his petition violated his procedural
due process rights. These contentions lack merit.
Section 1170.95 authorizes a “person convicted of felony
murder or murder under a natural and probable consequences
theory” to petition the sentencing court to vacate the conviction
and to resentence the person on any remaining counts if the
petitioner could not have been convicted of murder because of
changes to the definition of murder effected by Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4). (See
§ 1170.95, subd. (a); People v. Gentile (2020) 10 Cal.5th 830,
842-843.) After an initial review to determine the facial
sufficiency of the information in the petition (§ 1170.95,
subd. (b)(2)), “[s]ection 1170.95, subdivision (c), requires the
sentencing court to review the petition; determine if it makes a
1 Statutory references are to the Penal Code.
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prima facie showing the petitioner falls within the provisions of
section 1170.95; and, ‘[i]f the petitioner has requested
counsel, . . . appoint counsel to represent the petitioner.’ After
counsel has been appointed, the prosecutor is to file and serve a
response to the petition; and the petitioner may file a reply. If
the petitioner has made a prima facie showing he or she is
entitled to relief, the court must issue an order to show cause
(§ 1170.95, subd. (c)) and conduct a hearing to determine whether
to vacate the murder conviction and resentence the petitioner on
any remaining counts (§ 1170.95, subd. (d)(1)).” (People v.
Verdugo (2020) 44 Cal.App.5th 320, 323 (Verdugo), review
granted Mar. 18, 2020, S260493.)
Under section 1170.95, subdivision (c), a court proceeds in
two steps, “one made before any briefing to determine whether
the petitioner has made a prima facie showing he or she falls
within section 1170.95—that is, that the petitioner may be
eligible for relief—and a second after briefing by both sides to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief.” (Verdugo, supra,
44 Cal.App.5th at p. 328, review granted; accord, People v. Soto
(2020) 51 Cal.App.5th 1043, 1054, review granted Sept. 23, 2020,
S263939; People v. Drayton (2020) 47 Cal.App.5th 965, 975; but
see People v. Cooper (2020) 54 Cal.App.5th 106, 118, review
granted Nov. 10, 2020, S264684.) As we explained in Verdugo,
section 1170.95, subdivision (c), prescribes “a chronological
sequence: first, a prima facie showing; thereafter, appointment of
counsel for petitioner; then, briefing by the parties.” (Verdugo, at
p. 332.)
Rejecting the arguments Shaw makes to support his first
contention, we concluded in People v. Lopez (2019) 38 Cal.App.5th
1087, review granted November 13, 2019, S258175, that Senate
Bill No. 1437, including its remedial relief provision, section
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1170.95, excludes relief for defendants convicted of attempted
murder. (Lopez, at pp. 1104-1105.) No court has held section
1170.95 provides relief to a petitioner seeking resentencing for a
final conviction of attempted murder. (See, e.g., People v. Harris
(2021) 60 Cal.App.5th 557, 566 [“[w]e join the other appellate
courts that have concluded that relief under section 1170.95 is
not available to those convicted of attempted murder”], review
granted Apr. 21, 2021, S267529; People v. Love (2020)
55 Cal.App.5th 273, 292 [the “mechanism for retroactive relief”
provided in section 1170.95 “applies only to persons seeking to
vacate a conviction for ‘murder’; it says nothing about attempted
murder”], review granted Dec. 16, 2020, S265445; People v.
Larios (2019) 42 Cal.App.5th 956, 969 [“No language in section
1170.95 references relief to persons convicted of attempted
murder. And, as noted in Lopez, the legislative history of Senate
Bill 1437 supports the conclusion section 1170.95 was intended to
apply only to persons convicted of murder”], review granted
Feb. 26, 2020, S259983.)
Because section 1170.95 does not apply to attempted
murder convictions, Shaw failed to make the prima facie showing
entitling him to appointed counsel under the statute,2 and the
superior court did not err in summarily denying the petition.
(See People v. Harris, supra, 60 Cal.App.5th at p. 569 [“because
we conclude that section 1170.95 relief is not available to those
convicted of attempted murder . . . , we need not and do not
address [the petitioner’s] alternative arguments about the
sufficiency of his petition in stating a prima facie case for relief”],
review granted; Verdugo, supra, 44 Cal.App.5th at pp. 332-333
2 Shaw does not argue he had a statutory right to counsel
prior to making a prima facie showing. (See People v. Cooper,
supra, 54 Cal.App.5th at p. 118, review granted.)
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[“If, as here, the court concludes the petitioner has failed to make
the initial prima facie showing required by subdivision (c),
counsel need not be appointed.”], review granted.) As for Shaw’s
contention the superior court violated his constitutional right to
counsel, there is no such right. (See People v. Daniel (2020)
57 Cal.App.5th 666, 676 [“a petitioner’s right to counsel under
section 1170.95[, subdivision (c),] is not protected by the federal
Constitution”], review granted Feb. 24, 2021, S266336; People v.
Lopez, supra, 38 Cal.App.5th at pp. 1114-1115 [“‘the retroactive
relief . . . afforded by Senate Bill 1437 . . . constituted an act of
lenity that does not implicate defendants’ Sixth Amendment
rights’”], review granted.)
Finally, Shaw contends that, because summarily denying
his petition deprived him of procedures to which he was entitled
under section 1170.95, that denial had “the additional effect” of
violating his federal procedural due process rights. As discussed,
the superior court complied with the procedural provisions of
section 1170.95 in denying Shaw’s petition, and Shaw has failed
to demonstrate he suffered any derivative due process violation.
The order denying Shaw’s petition under section 1170.95 is
affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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