People v. Chapman CA1/4

Filed 4/28/21 P. v. Chapman CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A160645

v. (Solano County KELVIN CHAPMAN, Super. Ct. No. FC178423) Defendant and Appellant.

MEMORANDUM OPINION1 Defendant Kelvin Chapman appeals an order denying his petition for resentencing pursuant to Penal Code section 1170.95.2 His counsel has filed an opening brief raising no issues and asking this court for an independent review of the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Defendant has been apprised of his right personally to file a supplemental brief, but he has not done so. As pertinent here, defendant was convicted of second degree murder in 2000. The jury found true an allegation that defendant intentionally and

We resolve this case by a memorandum opinion pursuant to 1

California Standards of Judicial Administration, section 8.1.

2 All statutory references are to the Penal Code.

1

personally discharged a firearm in the commission of the murder, causing death. (Former §§ 12022.5, subd. (a)(1) & 12022.53, subd. (d).) On September 28, 2001, a different panel of this division affirmed the judgment. (People v. Chapman (Sept. 28, 2001, A092462) [nonpub. opn.] (Chapman I).) The opinion in Chapman I explained that defendant conceded he killed the victim by firing two shots into the victim’s chest, and that his principal defense was reasonable self-defense. In 2018, the Legislature enacted Senate Bill 1437, effective January 1, 2019. (Stats. 2018, ch. 1015.) In an uncodified section, the Legislature declared the law was “necessary to amend 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.” (Id., § 1, subd. (f).) To further this end, the Legislature amended section 188 to provide that “[m]alice shall not be imputed to a person based solely on his or her participation in a crime” (§ 188, subd. (a)(3)) and amended section 189 to provide that a participant in the perpetration or attempted perpetration of specified felonies is liable for murder only if the person was the actual killer; the person was not the actual killer but, with the intent to kill, aided or abetted the actual killer in a first degree murder; or the person was a major participant in the underlying felony and acted with reckless indifference to human life (§ 189, subd. (e)). Section 1170.95 authorizes “[a] person convicted of felony murder or murder under a natural and probable consequences theory” to file a petition to have the murder conviction vacated and to be sentenced on the remaining counts under certain conditions, including that the person could not be