Filed 2/7/24 P. v. Gatewood CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

LAVELL GATEWOOD,

Defendants and 

Appellants.

 B330382

 (Los Angeles County

 Super. Ct. No. YA066864)

THE COURT:

Defendant and appellant Lavell Gatewood appeals from the 

denial of his petition for vacatur of his attempted murder 

conviction and for resentencing under Penal Code section 1172.6.

1 

Appointed counsel found no arguable issues and filed a brief 

requesting this court to exercise our discretion to conduct an 

1 All further unattributed code citations are to the Penal 

Code.
2

independent review of the record or in the alternative, a review 

as set forth in People v. Delgadillo (2022) 14 Cal.5th 216 

(Delgadillo). Defendant filed a supplement brief also requesting 

an independent review but raised no issues regarding section 

1172.6. As defendant does not claim that the trial court erred, we

decline to conduct an independent review of the record. (See 

Delgadillo, at p. 232.)

BACKGROUND

In 2008, after a jury trial, defendant was convicted of 

attempted murder in violation of sections 187, subdivision (a),

and 664. The jury found true allegations that he personally used 

a firearm (§ 12022.53, subd. (b)); that he personally and 

intentionally discharged a firearm (§ 12022.53, subd. (c)); that he 

personally and intentionally discharged a firearm, which caused 

great bodily injury to the victim (§ 12022.53, subd. (d)); and that 

he personally inflicted great bodily injury to the victim under 

circumstances involving domestic violence (§ 12022.7, subd. (e)). 

The trial court sentenced defendant to life in prison on the 

attempted murder count, plus 25 years to life for one firearm 

enhancement and four years for the great bodily injury

enhancement. This court modified the sentence to stay the great 

bodily injury enhancement and correct the presentence credits, 

but otherwise affirmed the judgment. (People v. Gatewood

(Oct. 29, 2009, B209314) [nonpub. opn.].)

In April 2022, defendant submitted a petition for 

resentencing pursuant to section 1172.6. The trial court 

appointed counsel for defendant, and the prosecution filed 

written opposition to the petition. Defendant’s counsel filed no

written reply, and after several continuances the court held a 
3

hearing on May 3, 2023, to determine whether defendant had 

established a prima facie basis for relief. The prosecutor argued

this was a one-defendant case without instructions regarding the 

natural and probable consequences doctrine, the felony murder 

rule, or any theory of imputed malice. Defense counsel presented 

no argument and submitted the determination on defendant’s 

petition.

At the conclusion of the hearing, the court denied 

defendant’s resentencing petition without issuing an order to 

show cause, finding on undisputed facts in the record of 

conviction that the jury was not instructed regarding the natural 

and probable consequences doctrine or any other theory of 

imputed malice. The court concluded defendant was ineligible for 

resentencing as a matter of law.

Defendant filed a timely notice of appeal from the court’s 

order.

DISCUSSION

After examination of the record, appointed counsel filed an 

opening brief raising no issues. Where, as here, appointed 

counsel finds no arguable issues in an appeal that is not from the 

first appeal after conviction, we are not required to conduct an 

independent review of the record. (See Delgadillo, supra, 14 

Cal.5th at p. 226.) However, even if we do not independently 

review the record to identify unraised issues in such a case, we 

give the defendant the opportunity to file his or her own 

supplemental brief or letter and we then evaluate any specific 

arguments raised. (See id., at p. 232.)

Here, counsel provided defendant with a copy of the record 

on appeal and informed him of his right to file his own 
4

supplemental brief. We notified defendant of counsel’s brief; gave 

him 30 days to file his own letter or brief stating any grounds for 

an appeal, contentions, or arguments that he wished to be 

considered; and advised him that if no supplemental brief or 

letter is timely filed the court may dismiss the appeal as 

abandoned.

Defendant filed a supplemental brief within the time 

allowed and thoroughly set forth a statement of the evidence 

adduced at trial showing he was the sole perpetrator of the 

attempted murder of his wife, and there was no other principal. 

Defendant then argues the denial of the petition should be 

reversed due to ineffective assistance of trial counsel.

Effective 2019, sections 188 and 189, the laws pertaining to 

felony murder and murder under the natural and probable 

consequences doctrine were amended “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).) Section 1172.6 

now provides a procedure for not only those convicted of murder, 

but also those convicted of attempted murder or manslaughter to 

seek retroactive relief if they could not now be convicted under 

the amended laws. (§ 1172.6, subd. (a); see People v. Lewis (2021) 

11 Cal.5th 952, 957.) A petition for relief may be filed by a such 

person if convicted of one of those crimes based upon the natural 

and probable consequences doctrine, the felony murder rule, or 

when malice was imputed to the petitioner based solely on the 

petitioner’s participation in crime. (§ 1172.6, subd. (a); 

Delgadillo, supra, 14 Cal.5th at p. 233.) Where the record shows 

no jury instructions were given regarding any of these theories, 
5

or where the record “conclusively establish[ed—]with no 

factfinding, weighing of evidence, or credibility determinations”—

that petitioner was the actual perpetrator, he is ineligible for 

relief as a matter of law. (People v. Harden (2022) 81 Cal.App.5th 

45, 47-48, 52-53.)

The purpose of section 1172.6 is not to afford an

opportunity to obtain a new trial on the basis of trial error. 

(People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Thus 

defendant’s claim is not the proper means to challenge a 

conviction based upon alleged ineffectiveness of counsel. Thus 

defendant has raised no issue regarding whether he could now be 

convicted under the amended laws or that the procedure provided 

by 1172.6 applies to him.

As the matter was submitted in the trial court on 

undisputed facts establishing ineligibility under section 1172.6 as 

a matter of law, and defendant has raised no issue, arguable or 

otherwise, arising under section 1172.6, we do not exercise our 

discretion to conduct an independent review. “The filing of a 

supplemental brief or letter does not compel an independent 

review of the entire record to identify unraised issues.” 

(Delgadillo, supra, 14 Cal.5th at p. 232.)

DISPOSITION

The order denying defendant’s section 1172.6 petition is 

affirmed.

____________________________________________________________

ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.