People v. Shaw CA2/7

Filed 5/13/21 P. v. Shaw CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE, B306212

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA054450) v.

IRVIN RANDOLPH SHAW,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lisa Mangay Chung, Judge. Affirmed. Jonathan E. Demson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Daniel C. Chang and Peggy Z. Huang, Deputy Attorneys General, for Plaintiff and Respondent.

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In March 2012 the trial court sentenced Irvin Randolph Shaw to, among other prison terms for other crimes not relevant to this appeal, consecutive life terms for convictions on two counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 187, subd. (a), 664).1 In 2019 Shaw filed a petition for resentencing under section 1170.95 and asked the court to appoint counsel to represent him. The superior court summarily denied the petition, without granting Shaw’s request for counsel, finding he failed to make a prima facie showing he was entitled to relief under section 1170.95 because he was not convicted of first or second degree murder. Shaw has timely appealed. Shaw contends the superior court erred in summarily denying his petition and not appointing counsel because section 1170.95 applies to convictions for attempted murder. He also contends that the court’s failure to appoint counsel violated his constitutional rights to due process and assistance of counsel and that the summary denial of his petition violated his procedural due process rights. These contentions lack merit. Section 1170.95 authorizes a “person convicted of felony murder or murder under a natural and probable consequences theory” to petition the sentencing court to vacate the conviction and to resentence the person on any remaining counts if the petitioner could not have been convicted of murder because of changes to the definition of murder effected by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4). (See § 1170.95, subd. (a); People v. Gentile (2020) 10 Cal.5th 830, 842-843.) After an initial review to determine the facial sufficiency of the information in the petition (§ 1170.95, subd. (b)(2)), “[s]ection 1170.95, subdivision (c), requires the sentencing court to review the petition; determine if it makes a