People v. Whipple CA4/2

Opinion

Filed 9/16/26 P. v. Whipple CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E083362 v. (Super.Ct.No. FSB1102845)

LORI ANNE WHIPPLE, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Seth M. Friedman, and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant Lori Anne Whipple was convicted of felony murder, and after her conviction became final, she sought relief under Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Senate Bill 1437) (Stats. 2018, ch. 1015, § 3), which narrowed the scope of murder liability. The trial court denied relief, we affirmed, and the California Supreme Court remanded the matter for us to reconsider it in light of a recently decided case, People v. Lopez (2026) 19 Cal.5th 639 (Lopez).

On remand, the parties dispute whether Whipple is eligible for relief as a matter of law because she was convicted after Senate Bill 1437 became effective, the idea being that any such claim could and should have been raised during her trial and direct appeal.

We decline to resolve the appeal on this ground. Instead, we hold that, even assuming her conviction date did not make her categorically ineligible for relief, her claim fails on 1 its own terms. Accordingly, we affirm.

I. BACKGROUND

Whipple and a codefendant were charged in 2011 with first degree murder (§ 187, subd. (a)) and arson of property (§ 451, subd. (d)). The operative charging document also alleged that both Whipple and the codefendant committed the murder during a robbery or attempted robbery. After two mistrials, Whipple’s third trial began in August 2019.

Before the third trial began, the Legislature passed Senate Bill 1437, which “significantly altered the scope of murder liability.” (Lopez, supra, 19 Cal.5th at p. 647.) “Among 1 Undesignated statutory references are to the Penal Code.

2 other changes, Senate Bill 1437 amended Penal Code section 188 to require that ‘a principal in a crime shall act with malice aforethought,’ which ‘shall not be imputed to a person based solely on his or her participation in a crime.’” (Id. at p. 648, citing § 188, subd. (a)(3).) Under the law as amended, a “felony-murder conviction may no longer rest on the mere commission of and intent to commit an underlying felony.” (People v. Emanuel (2025) 17 Cal.5th 867, 875.) “If a defendant was not the actual killer or an aider and abettor acting with intent to kill, the statute now requires that the defendant be a major participant in the felony who acted with reckless indifference to human life.”

(Ibid.) Senate Bill 1437 became effective on January 1, 2019. (People v. Jasso (2025)

17 Cal.5th 646, 688.)

In November 2019, Whipple was convicted of first degree murder under a felony murder theory, and the jury found true a special circumstance allegation that Whipple was a major participant who acted with reckless indifference to human life. We affirmed the conviction in an unpublished opinion where she raised no issues concerning the scope of murder liability. (People v. Nance (Sept. 6, 2022, E075270) [nonpub. opn.].)

In December 2022, Whipple petitioned for resentencing under former section 1170.95 (now section 1172.6), which was added by Senate Bill 1437 as “a special procedural mechanism for those convicted under the former law to seek retroactive relief under the law as amended.” (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) The trial court denied relief, and we affirmed in a published opinion, agreeing with the People that Whipple’s post-Senate Bill 1437 conviction made her ineligible for relief. The 3 California Supreme Court then granted Whipple’s petition for review and deferred further action pending consideration of a related issue in Lopez. After deciding Lopez, which held that defendants who could have raised challenges to imputed malice on direct appeal are not categorically ineligible for relief (Lopez, supra, 19 Cal.5th at p. 649), the Court remanded the matter, ordered our opinion depublished, and directed us to reconsider the cause in light of Lopez.

II. DISCUSSION

The parties’ supplemental briefs focus solely on whether Lopez applies to Whipple’s case. However, because her claim fails on its own terms, we need not decide the preclusion issue.

