Message
×
loading..

People v. Gunn CA2/4 ( 2022 )


Menu:
  • Filed 7/27/22 P. v. Gunn CA2/4
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
    publication or ordered published for purposes of rule 8.1115.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 FOUR
    THE PEOPLE,                                                                 B310486
    (Los Angeles County
    Plaintiff and Respondent,                                       Super. Ct. No. A348521-2)
    v.
    PHILLIP BENJAMIN GUNN,
    Defendant and Appellant.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County. Frederick N. Wapner, Judge. Reversed
    and remanded with directions.
    Phillip B. Gunn in pro. per.; Kelly C. Martin, 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, Scott A. Taryle and Colleen M.
    Tiedemann, Deputy Attorneys General, for Plaintiff and
    Respondent.
    ________________________________________
    INTRODUCTION
    Appellant Phillip Benjamin Gunn was convicted of first
    degree murder and robbery in 1981 and was sentenced to life
    without the possibility of parole. In 2019, he filed a petition
    under Penal Code section 1172.6 (former section 1170.95) to
    vacate his murder conviction.1 Appellant claimed that he
    was convicted under the felony murder rule, and that he was
    not the actual killer, had not acted with intent to kill, and
    had not even participated in the underlying robbery. Among
    other things, he alleged that although he shot the victim (in
    self-defense), he merely injured him, and another person
    shot and killed him after appellant left the scene. The
    superior court denied the petition without issuing an order
    to show cause after concluding that appellant was ineligible
    for relief as a matter of law because he was “the actual
    shooter.” On appeal, appellant contends the court erred in
    denying his petition without holding an evidentiary hearing.
    1     Effective June 30, 2022, Penal Code section 1170.95 was
    renumbered section 1172.6, with no change in text (Stats. 2022,
    ch. 58, § 10). Undesignated statutory references are to the Penal
    Code.
    2
    The Attorney General concedes the superior court erred in
    denying the petition at this stage of the proceeding. We
    agree with the parties and therefore reverse and remand.2
    BACKGROUND
    A. Appellant’s Convictions
    In 1981, a jury convicted appellant of murder (with
    robbery-murder and firearm special-circumstance findings)
    and robbery. As relevant here, the jury was instructed on a
    theory of first degree felony murder, and the instructions
    provided that “[i]f a human being is killed by any one of
    several persons engaged in the perpetration of . . . the crime
    of ROBBERY, all persons who . . . with knowledge of the
    unlawful purpose of the perpetrator of the crime aid,
    promote, encourage, or instigate . . . its commission, are
    guilty of murder of the first degree, whether the killing is
    intentional, unintentional, or accidental.”3 As to the
    robbery-murder special-circumstance allegation, the jury
    was instructed that to find the allegation true, it must find
    that “the murder was committed while the defendant [was
    engaged in] or [was an accomplice] in the [commission] of a
    2     Given our conclusion, we need not address appellant’s
    additional claim that his former appointed counsel’s performance
    in the superior court violated his right to counsel.
    3      We grant the Attorney General’s request for judicial notice
    of the record in appellant’s direct appeal (People v. Gunn (Feb. 10,
    1983, 2 Crim No. 40927)).
    3
    [robbery]” and that “the murder was committed during the
    immediate flight after the [commission] of a [robbery].”
    Appellant was sentenced to life in prison without the
    possibility of parole. This court affirmed the judgment on
    direct appeal.4
    B. Appellant’s Petition
    In 2019, appellant filed a pro per petition styled as a
    petition for writ of habeas corpus, seeking to vacate his
    murder conviction under Senate Bill No. 1437 (2017-2018
    Reg. Sess.) (SB 1437). He claimed he had been convicted
    under the felony murder rule but was now eligible for
    retroactive relief. He further claimed he was not the actual
    killer, had not acted with intent to kill, and had not
    participated in the underlying robbery.
    Appellant alleged the following facts in his petition:
    Amber Banks and her pimp Tony Cortez had planned to rob
    one of Banks’s customers, Charles Ferris, but appellant had
    no part in the robbery conspiracy. Banks enticed Ferris to
    her apartment, where appellant was present for unrelated
    reasons. Upon seeing Banks enter the apartment with an
    unfamiliar man, appellant held a gun and told Ferris to
