Filed 12/13/22 P. v. Shears CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLIE P. SHEARS

Defendant and Appellant.

 D078792

 (Super. Ct. No. SCD242689)

APPEAL from an order of the Superior Court of San Diego County, 

Michael T. Smyth, Judge. Reversed and remanded for further proceedings.

Jean Matulis, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. 

Sevidal, Lynne G. McGinnis and Susan Elizabeth Miller, Deputy Attorneys 

General, for Plaintiff and Respondent.
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I.

INTRODUCTION

In 2013, a jury found Charlie P. Shears guilty of murder with a 

robbery-murder special circumstance finding and related crimes. This court 

affirmed the convictions in 2015. In 2021, the trial court denied Shears’s 

petition for resentencing under Penal Code section 1170.95 (now renumbered 

section 1172.6).1 The court based its ruling on the special circumstance 

finding at Shears’s 2013 trial, notwithstanding the California Supreme 

Court’s subsequent guidance on special circumstance liability in People v. 

Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 

522 (Clark).

Shears appealed. After briefing concluded, the California Supreme 

Court decided People v. Strong (2022) 13 Cal.5th 698 (Strong), holding that 

special circumstance findings issued by a jury prior to Banks and Clark do 

not preclude relief under section 1172.6. (Strong, at p. 710.) In a 

supplemental brief, the People concede that, under Strong, the trial court 

erred. We agree, and reverse and remand for further proceedings.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, a black man wearing a ski mask and gloves entered the 

Moonlite Market, pulled out a gun, and repeatedly told the owner, Sleiman 

1 The section was renumbered without substantive change; we use the 

current number (§ 1172.6) in the remainder of the opinion. (See Stats. 2022, 

ch. 58, § 10.) Further statutory references are to the Penal Code unless 

noted.
3

Hallak, to give him money.2 The gunman fired two shots. Jimmy Shaw, a 

cigar salesman who had been standing near Hallak, ran down an aisle to the 

back of the market. He heard more shots and the gunman repeating “give me 

the money.” The gunman then went behind the counter and shot at employee 

Cleo Shivers, who had hit the floor when he heard the shots. Hallak died at 

the scene from multiple gunshot wounds. The incident was recorded on 

video.

During the police investigation, detectives interviewed Mark Vasquez, 

an acquaintance of Shears, and Shears’s cousin Damion Waldon. They 

subsequently testified at trial about statements that Shears made to them, 

including that multiple people were involved in the robbery, his job was to act 

as lookout, and that the guy who shot Hallak gave him a gun stolen from 

Hallak. Detectives recovered a gun from Shears’s apartment that Hallak’s 

son identified as his father’s gun. Shivers was unable to identify Shears in a 

lineup. Several years later, Virginia Gracia Shears (Mrs. Shears) reported 

contradictory statements by Shears about his role in the robbery, including 

both that he was, and was not, the shooter. At trial, she testified that Shears 

did not say that he was the shooter but that someone told her that he was 

present at the scene.

In 2013, the jury convicted Shears of one count of first degree murder 

(§ 187, subd. (a)), and found true a felony murder special circumstance 

pursuant to section 190.2, subdivision (a)(17) (i.e., he “was engaged in the 

commission and attempted commission of the crime of Robbery”). The jury 

also found Shears guilty of two counts of attempted murder (§§ 187, subd. (a), 

2 We take our summary of the underlying facts from our previous opinion 

in People v. Shears (Oct. 23, 2015, D065200) [nonpub. opn.] Because the facts 

are of limited relevance in this current appeal, our summary is brief.
4

189), and further found that, as to all three counts, he personally used a 

firearm within the meaning of section 12022.5, subdivision (a)(1). The court 

sentenced Shears to life in prison without the possibility of parole for the first 

degree murder count, and consecutive terms of life in prison with the 

possibility of parole for each attempted murder count.

A panel of this court affirmed Shears’s convictions in People v. Shears

(Oct. 23, 2015, D065200) [nonpub. opn.]

