Filed 4/19/23 P. v. Shires CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
----
THE PEOPLE, C097077
Plaintiff and Respondent, (Super. Ct. No. NCR76833)
v.
DYLAN FRANKLIN SHIRES,
Defendant and Appellant.
In 2011, defendant Dylan Franklin Shires pleaded guilty to second degree murder,
admitted a gang enhancement, and admitted a firearm enhancement pursuant to Penal
Code section 12022.53, subdivisions (d) and (e)(1).1 In February 2019, defendant
petitioned for resentencing under section 1170.95.2 The trial court ultimately denied
1 Undesignated section references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to
section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the
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defendant’s petition in September 2022, finding him ineligible for relief because he was
the actual killer based on his admission that he had used a firearm and killed the victim.
In the alternative, the court found that defendant was a major participant in the crime and
acted with reckless disregard for human life.
On appeal, defendant challenges the trial court’s order, arguing (1) his admission
of the firearm enhancement did not preclude relief as a matter of law; and (2) the trial
court engaged in improper factfinding in concluding he was a major participant in the
crime and acted with reckless disregard for life. The People concede the error, and we
will reverse and remand the matter.
FACTUAL AND PROCEDURAL BACKGROUND
Given the nature of the issues presented in this appeal, a detailed recitation of the
facts underlying defendant’s convictions is unnecessary. It suffices to say that defendant
and three other masked men entered the victim’s home to steal marijuana. A struggle
ensued and the victim was killed by a single gunshot wound to the head. Defendant
pleaded guilty to second degree murder (§ 187, subd. (a)), admitted a gang enhancement
(§ 186.22, subd. (b)(1)(C)), and admitted that he, “as a principal[,] personally and
intentionally discharged a firearm . . . , which proximately caused great bodily injury and
death to [the victim]” within the meaning of section 12022.53, subdivisions (d) and
(e)(1)).3 The trial court sentenced defendant to state prison for an indeterminate term of
statute. Defendant filed his petition under former section 1170.95, but we will cite to the
current section number throughout this opinion.
3 Under subdivision (e)(1) of section 12022.53, the enhancements prescribed in
subdivisions (b) through (d) of that section are applicable to any person who is a principal
in the commission of the offense if both of the following requirements are pled and
proved: (1) the person violated section 186.22, subdivision (b); and (2) any principal in
the offense committed any act specified in subdivision (b), (c), or (d) of section 12022.53.
Thus, a firearm enhancement under section 12022.53, subdivision (e)(1) is dependent on
the validity of a gang finding under section 186.22.
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40 years to life, and we affirmed the judgment on appeal. (People v. Shires (Apr. 23,
2012, C068007) [nonpub. opn.].)
In February 2019, defendant filed a petition for resentencing pursuant to Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). He argued that an information
had been filed against him that allowed the prosecution to proceed under a theory of
felony murder or murder under a natural and probable consequences theory; that he
pleaded guilty to murder; and that he could not now be convicted of murder based on the
recent changes to sections 188 and 189.
In 2021, the trial court agreed with the People that Senate Bill 1437 was
unconstitutional and denied defendant’s petition. We disagreed on appeal, and the matter
was reversed and remanded. (People v. Shires (July 19, 2021, C089979) [nonpub. opn.].)
On remand, the People opposed defendant’s motion, arguing he was ineligible for
relief because he was a major participant in the murder who acted with reckless
indifference to human life, because he was the primary aggressor who helped organize
and plan the home invasion robbery, was armed with a shotgun, armed one of his
codefendants with brass knuckles, and beat the victim with the shotgun during the
struggle that resulted in the victim getting shot.
Defendant responded that the record of conviction did not establish that he was
ineligible for relief. Defendant further noted the prosecution’s theory in the underlying
case was based upon a theory of felony murder with aiding and abetting as an alternative
theory of guilt, and there was evidence suggesting a codefendant was the actual killer.
