People v. Gilbert CA2/3 ( 2021 )

Filed 3/1/21 P. v. Gilbert CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B304790
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA041797-02
v.
GARY LYNN GILBERT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sean D. Coen, Judge. Reversed and
remanded.
James Koester, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Steve Oetting and Heather B. Arambarri,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
In 1996 a jury convicted defendant and appellant Gary
Lynn Gilbert of second degree murder as well as robbery.
In 2019, after the Legislature passed Senate Bill No. 1437,
Gilbert filed a petition for resentencing under Penal Code
section 1170.95.1 The trial court denied the petition, stating
Gilbert was ineligible for relief because the jury’s verdict
convicting him of second degree murder showed it found he
had acted with malice. On appeal, the Attorney General agrees
with Gilbert that we must return the case to the trial court for
an order to show cause and an evidentiary hearing, because
the jury could have convicted Gilbert of second degree murder
either as a direct aider and abettor who acted with implied
malice or under the natural and probable consequences doctrine.
Accordingly, we reverse and remand for further proceedings.
BACKGROUND
In April 1995, Michael Spencer and Jason Jones were
walking through a park in Lynwood.2 Gilbert, Emmett Johnson,
and Monique Walker were drinking in the park. Johnson asked
Spencer and Jones what gang they were from. Johnson then
pulled out a gun. Gilbert hit Jones in the jaw and Jones fell
down. Johnson asked Jones how much money he had. Gilbert
and Spencer then “brawl[ed]” while Johnson held his gun on
1 References to statutes are to the Penal Code unless
otherwise stated.
2 We take these facts from our unpublished opinion in
Gilbert’s direct appeal. (See People v. Johnson et al. (Nov. 21,
1997, B103479) [nonpub. opn.] (Gilbert I).) We previously
granted Gilbert’s request for judicial notice of that opinion under
Evidence Code section 452. At Gilbert’s request, we also took
judicial notice of the information and of the jury instructions
given at his trial.
2
Jones. Gilbert tried to remove rings from Spencer’s fingers
and to take the contents of his pockets. (Gilbert I.)
Johnson hit Jones on the back of the head with the gun
four or five times. Then Johnson went over to where Gilbert and
Spencer were fighting, pointed his gun downward at a 45-degree
angle, and shot Spencer twice. A “barrel stamp” on Spencer’s
head, and the presence of soot inside his skull, showed the gun
was fired while in contact with his head or at very close range.
After Johnson shot Spencer, Gilbert pushed his knee into
Spencer’s back and tried to pry the gold rings off his fingers.
Gilbert took some items from Spencer’s pockets. (Gilbert I.)
The People charged Gilbert and Johnson with Spencer’s
murder. The People alleged the defendants committed the
murder while engaged in the commission of robbery under
section 190.2, subdivision (a)(17). The People also charged both
defendants with the robbery of Spencer and Jones, and Johnson
only with assault with a firearm on Jones. The People alleged
that Johnson personally used a firearm in the commission of
the crimes under then-applicable section 12022.5, subdivision
(a), and that Gilbert had a prison prior under section 667.5,
subdivision (b).
At the conclusion of a May 1996 trial, the jury convicted
Gilbert of second degree murder. The jury found the special
circumstance allegation true as to Johnson but not as to Gilbert.
The trial court sentenced Gilbert to 19 years to life in the
state prison, calculated as 15 years to life for the murder plus
a consecutive three-year term for the robbery of Jones plus
one year for the prison prior.
On appeal, Gilbert’s sole contention was that the version
of the jury instruction the trial court gave on reasonable doubt
lowered the prosecution’s burden of proof. In November 1997,
we affirmed Gilbert’s conviction. (Gilbert I.)
3
In January 2019, Gilbert filed a petition for resentencing
under section 1170.95. On a downloadable form, Gilbert checked
boxes 1, 2a, 3, 5 and its subboxes, 6, and 7. Even though Gilbert
did not check box 4—“I request that this court appoint counsel
for me during the re-sentencing process”—it appears the court
did appoint counsel for Gilbert.3 On May 15, 2019, the District
Attorney filed an opposition to Gilbert’s petition, arguing
section 1170.95 is unconstitutional.
