P. v. Muhammad

Filed 11/30/20 P. v. Muhammad CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
SHAKA SENEGAL
MUHAMMAD,
Defendant and Appellant.
B297043
(Los Angeles County
Super. Ct. No. YA003421)
APPEAL from an order of the Superior Court of
Los Angeles County, Laura C. Ellison, Judge. Affirmed.
Danalynn Pritz, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————

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A jury found Shaka Muhammad1 guilty of second degree
murder with a deadly weapon. Years later, he petitioned for
resentencing under Penal Code2 section 1170.95. The trial court
summarily denied the petition. On appeal, he contends that the
trial court failed to comply with the procedure in section 1170.95.
We disagree and affirm the order.
BACKGROUND3
An information charged Muhammad and codefendant
Abdul Malik Mohemmed (collectively defendants) with murder
(§ 187, subd. (a)); count 1) and shooting at an occupied vehicle
(§ 246; count 2). (People v. Mohemmed, supra, B064539 at p. 2.)
The information also alleged personal gun use enhancements
under sections 1203.06, subdivision (a)(1) and 12022.5 as to
count 1 and under 12022.5 as to count 2. (Mohemmed, at pp. 2–
3.) At Muhammad’s jury trial, evidence was introduced that
victim Kevin Davis and a friend left a club at which defendants
were working as security guards. (Id. at pp. 4–5.) Defendants
overheard Davis make derogatory comments. Taking offense,
they followed Davis to his car, and Mohemmed fired a gun
through the driver’s window, killing him. Muhammad also shot
Davis during the attack but only grazed his arm. A jury found
1 His name is spelled multiple ways in the record: Shaka
Muhammad, Shaka Mohammad, Mitchell Senegal, and Shaka
Mohemmed. For sake of clarity we refer to appellant as
Muhammad.
2 All further statutory references are to the Penal Code.
3 The background regarding the underlying crimes is from
the opinion affirming the judgment of conviction. (People v.
Mohemmed (Nov. 10, 1993, B064539) [nonpub. opn.].)

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defendants guilty of second degree murder and of shooting at an
occupied vehicle, and the jury found true the gun-use allegations.
(Id. at p. 3.) In 1991, the trial court sentenced Muhammad to an
indeterminate term of 15 years to life plus a determinate term of
five years for the gun enhancements. (Id. at p. 4.)
Thereafter, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
took effect January 1, 2019. That law amended the felony-
murder rule and eliminated the natural and probable
consequences doctrine as it relates to murder. Based on the new
law, a person convicted of murder under a felony murder or
natural and probable consequences theory may petition the
sentencing court for vacation of the conviction and resentencing,
if certain conditions are met. (§ 1170.95.)
On March 20, 2019, Muhammad filed a handwritten
document that the trial court treated as a petition under Senate
Bill No. 1437. Muhammad did not request counsel. However, he
said—albeit not in a declaration—that he had been found guilty
of second degree murder under the felony-murder rule and could
not be convicted of murder if he were tried under the current law.
Muhammad also submitted exhibits, including what appear to be
summaries of reporter’s transcripts from his trial, police reports,
minute orders, and news articles.
On April 9, 2019, the trial court summarily denied the
petition, stating in its order that Muhammad was convicted of
second degree murder with personal use of a firearm under
section 12022.5, subdivision (a). The trial court said,
“Additionally it is clear from the transcript of the sentencing
hearing that while the bullet that actually killed the victim may
not have been fired by Petitioner, Petitioner shot at the victim as
did his co-defendant (who was also convicted of murder and the

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personal use of a firearm).” Citing the opinion affirming the
judgment of conviction, the trial court added that Muhammad
fired the first gunshot at Davis through the windshield of Davis’s
car. Thus, “it is abundantly clear from the record” that
Muhammad was convicted and sentenced as a direct perpetrator.
The trial court therefore concluded that he was ineligible for
relief as a matter of law.
DISCUSSION
Muhammad contends that the trial court erred in
summarily denying his petition.4 As we now explain, we
disagree.
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with malice
aforethought to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
doctrine no longer applies to murder. And a participant in
enumerated crimes is liable under the felony-murder doctrine
only if the participant was the actual killer; or with the intent to
kill, aided and abetted the actual killer in commission of first
degree murder; or was a major participant in the underlying
4 The Supreme Court is reviewing whether superior courts
may consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
under section 1170.95 and when the right to appointed counsel
arises under subdivision (c) of that section. (People v. Lewis
(2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020,
S260598.)

