People v. Shallowhorn CA2/2 ( 2021 )

Filed 9/9/21 P. v. Shallowhorn CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B311337
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA034917-01)
v.
ALFRED EUGENE
SHALLOWHORN,
Defendant and Appellant.
THE COURT:
Alfred Eugene Shallowhorn (defendant) appeals the trial
court’s denial of his motion for relief under Penal Code section
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1170.95. Defendant’s attorney filed a brief raising no issues and
asked this court to independently review the record. Defendant
submitted a supplemental brief on his own behalf. Having
considered defendant’s contentions of error and conducted our
own examination of the record, we are satisfied that no arguable
issue exists which would call into question defendant’s
ineligibility for resentencing relief under section 1170.95. We
accordingly affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
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I. Facts
A. The underlying crime
On the evening of December 2, 1995, defendant met with
other members of the Spooktown Crips, Acacia Block Crips, and
Farm Dog Crips to discuss plans to shoot members of the Nutty
Block Crips in retaliation for the shooting death earlier that
afternoon of an acquaintance of theirs. Around 8:00 p.m. that
evening, defendant armed with an assault rifle and a cohort
armed with a Tech-9 semiautomatic pistol drove to an area
controlled by the Nutty Block Crips and shot three young people
dead.
B. Conviction and appeal
In the operative complaint, the People charged defendant
with three counts of first degree murder (§ 187, subd. (a)), and
conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)).
As to the murder counts, the People further alleged the special
circumstances allegation of multiple murders (§ 190.2, subd.
1 All further statutory references are to the Penal Code.
2 We largely draw these facts from our prior, unpublished
opinion affirming defendant’s conviction. (People v. Shallowhorn
(Aug. 29, 2001, B125654).)
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(a)(3)) and firearm armed and use allegations (§§ 1203.06, subd.
(a)(1); 12022, subd. (a)(1); 12022.5; and 12022.55).
The matter proceeded to a jury trial and the jury was
instructed on the prosecution’s theories. With respect to
the murder charges, the trial court instructed the jury on
the theories that defendant (1) “directly and actively [committed]
the act constituting the crime” (CALJIC No. 3.00); (2) was a
direct aider and abettor (CALJIC No. 3.01); and (3) perpetrated
the murders “by means of discharging a firearm from a motor
vehicle intentionally at another person outside of the vehicle” and
defendant “specifically intended to inflict death.” (CALJIC No.
8.25.1) The jury was also instructed on murder, malice, and the
requirements for finding first degree willful, deliberate, and
premeditated murder. The jurors did not receive CALJIC No.
3.02, regarding liability as an aider and abettor under the
natural and probable consequences doctrine. With respect to
liability as a coconspirator, the jury was instructed with CALJIC
No. 6.11 in pertinent part: “Each member of a criminal
conspiracy is liable for each act . . . if that act . . . is in
furtherance of the object of the conspiracy [¶] . . . [¶] A member of
a conspiracy is not only guilty of the particular crime that to his
knowledge his confederates agreed to and did commit, but is also
liable for the natural and probable consequences of any crime of a
co-conspirator to further the object of the conspiracy, even though
that crime was not intended as a part of the agreed upon
objective.”
The jury convicted defendant of all charges and found all
allegations true. The trial court sentenced defendant to state
prison for three consecutive sentences of life without the
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possibility of parole for the three murder convictions, plus 33
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years for the firearm enhancements.
Defendant appealed his conviction but did not contest the
sufficiency of the evidence to support the convictions.
Specifically, he argued that (1) the conspiracy conviction must be
reversed because there was ambiguity as to whether the
conviction rested on legally sustainable or unsustainable overt
acts; (2) the improper admission of hearsay statements violated
his federal and state Constitutional rights to confrontation; and
(3) there was instructional error with respect to out-of-court
statements by police informants. We rejected defendant’s
arguments and affirmed the conviction in an unpublished
opinion. (People v. Shallowhorn, supra, B125654.)
II. Procedural Background
On December 17, 2020, defendant filed a petition seeking
resentencing under section 1170.95. In the form petition,
defendant checked the boxes to declare that (1) a complaint,
information, or indictment was filed against him “that allowed
the prosecution to proceed under a theory of felony murder or
murder under the natural and probable consequences doctrine,”
(2) he was “convicted of 1st . . . degree murder pursuant to the
felony murder rule or the natural and probable consequences
doctrine” and (3) he “could not now be convicted of 1st . . . degree
murder because” (a) he was “not the actual killer”; (b) he did not
“aid, abet, . . . or assist the actual killer in the commission of
3 The jury could not reach a penalty verdict, so the trial court
declared a mistrial on the penalty phase and the People waived a
penalty retrial. As to the conspiracy count, the court sentenced
defendant to 25 years to life, but stayed the sentence pursuant to
Penal Code section 654.
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murder in the first degree”; and (3) he “was not a major
participant in the felony or did not act with reckless indifference
to human life.” Defendant did not check the box requesting
appointment of counsel.
After reviewing the available case file including the
relevant jury instructions, and this court’s 2001 unpublished
opinion, the trial court summarily denied defendant’s petition in
an order issued on January 13, 2021. The court found that
defendant did not make a prima facie showing because “[t]he jury
was not instructed on either the natural and probable
consequences doctrine of vicarious liability or the felony murder
doctrine” such that neither theory formed the basis for
defendant’s conviction. Instead, defendant was convicted as
“both a direct aider and abettor and a perpetrator of the crimes.”
On March 3, 2021, appellant filed a timely notice of appeal.