Defendant further argued the evidence was conflicting as to whether he was a major
participant who acted with reckless indifference to human life.
During the September 2022 hearing, the trial court denied defendant’s petition,
reasoning that defendant was ineligible for relief because he had admitted that he used a
shotgun which killed the victim, making him the actual killer. The trial court further held
that there was “no question” that defendant was an active participant in the crime and
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acted with reckless indifference to human life. The trial court noted defendant was armed
with the intent to commit an armed robbery and burglary, had armed a codefendant, and
was aware another codefendant had a pistol. Defendant also actively participated in the
attack on the victim that resulted in the shooting. In addition, the trial court noted that
home invasion robberies have a high probability of death, especially since many
homeowners are armed for self-protection.
DISCUSSION
A. Legal background
Senate Bill 1437, which became effective on January 1, 2019, “amend[ed] 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(f).)
Section 188, which defines malice, now provides in part: “Except 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.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.)
Section 189, subdivision (e) now limits the circumstances under which a person may be
convicted of felony murder: “A participant in the perpetration or attempted perpetration
of a felony listed in subdivision (a) [defining first degree murder] in which a death occurs
is liable for murder only if one of the following is proven: [¶] (1) The person was the
actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill,
aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the
actual killer in the commission of murder in the first degree. [¶] (3) The person was a
major participant in the underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.” (Stats. 2018, ch. 1015, § 3.)
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Senate Bill 1437 also added section 1172.6, which allows those convicted of
attempted murder under the natural and probable consequences theory to petition the trial
court to vacate the conviction and resentence the defendant. (§ 1172.6, subd. (a).) “If the
petitioner makes a prima facie showing that the petitioner is entitled to relief, the court
shall issue an order to show cause.” (§ 1172.6, subd. (c).)
The prima facie inquiry under section 1172.6 subdivision (c) is “limited.” (People
v. Lewis (2021) 11 Cal.5th 952, 971.) The 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.” ’ ” (Ibid.) Although the
court may rely on the record of conviction (including a prior appellate court opinion) in
determining whether defendant has made a prima facie showing, the court “should not
engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’ ”
(Id. at p. 972.)
B Analysis
We agree with the parties that the trial court erred in denying defendant’s petition.
It was incorrect for the trial court to conclude that defendant’s admission to the gun
enhancement necessarily meant he was the actual killer. Instead, defendant merely
admitted that he, “as a principal[,] personally and intentionally discharged a firearm . . . ,
which proximately caused great bodily injury and death to [the victim]” pursuant to
section 12022.53, subdivisions (d) and (e)(1)). This language shows that defendant
admitted to personally discharging a firearm that proximately caused death as a
coprincipal, and not as the actual killer. (People v. Offley (2020) 48 Cal.App.5th 588,
592 [a true finding under section 12022.53, subdivision (e)(1) shows only that a principal
to the crime fired a weapon and caused the victim’s death, and does not necessarily
establish that a defendant was the actual killer].)
We also agree with the parties that the trial court engaged in improper factfinding
when it held defendant was ineligible for relief as a matter of law because he was a major
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participant who acted with reckless indifference to human life. In reaching this finding,
the trial court considered the facts that defendant was armed during the robbery, knew his
codefendants were armed, and engaged in a dangerous home invasion. Such weighing of
the facts is prohibited when the trial court is making its prima facie determination under
section 1172.6, subdivision (c). (People v. Lewis, supra, 11 Cal.5th at p. 972 [the court
“should not engage in ‘factfinding involving the weighing of evidence or the exercise of
discretion’ ”].) (Id. at p. 972.) Given that nothing in the record of conviction establishes
as a matter of law that defendant is ineligible for relief, we must reverse the order and
remand the matter for further proceedings.
DISPOSITION
The trial court’s order denying defendant’s petition is reversed. The matter is
remanded with directions to issue an order to show cause and conduct further
proceedings consistent with section 1172.6.
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
RENNER , J.
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