People v. Gibson CA2/7 ( 2021 )

Filed 9/21/21 P. v. Gibson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B308074
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA058991)
v.
MALCOLM DARCELL GIBSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Tomson T. Ong, Judge. Reversed and
remanded.
David Y. Stanley, 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, Senior
Assistant Attorney General, Idan Ivri and Daniel C. Chang,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________
Malcolm Darcell Gibson, convicted in 2005 of first degree
felony murder, appeals the superior court’s order denying his
petition for resentencing under Penal Code section 1170.951
based on the court’s finding Gibson had not made a prima facie
showing he was entitled to relief. Gibson contends, and the
Attorney General concedes, the superior court erred by
prematurely engaging in factfinding not permitted before issuing
an order to show cause and conducting an evidentiary hearing.
We agree, reverse the order denying Gibson’s petition and
remand with directions to issue an order to show cause and to
conduct further proceedings in accordance with section 1170.95,
subdivision (d).
FACTUAL AND PROCEDURAL BACKGROUND
1. Gibson’s Felony-murder Conviction
Our opinion affirming Gibson’s judgment of conviction,
which Gibson attached to his petition for resentencing, describes
the evidence presented at trial and the jury’s verdict. (People v.
Gibson (July 26, 2006, B184170) [nonpub. opn.].)
Wayne Williams, a friend of Gibson’s family, owned a
restaurant and sold sports jerseys, which he kept in his truck, as
a side business. On October 22, 2003 Gibson made several
attempts to meet with Williams at the restaurant, ostensibly for
the purpose of purchasing a jersey. Gibson finally arranged to
meet Williams after the restaurant closed at a location near
Gibson’s mother’s house. Gibson waited at the location with a
1 Statutory references are to this code.
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friend, Derrick Roalston, who Gibson understood wanted to rob
Williams. After Williams arrived at the meeting location and
Gibson and Roalston had started looking through the jerseys,
Roalston took out a gun and told Williams he was going to take
one of the jerseys. Williams responded that Roalston would have
to kill him to do so. According to Gibson, who was interviewed by
the police after his arrest and testified in his defense at trial,
Roalston then fired several shots, one hitting Williams, another
striking Gibson. Roalston ran from the scene. Gibson, who could
tell Williams had been shot, also left the scene without helping
Williams, going first to a friend’s house and then to his
girlfriend’s house, where his mother picked him up early the next
morning. Williams died from the gunshot wound.
The jury found Gibson guilty of first degree felony murder
and found true the special allegation a principal had been armed
with a firearm during the commission of the offense. The trial
court sentenced Gibson to an aggregate indeterminate state
prison term of 26 years to life.
On appeal we rejected Gibson’s argument the evidence was
insufficient to support the jury’s finding he had aided and abetted
in the robbery that resulted in Williams’s death, as well as
several claims of instructional and evidentiary error and his
contention his attorney had provided constitutionally ineffective
assistance of counsel. (People v. Gibson, supra, B184170.)
2. Gibson’s Petition for Resentencing
On January 14, 2019 Gibson, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
proceedings. Gibson checked several boxes on the printed form
petition establishing his eligibility for resentencing relief,
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including the boxes stating he had been convicted under a felony-
murder theory and could not now be convicted of first or second
degree murder because of changes made to sections 188 and 189
by Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019.
The court appointed counsel to represent Gibson and
ordered briefing pursuant to section 1170.95, subdivision (c), by
the district attorney. The district attorney filed an opposition
memorandum, conceding Gibson had been convicted on a felony-
murder theory, but arguing Gibson was not eligible for
resentencing because he had been a major participant in the
robbery of Williams and had acted with reckless indifference to
human life within the meaning of sections 189, subdivision (e)(3),
and 190.2, subdivision (d), as clarified by the Supreme Court in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark). Gibson, through appointed
counsel, filed a reply memorandum.
The court heard argument from counsel at a hearing on
September 21, 2020, which focused on whether the evidence at
trial established Gibson satisfied the Banks/Clark factors that
would preclude resentencing relief under section 1170.95. The
court denied the petition, explaining, “If [Gibson] did not arrange
the meeting, the codefendant in this case, the shooter, would not
have known this person. This person would not have been at the
location. He set up this killing. He set up this robbery that
resulted in the killing. And the worst part is, you know, he did
not die from his shot, you know, but Mr. Williams did. . . . And
the more important thing is that [Gibson] did not do anything to
aid [Williams], you know. Tells me that, from what Mr. Gibson
did, that this was a cold, cold person, that set up a friend of the
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family, who was good to him and his family. . . . So cold and so
callous.”
Gibson filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e)(3); see People v. Lewis (2021)
11 Cal.5th 952, 957 (Lewis).) It also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, supra, 11 Cal.5th at
p. 957; Gentile, at p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she was convicted of murder and is eligible for relief (§ 1170.95,
subd. (b)(1)(A)), section 1170.95, subdivision (c), requires the
court to appoint counsel to represent the petitioner, if requested;
to direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply; and to determine if the
petitioner has made a prima facie showing that he or she is
entitled to relief. (See Lewis, supra, 11 Cal.5th at pp. 962-963.)
