Filed 5/3/22 P. v. Sheppard CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LAMONT SHEPPARD,

Defendant and Appellant.

 B314899

 (Los Angeles County

 Super. Ct. No. TA034259)

APPEAL from an order of the Superior Court of 

Los Angeles County. Laura R. Walton, Judge. Affirmed.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Amanda V. Lopez and Gary A. Lieberman,

Deputy Attorneys General, for Plaintiff and Respondent.

______________________________
2

In 1996, a jury convicted defendant and appellant Lamont 

Sheppard of two counts of attempted murder (Pen. Code, 

§§ 664/187, subd. (a)),

1 one count of assault with a firearm (§ 245, 

subd. (a)(2)), and one count of discharge of a firearm with gross 

negligence (§ 246.3). As to the attempted murder counts, the jury 

found true the allegations that the offenses were committed 

willfully, deliberately, and with premeditation (§ 664, subd. (a)), 

and that a principal was armed with a firearm (§ 12022, subd. 

(a)(1)). The jury found not true the allegations that defendant 

personally used a firearm or that he personally inflicted great 

bodily injury. Defendant was sentenced to state prison for two 

consecutive life terms with the possibility of parole, plus three 

years four months. (People v. Sheppard (Jan. 14, 1999), B108626 

[nonpub. opn.], at pp. 1–2.)

Defendant appealed, and on January 14, 1999, we affirmed 

the judgment. (People v. Sheppard, supra, B108626, at p. 19.)

In 2015, defendant filed a request for resentencing 

pursuant to Proposition 47. (People v. Sheppard (Oct. 31, 2016), 

B270216 [nonpub. opn.], at p. 2.) The trial court denied his 

resentencing request, and on October 31, 2016, we affirmed the 

trial court’s order. (Id. at p. 5.)

In June 2021, defendant filed a petition for resentencing 

pursuant to section 1170.95 and requested the appointment of 

counsel. The trial court denied the petition without appointment

of counsel on the ground that section 1170.95 does not apply to

attempted murder convictions.

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

Defendant timely filed a notice of appeal.2 He argues that 

because his petition falls squarely within the scope of Sen. Bill 

775, we must reverse the trial court’s order and remand the 

matter to the trial court for further proceedings pursuant to 

section 1170.95, subdivision (c).

We are not convinced by defendant’s argument. 

Accordingly, we affirm the order.

FACTUAL BACKGROUND

“[A] driveby shooting occurred on Cocoa Street in Compton 

. . . on August 18, 1995. Two of the victims, Dion Winn and 

Theodore Millender, were riding on a mountain bike when shots 

rang out from a van that was driving by. . . . Both were severely 

injured. . . . [Defendant], the driver whom Millender saw with a 

gun, was a member of the rival Nutty Block Crip gang . . . . A 

third victim . . . was in his bedroom when a chance bullet came 

through his bedroom window and hit him in the left back.” 

(People v. Sheppard, supra, B108626, at pp. 2–3.)

PROCEDURAL BACKGROUND

On June 11, 2021, defendant field a petition for 

resentencing. The trial court summarily denied his petition, 

without appointing counsel, on the ground that defendant was 

ineligible for relief because he was convicted of attempted 

murder, not murder.

2 Attached to defendant’s notice of appeal was another 

petition for resentencing pursuant to Senate Bill No. 775 (Reg. 

Sess. 2021-2022) (Sen. Bill 775), which amended section 1170.95 

effective January 1, 2022. It does not appear that the trial court 

acted on that petition, although the trial court’s order denying 

defendant’s request for resentencing provides that it was denied 

“again.”
4

DISCUSSION

I. Relevant law

As is relevant to the issues raised in this appeal, in 2019, 

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill 1437) 

eliminated liability for murder under the natural and probable 

consequences doctrine. (People v. Lewis (2021) 11 Cal.5th 952, 

959.) It also added section 1170.95, which established a 

procedure for defendants convicted of murder under the old law 

to seek resentencing if they could not now be convicted of that 

crime in light of the revisions to sections 188 and 189. Under 

that procedure, “once a petitioner files a facially sufficient 

petition requesting counsel, the superior court must appoint 

counsel before performing any prima facie review under section 

1170.95, subdivision (c).” (People v. Mancilla (2021) 67 

Cal.App.5th 854, 864; see also People v. Lewis, supra, at p. 963.)

However, “a superior court’s failure to appoint counsel to 

represent a petitioner when assessing whether he or she has 

made a prima facie showing of entitlement to relief pursuant to 

section 1170.95, subdivision (c), is state law error only, 

reviewable for prejudice under the harmless error standard of 

People v. Watson (1956) 46 Cal.2d 818. [Citation.]” (People v. 

Mancilla, supra, 67 Cal.App.5th at p. 864.)

Sen. Bill 775, which amended section 1170.95, expanded 

the scope of section 1170.95 petitions to include individuals 

convicted of attempted murder under the natural and probable 

consequences doctrine. Sen. Bill 775 became effective January 1, 

2022, while defendant’s appeal from the trial court’s order 

denying his section 1170.95 petition was pending.

Where the record of conviction shows that a petitioner was 

not convicted under any theory of liability affected by Sen. Bill
5

1437, he is ineligible for resentencing as a matter of law. (See 

People v. Mancilla, supra, 67 Cal.App.5th at pp. 866–867.) That 

limitation on eligibility did not change under Sen. Bill 775.

II. Analysis

Applying these legal principles, we conclude that the trial 

court did not commit prejudicial error in denying defendant’s 

section 1170.95 petition. At the time defendant filed his petition 

for resentencing, the trial court correctly found that section 

1170.95 did not apply to convictions for attempted murder. Since 

then, the law has changed, and, as set forth above, section 

1170.95 now covers convictions for attempted murder. Under the 

recently amended statute, defendant was entitled to counsel at 

the prima facie stage. (People v. Lewis, supra, 11 Cal.5th at 

pp. 961–972.) But, the trial court’s failure to appoint counsel was 

harmless; it was not reasonably probable that defendant would 

have obtained a more favorable outcome if counsel had been 

appointed. (Id. at pp. 972–974; People v. Mancilla, supra, 67 

Cal.App.5th at p. 864.)

The record of conviction establishes that defendant is 

ineligible for relief under section 1170.95 as a matter of law. The 

jury convicted defendant of two counts of attempted murder as an 

aider and abettor. The jury was not instructed on the natural 

and probable consequences theory of aiding and abetting liability. 

The only theory of attempted murder on which the jury was 

instructed required malice aforethought by defendant. After all,

the jury was told pursuant to CALJIC No. 3.01 that an aider and 

abettor is liable if he had “knowledge of the unlawful purpose of 

the perpetrator,” had “the intent or purpose of committing, 

encouraging, or facilitating the commission of the crime,” and “by 

act or advice aids, promotes, encourages or instigates the 
6

commission of the crime.” The jury was also told pursuant to

CALJIC No. 8.66 that in order to convict, it had to find that 

defendant “harbored express malice aforethought, namely, a 

specific intent to kill.”

In light of these instructions, the jury could not have 

convicted defendant of attempted murder unless it found that he 

acted with malice, which is the mental state required under 

current law. It follows that the revisions that Sen. Bill 775 made 

to section 1170.95 do not compel reversal of the trial court’s 

order.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT