Filed 9/29/22 P. v. Shelton CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A163937
v.
JOSEPH PERRY SHELTON, (Mendocino County Super.
Ct. No. SCUK-CRCR-1981-
Defendant and
74132)
Appellant.
In 1981, a jury convicted defendant Joseph Perry Shelton of
the first degree murder of Kevin Thorpe, the second degree
murder of Laura Craig, two counts of kidnapping, two counts of
theft, and two weapons charges. As to the murder of Thorpe, the
jury was given two verdict forms, and it returned the verdict form
finding Shelton guilty of willful, deliberate, and premeditated
murder, but not felony murder.
In 2015, 34 years after his trial, the Ninth Circuit granted
in part Shelton’s habeas petition, holding that the prosecutor had
violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) by
withholding impeachment evidence regarding co-participant
Norman Thomas, “the only witness who provided direct evidence
that Shelton premeditated and deliberated the murder of
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Thorpe.” (Shelton v. Marshall (9th Cir. 2015) 796 F.3d 1075,
1089, mod. 806 F.3d 1011 [amending only last sentence of earlier
opinion] (Shelton I).) Although the court overturned Shelton’s
first degree murder conviction because of the Brady violation, the
court did not disturb any of the other convictions, as it found
“extremely strong” supporting evidence aside from Thomas’s
testimony. (Shelton I, 796 F.3d at p. 1089.) The prosecution was
ordered to retry Shelton for the first degree murder of Thorpe or
“to take such other action as may be consistent with this opinion
and with federal and state law.” (Shelton I, 806 F.3d at p. 1011.)
After the Ninth Circuit decision, Shelton pleaded guilty to
second degree murder in exchange for the prosecution’s
agreement not to retry him for the first degree murder of Thorpe.
In 2017, Shelton was resentenced on that charge to a term of 15
years to life, concurrent to his sentence for the second degree
murder of Craig.
On February 20, 2019, defendant filed a form petition
pursuant to former Penal Code section 1170.95 1, alleging that he
had been convicted of murder pursuant to the felony-murder rule
or natural and probable consequences doctrine. After hearing
argument from counsel and reviewing significant briefing, the
trial court denied defendant’s petition in a lengthy order, finding
that defendant had failed to establish that he could not now be
1 Penal Code section 1170.95 (former section 1170.95) has
been amended and renumbered as section 1172.6. (Stats. 2022,
ch. 58, § 10, eff. June 30, 2022; see also Stats. 2021, ch. 551, § 2,
eff. Jan. 1, 2022.) All subsequent statutory references are to the
Penal Code.
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convicted of second degree murder as the crime is now defined
under sections 188 and 189, subdivision (e). As set forth in its
order, the court reviewed the entire trial record, excluded from its
consideration the testimony of Norman Thomas, and analyzed
the Supreme Court’s guidance in People v. Banks (2015)
61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522. Based
on the remaining evidence, including defendant’s trial testimony
and prior statements, the trial court found beyond a reasonable
doubt that defendant could be convicted of murder under the
current version of section 189, subdivision (e) because he was a
major participant in the underlying kidnappings who acted with
reckless indifference to human life with respect to both victim
Thorpe and victim Craig.
In this court, defendant’s counsel filed an opening brief
asking that we conduct an independent review of the record for
arguable issues—i.e., those that are not frivolous, as required by
People v. Wende (1979) 25 Cal.3d 436. Counsel also informed
defendant that he had the right to file a supplemental brief on his
own behalf, but defendant declined to do so.
As explained more fully below, we shall dismiss the appeal.
BACKGROUND
The Ninth Circuit recounted the facts of the “brutal
kidnapping and murder of Kevin Thorpe and Laura Craig in
1981” in some detail. (Shelton I, supra, 796 F.3d at pp. 1077–
1083.) As we noted in defendant’s earlier post-conviction appeal
in connection with a parole decision, “[t]he basic facts are
undisputed.” (People v. Shelton (Dec. 14, 2016, A147754)
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[nonpub. opn.] (Shelton II); Shelton I, supra, 796 F.3d at p. 1078
[“Most of the basic facts are undisputed.”].) Relying chiefly on
the account of the crimes in our earlier opinion and the Ninth
Circuit’s decision, we summarize the pertinent facts without
relying on any testimony from Norman Thomas.
“In January 1981, Thorpe and Craig stopped in Madeline,
California on their way to college. Shelton, along with [Norman]
Thomas and Benjamin Silva, spotted the couple at a gas station
and subsequently abducted them. They took Thorpe and Craig to
Shelton’s cabin outside of the town. Thorpe was chained to a
tree, and Craig was held inside the cabin. The day after the
abduction, Thorpe was shot to death with a machine gun.
Thomas dismembered Thorpe’s body, and he and Silva disposed
of it in a remote location. Craig was kept in the cabin for several
days, and was then shot twice along the side of the road.”
(Shelton II, supra, A147754.)
Both defendant and Norman Thomas testified at
defendant’s trial. (Shelton II, supra, A147754.) Defendant
admitted that the three men had discussed “kidnapping a girl” a
few weeks before the crimes. (Ibid.) Defendant also admitted
during law enforcement interviews that he was armed during the
initial kidnapping and may have been armed throughout the
entire period of the victims’ abduction. (Shelton I, supra,
796 F.3d at p. 1080 & fn.4.) “According to Shelton, he and Silva
together purchased a spotlight with a red cap, which they used to
simulate a police light to stop the victims’ vehicle. However,
[defendant] claimed the light was purchased for an unrelated
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prank.” (Shelton II, supra, A147754.) However, an investigator
testified that Shelton told him that “prior to the kidnapping,
‘there had been a conversation that if in fact [a] kidnapping were
to take place that they might have to kill the victims’ ” and that
“Silva and Shelton had purchased the red light in preparation for
committing a kidnapping.” (Shelton I, 796 F.3d at p. 1081.)
