Opinion
H050696
11-30-2023
THE PEOPLE, Plaintiff and Respondent, v. HAROLD BERNARD SHAMBURGER, Defendant and Appellant.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 84228)
GROVER, J.
Defendant Harold Bernard Shamburger appeals from an order denying his second petition for resentencing under former Penal Code section 1170.95. For the reasons set forth here, we will affirm the order.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered Penal Code section 1172.6, with no substantive changes to the text. (Stats. 2022, ch. 58, § 10.).
I. Procedural Background
Shamburger was convicted by a jury of first degree murder in 1984 and after a separate jury trial later that year he was also found guilty of being an accessory to another murder (Pen. Code, § 32). He was sentenced to 25 years to life on the murder count and to a term of three years on the accessory count. This court affirmed Shamburger's murder conviction but reversed the accessory conviction on statute of limitations grounds. (People v. Brice (1988) 206 Cal.App.3d 111 (Nov. 23, 1988, H000730) (partial pub. opn).)
First Resentencing Petition
Representing himself, Shamburger petitioned for resentencing under former Penal Code section 1170.95 in 2019. Shamburger checked a box on a pre-printed form stating that "[a] complaint, information, or indictment was filed against me that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine," and he checked additional boxes stating that he had been convicted of first degree murder after a trial, and that he could not currently be convicted of first or second degree murder because of changes to Penal Code sections 188 and 189 effective January 1, 2019.
The trial court appointed counsel for Shamburger. The district attorney filed a request for dismissal based on the jury instructions from Shamburger's trial. Counsel stipulated to the trial court taking judicial notice of the jury instructions obtained by the district attorney and submitted as an exhibit to the request for dismissal. In his reply to the request for dismissal, Shamburger's counsel "submit[ted] on the question as to whether Petitioner is statutorily qualified for relief under Penal Code section 1170.95." He asked the trial court to adopt a procedure similar to People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v. Kelly (2006) 40 Cal.4th 106, (Kelly), in which the court would independently review the record to determine Shamburger's eligibility.
Shortly before his appointed lawyer filed the reply, Shamburger filed a pro se request for appointment of new counsel, or alternatively, to represent himself under Faretta v. California (1975) 422 U.S. 806 (Faretta) based on an unspecified conflict of interest. A few months later, Shamburger filed a second request for appointment of new counsel, which did not include the alternative request to represent himself. The court denied Shamburger's request for replacement counsel, ruling he had not demonstrated that his right to counsel had been substantially impaired as a result of his current attorney's representation. (See People v. Marsden (1970) 2 Cal.3d 118 (Marsden).) The court declined to rule on Shamburger's request to represent himself because he had not repeated that request in his second motion for new counsel.
The trial court denied the petition for resentencing, and denied counsel's request to adopt the independent review procedure of Wende and Kelly as inapplicable in superior court. The court determined from the jury instructions submitted by the district attorney that the jury had not been instructed on either a natural and probable consequences theory or felony murder liability. Based on this court's opinion in the direct appeal, it noted the alternative first degree murder theories presented, concluding that "to find him guilty of first degree murder based upon the instructions given, the jury must have unanimously concluded, beyond a reasonable doubt, that he committed deliberate and premeditated murder, or that the murder was preceded by a period of lying in wait." The court denied the petition without issuing an order to show cause, based on its conclusion that "as a matter of law ... he was not convicted of murder under either a theory of felony murder or under the natural and probable consequences doctrine."
Shamburger did not appeal the denial of his first petition for resentencing. (That proceeding included his motions under Marsden and Faretta.)
Second Resentencing Petition
Shamburger filed a second pro se petition for resentencing under Penal Code section 1170.95 in 2022. Shamburger used a preprinted form that was different from the form used in his first petition. He checked a box stating that an information had been filed against him which "allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime." He also checked boxes stating that he was convicted of murder following a trial, and that he could not currently be convicted of murder because of changes made to Penal Code sections 188 and 189 effective January 1, 2019. (Although Shamburger did not request counsel, it appears from the record that counsel was appointed but filed no reply to the district attorney's opposition to this second petition.)