A. Instructional Error At Whipple’s trial, the jury was instructed that, to find the felony murder special circumstance true if Whipple was not the actual killer, it must find that Whipple either intended to kill or was—as the jury ultimately found—both a “major participant” in the robbery and acted with “reckless indifference to human life.” Our Supreme Court “for the first time provided substantial guidance on the meaning of” those two statutory phrases in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522 (Clark), even though those standards had been added a quarter century earlier. (Strong, supra, 13 Cal.5th at p. 703; see id. at p. 705.) In Strong, the Court held that those whose “major participant” and “reckless indifference to human life” findings predated Banks and Clark could seek retroactive relief under section 1172.6. (Strong, 4 supra, at p. 703.) Those cases represented a “significant change” in the law, so “[a]llowing reexamination of the issue” under those circumstances would “not permit ‘a second bite of the apple’ because the changes . . . mean there is now ‘a different apple.’”

(Id. at pp. 717-718.)

Whipple’s argument is not that she is entitled to relief under Strong as someone whose findings predated Banks and Clark. Her trial was in 2019, years after those cases had been decided, and as Strong noted, “[i]t is . . . undisputed that findings made after Banks and Clark ordinarily establish a defendant’s ineligibility for resentencing under Senate Bill 1437.” (Strong, supra, 13 Cal.5th at p. 710, italics added.) Rather, Whipple seizes on the word “ordinarily” and argues that an exception should be made where, as here, the jury was never specifically instructed on what factors it should consider when considering whether a defendant acted with “reckless indifference to human life.”

This argument was made and rejected in People v. Farfan (2021) 71 Cal.App.5th 942 (Farfan). There, the jury was instructed with the same pattern instruction Whipple argues is defective here, CALCRIM 703. As to reckless indifference, and as was also the case here, the jury was instructed only that “‘[a] person acts with reckless indifference to human life when he or she knowingly engages in criminal activity that he or she knows involves a grave risk of death’” (id. at p. 954), even though Clark listed “a nonexhaustive list of considerations relevant to this determination, including use of or awareness of the presence of a weapon or weapons, physical presence at the scene and opportunity to restrain confederates or aid victims, the duration of the crime, knowledge of any threat 5 the confederates might represent, and efforts taken to minimize risks.” (Strong, supra, 13 Cal.5th at p. 706, citing Banks, supra, 63 Cal.4th at pp. 618-623.) Farfan noted that even though the defendant’s jury “was not instructed with the Banks and Clark factors, . . .

‘our Supreme Court has not required that juries be instructed on the clarifications, and in the wake of Banks and Clark, no mandatory language or material changes were made to the CALCRIM special circumstance instructions.’” (Farfan, at p. 955.) “Instead, CALCRIM No. 703 now includes a list of the Banks and Clark factors which may be given in the trial court’s discretion.” (Ibid., italics added.)

Strong cited Farfan for the proposition that post-Banks and Clark findings mean a “defendant necessarily could still be convicted of murder” under the law as amended.

(Strong, supra, 13 Cal.5th at p. 710.) It also articulated why pre-Banks and Clark findings differ for Senate Bill 1437 purposes from post-Banks and Clark findings even if the instructions themselves did not change. “Although the mandatory instructions did not change in the wake of Banks and Clark, much else about the trial environment did. For one, the arguments available to counsel changed significantly after this court offered a range of guiding factors and made clear that simple participation in, e.g., a ‘garden- variety armed robbery’ was not sufficient, without more, to establish the truth of the felony-murder special circumstance. [Citation.] The newly articulated guiding factors might also have altered what evidence defense counsel would have sought to introduce.

And more broadly, the clarifications Banks and Clark offered about the height of the bar needed to prove a felony-murder special-circumstance finding might have fundamentally 6 altered trial strategies, causing some defendants to focus on proving they were guilty at most of a noncapital homicide once Banks and Clark created more daylight between the proof required to convict of murder and the proof required to convict of special circumstance murder. As for instructions, after Banks and Clark, defense counsel could have asked that optional additional instruction on the Banks and Clark factors be given to guide the jury in its deliberations [citation], with the possibility that different outcomes might have resulted.” (Id. at pp. 719-720.)

