Filed 1/31/22 P. v. Lipsey CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER LIPSEY,

Defendant and Appellant.

B308671

(Los Angeles County

Super. Ct. No. BA340280)

APPEAL from an order of the Superior Court of Los 

Angeles County, Mark S. Arnold, 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, Idan Irvi and Analee J. Brodie, Deputy 

Attorneys General, for Plaintiff and Respondent.

_______________________
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In 2009, Christopher Lipsey was convicted of attempted 

murder with true findings on several gang, firearm, and prior 

conviction enhancements. On July 13, 2020, Lipsey filed a 

petition for resentencing pursuant to Senate Bill No. 1437 and 

Penal Code1 section 1170.95. After appointing counsel, the trial 

court denied the petition, finding Lipsey ineligible for relief under 

Senate Bill No. 1437 because (1) he was convicted of attempted 

murder, not murder; (2) the jury was not instructed on the 

natural and probable consequences doctrine as the basis for the 

attempted murder conviction; (3) appellant was the shooter. We 

affirm.

A. Statement of Facts

The statement of facts is taken from this court’s opinion 

affirming appellant’s conviction. (People v. Lipsey (Dec. 2, 2010, 

B216787) [nonpub. opn.].) During a confrontation with rival gang 

members outside a market, appellant pulled a gun from his 

waistband and fired a single gunshot, wounding the victim. The 

shooting was caught on the market’s surveillance videos. Upon 

his arrest, appellant admitted to police that he had “socked” the 

victim. He said the victim then pulled out a gun which appellant 

grabbed and used to shoot the victim. The victim later identified 

appellant as the shooter from a photospread, although at the 

preliminary hearing he claimed he was forced to do so or face 

revocation of his own parole. (Ibid.)

At trial, the People argued appellant was the actual killer. 

Appellant argued his confession was false; he acted in selfdefense; and the shooting was, at most, an assault with a deadly 

weapon because he did not have the intent to kill. The jury found 

1 Undesignated statutory references are to the Penal Code.
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appellant guilty of attempted murder and that he personally 

discharged the firearm, causing great bodily injury to the victim. 

(People v. Lipsey, supra, B216787.) Appellant was eventually 

sentenced to 47 years in state prison. (Ibid.)

B. The Petition for Resentencing

In 2018, the Legislature passed Senate Bill No. 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.” (Stats. 2018, ch. 1015, § 1, subd. (f).) 

Senate Bill No. 1437 amended section 188 to require that a 

principal “shall act with malice aforethought. Malice shall not be 

imputed to a person based solely on his or her participation in a 

crime.” (§ 188, subd. (a)(3).)

Senate Bill No. 1437 also added section 1170.95, which sets 

forth the procedure by which a “person convicted of felony murder 

or murder under a natural and probable consequences theory 

may file a petition with the court that sentenced the petitioner to 

have the petitioner’s murder conviction vacated and to be 

resentenced on any remaining counts.” (§ 1170.95, subd. (a).) 

Pursuant to section 1170.95, an offender must file a petition 

(along with a declaration) 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 
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convicted for first degree or second degree murder. [¶] (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.” (§ 1170.95, subds. (a)(1)–(3); see also § 1170.95, 

subd. (b)(1)(A).)

Once a complete petition is filed, the court is authorized to 

appoint counsel for the petitioner upon request. The court 

determines whether “the petitioner has made a prima facie 

showing that the petitioner falls within the provisions of this 

section. . . . If the petitioner makes a prima facie showing that he 

or she is entitled to relief, the court shall issue an order to show 

cause.” (§ 1170.95, subd. (c).) In making this assessment, the 

trial court “should accept the assertions in the petition as true 

unless facts in the record conclusively refute them as a matter of 

law.” (People v. Drayton (2020) 47 Cal.App.5th 965, 968 

(Drayton).) The court’s authority to summarily deny a petition is 

thus limited to “readily ascertainable facts” taken from the record 

of conviction, rather than factfinding involving the weighing of 

evidence or the exercise of discretion. (Id. at p. 980.)

The opinion affirming a petitioner’s conviction is part of the 

record of conviction. (People v. Lewis (2021) 11 Cal.5th 952, 972.)

After the court issues an order to show cause, an 

evidentiary hearing is held to determine whether to vacate the 

murder conviction, recall the sentence, and resentence the 

petitioner on any remaining counts. (§ 1170.95, subd. (d)(1).) At 

the hearing, “the burden of proof shall be on the prosecution to 

prove, beyond a reasonable doubt, that the petitioner is ineligible 

for resentencing. If the prosecution fails to sustain its burden of 

proof, the prior conviction, and any allegations and 

enhancements attached to the conviction, shall be vacated and 
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the petitioner shall be resentenced on the remaining charges. 

The prosecutor and the petitioner may rely on the record of 

conviction or offer new or additional evidence to meet their 

respective burdens.” (Id., subd. (d)(3).)

C. The Trial Court’s Denial of the Petition

The trial court denied the petition on three grounds. First, 

the trial court found that section 1170.95 relief is available to 

petitioners convicted of murder, not attempted murder. After

that ruling, the California legislature passed Senate Bill No. 775, 

which expressly extends section 1170.95 relief to individuals 

convicted of attempted murder under the natural and probable 

consequences doctrine. (Sen. Bill No. 775 (2020–2021 Reg. Sess.) 

§ 2, amending § 1170.95, subd. (a), eff. Jan. 1, 2022.) We agree 

with both parties that appellant’s conviction for attempted 

murder, in and of itself, does not make him ineligible for relief 

under newly amended section 1170.95.

Nevertheless, appellant remains ineligible for relief. 

Appellant was not convicted of attempted murder under the 

natural and probable consequences doctrine. That doctrine 

imputes vicarious liability for reasonable foreseeable 

consequences of offenses committed by the person the accused 

aids or abets. (People v. Prettyman (1996) 14 Cal.4th 248, 261.) 

Here it is undisputed that appellant was prosecuted as the actual 

shooter, not under any theory of aiding and abetting, and the jury 

found true the allegation that he personally discharged a firearm 

causing great bodily injury to the victim. The trial court did not 

err in finding appellant ineligible for relief.
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DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.