People v. Gibbs CA2/7 ( 2024 )

Filed 2/9/24 P. v. Gibbs 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
THE PEOPLE, B329530
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA079441)
v.
DWIGHT ANTWAN GIBBS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Affirmed and
remanded with directions.
Jolene Larimore, 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, Wyatt E. Bloomfield and Stefanie
Yee, Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Dwight Antwan Gibbs appeals from an order awarding
victim restitution. He contends, the People concede, and we
agree the abstract of judgment should be modified to reflect that
he and his codefendant Dawuan Javonya Washington are jointly
and severally liable for the victim restitution awards against
them. We remand with directions for the trial court to correct the
abstract of judgment to reflect that Gibbs and Washington are
jointly and severally liable for the victim restitution awards.
FACTUAL AND PROCEDURAL BACKGROUND
In the early morning of July 14, 2020 Washington drove
Gibbs and Amya Malbrue to a check cashing store. Gibbs exited
the vehicle and approached Lyonell Henson as Henson walked
out the store. Gibbs pointed a semi-automatic firearm at Henson
and demanded Henson’s wallet. Henson refused, and he and
Gibbs engaged in a struggle. Gibbs shot Henson during the
struggle and took Henson’s money.
The next morning Gibbs and Washington drove in the same
vehicle and followed Malbrue and Malbrue’s friend, Samahjzea
Golden, who were driving from a pharmacy to a gas station.
Gibbs and Washington got out of their vehicle and approached
Golden’s vehicle. Gibbs tried to open the car door on the
passenger side, but the door was locked. Gibbs yelled to
Washington, “Shoot the bitch. Shoot. Shoot. Shoot.”
Washington fired five shots at Golden. Following the shooting,
Gibbs reached through the broken driver’s side window and
grabbed Golden’s purse and jewelry.
The operative fifth amended information charged Gibbs
and Washington with the attempted willful, deliberate, and
2
premeditated murder of Golden (count 1; Pen. Code,1 §§ 187,
subd. (a), 664); assault upon Golden with a firearm (count 2;
§ 245, subd. (b)); second degree robbery of Golden (count 3; § 211);
shooting at an occupied vehicle (count 4; § 246); unlawful
possession of ammunition by Gibbs (count 7; § 30305,
subd. (a)(1)); attempted murder of Henson by Gibbs (count 8;
§§ 187, subd. (a), 664); second degree robbery of Henson (count 9;
§ 211); assault upon Henson with a firearm (count 10; § 245,
subd. (b)); Gibbs’s possession of a firearm by a felon (count 11;
§ 29800, subd. (a)(1)); conspiracy to commit robbery of Henson
(count 13; §§ 182, subd. (a)(1), 211); and conspiracy to commit
robbery of Golden (count 15; §§ 182, subd. (a)(1), 211).
Pursuant to a negotiated plea, Gibbs pleaded no contest to
the attempted second degree murders of Golden and Henson
(counts 1 and 8). As to count 8, Gibbs admitted he suffered a
prior strike conviction in May 2020 for robbery under the three
strikes law. (§ 667, subds. (b)-(j), 1170.12.) Gibbs also admitted
as to count 8 that he personally used and intentionally
discharged a firearm (§ 12052.53, subd. (c)), and that he inflicted
great bodily injury upon Henson (§ 12022.7, subd. (a)).
Prior to sentencing, the trial court noted that Gibbs had
given a Harvey waiver.2 Pursuant to the negotiated plea, the
1 Further statutory references are to the Penal Code.
2 In People v. Harvey (1979) 25 Cal.3d 754, 758, the Supreme
Court held that a trial court may not impose any adverse
sentencing consequences on a defendant as a result of a
negotiated plea based on dismissed counts absent an agreement
by the defendant. (See People v. Brooks (2017) 15 Cal.App.5th
331, 334, fn 3 [“A Harvey waiver is a defendant’s agreement, as
part of a plea bargain, to allow the sentencing court to consider
3
court sentenced Gibbs to an aggregate term of 41 years in state
prison. On count 8, the court imposed nine years for the
attempted murder of Henson (count 8), doubled to 18 years under
the three strikes law (§§ 667, subds. (b)-(i), 1170.12 (c)(1)), plus
three years for inflicting great bodily injury (§ 12022.7, subd. (a))
and 20 years for personally and intentionally discharging a
firearm (§ 12022.53, subd. (c)). On count 1, the court sentenced
Gibbs to a concurrent term of nine years for the attempted
murder of Golden. At the People’s request, the court dismissed
all remaining counts and special allegations under section 1385.