Whipple offers no reason for us to depart from Farfan, nor does she discuss the case in arguing jury instruction error. We agree with and accordingly follow Farfan, and we affirm the trial court’s dismissal of her section 1172.6 petition.

B. Preclusion Because our previous opinion in this case was decided on preclusion grounds, and because the parties’ supplemental briefs on remand focus exclusively on this issue, we briefly explain why we decline to decide on preclusion here.

In our previous opinion, we applied the doctrine of issue preclusion to hold that Whipple was foreclosed from arguing instructional error at all. We stated that, because Whipple could have made any argument relating to Senate Bill 1437 at trial, the fact that she did not do so meant that she was barred from making such arguments now.

“‘In general, whether a prior finding will be given conclusive effect in a later proceeding is governed by the doctrine of issue preclusion, also known as collateral estoppel.’ [Citation.] ‘The doctrine of collateral estoppel, or issue preclusion, is firmly 7 embedded in both federal and California common law. It is grounded on the premise that “once an issue has been resolved in a prior proceeding, there is no further factfinding function to be performed.” [Citation.] “Collateral estoppel . . . has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.”’”

(People v. Curiel (2023) 15 Cal.5th 433, 451 (Curiel).)

Our previous opinion cited Curiel, a recent California Supreme Court case on Senate Bill 1437, for the proposition that, for issue preclusion to apply, the issue “must have been necessarily decided in the former proceeding.” (Curiel, supra, 15 Cal.5th at p.

451.) Curiel noted that “‘[a]n issue is actually litigated “[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined.”’” (Id.

at p. 452.) In other words, it “requires only ‘“the opportunity to litigate . . . not whether 2 the litigant availed himself or herself of the opportunity.”’” (Ibid.) The defendant there had argued that “his intent to kill was not actually litigated because his counsel did not specifically address the special circumstance [at issue, which required intent to kill] in closing argument.” (Curiel, at p. 452.) The Court rejected this by noting that “Curiel did dispute the issue by pleading not guilty.” (Id. at p. 453.)

2 As support, Curiel cited two older California Supreme Court cases: Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, which stated that “the focus of our inquiry should be on whether the party against whom issue preclusion is being sought had ‘an adequate opportunity to litigate’ the factual finding or issue” (id. at p. 869), and People v. Sims (1982) 32 Cal.3d 468, superseded by statute on another ground as stated in Gikas v. Zolin (1993) 6 Cal.4th 841.

8 In Lopez, however, the Court appeared to state a different rule. Citing a Court of Appeal decision, Lopez stated, without discussion, that issue preclusion “does not apply to ‘issues that could have been raised and decided in the prior proceeding but were not.’”

(Lopez, supra, 19 Cal.5th at p. 667.) Lopez therefore declined to apply issue preclusion to a defendant—convicted before Senate Bill 1437 took effect—who could have, but did not, raise an imputed malice challenge on direct appeal. (Id. at pp. 649, 667-668; see id.

at p. 661 [“the primary and overarching purpose of Senate Bill 1437’s scheme is to identify and to afford resentencing relief, in qualifying cases, to those who may have been convicted under imputed-malice murder theories”].)

Thus, in Lopez, issue preclusion is said to be inapplicable to issues that were not raised, while in Curiel it is said to apply more broadly to issues a party had merely had an opportunity to litigate. The two rules, both from recent Supreme Court opinions on Senate Bill 1437, seem irreconcilable. We leave any attempt at reconciliation for another day.

9 III. DISPOSITION The order denying the petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAPHAEL ______________________________________________________________________________________________________________________________________________________________________

J.

We concur:

CODRINGTON ______________________________________________________________________________________________________________________________________________________________________ Acting P. J.

FIELDS ______________________________________________________________________________________________________________________________________________________________________

J.