    “hold it right there.” Ferris then pulled out his own gun and
    fired at appellant, but missed and struck Banks instead.
    Appellant returned fire, injuring Ferris, but not killing him.
    4     In affirming the judgment, this court assumed that the jury
    convicted appellant under the felony murder rule.
    4
    Appellant tossed the gun onto a bed, near where the injured
    Banks was sitting, and told her to call the police and report
    that she had shot Ferris when Ferris tried to force his way
    into her apartment. At that time, Cortez showed up and
    went through Ferris’s pockets, and appellant and Cortez
    then left the apartment, with Ferris still alive. According to
    appellant’s petition, a neighbor named Linda Rich testified
    at trial that she saw appellant and Cortez leave the
    apartment, and later heard another gunshot inside the
    apartment. The petition claimed it must have been Banks
    who shot and killed Ferris.
    The superior court treated appellant’s petition as a
    petition for relief under former section 1170.95, and
    appointed him counsel. The People filed an opposition,
    attaching this court’s decision in the prior appeal and relying
    on it to argue that appellant was the actual killer and was
    therefore ineligible for relief. The prior decision provided a
    brief summary of the People’s theory at trial and appellant’s
    testimony. According to the decision, the People’s theory
    was that appellant had conspired with Banks and Cortez to
    commit the robbery. Appellant waited for Banks and Ferris
    in Banks’s apartment, and when they arrived, an exchange
    of shots between appellant and Ferris followed, leaving
    Ferris dead. Appellant and Cortez then took money and
    jewelry from Ferris and left. Describing appellant’s version
    of events, the prior decision stated he testified that he was in
    the apartment for an unrelated reason, that when he saw
    Banks with an unfamiliar man, he challenged the couple,
    5
    and that after the man fired at him, he fired back in
    self-defense.
    C. The Superior Court’s Ruling
    At a hearing on appellant’s petition, appellant’s
    counsel noted that his office had been unable to locate
    transcripts from appellant’s trial. The superior court replied
    that appellant was “the shooter,” but that counsel could
    contact the court if he needed to obtain additional discovery.
    Counsel agreed that appellant was “the shooter,” and
    submitted the matter. The court then summarily denied the
    petition, without issuing an order to show cause, concluding
    that appellant was “the actual shooter.” Appellant timely
    appealed.
    D. Proceedings in This Appeal
    Appellant’s appointed appellate counsel initially filed a
    brief requesting that we independently review the record
    under People v. Wende (1979) 
    25 Cal.3d 436
    . After reviewing
    the record, we ordered the parties to submit briefs on the
    merits and directed counsel to address whether, given the
    allegations in appellant’s petition, appellant was entitled to
    an evidentiary hearing. The parties complied.
    DISCUSSION
    Appellant contends that he was eligible for relief under
    former section 1170.95, and that the superior court erred in
    summarily denying his petition. The Attorney General
    6
    concedes the matter should be remanded to the superior
    court to issue an order to show cause and hold an
    evidentiary hearing. We agree with the parties that the
    matter must be remanded for an evidentiary hearing.
    “Effective January 1, 2019, the Legislature passed
    Senate Bill 1437 ‘to amend the felony murder rule and the
    natural and probable consequences doctrine, as it relates to
    murder, 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.’” (People v. Lewis (2021) 
    11 Cal.5th 952
    , 959
    (Lewis).) SB 1437 also enacted former section 1170.95 (now
    section 1172.6), allowing a defendant who was convicted
    under the felony murder rule (among other theories), but
    who could not be convicted of murder because of SB 1437’s
    changes to the law, to petition the sentencing court to vacate
    the conviction and resentence the petitioner on any
    remaining counts. (Former § 1170.95, subd. (a); Stats. 2018,
    ch. 1015, § 4; § 1172.6, subd. (a).) After ascertaining that
    such a petition contains certain required information, the
    court must appoint counsel for the petitioner (if requested),
    allow the parties to file briefs, and determine whether the
    petitioner has made a prima facie showing of entitlement to
    relief. (Former § 1170.95, subd. (c); § 1172.6, subd. (c);
    Lewis, supra, at 960-968.)
    “[T]he ‘prima facie bar was intentionally . . . set very
