People v. LeBlue CA2/5 ( 2024 )

Filed 10/30/24 P. v. LeBlue CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B332103
Plaintiff and Respondent, (Los Angeles
County Super. Ct.
v. No. YA038257)
SHANNON DEANDRE LEBLUE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Nicole C. Bershon, Judge. Reversed and
remanded.
Leslie Conrad, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Roberta L. Davis,
Deputy Attorneys General for Plaintiff and Respondent.
_______________________
Shannon LeBlue appeals the resentencing court’s order
denying his petition for resentencing under Penal Code1 section
1172.6 at the prima facie stage based on the prior appellate
opinion, jury instructions, and the prosecutor’s closing argument.
We reverse the court’s order and remand for further proceedings.
PROCEDURAL HISTORY
In 1999, the jury found LeBlue guilty of first degree murder
(§ 187, subd. (a), count 1) and attempted second degree robbery
(§ 211/664, count 2). The jury found true allegations that the
murder was committed while LeBlue was engaged in the
attempted commission of the robbery (§ 190.2, subd. (a)(17)), and
that LeBlue personally used a firearm in the commission of both
crimes (§ 12022.5, subd. (a)(1)).
The trial court sentenced LeBlue to life without the
possibility of parole in count 1, plus 10 years in prison for the
firearm enhancement. The court imposed and stayed the
sentence in count 2. (§ 654.)
The Court of Appeal ordered that the court’s minute order
be corrected to delete any reference to a parole revocation fine,
but otherwise affirmed the judgment.
In 2022, LeBlue filed a petition for resentencing pursuant
to section 1172.6.
The People opposed LeBlue’s petition, arguing that
although the jury was instructed on first degree felony murder
and aiding and abetting, he was prosecuted and convicted as the
actual killer. The People averred that the robbery/murder special
1 All further statutory references are to the Penal Code.
2
circumstance instruction omitted “major participant” and
“reckless indifference to human life” language, which would have
been included if LeBlue had been prosecuted as an aider and
abettor. Instead, the instruction read, “ ‘If you are satisfied
beyond a reasonable doubt that the defendant actually killed a
human being, you need not find that the defendant intended to
kill in order to find the special circumstance to be true.’ ” The
People argued that, given the language of the instruction, the
only way that the jury could have found that the special
circumstance was true is if it also found that LeBlue was the
actual killer. Additionally, the People argued that the
prosecutor’s arguments demonstrated LeBlue was prosecuted
solely on the theory that he was the actual shooter and killed the
victim. The People attached to the opposition the Court of
Appeal’s prior opinion, the instructions given to the jury, the
verdicts, and the closing arguments at trial.
LeBlue’s appointed counsel did not file a reply.
At the hearing to determine whether LeBlue was prima
facie eligible for resentencing pursuant to section 1172.6, the
resentencing court stated that it had read the petition and the
People’s response and attachments. The resentencing court
asked the parties if they wished to be heard on the matter;
appointed counsel stated that she agreed with the People’s
response and submitted. The court stated that the “People’s
point is well taken,” and found LeBlue prima facie ineligible for
relief.
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DISCUSSION
A. Legal Principles
“Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) ‘ “Under the felony-
murder doctrine as it existed at the time of [LeBlue’s] trial, ‘when
the defendant or an accomplice kill[ed] someone during the
commission, or attempted commission, of an inherently
dangerous felony,’ the defendant could be found guilty of the
crime of murder, without any showing of ‘an intent to kill, or even
implied malice, but merely an intent to commit the underlying
felony.’ [Citation.] Murders occurring during certain violent or
serious felonies[, including robbery,] were of the first degree,
while all others were of the second degree. [Citations.]”
[Citation.]’ (People v. Wilson (2023) 14 Cal.5th 839, 868.)”
(People v. Bodely (2023) 95 Cal.App.5th 1193, 1199.)
The felony murder rule was amended by Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (Stats 2018, ch. 1015), which
became effective on January 1, 2019. (People v. Garcia (2022) 82
Cal.App.5th 956, 965.) “As relevant here, Senate Bill No. 1437
limited the class of persons liable for felony murder by adding
section 189, subdivision (e). Under current law, ‘[a] participant
in the perpetration or attempted perpetration of [certain
enumerated felonies, including robbery] in which a death occurs
is liable for murder only if one of the following is proven: [¶] (1)
The person was the actual killer. [¶] (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
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the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of [s]ection 190.2.’ (§ 189, subd.
(e)(1)–(3).)” (Ibid.)
“ ‘Senate Bill 1437 also created a procedural mechanism for
those convicted of murder under prior law to seek retroactive
relief. [Citations.] Under section 1172.6, the process begins with
the filing of a petition declaring that “[t]he petitioner could not
presently be convicted of murder or attempted murder because of
changes to [s]ection 188 or 189” made by Senate Bill 1437.
