People v. Eberly CA3

Filed 5/27/25 P. v. Eberly CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C101455

Plaintiff and Respondent, (Super. Ct. No. 13F07832)

v.

GARY EBERLY,

Defendant and Appellant.

Defendant Gary Eberly appeals the trial court’s denial of his petition for resentencing under Penal Code section 1172.6.1 Appointed counsel filed a brief requesting our independent review under People v. Delgadillo (2022) 14 Cal.5th 216. Separately, Eberly filed a supplemental brief asserting 15 claims of error. With respect to the denial of his resentencing petition, Eberly’s brief contends that the trial court failed to consider the entire record, engaged in improper fact finding, and violated his right to equal protection. His brief also asserts numerous errors related to his 2016 trial, including claims of factual innocence, ineffective assistance of counsel, new evidence,

1 Undesignated statutory references are to the Penal Code.

1

instructional error, jury bias, prosecutorial misconduct, and the denial of his right to testify and other trial rights. Eberly’s remaining claims assert procedural or jurisdictional issues, including Eleventh Amendment immunity, venue, and the trial court’s jurisdiction. We conclude that the trial court correctly determined that Eberly was not eligible for relief under section 1172.6. His other claims either are not properly before us or lack merit. We therefore affirm. BACKGROUND Eberly found his wife’s body in their backyard shed with a plastic bag taped over her head. Tests revealed that his wife was likely sedated and then asphyxiated, and blood was found in the house. (People v. Eberly (Oct. 30, 2017, C081527) [nonpub. opn.].) In 2016, a jury found Eberly guilty of the first degree murder of his wife. (§ 187, subd. (a).) The trial court sentenced him to 25 years to life in state prison. In 2023, Eberly filed a form petition for resentencing under section 1172.6. After appointing counsel for Eberly and receiving briefs from both parties, the trial court issued a tentative order concluding that Eberly was “ineligible for relief as a matter of law because the trial court did not instruct the jury on a now-invalid theory of criminal liability.” The court explained: “The record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines. Nor was the jury instructed on aiding and abetting.” Eberly therefore “failed to demonstrate an articulable case for relief.” At a hearing on the petition, the court adopted its tentative ruling as its final order. Eberly filed a timely notice of appeal. DISCUSSION Under People v. Delgadillo, supra, 14 Cal.5th at pages 231-232, when appointed counsel finds no arguable error and the defendant subsequently files a supplemental brief, an appellate court must evaluate the specific arguments presented in that brief and issue a