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felony and acted with reckless indifference to human life. (§ 189,
subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also added section 1170.95. “Pursuant
to subdivision (a) [of that section] only individuals who meet
three conditions are eligible for relief: (1) the person must have
been charged with murder ‘under a theory of felony murder or
murder under the natural and probable consequences doctrine,’
(2) convicted of first or second degree murder, and (3) can no
longer be convicted of first or second degree murder ‘because of
changes to Section 188 or 189 made effective January 1, 2019.’ ”
(People v. Drayton (2020) 47 Cal.App.5th 965, 973.)
Section 1170.95 provides for multiple reviews of a petition
by the trial court. (People v. Tarkington (2020) 49 Cal.App.5th
892, 897, review granted Aug. 12, 2020, S263219; People v.
Drayton, supra, 47 Cal.App.5th at p. 974; People v. Cornelius
(2020) 44 Cal.App.5th 54, 57–58, review granted Mar. 18, 2020,
S260410; People v. Verdugo (2020) 44 Cal.App.5th 320, 328
(Verdugo), review granted Mar. 18, 2020, S260493; but see People
v. Cooper (2020) 54 Cal.App.5th 106, review granted Nov. 10,
2020, S264684.) Subdivision (b) of section 1170.95 describes an
initial review to determine the facial sufficiency of the petition.
(Verdugo, at p. 328.) To be facially sufficient, the petition must
contain the petitioner’s declaration that the petitioner is eligible
for relief according to the criteria in subdivision (a), the case
number and year of conviction, and whether the petitioner is
requesting appointment of counsel. (§ 1170.95, subd. (b)(1).) If
the petition is missing any of this information “and cannot be
readily ascertained by the court, the court may deny the petition
without prejudice.” (§ 1170.95, subd. (b)(2).) This initial review

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amounts essentially to a ministerial review to ensure that the
right boxes are checked.5
Subdivision (c) of section 1170.95 then describes the next
two levels of review. It provides, “The court shall review the
petition and determine if the petitioner has made a prima facie
showing that the petitioner falls within the provisions of this
section. If the petitioner has requested counsel, the court shall
appoint counsel to represent the petitioner. The prosecutor shall
file and serve a response within 60 days of service of the petition
and the petitioner may file and serve a reply within 30 days after
the prosecutor response is served. These deadlines shall be
extended for good cause. 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.”
The first sentence in subdivision (c) refers to a prebriefing,
initial prima facie review to preliminarily determine a
petitioner’s statutory eligibility for relief as a matter of law.
(Verdugo, supra, 44 Cal.App.5th at p. 329.) In this step of review,
the trial court determines, based upon its review of readily
ascertainable information in the record of conviction and the
court file, whether the petitioner is statutorily eligible for relief.
(Id. at pp. 329–330.) The court may review the complaint, the
information or indictment, the verdict form or the documentation
for a negotiated plea, and the abstract of judgment. (Ibid.) A
5 Arguably, the handwritten petition was facially
insufficient and, as Muhammad acknowledges, the trial court
could have denied it without prejudice. However, the trial court
did not deny it on that ground and we therefore do not address
the petition’s facial sufficiency under section 1170.95, subdivision
(b).

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Court of Appeal opinion is part of the appellant’s record of
conviction (id. at p. 333), as are jury instructions (People v. Soto
(2020) 51 Cal.App.5th 1043, 1055, review granted Sept. 23, 2020,
S263939). If these documents reveal ineligibility for relief, the
trial court can dismiss the petition. (Verdugo, at p. 330.)
If the record of conviction does not establish as a matter of
law the petitioner’s ineligibility for resentencing, evaluation of
the petition proceeds to the second prima facie review, in which
“the court must direct the prosecutor to file a response to the
petition, permit the petitioner (through appointed counsel if
requested) to file a reply and then determine, with the benefit of
the parties’ briefing and analysis, whether the petitioner has
made a prima facie showing he or she is entitled to relief.”
(Verdugo, supra, 44 Cal.App.5th at p. 330.) The trial court must
accept as true the petitioner’s factual allegations and make a
preliminary assessment regarding whether the petitioner would
be entitled to relief if the factual allegations were proved. (Id. at
p. 328.)
Section 1170.95 thus permits a trial court to make an
initial determination whether the petitioner may be entitled to
relief, without first appointing counsel. The structure and
grammar of subdivision (c) of that section “indicate the
Legislature intended to create a chronological sequence: first, a
prima facie showing; thereafter, appointment of counsel for
petitioner; then, briefing by the parties.” (Verdugo, supra, 44
Cal.App.5th at p. 332, italics added; accord, People v. Lewis,
supra, 43 Cal.App.5th at p. 1140.) As Verdugo at pages 328 to
329 noted, to hold otherwise that counsel must be appointed once
a petitioner files a facially sufficient petition renders
subdivision (c) redundant to subdivision (b)(2).

