P. v. Solomon

Filed 8/12/20 P. v. Solomon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and
Respondent,
v.
SHASHONEE SOLOMON,
Defendant and
Appellant.
B301538
(Los Angeles County
Super. Ct. No. PA020188)
APPEAL from an order of the Superior Court of Los
Angeles County, Stephen A. Marcus, Judge. Affirmed.
Marta I. Stanton, 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,
Senior Assistant Attorney General, Kristen J. Inberg and

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Douglas L. Wilson, Deputy Attorneys General, for Plaintiff
and Respondent.
__________________________
Defendant and appellant ShaShonee Solomon appeals
from a postjudgment order denying his petition for
resentencing pursuant to Penal Code section 1170.951 and
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill
1437), which permit a defendant convicted of felony murder
or murder under a natural and probable consequences
theory to petition for vacatur of the conviction if the
defendant did not personally act with malice.
The trial court appointed counsel, but summarily
denied Solomon’s petition prior to briefing, on the grounds
that he was a direct aider and abettor and acted with intent
to kill. Solomon contends this was error.
We affirm the trial court’s order.
FACTS AND PROCEDURAL HISTORY
Murder Conviction
In 1999, a jury found Solomon guilty of first degree
murder (§ 187, subd. (a)) on a direct aider and abettor theory
of liability. The jury also found Solomon guilty of conspiracy
1 All further statutory references are to the Penal Code
unless otherwise indicated.

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to commit murder (§ 182, subd. (a)(1)). He was sentenced to
38 years to life in state prison.
Appeal
Solomon appealed, contending that (1) his convictions
were not supported by sufficient evidence, (2) the trial court
erred in denying his motion for severance, (3) the trial court
erred by admitting a codefendant’s statements under the
coconspirator exception to the hearsay rule, and (4) the trial
court committed sentencing error. We affirmed the trial
court’s judgment. In holding that substantial evidence
supported the conspiracy to murder conviction, we stated
that “substantial evidence overwhelmingly establishes . . .
Solomon wanted [the victim] dead, and he had [his co-
defendant] kill her.” (People v. Johnson et al. (Dec. 18, 2000,
B134511) [nonpub. opn.].)
Section 1170.95 Petition for Resentencing
On January 27, 2019, Solomon petitioned for
resentencing under section 1170.95. In the petition,
Solomon declared that the petition met the “criteria and
standard” of section 1170.95 because his trial was unfair—
there was not substantial evidence to support his
convictions, hearsay witnesses were allowed to testify, his
counsel was ineffective, and the prosecutor acted
inappropriately, among other errors. He did not claim that

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he was convicted under either a felony murder or natural
and probable consequences theory of liability, and he did not
request that counsel be appointed.
At a hearing on March 11, 2019, the trial court
appointed counsel to respond or appear by April 22, 2019.2
The People subsequently requested, and the trial court
granted, an extension for filing any response to the petition
to July 22, 2019. A hearing was held on July 22, 2019.
Neither Solomon nor his attorney appeared. The court
continued the matter to October 8, 2019.
On August 5, 2019, the trial court denied Solomon’s
petition without briefing from either Solomon or the People.
The court ruled:
“The court has read and considered petitioner’s petition
for resentencing pursuant to Penal Code section 1170.95.
After reviewing the file, the jury instructions and the verdict
forms in this case, the court finds the petitioner has failed to
make a prime [sic] facie showing that he is eligible for relief
under Penal Code 1170.95. The prosecution did not rely on a
felony-murder or natural and probable consequence murder
theory in petitioner’s trial.
“The petitioner was convicted of count 5, murder in the
first degree, based on an aiding and abetting theory. The
petitioner was not the actual killer but with the intent to kill
aided, abetted, counseled, commanded, induced, solicited,
2 The trial court stated that Solomon requested
counsel, but no request was included in the petition for
resentencing.