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In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . However, if the record, including the
court’s own documents, contain[s] facts refuting the allegations
made in the petition, then the court is justified in making a
credibility determination adverse to the petitioner.” (Id. at
pp. 970-971, internal quotation marks omitted; see People v.
Daniel (2020) 57 Cal.App.5th 666, 675, review granted Feb. 24,
2021, S266336 [any error in denying petition at prima facie stage
without appointing counsel is harmless if the record of conviction
“conclusively demonstrates” petitioner is ineligible for relief].)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 230,
review granted Mar. 10, 2021, S266652; People v. Lopez (2020)
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56 Cal.App.5th 936, 949, review granted Feb. 10, 2021, S265974;
but see People v. Duke (2020) 55 Cal.App.5th 113, 123, review
granted Jan. 13, 2021, S265309.) The prosecutor and petitioner
may rely on the record of conviction or offer new or additional
evidence to meet their respective burdens. (See Gentile, supra,
10 Cal.5th at pp. 853-854.)
2. The Superior Court Erred in Denying Gibson’s Petition
Without an Evidentiary Hearing
Gibson’s petition complied with the statutory requirements
of section 1170.95; and his declaration, if accepted as true, made
a prima facie showing of eligibility for relief. The superior court’s
contrary ruling was based on its finding that Gibson could still be
convicted of murder under the felony-murder rule.
At the time of Gibson’s trial, section 189 permitted a
conviction for felony murder by imputing malice to a participant
in an inherently dangerous felony, including robbery, that
resulted in homicide. (See People v. Chun (2009) 45 Cal.4th 1172,
1184.) As amended by Senate Bill 1437, section 188,
subdivision (a)(3), now prohibits imputing malice based solely on
an individual’s participation in a crime and requires proof of
malice to convict a principal of murder except under the revised
felony-murder rule as set forth in new section 189,
subdivision (e). Section 189, subdivision (e), in turn, limits the
felony-murder exception to the malice requirement to situations
in which the defendant was the actual killer (subdivision (e)(1)),
aided or abetted the underlying serious felony with the intent to
kill (subdivision (e)(2)), or was a major participant in the felony
and acted with reckless indifference to human life
(subdivision (e)(3)), as those terms have been clarified by the
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Supreme Court in Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522.
Gibson does not fall into either of the first two felony-
murder categories. It is undisputed Roalston, not Gibson, shot
Williams during the robbery; and the district attorney did not
contend, nor did the readily ascertainable facts show, that Gibson
had acted during the robbery with an intent to kill. Rather, the
superior court’s ruling was predicated on the third felony-murder
category, implicitly finding that Gibson had been a major
participant in the robbery and had acted with reckless
indifference to human life. Those findings are necessarily fact-
intensive. (See In re Scoggins (2020) 9 Cal.5th 667, 683
[determining whether a defendant was a major participant in an
underlying felony who acted with reckless indifference to life
within the meaning of the special-circumstance statute “requires
a fact-intensive, individualized inquiry”]; In re Parrish (2020)
58 Cal.App.5th 539, 542 [Supreme Court has prescribed “a fact-
intensive and individualized inquiry” to determine whether the
evidence demonstrates reckless indifference and major
participation].)
The Attorney General acknowledges, although there is
evidence that Gibson could still be convicted of murder under the
felony-murder rule, the record of conviction does not establish as
a matter of law that he is ineligible for resentencing as a major
participant in the robberies who acted with reckless indifference
to human life. The superior court’s ruling that Gibson could still
be convicted of first degree murder required the court to weigh
the evidence, including Gibson’s credibility in describing his
motivation and role in the robbery, and to engage in factfinding,
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activities not permitted under section 1170.95 prior to the
issuance of an order to show cause.
As the court of appeal explained in People v. Drayton (2020)
47 Cal.App.5th 965, 980: “[W]hen assessing the prima facie
showing, the trial court should assume all facts stated in the
section 1170.95 petition are true. [Citation.] The trial court
should not evaluate the credibility of the petition’s assertions, but
it need not credit factual assertions that are untrue as a matter
of law . . . . However, this authority to make determinations
without conducting an evidentiary hearing pursuant to
section 1170.95, subd[ivision] (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 petitioner showed reckless indifference to human life
in the commission of the crime).” (Accord, Lewis, supra,
11 Cal.5th at p. 971 [“‘[a] court should not reject the petitioner’s
factual allegations on credibility grounds without first conducting
an evidentiary hearing’”]; People v. Duchine (2021)
60 Cal.App.5th 798, 815 [“the time for weighing and balancing
and making findings on the ultimate issues arises at the
evidentiary hearing stage rather than the prima facie stage, at
least where the record is not dispositive on the factual issues”].)
Accordingly, as both parties agree, the matter must be
remanded for the superior court to conduct an evidentiary
hearing in accordance with section 1170.95, subdivision (d).
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DISPOSITION
The order denying Gibson’s section 1170.95 petition is
reversed. On remand the superior court is to issue an order to
show cause and to conduct further proceedings in accordance
with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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