    low.’” (Lewis, supra, 11 Cal.5th at 972.) “Like the analogous
    7
    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.”’” (Id. at 971, quoting People v. Drayton (2020) 
    47 Cal.App.5th 965
    , 978 (Drayton).) In performing the required
    assessment at the prima facie stage, the court must not
    engage in “‘factfinding involving the weighing of evidence or
    the exercise of discretion.’” (Lewis, at 972, quoting Drayton,
    at 980.) If the petitioner’s allegations are sufficient to state
    a claim for relief, the court may refrain from issuing an order
    to show cause “[o]nly where the record of conviction contains
    facts conclusively refuting the allegations in the petition,”
    thereby establishing the petitioner’s ineligibility for
    resentencing “as a matter of law.” (People v. Flores (2022) 
    76 Cal.App.5th 974
    , 991-992.) The court’s authority to make
    factual determinations without conducting an evidentiary
    hearing “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) . . . .” (Drayton, at 980.)
    Here, appellant alleged that he was not the actual
    killer and did not act with intent to kill: he asserted that he
    had shot Ferris in self-defense and left the apartment while
    Ferris was alive -- after instructing Banks to call the police --
    8
    but that Banks then shot and killed Ferris. The prior
    appellate decision’s limited description of the facts does not
    conclusively refute his allegations.5 And the jury
    instructions permitted the jury to convict appellant of
    murder and find the robbery-murder special-circumstance
    allegation true even if it accepted his version of events.
    The jury also was not asked to determine whether
    appellant was a major participant in the robbery who acted
    with reckless indifference to human life, and we cannot
    make this determination as a matter of law. Because
    appellant was not ineligible for relief as a matter of law, he
    was entitled to an order to show cause.
    At the evidentiary hearing, the superior court will not
    be compelled to credit appellant’s allegations. (See Lewis,
    supra, 11 Cal.5th at 971 [court should not reject petitioner’s
    factual allegations on credibility grounds “‘without first
    conducting an evidentiary hearing’”].) Additionally, the
    court will be able to determine whether, even under
    appellant’s version, he was a major participant in the
    robbery who acted with reckless indifference, based on the
    5      Senate Bill No. 775 (2021-2022 Reg. Sess.), which became
    effective January 1, 2022, “prevents a trial court from relying on
    facts recited in an appellate opinion to rule on a petition under
    section [1172.6].” (People v. Cooper (2022) 
    77 Cal.App.5th 393
    ,
    406.) Appellant argues the same limitation applies at the prima
    facie stage. We need not decide this issue, as the prior decision in
    appellant’s direct appeal would not be dispositive of his petition.
    9
    factors articulated by our Supreme Court.6 (See People v.
    Banks (2015) 
    61 Cal.4th 788
    , 803 [relevant factors in
    assessing whether defendant was major participant in
    underlying felony include, inter alia: defendant’s role in
    using lethal weapons; defendant’s presence and ability to
    facilitate or prevent killing; whether defendant’s actions or
    inaction played role in victim’s death; and defendant’s
    actions after lethal force was used]; People v. Clark (2016) 
    63 Cal.4th 522
    , 618-623 [discussing similar considerations for
    determining whether defendant acted with reckless
    indifference to human life].) But in reviewing appellant’s
    petition at the prima facie stage, the superior court was not
    in a position to reject appellant’s allegations or to determine
    whether he was a major participant in the robbery who acted
    with reckless indifference to human life. (See Drayton,
    supra, 47 Cal.App.5th at 980.) Accordingly, appellant was
    entitled to an evidentiary hearing.
    6     The jury found appellant guilty of robbery, and he cannot
    challenge that finding in this section 1172.6 proceeding. (See
    People v. Price (2021) 
    71 Cal.App.5th 1128
    , 1151 [Legislature did
    not intend to allow parties to reopen and retry factual matters
    already resolved by jury].)
    10
    DISPOSITION
    The superior court’s order denying appellant’s petition
    is reversed. The matter is remanded to the superior court
    with directions to issue an order to show cause and proceed
    in accordance with section 1172.6.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    MANELLA, P. J.
    We concur:
    WILLHITE, J.
    COLLINS, J.
    11
    

Document Info

Docket Number: B310486

Filed Date: 7/27/2022

Precedential Status: Non-Precedential

Modified Date: 7/27/2022