People v. Shorter CA3

Filed 1/23/23 P. v. Shorter CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C092368

Plaintiff and Respondent, (Super. Ct. No. 09F09113)

v. OPINION ON TRANSFER

SHANNON SHORTER,

Defendant and Appellant.

In 2013, defendant Shannon Shorter was ordered to serve a life sentence after a jury found him guilty of murder and other offenses based on his participation in a robbery. The jury found true a felony-murder special-circumstance allegation (a murder during a robbery). After defendant’s conviction, our Supreme Court issued two decisions providing substantial guidance on factors that must be considered by a jury in felony-murder special-circumstance sentencing enhancements. (People v. Banks (2015) 61 Cal.4th 788; People v. Clark (2016) 63 Cal.4th 522.) Specifically, Banks clarified the factors that

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need to be considered in determining whether a defendant was a major participant in the underlying felony. (Banks, at pp. 797-804.) In Clark, the court clarified the factors that must be considered in determining whether a defendant acted with reckless indifference to human life. (Clark, at pp. 611-623.) In 2019, defendant filed a petition seeking to vacate his murder conviction and to be resentenced under Penal Code1 section 1172.6.2 The trial court summarily denied defendant’s petition, reasoning that the felony-murder special-circumstance finding rendered him ineligible for relief under section 1172.6 as a matter of law. In February 2022, we affirmed the trial court’s order, and our Supreme Court granted review in April 2022. In August 2022, our Supreme Court held that a pre-Banks/Clark felony-murder special-circumstance finding does not render a section 1172.6 petitioner ineligible for relief as a matter of law. (People v. Strong (2022) 13 Cal.5th 698 (Strong).) In November 2022, our Supreme Court transferred the matter to us, with directions to vacate our original decision and reconsider the matter in light of Strong. In supplemental briefing, the parties agree that, based on Strong, we must vacate the trial court’s order and remand the matter for further proceedings not inconsistent with Strong. We conclude we must vacate the trial court’s order denying the petition and remand the matter for further proceedings.