People v. Gilbert CA4/1 ( 2024 )

Filed 5/20/24 P. v. Gilbert CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D082131
Plaintiff and Respondent,
v. (Super. Ct. No. SF107852)
ANTHONY DWAYNE GILBERT,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Enrique E. Camarena, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Robin Urbanski, Lynne G. McGinnis, and Namita Patel, Deputy Attorneys
General, for Plaintiff and Respondent.
Anthony Dwayne Gilbert appeals from an order summarily denying his
petition for resentencing under Penal Code1 section 1172.6, in which he
sought relief from a 1996 conviction for attempted murder based on his plea
of guilt to that crime (§§ 664, 187, subd. (a)). We conclude that the trial court
correctly determined, at the prima facie stage, that Gilbert was ineligible for
relief. We accordingly affirm the order denying the petition for resentencing.
I.
FACTUAL AND PROCEDURAL BACKGROUND
On August 27, 1996, Gilbert pled guilty to all three counts charged
against him: (1) the May 20, 1996 attempted murder of J.H. (§§ 664,
187, subd. (a)); (2) the May 20, 1996 assault upon J.H. with a deadly weapon
and by means of force likely to produce great bodily injury (§ 245, subd.
(a)(1)); and (3) the May 20, 1996 possession of a deadly weapon (a sharp
object) by a prisoner (§ 4502). With respect to the attempted murder count,
Gilbert also admitted that he personally inflicted great bodily injury upon
J.H. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and personally used a deadly
and dangerous weapon, to wit, a sharp instrument (§ 12022, subd. (b)). The
trial court imposed a sentence of 46 years to life, to run consecutive to the
prison term Gilbert was already serving.
In October 2022, Gilbert petitioned for resentencing (§ 1172.6) by
submitting a preprinted form. The trial court appointed counsel to represent
Gilbert.
In their initial response to the petition, the People argued that, based
on the record of conviction, Gilbert had not met his burden to make a prima
facie case of eligibility for relief. One of the exhibits relied upon by the People
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
was the transcript from the hearing in which Gilbert pled guilty in 1996.
During that hearing, the following exchange occurred between the trial court
and Gilbert regarding the attempted murder count:
“[Trial Court]: And am I correct, sir, that what you did to make
you guilty of this offense is that you attempted to murder [J.H.],
a human being, and that at the time you personally did inflict
great bodily injury and that [J.H.] was not an accomplice to this
offense and that you personally used a sharp instrument in order
to inflict this great bodily injury? Is that what you did to make
you guilty of count one?
“[Gilbert]: Correct.”
The People further relied upon the form that Gilbert filled out to
plead guilty, on which he wrote the following brief statement when
asked to “[d]escribe facts to each charge”: “[A]ttempted to murder
[J.H.].”
Gilbert’s reply to the People’s initial response described the
applicable legal standards but set forth no specific argument relevant
to the facts of his case or responding to the items in the record of
conviction that the People had identified. At the subsequent hearing to
address whether Gilbert had established a prima facie case, counsel for
Gilbert only briefly addressed the court. She explained that “[Gilbert]
would like to point out to the court that this matter did occur within
the confines of the county jail. [¶] Although he was the only individual
charged on this complaint, that there is evidence to suggest that he is
not necessarily the only direct perpetrator and, in fact, could be
classified as an accomplice.” She asked that “the court to allow this
matter to be set for an evidentiary hearing so that Mr. Gilbert can
present evidence to the court.”
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The trial court denied the petition for resentencing: “The Court finds
that [Gilbert’s] conviction was not predicated on the now restricted felony
murder rule, natural and probable consequence doctrine, or any other theory
under which malice is imputed to a person based solely on that person’s
participation in a crime. [¶] The Court finds that [Gilbert] was the sole
assailant. [Gilbert] was convicted of attempted murder as a direct
perpetrator, rather than an aider and abettor or under the natural and
probable consequences doctrine. . . . Accordingly, the Petition is DENIED.”
II.
DISCUSSION
A. Applicable Legal Standards
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437
(2017–2018 Reg. Sess.), which limited accomplice liability under the
felony-murder rule, eliminated the natural and probable consequences
doctrine as it relates to murder, and eliminated convictions for murder based
on imputing malice based solely on a person’s participation in a crime. (See
People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) As amended by Senate
Bill No. 775 (2020–2021 Reg. Sess.), effective January 1, 2022, the
ameliorative changes to the law were made expressly applicable to attempted
murder and voluntary manslaughter. (See People v. Birdsall (2022)
77 Cal.App.5th 859, 865 & fn. 18.)
Under section 1172.6, a person serving a sentence for murder,
attempted murder or manslaughter under theories that have since been
eliminated or narrowed may file a petition to have the conviction vacated and
to be resentenced. (§ 1172.6, subd. (a).) The statute specifies that the only
theory of attempted murder for which a person may seek relief is “attempted
murder under the natural and probable consequences doctrine.” (Ibid.; see
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People v. Coley (2022) 77 Cal.App.5th 539, 548 (Coley).)2 A defendant
convicted of attempted murder either as an actual perpetrator or a direct
aider and abettor is not eligible for relief. (People v. Cortes (2022)
75 Cal.App.5th 198, 204.)
After appointing counsel if a petitioner makes such a request (§ 1172.6,
subd. (b)(3)), the first step for a trial court in evaluating the petition is to
determine whether the petitioner has made a prima facie case for relief and,
if so, to issue an order to show cause. (§ 1172.6, subd. (c).) “[T]he parties can,
and should, use the record of conviction to aid the trial court in reliably
assessing whether a petitioner has made a prima facie case for relief.”