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requested, or assisted the actual killer in the commission of
murder in the first degree.
“In addition, petitioner was convicted in count 4 of
conspiracy to commit murder which would have resulted in
the same sentence as count 5 but was stayed pursuant to
Penal Code section 654.”
The court further found that the “recitation of the facts
by the appellate court makes is [sic] absolutely clear that
petitioner does not qualify under the new resentencing
statute.”3 The court denied the petition because Solomon
was not convicted of murder under a natural and probable
consequences or felony murder theory of liability.
3 We granted a request by Solomon’s counsel to take
judicial notice of the prior opinion. While it is unnecessary
in affirming the trial court’s summary denial of his petition
pursuant to section 1170.95 to consider the specific facts of
Solomon’s convictions, we note that the facts previously
considered on direct appeal demonstrated that Solomon
repeatedly threatened to kill the victim if she broke up with
him, shot up her place of employment, and warned her that
he would enlist another gang member to kill her. Solomon
pointed out the victim to another gang member and provided
the gang member with a gun. Solomon left town, but
maintained regular contact with the gang member until the
day after the victim was killed. After the murder, Solomon
pretended that he did not know the victim had been killed.
When the gang member was identified, Solomon conceded
that the gang member was the actual killer. (People v.
Johnson et al., supra, B134511.)

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DISCUSSION
On appeal, Solomon contends that he made a prima
facie showing of eligibility by alleging facts that, if true,
would entitle him to relief. Solomon argues that “[h]e made
the required allegations under Penal Code section 1170.95,
subdivision (b)(1) and requested counsel be appointed.” He
claims that the trial court erred by “den[ying] appellant’s
petition without the presence of counsel for appellant and
without giving the parties the opportunity to file additional
briefing on appellant’s petition.” Solomon’s arguments lack
merit.
Senate Bill 1437
In 2018, the Legislature enacted Senate Bill 1437 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 kill, or
was not a major participant in the underlying felony who
acted with reckless indifference to human life.’ (Stats. 2018,
ch. 1015, § 1, subd. (f).) Substantively, Senate Bill 1437
accomplishes this by amending section 188, which defines
malice, and section 189, which defines the degrees of
murder, and as now amended, addresses felony murder
liability. Senate Bill 1437 also add[ed] . . . section 1170.95
[to the Penal Code], which allows those ‘convicted of felony

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murder or murder under a natural and probable
consequences theory . . . [to] file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts . . . .’ (§ 1170.95, subd. (a).)” (People v. Martinez
(2019) 31 Cal.App.5th 719, 723.)
Section 1170.95 proscribes several levels of review
before a petitioner may be granted relief. (People v. Verdugo
(2020) 44 Cal.App.5th 320, 326–328 (Verdugo), review
granted Mar. 18. 2020, S260493.) “Under [section 1170.95,]
subdivision (b)(2), the trial court determines if the petition is
facially sufficient. (Verdugo, supra, 44 Cal.App.5th at
pp. 327–328.) The trial court verifies that the petition
contains the basic information required under subdivision
(b)(1), and supplies any missing information that can be
‘readily ascertained’ (§ 1170.95, subd. (b)(2)). (Verdugo,
supra, at p. 328.) The reference to ‘readily ascertained’
information indicates the legislature’s intent that the trial
court consider reliable, accessible information—specifically
the record of conviction. (Id. at pp. 329–330.) The trial court
may deny the petition without prejudice if the petition is not
facially sufficient. (Id. at p. 328.)” (People v. Torres (2020)
46 Cal.App.5th 1168, 1177 (Torres), review granted June 24,
2020, S262011.)
“If a petition is facially sufficient, then, under section
1170.95, subdivision (c), the trial court next determines
whether the petitioner has made ‘a prima facie showing that
the petitioner falls within the provisions of this section’. The

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Verdugo court described this inquiry as ‘a preliminary
review of statutory eligibility for resentencing, a concept that
is a well-established part of the resentencing process under
Propositions 36 and 47.’ (Verdugo, supra, 44 Cal.App.5th at
p. 329.) ‘The court’s role at this stage is simply to decide
whether the petitioner is ineligible for relief as a matter of
law, making all factual inferences in favor of the petitioner.’
(Ibid.) As in the section 1170.95, subdivision (b)(2) inquiry,
the trial court is permitted to review information that is
readily ascertained. (Verdugo, at p. 329.) Specifically, the
Verdugo court held that the trial court should review the
record of conviction, and ‘must at least examine the
complaint, information or indictment filed against the
petitioner; the verdict form or factual basis documentation
for a negotiated plea; and the abstract of judgment.’ (Id. at
pp. 329–330; accord, People v. Lewis (2020) 43 Cal.App.5th,
1128, 1138–1139 [superior court properly relied on record of
conviction showing he was convicted as direct aider and
abettor in determining he was not eligible for relief].) If the
trial court determines that the petitioner is not ineligible for
relief as a matter of law, it must appoint counsel, if
requested, and order briefing. (Verdugo, supra, 44
Cal.App.5th at p. 330.)” (Torres, supra, 46 Cal.App.5th at
pp. 1177–1178.)

