Filed 4/11/22 P. v. Shaw CA2/7
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B306212
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA054450)
v.
IRVIN RANDOLPH SHAW,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa Mangay Chung, Judge. Reversed with
directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Daniel C. Chang and
Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and
Respondent.
_____________________________
INTRODUCTION
Irvin Randolph Shaw appeals from the superior court’s
order denying his petition under Penal Code section 1170.95.1 In
our prior opinion we affirmed the superior court’s ruling, after
which Shaw successfully petitioned for review by the Supreme
Court. The Supreme Court transferred the case to us with
directions to vacate our prior opinion and reconsider our decision
in light of Senate Bill No. 775 (2020-2021 Reg. Sess.) (Stats. 2021,
ch. 551, § 2) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
The People now concede, and we agree, the superior court erred
in summarily denying Shaw’s petition without appointing counsel
and receiving briefing. Because we also agree with Shaw the
error was not harmless, we vacate our prior opinion, reverse the
superior court’s order denying Shaw’s petition, and direct the
trial court to appoint counsel for Shaw, issue an order to show
cause, and conduct further proceedings under section 1170.95,
subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Shaw on Two Counts of Attempted
Murder, and We Affirm
In March 2010 Irvin Shaw drove his SUV in front of a
driveway and stopped, blocking a car occupied by several people
who were saying goodbye to other people in the driveway. From
the SUV’s passenger seat, Shaw’s brother Emanuel fired multiple
shots at the car with a handgun, after which Shaw drove away.
1 Undesignated statutory references are to the Penal Code.
2
At least one person in the car was wounded, but no one was
killed, and Shaw and Emanuel were arrested.
Among other charges against the brothers, in connection
with the driveway shooting the People charged both brothers
with four counts of attempted willful, deliberate, and
premeditated murder (§§ 664, 187, subd. (a)) and one count of
discharging a firearm at an occupied motor vehicle (§ 246). For
these counts the People alleged, among other things, Emanuel
personally and intentionally discharged a firearm causing great
bodily injury, within the meaning of section 12022.53,
subdivision (d).
The brothers were tried together, and a jury convicted both
on two counts of attempted willful, deliberate, and premeditated
murder and the count of shooting at an occupied motor vehicle.
The jury also found, as alleged for these counts, Emanuel
personally discharged a firearm.
On the attempted murder counts the trial court sentenced
Shaw to two consecutive terms of life in prison. The court
sentenced Shaw to additional terms for other offenses the jury
found he committed. We affirmed the judgment. (People v.
Shaw, et al. (Nov. 18, 2013, B239817) [nonpub. opn.].)
B. The Superior Court Denies a Petition by Shaw Under
Section 1170.95, and We Affirm
In 2019 Shaw filed a petition for resentencing under
section 1170.95 and asked the superior court to appoint counsel
to represent him. Without appointing counsel, the court
summarily denied the petition. The court found Shaw failed to
make a prima facie showing he was entitled to relief under
section 1170.95 because, at the time, the statute provided relief
only to defendants convicted of first or second degree murder, not
attempted murder.
3
Shaw filed this appeal, arguing the superior court erred in
summarily denying his petition and not appointing counsel
because section 1170.95 applies to convictions for attempted
murder. He also argued that the court’s failure to appoint
counsel violated his constitutional rights to due process and
assistance of counsel and that the summary denial of his petition
violated his procedural due process rights.
We affirmed the superior court’s order denying Shaw’s
petition. (People v. Shaw (May 13, 2021, B306212) [nonpub.
opn.].) We held Shaw failed to make the prima facie showing
required by section 1170.95 because the statute did not apply to
convictions for attempted murder. Therefore, we concluded, the
superior court did not err in summarily denying his petition or in
not appointing counsel. We also concluded the superior court did
not violate Shaw’s rights to due process, assistance of counsel, or
procedural due process.
C. The Supreme Court Grants Review and Transfers the
Cause
The Supreme Court granted Shaw’s petition for review and
later transferred the cause to us with directions to vacate our
decision and reconsider Shaw’s appeal in light of amendments to
section 1170.95 by Senate Bill No. 775, effective January 1, 2022,
and in light of Lewis, supra, 11 Cal.5th 952. Both Shaw and the
People submitted supplemental briefing.
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DISCUSSION
A. Senate Bill No. 1437, Senate Bill No. 775, and the
Section 1170.95 Petition Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015, § 4) “substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder [citation] and significantly narrowing the felony-
murder exception to the malice requirement for murder.” (People
v. Mancilla (2021) 67 Cal.App.5th 854, 862; see §§ 188, subd.
(a)(3), 189, subd. (e).) Regarding the natural and probable
consequences doctrine, the Legislature added section 188,
subdivision (a)(3), which provides: “Except [for felony-murder
liability] 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.” (See People v.
Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile); Mancilla, at
p. 862.)