(Lewis, supra, 11 Cal.5th at p. 972.) “While the trial court may look at the
record of conviction after the appointment of counsel to determine whether a
petitioner has made a prima facie case . . . , the prima facie inquiry . . . 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.’ ” . . . ‘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 p. 971,
citations omitted.) A reporter’s transcript of a plea colloquy is considered
2 Section 1172.6 allows a petition for resentencing to be filed only by the
following categories of persons: “A person convicted of felony murder or
murder under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and
probable consequences doctrine, or manslaughter.” (§ 1172.6, subd. (a), italics
added.)
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part of the record of conviction that may be used in assessing whether a
prima facie case for relief has been made under section 1172.6. (People v. Das
(2023) 96 Cal.App.5th 954, 960; People v. Fisher (2023) 95 Cal.App.5th
1022, 1028.)
At the prima facie stage, “ ‘[i]f the petition and record in the case
establish conclusively that the defendant is ineligible for relief, the trial court
may dismiss the petition.’ ” (People v. Curiel (2023) 15 Cal.5th 433, 460.)
“We review de novo an order denying a section 1172.6 petition at the prima
facie review stage.” (People v. Flores (2023) 96 Cal.App.5th 1164, 1170.)
B. The Record of Conviction Establishes Gilbert Was Not Convicted of
Attempted Murder Under the Natural and Probable Consequences
Doctrine
As we have explained, because his conviction was for attempted
murder, Gilbert is eligible to seek resentencing only if he can make a prima
facie showing that he was convicted under the natural and probable
consequences doctrine. (§ 1172.6, subd. (a); Coley, supra, 77 Cal.App.5th at
p. 548.)
The natural and probable consequences doctrine is a “form[ ] of liability
for aiders and abettors.” (People v. Gentile (2020) 10 Cal.5th 830, 843.)
Specifically, under the natural and probable consequences doctrine “an
accomplice is guilty not only of the offense he or she directly aided or abetted
(i.e., the target offense), but also of any other offense committed by the direct
perpetrator that was the ‘natural and probable consequence’ of the crime the
accomplice aided and abetted (i.e., the nontarget offense).” (Ibid.)
“[C]ulpability under the natural and probable consequences theory does not
require an accomplice to share the direct perpetrator’s intent. Instead,
‘[a]ider and abettor culpability under the natural and probable consequences
doctrine is vicarious in nature’ and ‘ “is not premised upon the intention of
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the aider and abettor to commit the nontarget offense because the nontarget
offense” ’ may not be intended at all. [Citation.] ‘[F]or example, if a person
aids and abets only an intended assault, but a murder results, that person
may be guilty of that murder, even if unintended, if it is a natural and
probable consequence of the intended assault.’ ” (Id. at p. 844.) Because the
natural and probable consequences doctrine imputes malice based solely on
participation in the target offense, the natural and probable consequences
doctrine is now an invalid theory of attempted murder. (People v. Sanchez
(2022) 75 Cal.App.5th 191, 196.)
Here, the record of conviction contains factual admissions by Gilbert
establishing that he was the direct perpetrator of the attempted murder
rather than an aider and abettor of a different offense, during which an
accomplice attempted to murder J.H. During the plea colloquy, Gilbert
agreed with the trial court’s factual statement that Gilbert “attempted to
murder [J.H.].” Further, Gilbert admitted that “at the time” of the attempted
murder, he “personally did inflict great bodily injury” on J.H. and he
“personally used a sharp instrument in order to inflict this great bodily
injury.” These factual admissions establish that Gilbert was the direct
perpetrator. The natural and probable consequences doctrine does not apply
because Gilbert admitted that he attempted to murder J.H. using a sharp
instrument—not that he aided and abetted someone else to commit a
different crime that resulted in his accomplice committing attempted murder.
Gilbert contends that his guilty plea does not rule out that he was
convicted under the natural and probable consequences doctrine because his
case is analogous to those in which a defendant entered into a “generic plea of
guilt,” in which he did no more than admit to having committed the offense
charged in the complaint. (People v. Rivera (2021) 62 Cal.App.5th 2177
(Rivera); People v. Eynon (2021) 68 Cal.App.5th 967 (Eynon).) However, as
we will explain, the cases that Gilbert cites are not analogous.