In January 2020, Shears filed a petition for resentencing under section 

1170.26, which the People opposed. In November 2020, the trial court found 

that Shears had made a prima facie showing that he was entitled to relief, 

issued an order to show cause, and set a status conference to address a future 

hearing date. The People filed a supplemental response, arguing that the 

special circumstance finding rendered Shears ineligible for relief as a matter 

of law. Shears filed a reply, contending that Banks and Clark had 

interpreted relevant statutory language “ ‘in a significantly different, and 

narrower manner than courts had previously,’ ” and that the trial court could 

not deny relief based on his pre-Banks and Clark special circumstance 

finding.3

In February 2021, the trial court heard argument on Shears’s petition. 

The court stated, in relevant part, “I do find that the jury had that fact that 

3 “Banks and Clark both substantially clarified the law governing 

findings under Penal Code section 190.2, subdivision (d).” (Strong, supra, 

13 Cal.5th at p. 706; § 190.2, subd. (d) [for felony-murder special 

circumstance, aider and abettor must have been “major participant” and 

acted “with reckless indifference to human life”].) “Banks elucidated what it 

means to be a major participant and, to a lesser extent, what it means to act 

with reckless indifference to human life, while Clark further refined the 

reckless indifference inquiry.” (Strong, at pp. 706-707.)
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he was deemed to be the actual killer or that he was a major participant in 

the underlying crime who acted with a reckless disregard for life” (impliedly 

finding that this rendered Shears ineligible for relief), and disagreed that the 

decisions in Banks and Clark could have altered the outcome. The court 

reversed its November 2020 order, and denied the petition.

Shears filed a timely notice of appeal.

After the conclusion of briefing in this appeal, the California Supreme 

Court issued its decision in Strong, which we describe in the discussion 

section of this opinion. We requested that the parties file supplemental briefs 

addressing the impact of Strong on this appeal. In the People’s supplemental 

brief, the People concede that, under Strong, the trial court erred in finding 

Shears ineligible for resentencing.

III.

DISCUSSION

A. Applicable law

“Effective January 1, 2019, the Legislature passed Senate Bill 1437 ‘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.’ ” (People v. Lewis (2021) 11 Cal.5th 952, 

959 (Lewis), citing Stats. 2018, ch. 1015, § 1, subd. (f).)

Senate Bill 1437 accomplished this goal, in part, by amending section 

188, which defines malice, and section 189, which defines the degrees of 

murder. (Stats. 2018, ch. 1015, § 3.) The amended version of section 188 

states: “Except as stated in subdivision (e) of Section 189, in order to be 

convicted of murder, a principal in a crime shall act with malice 
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aforethought. Malice shall not be imputed to a person based solely on his or 

her participation in a crime.” (§ 188, subd. (a)(3).)

Amended section 189, subdivision (e), states: “A participant in the 

perpetration or attempted perpetration of a felony listed in [section 189] 

subdivision (a) in which a death occurs is liable for murder only if one of the 

following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person 

was not the actual killer, but, with the intent to kill, aided, abetted, 

counseled, commanded, induced, solicited, requested, or assisted the actual 

killer in the commission of murder in the first degree. [¶] [or] (3) The person 

was a major participant in the underlying felony and acted with reckless 

indifference to human life, as described in subdivision (d) of Section 190.2.”

(§ 189, subd. (e).)

Senate Bill 1437 also enacted section 1172.6, which “creates a 

procedure for convicted murderers who could not be convicted under the law 

as amended to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 957.) 

Under the current version of this section,4 an offender must file a petition 

with the sentencing court alleging that: “(1) A complaint, information, or 

indictment was filed against the petitioner that allowed the prosecution to 

proceed under a theory of felony murder, murder under the natural and 

probable consequences doctrine or other theory under which malice is 

imputed to a person based solely on that person’s participation in a crime, or 

attempted murder under the natural and probable consequences doctrine. [¶] 

(2) The petitioner was convicted of murder, attempted murder, or 

manslaughter following a trial or accepted a plea offer in lieu of a trial at 

4 The section was amended by Senate Bill 775, effective January 1, 2022, 

to expand its scope and clarify procedure. (Stats. 2021, ch. 551, § 2.)
7

which the petitioner could have been convicted of murder or attempted 

murder. [¶] (3) The petitioner could not presently be convicted of murder or 

attempted murder because of changes to Section 188 or 189 made effective 

January 1, 2019.” (§ 1172.6, subd. (a)(1)-(3).)