Senate Bill No. 1437 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 now
be convicted of murder because of Senate Bill No. 1437’s changes
to the definitions of the crime. (See Lewis, supra, 11 Cal.5th at
p. 957; Gentile, supra, 10 Cal.5th at p. 843.) As amended by
Senate Bill No. 775, effective January 1, 2022, these changes to
the law now apply also to attempted murder and voluntary
manslaughter. (See § 1170.95, subds. (a), (g).)
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As the Supreme Court clarified in Lewis, supra, 11 Cal.5th
at pages 962-963, and amendments by Senate Bill No. 775 make
explicit, if a section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief, the court must appoint counsel to
represent the petitioner if requested. (§ 1170.95, subds. (b)(1)(A),
(b)(3).) The prosecutor must then file a response to the petition,
to which the petitioner may file a reply, and after which the court
must hold a hearing to determine whether the petitioner has
made a prima facie showing that he or she is entitled to relief.
(§ 1170.95, subd. (c).)
The prima facie inquiry under section 1170.95,
subdivision (c), is “limited.” (Lewis, supra, 11 Cal.5th at p. 971.)
“‘“[T]he 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.) “‘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 in making a
credibility determination adverse to the petitioner.”’” (Ibid.)
If the petitioner has made a prima facie showing under
section 1170.95, subdivision (c), the court must issue an order to
show cause and hold an evidentiary hearing to determine
whether to vacate the murder, attempted murder or
manslaughter conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At this hearing the
prosecutor has the burden of proving, “beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted
murder under California law as amended by the changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (d)(3).)
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B. The Superior Court Prejudicially Erred in Summarily
Denying Shaw’s Petition Without Appointing Counsel
The People now concede, and we agree, that Shaw’s petition
under section 1170.95 contained all the required information and
that therefore the superior court erred in summarily denying his
petition without appointing counsel and receiving briefing. (See
Lewis, supra, 11 Cal.5th at p. 963.) In Lewis the Supreme Court
held such an error by the superior court is subject to harmless
error analysis under the standard of People v. Watson (1956)
46 Cal.2d 818. (Lewis, at pp. 957-958, 973.) “More specifically, a
petitioner ‘whose petition is denied before an order to show cause
issues has the burden of showing “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.) The People argue the
court’s error here was harmless because the record of conviction
establishes Shaw is ineligible for relief as a matter of law. (See
People v. Farfan (2021) 71 Cal.App.5th 942, 956 [error in failing
to appoint counsel and receive briefing on a section 1170.95
petition was harmless because the record of conviction
established petitioner was ineligible for relief as a matter of
law].) We agree with Shaw the error was not harmless.
In his petition Shaw alleged he was eligible for relief under
section 1170.95 because he was convicted of attempted murder
under the natural and probable consequences doctrine and could
not now be convicted of that crime because of the changes to
sections 188 and 189. Had the superior court appointed counsel,
received briefing, and proceeded in proper fashion to the initial
inquiry under section 1170.95, subdivision (c), the court would
have had to take Shaw’s allegations as true in determining
whether to issue an order to show cause and hold an evidentiary
hearing, unless the record of conviction refuted those allegations.
7
(See Lewis, supra, 11 Cal.5th at p. 971.) Shaw argues the record
of conviction in fact supported his allegations because it shows
the court instructed the jury on the natural and probable
consequences doctrine as a basis for attempted murder liability.
Here’s what the record of conviction discloses: The trial
court instructed on general principles of aiding and abetting with
CALCRIM No. 400: “A person may be guilty of a crime in two
ways. One, he may have directly committed the crime. I will call
that person the perpetrator. Two, he may have aided and abetted
a perpetrator who directly committed the crime. A person is
guilty of a crime whether he committed it personally or aided and
abetted the perpetrator who committed it. Under some specific
circumstances, if the evidence establishes aiding and abetting of
one crime, a person may also be found guilty of other crimes that
occurred during the commission of the first crime.”
After instructing the jury on the elements of aiding and
abetting an intended crime (CALCRIM No. 401), the trial court
instructed on the natural and probable consequences doctrine
with CALCRIM No. 403: “Before you may decide whether a
defendant is guilty of attempted murder, you must decide
whether he is guilty of shooting at an occupied motor vehicle
and/or assault with a firearm. To prove that a defendant is guilty
of attempted murder, the People must prove that, one, the
defendant is guilty of shooting at an occupied motor vehicle and
[sic] assault with a firearm; two, during the commission of
shooting at an occupied motor vehicle and/or assault with a
firearm, a coparticipant in that shooting at [an] occupied motor
vehicle and/or assault with a firearm committed the crime of
attempted murder; and, three, under all of the circumstances, a
reasonable person in the defendant’s position would have known
that the commission of the attempted murder was a natural and
probable consequence of the commission of the shooting at [an]
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occupied motor vehicle and/or assault with a firearm. A
coparticipant in a crime is the perpetrator or anyone who aided
and abetted the perpetrator. . . . The People are alleging that the
defendant originally intended to aid and abet shooting at an
occupied motor vehicle and/or assault with a firearm. If you
decide that the defendant aided and abetted one of these crimes
and that attempted murder was a natural and probable
consequence of that crime, the defendant is guilty of attempted
murder.”