The district attorney argued that under the jury instructions given, the only path to Shamburger's murder conviction was by way of malice murder, and thus he was ineligible for relief. The district attorney also argued that because Shamburger raised the same claim in a previous petition that had been denied, the principles that bar relief for successive habeas petitions should apply.
The trial court ruled that Shamburger's second petition was not proper absent any change in the relevant law or facts and he had alleged no such change. Even if permissible, the trial court stated it would deny the petition because the jury was not instructed on a natural and probable consequences theory or a felony murder theory of liability, conclusively demonstrating Shamburger was not entitled to relief under former Penal Code section 1170.95.
After a timely notice of appeal from that order, Shamburger's appointed counsel filed an opening brief pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano). In response to our notice that he could file a supplemental brief on his own behalf, Shamburger timely asserted that he was denied his right to competent counsel during the proceedings under former Penal Code section 1170.95; he was denied his right under Faretta to represent himself; the trial court improperly denied his request under Marsden for new counsel; and the record of conviction does not show that he was ineligible for relief as a matter of law because the aiding and abetting instruction given permitted him to be convicted of first degree murder without requiring the jury to find that he personally acted with malice (citing People v. Langi (2022) 73 Cal.App.5th 972 (Langi)).
We requested supplemental briefing from counsel on whether it was error to conclude that Shamburger had not made a prima facie showing under Langi, based on the instructions given in this case on aiding and abetting (CALJIC No. 3.01) and murder by means of lying in wait (CALJIC No. 8.25). We address those issues here as properly within the scope of this appeal from the order denying the second petition for resentencing.
II. Discussion
We independently review a trial court's determination of whether a petitioner has made the required showing under former Penal Code section 1170.95. (People v. Harden (2022) 81 Cal.App.5th 45, 52.) Shamburger contends that he showed prima facie entitlement to relief because the aiding and abetting instruction in combination with the instruction on murder by lying in wait allowed him to be convicted under a theory of imputed malice. The Attorney General maintains the trial court properly dismissed the resentencing petition as successive. The Attorney General also argues that under the instructions given here, the jury must have found Shamburger aided and abetted a first degree murder. As we will explain, we conclude the instructions did not allow the jury to convict Shamburger under a theory of imputed malice and as a result he is not eligible for resentencing.
A. Senate Bill Nos. 1437 and 775
In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 2), which amended Penal Code sections 188 and 189 to "eliminate[] natural and probable consequences liability for murder as it applies to aiding and abetting, and [to] limit[] the scope of the felony-murder rule." (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) This change in law resulted in three amendments to the Penal Code (unspecified statutory references are to this Code). First, section 188, subdivision (a)(3) was added so that "in order to be convicted of murder, a principal in a crime shall act with malice aforethought," and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Second, section 189, subdivision (e) was added to limit liability for felony murder. (Stats. 2018, ch. 1015, § 3.) Third, Senate Bill No. 1437 added former section 1170.95, "which creates a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief." (Lewis, at p. 957.) Specifically, "[a] person convicted of felony murder or murder under a natural and probable consequences theory may file a petition ... to have the petitioner's murder conviction vacated and to be resentenced on any remaining counts." (Former § 1170.95, subd. (a) (Stats. 2018, ch. 1015, § 4).)
In 2021, the Legislature enacted Senate Bill No. 775 (2020-2021 Reg. Sess.) (Stats. 2021, ch. 551, §2), which amended former section 1170.95, effective January 1, 2022. The amended statute extended relief to defendants convicted under any "other theory under which malice is imputed to a person based solely on that person's participation in a crime." (Former § 1170.95, subd. (a) (Stats. 2021, ch. 551, § 2.) (Former section 1170.95 has since been renumbered to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.))
"If a petitioner makes a prima facie showing of relief under section 1172.6-that is, a showing that the petitioner was convicted of murder, attempted murder, or manslaughter under a theory no longer valid under the amended Penal Code-the resentencing court must issue an order to show cause for an evidentiary hearing." (People v. Lee (Sept. 27, 2023, B323940) 95 Cal.App.5th 1164, 1174 (Lee).) The prima facie inquiry under section 1172.6, subdivision (c) is "limited." (Lewis, supra, 11 Cal.5th at p. 971.) 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." '" (Ibid.) The court may rely on the record of conviction in determining whether defendant has made a prima facie showing, and" '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." '" (Ibid.)
