People v. Gardiner CA2/2 ( 2021 )

Filed 8/24/21 P. v. Gardiner 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B303948
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA347305)
v.
DAVID GARDINER,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Renee F. Korn, Judge. Reversed and
remanded.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Peggy Z. Huang and Idan
Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
________________________
While David Gardiner (appellant) was involved in the
attempted robbery of a marijuana dispensary, a fellow robber
killed a security guard. Appellant pleaded guilty to first degree
murder (Pen. Code, §§ 187, subd. (a), 189, subd. (a))1 and
admitted that a principal personally and intentionally discharged
a firearm (§ 12022.53, subds. (c) & (e)(1)). He did not, however,
admit the special circumstance allegation under section 190.2,
subdivision (a)(17)(A) that the murder was committed while he
was engaged in, or was an accomplice in, the attempted
commission of a robbery, and that he was eligible for the death
penalty or life without the possibility of parole as specified in
section 190.2, subdivision (d). The trial court sentenced him to 45
years to life in prison.
Subsequently, appellant petitioned for resentencing under
section 1170.95. The trial court denied the petition after finding
that appellant was a major participant in the robbery who acted
with reckless indifference to human life. Appellant challenges
that decision, and the People concede error. We reverse and
remand for the trial court to issue an order to show cause and
proceed to an evidentiary hearing pursuant to section 1170.95,
subdivision (d) unless the parties stipulate that appellant is
eligible to have his murder conviction vacated and be
resentenced.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTS
Record of Conviction
In an information filed on November 15, 2010, appellant
and codefendant Brandon Daniels (Daniels) were charged with
murder (§ 187, subd. (a)), attempted robbery (§§ 664, 211), and
burglary (§ 459). In connection with the murder count, the
information alleged a special circumstance under section 190.2,
subdivision (a)(17).
At the preliminary hearing, the evidence showed that on
October 1, 2008, multiple men attempted to rob the L.A.
Collective, a marijuana dispensary. An employee named Martin
was at the reception desk when he heard a ruckus at the front
door and looked at a monitor. He saw two of the robbers with
guns holding the security guard, Noe Gonzalez, hostage in the
waiting area. Martin and the owner of the dispensary moved
toward the back of the office area and Martin heard a door crash
open. Leon Banks (Banks) pointed a gun at Martin and took him
and the owner to the main dispensary area. As Banks was trying
to restrain Martin on the floor with zip ties, Martin heard a
gunshot. Banks said that it was time to go and ran through the
door of the waiting area. Martin stood up and looked at the
monitors and saw three perpetrators pushing outward on the
front security door and shooting out the door’s metal flap.
A different employee, Matthew, told the police that he was
working at the upstairs dispensary bar when a man with a
handgun approached and asked, among other things, where the
“stuff was.” Matthew answered. A few moments later, Matthew
heard a gunshot. The armed man went downstairs.
Subsequently, Matthew heard a loud noise and then more
gunshots.
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A witness named James was in a coffee shop across the
street from the dispensary at 3:40 p.m. He looked out the
window and saw a fight between Gonzalez and another man.
James heard a gunshot. The two individuals paused for a
moment and the other man ran inside the dispensary. Gonzalez
tried to hold the door shut. James heard some more shots and
saw the door being pushed open. Gonzalez fell on his knees.
Banks and two others came out of the store, and Banks had a gun
in his left hand. He shot Gonzalez in the head. Banks and his
companions ran northbound on La Brea and then eastbound on
8th Street.
A detective interviewed Daniels. He said he rode to the
marijuana dispensary in a vehicle driven by Troy Matthews
(Matthews) to “score some weed.” Daniels went inside with
Banks, who had a gun, and Daniels went upstairs. He went back
downstairs when he heard a gunshot and ran to the front door
where he had to push to get out. He ran up to 8th Street and got
into Matthews’s car.
Following his arrest, appellant told a detective that he was
riding in Bank’s vehicle and Matthews was driving. When they
arrived at the dispensary, appellant armed himself with a gun
and “they” surprised Gonzalez and entered the location. Banks
and Daniels left appellant with Gonzalez. Though appellant had
a gun, Gonzalez fought back and the two of them wrestled out the
door and onto the sidewalk. Appellant’s gun fired but no one was
shot. In the melee, Gonzalez ended up with the gun. Appellant
ran back inside the dispensary, and Daniels and Banks ran
toward him. Appellant heard a shot and he moved toward the
back of the dispensary. He heard more gunshots and saw
Daniels and Banks pushing on the door. Appellant joined them
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in pushing the door open. Then he fled with Daniels and Banks
and got into the vehicle driven by Matthews.
Appellant and Daniels admitted to being members of the
Rolling 30’s gang.
