Filed 7/27/22 P. v. Gunn CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
THE PEOPLE, B310486
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. A348521-2)
v.
PHILLIP BENJAMIN GUNN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Frederick N. Wapner, Judge. Reversed
and remanded with directions.
Phillip B. Gunn in pro. per.; Kelly C. Martin, 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, Scott A. Taryle and Colleen M.
Tiedemann, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________________________
INTRODUCTION
Appellant Phillip Benjamin Gunn was convicted of first
degree murder and robbery in 1981 and was sentenced to life
without the possibility of parole. In 2019, he filed a petition
under Penal Code section 1172.6 (former section 1170.95) to
vacate his murder conviction.1 Appellant claimed that he
was convicted under the felony murder rule, and that he was
not the actual killer, had not acted with intent to kill, and
had not even participated in the underlying robbery. Among
other things, he alleged that although he shot the victim (in
self-defense), he merely injured him, and another person
shot and killed him after appellant left the scene. The
superior court denied the petition without issuing an order
to show cause after concluding that appellant was ineligible
for relief as a matter of law because he was “the actual
shooter.” On appeal, appellant contends the court erred in
denying his petition without holding an evidentiary hearing.
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). Undesignated statutory references are to the Penal
Code.
2
The Attorney General concedes the superior court erred in
denying the petition at this stage of the proceeding. We
agree with the parties and therefore reverse and remand.2
BACKGROUND
A. Appellant’s Convictions
In 1981, a jury convicted appellant of murder (with
robbery-murder and firearm special-circumstance findings)
and robbery. As relevant here, the jury was instructed on a
theory of first degree felony murder, and the instructions
provided that “[i]f a human being is killed by any one of
several persons engaged in the perpetration of . . . the crime
of ROBBERY, all persons who . . . with knowledge of the
unlawful purpose of the perpetrator of the crime aid,
promote, encourage, or instigate . . . its commission, are
guilty of murder of the first degree, whether the killing is
intentional, unintentional, or accidental.”3 As to the
robbery-murder special-circumstance allegation, the jury
was instructed that to find the allegation true, it must find
that “the murder was committed while the defendant [was
engaged in] or [was an accomplice] in the [commission] of a
2 Given our conclusion, we need not address appellant’s
additional claim that his former appointed counsel’s performance
in the superior court violated his right to counsel.
3 We grant the Attorney General’s request for judicial notice
of the record in appellant’s direct appeal (People v. Gunn (Feb. 10,
1983, 2 Crim No. 40927)).
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[robbery]” and that “the murder was committed during the
immediate flight after the [commission] of a [robbery].”
Appellant was sentenced to life in prison without the
possibility of parole. This court affirmed the judgment on
direct appeal.4
B. Appellant’s Petition
In 2019, appellant filed a pro per petition styled as a
petition for writ of habeas corpus, seeking to vacate his
murder conviction under Senate Bill No. 1437 (2017-2018
Reg. Sess.) (SB 1437). He claimed he had been convicted
under the felony murder rule but was now eligible for
retroactive relief. He further claimed he was not the actual
killer, had not acted with intent to kill, and had not
participated in the underlying robbery.
Appellant alleged the following facts in his petition:
Amber Banks and her pimp Tony Cortez had planned to rob
one of Banks’s customers, Charles Ferris, but appellant had
no part in the robbery conspiracy. Banks enticed Ferris to
her apartment, where appellant was present for unrelated
reasons. Upon seeing Banks enter the apartment with an
unfamiliar man, appellant held a gun and told Ferris to
“hold it right there.” Ferris then pulled out his own gun and
fired at appellant, but missed and struck Banks instead.
Appellant returned fire, injuring Ferris, but not killing him.
4 In affirming the judgment, this court assumed that the jury
convicted appellant under the felony murder rule.
4
Appellant tossed the gun onto a bed, near where the injured
Banks was sitting, and told her to call the police and report
that she had shot Ferris when Ferris tried to force his way
into her apartment. At that time, Cortez showed up and
went through Ferris’s pockets, and appellant and Cortez
then left the apartment, with Ferris still alive. According to
appellant’s petition, a neighbor named Linda Rich testified
at trial that she saw appellant and Cortez leave the
apartment, and later heard another gunshot inside the
apartment. The petition claimed it must have been Banks
who shot and killed Ferris.
The superior court treated appellant’s petition as a
petition for relief under former section 1170.95, and
appointed him counsel. The People filed an opposition,
attaching this court’s decision in the prior appeal and relying
on it to argue that appellant was the actual killer and was
therefore ineligible for relief. The prior decision provided a
brief summary of the People’s theory at trial and appellant’s
testimony. According to the decision, the People’s theory
was that appellant had conspired with Banks and Cortez to
commit the robbery. Appellant waited for Banks and Ferris
in Banks’s apartment, and when they arrived, an exchange
of shots between appellant and Ferris followed, leaving
Ferris dead. Appellant and Cortez then took money and
jewelry from Ferris and left. Describing appellant’s version
of events, the prior decision stated he testified that he was in
the apartment for an unrelated reason, that when he saw
Banks with an unfamiliar man, he challenged the couple,
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and that after the man fired at him, he fired back in
self-defense.
C. The Superior Court’s Ruling
At a hearing on appellant’s petition, appellant’s
counsel noted that his office had been unable to locate
transcripts from appellant’s trial. The superior court replied
that appellant was “the shooter,” but that counsel could
contact the court if he needed to obtain additional discovery.
Counsel agreed that appellant was “the shooter,” and
submitted the matter. The court then summarily denied the
petition, without issuing an order to show cause, concluding
that appellant was “the actual shooter.” Appellant timely
appealed.