The record on appeal does not contain any indication of
any proceedings in the trial court between May 2019 and
January 2020. On January 23, 2020, the District Attorney filed
a second opposition to Gilbert’s petition. The District Attorney
argued the court should deny Gilbert’s petition because (1) he
“was not convicted under the felony-murder rule or under the
natural and probable consequences doctrine,”4 and (2) “[t]he
record of conviction proves beyond a reasonable doubt that
[he] personally acted with malice aforethought.” The District
Attorney asserted “[t]he facts at trial showed” Gilbert “acted
3 The record on appeal does not contain any of the minute
orders except those for (1) the May 1996 sentencing and (2) the
January 2020 hearing on Gilbert’s petition.
4 The trial court gave Gilbert’s jury (among many other
instructions) CALJIC Nos. 3.01 (aiding and abetting), 3.02
(natural and probable consequences doctrine/target crime of
robbery), 8.21 (first degree felony murder), 8.27 (first degree
felony murder/aiding and abetting), 8.30 (unpremeditated
second degree murder), and 8.31 (second degree murder/act
dangerous to human life [implied malice]). The court also
instructed the jury with CALJIC Nos. 8.32 (second degree
felony murder) and 8.34 (second degree felony murder/aiding
and abetting) but then withdrew those instructions and told
the jurors to disregard them.
4
as an aider and abettor” “with the specific intent to kill victim
Michael Spencer.”
On January 27, 2020, Gilbert’s counsel filed a pleading
in reply called “Entitlement Brief.” Citing our Supreme Court’s
decisions in People v. Banks (2015) 61 Cal.4th 788 and People
v. Clark (2016) 63 Cal.4th 522, counsel argued the prosecution
could not prove beyond a reasonable doubt that Gilbert “shared
a specific intent to kill” or was a major participant who acted
with reckless indifference to human life. Counsel stated Gilbert
had “no objection” to the court considering the preliminary
hearing transcript, the jury instructions, the jury’s questions,
and its verdicts.5 Counsel contended that, by convicting Gilbert
only of second degree murder, the jury “rejected” the People’s
theory that Gilbert “aided and abetted Johnson, with a specific
intent to kill.” Counsel argued Gilbert “was an instigator in a
strong arm robbery” and he “assaulted the victims in an attempt
to complete the robbery,” but there was “no evidence” he knew
Johnson would fire his gun.
The court held a hearing on Gilbert’s petition on
January 30, 2020. Gilbert’s counsel told the court, “[W]e don’t
know what theory [the jurors] relied upon.” After hearing from
counsel, the court stated the references to “major participant”
were “not . . . applicable here” because the jury convicted Gilbert
of second—not first—degree murder. The court observed that,
had the jury “followed [the] natural and probable consequences
theory,” it would have convicted Gilbert of first degree murder.
The court said it was relying on “the court of appeal decision,”
5 At the hearing on the petition, defense counsel told
the court he didn’t have the trial transcript, “so [he] didn’t get
a chance to read the arguments” (apparently referring to the
closing arguments).
5
“the jury instructions given at that time,” and the verdict forms.
The court noted Gilbert’s trial predated our high court’s decision
in People v. Chiu (2014) 59 Cal.4th 155.
Citing CALJIC Nos. 8.30 and 8.31, the court stated,
“The only way the jury was able to find [Gilbert] guilty of
second degree murder as instructed was by a finding of malice.”
The court said, “[T]his is not a close call for me. This is beyond
a reasonable doubt.” Because “there was a finding of malice,”
the court denied Gilbert’s petition.
DISCUSSION
In 2018, the Legislature enacted Senate Bill No. 1437
(2017-2018 Reg. Sess.) (SB 1437). SB 1437 “amend[ed] 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.” (Stats. 2018, ch. 1015, § 1(f). See People v. Roldan (2020)
56 Cal.App.5th 997, 1001 (Roldan), review granted Jan. 20, 2021,
S266031.) SB 1437 added section 1170.95 to the Penal Code.
It establishes a procedure by which a person convicted of murder
under the natural and probable consequences doctrine can
seek to vacate that conviction and be resentenced. (Stats. 2018,
ch. 1015, § 4; see also People v. Lewis (2020) 43 Cal.App.5th 1128,
1134, review granted Mar. 18, 2020, S260598.)
It appears the trial court here reviewed Gilbert’s petition,
determined he’d made a prima facie showing that he falls within
the provisions of section 1170.95, appointed counsel for him, and
received a response from the prosecutor and a reply from Gilbert.