The People acknowledge that the trial court instructed on
the natural and probable consequences doctrine and that, under
current law, the doctrine is no longer a valid basis for Shaw’s
attempted murder convictions. They argue Shaw is nevertheless
ineligible for relief as a matter of law because the jury’s finding
the attempted murders were “willful, deliberate, and
premeditated shows that it concluded [Shaw] acted with malice,”
i.e., with “the mental state required for murder and attempted
murder under current law.” According to the People, the court’s
instruction on deliberation and premeditation, using CALCRIM
No. 601, precluded the jury from convicting Shaw “of willful,
deliberate, and premeditated attempted murder unless it found
he personally acted with malice” and from finding he
“premeditated based on the mental state of his codefendant.” But
under the instructions that’s not true.
On attempted murder, the trial court instructed: “The
defendants are charged in counts one through four with
attempted murder. To prove that the defendant is guilty of
attempted murder, the people must prove that, one, the
defendant took at least one direct but ineffective step toward
9
killing another person and, two, the defendant intended to kill
that person.”2
Regarding deliberation and premeditation, the court
instructed: “If you find the defendants guilty of attempted
murder under counts one through four, you must then decide
whether the People have proved the additional allegation that the
attempted murder was done willfully and with deliberation and
premeditation [italics added]. The defendants acted willfully if
they intended to kill when they acted. The defendants
deliberated if they carefully weighed the considerations for and
against their choice and, knowing the consequences, decided to
kill. The defendants premeditated if they decided to kill before
acting.”
Presumably, the People mean to suggest the latter
instruction shows the jury found Shaw personally acted with
malice because it shows the jury found he personally intended to
kill when he acted. (See People v. Gonzalez (2012) 54 Cal.4th
643, 653 [“Express malice is an intent to kill.”].) But the
instruction did not require the jury to consider whether Shaw,
personally, acted willfully and with deliberation and
premeditation. Rather, the instruction told jurors to decide
whether the People had proven “the attempted murder was done
willfully and with deliberation and premeditation” (italics added).
The rest of the instruction referred to “[t]he defendants,” in the
plural, without directing the jury to consider either individual
defendant’s state of mind. It is possible, as the People suggest,
some jurors would have understood this use of “defendants” to
require them to determine whether both defendants acted with
an intent to kill. But particularly given that the instruction’s
2 The People do not argue this instruction establishes the
jury found Shaw, personally, intended to kill.
10
first sentence directed jurors to consider only whether the
crime—without regard to either defendant—“was done” willfully
and with deliberation and premeditation, use of “defendants” in
the remaining sentences reasonably allowed, if not invited, jurors
to consider the defendants collectively in determining whether
the requisite mental state was present. Thus, contrary to the
People’s assertion, the instruction did not prohibit the jury from
finding Emanuel, in committing the attempted murder, acted
willfully and with deliberation and premeditation and then
imputing that mental state to Shaw.
In fact, there is some indication in the record the jury did
exactly that. During deliberations, the jury submitted a written
question to the court: “If Irvin Shaw became aware of the
shooting after the fact and drove away and did not call the
police[,] is that aiding and abetting an attempted murder[?]” If
the jury believed Shaw, in committing attempted murder, acted
willfully and with deliberation and premeditation, it is hard to
see why the jury would ask a question that assumed Shaw
learned of the shooting only after it occurred.
Nor did the prosecutor, in closing argument, suggest the
jurors had to determine whether Shaw, personally, acted willfully
and with deliberation and premeditation in committing
attempted murder. To the contrary, echoing the passive
construction in the first sentence of the instruction on
deliberation and premeditation, the prosecutor reminded jurors
that “[i]t is alleged that each count of attempted murder was
willful, deliberate, and premeditated” and that they were
required to find whether “‘the attempted murder was willful,
deliberate, and premeditated.’”
To summarize, then: The instruction on the natural and
probable consequences doctrine permitted the jury to find that
Shaw aided and abetted the crime of shooting at an occupied
11
vehicle or assault with a firearm (for which crime Emanuel was
the perpetrator), that attempted murder was a natural and
probable consequence of that crime, and that therefore Shaw was
guilty of attempted murder. The instruction on deliberation and
premeditation permitted jurors to find the attempted murder
“was done” by Emanuel willfully and with deliberation and
premeditation and to impute the malice of that mental state to
Shaw. Thus, the jury’s finding Shaw’s attempted murders were
willful, deliberate, and premeditated does not establish he acted
with malice and is therefore ineligible for relief under
section 1170.95 as a matter of law. Therefore, the superior
court’s error was not harmless.
DISPOSITION
The superior court’s order denying Shaw’s petition under
section 1170.95 is reversed. The superior court is to vacate its
order denying the petition, appoint counsel for Shaw, issue an
order to show cause, and conduct further proceedings in
accordance with section 1170.95, subdivision (d).
SEGAL, J.
We concur:
PERLUSS, P. J. FEUER, J.
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