P. v. Boode

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Filed 6/17/20 P. v. Boode CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
SHAWNDRA STARR BOODE,
Defendant and Appellant.
A157879
(Alameda County
Super. Ct. No. H46925A)
Shawndra Starr Boode appeals the denial of a petition under Penal
Code section 1170.95,1 which allows persons convicted of murder under
theories of accomplice liability invalidated by Senate Bill No.1437 (SB 1437)
to petition for resentencing. Boode challenges the trial court’s summary
denial of her petition, contending that the court erred in failing to assign the
matter to the judge who presided at her trial to conduct an evidentiary
hearing, to appoint counsel for her, and to direct the district attorney to file a
response to the petition. Her record of conviction, however, establishes as a
matter of law that she is ineligible for relief under the new statute, so that
any arguable procedural error was harmless. We shall affirm the order
denying her petition.
1 All statutory references are to the Penal Code.

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Factual and Procedural History
Boode attached to her petition a copy of this court’s opinion affirming
her convictions (People v. Rodriguez (Oct. 10, 2012, A128678 [nonpub. opn.])
and she quoted extensively from the opinion to serve as the petition’s
statement of facts. Our prior opinion begins as follows: “Appellants Jorge
Rodriguez and Shawndra Star Boode . . . were jointly tried and each was
convicted of two counts of first degree murder (Pen. Code, § 187, subd. (a)).
The jury also found true two special circumstances (murder committed in the
course of a robbery and multiple victims), which elevated both counts to
special circumstance murder (§ 190.2, subds. (a)(3), (a)(17)(A)). The jury also
found true various special allegations.” (Fn. Omitted.) At this point, the
opinion includes this footnote: “Specifically, . . . the jury found that [Boode]
personally used a firearm in the commission of the murders (§ 12022.5, subd.
(a)); and personally and intentionally discharged a firearm, and caused great
bodily injury on another person (§§ 12022.7, subd. (a), 12022.53, subds. (d),
(g)). . . . [T]he jury found that [Rodriguez] was armed with a firearm (§ 12022,
subd. (a)(1)).”
As set forth in the opinion, “The prosecution’s theory of the case was
that on or about January 17, 2004, appellants shot and killed David and
Catherine Brooks (Dave and Cathy), with whom they were acquainted, in
order to steal approximately $380,000 Dave had recently received in
settlement for an on-the-job injury.” According to the testimony of Peter
Elisary, a third participant in the crime who testified at trial, “[o]n the night
of the murders, Elisary and appellants ingested methamphetamine and
discussed the robbery for about an hour. At about ‘two, three, four in the
morning,’ appellants, accompanied by Elisary, set out to commit the robbery.”
Afterward, “Boode described the murder to Elisary. Boode said she demanded

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money from Dave and then ‘she shot Dave in the back.’ She then heard a
noise in the kitchen, turned and saw Cathy, chased Cathy into the bedroom,
and ‘just shot her’ in the ‘neck or facial area.’ ” The opinion relates other
testimony that described the details of the murders differently, but the jury
convicted appellants of all counts, special findings, and special circumstances.
Boode’s petition alleges that she “qualifies for the relief sought” under
section 1170.95. Upon reviewing the petition, the presiding judge issued an
order summarily denying it. After reciting the case history and explaining how
SB 1437 modified the law of murder, the order concludes as follows: “The
petition is denied because relief under Penal Code section 1170.95 is
unavailable as [Boode] was the actual killer. (Pen. Code, § 189, subd. (e)(1).)
Furthermore, [Boode] was not convicted of murder under a natural and
probable consequences theory. Rather, [she] was convicted on a valid theory
of murder which survives the changes to . . . sections 188 and 189 made by
SB 1437. (Pen. Code, § 1170.95, subd. (a)(3).) [¶] Accordingly, the petition is
DENIED for failure to make a prima facie showing that [Boode] is entitled to
relief or falls within the provisions of Penal Code section 1170.95. (Pen. Code,
§ 1170.95, subd. (c).)” Boode timely appealed.
Discussion
As detailed in People v. Verdugo (2020) 44 Cal.App.5th 320, 325, review
granted, March 18, 2020, S260493 (Verdugo), SB 1437 “significantly
modif[ied] the law relating to accomplice liability for murder. In its
uncodified findings and declarations the Legislature stated, ‘It is necessary to
amend the felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is not
imposed on a person who is not the actual killer, did not act with the intent to

