People v. Shepherd CA3

Filed 11/16/22 P. v. Shepherd CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094300

Plaintiff and Respondent, (Super. Ct. No. 08F04840)

v.

SHAWN SHEPHERD,

Defendant and Appellant.

Over a decade ago, a jury found defendant guilty of, among other things, second degree murder. The trial court sentenced defendant to 15 years to life in state prison. In 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate Bill 1437), which amended the rule on murder and allowed those convicted of murder under the former law to seek retroactive relief. Defendant filed a petition for resentencing. Applying a sufficiency of the evidence standard at the evidentiary hearing, the trial court denied the petition.

1

On appeal, defendant raises two claims. First, he argues the trial court erred in applying a sufficiency of the evidence standard in denying his petition, and the People agree. Second, he asks us to disqualify the trial judge on remand, arguing the trial judge’s order created an appearance of bias. We agree with the parties on defendant’s first contention and remand the case to the trial court for a new evidentiary hearing. However, we find no appearance of bias and decline to disqualify the trial judge on remand. I. BACKGROUND In 2010, a jury found defendant guilty of second degree murder, identity theft, and forgery. The trial court sentenced defendant to 15 years to life in state prison. After the enactment of Senate Bill 1437 in 2019, defendant petitioned for resentencing. Finding defendant made a prima facie case for relief, the trial court issued an order to show cause. In their motion to dismiss defendant’s petition, the People argued Senate Bill 1437 was unconstitutional on several grounds. The People also contended in their response to the trial court’s order to show cause that the court should review the petition for sufficiency of the evidence but acknowledged a split of authority among the appellate courts on this issue. But the People made no mention of their right to a jury trial in either brief. At the evidentiary hearing on April 2, 2021, the trial judge asked whether a beyond a reasonable doubt standard would deny the People’s right to a jury trial. The judge explained he noticed this issue when reading an opinion that “was not controlling authority,” and had yet to see the appellate courts or our Supreme Court address it. The People responded that “it could in certain circumstances” and agreed with the court that the denial “would be unconstitutional.” Defendant’s trial counsel concurred, stating the judge was “absolutely correct that [the beyond a reasonable doubt standard] would deny the People sort of a right to a jury trial.” Thus, the judge stated he wanted to “make sure that there is sufficient record” before the appellate courts and our Supreme Court to show