Filed 1/13/22 P. v. Gary CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B310296
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. YA001887)
RICKEY LYNN GARY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Nicole C. Bershon, Judge. Affirmed.
Mark S. Givens, 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, Assistant
Attorney General, Amanda V. Lopez and Charles S. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Rickey Lynn Gary (defendant) appeals the trial court’s
order denying his petition for resentencing under Penal Code
section 1170.95.1 Although we rely on different grounds, we
agree with the trial court that defendant was ineligible for
resentencing. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crimes
On a Tuesday morning in June 1989, defendant and
Richard Henry Ponton (Ponton) robbed an Arco gas station in
Redondo Beach, California. The station manager was shot four to
six times, and died from his wounds. Defendant and Ponton
made away with $2,500.
B. Prosecution, conviction and appeal
The People charged defendant and Ponton with (1) the
murder of the station manager (§ 187), and (2) second degree
robbery (§ 211). As to the murder, the People alleged the special
circumstance that defendant and Ponton “were engaged in the
commission of the crime of robbery” (§ 190.2, subd. (a)(17)). As to
both crimes, the People further alleged that defendant
“personally used a firearm” (former § 12022.5) and that “a
principal was armed” during those crimes (§ 12022, subd. (a)).
The personal use of a firearm enhancement was not alleged as to
Ponton.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s convictions. (People v. Gary (Mar.
26, 1993, B055726).)
The matter proceeded to a joint jury trial. As to the murder
charge, the jury was instructed it could convict either defendant
as (1) the actual killer, (2) an aider and abettor to the murder,
acting with the intent to kill, (3) an aider and abettor to a lesser,
unspecified crime, if murder was a “natural and probable
consequence” of that unspecified crime, (4) a coconspirator to a
conspiracy to commit murder, or (5) a coconspirator to a lesser,
unspecific crime, if murder was a “natural and probable
consequence” of that lesser, unspecified crime. The jury was
further instructed that, if the actual killer was guilty of first
degree murder, so was any other defendant who acted as an aider
and abettor, or coconspirator. The jury was also instructed on
the felony-murder special circumstance and firearm allegations.
In closing, the prosecutor’s theory was that defendant (rather
than Ponton) was the shooter.
The jury found defendant (and Ponton) guilty of all charges
and found true the felony-murder special circumstance and the
firearm allegations as alleged.
As to defendant, the trial court imposed a sentence of life
without the possibility of parole plus seven years. Specifically,
for the murder, the court imposed a base sentence of life without
the possibility of parole and imposed but stayed an additional
three years for the firearm enhancements. For the robbery, the
court imposed a base sentence of five years plus two additional
years for the personal use of a firearm.
Defendant appealed, and we affirmed his convictions and
sentence in an unpublished opinion.
II. Procedural Background
On September 25, 2019, defendant filed a petition seeking
resentencing under section 1170.95 for his murder conviction.
After entertaining briefing, appointing counsel for defendant, and
soliciting additional briefing from defendant (which counsel
submitted in the form of a letter), the court denied the petition
without an evidentiary hearing on the grounds, conceded by
defendant’s attorney, that the facts set forth in our prior opinion
constituted “ample evidence” that defendant was “the actual
killer” and thus “ineligible for relief” under section 1170.95.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in denying his
section 1170.95 petition without an evidentiary hearing. Because
our analysis turns on the interpretation of jury instructions and
the application of law to undisputed facts, our review is de novo.
(People v. Scully (2021) 11 Cal.5th 542, 592; Martinez v. Brownco
Construction Co. (2013) 56 Cal.4th 1014, 1018.)
A person is entitled to relief under section 1170.95 if, as
relevant here, (1) “[a] complaint, information, or indictment was
filed against [him] that allowed the prosecution to proceed under
a theory of felony murder[ or] murder under the natural and
probable consequences doctrine,” (2) he “was convicted of
murder,” and (3) he “could not presently be convicted of murder
because of changes to Section 188 or 189 made effective January
1, 2019.” (§ 1170.95, subd. (a).) A person may be convicted of
murder, even after the 2019 changes made to sections
188 and 189, if he (1) “was the actual killer,” (2) aided or abetted
the actual killer with the intent to kill, or (3) “was a major
participant in the underlying felony and acted with reckless
indifference to human life.” (§ 189, subd. (e).)
