Filed 12/8/21 P. v. Chapman CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

RONALD CHAPMAN,

Defendant and Appellant. B3 10488

(Los Angeles County Super. Ct. No. NA009550 )

APPEAL from an o rder of the Superior Court of Los Angeles County, Richard M. Goul , Judge

. Reversed with
directions

. California Appellate Project, Richard B. Lennon, Executive Director and Olivia Meme, Staff Attorney , under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant Attorney General, Su san Sullivan Pithey, Senior Assistant Attorney General, Amanda V. Lopez and Stacy S.
Schwartz , Deputy Attorney s General, for Plaintiff and Respondent.2 INTRODUCTION

In 199 2 a jury convicted Ronald Chapman and Haiji Whitsey of first degree murder , robbery, and burglary and found true the allegation a principal was armed in the commission of
the offenses

. 1 The trial court sentenced Chapman to a prison
term of 2 6 years to life for the murder conviction

, plus additional

terms for the robbery and burglary convictions . Chapman appealed , and we affirmed the judgment in most respects

. 2 ( People v. Whitsey et al. (Sept. 22, 1993, B070694 ) [nonpub. opn.].)
In 2019 Chapman filed a petition under section 1170.95,
which allows certain defendants convicted of murder under a felony murder or natural and probable consequences theory to petition the court to vacate their convictions and for resentencing.
F ollowing briefing, the superior court held a hearing

, found Chapman failed to make a prima facie showing for relief , and denied the petition . Chapman appeals, contending the court erred in making factual findings to conclude he had not established a prima facie case and in not issuing an order to show

cause and holding an evidentiary hearing . The People concede

1 The jury also found true the special

- circumstance allegation Whitsey committed murder during the commission of residential burglary and robbery and the allegation he personally used a firearm in the commission of the offenses . (Pen. Code, § § 190.2, subd. (a)(17) , 12022.5, subd. (a) .) Statutory references are to the Penal Code.

2 We modified the judgment to stay under section 654 the prison te rm the trial court imposed for Chapman’s burglary conviction

. ( People v. Whitsey et al. ( Sept. 22, 1993, B070694 ) [no npub. opn.].)3

the superior court erred . We agree and reverse the order denying Chapman’s petition under section 1170.95 and direct the court to
issue an order to show cause und er sec tion 1170.95,
subdivision (c), and to conduct an evidentiary hearing in
accordance wi th section 1170.95, subdivision (d)

.

FACTUAL AND PROCEDURAL BACKGROUND

A. A Jury Convicts Chapman of First Degree Murder

, Chapman Appeals, and This Court Affirms
In December 1991 Chapman and Whitsey went to the apartment of Frank Jackson, the boyfriend of Whitsey’s sister

, to rob him . In the course of the robbery, Whitsey shot and killed
Jackson. T he People charged Chap man with first degree murder (§ 187, subd. (a) ) , first degree residential burglary (§§ 459, 46 0), and residential robbery (§§ 211, 212 .5 , subd. (a) ) , and alleged a principal was armed in th e commission of the offenses (§ 12022,
subd. (a)(1)). ( Peopl e v. Whitsey et al.

, supra , B070694.) 3 At trial, t he deputy sheriff who interviewed Chapman
testifie d about statements Chapman made after his arrest

. Chapman stated that

, on the night of the murder, he drove Whitsey to Jackson’s apartment and Jackson invited them in side

. Chapman, who had been drinking, began to play a video game. He heard Whitsey and Jackson arguing in the bedroom

. Whitsey

came out of the bedroom and told Chapman to take the stereo equipment from a wall unit in the apartment

, which Chapman
did . Chapman made several trips to the car to carry the

3 “Appellate opinions .

. . are generally considered to be part of the record of conviction.” ( People v. Lewis (2021) 11 Cal.5th 952, 972.)4

equipment. Returning to the apartment, Chapman saw Whitsey point a gun at Jackson and heard Whitsey ask, “ ‘[ W ] here’s the money? W h y won’t you tell me? I’ll just blow your head off. ’ ” Chapman repeatedly told Whits ey not to kill Jackson. Whits ey responded, “ ‘ This fool got some money. He won’t tell me where it
is. ’ .

. . ‘ I’ll have to kill him. ’ ” Chapman told Whitsey, “ ‘ We’ve got
all the stuff. I’ve got everything.

