People v. Shorter CA3

Filed 2/10/22 P. v. Shorter CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C092368
Plaintiff and Respondent, (Super. Ct. No. 09F09113)
v.
SHANNON SHORTER,
Defendant and Appellant.
Defendant Shannon Shorter appeals from the trial court’s order denying his
petition for resentencing under Penal Code section 1170.95.1 Defendant contends the
trial court erred in relying on a special circumstance finding to conclude no prima facie
showing had been made. He further argues the trial court erred in relying on the record
1 Undesignated statutory references are to the Penal Code.
1
of conviction and our prior opinion in this matter in denying his petition. We conclude
there was no error and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
A. Defendant’s Case
A jury found defendant guilty of first degree murder (§ 187, subd. (a)), first degree
robbery (§§ 211 & 213, subd. (a)(1)(A)), kidnapping (§ 207, subd. (a)), torture (§ 206),
arson (§ 451, subd. (d)), and carjacking (§ 215). The jury also found true that defendant
committed the murder while he was engaged in a robbery. (§ 190.2, subd. (a)(17).) In
2013, the trial court sentenced defendant to life without the possibility of parole plus 11
years four months in state prison. On appeal, we reversed the arson conviction and
affirmed the judgment as modified. (People v. Shorter et al. (Sept. 7, 2016, C072977)
[nonpub. opn.].) On remand, the trial court resentenced defendant to life without the
possibility of parole plus 10 years eight months in state prison.
A detailed recitation of the underlying facts is set forth in our prior opinion. In
sum, defendant and two compatriots lured the victim to the home of one of the
compatriots under the pretext of a marijuana transaction, tied him up, and beat him. They
then drove the victim’s car to his home, tied up the victim’s wife, and stole marijuana
plants. They then took the victim to a nearby spot and shot and killed him. The next day,
the victim’s car was burned. (Shorter, supra, C072977.)
B. Defendant’s Petition for Resentencing
In January 2019, defendant (with the assistance of counsel) filed a petition for
resentencing under section 1170.95 and a supporting brief, including exhibits of the
information, abstract of judgment, and jury instructions given. The instructions included
CALCRIM No. 703 (Special Circumstances: Intent Requirement for Accomplice after
June 5, 1990—Felony Murder [§ 190.2, subd. (d)]), which told the jury that if it found
defendant was not the actual killer, in order to prove the special circumstance true:
“[T]he People must prove either that the defendant intended to kill, or the People must
2
prove all of the following: [¶] 1. The defendant’s participation in the crime began before
or during the killing; [¶] 2. The defendant was a major participant in the crime; [¶] AND
[¶] 3. When the defendant participated in the crime, he acted with reckless indifference to
human life.” In his petition, defendant argued that an information had been filed against
him that allowed the prosecution to proceed under a theory of felony murder, that he was
convicted of first degree murder under the felony-murder rule, and that he could not now
be convicted of first degree murder based on the recent changes to sections 188 and 189.
Citing People v. Banks (2015) 61 Cal.4th 788 and noting he did not personally kill the
victim, defendant argued the evidence was insufficient to establish he (1) was a major
participant in the killing and (2) acted with reckless indifference to human life. The
People filed briefs opposing defendant’s motion, arguing defendant was ineligible for
relief under section 1170.95 because he was convicted of special circumstance murder.
Defendant filed a reply, arguing he was not ineligible because his trial took place before
Banks and People v. Clark (2016) 63 Cal.4th 522, which “construed what it means to be a
‘major participant in the underlying felony and act with reckless indifference to human
life’ in a manner significantly different than how that term was construed when
[defendant] was convicted in 2012.”
In February 2020, the trial court denied defendant’s petition and declined to issue
an order to show cause, finding defendant had failed to show he fell within the provisions
of section 1170.95. The trial court reasoned that, in finding the robbery-murder special
circumstance to be true, the jury “necessarily found that [defendant] was either the actual
killer, acted with intent to kill, or was a major participant in the underlying crime who
acted with reckless indifference to human life. The jury was specifically instructed with
[CALCRIM No. 703] that it must make such a finding before finding true the [robbery-
murder special circumstance].” The trial court cited our recitation of the facts in Shorter,
and noted that sections 187 and 189 “still provide for first degree murder based on
robbery-murder, when the trier of fact has found that the defendant either was the actual
3
killer, intended to kill, or was a major participant in the robbery who acted with reckless
indifference to human life.”
