People v. Shepheard CA5

Filed 3/3/23 P. v. Shepheard CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F084787 Plaintiff and Respondent, (Super. Ct. No. CF02671870) v.

JOHN ANDREW SHEPHEARD III, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Martin Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P. J., Poochigian, J. and DeSantos, J.

Defendant John Andrew Shepheard III contends he was denied his Sixth and Fourteenth Amendment rights under the United States Constitution when the trial court held a hearing and denied his petition to vacate and recall his sentence for murder without his participation. We have reviewed the issue raised by defendant, as well as procedural issues presented following the denial of defendant’s petition in the trial court, and conclude no constitutional rights have been violated and the trial court’s denial of defendant’s petition is supported by the law. The order denying defendant’s petition is affirmed. PROCEDURAL AND FACTUAL SUMMARY In January 2003, a jury found defendant guilty of murder in the first degree (Pen. Code,1 § 187, subd. (a)), and further found that when committing this murder, defendant “did personally and intentionally discharge a firearm which proximately caused great bodily injury or death” to the victim (§ 12022.53, subd. (d)). In May 2003, defendant received a sentence of 50 years to life for this conviction and the related enhancement. On April 11, 2022, defendant filed a petition, in propria persona, citing section 1172.62 and asked the trial court to vacate and recall his sentence for murder due to changes in how murder is defined under the Penal Code. Defendant further sought the appointment of counsel to represent him in the trial court on this petition. On May 31, 2022, the court appointed counsel to represent appellant. On the date of the first hearing on June 21, 2022, the prosecution submitted its opposition to appellant’s petition, with various exhibits attached. Because defendant was not in attendance, and defense counsel