People v. Shepard CA3

Filed 4/22/25 P. v. Shepard CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C101542

Plaintiff and Respondent, (Super. Ct. No. 05F04789)

v.

MALCOLM SHEPARD,

Defendant and Appellant.

Defendant Malcom Shepard appeals the trial court’s denial of his second petition for resentencing under Penal Code section 1172.6.1 Specifically, he disagrees with the

1 Effective June 30, 2022, the Legislature renumbered former section 1170.95 to become section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. Although defendant filed his petitions under former section 1170.95, we cite to the current section number throughout this opinion.

Undesignated statutory references are to the Penal Code.

1

trial court’s determination that issue preclusion prevented him from challenging the court’s previous determination that he was ineligible for relief as the actual killer. Defendant’s appellate counsel filed a brief asking this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Defendant has filed a supplemental brief arguing for an exception to issue preclusion and that the record of conviction does not establish his ineligibility for relief. We will affirm.

I. BACKGROUND A. Defendant’s Conviction by Jury On June 19, 2007, a jury found defendant guilty of first degree murder (§ 187, subd. (a)) and found true the allegations that the murder was committed during the commission or attempted commission of a robbery (§ 190.2, subd. (a)(17)(A)), that defendant intentionally and personally discharged a firearm causing death (§ 12022.53, subd. (d)), and that a principal in the crime was armed with a firearm (§ 12022, subd. (a)(1)). The trial court sentenced him to an aggregate prison term of life without the possibility of parole plus 25 years to life. We affirmed his conviction on appeal. (People v. Shepard (Sept. 10, 2009, C057177) [nonpub. opn.].) B. Defendant’s First Section 1172.6 Petition On March 3, 2021, defendant filed a form petition for resentencing under section 1172.6 (hereinafter defendant’s first petition). The People opposed defendant’s first petition arguing in pertinent part that he was ineligible for relief as the actual killer. Neither defendant’s first petition, nor his reply brief in support thereof averred that he was not the actual killer. Rather, defendant’s reply brief acknowledged he did “not necessarily fall within the scope” of section 1172.6 and asked the court to treat defendant’s first petition “as a petition for any and all possible relief under any and all