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Analysis
Solomon contends that the trial court erred by
summarily denying his petition outside the presence of
counsel and prior to briefing. We conclude that Solomon is
ineligible for relief as a matter of law, and thus failed to
make a prima facie showing that he falls within the
provisions of section 1170.95. Because Solomon did not meet
his burden of making the first showing required under
section 1170.95, subdivision (c), he was not entitled to
counsel or briefing.
Section 1170.95, subdivision (a) provides: “A person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the
court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any
remaining counts . . . .” (Italics added.) Here, the record of
conviction shows that the jury was not instructed on either a
felony murder or natural and probable consequences theory
of liability with respect to Solomon. In the absence of
instruction on those theories, the jury could not have
convicted Solomon on either basis—he was convicted as a
direct aider and abettor. Senate Bill 1437 “did not . . . alter
the law regarding the criminal liability of direct aiders and
abettors of murder because such persons necessarily ‘know
and share the murderous intent of the actual perpetrator.’
(People v. McCoy (2001) 25 Cal.4th 1111, 1118; see [People
v.] Chiu[ (2014)] 59 Cal.4th [155,] 167 [a direct aider and

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abettor ‘acts with the mens rea required for first degree
murder’].) One who directly aids and abets another who
commits murder is thus liable for murder under the new law
just as he or she was liable under the old law.” (People v.
Offley (2020) 48 Cal.App.5th 588, 595–596.) As a direct
aider and abettor, Solomon is ineligible for relief under
section 1170.95 as a matter of law.
Additionally, the jury found Solomon guilty of
conspiracy to commit murder, which required it to find that
Solomon harbored intent to kill. (People v. Morante (1999)
20 Cal.4th 403, 416 [“[a] conviction of conspiracy requires
proof that the defendant and another person had the specific
intent to agree or conspire to commit an offense, as well as
the specific intent to commit the elements of that offense,
together with proof of the commission of an overt act ‘by one
or more of the parties to such agreement’ in furtherance of
the conspiracy”]; accord, People v. Johnson (2013) 57 Cal.4th
250, 263–264.) We reviewed the jury’s finding for sufficient
evidence in connection with Solomon’s direct appeal, and
concluded that “substantial evidence overwhelmingly
establishes . . . Solomon wanted [the victim] dead, and he
had [his co-defendant] kill her.”4 (People v. Johnson et al.,
4 In fact, Solomon’s petition was not facially sufficient,
and should not have survived the trial court’s review under
1170.95, subdivision (b). Solomon argued that he was
eligible for relief based on alleged trial error. He did not
claim that he was convicted under a felony murder or
natural and probable consequences theory of murder. Nor

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supra, B134511.) The jury’s finding that Solomon intended
to kill the victim also renders him ineligible for resentencing
as a matter of law.
With respect to appointment of counsel, “the trial
court’s duty . . . does not arise unless and until the court
makes the threshold determination that petitioner ‘falls
within the provisions’ of the statute.” (People v. Lewis (2020)
43 Cal.App.5th 1128, 1140.) The trial court denied
Solomon’s petition because he did not make a prima facie
showing that section 1170.95 applies to his conviction for
murder. Accordingly, Solomon was not entitled to
appointment of counsel.
did he request counsel, although counsel was appointed. The
statute only requires appointment of counsel when counsel is
requested. (See § 1170.95, subd. (c) [“[i]f the petitioner has
requested counsel, the court shall appoint counsel to
represent the petitioner”].)

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DISPOSITION
The trial court’s order denying Solomon’s resentencing
petition is affirmed.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.

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