B. Shamburger's Second Petition Is Not Procedurally Barred as Successive
A petitioner may file a subsequent petition under section 1172.6 if it is based on new legal authority. (People v. Farfan (2021) 71 Cal.App.5th 942, 946-947 (Farfan).) Shamburger filed his first petition in January 2019, after the effective date of Senate Bill No. 1437 but before the passage of Senate Bill No. 775. In his first petition, Shamburger used a form that tracked the language of former section 1170.95, subdivision (a)(1) as it existed before the passage of Senate Bill No. 775. (See former § 1170.95, subd. (a)(1) (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019) ["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."].) Shamburger filed his second petition in October 2022, after the effective of Senate Bill No. 775, and the form he used for that petition included the language from Senate Bill No. 775 expanding relief to petitioners whose complaint, information, or indictment allowed the prosecution to proceed under a "theory under which malice is imputed to a person based solely on that person's participation in a crime." (See former § 1170.95, subd. (a)(1) (Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022).)
As in Farfan, Shamburger's second petition "rested on new legal authority which challenged the basis for the superior court's summary denial of the previous petition" because in his second petition he made a claim under Senate Bill No. 775, a statute that took effect after he filed his first petition. (Farfan, supra, 71 Cal.App.5th at p. 947.) We therefore reject the Attorney General's contention that Shamburger's second petition, from which this appeal arises, is procedurally barred.
C. Shamburger Failed to Establish a Prima Facie Case for Resentencing
Shamburger relies on Langi, supra, 73 Cal.App.5th 972, and People v. Maldonado (2023) 87 Cal.App.5th 1257 (Maldonado) to argue that the instructions at his trial permitted the jury to convict him on a theory of imputed malice.
Langi was convicted of second degree murder for participating in a fistfight where someone in his group punched the victim who then fell and hit his head, resulting in death. (Langi, supra, 73 Cal.App.5th at pp. 975, 976-977.) Langi petitioned for relief under former section 1170.95 because "the instructions were ambiguous and allowed the jury to find him guilty under a theory under which malice was imputed to him based solely on his participation in a crime." (Langi, at p. 975.) The Langi court concluded that although the jury was not instructed on a natural and probable consequences theory, the instructions given could have allowed the jury to impute malice to Langi. (Id. at pp. 981-982.) The court reasoned that under CALJIC No. 8.31, the actual killer did not have to intend to kill, so long as he knew that his action in punching the victim was dangerous to human life and he consciously disregarded that danger. (Langi, at pp. 982983.) And under CALJIC No. 3.01 an aider and abettor could be guilty of murder even if he intended only to encourage the intentional act of punching the victim, whether or not he intended to aid or encourage the killing, and whether or not he personally knew of and disregarded the risk of death. (Langi. at p. 983.) The record of conviction therefore did not conclusively negate the possibility that the jury found Langi guilty of second degree murder "by imputing to him the implied malice of the actual killer, without finding that he personally acted 'with knowledge of the danger to, and with the conscious disregard for, human life.'" (Id. at p. 984.)
Maldonado applied Langi in the context of first degree murder where the jury had been instructed on alternative theories of premeditation and lying in wait, but not on a natural and probable consequences theory; the jury had also been instructed on aiding and abetting. (Maldonado, supra, 87 Cal.App.5th at p. 1259.) As in Langi, the Maldonado court found the aiding and abetting instruction ambiguous because it could be read to permit the jury to find the defendant guilty of lying in wait as an aider and abettor, even if the direct perpetrator's purpose was only "to injure or intimidate the victim in a surprise attack," and as an aider and abettor the defendant merely encouraged the direct perpetrator's attack. (Maldonado, supra, 87 Cal.App.5th at p. 1266.) The ambiguity in the aiding and abetting instruction left open the possibility that the jury convicted Maldonado of murder based on malice imputed from participation, which was expressly invalidated by Senate Bill No. 1437. (Id., at p. 1267.)
