Appellant relies upon Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234. As People v. Crawford (1990) 224 Cal.App.3d 1, 7 [ 273 Cal.Rptr. 472] observed, "the Attorney General [in Sheppard] argued its murder pleading practice afforded the defendant adequate notice, but conceded the prosecutor's conduct `affirmatively misled the defendant, denying him an effective opportunity to prepare a defense.'" Crawford not only found Sheppard not binding ("[lower federal court decisions are not binding, but are `persuasive']") (224 Cal.App.3d at p. 8) but inconsistent with People v. Murtishaw (1981) 29 Cal.3d 733, 751, footnote 11 [ 175 Cal.Rptr. 738, 631 P.2d 446], which is binding.
(Id. at p. 1238.)Sheppard, supra, 909 F.2d 1234, is not dispositive here. First, California courts have observed that Sheppard is not binding on us (People v. Crawford (1990) 224 Cal.App.3d 1, 8, 273 Cal.Rptr. 472) and "cannot be squared with binding California Supreme Court authority." (People v. Scott (1991) 229 Cal.App.3d 707, 716-717, 280 Cal.Rptr. 274, citing People v. Murtishaw (1981) 29 Cal.3d 733, 751, fn. 11, 175 Cal.Rptr. 738, 631 P.2d 446, disapproved on other grounds in People v. Boyd (1985) 38 Cal.3d 762, 772-773, 215 Cal.Rptr. 1, 700 P.2d 782; People v. Thomas (1987) 43 Cal.3d 818, 829, fn. 5, 239 Cal.Rptr. 307, 740 P.2d 419; People v. Witt (1915) 170 Cal. 104, 148 P. 928.)
(Cf. People v. Crawford (1990) 224 Cal.App.3d 1, 7-9 [ 273 Cal.Rptr. 472] [defendant's rights not compromised where circumstances of trial provided notice that prosecution was proceeding under felony-murder theory]; People v. Scott (1991) 229 Cal.App.3d 707, 712-718 [ 280 Cal.Rptr. 274] [same].)
[Citations.]" ( People v. Crawford (1990) 224 Cal.App.3d 1, 8 [ 273 Cal.Rptr. 472], quoting People v. Murtishaw (1981) 29 Cal.3d 733, 751, fn. 11 [ 175 Cal.Rptr. 738, 631 P.2d 446].) Nor did the trial court affirmatively advise the defense that Ardoin was excluded from the felony-murder instruction, in contrast to the misleading assurance given to defense counsel in Sheppard.
Counsel for the Attorney General, representing that he was counsel for Rees on the petition for rehearing which led to that decision, explains that the concession was damage control following a first and ultimately vacated opinion ( Sheppard v. Rees (9th Cir. 1989) 883 F.2d 795) which had threatened to set the federal Ninth Circuit broadly at odds with California's rule of murder pleading and notice. We acknowledge Court of Appeal cases finding Sheppard at variance with binding state Supreme Court precedent ( People v. Scott (1991) 229 Cal.App.3d 707, 717 [ 280 Cal.Rptr. 274]; People v. Crawford (1990) 224 Cal.App.3d 1, 7-8 [ 273 Cal.Rptr. 472]) but simply resolve the claim here by distinguishing Sheppard factually. California and Ninth Circuit decisions have uniformly viewed Sheppard narrowly and limited it to its facts.
In distinguishing Sheppard from Scott and Gallego, the California courts have limited the application of Sheppard strictly to its facts. See People v. Crawford, 224 Cal.App.3d 1, 273 Cal.Rptr. 472, 475-76 (1990). Identical to the prosecutor in Scott, the prosecutor in Morrison's case provided notice of a felony-murder theory by presenting sufficient evidence of appellant's intent to commit robbery.
However, at the time of Petitioner's trial, his counsel reasonably could have decided that Sheppard did not apply, for California courts had declined to follow Sheppard. See People v. Scott, 229 Cal.App.3d 707, 716-17, 280 Cal.Rptr. 274 (1991), cert. denied, 503 U.S. 977 (1992); People v. Crawford, 224 Cal.App.3d 1, 8, 273 Cal.Rptr. 472 (1990). Indeed, the United States Supreme Court recently clarified that none of its precedents dictated the holding in Sheppard.
(Id. at p. 1237.)Sheppard is not binding on this court, and we have previously observed that the opinion is "difficult to square with" our high court's binding precedent (People v. Crawford (1990) 224 Cal.App.3d 1, 8) and that "California and Ninth Circuit decisions have uniformly viewed Sheppard narrowly and limited it to its facts" (Lucas, supra, 55 Cal.App.4th at p. 738). "By contrast
(Ibid.) Sheppard is factually distinguishable and, moreover, California courts have concluded it is inconsistent with California Supreme Court authority. (E.g., People v. Scott (1991) 229 Cal.App.3d 707, 717 ["Sheppard cannot be squared with binding California Supreme Court authority"]; People v. Crawford (1990) 224 Cal.App.3d 1, 8 [Sheppard is "difficult to square" with the California Supreme Court's ruling in People v. Murtishaw (1981) 29 Cal.3d 733].) Here, the accusatory pleading charged defendant with willfully, unlawfully, deliberately, and with premeditation and malice aforethought murdering Simental.
(Cf. People v. Crawford (1990) 224 Cal.App.3d 1, 8-9 [defendant could not have been surprised by felony-murder instruction because theory was suggested in a pretrial hearing].)