People v. McAlister CA3

Filed 2/28/22 P. v. McAlister CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C093699

Plaintiff and Respondent, (Super. Ct. No. 12F05640)

v.

GABRIEL MCALISTER,

Defendant and Appellant.

A jury found defendant Gabriel McAlister guilty of first degree murder in the death of Timothy Schweiss, despite being unable to reach a decision on the allegations defendant personally discharged a firearm causing death or that the murder occurred during an attempted robbery. In 2019, after passage of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437), defendant filed a petition for resentencing pursuant to

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Penal Code section 1170.95. 1 The trial court relied on our unpublished opinion in defendant’s appeal of his conviction to determine that defendant failed to make a prima facie showing of entitlement to relief, and denied the petition. Defendant argues the trial court erred in determining the evidence supported a finding he is ineligible for relief as a matter of law without first issuing an order to show cause and holding a hearing. The People concur in defendant’s request for remand. We agree with the parties, and remand for further proceedings. BACKGROUND As recounted in our prior unpublished opinion: “Marcus Logan and [defendant] were convicted by jury of murdering . . . Schweiss. The prosecution’s theory was that Logan, [defendant], and another man, [codefendant] Marlyn Stewart, lured Schweiss into an apartment complex to rob him; during the commission of that robbery, [defendant] pulled out a handgun and shot Schweiss in the abdomen. Each defendant was charged with first[ ]degree murder and attempted robbery. With respect to the murder count, it was alleged as a special circumstance that the murder was committed during an attempted robbery. With respect to each count, it was also alleged [defendant] personally discharged a firearm causing death. Following a joint trial before a single jury, [defendant] was convicted of first[ ]degree murder, but the jury could not reach a unanimous verdict with respect to the attempted robbery count, the special circumstance allegation, or the firearm enhancement allegation.” (People v. Logan (May 22, 2017, C078017) [nonpub. opn.] (Logan).) Defendant appealed his conviction arguing, in part, that there was insufficient evidence to support his murder conviction. We determined it was not clear from the record which theory of guilt the jury relied upon to convict: felony murder or