Shamburger argues that because he was convicted of first degree murder "under the same set of instructions" as in Maldonado, he may have been convicted of murder based on imputed malice, and thus under Langi and Maldonado he has stated a prima facie case for relief. Shamburger correctly notes that the aiding and abetting instruction given in his case, CALJIC No. 3.01, was the same instruction found to be ambiguous in Langi and Maldonado. Here, as in those cases, the jury was essentially instructed that a person aid and abets a crime if he or she acts with knowledge of the unlawful purpose of the perpetrator, and with the intent or purpose of committing or encouraging or facilitating the commission of the crime. (CALJIC No. 3.01; see Langi, supra, 73 Cal.App.5th at p. 981-982 [CALJIC No. 3.01 aiding and abetting instruction]; Maldonado, supra, 87 Cal.App.5th at pp. 1264-1265 [describing the aiding and abetting instruction in CALCRIM No. 401 as" 'identical in relevant substance'" to the aiding and abetting instruction in Langi].) But the lying in wait instruction given here is materially different from the one given in Maldonado, and as a result Shamburger's jury could not have convicted him of first degree murder under a now-invalid theory.
The jury in Maldonado was instructed (in relevant part) on aiding and abetting a murder by lying in wait: "The defendant committed murder by lying in wait if: [¶] 1. (He/She) concealed (his/her) purpose from the person killed; [¶] 2. (He/She) waited and watched for an opportunity to act; [¶] And [¶] 3. Then, from a position of advantage (he/she) intended to and did make a surprise attack on the person killed. [¶] The lying in wait does not need to continue for any particular period of time, but its duration must be substantial enough to show a state of mind equivalent to deliberation or premeditation[.]" (See CALCRIM No. 521; Maldonado, supra, 87 Cal.App.5th at p. 1264.) There the court found a prima facie case for resentencing because the lying in wait instruction did not tell the jury that the direct perpetrator must intend to cause death, and instead the jury may have found the perpetrator intended only to injure or intimidate the victim in a surprise attack. Applying Langi's reasoning, the jury could have found Maldonado guilty as an aider and abettor of lying in wait murder simply by encouraging a surprise attack on the victim," 'whether or not [he] intended to aid or encourage [the victim's] killing, and whether or not he personally knew of and disregarded the risk of such a killing.'" (Maldonado, supra, 87 Cal.App.5th at p. 1266, quoting Langi, supra, 73 Cal.App.5th at p. 983.)
In contrast here, the lying in wait instruction stated: "Murder which is immediately preceded by lying in wait is murder of the first degree. [¶] The term 'lying in wait' is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or some other secret design to take the other person by surprise. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation. [¶] To constitute murder by means of lying in wait, there must be, in addition to the aforesaid conduct by the defendant, an intentional infliction upon the person killed of bodily harm involving a high degree of possibility that it will result in death and which shows a wanton disregard for human life." (CALJIC No. 8.25.) The jury here was further instructed that malice is implied "when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for base, antisocial purpose and with a wanton disregard for human life or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." (CALJIC No. 8.11.)
Unlike the instructions in Maldonado, which allowed for a conviction based on aiding and abetting as little as a surprise attack, the instructions here required the jury to find that Shamburger intended and encouraged an infliction of bodily harm involving a sufficient likelihood of death. (See CALJIC No. 8.11; see also 17A Cal.Jur.3d Criminal Law: Crimes Against the Person § 223 ["Instructions on killing by lying in wait do not eliminate malice aforethought as an essential ingredient of that crime where they make clear that although a specific intent to kill is not required to commit murder by lying in wait, it is necessary that there be the intentional infliction of bodily injury on the person killed under circumstances likely to cause death."].) We therefore conclude the instructions did not permit the jury to find Shamburger guilty of aiding and abetting a lying in wait murder under a theory of imputed malice, and Shamburger did not establish prima facie entitlement to resentencing.
Shamburger's motions under Marsden and Faretta were addressed in the order denying his first resentencing petition, which he did not appeal. We therefore do not address those issues, as they were not renewed in connection with his second petition and they are moot as a result of our conclusion that he is ineligible for resentencing.
III. Disposition
The January 6, 2023 order denying the petition for resentencing is affirmed.
WE CONCUR: Greenwood, P. J., Bromberg, J.