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

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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.

 B310488

 (Los Angeles County

 Super. Ct. No. NA009550)

APPEAL from an order 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, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Amanda V. Lopez and Stacy S. 

Schwartz, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

INTRODUCTION

In 1992 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 26 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. 

Following 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 term the trial court imposed for Chapman’s burglary 

conviction. (People v. Whitsey et al. (Sept. 22, 1993, B070694)

[nonpub. 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 under section 1170.95, 

subdivision (c), and to conduct an evidentiary hearing in 

accordance with 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. The People charged Chapman with first degree murder 

(§ 187, subd. (a)), first degree residential burglary (§§ 459, 460), 

and residential robbery (§§ 211, 212.5, subd. (a)), and alleged a 

principal was armed in the commission of the offenses (§ 12022, 

subd. (a)(1)). (People v. Whitsey et al., supra, B070694.)3

At trial, the deputy sheriff who interviewed Chapman 

testified 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 inside. 

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? Why won’t you tell me? I’ll just blow your head off.’” 

Chapman repeatedly told Whitsey not to kill Jackson. Whitsey 

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 was waiting 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), first degree felony murder (CALJIC No. 8.21), and 

aiding and abetting first degree felony murder (CALJIC 

No. 8.27). The jury convicted Chapman as charged and found 

true the allegation a principal was armed in the commission of 

the offenses. The trial court sentenced Chapman to 25 years to 

life for the murder conviction, plus one year for the enhancement

under section 12022, subdivision (a)(1). The court imposed 

additional terms for the robbery and burglary convictions. 

Chapman appealed the judgment, and 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

In May 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 theory 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 sections 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 killer 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. The superior 

court appointed counsel to represent Chapman and ordered 

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 court gave jury instructions on

felony murder, that the prosecutor argued the theory of felony 
6

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 

facie 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 had 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 had 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 argued 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 “issues 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 apartment when Whitsey shot 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 it for an order to 

show cause.” 

The superior court acknowledged 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 allegation 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 

pp. 802-803.) In People v. Clark, supra, 63 Cal.4th 522 the 

Supreme Court described factors to “aid [the] analysis” of 

whether the defendant “exhibited ‘“‘reckless indifference to 

human life’”’ within the meaning 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 the 

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 was 
8

under section 1170.95 because he knew what he and Whitsey

were going to do and “he knew that they were going to ‘jack’ the 

victim, [and] he 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) 10 Cal.5th 

830, 846-847 [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 retroactively seek relief.” (Lewis, at p. 957, 

fn. omitted; see Gentile, at p. 853.)

“Section 1170.95 envisions three stages of review of a 

petition for resentencing.” (People v. Wilson (2021) 

69 Cal.App.5th 665, 675; see Lewis, supra, 11 Cal.5th at 

pp. 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 consequences doctrine[;] [¶] 

(2) The petitioner was convicted of 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 

second degree murder[;] [¶] [and] (3) The petitioner could not be 

convicted of first or second degree murder because of changes to 

Section 188 or 189 made effective January 1, 2019.’” (Lewis, at 

pp. 959-960; see § 1170.95, subd. (a)(1)-(3).)

Second, if 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 “assess whether the petitioner has made a ‘prima facie 

showing’ for relief.” (Lewis, supra, 11 Cal.5th at pp. 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 allegations 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, 980 (Drayton), 

disapproved on another ground in Lewis, at p. 963.) 

The court’s authority to resolve the petition at the prima 

facie stage “is limited to readily ascertainable facts from 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 (2021) 

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 

record of conviction that conclusively establishes that the 
11

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 petitioner 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 Lewis, at p. 960.) The prosecutor and the petitioner may rely 

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

hearing 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, that the petitioner is ineligible for resentencing.” (See 

Stats. 2021, ch. 551, § 2 (Sen. Bill No. 775).) Because the 

Legislature did not pass these amendments as urgency 
12

B. The 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 People 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).) And, as 

required by section 1170.95, subdivision (a)(3), Chapman alleged

he could not now be convicted of first degree murder under the 

current definition of felony murder 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 refuted them “as a 

matter of law,” Chapman stated a prima facie case 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 that he is eligible for 

relief”]; Drayton, supra, 47 Cal.App.5th at pp. 981-982 [petitioner 

made a prima facie showing of eligibility for relief by alleging the 

facts specified under section 1170.95, subdivision (a)(1)-(3), 

“which, if accepted as true, fulfilled the requirements for relief”].)

The superior court should have issued an order to show 

cause and conducted an evidentiary hearing. (See 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 requirements of section 

1170.95, subdivisions (a) and (b),” and the “record does not 

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 relief: weigh the evidence and make 

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 shoot 

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 to 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 engaging

“in judicial factfinding based on its analysis of the evidence under 
14

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

Clark[, supra, 63 Cal.4th 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 defendant’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 an evidentiary hearing under section 

1170.95, subdivision (d). (See 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 

meaning of section 189, subdivision (e)(3), requires factfinding

following an evidentiary hearing pursuant to section 1170.95, 

subdivision (d)”], review granted; People v. Duchine, 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, subdivision (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.