People v. Gibbs CA2/2

Filed 5/9/23 P. v. Gibbs CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B322585

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA024954) v.

CLARENCE GIBBS,

Defendant and Appellant.

THE COURT:

Defendant and appellant Clarence Gibbs appeals from the denial of his petition for resentencing under Penal Code section 1172.6 (former section 1170.95),1 which allows defendants convicted of felony murder under superannuated legal standards

1 Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.) For simplicity, we refer to the section by its new numbering. All further statutory references are to the Penal Code unless otherwise indicated.

to seek resentencing relief. Defendant’s appointed counsel filed a no merit brief, and, pursuant to the procedures outlined by our Supreme Court in People v. Delgadillo (2022) 14 Cal.5th 216, 232 (Delgadillo), we reviewed the arguments defendant raised in his supplemental letter brief. Finding none of these arguments persuasive, we affirm. FACTS AND PROCEDURAL BACKGROUND I. Conviction and Sentencing In 2003, a jury convicted defendant of attempted first degree murder (§§ 187, subd. (a); 664). The jury found true, among other allegations, that defendant personally and intentionally discharged a firearm that proximately caused bodily injury (§ 12022.53, subds. (b), (c), (d)). The trial court sentenced defendant to life with the possibility of parole for the attempted murder, plus 25 years for the firearm allegation. On direct appeal, we affirmed the conviction. (See People v. Gibbs (Sept. 9, 2004, B170437) [nonpub. opn.].) II. Section 1172.6 Petition On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Sen. Bill 1437) in order to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) Sen. Bill 1437 also added section 1172.6, subdivision (a), creating a procedure whereby a person convicted of, as relevant here, “attempted murder under the natural and probable consequences doctrine,” but who could not now be convicted, can