DISCUSSION
Defendant’s appointed counsel filed an opening brief
pursuant to People v. Wende (1979) 25 Cal.3d 436, indicating that
her review of the entire record revealed no arguable issues to
raise on appeal. Because defendant availed himself of his right to
file a supplemental brief, we will address the arguments he
raises. (People v. Cole (2020) 52 Cal.App.5th 1023, 1040, review
granted Oct. 14, 2020, S264278.) As explained below, these
arguments are meritless, not properly before us, or both.
Accordingly, we affirm.
A person is entitled to relief under section 1170.95 if, as
relevant here, (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under
a theory of felony murder or murder under the natural and
probable consequences doctrine,” (2) he “was convicted of first
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degree . . . murder,” and (3) he “could not be convicted of first . . .
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a).) In January
2019, our Legislature amended section 188 to provide that “in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought” and that “[m]alice shall not be imputed
to a person based solely on his . . . participation in a crime.” (§
188, subd. (a)(3).) Our Legislature’s purpose was to ensure that
“[a] person’s culpability for murder [is] premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018, ch.
1015, § 1(g).)
In People v. Lewis (2021) 11 Cal.5th 952 (Lewis), our
Supreme Court held that a person seeking relief under section
1170.95 is entitled to the appointment of counsel (if requested)
upon the filing of a facially sufficient petition. (Lewis, at pp. 957-
958.) If the defendant in his petition “makes a prima facie
showing that he . . . is entitled to relief” under that section, the
trial court “must hold a hearing ‘to determine whether to vacate
[his] murder conviction’” and to resentence him on any remaining
counts. (Id., citing § 1170.95, subds. (c) & (d).) The Lewis court
held that only after the appointment of counsel and the
opportunity for briefing may the superior court consider the
record of conviction to determine whether the petitioner has
made a prima facie showing that he or she is entitled to relief.
(Lewis, at pp. 970-971.) The court nonetheless concluded that the
deprivation of a petitioner’s right to counsel under subdivision (c)
of section 1170.95 is state law error only, tested for prejudice
under People v. Watson (1956) 46 Cal.2d 818. (Id. at pp. 957-958,
973-974.) On appeal, a petitioner ‘“whose petition is denied
before an order to show cause issues has the burden of showing
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“it is reasonably probable that if [he or she] had been afforded
assistance of counsel his [or her] petition would not have been
summarily denied without an evidentiary hearing.’”” (Id. at p.
974.)
Here, any error by the trial court in considering the record
of conviction without first appointing counsel was harmless. As
shown in the record of conviction, the jury was not instructed on
a natural and probable consequences or felony-murder theory of
liability. Therefore, defendant is ineligible for relief under
section 1170.95 as a matter of law. (People v. Smith (2020) 49
Cal.App.5th 85, 92, fn. 5, review granted July 22, 2020, S262835.)
In his supplemental brief, defendant raises three
arguments. Only his first two arguments are properly before us,
as they are the only ones pertaining to the order he appealed that
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denied him relief under Proposition 47.
First, defendant argues that his murder conviction is
somehow subject to being vacated under section 1170.95 because
(1) the conspiracy instruction holds a defendant criminally liable
for crimes the conspirators “agreed to and did commit” as well as
unintended crimes which were the natural and probable
consequence of the conspiracy; and (2) he and his coconspirators
intended to kill rival gang members, not the innocent bystanders
they actually killed, so his murder conviction possibly relies upon
a natural and probable consequences theory of liability. We
reject this argument for several reasons. Most notably, section
1170.95 is aimed at vacating murder convictions not based on a
4 Defendant’s third argument attacks the sufficiency of the
evidence, which is outside the scope of his appeal of the section
1170.95 order.
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finding that the defendant himself acted with malice. (§ 188,
subd. (a)(3); § 1170.95, subd. (a).) The three main theories of
murder presented to the jury—that defendant was the actual
killer, that he directly aided and abetted the actual killer, or that
he engaged in a drive-by shooting with the intent to kill—each
required a finding that defendant himself acted with malice.
Even if we construe the conspiracy instruction as providing a
fourth, implicit theory of murder, he was charged with conspiracy
to commit murder, which the jury was instructed requires a
finding of specific intent to kill. The fact that defendant and his
cohorts, while acting with the intent to kill, killed the wrong
people does not somehow mean that defendant did not personally
act with malice as a factual matter or as a legal matter (because
malicious intent is transferrable for the crime of murder (People
v. Bland (2002) 28 Cal.4th 313, 327-328)). Contrary to what
defendant seems to suggest, the fact that the words “natural and
probable consequence” appear in some jury instruction does not
mean that a defendant’s murder convictions were based on
theories not requiring malice aforethought. (People v. Soto (2020)
51 Cal.App.5th 1043, 1056, review granted Sept. 23, 2020,
S263939 [rejecting the argument that the words “natural and
probable consequences” appearing in the definition of implied
malice means that defendant did not personally act with malice].)
Second, defendant contends that “a finding of malice cannot
be implied from the conspiracy conviction” or from the “firearm
use finding.” We reject this contention because, for the reasons
noted above, the jury had to find that defendant himself acted
with malice (whether express or implied) before it could convict
him of any of the theories of murder presented to them.
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Having considered defendant’s contentions of error and
conducted our own examination of the record, we are satisfied
that no arguable issue exists which would call into question
defendant’s ineligibility for resentencing relief under section
1170.95.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
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LUI, P.J., ASHMANN-GERST, J., HOFFSTADT, J.
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