[Citation.] The trial court then reviews the petition to determine
whether a prima facie showing has been made that the petitioner
is entitled to relief. [Citation.] “If the petition and record in the
case establish conclusively that the defendant is ineligible for
relief, the trial court may dismiss the petition. [Citations.]”
[Citation.]’ (People v. Wilson, supra, 14 Cal.5th at p. 869, fn.
omitted.)” (People v. Bodely, supra, 95 Cal.App.5th at p. 1200.)
“The record of conviction will necessarily inform the trial
court’s prima facie inquiry under section [1172.6], allowing the
court to distinguish petitions with potential merit from those that
are clearly meritless. . . . [¶] While the trial court may look at the
record of conviction after the appointment of counsel to determine
whether a petitioner has made a prima facie case for section
[1172.6] relief, the prima facie inquiry under subdivision (c) is
limited. . . . ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an
evidentiary hearing.’ [Citation.] ‘However, if the record,
including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified
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in making a credibility determination adverse to the
petitioner.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971.)
“In making its evaluation, the court may review the record
of conviction—including the charging documents, jury
instructions, verdicts, and to a limited extent any prior appellate
opinion—to determine if the petitioner’s allegations are
conclusively rebutted by the record.” People v. Lovejoy (2024) 101
Cal.App.5th 860, 864–865.) “In reviewing any part of the record
of conviction at this preliminary juncture, a trial court should not
engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ [Citation.] . . . [T]he ‘prima facie bar was
intentionally and correctly set very low.’ ” (People v. Lewis,
supra, 11 Cal.5th at p. 972.) If the petitioner makes a prima facie
showing of eligibility, the trial court must issue an order to show
cause and hold an evidentiary hearing. (Ibid.)
We independently review a trial court’s determination of
whether a petitioner has made a prima facie showing. (People v.
Harden (2022) 81 Cal.App.5th 45, 52.)
B. Analysis
In the opening brief, LeBlue contends that the People’s
argument in opposition to his section 1172.6 petition—that the
jury could not have found that the robbery/murder special
circumstance was true without also finding that LeBlue was the
actual killer—was flawed.2 We agree.
2 Appointed counsel neither filed a reply nor argued at the
prima facie hearing. However, the People do not argue that
counsel forfeited LeBlue’s arguments on appeal, so we address
them on the merits.
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At trial, the court instructed the jury that both the direct
perpetrator of a crime and any aiders and abettors are principles,
and that all principals involved in a crime are equally guilty.
(CALJIC No. 3.00.) The jury was instructed regarding aiders and
abettors to a crime under CALJIC No. 3.01.
The trial court defined murder (CALJIC No. 8.10), and
explained that the jury could find LeBlue guilty of first degree
murder in one of two ways—either that LeBlue killed with
premeditation and deliberation (CALJIC No. 8.20), or that
LeBlue attempted to commit robbery and the victim was
unlawfully killed in the attempt (CALJIC No. 8.21 & CALJIC
No. 8.27). With respect to the attempted robbery/murder theory
of liability, CALJIC No. 8.27 defined liability for aiders and
abettors:
“If a human being is killed by any one of several persons
engaged in the commission or attempted commission of the crime
of Robbery, all persons, who either directly and actively commit
the act constituting that crime, or who with knowledge of the
unlawful purpose of the perpetrator of the crime and with the
intent or purpose of committing, encouraging, or facilitating the
commission of the offense, aid, promote, encourage, or instigate
by act or advice its commission, are guilty of murder of the first
degree, whether the killing is intentional, unintentional, or
accidental. [¶] [In order to be guilty of murder, as an aider and
abettor to a felony murder, the accused and the killer must have
been jointly engaged in the commission of the Robbery at the
time the fatal [wound was inflicted].]”
From the foregoing instructions, it is clear that the jury
had a “path” to find LeBlue guilty of murder if it found he was
guilty of attempted robbery, regardless of his own mental state
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with respect to the murder. (People v. Harden, supra, 81
Cal.App.5th at p. 52 [inquiry into prima facie eligibility looks to
the court’s instructions “to determine if they chart a path where
even one juror could have convicted [the defendant] on a theory
other than as [the victim’s] actual killer”].) Contrary to the
People’s assertions, the circumstances present in LeBlue’s case
are distinguishable from those of the petitioner in People v.
Harden, supra, 81 Cal.App.5th 45. In Harden, no aiding and
abetting instructions were given at trial. (Id. at p. 53.) As the
Harden court observed, the absence of aiding and abetting
instructions was one factor that supported its holding that the
defendant had not made a prima facie case of eligibility. (Ibid.
[“[i]n determining if the instructions left open th[e] possibility
[that the defendant was convicted on a now-invalid theory], it
may be helpful, although certainly not dispositive, to start with
instructions the jury was not given”].)