The court then held a hearing and determined Gilbert had not
made the required second prima facie showing of entitlement
to relief. Accordingly, the court did not issue an order to show
6
cause or hold an evidentiary hearing to determine whether
to vacate Gilbert’s murder conviction, recall his sentence,
and resentence him on the remaining count for robbery. (See
§ 1170.95, subds. (c) & (d)(1); Roldan, supra, 56 Cal.App.5th
at p. 1003.)
On appeal, the parties agree Gilbert was not convicted
on a theory of felony murder. The trial court instructed the jury
on first degree felony murder only, and the jury convicted Gilbert
of second degree murder. On appeal, however, Gilbert contends
he was tried on two alternative theories of accomplice liability:
as a direct aider and abettor, and on a natural and probable
consequences theory in which the target offense was robbery.
If the jury convicted him on this second theory, he says, he is
entitled to relief under SB 1437. The Attorney General agrees.
The trial court never said it believed—based on the jury
instructions and verdicts—that Gilbert was a direct aider
and abettor. But that is the clear implication of the court’s
statements that Gilbert acted with malice. The court cited
CALJIC Nos. 8.30 and 8.31, which instruct on unpremeditated
second degree murder and implied malice. However, Gilbert’s
jury also was instructed with CALJIC Nos. 3.00, 3.01, and 3.02.
The trial court noted those instructions had been given
as well but appeared to view them as applicable only to the
prosecution’s first degree murder theory. The court observed
that CALJIC No. 3.02 should not have been given “because
[CALJIC No.] 8.27 was given.” CALJIC No. 8.27 addressed
aiding and abetting of first degree felony murder only. The
court concluded that, because the jury convicted Gilbert of
second degree murder, it could not have relied on a natural
and probable consequences theory (CALJIC No. 3.02) and
so must have found Gilbert acted with at least implied malice
7
(CALJIC No. 8.31). The court mentioned Chiu, decided nearly
20 years after Gilbert’s trial.
Chiu held a defendant may not be convicted of first
degree premeditated murder under the natural and probable
consequences doctrine. (People v. Gentile (2020) 10 Cal.5th 830,
845 (Gentile).) But even after Chiu, a defendant still could be
convicted of second degree murder under that doctrine—until
SB 1437. (Gentile, at p. 845 [Chiu “left in place natural and
probable consequences liability for second degree murder”];
Roldan, supra, 56 Cal.App.5th at p. 1002 [“Before SB 1437,
malice could be imputed to an aider and abettor under the
natural and probable consequences doctrine.”].)
SB 1437 amended section 188 to provide that “[m]alice
shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).) Accordingly,
SB 1437 “bars a conviction for second degree murder under
the natural and probable consequences theory.” (Gentile,
supra, 10 Cal.5th at 839.) If the jury relied on CALJIC No. 3.02
to convict Gilbert of second degree murder under the natural
and probable consequences doctrine—rather than as a direct
aider and abettor who acted with implied malice under CALJIC
Nos. 8.30 and 8.31—he would be entitled to resentencing.
As the Attorney General explains, “Although the jury
was instructed on the theory of malice for second degree
murder pursuant to CALJIC Nos. 8.30 and 8.31 . . . , it was also
instructed on aiding and abetting under the natural and probable
consequences doctrine pursuant to CALJIC No. 3.02 . . . . As
such, the jury could have convicted appellant of second degree
murder under a theory of natural and probable consequences. . . .
While there is substantial evidence in the record to support a
finding that the jury could have convicted appellant of second
degree murder on a theory of implied malice, there is nothing
8
indicating that the jury necessarily convicted him on that theory
as opposed to a natural and probable consequences theory.”
The Attorney General concludes, “Because appellant made
a prima facie showing of eligibility, . . . the court should have
issued an order to show cause and proceeded with an evidentiary
hearing in accordance with section 1170.95, subdivision (d)(3).
Accordingly, the appropriate remedy is to remand this case with
orders for the trial court to issue an order to show cause and
conduct such a hearing in accordance with section 1170.95,
subdivision (d).”
We agree, and we do so.6
DISPOSITION
We reverse the trial court’s order denying Gary Lynn
Gilbert’s petition for resentencing and remand the case with
instructions to issue an order to show cause and to conduct
an evidentiary hearing in accordance with Penal Code
section 1170.95, subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P.J. LAVIN, J.
6 We do not agree with Gilbert that the appropriate “remedy”
is to “remand the matter back to the trial court with instructions
to re-sentence appellant under the provisions of SB 1437.”
9