. . . Let’s get out of here. ’ ” Chapman struck Jackson in the face to prove to Whitsey that Jackson was too scared to report what happened and that there
was no need to kill Jackson. ( People v. Whitsey et al.

, supra , B070694.) Chapman’s cousin testified that

, the day after the murder

, Chapman told him that he and Whitsey went to Jackson’s
apartment to “ ‘

jack ’ ” 4 him , that Chapman took some property from Jackson , and that Whitsey directed him to wait in the car

. Chapman told his cousin that

, while Chapman w as wait ing in the car, Whitsey shot Jackson. ( People v. Whitsey et al.

, supra , B070694.) The trial court instructed the jury on murder ( with CALJIC
No. 8.10), fir st degree felony murder (CALJIC No. 8.21), and aiding and abetting first degree felony murder (CALJIC
No. 8.27). The jury convict ed Chapman as charged and found true the allegation a principal was armed in the commission of
the offense s

. The trial court sentenced Chapman to 25 years to
life for the murder conviction, plus one year for the enhancement

u nder section 12022, subdivisio n (a)(1) . The court imposed
add i tional terms for the robbery and burglary convictions. Chapman appealed the judgment, an d with a minor modification

, we affirmed. ( People v. Whitsey et al.

, supra , B070694.)

4 Chapman’s cousin testified “jack” meant to rob someone.5 B

. Chapman Files a Petition Under Section 1170 .95
I n M ay 2019 Chapman , representing himself, filed a petition under section 1170.95

. Checking boxes on a form petition, Chapman alleged that a complaint, information, or indictment was filed against him that allowed the prosecution to proceed under a th eory of felony murder or murder under the natural and probable consequences doctrine ; that he had been convicted of first or second degree murder under the felony murder rule or the natural and probable consequences doctrine

, and that he could not now be convicted of first or second degree
murder because of legislative changes to section s 188 and 189, effective January 1, 2019

. Chapman also alleged that he was convicted of first degree felony murder and that , as a result of changes to section 189, effective January 1, 2019, he could not
now be convicted because he was not the actual killer ; he did not, with the intent to kill, aid or abet the actual kill er in the commission of murder in the first degree ; and he was not a major participant in the felony or act with reckless indifference to human life during the course of the crime or felony. T he superior court appointed counsel to represent Chapman an d or dered briefing. The People filed an opposition to the petition, arguing that Chapman was ineligible for resentencing under section 1170.95
because he “ could still be found guilty of murder on several bases including: as a principal, as a direct aider and abettor, felony murder, and finally, implied malice, a second degree murder theory.” Chapman filed a reply in support of his petition, arguing that he stated a prima facie case of eligibility for relief because he was not the actual killer, that the cour t gave jury instructions on felony murder, that the prosecutor argued the theory of felony6

murder to the jury, and that evidence from the trial showed Chapman tried to stop Whitsey from killing the victim. Chapman asked the superior court to issue an order to show

cause because whether he was a major participant and acted with
reckless indifference to human life was “ an issue of entitlement and not eligibility.” 5
At the hearing Chapman argued that he stated a prima
fa cie case for relief under section 1170.95 and that the superior
court should issue an order to show cause to resolve “factual questions

, ” such as whether Chapman was a “major participant.” The prosecutor argued Chapman did not establish a prima facie

case because he ha d not shown “he could not now be convicted on [the] facts ” of the case. The prosecutor asserted that, not only was Chapman a “major participant” who acted “with reckless indifference,” but that he also ha d the “specific intent for the
victim to die, given the circumstances.” The prosecutor pointed

out that Chapman “made repeated trips from the apartment to the car and back to steal everything” and that

, when Chapman saw Whitsey point a gun at Jackson , Chapman hit Jackson in the
face. According to the prosecutor, determining whether Chapman was a major participant did not require a “factual analysis

, ” but entailed “simply just looking at the facts as contained in the record and assign [ing] them to the law.” Chapman argu ed that

, deciding whether he was a major participant who acted with reckless indifference to human life
under the factors set forth in People v. Banks (2015) 61 Cal. 4th

788 and People v. Clark (2016) 63 Cal.4th 522 were “issue s for an

5 Chapman argued he was a “minor player,” did not have a weapon, did not supply any weapons, “ tried to stop any killing,” and was not in the apartmen t when Whitsey sh ot Jackson