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kill, or was not a major participant in the underlying felony who acted with
reckless indifference to human life.’ ”
SB 1437 also enacted section 1170.95. Division Three of this court
recently summarized that provision: “[S]ubdivision (a) provides that the
petition must [allege that]: (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 or second
degree murder following a trial, and (3) the petitioner could not be convicted
of first or second degree murder because of changes in sections 188 and 189
made effective January 1, 2019. ([§ 1170.95], subd. (a)(1), (2), (3).) The
petition must also include . . . a declaration stating the petitioner ‘is eligible
for relief under this section’ based on all the requirements in subdivision (a)
. . . and whether the petitioner requests the appointment of counsel. (Id.,
subd. (b)(1)(A) & (C).)” (People v. Edwards (2020) 48 Cal.App.5th 666, 672
(Edwards).)
“Subdivision (c) [of section 1170.95] provides the process by which the
court is to decide the petition: ‘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 [thereafter]. . . . 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.’ Therefore, no order to show cause is
issued and no hearing is held [citation] unless the court first [finds] a prima

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facie showing of entitlement to relief.” (Edwards, supra, 48 Cal.App.5th at
p. 673.)2
Like the appellants in Verdugo, supra, 44 Cal.App.5th 320, and
Edwards, supra, 48 Cal.App.5th 666, Boode contends that the trial court was
obliged to accept at face value the allegations in her petition that she satisfies
the three prerequisites for relief under section 1170.95, subdivision (a), and
was thus required to assign the matter to the trial judge if still serving,
appoint counsel for her, direct the district attorney to file a response, and
hold an evidentiary hearing. Boode contends that the presiding judge violated
the statute by improperly “going beyond the face of the petition” and relying
on the record of conviction to decide that she had not “made a prima facie
showing that [she] falls within the provisions of this section.” (§ 1170.95,
subd. (c).)
We agree with our colleagues in Division Three, who followed Verdugo,
supra, 44 Cal.App.5th 320, in rejecting that argument: “Section 1170.95,
‘which authorizes the court both to dismiss the petition if it lacks any
required information and to determine if there is a prima facie showing the
petitioner falls within the provisions of the statute before ordering briefing,
indicates the Legislature’s intent that the superior court perform a substantive
gatekeeping function, screening out clearly ineligible petitioners before
devoting additional resources to the resentencing process. [Citations.]’
2 Subdivision (b)(1) of section 1170.95 provides: “The petition shall be
filed with the court that sentenced the petitioner and served by the petitioner
on the district attorney, or on the agency that prosecuted the petitioner, and
on the attorney who represented the petitioner in the trial court or on the
public defender of the county where the petitioner was convicted. If the judge
that originally sentenced the petitioner is not available to resentence the
petitioner, the presiding judge shall designate another judge to rule on the
petition. . . .”

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[Citation.] To that end, ‘the relevant statutory language, viewed in context,
makes plain the Legislature’s intent to permit the [superior] court . . . to
examine readily available portions of the record of conviction to determine
whether a prima facie showing has been made that the petitioner falls within
the provisions of section 1170.95.’ ” (Edwards, supra, 48 Cal.App.5th at p. 673,
quoting Verdugo, supra, 44 Cal.App.5th at pp. 331, 323.)
In this case, Boode attached to her petition a copy of this court’s opinion
affirming her conviction and quoted its factual and procedural history in full
(footnotes excepted). The petition itself thus alleges, expressly or by
incorporation, the facts that are stated in the opinion and that collectively
establish, as a matter of law, Boode’s ineligibility for relief under
section 1170.95: “Each victim died from a gunshot wound to the head”; “the
jury found that [Boode] . . . personally and intentionally discharged a firearm,
and caused great bodily injury on another person (§§ 12022.7, subd. (a),
12022.53, subds. (d), (g))”; and the only special circumstance the jury found
true as to Rodriguez is that he was armed (§ 12022, subd. (a)(1)). Section
12022.53, subdivision (d), which the jury found applicable to Boode, applies to
“any person who, in the commission of [specified felonies], personally and
intentionally discharges a firearm and proximately causes great bodily injury
. . . or death, to any person other than an accomplice.” (§ 12022.53, subd. (d).)
Boode thus remains subject to conviction for murder under the current law
because the jury necessarily found her to be the actual killer. (§ 189,
subd. (e)(1).)
The trial court stated that relief under section 1170.95 “is unavailable
as [Boode] was the actual killer.” On appeal, Boode cites authority holding it
improper to rely on statements in a judicial opinion to make factual findings
about the circumstances of an underlying crime. (Gilmore v. Superior Court

