Filed 1/24/20 P. v. Shane CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ANTHONY SHANE,

Defendant and Appellant.

B298294

(Los Angeles County

Super. Ct. No. A030897)

APPEAL from order of the Superior Court of Los Angeles County. Laura Laesecke, Judge. Affirmed.

Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

___________________________

On February 7, 1985, defendant and appellant Michael Anthony Shane entered the home of an elderly couple and beat them before robbing them of over $1000. The husband suffered a stroke as a result, and died three months later. A jury found Shane guilty of first degree murder (Pen. Code, § 187 [count 1]) , robbery of a residence (§ 213.5 [count 2]), and assault by means likely to cause great bodily injury (§ 245, subd. (a)(2) [count 3]). The jury also found true the allegation that Shane personally inflicted great bodily injury during the commission of the robbery within the meaning of section 12022.7.

Shane was sentenced to a determinate term of 3 years in prison in count 3, plus 25 years to life in count 1, to run consecutively. The trial court imposed a term of four years in count 2, plus three years for the personal infliction of great bodily injury enhancement, which it stayed pursuant to section 654.

On March 21, 2019, Shane filed a petition for resentencing under section 1170.95, as enacted pursuant to Senate Bill No. 1437 (Sen. Bill No. 1437 (2017–2018 Reg. Sess.) (Stats. 2018, ch. 1015)) (Senate Bill 1437), effective January 1, 2019. He was represented by counsel, who filed a petition and supporting memorandum of points and authorities on his behalf. The petition included the following attachments: (1) the probation officer’s report, (2) a transcript of the April 9, 1986 sentencing hearing, (3) Shane’s declaration, (4) excerpts from the trial transcript, (5) our opinion on direct appeal affirming the judgment in the underlying case, and (6) excerpts from the preliminary hearing transcript.

Senate Bill 1437 created a procedure by which a person convicted of murder “who did not act with implied or express malice” may seek relief from liability if the person 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.” (People v. Munoz (2019) 39 Cal.App.5th 738, 749–750; Stats. 2018, ch. 1015, § 1, subds. (f), (g); People v. Anthony (2019) 32 Cal.App.5th 1102, 1147; People v. Martinez (2019) 31 Cal.App.5th 719, 723 (Martinez).) Senate Bill 1437 also added section 1170.95, which permits persons convicted of murder under a felony murder or natural and probable consequences theory to petition in the sentencing court for an order vacating their convictions and allowing defendant to be resentenced. (Stats. 2018, ch. 1015, § 4; Martinez, supra, 31 Cal.App.5th at p. 723.)

The trial court denied Shane’s petition, finding that “SB 1437 is unconstitutional because it illegally amended Proposition 7. Even if it is constitutional, Penal Code section 1170.95 does not apply in this case. The issue of proximate cause was determined by the jury and affirmed on appeal. Thus, he was the actual killer.”

Shane appealed, and his appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no issues. On October 17, 2019, we notified Shane of his counsel’s brief and gave him leave to file, within 30 days, his own brief or letter stating any grounds or argument he might wish to have considered. That time has elapsed, and Shane has submitted no brief or letter.

We conclude that the trial court did not err in denying the petition. Shane’s record of conviction shows that he was the actual killer. Accordingly, he cannot make a prima facie showing he is entitled to relief under section 1170.95. We have independently reviewed the entire record and are satisfied that Shane’s attorney has fully complied with his responsibilities and that no other arguable issues exist. (Smith v. Robbins (2000) 528 U.S. 259, 278–279; People v. Kelly (2006) 40 Cal.4th 106, 123–124.)

The trial court’s order denying Shane’s section 1170.95 petition for resentencing is affirmed.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.