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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A LBERT
GIBSON

,

Defendant and Appellant. B3 12655

(Los Angeles County Super. Ct. No. B A 016268 )

APPEAL from an order of the Superior Court of Los Angeles County, James R. Dabney , Judge. Reversed and
remanded

.

J. Kahn, under appointme nt 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 Attorney s General, for Pla intiff and Respondent.

* * * * * *
Clarence Albert Gibson (defendant) appeals the trial court’s

summary denial of his motion for relief under Penal Code 1 section § 1172.6 ( former § 1170.95 )

. 2 As the People concede, t his was
error because the record of c onviction did not show defendant to be ineligible for relief a s a matter of law. We accordingly reverse and remand for an evidentiary hearing in accordance with section

117 2.6 , subdivision (d).
FACTS AND PROCEDURAL BACKGROUND
I. Facts 3
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)

, a rmed themselves with .38 caliber revolver s , and

1 All further stat utory 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3 We draw these facts from our prior, unpublished appella te opinion affirming defendant’s conviction on appeal. ( People v. Randall ( Dec

. 2 7 , 19 93

, B0 6 6355 ). )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 th e 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) (c ount 2 )

. As to both offenses, t he 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

,

su bdivision (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

a betted 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 alle ged

. The People further alleged the special circumstance that Randall “was engaged in the commission of the crime of robbery” ( § 1 90.2, subd. (a)(17 ) )

. T he same special circumstance allegation was alleged against defendant, but dismissed prior to trial d ue 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 d efendant 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 w as 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 117 2

. 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 theor y, 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 R andall was also convicted of first degree murder and robbery. As to the murder, the ju ry found true the personal use enhancement but found the speci al 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 c ause].” 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 fact s” 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. B ecause the trial
court’s reason s for summarily denying relief in this case turn on its interpretation of section 117 2

. 6 a nd 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, 10 1 8.)
A person is entitled to relief under section 117 2

. 6 if, as relevant here, (1) “[a] complaint, i nformation, 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 b e convicted of murder

. .

. because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 117 6

. 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 und er section 117 2

. 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 petition er would be entitled to relief if [those] allegations were proved.’” ” ( I d. 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 th e petitioner.”’” ( Ibid. ) Here, defendant made the requisite prima facie showing for
relief because h e allege d that he was charged with murder under felony murder and natural and probable consequences theories

,

was convicted of murder, and “could not now b e 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 instruc ted 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 argume nt, 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 robber y 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 ca n be made as a matter of law at the prim a 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 evide nce, 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 (20 20 ) 47 Cal.App.5th 965

, 982 ( Drayton ) .) A s 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 fol lowing 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 a s a factor when assessing, as a factual matter, w hether he was a major participant who acted with r eckless 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 requir ed. (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) 718

Cal.App.5th 970 , 987 with In re Moore (20 21 ) 68 Cal.App.5th 434

, 454

. )
DISPOSITION
The order is reversed . On rema nd, the trial court is to re

appoint counsel (if necessary) and to conduct an evidentiary hearing contemplated by section 117 2

. 6 , subdivision (d)(3) at which it is the prosecution’s burden to prove beyond a reasonable doubt that defendant is “ineligible fo r resentencing” under section

117 2

. 6

. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J. LUI

_________________________, J. CHAVEZ