The resentencing petition must include certain elements under 

subdivision (b), including a “declaration by the petitioner that the petitioner 

is eligible for relief . . . .” (§ 1172.6, subd. (b)(1).) If a petition satisfies these 

requirements, the trial court “proceeds to subdivision (c) to assess whether 

the petitioner has made ‘a prima facie showing’ for relief.” (Lewis, supra, 

11 Cal.5th at p. 960.)

If the court determines that a prima facie showing for relief has been 

made, it issues an order to show cause, and must hold a hearing “to 

determine whether to vacate the . . . conviction and to recall the sentence and 

resentence the petitioner on any remaining counts . . . .” (§ 1172.6, 

subd. (d)(1).) At this evidentiary hearing, the burden is “on the prosecution to 

prove, beyond a reasonable doubt, that the petitioner is guilty of murder or 

attempted murder under California law as amended by the changes to 

Section 188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)

B. Analysis

Shears contends, in substance, that the trial court erred in denying his 

petition, because he established a prima facie case for relief under section 

1172.6 and his pre-Banks and Clark special circumstance findings did not 

preclude such relief. The People concur, in light of Strong, and contend that 

the case should be remanded to the trial court with directions to issue an 

order to show cause and hold an evidentiary hearing. We agree.

In Strong, the defendant and an accomplice tried to rob a drug dealer. 

During the attempted robbery, the accomplice fatally shot the dealer’s friend. 
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(Strong, supra, 13 Cal.5th at pp. 703-704.) In 2014, the defendant was 

convicted of various crimes, including first degree murder with multiplemurder and felony-murder special circumstances. (Id. at p. 704.) He later 

petitioned for resentencing under section 1172.6, and there, as here, the trial 

court denied relief based on the felony-murder special circumstance finding. 

(Strong, at p. 709.) The Court of Appeal affirmed, but acknowledged a split 

in the Courts of Appeal as to whether pre-Banks and Clark special 

circumstance findings barred resentencing. (Ibid.)

The California Supreme Court reversed, and resolved the split. The 

Court held that “[f]indings issued by a jury before Banks and Clark do not 

preclude a defendant from making out a prima facie case for relief under 

Senate Bill 1437,” even if “the trial evidence would have been sufficient to 

support the findings under Banks and Clark.” (Strong, supra, 13 Cal.5th at 

p. 710; see id. at pp. 706-707 [describing how Banks and Clark “substantially 

clarified” the law governing major participant and reckless indifference 

findings].) The Court explained that “[n]either the jury’s pre-Banks and 

Clark findings nor a court’s later sufficiency of the evidence review amounts 

to the determination section 1172.6 requires, and neither set of findings 

supplies a basis to reject an otherwise adequate prima facie showing and 

deny issuance of an order to show cause.” (Id. at p. 720; see id. at p. 718 

[rejecting concern that prosecution had to prove major participation and 

reckless indifference twice; “[f]or petitioners with pre-Banks/Clark findings, 

no judge or jury has ever found the currently required degree of culpability

for a first time”].)

Turning back to the case before us, we agree with the People that, “as 

in Strong, Shears’s petition has never been reviewed under the new Banks

and Clark standards,” and reversal and remand for an order to show cause 
9

and evidentiary hearing are therefore necessary. Shears was convicted in 

2013, prior to the decisions in Banks and Clark. When Shears petitioned for 

resentencing, the trial court initially found that he had made a prima facie 

showing for relief, but later denied the petition based on the jury’s pre-Banks

and Clark special circumstance finding. Under Strong, this was error. We 

reverse the order denying Shears’s petition and remand to the trial court 

with directions to issue an order to show cause and hold an evidentiary 

hearing. We express no opinion as to the appropriate disposition after the 

hearing.

DISPOSITION

The order denying the petition for resentencing under section 1172.6 is 

reversed. The matter is remanded to the trial court with directions to issue 

an order to show cause and hold an evidentiary hearing.

AARON, Acting P. J.

WE CONCUR:

IRION, J.

BUCHANAN, J.