DISCUSSION
A. Legal Background
Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on
January 1, 2019, 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
Section 188, which defines malice, now provides in part: “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime
shall act with malice aforethought. Malice shall not be imputed to a person based solely
on his or her participation in a crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e) now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] 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 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 Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
Senate Bill No. 1437 also added section 1170.95, which allows those “convicted
of felony murder or murder 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, attempted murder under the natural and probable consequences
4
doctrine, or manslaughter may file a petition with the court that sentenced the petitioner
to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts when all of the following conditions
apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony murder, murder 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, or attempted
murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was
convicted of murder, attempted murder, or manslaughter following a trial . . . . [¶]
(3) The petitioner could not presently be convicted of murder or attempted murder
because of changes to [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a), as amended by Stats. 2021, ch. 551, § 2.)
“Within 60 days after service of a petition that meets the requirements set forth in
subdivision (b), the prosecutor shall file and serve a response. The petitioner may file
and serve a reply within 30 days after the prosecutor’s response is served. These
deadlines shall be extended for good cause. After the parties have had an opportunity to
submit briefings, the court shall hold a hearing to determine whether the petitioner has
made a prima facie case for relief. If the petitioner makes a prima facie showing that the
petitioner is entitled to relief, the court shall issue an order to show cause.” (§ 1170.95,
subd. (c), as amended by Stats. 2021, ch. 551, § 2.)
Our Supreme Court recently clarified that section 1170.95, subdivision (c) requires
only a single prima facie showing and entitles the petitioner to the appointment of
counsel upon the filing of a facially sufficient petition. (People v. Lewis (2021)
11 Cal.5th 952 (Lewis).) Once the court has appointed counsel and received briefing
from the parties, it may rely on the record of conviction (including a prior appellate court
opinion) in determining whether that single prima facie showing has been made. (Id. at
pp. 971-972.)
5
The prima facie inquiry under section 1170.95 subdivision (c) is “limited.”
(Lewis, supra, 11 Cal.5th at p. 971.) The court “ ‘ “takes petitioner’s factual allegations
as true and makes a preliminary assessment regarding whether the petitioner would be
entitled to relief if his or her factual allegations were proved. If so, the court must issue
an order to show cause.” ’ ” (Ibid.; see also People v. Drayton (2020) 47 Cal.App.5th
965, 978.) “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.’ ” (Lewis, at p. 972; Drayton, at p. 980.)
Once the trial court issues an order to show cause, it must then conduct a hearing
pursuant to the procedures and burden of proof set out in section 1170.95, subdivision (d)
unless the parties waive the hearing or the petitioner’s entitlement to relief is established
as a matter of law by the record. (§ 1170.95, subd. (d)(2); Drayton, supra,
47 Cal.App.5th at pp. 980-981.)
B. Analysis
We turn first to defendant’s contention that it was error for the trial court to rely on
the record of conviction in reaching its decision, even though his own petition brief
included exhibits of the jury instructions, abstract of judgment, and information.
Defendant’s contentions are without merit, given our Supreme Court’s recent holding that
the trial court may consider the record of conviction in determining whether the petitioner
has made a prima facie showing that they fall within the provisions of section 1170.95.
(Lewis, supra, 11 Cal.5th at p. 971.)