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Where a cursory review of the record of conviction shows
that the petitioner is not entitled to relief under Senate Bill
No. 1437, it “ ‘would be a gross misuse of judicial resources to
require the issuance of an order to show cause or even
appointment of counsel based solely on the allegations of the
petition, which frequently are erroneous.’ ” (People v. Lewis,
supra, 43 Cal.App.5th at p. 1138.)
That is the case here. In his direct appeal from the
judgment of conviction, Muhammad argued that the trial court
erroneously instructed the jury with CALJIC No. 8.10 on felony
murder because a violation of section 246 merges into the
resulting homicide. (People v. Mohemmed, supra, B064539 at p.
19.)6 The Court of Appeal agreed it was error to give the
instruction but found the error to be harmless. That is, the jury
was also instructed with CALJIC No. 8.30 that second degree
murder requires a finding of malice aforethought and with
CALJIC No. 8.31 that second degree murder requires a finding of
6 The jury was instructed, “ ‘The defendant is accused in
Count I of the information of having committed the crime of
murder, a violation of . . . section 187. [¶] Every person who
unlawfully kills a human being with malice aforethought or
during the commission or attempted commission of shooting at an
occupied vehicle, a felony inherently dangerous to human life, is
guilty of the crime of murder in violation of section 187. . . . [¶]
In order to prove such crime each of the following elements must
[be] proved: [¶] 1. That a human being was killed[;] 2. [¶]
That the killing was unlawful[;] and, [¶] 3. The killing was done
with malice aforethought or occurred during the commission or
attempted commission of shooting at an occupied vehicle, a felony
inherently dangerous to human life.’ ” (People v. Mohemmed,
supra, B064539 at p. 17.)

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implied malice. (Mohemmed, at p. 19.) By “convicting
defendants for second degree murder, the jury’s verdict
necessarily made a finding of malice based on the correct
instructions and rejected a felony murder theory partially set
forth in the incorrect instruction.” (Id. at pp. 19–20.) In addition,
the jury could not have found Muhammad guilty of second degree
felony murder because the erroneous instruction did not refer to
second degree murder whereas the correct instructions did. (Id.
at p. 20.)7
Mohemmed’s conclusion that Muhammad was found guilty
of second degree murder based on a finding of malice is law of the
case. The law of the case doctrine precludes multiple appellate
reviews of the same issue in a single case. (People v. Barragan
(2004) 32 Cal.4th 236, 246–247.) Because the finding of malice
aforethought precludes section 1170.95 relief (§ 188, subd. (a)(3)),
the trial court properly denied the petition without further
briefing or hearing.
7 Muhammad cites People v. Mil (2012) 53 Cal.4th 400 to
ostensibly show why we cannot rely on Mohemmed. The trial
court in Mil had failed to instruct on elements of an offense. Mil
at page 417 held that such error is amenable to harmless error
review. The reviewing court does not view the evidence in the
light most favorable to the prosecution and presume all facts in
support of the judgment that a jury might reasonably infer;
instead, the task requires analyzing whether any rational fact
finder could have come to the opposite conclusion. (Mil, at p.
418.) Mil is distinguishable because the trial court in this case
did not omit elements of an offense. And Mohemmed’s harmless
error analysis was not based on the evidence but on the
instructions and the verdicts.

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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
EGERTON, J.

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LAVIN, J., Concurring and Dissenting:
A petition under Penal Code1 section 1170.95 must allege
the following: “(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 convicted for first degree or second degree
murder[;] [¶] [and] (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, subd. (a)(1)–
(3).) The petition must also include the petitioner’s declaration
showing eligibility under all three enumerated conditions, as well
as the superior court case number, year of conviction, and any
request for appointment of counsel. (§ 1170.95, subd. (b)(1);
People v. Ramirez (2019) 41 Cal.App.5th 923, 929.)
Here, petitioner Shaka Muhammad acknowledges that his
petition did not include a declaration by him that he was eligible
for relief under section 1170.95. Because his petition was missing
required information, the trial court should have denied the
petition without prejudice to the filing of another petition. (See §
1170.95, subd. (b)(2) [“If any of the information required by this
subdivision is missing from the petition and cannot be readily
ascertained by the court, the court may deny the petition without
prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.”].)
1 Undesignated statutory references are to the Penal Code.

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2
I would vacate the trial court’s order and instruct it to
enter a new order denying the petition without prejudice. I would
not reach any other issues.
LAVIN, Acting P.J.

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