At a later restitution hearing, Gibbs and Washington,
through their attorneys, stipulated that the restitution amount
owed to Henson was $5,960, which represented Henson’s out-of-
pocket expenses. The trial court did not orally pronounce that
Washington and Gibbs were jointly and severally liable for the
restitution award. Nor did the minute order reflect that Gibbs
and Washington were jointly and severally liable for the victim
restitution award. The restitution hearing was taken off
calendar without prejudice with respect to Golden.
Gibbs timely appealed.
DISCUSSION
“Under the California Constitution, as amended in 1982 by
Proposition 8 (commonly known as The Victims’ Bill of Rights),
facts supporting dismissed counts.”]; People v. Weatherton (2015)
238 Cal.App.4th 676, 678 [“facts underlying charges dismissed as
part of a negotiated plea may not, absent contrary agreement by
the defendant (now called a Harvey waiver), be used to impose
adverse sentencing consequences”].)
4
every crime victim has a right to be compensated by the
defendant for losses incurred as a result of the defendant’s crime.
(Cal. Const., art. I, § 28, subd. (b)(13).)” (People v. Martinez
(2017) 2 Cal.5th 1093, 1100.) With exceptions not relevant here,
section 1202.4, subdivision (f), provides that “in every case in
which a victim has suffered economic loss as a result of the
defendant’s conduct, the court shall require that the defendant
make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed
by the victim or victims or any other showing to the court.”
“[S]ection 1202.4, subdivision (f) ‘does not expressly
authorize joint and several liability restitution orders, neither
does its provision prohibit such orders.’” (People v. Madrana
(1997) 55 Cal.App.4th 1044, 1051.) The trial court has discretion
to hold codefendants jointly and severally liable for the victim
restitution award. (People v. Leon (2004) 124 Cal.App.4th 620,
622 [“[I]f two defendants convicted of the same crime caused a
victim to suffer economic loss, a court may impose liability on
each defendant to pay the full amount of the economic loss, as
long as the victim does not obtain a double recovery.”]; see People
v. Selivanov (2016) 5 Cal.App.5th 726, 786 [“A defendant may be
held jointly and severally liable for losses for which a codefendant
bears more culpability [citation], but the criminal conduct of
which the defendant was convicted must be at least a substantial
factor in causing the victim’s loss.”].)
An abstract of judgment may be modified to reflect that
“the victim restitution order is a joint and several obligation.”
(People v. Cornejo (2016) 3 Cal.App.5th 36, 63; accord, People v.
Neely (2009) 176 Cal.App.4th 787, 800 [ordering “modification of
the judgment to expressly state that the restitution order is joint
5
and several as to” defendant and codefendant]; People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1183 [“the abstract of
judgment must be corrected to reflect the trial court’s oral
pronouncement of judgment that the victim restitution is
imposed jointly and severally upon all three appellants”]; People
v. Blackburn (1999) 72 Cal.App.4th 1520, 1535-1536 [to avoid
double recovery, Court of Appeal modified judgment “to provide
expressly that the direct victim restitution ordered is joint and
several”].)
As discussed, Gibbs was convicted of the attempted murder
of Golden and Henson, and Washington was convicted of the
attempted murder of Golden and robbery of Henson. Both Gibbs
and Washington gave Harvey waivers and were ordered to pay
victim restitution. Gibbs and Washington later stipulated that
they owed $5,960 in restitution to Henson. The People concede
that to prevent double recovery, the abstract of judgment should
be modified to reflect that Gibbs and Washington are jointly and
severally liable for the victim restitution awards. The People
explain, “Although the court’s oral pronouncement and minute
order do not specify that the restitution obligation is joint and
several, it is clear that the trial court intended that the sum owed
to Henson be $5,960.00.” In light of the People’s concession, we
order the abstract of judgment modified to reflect that Gibbs and
Washington are jointly and severally liable to Henson and Golden
for restitution.
DISPOSITION
The judgment is affirmed. The matter is remanded with
directions for the trial court to correct the abstract of judgment to
6
reflect that Gibbs and Washington are jointly and severally liable
for the victim restitution awards. The trial court is directed to
forward the corrected abstract of judgment to the Department of
Corrections and Rehabilitation.
FEUER, J.
We concur:
SEGAL, Acting P. J.
MARTINEZ, J.
7