The Petition
On March 25, 2019, appellant filed a form petition for
resentencing pursuant to section 1170.95 and checked boxes to
indicate: he pled guilty to murder because he believed he could
have been convicted of murder at trial pursuant to the felony-
murder rule or the natural and probable consequences doctrine;
he was convicted of first degree murder but was not the actual
killer, did not aid or abet the actual killer with the intent to kill,
and was not a major participant in the felony or did not act with
reckless indifference to human life. The trial court appointed
counsel. Subsequently, the prosecution filed an opposition and
appellant filed a reply as well as a supplemental reply.
The trial court denied appellant’s petition. It found that
appellant failed to make a prima facie showing of eligibility
because the facts in the case showed he was a major participant
in the armed robbery and murder, and he demonstrated a
reckless indifference to human life. In reaching this conclusion,
the trial court relied on some of the facts stated in People v.
Banks (2015) 61 Cal.4th 788, People v. Banks (Aug. 29, 2013,
B236152) [nonpub. opn.], and People v. Daniels (Sept. 29, 2014,
B249088) [nonpub. opn.].
This appeal followed.
DISCUSSION
I. Standard of Review.
Because this case involves the application of law to
undisputed facts, our review is de novo. (People v. Blackburn
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(2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco Construction
Co. (2013) 56 Cal.4th 1014, 1018.)
II. Section 1170.95.
A defendant can seek resentencing if: the complaint,
information, or indictment allowed the prosecution to proceed
against the defendant under a theory of felony-murder or murder
under the natural and probable consequences doctrine; the
defendant accepted a plea offer in lieu of a trial at which he or
she could be convicted of first or second degree murder; and the
defendant could not now be convicted of first or second degree
murder because of changes to sections 188 or 189 made effective
January 1, 2019. (§ 1170.95, subd. (a).)
The changes to our murder law modified the law related to
accomplice liability. (People v. Lopez (2019) 38 Cal.App.5th 1087,
1098–1099, review granted Nov. 13, 2019, S258175.) A principal
cannot be convicted of murder unless he or she acted with malice
aforethought, except as otherwise specified in section 189. (§ 188,
subd. (a)(3).) A participant in a felony listed in section 189,
subdivision (a) in which death occurs is liable for murder only if
the person was the actual killer, the person aided and abetted
first degree murder with the intent to kill, or the person was a
major participant in the underlying felony and acted with
reckless indifference to human life. (§ 189, subd. (e).)
When a defendant files a petition for resentencing, the trial
court “shall review the petition to determine if the petitioner has
made a prima facie showing that the [defendant] falls within the
provisions of this section. If the [defendant] has requested
counsel, the [trial court] shall appoint counsel to represent the
[defendant]. The prosecutor shall file and serve a response
within 60 days of service of the petition and the [defendant] may
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file and serve a reply within 30 days after the prosecutor
response is served. . . . If the [defendant] makes a prima facie
showing that he or she is entitled to relief, the court shall issue
an order to show cause” (§ 1170.95, subd. (c)) and proceed to an
evidentiary hearing under section 1170.95, subdivision (d) unless
the parties stipulate that the defendant is eligible to have his or
her murder conviction vacated and be resentenced. In People v.
Lewis (July 26, 2021, S260598) ___ Cal.5th ___ [2021 Cal.LEXIS
5258], our Supreme Court interpreted the foregoing language and
determined that the trial court must appoint counsel if the
defendant files a facially sufficient petition. After the
appointment of counsel and an opportunity for briefing, the trial
court may consider the record of conviction to determine whether
the defendant has made a prima facie showing. (Id. at pp. *2–
*3.)
Case law establishes that the record of conviction includes
trial court documents and a reviewing court’s opinion in an
appeal from the judgment. (People v. Woodell (1998) 17 Cal.4th
448, 454.) The authority “to make determinations without
conducting an evidentiary hearing pursuant to section 1170.95,
[subdivision] (d) is limited to readily ascertainable facts from the
record (such as the crime of conviction), rather than factfinding
involving the weighing of evidence or the exercise of discretion
(such as determining whether the [defendant] showed reckless
indifference to human life in the commission of the crime).”
(People v. Drayton (2020) 47 Cal.App.5th 965, 980.)
III. Analysis.
Appellant’s record of conviction did not establish that he
was ineligible for relief under section 1170.95 as a matter of law
because he entered his plea but did not admit that he was a
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major participant or that he acted with reckless indifference to
human life. Appellant contends, the trial court improperly
weighed the evidence and made factual findings on those topics.
Also, the trial court improperly relied on facts stated in appellate
opinions pertaining to Banks and Daniels even though those
opinions are not part of appellant’s record of conviction. The
Attorney General agrees that the trial court erred in finding
appellant ineligible as a matter of law.
The trial court erred when it failed to issue an order to
show cause and set an evidentiary hearing pursuant to section
1170.95, subdivision (d).
DISPOSITION
The order denying appellant’s petition is reversed. The
matter is remanded for the trial court to issue an order to show
cause and proceed to an evidentiary hearing under section
1170.95, subdivision (d) unless the parties stipulate that
appellant is eligible to have his murder conviction vacated and be
resentenced.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________, P. J.
LUI
_________________________, J.
CHAVEZ
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