People v. Gary CA2/2

Filed 1/13/22 P. v. Gary CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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.