Filed 1/31/22 P. v. Lipsey CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B308671
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA340280)
v.
CHRISTOPHER LIPSEY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark S. Arnold, Judge. Affirmed.
Jonathan E. Demson, 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, Assistant
Attorney General, Idan Irvi and Analee J. Brodie, Deputy
Attorneys General, for Plaintiff and Respondent.
_______________________
In 2009, Christopher Lipsey was convicted of attempted
murder with true findings on several gang, firearm, and prior
conviction enhancements. On July 13, 2020, Lipsey filed a
petition for resentencing pursuant to Senate Bill No. 1437 and
Penal Code1 section 1170.95. After appointing counsel, the trial
court denied the petition, finding Lipsey ineligible for relief under
Senate Bill No. 1437 because (1) he was convicted of attempted
murder, not murder; (2) the jury was not instructed on the
natural and probable consequences doctrine as the basis for the
attempted murder conviction; (3) appellant was the shooter. We
affirm.
A. Statement of Facts
The statement of facts is taken from this court’s opinion
affirming appellant’s conviction. (People v. Lipsey (Dec. 2, 2010,
B216787) [nonpub. opn.].) During a confrontation with rival gang
members outside a market, appellant pulled a gun from his
waistband and fired a single gunshot, wounding the victim. The
shooting was caught on the market’s surveillance videos. Upon
his arrest, appellant admitted to police that he had “socked” the
victim. He said the victim then pulled out a gun which appellant
grabbed and used to shoot the victim. The victim later identified
appellant as the shooter from a photospread, although at the
preliminary hearing he claimed he was forced to do so or face
revocation of his own parole. (Ibid.)
At trial, the People argued appellant was the actual killer.
Appellant argued his confession was false; he acted in self-
defense; and the shooting was, at most, an assault with a deadly
weapon because he did not have the intent to kill. The jury found
1 Undesignated statutory references are to the Penal Code.
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appellant guilty of attempted murder and that he personally
discharged the firearm, causing great bodily injury to the victim.
(People v. Lipsey, supra, B216787.) Appellant was eventually
sentenced to 47 years in state prison. (Ibid.)
B. The Petition for Resentencing
In 2018, the Legislature passed Senate Bill No. 1437 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).)
Senate Bill No. 1437 amended section 188 to require that a
principal “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).)
Senate Bill No. 1437 also added section 1170.95, which sets
forth the procedure by which a “person convicted of felony murder
or murder under a natural and probable consequences theory
may file a petition with the court that sentenced the petitioner to
have the petitioner’s murder conviction vacated and to be
resentenced on any remaining counts.” (§ 1170.95, subd. (a).)
Pursuant to section 1170.95, an offender must file a petition
(along with a declaration) in the sentencing court averring that:
“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of first
degree or second degree murder following a trial or accepted a
plea offer in lieu of a trial at which the petitioner could be
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convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subds. (a)(1)–(3); see also § 1170.95,
subd. (b)(1)(A).)
Once a complete petition is filed, the court is authorized to
appoint counsel for the petitioner upon request. The court
determines whether “the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section. . . . 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.” (§ 1170.95, subd. (c).) In making this assessment, the
trial court “should accept the assertions in the petition as true
unless facts in the record conclusively refute them as a matter of
law.” (People v. Drayton (2020) 47 Cal.App.5th 965, 968
(Drayton).) The court’s authority to summarily deny a petition is
thus limited to “readily ascertainable facts” taken from the record
of conviction, rather than factfinding involving the weighing of
evidence or the exercise of discretion. (Id. at p. 980.)
The opinion affirming a petitioner’s conviction is part of the
record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 972.)
After the court issues an order to show cause, an
evidentiary hearing is held to determine whether to vacate the
murder conviction, recall the sentence, and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) At
the hearing, “the burden of proof shall be on the prosecution to
prove, beyond a reasonable doubt, that the petitioner is ineligible
for resentencing. If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and
enhancements attached to the conviction, shall be vacated and
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the petitioner shall be resentenced on the remaining charges.
The prosecutor and the petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens.” (Id., subd. (d)(3).)
C. The Trial Court’s Denial of the Petition
The trial court denied the petition on three grounds. First,
the trial court found that section 1170.95 relief is available to
petitioners convicted of murder, not attempted murder. After
that ruling, the California legislature passed Senate Bill No. 775,
which expressly extends section 1170.95 relief to individuals
convicted of attempted murder under the natural and probable
consequences doctrine. (Sen. Bill No. 775 (2020–2021 Reg. Sess.)
§ 2, amending § 1170.95, subd. (a), eff. Jan. 1, 2022.) We agree
with both parties that appellant’s conviction for attempted
murder, in and of itself, does not make him ineligible for relief
under newly amended section 1170.95.
Nevertheless, appellant remains ineligible for relief.
Appellant was not convicted of attempted murder under the
natural and probable consequences doctrine. That doctrine
imputes vicarious liability for reasonable foreseeable
consequences of offenses committed by the person the accused
aids or abets. (People v. Prettyman (1996) 14 Cal.4th 248, 261.)
Here it is undisputed that appellant was prosecuted as the actual
shooter, not under any theory of aiding and abetting, and the jury
found true the allegation that he personally discharged a firearm
causing great bodily injury to the victim. The trial court did not
err in finding appellant ineligible for relief.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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