.7

order to show cause.” 6 The superior court asked whether Chapman’s statement that he told Whitsey

, “‘ Man, don’t. Whatever you do

, don’t shoot him, ’ ” was “self

- serving.” Counsel
for Chapman stated that whether the statement was self

- serving

or “ the truth ” was “exactly why we need to set i t for an order to
show cause.” The superior court acknowledg ed that Chapman was “not
the actual killer” and that “the jury was instructed on felony
murder.” But the court ruled that

, under People v. Bascomb (2020) 55 Cal.App. 5th 1077

, 7 Chapman was not entitled to relief

6 In People v. Banks

, supra , 61 Cal. 4th 788 the Supreme Court held the special

- circumstance allegatio n of section 190.2, subdivision (d), which prescribes increased punishment for certain aiders and abettors of first degree felony murder, requires that “[t]he defendant must be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create.” ( Id . at p. 801.) The Supreme Court also held the defendant’s “personal involvement must be substantial” and listed several factors to help determine whether a defendant is a “major participant” in a crime. ( Id . at

p p. 802

- 803.) In People v. Clark

, supra , 63 Cal. 4t h 522 the Supreme Court described factors to “aid [the] analysis” of whether the defendant “exhibited ‘ “‘ reckless indifference to human life’ ”’ within the meanin g of section 190.2, subdivision (d).” ( Id . at p. 618; see In re Scoggins (2020) 9 Cal. 5th 667 , 676 [“ Banks and Clark clarified the meaning of th e special circumstances statute ”].)

7 In People v. Bascomb

, supra , 55 Cal.App.5th 1077 the court held that the defendant, who planned a robbery, used a gun to subdue the occupants of the apartment he entered , and was8

under section 1170.95 bec ause he knew what he and Whitsey

were going to do and “ he knew that they were going to ‘ jack ’ the victim, [and] h e did punch [him] .” The court stated that, even though Chapman explained why he hit Jackson in the face

, “ he did participate in [the crimes] . He was continuing to take the equipment [on] multiple trips.” “Most notably, ” the superior

court concluded

, Chapman “ could have left ,” “called 911,” or “abandoned the whole operation.” The court found that Chapman
did not make a prima facie case because “ he could still be convicted under current law [for] .

. . murder.” Chapman timely appealed.

DISCUSSION

A

. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017

- 2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) “ eliminated natural and probable

consequences liability for murder as it applies to aiding and abetting, and limited the scope of the felony

- murder rule. ” ( People v. Lewis (2021) 11 Cal.5th 952, 957 ( Lewis ) ; see §§ 188,
subd. (a)(3), 189, subd, (e); People v. Gentile (2020) 1 0 Cal.5th 830, 84 6

- 84 7 [Senate Bill 1437 was enacted “ ‘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

. ’”]

. ) “Senate Bill 1437 also added section 1170.95 to the Penal Code, which creates a procedure for

present when his accomplice shot the victim

, acted with reckless indifference to human life. ( Id. at pp. 1087

- 1090 .)9

convicted murderers who could not be convicted under the law as
amended to retroactive ly seek relief.” ( Lewis , at p. 957

, fn. omitted ; s ee Gentile , at p. 853 .)
“Section 1170.95 envisions three sta g es of review of a petition for resent encing.” ( People v. Wilson (2021)

69 Cal.App.5th 665, 675; see Lewis

, supra , 11 Cal.5th at

p p. 959

- 960.) First, the petitioner “must file a petition in the sentencing court averring that: ‘(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder
under the natural and probable c onsequences doctrine[;] [¶] (2) The petitioner was convicted o f first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial
at which the petitioner could be convicted for first degree or

sec ond degree murder[;] [¶] [and] (3) The petitioner could not be convicted of first or second degre e murder because of changes to
S ection 188 or 189 made effecti v e January 1, 2019.’” ( Lewis , at

pp. 959

- 960; see § 1170.95, subd. (a)(1)

- (3).) Second, i f a petition under section 1170.95 contains all the required information, including a declaration by the petitioner that he or she was convicted of murder and is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court , after appointing counsel,

must “ass ess whether the petitioner has made a ‘prima facie showing’ for relief.” ( Lewis

