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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

CLARENCE ALBERT 

GIBSON,

Defendant and Appellant.

 B312655

 (Los Angeles County

 Super. Ct. No. BA016268)

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.
2

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3 We draw these facts from our prior, unpublished appellate 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).)
3

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. 
4

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.
5

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” 
6

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. 
7

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 
8

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 reappoint 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