People v. Gibson CA2/2 ( 2022 )

Filed 8/11/22 P. v. Gibson CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
THE PEOPLE, B312655
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA016268)
v.
CLARENCE ALBERT
GIBSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, James R. Dabney, Judge. Reversed and
remanded.
J. Kahn, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Amanda V. Lopez and Joseph P. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Clarence Albert Gibson (defendant) appeals the trial court’s
summary denial of his motion for relief under Penal Code1 section
§ 1172.6 (former § 1170.95).2 As the People concede, this was
error because the record of conviction did not show defendant to
be ineligible for relief as a matter of law. We accordingly reverse
and remand for an evidentiary hearing in accordance with section
1172.6, subdivision (d).
FACTS AND PROCEDURAL BACKGROUND
I. Facts3
A. The underlying crime
Around 11 p.m. on March 23, 1990, having “spent the
evening smoking marijuana and drinking with friends” defendant
“proposed committing a ‘jack’ -- a robbery -- to get some money.”
Defendant, along with one of his friends Tyrone Randall
(Randall), armed themselves with .38 caliber revolvers, and
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10).
3 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s conviction on appeal. (People v.
Randall (Dec. 27, 1993, B066355).)
2
followed by several of their associates, went in search of a victim.
Defendant and Randall “approached the driver’s side of a pickup
truck driven by the victim, Jose Valdes Cruz, and fatally shot
him in the chest. The victim’s wallet, containing approximately
$120 in cash, was taken and his money distributed among
[defendant, Randall] and others at the scene.”
B. Charging, conviction and appeal
The People charged defendant with the first degree murder
of Cruz (§ 187, subd. (a)) (count 1), and robbery (§ 211) (count 2).
As to both offenses, the People also alleged that defendant
“personally used” a firearm (§ 12022.5), and that a principal was
armed with a firearm within the meaning of section 12022,
subdivision (a)(1).4 In accordance with the law in effect at the
time, defendant’s jury was instructed that he could be found
guilty of murder under four different theories: (1) as the actual
killer (CALJIC No. 3.00); (2) as someone who directly aided and
abetted the actual killer with the murder (CALJIC No. 3.01); (3)
as someone liable for the murder by virtue of his participation in
the underlying robbery (that is, under a felony-murder theory)
(CALJIC No. 8.21); and (4) as someone liable for the murder by
virtue of aiding and abetting the underlying robbery, of which
4 Randall was similarly charged with robbery and first
degree murder, and the “personal use” and “principal armed”
firearm enhancements were also alleged. The People further
alleged the special circumstance that Randall “was engaged in
the commission of the crime of robbery” (§ 190.2, subd. (a)(17)).
The same special circumstance allegation was alleged against
defendant, but dismissed prior to trial due to his age.
3
murder was a natural and probable consequence (that is, under a
natural and probable consequences theory) (CALJIC No. 3.02).5
A jury convicted defendant of robbery and of first degree
murder “during the commission of the crime of robbery” and
found true the special allegation that he personally used a
firearm. The jury was not asked to specify the legal theory
underlying its verdict. The jury found not true the allegation
that a principal was armed with a firearm.6 The trial court
sentenced defendant to 29 years to life in state prison, comprised
of 25 years to life for the murder plus four years for the firearm
enhancement. Defendant appealed, and in an unpublished
opinion we affirmed the judgment.
II. Procedural Background
On March 6, 2018, defendant filed a request for
resentencing, which the trial court construed as a petition
seeking resentencing under section 1172.6. The court ordered the
prosecution to file an informal response, and appointed counsel to
represent defendant. Defendant argued that he had established
a prima facie case for eligibility and the trial court should issue
an order to show cause and conduct an evidentiary hearing
because he was prosecuted under a felony murder theory, and the
evidence at trial did not definitively establish who shot the
victim.
5 We granted defendant’s request for judicial notice of the
record in B066355.
6 Randall was also convicted of first degree murder and
robbery. As to the murder, the jury found true the personal use
enhancement but found the special circumstance and the
allegation that a principal was armed to be not true.
4
On April 20, 2021, the trial court denied the petition on the
ground that defendant had not “made a prima facie showing in
order to warrant an [order to show cause].” The court reasoned
that it had reviewed “all the briefing” and “the record,” which
showed that defendant and Randall were both armed and a
person ended up dead. Because either one of them could have
been the shooter, the court reasoned, “the facts” of the case
indicated that defendant “was an active participant, [in the
murder], and he acted with reckless disregard for life.”