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(1991) 230 Cal.App.3d 416, 418.) But while the trial court’s order might be
read to imply that the court made a factual finding about the underlying
crime, in context it is clear that the court determined only that the jury found
that she was the actual killer. The portions of the record of conviction
attached to the petition show beyond doubt that the jury did so.
Boode’s petition correctly asserts that mere knowledge that a
codefendant is armed does not necessarily evince reckless indifference to life,
citing two decisions postdating her conviction that discuss factors to consider
in determining whether a person who participated in a robbery, but who did
not herself kill anyone, qualifies as a major participant who acted with
reckless indifference to human life. (People v. Clark (2016) 63 Cal.4th 522,
610–623; People v. Banks (2015) 61 Cal.4th 788, 804–811). At an evidentiary
hearing, the petition asserts, she could “argue additional facts and evidence
from the record that are important now under Banks and Clark” and that
show that the jury’s fact-finding was inaccurate. She claims she could offer
“polygraph evidence which was inadmissible during [her] trial but could be
considered by a judge during a hearing pursuant to SB 1437” to “evaluate
whether the chief prosecution witnesses were, in fact, truthful.” She also
offered to “submit to an additional polygraph examination” about “what
happened on . . . January 17, 2004.” Because the court denied her petition
without a hearing, she contends, “[n]either this court nor the trial court can
categorically state at this point, beyond a reasonable doubt, that any such
evidence would not entitle [her] to resentencing.”
Boode’s argument fails because the judgment of conviction precludes
her from relitigating whether, as her jury necessarily found, she was the
actual killer. (People v. Lewis (2020) 43 Cal.App.5th 1128, 1138–1139, review
granted, Mar. 18, 2020, S260598, citing 1 Witkin & Epstein, Cal. Crim. Law

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(4th ed. 2012) Defenses, § 208, pp. 683–684.) Boode cites no part of section
1170.95 or of its legislative history suggesting an intent to deprive a jury’s
factual findings of their usual issue-preclusive (or “collateral estoppel”) effect.
Section 1170.95 is not designed to permit a defendant to secure a
redetermination of the facts found to support a conviction, but to allow one
convicted of murder to show that those findings no longer support a
conviction of murder on a theory that remains valid. Moreover, even if we were
to “assume, without deciding, that section 1170.95 permits a petitioner to
present evidence from outside the record to contradict a fact established by the
record of conviction” (People v. Lewis, supra, 43 Cal.App.5th at p. 1139), Boode
failed to make a prima facie showing of entitlement to relief. She never stated
what facts her “polygraph evidence” would prove, or how those facts could
negate the jury’s findings that she personally fired a gun causing the death of
two victims.
Because Boode’s record of conviction establishes that she is ineligible
for relief as a matter of law, the presiding judge properly denied her petition
without further proceedings. Moreover, even if the trial court erred by failing
to refer the petition to her sentencing judge, or to appoint counsel and hold
an evidentiary hearing, any such procedural error was necessarily harmless
under any standard of review. (Edwards, supra, 48 Cal.App.5th at p. 675.)
No published decision appears to have yet addressed whether a failure
to assign a section 1170.95 motion to “the judge that originally sentenced the
petitioner” (§ 1170.95, subd. (b)(1)) constitutes harmless error. However, a
line of decisions analyzing section 1053, which authorizes a midtrial
substitution of judges if the original judge “ ‘shall die, become ill, or for any
other reason be unable to proceed with the trial,’ ” establishes that an
erroneous substitution of judges is subject to harmless-error review. (People

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v. Rogers (2009) 46 Cal.4th 1136, 1171–1172, italics omitted; People v.
Halvorsen (2007) 42 Cal.4th 379, 429; People v. Truman (1992) 6 Cal.App.4th
1816, 1828.)3 We perceive no reason why the same principle should not apply
to section 1170.95, nor any prejudice that resulted from the failure to assign
the petition to the trial judge in this case.
Disposition
The order denying the petition is affirmed.
POLLAK, P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
3 Boode quotes a prior decision addressing section 1053, People v.
Gonzalez (1990) 51 Cal.3d 1179, 1211, superseded by statute on another
ground as stated in In re Steele (2004) 32 Cal.4th 682, 691, which cited cases
from other jurisdictions that “confirm that a well-justified change of judges,
even if technically erroneous, is no basis for reversal if the accused failed to
object and no substantial prejudice resulted.” While Boode had no
opportunity to object here, and argues that the failure to transfer the case
was not “well-justified,” the later decisions cited above establish that an
erroneous judicial substitution may be harmless so long as it caused no
prejudice.

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