“After stopping the victims’ vehicle with the fake police light,
Silva and Thomas entered it, abducted the victims at gunpoint,
and drove off to Shelton’s cabin. Shelton followed the victims’ car
in a truck.” (Shelton II, supra, A147754.) When the group got to
Shelton’s property, “Silva told Craig and Thorpe to get on the
back of the truck, which Shelton then drove to the cabin.”
(Shelton I, 796 F.3d at p. 1079.)
Subsequently, Silva and either Thomas or Shelton chained
Thorpe to a tree near Shelton’s cabin. (Shelton II, supra,
A147754.) Silva and Thomas then left until the next morning.
(Shelton I, supra, 796 F.3d at p. 1079.) According to Shelton,
Silva then said “they needed to move Thorpe because he could be
seen from the road. Shelton walked Thorpe up a hill and waited.
Shelton said Silva surprised him when he returned with a
machine gun and emptied a clip (30 bullets) into Thorpe. Silva
fired half of another clip into Thorpe, then gave Shelton the gun
and told him to shoot Thorpe. Shelton fired the rest of the clip at
Thorpe.” (Shelton II, supra, A147754.) He told an investigator
that he recalled shooting Thorpe in the eye. At trial, “Shelton
claimed that if he had failed to comply, Silva would have killed
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him. He denied having prior knowledge of Silva’s plan to kill
Thorpe.” (Shelton II, supra, A147754.)
Shelton claimed that he had consensual sex with Craig,
whereas Silva and Thomas raped her. (Shelton II, supra,
A147754.) “After several days, Silva left the cabin with Craig
and Shelton, purportedly to take Craig to see the head of the
Hell’s Angels.” (Ibid.) Shelton testified that “Silva stopped along
the way to buy Craig a Pepsi and that Silva was very calm,
leading him to believe that he would not shoot her. Silva later
stopped the truck to change drivers but then suddenly shot Craig
as he rounded the vehicle.” (Shelton I, supra, 796 F.3d at
p. 1079.) Although Shelton told the jury he did not know Silva
intended to kill Craig when they left the cabin, a police
investigator testified Shelton told him that, when Craig left the
cabin, Shelton was “90 percent sure” she would be killed.
(Shelton II, supra, A147754.)
The prosecution also introduced into evidence several notes
that Shelton wrote to Thomas while the two were in jail after
Shelton learned Thomas was cooperating with the prosecution
and subsequent to Shelton’s inculpatory statements to the police.
(Shelton I, supra, 796 F.3d at p. 1081.) In one of the notes,
Shelton “said that Thomas should testify that Shelton received a
ride from an old cowboy after they saw the couple at the gas
station and was not seen again until the crimes were over.”
(Id. at p. 1081, fn. 5.)
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DISCUSSION
Shelton’s counsel’s brief correctly recognizes that recent
cases have held we are not required to conduct a Wende review on
a denial of a petition seeking postconviction relief pursuant to
section 1172.6. (People v. Cole (2020) 52 Cal.App.5th 1023, 1031–
1032, review granted October 14, 2020, S264278 (Cole); People v.
Figueras (2021) 61 Cal.App.5th 108, 111 [following Cole], review
granted May 12, 2021, S267870 (Figueras).) Counsel requests,
however, that we exercise our discretion to conduct an
independent review pursuant to People v. Gallo (2020) 57
Cal.App.5th 594, 599 and People v. Flores (2020) 54 Cal.App.5th
266, 269 both of which held that while a Court of Appeal is not
required to independently review the entire record on appeal
from the denial of a petition for resentencing, the court can and
should do so in the interests of justice.
We agree with Cole and Figueras, as well as with the
reasoning of People v. Freeman (2021) 61 Cal.App.5th 126, 133, in
which another panel of this Division declined to extend Wende
review to an order revoking a defendant’s post-release community
supervision because such an order is “not a direct appeal from a
judgment of conviction.” As Shelton has failed to file a
supplemental brief raising any issues for our review, we shall
dismiss the appeal. (Cole, supra, 52 Cal.App.5th at p. 1028 [court
may “dismiss appeal as abandoned” when counsel files a Wende
brief and defendant fails to file a supplemental brief].)
We briefly note, however, that the result would be no
different if we exercised our discretion to conduct an independent
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review of the denial of Shelton’s resentencing petition. (People v.
Flores, supra, 54 Cal.App.5th at p. 269.) There is ample record
support for the trial court’s determination that, under the factors
set forth in People v. Banks, supra, 61 Cal.4th at page 803 and
People v. Clark, supra, 63 Cal.4th at pages 618–622, Shelton was
a major participant in the kidnappings who acted with reckless
indifference to human life. Numerous facts—such as Shelton’s
discussions and preparations with Silva and Thomas prior to the
kidnappings (including his acknowledgement that the victims
might have to be killed); his use of firearms; his act of driving the
victims to his cabin after their abduction; his lack of effort to help
the victims escape when left alone with them overnight; his
shooting of Thorpe; and his failure to help Craig escape when
Silva left the car to get her a Pepsi, despite his being 90 percent
certain she would be killed—establish that the trial court
correctly determined that defendant was not entitled to
resentencing under section 1172.6.
DISPOSITION
The appeal is dismissed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
People v. Shelton (A163937)
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