In Rivera, the defendant made no factual admissions on the record
during the plea colloquy, and instead simply pleaded no contest to a count of
second degree murder, with counsel stipulating to the grand jury
proceedings as the factual basis for the plea. (Rivera, supra, 62 Cal.App.5th
at pp. 225–226.) The relevant plea colloquy was limited to the petitioner
pleading no contest when the trial court asked, “[W]hat is your plea to Count
1, that . . . you did willfully, unlawfully[,] and with malice aforethought
murder [the victim] . . . in violation of Penal Code section 187(a), a felony?”
(Rivera, at p. 225.) Rivera explained that the record of conviction did not
preclude the possibility that the petitioner was convicted based on the
natural and probable consequences doctrine or the felony-murder rule
because “[t]he generic manner in which murder was charged here did not
limit the People to prosecuting [the petitioner] on any particular theories.”
(Id. at p. 233.) Rivera emphasized that the petitioner “made no admissions
related to the murder other than pleading no contest to the count as
charged,” and thus there was “no basis on which to infer that [the petitioner]
admitted to acting with actual malice.” (Id. at pp. 234–235.)
In Eynon the petitioner “pled guilty to premeditated first degree
murder and admitted that the murder was committed during a robbery.”
(Eynon, supra, 68 Cal.App.5th at p. 970.) “The information alleged that a
codefendant was the actual killer.” (Ibid.) At the plea colloquy, as the factual
basis for the guilty plea, the petitioner “admitted that he did ‘what Count 1 of
th[e] Information says [he] did, when it says [he] did it.’ ” (Id. at p. 971.) The
petitioner also “agreed, in response to an inquiry from the court, ‘that this
was a first-degree murder by virtue of being a felony murder; that being
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murder that occurred during the commission of a robbery.” (Id. at pp. 971–
972.) The petitioner “made no other factual admissions.” (Id. at p. 976.)
Eynon explained that the trial court erred in summarily denying the petition
for resentencing because “the generic murder charge allowed the prosecution
to proceed on any theory of liability, including natural and probable
consequences or felony murder.” (Id. at p. 977.) The petitioner did nothing
more than admit that the charged murder took place and that he “committed
an act with the necessary intent to render him liable for that murder under
then-existing law,” which at the time included theories that were no longer
valid. (Id. at p. 978.)
Here, in contrast to Rivera and Eynon, Gilbert did not limit his
comments during the plea colloquy to stating that he was entering a plea to
the count of attempted murder as charged in the complaint. Instead, the
trial court asked Gilbert to factually confirm “what you did to make you
guilty of this offense,” and Gilbert responded by confirming the trial court’s
description of the offense, which was that he “attempted to murder [J.H.].”
Accordingly, unlike Rivera and Eynon, Gilbert’s case does not involve a
“generic plea” to the charging document, which could have been based on any
of several theories of guilt.
Gilbert also argues that his admission, as part of the plea to the
attempted murder count, that he personally inflicted great bodily injury on
J.H. (§ 12022.7, subd. (a)) and personally used a sharp instrument in order to
inflict great bodily injury (§ 12022, subd. (b)), does not preclude the
possibility that he was convicted based on the natural and probable
consequences doctrine, rather than as the direct perpetrator. Specifically,
Gilbert points out that because intent to kill is not necessary for either
enhancement, he could have admitted to those enhancements but still have
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been convicted based on the natural and probable consequences doctrine as
an aider and abettor of a target crime other than attempted murder. (Cf.
People v. Elder (2014) 227 Cal.App.4th 411, 424 [intent to inflict great bodily
injury not required for an enhancement under § 12022.7]; People v. Garrison
(2021) 73 Cal.App.5th 735, 743 [“although in theory, a finding that a
defendant personally used a firearm does not in itself prove a defendant is
the actual killer [citation], the facts of a particular case may support only
that conclusion”]; People v. Offley (2020) 48 Cal.App.5th 588, 598 [“Because
an enhancement under section 12022.53, subdivision (d) [for personal
discharge of a firearm] does not require that the defendant acted either with
the intent to kill or with conscious disregard to life, it does not establish that
the defendant acted with malice aforethought.”].) We understand Gilbert’s
argument, but it is not persuasive here because Gilbert did more than simply
admit to the enhancements. Specifically, Gilbert admitted that he was the
person who “attempted to murder [J.H.]” and that “at the time” he personally
inflicted great bodily injury on J.H. and personally used a sharp instrument
to inflict that great bodily injury.
In sum, the only reasonable view of the record of conviction is that
Gilbert admitted to being an actual perpetrator in the attempted murder of
J.H. Accordingly, Gilbert failed to make a prima facie showing that he was
convicted of attempted murder as an aider and abettor of a different target
crime under the natural and probable consequences doctrine.
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DISPOSITION
The order denying the petition for resentencing is affirmed.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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