Filed 11/2/22 P. v. Gustafson CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E078896
v. (Super.Ct.No. FVI702850)
ROY RANDALL GUSTAFSON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John P. Vander
Feer, Judge. Affirmed.
Roy Randall Gustafson, in pro. per., and Nancy J. King, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Defendant and appellant, Roy Randall Gustafson, filed a petition for resentencing
under various statutes, Senate Bills, and Assembly Bills. The court denied the petition.
After defendant filed a notice of appeal, this court appointed counsel to represent him.
1
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 (Wende) and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
the facts, a statement of the case, and two potentially arguable issues: (1) whether
defendant was entitled to the appointment of counsel and a hearing upon the filing of his
petition; and (2) whether the court had the discretion to resentence defendant on its own
motion rather than only upon the recommendation of an executive branch officer.
We offered defendant an opportunity to file a personal supplemental brief, which
he has done. Defendant contends that he was entitled to the appointment of counsel
and/or to personally address the court prior to issuance of any ruling on his petition. We
affirm.
I. PROCEDURAL BACKGROUND1
On May 7, 2010, a jury found defendant guilty of first degree murder (§ 187,
subd. (a)), with a true finding that he personally discharged a firearm causing great bodily
injury and death (§ 12022.53, subd. (d)); three counts of possession of a firearm by a
felon (§ 12021, subd. (a)(1)); one count of possession of ammunition by a felon (§ 12316,
subd. (b)(1)); one count of assault with a firearm (§ 245, subd. (a)(2)); and one count of
false imprisonment (§ 236). The jury also found true the allegation that defendant
personally used a firearm in the commission of the assault with a firearm and false
imprisonment. (12022.5, subd. (a).) (Gustafson, supra, E051748.)
On the court’s own motion, we take judicial notice of our prior nonpublished
1
opinions in defendant’s appeals from the original judgment. (People v. Gustafson
(Apr. 23, 2012, E051748) [nonpub. opn.] (Gustafson).) (Evid. Code, §§ 452, subd. (d),
459; Cal. Rules of Court, rule 8.1115(b)(1).)
2
In a bifurcated proceeding, the court found true allegations that defendant had
suffered two prior strike convictions. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
The court sentenced defendant to state prison for a total of 150 years to life. (Gustafson,
supra, E051748.) Defendant appealed. This court affirmed the judgment. (Ibid.)
On April 1, 2022, defendant filed a petition for resentencing pursuant to
“Assembly Bill Nos. 1540 & 124, and Senate Bill No. 567 . . . .” Defendant also
mentioned “Senate Bills 775 and 483,” and sections 1170, subdivision (d), and 1170.18.
The court denied the petition without appointing counsel or holding a hearing. The court
indicated that petitions for resentencing pursuant to former section 1170.032 must be
brought by an executive officer; the court declined defendant’s invitation to resentence
him.
II. DISCUSSION
Defendant contends that he was entitled to the appointment of counsel and/or to
personally address the court prior to its issuance of any ruling on his petition. We
disagree.
In his petition, defendant never specified what factual bases entitled him to
resentencing below. None of defendant’s citations to various Penal Codes sections,
2 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.)
amended and renumbered Penal Code section 1170.03 as section 1172.1. (Stats. 2022,
ch. 58, § 9.)
3
Assembly Bills, and Senate Bills avail him.3 For instance, some apply only apply to
nonfinal judgments. (See People v. Dunn (2022) 81 Cal.App.5th 394, 403 [“Therefore,
the amendment to section 1170, subdivision (b), applies to all cases not final on Senate
Bill 567’s effective date.”]; People v. Gerson (2022) 80 Cal.App.5th 1067, 1095
[“Assembly Bill 124 applies retroactively to nonfinal cases on direct appeal.”].)
Defendant’s case has been final since 2012. (See Gustafson, supra, E051748; Cal. Rules
of Court, rule 8.366(b)(1).)
Assembly Bill No. 1540 (2021-2022 Reg. Sess.) made changes to former
section 1170.03 (Stats. 2021, ch. 719, § 3.1), now section 1172.1, wherein “the court
may, within 120 days of the date of commitment on its own motion, at any time upon the
recommendation of the secretary or the Board of Parole Hearings in the case of a
defendant incarcerated in state prison [or] the district attorney of the county in which the
defendant was sentenced . . . recall the sentence and commitment previously ordered and
resentence the defendant in the same manner as if they had not previously been sentenced
. . . .” (§ 1172.1, subd. (a)(1).) Defendant filed his petition well after 120 days after the
date of his commitment, June 14, 2010. Moreover, as the court below noted, neither the
Board of Parole Hearings nor the district attorney recommended defendant be
resentenced. Thus, defendant was not entitled to relief pursuant to Assembly Bill
No. 1540.
3 In his supplemental brief, defendant alleges additional Senate Bills entitling him
to relief; however, his failure to raise them in his petition forfeits any issues with respect
to them on appeal. (People v. Covarrubias (2016) 1 Cal.5th 838, 919.)
4
Defendant fails to identify any felony offenses for which he was convicted, which
would now be misdemeanors entitling him to relief pursuant to section 1170.18.
(§ 1170.18, subd. (a) [“A person who . . . was serving a sentence for a conviction . . . of a
felony or felonies who would have been guilty of a misdemeanor under the act that added
this section . . . may petition for a recall of sentence . . . .].) Thus, defendant is not
entitled to relief pursuant to section 1170.18.
Senate Bill No. 775 (2021-2022 Reg. Sess.) amended former section 1170.954
(People v. Montes (2021) 71 Cal.App.5th 1001, 1004); however, defendant failed to file a
declaration that he was eligible for relief under its auspices. (§ 1172.6, subd. (b)(1)(A).)
Thus, defendant’s petition was facially insufficient. (People v. Lewis (2021) 11 Cal.5th
952, 967 (Lewis) [“noncomplying petitions may be quickly screened out”].)
Senate Bill No. 483 (2021-2022 Reg. Sess.) retroactively provides relief for
persons whose sentences were enhanced for having suffered prior prison terms pursuant
to section 667.5. However, the People did not allege, and the jury did not find true, any
prior prison term enhancements in this case. Thus, defendant was not entitled to any
relief under its auspices.
Finally, under section 1170, section (d)(1)(A), defendants who were “under 18
years of age at the time of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole [(LWOP)] has been
4 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.)
amended and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022,
ch. 58, § 10.)
5
incarcerated for at least 15 years, the defendant may submit to the sentencing court a
petition for recall and resentencing.” First, defendant committed the offenses for which
he was convicted in this case in 2007 (Gustafson I, supra, E051748) when he was
42 years old. Second, the court did not sentence defendant to LWOP. Third, defendant
has not served 15 years of imprisonment. Thus, defendant was ineligible for relief under
section 1170, subdivision (d). Therefore, defendant was not entitled to counsel or a
hearing on his petition because he failed to allege a facially sufficient basis for relief.
(See Lewis, supra, 11 Cal.5th at p. 973 [petitioner only entitled to counsel once he files a
facially sufficient petition].)
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The order denying defendant’s petition is affirmed.
McKINSTER
Acting P. J.
We concur:
CODRINGTON
J.
FIELDS
J.
6