, supra , 11 Cal.5th at p p

. 960 , 962 ; see § 1170.95, subd

. (c) ; People v. Wilson

, supra , 69 Cal

. App.5th at

p. 675 ; People v. Barboza (2021) 68 Cal.App.5th 955, 962 .) “In determining whether the petitioner has carried the burden of making the requisite prima facie showing he or she falls within the provisions of section 1170.95 and is entitled to relief, the superior court properly examines the record of conviction,10

‘ allowing the court to distinguish petitions with potential merit from those that are clearly meritless.’” ( People v. Mancilla (2021)

67 Cal.App.5th 854, 863.) The prima facie inquiry , however, is
limited. The “‘“ court takes petitioner’s factual allegati ons as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved.”’” ( Lewis

, at p. 971; see Barboza

, at

p. 962; People v. Duchine (2021) 60 Cal.App.5th 798, 813, 815; People v. Drayton (2020) 47 Cal.App.5th 965, 9 80 ( Drayton ), disapproved on another ground in Lewis , at p. 963.) The court’s authority to resolve the petition at the prima facie stag e “ is limited to readily ascertainable facts fr om the record (such as the crime of conviction), rather than factfinding involving the weighing of evidence or the exercise of discretion (such as determining whether the petitioner showed reckless indifference to human life in the commission of the crime) .” ( Drayton

, supra , 47 Cal.App.5th at p. 980; see Lewis

, supra , 11 Cal.5th at p. 972 [“at this preliminary juncture, a trial court should not engage in ‘factfinding involving the weighing of evidence or the exercise of discretion’”]; People v. Clayton (20 21)

66 Cal.App.5th 145, 153 [same] ; People v. Harris (2021)

60 Cal.App.5th 939, 958 [same] , review granted Apr. 28, 2021, S267802.) “‘However, if the record, including the court’s own documents, “contain[s] facts refuting the allegations made in the petition,” then “the court is justified in making a credibility determination adverse to the petitioner.”’” ( Lewis , at p. 971; accord, People v. Jenkins (2021 ) 70 Cal.App.5th 924, 932 ; see People v. Duchine

, supra , 60 Cal.App.5th at p. 815 [“absent a

reco rd of conviction that conclusively establishes that the11

petitioner engaged in the requisite acts and had the requisite intent, the trial court should not question his evidence”].) Third, if “the trial court determines that a prima facie showing for relief has been made, the trial court issues an order to show cause, and then must hold a hearing ‘to determine
whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts
in the same manner as if the p etitioner had not .

. . previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.’” ( Lewis

, supra , 11 Cal.5th at

p. 960; see § 1170.95, subd. (d)(1); People v. Wilson

, supra , 69 Cal.App.5th at p. 675 .) “ At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt , that the the petitioner is ineligible for resentencing. ” (§ 1170.95, subd. (d)(3) ;

see Lew is , at p. 960 .) The prosecutor and the petitioner may r ely
on the record of conviction or offer new or additional evidence. ( § 1170.95, subd. (d)(3); see Lewis , at p. 960

. ) 8

8 In October 2021 the Legislature amended section 1170.95

. Among other changes, the amendments ( 1 ) apply section 1170.95 to convictions for voluntary manslaughter and attempted murder; ( 2 ) state the requirement to appoint counsel , if requested, in new subdivision (b)(3), rather than in subdivision (c) ; ( 3 ) affirm that the standard of proof at the hearin g on the order to show cause is proof beyond a reasonable doubt ; and ( 4 ) clarify that “a finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, t hat the petitioner is ineligible for resentencing .” (S ee Stats. 2021, ch. 551 , § 2 (S en. B ill No. 775)

. ) Because the Legislature did not pass these amendments a s urgency12 B. T he Trial Court Erred in Denying Chapman’s Petition Under Section 1170.95 at the Prima Facie Stage Chapman contends that he stated a prima facie case for
relief and that the superior court erred in making factual findings at this stage of the proceedings under section 1170.95

, subdivision (c)

. Both contentions have merit. Chapman filed a petition alleging all the essential facts required under section 1170.95, subdivision (a) (1)

- (3)

. He alleged
that he was convicted of first degree murder (an undisputed fact)
and that the Peop le filed an information against him that allowed the prosecution to proceed under a theory of felony murder (another undisputed fact , which the superior court acknowledged ). (See § 1170.95, subd. (a)(1), (2).) A nd, as required by section 1170.95, subdivi sion (a)(3), Chapman alleged
he could not now be convicted of first degree murder under the
current definition of felony murde r because he was neither a major participant in the felony nor acted with reckless
indifference to human life. Assuming , as we must ( Lewis