D. Proceedings in This Appeal
Appellant’s appointed appellate counsel initially filed a
brief requesting that we independently review the record
under People v. Wende (1979) 25 Cal.3d 436. After reviewing
the record, we ordered the parties to submit briefs on the
merits and directed counsel to address whether, given the
allegations in appellant’s petition, appellant was entitled to
an evidentiary hearing. The parties complied.
DISCUSSION
Appellant contends that he was eligible for relief under
former section 1170.95, and that the superior court erred in
summarily denying his petition. The Attorney General
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concedes the matter should be remanded to the superior
court to issue an order to show cause and hold an
evidentiary hearing. We agree with the parties that the
matter must be remanded for an evidentiary hearing.
“Effective January 1, 2019, the Legislature passed
Senate Bill 1437 ‘to amend 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.’” (People v. Lewis (2021) 11 Cal.5th 952, 959
(Lewis).) SB 1437 also enacted former section 1170.95 (now
section 1172.6), allowing a defendant who was convicted
under the felony murder rule (among other theories), but
who could not be convicted of murder because of SB 1437’s
changes to the law, to petition the sentencing court to vacate
the conviction and resentence the petitioner on any
remaining counts. (Former § 1170.95, subd. (a); Stats. 2018,
ch. 1015, § 4; § 1172.6, subd. (a).) After ascertaining that
such a petition contains certain required information, the
court must appoint counsel for the petitioner (if requested),
allow the parties to file briefs, and determine whether the
petitioner has made a prima facie showing of entitlement to
relief. (Former § 1170.95, subd. (c); § 1172.6, subd. (c);
Lewis, supra, at 960-968.)
“[T]he ‘prima facie bar was intentionally . . . set very
low.’” (Lewis, supra, 11 Cal.5th at 972.) “Like the analogous
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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. If so, the court must issue an order to show
cause.”’” (Id. at 971, quoting People v. Drayton (2020) 47
Cal.App.5th 965, 978 (Drayton).) In performing the required
assessment at the prima facie stage, the court must not
engage in “‘factfinding involving the weighing of evidence or
the exercise of discretion.’” (Lewis, at 972, quoting Drayton,
at 980.) If the petitioner’s allegations are sufficient to state
a claim for relief, the court may refrain from issuing an order
to show cause “[o]nly where the record of conviction contains
facts conclusively refuting the allegations in the petition,”
thereby establishing the petitioner’s ineligibility for
resentencing “as a matter of law.” (People v. Flores (2022) 76
Cal.App.5th 974, 991-992.) The court’s authority to make
factual determinations without conducting an evidentiary
hearing “is limited to readily ascertainable facts from the
record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise
of discretion (such as determining whether the petitioner
showed reckless indifference to human life in the
commission of the crime) . . . .” (Drayton, at 980.)
Here, appellant alleged that he was not the actual
killer and did not act with intent to kill: he asserted that he
had shot Ferris in self-defense and left the apartment while
Ferris was alive -- after instructing Banks to call the police --
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but that Banks then shot and killed Ferris. The prior
appellate decision’s limited description of the facts does not
conclusively refute his allegations.5 And the jury
instructions permitted the jury to convict appellant of
murder and find the robbery-murder special-circumstance
allegation true even if it accepted his version of events.
The jury also was not asked to determine whether
appellant was a major participant in the robbery who acted
with reckless indifference to human life, and we cannot
make this determination as a matter of law. Because
appellant was not ineligible for relief as a matter of law, he
was entitled to an order to show cause.
At the evidentiary hearing, the superior court will not
be compelled to credit appellant’s allegations. (See Lewis,
supra, 11 Cal.5th at 971 [court should not reject petitioner’s
factual allegations on credibility grounds “‘without first
conducting an evidentiary hearing’”].) Additionally, the
court will be able to determine whether, even under
appellant’s version, he was a major participant in the
robbery who acted with reckless indifference, based on the
5 Senate Bill No. 775 (2021-2022 Reg. Sess.), which became
effective January 1, 2022, “prevents a trial court from relying on
facts recited in an appellate opinion to rule on a petition under
section [1172.6].” (People v. Cooper (2022) 77 Cal.App.5th 393,
406.) Appellant argues the same limitation applies at the prima
facie stage. We need not decide this issue, as the prior decision in
appellant’s direct appeal would not be dispositive of his petition.
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factors articulated by our Supreme Court.6 (See People v.
Banks (2015) 61 Cal.4th 788, 803 [relevant factors in
assessing whether defendant was major participant in
underlying felony include, inter alia: defendant’s role in
using lethal weapons; defendant’s presence and ability to
facilitate or prevent killing; whether defendant’s actions or
inaction played role in victim’s death; and defendant’s
actions after lethal force was used]; People v. Clark (2016) 63
Cal.4th 522, 618-623 [discussing similar considerations for
determining whether defendant acted with reckless
indifference to human life].) But in reviewing appellant’s
petition at the prima facie stage, the superior court was not
in a position to reject appellant’s allegations or to determine
whether he was a major participant in the robbery who acted
with reckless indifference to human life. (See Drayton,
supra, 47 Cal.App.5th at 980.) Accordingly, appellant was
entitled to an evidentiary hearing.
6 The jury found appellant guilty of robbery, and he cannot
challenge that finding in this section 1172.6 proceeding. (See
People v. Price (2021) 71 Cal.App.5th 1128, 1151 [Legislature did
not intend to allow parties to reopen and retry factual matters
already resolved by jury].)
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DISPOSITION
The superior court’s order denying appellant’s petition
is reversed. The matter is remanded to the superior court
with directions to issue an order to show cause and proceed
in accordance with section 1172.6.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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