We reject the People’s argument that the instructions on
the attempted robbery/murder special circumstance required
that, if the jury found the special circumstance true, it must also
find that LeBlue was the actual killer, regardless of any aiding
and abetting instructions.3 The trial court instructed the jury
regarding the special circumstance that: “[i]f you find the
defendant in this case guilty of murder in the first degree, you
must then determine if the following special circumstance: [is]
3 We further reject the People’s suggestion that the aiding
and abetting instructions were given solely because an
accomplice testified. Even if this was true, the reason for
instructing the jury on aiding and abetting is irrelevant if the
jury could interpret the instruction to apply to the defendant,
which was the case here.
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true or not true: [That the murder was committed while the
defendant was engaged in, or was an accomplice in, the
commission of, or attempted commission of a Robbery]. [¶] . . .[¶]
[If you are satisfied beyond a reasonable doubt that the
defendant actually killed a human being, you need not find that
the defendant intended to kill in order to find the special
circumstance to be true.]” (CALJIC No. 8.80.1.) The jury was
also told: “[t]o find that the special circumstance, referred to in
these instructions as murder in the commission of a Robbery or
Attempted Robbery, is true, it must be proved: [¶] [1a. The
murder was committed while [the] defendant was [engaged in] in
the [commission] [or] [attempted commission] of a Robbery.]”
(CALJIC No. 8.81.17)
The special circumstance instructions permitted the jury to
find the special circumstance true if it had already found that (1)
LeBlue was guilty of first degree murder, and (2) the victim was
killed while LeBlue was attempting to commit a robbery. The
instructions did not require the jury to find that LeBlue was the
actual killer; they simply instructed that if the jury did find
LeBlue was the actual killer it did not have to also find that he
intended to kill.
In the respondent’s brief, the People urge us to conclude
that LeBlue is ineligible for resentencing as a matter of law on
the basis of the evidence, jury instructions, closing arguments,
and jury verdicts. The evidence was not presented to the
resentencing court, however. The only facts before the court were
contained in the factual summary in the prior appellate opinion.
Although an appellate opinion may be utilized for its recitation of
the procedural history of the case (§ 1172.6, subd. (d)(3)), the
People’s reliance on the opinion goes well beyond that.
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That the prosecutor only argued LeBlue was the actual
killer does not undermine our conclusion that the petition was
incorrectly denied at the prima facie stage. A prosecutor’s closing
statements are arguments—not facts. The jury was specifically
instructed on this point. (CALJIC No. 1.02.) Moreover, a
prosecutor’s theory of the case does not constrain the jurors. The
jury’s findings are based on its evaluation of the evidence
presented at trial viewed within the rubric of the trial court’s
instructions. If evidence was presented to the jury that could
have supported the conclusion that LeBlue was guilty of murder
based on his commission of the attempted robbery rather than as
the actual killer, the jury was free to reach that conclusion,
regardless of what the prosecutor argued. Without reviewing the
evidence adduced at trial, the resentencing court could not have
determined whether LeBlue might have been convicted as an
aider and abettor of the attempted robbery.
The People’s argument that the jury’s true finding on the
firearm use enhancement compels the conclusion that LeBlue
was the actual killer suffers from the same infirmity—it relies on
facts that the resentencing court did not have the opportunity to
consider when determining whether LeBlue was prima facie
eligible for section 1172.6 relief. At trial, the court instructed the
jury that it could find the allegation true if LeBlue “intentionally
displayed a firearm in a menacing manner, intentionally fired it,
or intentionally struck and hit a human being with it.” (CALJIC
No. 17.19.) The jurors were not required to find LeBlue was the
actual killer to find the allegation true.
As the People correctly highlight, “ ‘The key question in
determining whether the [resentencing] court properly denied
[LeBlue’s] petition’ as the actual killer at the prima facie stage of
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section 1172.6 proceedings involving a felony murder special
circumstance, ‘[was] whether it was possible for a juror to have
(1) found [LeBlue] guilty of felony murder, and (2) found to be
true the [felony [murder]] special circumstance allegations, . . .
without also finding [LeBlue] personally killed the victim?’ ” The
jury instructions in this case left open the possibility that LeBlue
was convicted under a theory of felony murder that is no longer
valid after the January 1, 2019 amendments to section 189.
Whether uncontradicted evidence in the record may foreclose that
possibility is a determination that the resentencing court must
make in the first instance. We therefore reverse the court’s order
and remand the matter for further proceedings.
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DISPOSITION
We reverse the resentencing court’s order denying LeBlue’s
petition for resentencing under Penal Code section 1172.6, and
remand for further proceedings.
NOT TO BE PUBLISHED.
MOOR, J.
WE CONCUR:
BAKER, Acting, P. J.
DAVIS, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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