People v. Shipp CA2/7

Filed 7/19/21 P. v. Shipp CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B308414
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A020395)
v.
MICHAEL DAVID SHIPP,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, James D. Otto, Judge. Reversed and
remanded.
Christine M. Aros, 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 Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
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_____________________
Michael David Shipp, convicted of first degree murder in
1980 following a guilty plea, appeals the superior court’s order
denying his petition for resentencing under Penal Code
section 1170.951 based on the court’s finding Shipp could still be
convicted of murder notwithstanding the changes to accomplice
liability for murder effected by Senate Bill No. 1437 (2017-2018
Reg. Sess.) (Stats. 2018, ch. 1015) (Senate Bill 1437). Shipp
contends, and the Attorney General concedes, the superior court
erred by prematurely engaging in factfinding not permitted
before an order to show cause issues. We agree, reverse the order
denying Shipp’s petition and remand with directions to issue an
order to show cause and to conduct further proceedings in
accordance with section 1170.95, subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
1. Shipp’s Conviction
In the early morning of August 2, 1979 Shipp, then
16 years old, his older brother, Gerald Shipp, and Carlos Polk
robbed customers and employees of a Long Beach restaurant.
Gerald Shipp and Polk were armed with handguns. Shipp did
not have a weapon.
According to testimony from the preliminary hearing and
information in probation and police reports, during the robbery
Polk shot Carl Duggins, who had refused to give Polk his money.
Duggins died 12 days later. All three perpetrators took property
from the restaurant’s customers before and after the shooting.
Shipp, Gerald Shipp and Polk then kidnapped a female customer
1 Statutory references are to this code.
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and fled in her car. While in the car, Shipp participated in
robbing the woman of her cash and jewelry.
Shipp was charged in an information with murder (§ 187),
eight counts of robbery (§ 211) and kidnapping to commit robbery
(§ 209) with special allegations a principal had been armed with a
firearm during the crimes (§ 12022, subd. (a)). On March 11,
1980 Shipp pleaded guilty to first degree murder and was
sentenced to an indeterminate state prison term of 25 years to
life. The remaining counts and firearm enhancement allegations
were dismissed.
2. Shipp’s Petition for Resentencing
On February 4, 2019 Shipp, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
proceedings. Shipp checked several boxes on the printed form
petition establishing his eligibility for resentencing relief,
including the box stating he had pleaded guilty to first or second
degree murder because he believed he could have been convicted
of murder at trial pursuant to the felony-murder rule or the
natural and probable consequences doctrine and the box averring
he could not now be convicted of first or second degree murder
because of changes made to sections 188 and 189 by Senate Bill
1437.
The superior court appointed counsel for Shipp and ordered
the District Attorney to file a response to the petition. The
District Attorney’s initial response opposed the petition solely on
the ground that Senate Bill 1437 and section 1170.95, in
particular, were unconstitutional. Shipp’s counsel filed a
memorandum replying to the constitutional arguments. Several
months later the District Attorney filed a supplemental brief
3
acknowledging that Shipp had been convicted of first degree
murder based on the felony-murder rule, but arguing he was not
entitled to resentencing relief because, as reflected in the record
of conviction, he had been a major participant in the robberies
who acted with reckless indifference to human life. Shipp filed a
reply, contending he had established a prima facie case for relief.
The superior court scheduled a hearing on Shipp’s petition
but did not issue an order to show cause.2 Shipp was present
with his counsel at the hearing on August 14, 2020.
After listening to counsel’s arguments, the court rejected
the District Attorney’s constitutional challenge to Senate
Bill 1437 and denied the petition on its merits. The court stated:
“I’ve looked at this in light of the Banks factors[3] and applied the
Banks factors to determine [the merits]. Based on the record of
conviction, I found that the Banks factors overwhelmingly make
the defendant a major participant and showed he acted with
reckless indifference to human life. The petition is denied.”
The court’s minute order gave a more complete explanation
of the ruling, “Both sides agree that the defendant is not the
killer. [¶] The Petitioner’s counsel argues that the defendant did
2 On the initial hearing date, July 20, 2020, Shipp’s counsel
asked for a short continuance. The court inquired, “Are you
planning to present evidence? Is this an evidentiary hearing
where you’re going to submit something more than you have on
the record of conviction?” Counsel responded, “No, Your Honor.
It would just be argument.”
3 In People v. Banks (2015) 61 Cal.4th 788 the Supreme
Court identified factors that courts should consider in
determining whether a defendant was a “major participant”
within the meaning of the special circumstance statute for aiders
and abettors of felony murder (§ 190.2, subds. (a)(17), (d)).
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not assist in the killing, that the defendant did not act in
reckless, cruel [] indifference to human life. [¶] The People argue
that the defendant knowingly agreed and participated in the
robbery, that the defendant knew his co-defendants had guns and
carried the guns, that he stepped over moaning victims, that he
re-entered the bar and took a woman at gun point. In addition,
the People argue the defendant was a major participant in the
murder and robbery. [¶] The court finds that the defendant was
a major participant in the crime.”
Shipp filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly limited the felony-murder exception to
the malice requirement for murder. (See, e.g., People v.
Rodriguez (2020) 58 Cal.App.5th 227, 236, review granted
Mar. 10, 2021, S266652; People v. Bascomb (2020) 55 Cal.App.5th
1077, 1080.) It also authorized, through new section 1170.95, an
individual convicted of felony murder or murder based on the
natural and probable consequences doctrine to petition the
sentencing court to vacate the conviction and be resentenced on
any remaining counts if he or she could not have been convicted
of murder because of Senate Bill 1437’s changes to the definition
of the crime. (See Gentile, at p. 859.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
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subd. (b)(1)(A)), section 1170.95, subdivision (c), prescribes a
process for the court to determine whether to issue an order to
show cause and hold an evidentiary hearing to consider if the
murder conviction should be vacated and the petitioner
resentenced on any remaining counts: “The court shall review
the petition and determine if the petitioner has made a prima
facie showing that the petitioner falls within the provisions of
this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response . . . and the petitioner may file and
serve a reply . . . . If the petitioner makes a prima facie showing
that he or she is entitled to relief, the court shall issue an order to
show cause.”