In assessing whether a defendant seeking relief under
section 1170.95 has made out a prima facie case warranting an
evidentiary hearing, a trial court must take the petition’s factual
allegations as true and ask ““‘whether the petitioner would be
entitled to relief if [those] allegations were proved.’”” (People v.
Lewis (2021) 11 Cal.5th 952, 971.) “‘However, if the record,
including the court's own documents [from the record of
conviction] “contain[s] facts refuting the allegations made in the
petition,” then “the court is justified in making a credibility
determination adverse to the petitioner.”’” (Ibid.)
The trial court did not err in denying defendant’s petition
without an evidentiary hearing because the record of conviction
establishes, as a matter of law, that defendant could still be
convicted of murder under the law as amended in January 2019
(and thus cannot establish the third element of his prima facie
case). The jury found the felony-murder special circumstance
allegation to be true after receiving the following instruction:
“If you find beyond a reasonable doubt that defendant
was either the actual killer, a co-conspirator or an
aider and abettor, but you are unable to decide
which, then you must also find beyond a reasonable
doubt that the defendant intended either to kill a
human being or to aid another in the killing of a
human being in order to find the special circumstance
to be true. On the other hand, if you find beyond a
reasonable doubt that defendant was the actual
killer, you need not find that the defendant intended
to kill a human being in order to find the special
circumstance to be true.”
The plain text of this instruction required the jury, before finding
the special circumstance to be true, to find that defendant was
either (1) “the actual killer” or (2) a person who acted with “the
intent to kill a human being,” while aiding and abetting or
conspiring with the actual killer. Because persons who are the
actual killer or who acted with the intent to kill are still liable for
murder after January 2019, the jury’s special circumstance
finding necessarily renders defendant ineligible for relief under
section 1170.95.
Defendant resists this conclusion with several arguments.
First, he asserts that the special circumstance finding does
not render him ineligible for relief under section 1170.95. To
begin, he asserts that the above-quoted instruction only required
the jury to find that he acted with the intent to kill “if the jury
was unable to agree” on whether he was the actual killer, an
aider and abettor, or a coconspirator. This assertion rests on a
reading of the instruction that no reasonable jury would make.
(People v. Letner and Tobin (2010) 50 Cal.4th 99, 182 [even where
an instruction is ambiguous, courts ask “whether there is a
‘“reasonable likelihood that the jury has applied the challenged
instruction”’” in the way defendant asserts].) Even if we accept
that the first sentence of the instruction is ambiguous on this
point, the second sentence dispels any ambiguity. By stating, “if
you find beyond a reasonable doubt that defendant was the
actual killer, you need not find that the defendant intended to kill
a human being in order to find the special circumstance to be
true,” the instruction makes clear that the jury must find either
that he was the actual killer or, if not the actual killer, that he
acted with the intent to kill.
Second, defendant argues it is improper to rely on the
special circumstance finding because it was handed down before
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark). However, Banks and Clark
deal with the validity of special circumstance findings that rest
on the theory that the defendant was a major participant in a
felony who acted with reckless indifference to human life.
Because the special circumstance jury instruction given in this
case did not include that theory, Banks and Clark are irrelevant.
Last, defendant urges that there are additional errors in
the trial court’s reasoning. Defendant argues that the trial court
improperly made a factual finding that he was the “actual killer”
based on the recitation of facts set forth in our prior appellate
opinion, and that his counsel below was constitutionally
ineffective for supporting this finding by conceding that he was
the actual killer. Defendant also argues that the jury’s finding
that he “personally used” a firearm does not necessarily
constitute a finding by the jury that he was the one who shot the
station manager. Because our job is to review the trial court’s
ruling, not its rationale (People v. Zapien (1993) 4 Cal.4th 929,
976), we need not resolve these arguments because they are
unrelated to the rationale on which we affirm.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