People v. Shallowhorn CA2/2

Filed 11/4/26 P. v. Shallowhorn CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO THE PEOPLE, B349701 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. TA034917) ALFRED EUGENE ORDER MODIFYING SHALLOWHORN, OPINION AND DENYING Defendant and Appellant. REHEARING NO CHANGE IN JUDGMENT THE COURT: It is ordered that the opinion filed herein on October 12, 2026, be modified as follows: In the second sentence on page 3 of the opinion, replace the phrase “(3) perpetrated the murders ‘by means of discharging a firearm from a motor vehicle intentionally at another person outside the vehicle’ and appellant ‘specifically intended to inflict death’ ” with the following phrase: (3) committed murder which was perpetrated by means of discharging a firearm from a moving vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death. There is no change in the judgment. Appellant’s petition for rehearing is denied. NOT TO BE PUBLISHED. —————————————————————————————— LUI, P. J. RICHARDSON, J. GOORVITCH, J. 2 Filed 10/12/26 P. v. Shallowhorn CA2/2 (unmodified opinion) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO THE PEOPLE, B349701 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. TA034917) ALFRED EUGENE SHALLOWHORN, Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Carol Najera, Judge. Affirmed. Nancy Gaynor, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland and Susan Sullivan Pithey, Assistant Attorneys General, Stephanie C. Brenan and Melanie Dorian, Deputy Attorneys General, for Plaintiff and Respondent. _________________________________________  Alfred Eugene Shallowhorn appeals from the summary denial of his second petition for resentencing under section 1172.6.1 Because appellant’s record of conviction still forecloses the possibility that he was convicted on an invalid theory of murder, we again affirm. FACTS AND PROCEDURAL HISTORY 1. Underlying crime2 On the evening of December 2, 1995, appellant met with other members of the Spooktown Crips, Acacia Block Crips, and Farm Dog Crips to discuss plans to shoot members of the Nutty Block Crips in retaliation for the shooting death earlier that day of an acquaintance of theirs. Around 8:00 p.m. that evening, appellant armed with an assault rifle and a cohort armed with a Tech-9 semiautomatic pistol drove to an area controlled by the Nutty Block Crips and shot three young people dead. 2. Conviction and appeal Appellant was charged with three counts of first degree murder (§ 187, subd. (a)), and conspiracy to commit murder (§§ 182, subd. (a)(1), 187, subd. (a)). As to the murder counts, the People further alleged the special circumstances allegations of multiple murders (§ 190.2, subd. (a)(3)) and firearm armed and use allegations (§§ 1203.06, subd. (a)(1), 12022, subd. (a)(1), 12022, subd. (a)(1), 12022.5, and 12022.55). 1 Undesignated statutory references are to the Penal Code. 2 These facts were summarized in our opinion affirming the trial court’s denial of appellant’s prior 1172.6 petition (People v. Shallowhorn (Sept. 9, 2021, B311337) [nonpub. opn.]), and are largely drawn from our opinion affirming appellant’s conviction on direct appeal (People v. Shallowhorn (Aug. 29, 2001, B125654)). 2  The matter proceeded to trial, and the jury was instructed on the prosecution’s theories. As to the murder charges, the jury was instructed on the theories that appellant (1) “directly and actively [committed] the act constituting the crime” (CALJIC No. 3.00); (2) was a direct aider and abettor (CALJIC No. 3.01); and (3) perpetrated the murders “by means of discharging a firearm from a motor vehicle intentionally at another person outside the vehicle” and appellant “specifically intended to inflict death” (CALJIC No. 8.25.1). The jury was also instructed on murder, malice, and the requirements for finding first degree willful, deliberate, and premeditated murder. The jurors did not receive CALJIC No. 3.02, regarding liability as an aider and abettor under the natural and probable consequences doctrine. With respect to liability as a coconspirator, the jury was instructed with CALJIC No. 6.11 in pertinent part: “Each member of a criminal conspiracy is liable for each act . . . if that act . . . is in furtherance of the object of the conspiracy [¶] . . . [¶] A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did not commit, but is also liable for the natural and probable consequences of any crime of a co-conspirator to further the object of conspiracy, even though that crime was not intended as part of the agreed upon objective.” (People v. Shallowhorn, supra, B311337.) The jury convicted appellant on all charges and found all allegations true. The trial court sentenced appellant to three consecutive sentences of life without the possibility of parole for the three murder convictions, plus 33 years for the firearm enhancements. As to the conspiracy count the court imposed but stayed a sentence of 25 years to life. (People v. Shallowhorn, supra, B311337.) 3  He appealed his conviction, and we affirmed. (People v. Shallowhorn, supra, B125654.) 