People v. Gardiner CA2/2

Filed 8/24/21 P. v. Gardiner CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B303948

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA347305) v.

DAVID GARDINER,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Renee F. Korn, Judge. Reversed and remanded.

Alan Siraco, under appointment by the Court of Appeal, for Defendant and Appellant.

Matthew Rodriquez, Acting Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Peggy Z. Huang and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent. ________________________

While David Gardiner (appellant) was involved in the attempted robbery of a marijuana dispensary, a fellow robber killed a security guard. Appellant pleaded guilty to first degree murder (Pen. Code, §§ 187, subd. (a), 189, subd. (a))1 and admitted that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)). He did not, however, admit the special circumstance allegation under section 190.2, subdivision (a)(17)(A) that the murder was committed while he was engaged in, or was an accomplice in, the attempted commission of a robbery, and that he was eligible for the death penalty or life without the possibility of parole as specified in section 190.2, subdivision (d). The trial court sentenced him to 45 years to life in prison. Subsequently, appellant petitioned for resentencing under section 1170.95. The trial court denied the petition after finding that appellant was a major participant in the robbery who acted with reckless indifference to human life. Appellant challenges that decision, and the People concede error. We reverse and remand for the trial court to issue an order to show cause and proceed to an evidentiary hearing pursuant to section 1170.95, subdivision (d) unless the parties stipulate that appellant is eligible to have his murder conviction vacated and be resentenced.