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction and “can dismiss any petition filed by an individual
who was not actually convicted of first or second degree murder.”
(People v. Verdugo (2020) 44 Cal.App.5th 320, 330 (Verdugo),
review granted Mar. 18, 2020, S260493.) “The record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding Senate Bill 1437’s amendments to sections 188
and 189 (see § 1170.95, subd. (a)(3))—for example, a petitioner
who admitted being the actual killer as part of a guilty plea or
who was found to have personally and intentionally discharged a
firearm causing great bodily injury or death in a single victim
homicide within the meaning of section 12022.53,
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subdivision (d).” (Ibid.) As this portion of our decision in
Verdugo emphasized, for relief to be denied without the court
first issuing an order to show cause and conducting an
evidentiary hearing, the record of conviction must establish the
petitioner’s ineligibility as a matter of law. (See People v. Smith
(2020) 49 Cal.App.5th 85, 92, review granted July 22, 2020,
S262835 [“[i]f it is clear from the record of conviction that the
petitioner cannot establish eligibility as a matter of law, the trial
court may deny the petition”]; People v. Cornelius (2020)
44 Cal.App.5th 54, 58, review granted Mar. 18, 2020, S260410
[record must show defendant is “indisputably ineligible for
relief”].)
Once the section 1170.95, subdivision (c), prima facie
showings have been made, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing
the prosecution has the burden of proving beyond a reasonable
doubt that the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3); Rodriguez, supra, 58 Cal.App.5th at
p. 230, review granted; People v. Lopez (2020) 56 Cal.App.5th
936, 949, review granted Feb. 10, 2021, S265974; but see People
v. Duke (2020) 55 Cal.App.5th 113, 123, review granted Jan. 13,
2021, S265309.) The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
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2. The Superior Court Erred in Denying Shipp’s Petition
Without an Evidentiary Hearing
In 1980, when Shipp pleaded guilty, section 189 permitted
a conviction for felony murder by imputing malice to a
participant in an inherently dangerous felony that resulted in
homicide, even if the death was accidental. (See People v. Chun
(2009) 45 Cal.4th 1172, 1184.) As amended by Senate Bill 1437,
section 188, subdivision (a)(3), now prohibits imputing malice
based solely on an individual’s participation in a crime and
requires proof of malice to convict a principal of murder except
under the felony-murder rule as set forth in new section 189,
subdivision (e). Section 189, subdivision (e), in turn, limits the
felony-murder exception to the malice requirement to situations
in which the defendant was the actual killer, aided or abetted the
underlying serious felony with the intent to kill, or was a major
participant in the felony and acted with reckless indifference to
human life.
Shipp does not fall into either of the first two felony-murder
categories. It is undisputed that Polk, not Shipp, shot Duggins
during the robbery; and the District Attorney did not contend,
and the superior court did not find, that Shipp had acted during
the robbery with an intent to kill. As for the third category, as
the Attorney General has explained in his respondent’s brief, the
concepts of “major participant” and “reckless indifference” were
first introduced into the Penal Code a decade after Shipp pleaded
guilty. (See Raven v. Deukmejian (1990) 52 Cal.3d 336, 344
[explaining that, among other provisions, Proposition 115, the
Crime Victims Justice Reform Act, adopted by voters at the
June 5, 1990 Primary Election, expanded section 190.2, the
special circumstances statute, by specifying “a penalty of death or
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life imprisonment without parole for aiders and abettors of felony
murder who ‘with reckless indifference to human life and as a
major participant’ aid and abet in the commission of any felony
specified in Penal Code section 189 that results in death”].)
Those two required elements for a true finding on a felony-
murder special-circumstance allegation, clarified by the Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 and
People v. Clark (2016) 63 Cal.4th 522, and now incorporated into
section 189, subdivision (e)(3), were simply not part of the case
against Shipp. Nothing in the testimony at the preliminary
hearing, let alone in Shipp’s plea admissions, addressed them.
As the Attorney General acknowledges, although the
evidence that Shipp could still be convicted of murder under the
felony-murder rule ultimately may be strong, the limited record
of conviction does not establish as a matter of law he is ineligible
for resentencing as a major participant in the robberies who
acted with reckless indifference to human life. The superior
court’s ruling that Shipp could still be convicted of first degree
murder required the court to weigh the evidence, such as it was,
in light of Shipp’s guilty plea, and engage in factfinding, activities
not permitted under section 1170.95 prior to the issuance of an
order to show cause. (See, e.g., People v. Duchine (2021)
60 Cal.App.5th 798, 815 [“the time for weighing and balancing
and making findings on the ultimate issues arises at the
evidentiary hearing stage rather than the prima facie stage, at
least where the record is not dispositive on the factual issues”];
People v. Drayton, supra, 47 Cal.App.5th at p. 968 [“[T]he trial
court should accept the assertions in the petition as true unless
facts in the record conclusively refute them as a matter of
law. . . . In assessing the petitioner’s prima facie showing, the
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trial court should not weigh evidence or make credibility
determinations”].)
Accordingly, as both parties agree, the matter must be
remanded for the superior court to conduct an evidentiary
hearing in accordance with section 1170.95, subdivision (d).
DISPOSITION
The order denying Shipp’s section 1170.95 petition is
reversed. On remand the superior court is to issue an order to
show cause and to conduct further proceedings in accordance
with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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