3. First 1172.6 petition and appeal On December 17, 2020, appellant filed a petition for resentencing under what is now section 1172.6. After reviewing the available case file, including the relevant jury instructions and the court’s 2001 unpublished opinion, the trial court summarily denied appellant’s petition on January 13, 2021. It found that appellant did not make a prima facie showing because “[t]he jury was not instructed on either the natural and probable consequences doctrine of vicarious liability or the felony murder doctrine” such that neither theory formed the basis for appellant’s conviction. Instead, appellant was convicted as “both a direct aider and abettor and a perpetrator of the crimes.” (People v. Shallowhorn, supra, B311337.) Appellant filed a notice of appeal from the trial court’s order, and his appointed counsel filed an opening brief under People v. Wende (1979) 25 Cal.3d 436, stating that her review of the record revealed no arguable issues to raise on appeal. Appellant filed a supplemental brief urging that the conspiracy instruction allowed the jury to hold appellant liable for unintended crimes which were the natural and probable consequence of the conspiracy, and that he and his coconspirators meant to kill rival gang members and not the innocent bystanders that they in fact killed. We rejected appellant’s arguments and affirmed the trial court’s summary denial. (People v. Shallowhorn, supra, B311337.) 4 4. Second resentencing petition under section 1172.6 On September 12, 2024, appellant filed a second petition for resentencing under section 1172.6. The trial court appointed counsel, the People filed their opposition, and appellant his reply. At the prima facie hearing on October 6, 2025, the parties submitted on their briefs, and the trial court concluded that appellant is ineligible for relief as a matter of law. DISCUSSION 1. Section 1172.6 The Legislature enacted Senate Bill No. 1437 in 2018, abolishing the natural and probable consequences doctrine in cases of murder and limiting the application of the felony-murder rule. (Stats. 2018, ch. 1015, § 1, subd. (f); see People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).) The legislation bars murder convictions premised on any theory of imputed malice—that is, any theory by which a person can be convicted of murder for a killing committed by someone else, such as felony murder or the natural and probable consequences doctrine—unless the People also prove that the nonkiller defendant personally acted with the intent to kill or was a major participant who acted with reckless indifference to human life. (§§ 188, subd. (a)(3) & 189, subd. (e).) Specifically, the Legislature amended section 188 to require that, when the felony-murder rule does not apply, a principal in the crime of murder “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); see People v. Gentile (2020) 10 Cal.5th 830, 842–843.) Section 1172.6 contains the procedure for vacating the murder convictions of defendants who could no longer be convicted because of the amendments to sections 188 and 189. 5 (Lewis, supra, 11 Cal.5th at pp. 957, 959, 971.) After appointment of counsel (if requested), the trial court must permit briefing and hold a hearing “to determine whether the petitioner has a made a prima facie case for relief.” (§ 1172.6, subd. (c).) At this stage, the trial court can and should look to the record of conviction. (Lewis, at pp. 970–971 [“The record of conviction will necessarily inform the trial court’s prima facie inquiry . . . allowing the court to distinguish petitions with potential merit from those that are clearly meritless”].) “If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition.” (People v. Strong (2022) 13 Cal.5th 698, 708.) Whether a petitioner has made a prima facie case for relief under section 1172.6 is a purely legal issue subject to de novo review. (People v. Saavedra (2023) 96 Cal.App.5th 444, 447.) 2. Appellant is ineligible for relief as a matter of law Appellant argues that the “natural and probable consequences” language in the conspiracy instructions permitted the jury to convict him of murder without finding he had the intent to kill the specific victims that were murdered, which he urges is necessary for direct aiding and abetting. We rejected a similar argument in our 2021 opinion (People v. Shallowhorn, supra, B311337), and reaffirm here that this argument finds no support in the law. Indeed, it has since been rejected in multiple published opinions. (People v. Nguyen (2024) 103 Cal.App.5th 668, 679–683; People v. Allen (2023) 97 Cal.App.5th 389, 396 [“ ‘ “The social harm of murder is ‘the ‘killing of a human being by another human being’ ” ’ ”]). “ ‘The law speaks in terms of an unlawful intent to kill a person, not the person intended to be killed.’ ” (People v. Bland (2002) 28 Cal.4th 313, 323; id. at pp. 6 323–324 [“Whether one conceptualizes the matter by saying that the intent to kill the intended target transfers to others also killed, or by saying that intent to kill need not be directed at a specific person, the result is the same: assuming legal causation, a person maliciously intending to kill is guilty of the murder of all persons actually killed”].) Appellant relies on People v. McCoy (2001) 25 Cal.4th 1111 (McCoy) to argue otherwise, but nothing in McCoy supports his position. McCoy recognized that “when the charged offense and the intended offense—murder or attempted murder—are the same, i.e., when guilt does not depend on the natural and probable consequences doctrine, . . . the aider and abettor must know and share the murderous intent of the actual perpetrator.” (Id. at p. 1118.) That appellant may have directly aided and abetted the murder of people who were not the intended victims does not strip him of his murderous intent. Appellant also filed a supplemental reply brief and requested judicial notice (which we granted) of our prior unpublished opinion reversing the summary denial of an 1172.6 petition filed by appellant’s codefendant, who was tried separately and whose jury received a different set of instructions. (People v. Sealie (Aug. 15, 2024, B327735).) Appellant argues that reversal is warranted here based on the same conspiracy instruction that warranted reversal in Sealie. As in Sealie, appellant’s jury was instructed in connection with the conspiracy count that “[a]t least two of the persons specifically intended to enter into an agreement with one or more other persons for that 7 purpose” (to kill).3 Because the case involved three conspirators, the Sealie jury did not necessarily find that the defendant intended to kill when it convicted him of conspiracy to commit murder. (Sealie, supra, B327735.) This was problematic because the Sealie jury was instructed with respect to the murder counts on theories of imputed malice—namely, that the defendant was liable for the murders as a natural and probable consequence of an assault with a firearm committed by his cohorts and as a natural and probable consequence of participating in the conspiracy to commit murder. (Ibid.) But the three theories of murder presented to appellant’s jury—that he was the actual killer, that he directly aided and abetted the actual killer, or that he engaged in a drive-by shooting with the intent to kill—all required a finding that appellant himself acted with malice. (People v. Shallowhorn, supra, B311337.) Because appellant’s jury was not instructed on any theory of imputed malice, a full and proper conspiracy instruction is not necessary to close any loophole regarding the intent required for murder. To the extent appellant argues that the faulty conspiracy instruction somehow vitiated the requirement imposed by the murder instructions, we are unconvinced. The jury was specifically instructed that it “must decide each [c]ount separately.” (CALJIC No. 17.02; People v. O’Malley (2016) 62 Cal.4th 944, 993 [“ ‘We presume the jury understood and followed the instruction’ ”].) Appellant further argues that the direct aiding and abetting instructions did not require “that appellant knew the 3 This instruction is appropriate when a conspiracy involves the feigned participation of a false coconspirator or government agent. (People v. Garton (2018) 4 Cal.5th 485, 516.) 8 perpetrator intended to kill and intended to aid him in doing so,” presumably because the instruction did not expressly name “murder” as the crime. It provided, in relevant part: “A person aids and abets the commission or attempted commission of a crime when he or she, [¶] (1) with knowledge of the unlawful purpose of the perpetrator and [¶] (2) with the intent or purpose of committing or encouraging or facilitating the commission of the crime, and [¶] (3) by act or advice aids, promotes, encourages or instigates the commission of the crime.” (CALJIC No. 3.01.) Because the only crime charged was murder, aside from conspiracy (the object of which was murder), the “crime” referred to in the direct aiding and abetting instructions was necessarily murder, and the “unlawful purpose” was correspondingly to kill. (McCoy, supra, 25 Cal.4th at p. 1118.) If the jury convicted appellant as a direct aider and abettor, it necessarily found that he shared in the actual killer’s murderous intent. (Ibid.; People v. Beeman (1984) 35 Cal.3d 547, 560.) Citing People v. Curiel (2023) 15 Cal.5th 433 and People v. Morris (2026) 19 Cal.5th 671, appellant argues that “reliance on a finding of personally harbored malice” for direct aiding and abetting “is no longer viable.” Both cases are distinguishable. The jury in Curiel was instructed on natural and probable consequences, and although the jury’s true finding on the gang- murder special circumstance included a finding of murderous intent, it did not necessarily include the corresponding actus reus required for direct aiding and abetting because it only required that the defendant knew the perpetrator intended to commit one of the underlying target offenses, and that the defendant intended to aid the perpetrator in that offense, not murder. (Curiel, at p. 468.) Such is not the case here, where appellant’s 9 jury was not instructed on natural and probable consequences and the only target offense was murder. Morris also does not aid appellant, as it concerned direct aiding and abetting in the context of felony-murder, the issue being “whether [the defendant] is precluded from making a prima facie showing . . . as a nonkiller aider or abettor of robbery and rape with intent to kill.” (Morris, at p. 678 [murder as a direct aider and abettor requires the nonkiller to aid in the lethal act itself, and not just in the underlying felony].) Because felony murder was not at issue in this case, Morris has no relevance. DISPOSITION The trial court’s order is affirmed. NOT TO BE PUBLISHED. LUI, P. J. We concur: RICHARDSON, J. GOORVITCH, J. 10