Defendant filed this timely appeal.
DISCUSSION
Defendant maintains that the trial court erred in denying
his petition without an evidentiary hearing because he alleged a
prima facie entitlement to relief in his petition. Because the trial
court’s reasons for summarily denying relief in this case turn on
its interpretation of section 1172.6 and the application of law to
undisputed facts, our review is de novo. (People v. Blackburn
(2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco Construction
Co. (2013) 56 Cal.4th 1014, 1018.)
A person is entitled to relief under section 1172.6 if, as
relevant here, (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under
a theory of felony murder[ or] murder under the natural and
probable consequences doctrine,” (2) he “was convicted of
murder,” and (3) he “could not presently be convicted of murder . .
. because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1176.2, subd. (a).) In January 2019, our Legislature
amended section 188 to provide that “in order to be convicted of
murder, a principal in a crime shall act with malice aforethought”
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and that “[m]alice shall not be imputed to a person based solely
on his . . . participation in a crime.” (§ 188, subd. (a)(3).)
Although the trial court followed the correct procedures in
appointing defendant counsel and entertaining briefing, the court
nevertheless erred in summarily denying defendant’s petition
because it set forth a prima facie entitlement to relief. (People v.
Lewis (2021) 11 Cal.5th 952, 964.) In assessing whether a
defendant seeking relief under section 1172.6 has made out a
prima facie case warranting an evidentiary hearing, a trial court
must take the petition’s factual allegations as true and ask
““‘whether the petitioner would be entitled to relief if [those]
allegations were proved.’”” (Id. at p. 971.) “‘However, if the
record, including the court’s own documents [from the record of
conviction] “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.”’” (Ibid.)
Here, defendant made the requisite prima facie showing for
relief because he alleged that he was charged with murder under
felony murder and natural and probable consequences theories,
was convicted of murder, and “could not now be convicted of . . .
murder” because those theories are no longer valid. What is
more, nothing in the record of conviction refutes those
allegations. Contrary to the trial court’s ruling, the record
indicates that the jury in defendant’s case was instructed on both
the felony-murder and natural and probable consequences
theories of liability, and that the jury’s general verdict may have
rested on either of those now-invalid theories. What is more, the
prosecutor actively urged the jury, in closing argument, to convict
defendant on those theories.
6
The trial court nevertheless denied defendant’s petition
because, in its view, the evidence at trial resoundingly showed
that defendant was ineligible for relief because he was a major
participant in the robbery who acted with reckless indifference to
the value of human life. While such a finding can be a basis for
denying relief (§§ 188, subd. (a)(3), 189, subd. (e)), it is a factual
finding to be made after an evidentiary hearing rather than a
finding that can be made as a matter of law at the prima facie
stage. (People v. Duchine (2021) 60 Cal.App.5th 798, 816 [“[t]he
major participant and reckless indifference findings the trial
court made based solely on the record evidence entail[ed] the
weighing of evidence, drawing of inferences, and assessment of
credibility that should be left to the factfinding hearing process
contemplated by section [1172.6], subdivision (d).”]; People v.
Drayton (2020) 47 Cal.App.5th 965, 982 (Drayton).) As the
People concede, the trial court erred in making a finding as a
matter of law without first conducting an evidentiary hearing.
We therefore remand for just such an evidentiary hearing. Of
course, “[w]e express no opinion about [defendant’s] ultimate
entitlement to relief following the hearing.” (Drayton, at p. 983.)
The parties spill a lot of proverbial ink over whether we
should direct the trial court, at that upcoming evidentiary
hearing, to consider the defendant’s youth as a factor when
assessing, as a factual matter, whether he was a major
participant who acted with reckless indifference. In our view, it
is premature for us to issue advisory instructions and, thus,
premature for us to weigh in on the legal question of whether
such consideration is appropriate or required. (Compare In re
Harper (2022) 76 Cal.App.5th 450, 466-472; People v. Harris
(2021) 60 Cal.App.5th 939-960; People v. Ramirez (2021) 71
7
Cal.App.5th 970, 987 with In re Moore (2021) 68 Cal.App.5th 434,
454.)
DISPOSITION
The order is reversed. On remand, the trial court is to re-
appoint counsel (if necessary) and to conduct an evidentiary
hearing contemplated by section 1172.6, subdivision (d)(3) at
which it is the prosecution’s burden to prove beyond a reasonable
doubt that defendant is “ineligible for resentencing” under section
1172.6.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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