We next consider defendant’s contention that the trial court erred in determining
he did not fall within the provisions of section 1170.95 given the jury’s special
circumstance finding. According to defendant, he established a prima facie case by
asserting in his petition that he neither personally killed the victim nor acted with an
intent that his two compatriots kill the victim, and therefore could not be convicted of
murder if he were tried today under the newly enacted law. Moreover, argues defendant,
6
his case was tried before our Supreme Court clarified the definitions of “major
participant” and “reckless indifference to human life” in Banks and Clark. Citing
People v. Harris (2021) 60 Cal.App.5th 939, review granted April 28, 2021, S267802,
defendant argues that, since the jury was not instructed with the guidance from these
cases, it cannot be determined as a matter of law that the factors were met. Defendant
further argues the trial court engaged in improper factfinding to reach its conclusions,
pointing to the trial court’s statement that the jury had “ample evidence to make the
finding as articulated in [Banks] and [Clark].” We disagree.
Despite defendant’s contentions, as our Supreme Court recently explained, Banks
and Clark merely clarified the already existing principles regarding aiding and abetting.
(In re Scoggins (2020) 9 Cal.5th 667, 674.) “The requirements for the felony-murder
special circumstance did not change as a part of Senate Bill No. 1437, and are identical to
the new requirements for felony murder following the enactment of Senate Bill No. 1437.
In both instances, the defendant must have either actually killed the victim [citations];
acted with the intent to kill in aiding, abetting, counseling, commanding, inducing,
soliciting, requesting, or assisting in the killing [citations]; or been a major participant in
the underlying felony and acted with reckless indifference to human life [citations]. By
finding a special circumstance allegation true, the jury makes precisely the same finding
it must make in order to convict a defendant of felony murder under the new law.
Because a defendant with a felony-murder special circumstance could still be convicted
of murder, he is ineligible as a matter of law to have his murder conviction vacated.”
(People v. Galvan (2020) 52 Cal.App.5th 1134, 1140-1141, review granted Oct. 14,
2020, S264284; see People v. Jones (2020) 56 Cal.App.5th 474, review granted Jan. 27,
2021, S265854; People v. Gomez (2020) 52 Cal.App.5th 1, review granted Oct. 14, 2020,
S264033; People v. Murillo (2020) 54 Cal.App.5th 160, review granted Nov. 18, 2020,
S264978; People v. Allison (2020) 55 Cal.App.5th 449, review den. Dec. 23, 2020.)
7
As such, the trial court was bound by the jury’s felony-murder special
circumstance finding, namely that the murder was committed during a robbery. (§ 190.2,
subd. (a)(17).) Because this finding had nothing to do with (1) the validity of the jury’s
finding or (2) the sufficiency of the evidence supporting the jury’s finding, we conclude
the trial court did not engage in improper factfinding when it determined defendant was
ineligible for relief.
We are aware that some appellate courts have come to the opposite conclusion
regarding whether a trial court is bound by a jury’s felony-murder special circumstance
finding, and the issue is currently pending in our Supreme Court. (See People v. Torres
(2020) 46 Cal.App.5th 1168, review granted June 24, 2020, S262011; People v. Law
(2020) 48 Cal.App.5th 811, review granted July 8, 2020, S262490; People v. Smith
(2020) 49 Cal.App.5th 85, review granted July 22, 2020, S262835; People v. York (2020)
54 Cal.App.5th 250, review granted Nov. 18, 2020, S264954; People v. Harris (2021)
60 Cal.App.5th 939, review granted Apr. 28, 2021, S267802.) We, however, are
persuaded by the reasoning in Galvan and cases reaching the same conclusions.
To the extent defendant wishes to challenge the felony-murder special
circumstance finding, his remedy is to pursue extraordinary relief by way of habeas
corpus. Because Banks and Clark merely clarified the kind of conduct proscribed by
statute, “a defendant whose conviction became final before that decision ‘is entitled to
post-conviction relief upon a showing that his [or her] conduct was not prohibited by the
statute’ as construed in the decision. [Citation.] ‘In such circumstances, it is settled that
finality for purposes of appeal is no bar to relief, and that habeas corpus or other
appropriate extraordinary remedy will lie to rectify the error.’ ” (In re Scoggins, supra,
9 Cal.5th at pp. 673-674.)
For all these reasons, we conclude the trial court did not err when it denied
defendant’s petition.
8
DISPOSITION
The trial court’s order denying defendant’s petition for resentencing is affirmed.
/s/
HOCH, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
DUARTE, J.
9