Filed 5/3/22 P. v. Sheppard CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B314899
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA034259)
v.
LAMONT SHEPPARD,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Laura R. Walton, 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, Amanda V. Lopez and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In 1996, a jury convicted defendant and appellant Lamont
Sheppard of two counts of attempted murder (Pen. Code,
§§ 664/187, subd. (a)),1 one count of assault with a firearm (§ 245,
subd. (a)(2)), and one count of discharge of a firearm with gross
negligence (§ 246.3). As to the attempted murder counts, the jury
found true the allegations that the offenses were committed
willfully, deliberately, and with premeditation (§ 664, subd. (a)),
and that a principal was armed with a firearm (§ 12022, subd.
(a)(1)). The jury found not true the allegations that defendant
personally used a firearm or that he personally inflicted great
bodily injury. Defendant was sentenced to state prison for two
consecutive life terms with the possibility of parole, plus three
years four months. (People v. Sheppard (Jan. 14, 1999), B108626
[nonpub. opn.], at pp. 1–2.)
Defendant appealed, and on January 14, 1999, we affirmed
the judgment. (People v. Sheppard, supra, B108626, at p. 19.)
In 2015, defendant filed a request for resentencing
pursuant to Proposition 47. (People v. Sheppard (Oct. 31, 2016),
B270216 [nonpub. opn.], at p. 2.) The trial court denied his
resentencing request, and on October 31, 2016, we affirmed the
trial court’s order. (Id. at p. 5.)
In June 2021, defendant filed a petition for resentencing
pursuant to section 1170.95 and requested the appointment of
counsel. The trial court denied the petition without appointment
of counsel on the ground that section 1170.95 does not apply to
attempted murder convictions.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Defendant timely filed a notice of appeal.2 He argues that
because his petition falls squarely within the scope of Sen. Bill
775, we must reverse the trial court’s order and remand the
matter to the trial court for further proceedings pursuant to
section 1170.95, subdivision (c).
We are not convinced by defendant’s argument.
Accordingly, we affirm the order.
FACTUAL BACKGROUND
“[A] driveby shooting occurred on Cocoa Street in Compton
. . . on August 18, 1995. Two of the victims, Dion Winn and
Theodore Millender, were riding on a mountain bike when shots
rang out from a van that was driving by. . . . Both were severely
injured. . . . [Defendant], the driver whom Millender saw with a
gun, was a member of the rival Nutty Block Crip gang . . . . A
third victim . . . was in his bedroom when a chance bullet came
through his bedroom window and hit him in the left back.”
(People v. Sheppard, supra, B108626, at pp. 2–3.)
PROCEDURAL BACKGROUND
On June 11, 2021, defendant field a petition for
resentencing. The trial court summarily denied his petition,
without appointing counsel, on the ground that defendant was
ineligible for relief because he was convicted of attempted
murder, not murder.
2 Attached to defendant’s notice of appeal was another
petition for resentencing pursuant to Senate Bill No. 775 (Reg.
Sess. 2021-2022) (Sen. Bill 775), which amended section 1170.95
effective January 1, 2022. It does not appear that the trial court
acted on that petition, although the trial court’s order denying
defendant’s request for resentencing provides that it was denied
“again.”
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DISCUSSION
I. Relevant law
As is relevant to the issues raised in this appeal, in 2019,
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill 1437)
eliminated liability for murder under the natural and probable
consequences doctrine. (People v. Lewis (2021) 11 Cal.5th 952,
959.) It also added section 1170.95, which established a
procedure for defendants convicted of murder under the old law
to seek resentencing if they could not now be convicted of that
crime in light of the revisions to sections 188 and 189. Under
that procedure, “once a petitioner files a facially sufficient
petition requesting counsel, the superior court must appoint
counsel before performing any prima facie review under section
1170.95, subdivision (c).” (People v. Mancilla (2021) 67
Cal.App.5th 854, 864; see also People v. Lewis, supra, at p. 963.)
However, “a superior court’s failure to appoint counsel to
represent a petitioner when assessing whether he or she has
made a prima facie showing of entitlement to relief pursuant to
section 1170.95, subdivision (c), is state law error only,
reviewable for prejudice under the harmless error standard of
People v. Watson (1956) 46 Cal.2d 818. [Citation.]” (People v.
Mancilla, supra, 67 Cal.App.5th at p. 864.)
Sen. Bill 775, which amended section 1170.95, expanded
the scope of section 1170.95 petitions to include individuals
convicted of attempted murder under the natural and probable
consequences doctrine. Sen. Bill 775 became effective January 1,
2022, while defendant’s appeal from the trial court’s order
denying his section 1170.95 petition was pending.
Where the record of conviction shows that a petitioner was
not convicted under any theory of liability affected by Sen. Bill
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1437, he is ineligible for resentencing as a matter of law. (See
People v. Mancilla, supra, 67 Cal.App.5th at pp. 866–867.) That
limitation on eligibility did not change under Sen. Bill 775.
II. Analysis
Applying these legal principles, we conclude that the trial
court did not commit prejudicial error in denying defendant’s
section 1170.95 petition. At the time defendant filed his petition
for resentencing, the trial court correctly found that section
1170.95 did not apply to convictions for attempted murder. Since
then, the law has changed, and, as set forth above, section
1170.95 now covers convictions for attempted murder. Under the
recently amended statute, defendant was entitled to counsel at
the prima facie stage. (People v. Lewis, supra, 11 Cal.5th at
pp. 961–972.) But, the trial court’s failure to appoint counsel was
harmless; it was not reasonably probable that defendant would
have obtained a more favorable outcome if counsel had been
appointed. (Id. at pp. 972–974; People v. Mancilla, supra, 67
Cal.App.5th at p. 864.)
The record of conviction establishes that defendant is
ineligible for relief under section 1170.95 as a matter of law. The
jury convicted defendant of two counts of attempted murder as an
aider and abettor. The jury was not instructed on the natural
and probable consequences theory of aiding and abetting liability.
The only theory of attempted murder on which the jury was
instructed required malice aforethought by defendant. After all,
the jury was told pursuant to CALJIC No. 3.01 that an aider and
abettor is liable if he had “knowledge of the unlawful purpose of
the perpetrator,” had “the intent or purpose of committing,
encouraging, or facilitating the commission of the crime,” and “by
act or advice aids, promotes, encourages or instigates the
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commission of the crime.” The jury was also told pursuant to
CALJIC No. 8.66 that in order to convict, it had to find that
defendant “harbored express malice aforethought, namely, a
specific intent to kill.”
In light of these instructions, the jury could not have
convicted defendant of attempted murder unless it found that he
acted with malice, which is the mental state required under
current law. It follows that the revisions that Sen. Bill 775 made
to section 1170.95 do not compel reversal of the trial court’s
order.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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