, supra , 11 Cal.5th at p. 971) , these allegations are true, and because , as the People concede , nothing in the record refute d them “ as a matter of law ,” Chapm an stated a prima facie cas e for relief. (See People v. Jenkins

, supra , 70 Cal.App.5th at p. 933 [ petitioner stated a prima facie case for relief because the court “had to
assume the truth of

” the defendant’s factual allegation that “ he
could not now be convicted of murder because of changes to
section 188 ” ]; People v. Eynon (2021) 68 Cal.App.5th 967, 971 [ petitioner made a prima facie showing of eligibility for relief because “[n]othing in [his] record of conviction refutes the

legislation, they will become effective on January 1, 2022. (See Cal. Const., art. IV, § 8, subd. (c).)13

allegation in his section 1170.95 petition tha t he is eligible for relief”]; Drayton

, supra , 47 Cal.App.5th at p p. 981

- 982 [ petitioner made a prima facie showing of eligibility for relief by alleging the
facts specified unde r section 1170.95, subdivision (a)(1)

- (3), “which, if accepted as true, fulfil led the requirements for relief” ] .) The superior court should have issued a n order to show cause and conducted an evidentiary hearing. ( S ee People v. Clayton

, supra , 66 Cal.App.5th at p. 154 [ superior court “should have issued an order to show cause and followed the procedures
mandated by section 1170.95, subdivision (d),” because the defendant’s petition “satisfied the requirement s of section 1170.95, subdivision s (a) and (b), ” and t he “ record does no t establish ineligibility as a matter of law .”].) Instead, the superior

court did precisely what the Supreme Court has stated courts

may not do in determining whether a petitioner has established a prima facie case for relie f: weigh the evidence and ma k e credibility findings against Chapman. (See Lewis

, supra , 11 Cal.5th at pp. 971

- 972 .) Specifically, the superior court questioned the credibility of Chapman’s “self

- serving” statement
he hit Jackson in the face so that Whitsey would not s hoot Jackson; credited a witness’s statement that Chapman said he and Whitsey went to Jackson’s house to rob him ; discounted Chapman’s statement that he told Whitsey not t o shoot Jackson ; and put particular emphasis on Chapman’s failure to leave the premises or call 911 after Whitsey shot Jackson

. The superior court also erred in making findings of fact to conclude Chapman could still be convicted of murder under section 189, subdivision (e)

. (See People v. Clayton

, supra , 66 Cal.App. 5th at pp. 150, 154 [ superior court erred by enga g ing

“ in judici al factfin d ing based on its analysis of the evidence under14

People v. Banks [

, supra , 61 Cal. 4th 788 ] and People v.
Clark [

, supra , 63 Cal .4t h 522 ] to conclude that [the defendant] was a major participant in the robbery who acted with reckless indifference to human life”]; Drayton

, supra , 47 Cal.App.5th at

p. 982 [ superior court erred in making a factual finding at the prima facie stage that the defe ndant’s conduct “ ‘ blatantly ’ ” showed he acted with reckless indifference to human life] .) The

court can make such findings of fact only after issuing an order to show cause and conducting a n evidentiary hearing und er section 1170.95, subdivision (d). (Se e People v. Harris

, supra , 60 Cal.App.5th at p. 960 [“determining whether [the defendant] could now be found to have been a major participant within the

mean ing of section 189, subdivision (e)(3)

, requires fact finding following an evidentiary hearing pursuant to section 1170.95,
subdivision (d)”] , review granted ; People v. D uchine

, supra , 60 Cal.App.5th at p. 816 [“The major participant and reckless indifference findings the trial court made based solely on the
record evidence entail the weighing of evidence, drawing of inferences, and assessment of credibility that should be left to the factfinding hearing process contemplated by section 1170.95,
subdivision (d).”]; see also In re Parrish (2020) 58 Cal.App.5th 539, 542 [“Supreme Court decisions prescribe a fact

- intensive and individualized inquiry to determine whether the defendant’s culpability [under section 190.2, subdi vision (d)] was major or minor”].)15 DISPOSITION

The order denying Chapman’s section 1170.95 petition is
reversed . The superior court is directed to issue an order to show
cause and to conduct an evidentiary hearing in accordance with section 1170.95, subdivision (d).

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER

, J.