People v. Gatewood CA2/2 ( 2024 )

Filed 2/7/24 P. v. Gatewood CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B330382
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA066864)
v.
LAVELL GATEWOOD,
Defendants and
Appellants.
THE COURT:
Defendant and appellant Lavell Gatewood appeals from the
denial of his petition for vacatur of his attempted murder
conviction and for resentencing under Penal Code section 1172.6.1
Appointed counsel found no arguable issues and filed a brief
requesting this court to exercise our discretion to conduct an
1 All further unattributed code citations are to the Penal
Code.
independent review of the record or in the alternative, a review
as set forth in People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo). Defendant filed a supplement brief also requesting
an independent review but raised no issues regarding section
1172.6. As defendant does not claim that the trial court erred, we
decline to conduct an independent review of the record. (See
Delgadillo, at p. 232.)
BACKGROUND
In 2008, after a jury trial, defendant was convicted of
attempted murder in violation of sections 187, subdivision (a),
and 664. The jury found true allegations that he personally used
a firearm (§ 12022.53, subd. (b)); that he personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)); that he
personally and intentionally discharged a firearm, which caused
great bodily injury to the victim (§ 12022.53, subd. (d)); and that
he personally inflicted great bodily injury to the victim under
circumstances involving domestic violence (§ 12022.7, subd. (e)).
The trial court sentenced defendant to life in prison on the
attempted murder count, plus 25 years to life for one firearm
enhancement and four years for the great bodily injury
enhancement. This court modified the sentence to stay the great
bodily injury enhancement and correct the presentence credits,
but otherwise affirmed the judgment. (People v. Gatewood
(Oct. 29, 2009, B209314) [nonpub. opn.].)
In April 2022, defendant submitted a petition for
resentencing pursuant to section 1172.6. The trial court
appointed counsel for defendant, and the prosecution filed
written opposition to the petition. Defendant’s counsel filed no
written reply, and after several continuances the court held a
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hearing on May 3, 2023, to determine whether defendant had
established a prima facie basis for relief. The prosecutor argued
this was a one-defendant case without instructions regarding the
natural and probable consequences doctrine, the felony murder
rule, or any theory of imputed malice. Defense counsel presented
no argument and submitted the determination on defendant’s
petition.
At the conclusion of the hearing, the court denied
defendant’s resentencing petition without issuing an order to
show cause, finding on undisputed facts in the record of
conviction that the jury was not instructed regarding the natural
and probable consequences doctrine or any other theory of
imputed malice. The court concluded defendant was ineligible for
resentencing as a matter of law.
Defendant filed a timely notice of appeal from the court’s
order.
DISCUSSION
After examination of the record, appointed counsel filed an
opening brief raising no issues. Where, as here, appointed
counsel finds no arguable issues in an appeal that is not from the
first appeal after conviction, we are not required to conduct an
independent review of the record. (See Delgadillo, supra, 14
Cal.5th at p. 226.) However, even if we do not independently
review the record to identify unraised issues in such a case, we
give the defendant the opportunity to file his or her own
supplemental brief or letter and we then evaluate any specific
arguments raised. (See id., at p. 232.)
Here, counsel provided defendant with a copy of the record
on appeal and informed him of his right to file his own
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supplemental brief. We notified defendant of counsel’s brief; gave
him 30 days to file his own letter or brief stating any grounds for
an appeal, contentions, or arguments that he wished to be
considered; and advised him that if no supplemental brief or
letter is timely filed the court may dismiss the appeal as
abandoned.
Defendant filed a supplemental brief within the time
allowed and thoroughly set forth a statement of the evidence
adduced at trial showing he was the sole perpetrator of the
attempted murder of his wife, and there was no other principal.
Defendant then argues the denial of the petition should be
reversed due to ineffective assistance of trial counsel.
Effective 2019, sections 188 and 189, the laws pertaining to
felony murder and murder under the natural and probable
consequences doctrine were amended “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, subd. (f).) Section 1172.6
now provides a procedure for not only those convicted of murder,
but also those convicted of attempted murder or manslaughter to
seek retroactive relief if they could not now be convicted under
the amended laws. (§ 1172.6, subd. (a); see People v. Lewis (2021)
11 Cal.5th 952, 957.) A petition for relief may be filed by a such
person if convicted of one of those crimes based upon the natural
and probable consequences doctrine, the felony murder rule, or
when malice was imputed to the petitioner based solely on the
petitioner’s participation in crime. (§ 1172.6, subd. (a);
Delgadillo, supra, 14 Cal.5th at p. 233.) Where the record shows
no jury instructions were given regarding any of these theories,
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or where the record “conclusively establish[ed—]with no
factfinding, weighing of evidence, or credibility determinations”—
that petitioner was the actual perpetrator, he is ineligible for
relief as a matter of law. (People v. Harden (2022) 81 Cal.App.5th
45, 47-48, 52-53.)
The purpose of section 1172.6 is not to afford an
opportunity to obtain a new trial on the basis of trial error.
(People v. Farfan (2021) 71 Cal.App.5th 942, 947.) Thus
defendant’s claim is not the proper means to challenge a
conviction based upon alleged ineffectiveness of counsel. Thus
defendant has raised no issue regarding whether he could now be
convicted under the amended laws or that the procedure provided
by 1172.6 applies to him.
As the matter was submitted in the trial court on
undisputed facts establishing ineligibility under section 1172.6 as
a matter of law, and defendant has raised no issue, arguable or
otherwise, arising under section 1172.6, we do not exercise our
discretion to conduct an independent review. “The filing of a
supplemental brief or letter does not compel an independent
review of the entire record to identify unraised issues.”
(Delgadillo, supra, 14 Cal.5th at p. 232.)
DISPOSITION
The order denying defendant’s section 1172.6 petition is
affirmed.
____________________________________________________________
ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.
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