People v. Gibson CA2/2

Filed 8/11/22 P. v. Gibson CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B312655

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA016268) v.

CLARENCE ALBERT GIBSON,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, James R. Dabney, Judge. Reversed and remanded.

J. Kahn, 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 Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

****** Clarence Albert Gibson (defendant) appeals the trial court’s summary denial of his motion for relief under Penal Code1 section § 1172.6 (former § 1170.95).2 As the People concede, this was error because the record of conviction did not show defendant to be ineligible for relief as a matter of law. We accordingly reverse and remand for an evidentiary hearing in accordance with section 1172.6, subdivision (d). FACTS AND PROCEDURAL BACKGROUND I. Facts3 A. The underlying crime Around 11 p.m. on March 23, 1990, having “spent the evening smoking marijuana and drinking with friends” defendant “proposed committing a ‘jack’ -- a robbery -- to get some money.” Defendant, along with one of his friends Tyrone Randall (Randall), armed themselves with .38 caliber revolvers, and

1 All further statutory references are to the Penal Code unless otherwise indicated.