People v. Gilbert CA4/1

Filed 5/20/24 P. v. Gilbert CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D082131

Plaintiff and Respondent,

v. (Super. Ct. No. SF107852)

ANTHONY DWAYNE GILBERT,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Enrique E. Camarena, Judge. Affirmed. Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, Lynne G. McGinnis, and Namita Patel, Deputy Attorneys General, for Plaintiff and Respondent.

Anthony Dwayne Gilbert appeals from an order summarily denying his

petition for resentencing under Penal Code1 section 1172.6, in which he sought relief from a 1996 conviction for attempted murder based on his plea of guilt to that crime (§§ 664, 187, subd. (a)). We conclude that the trial court correctly determined, at the prima facie stage, that Gilbert was ineligible for relief. We accordingly affirm the order denying the petition for resentencing. I. FACTUAL AND PROCEDURAL BACKGROUND On August 27, 1996, Gilbert pled guilty to all three counts charged against him: (1) the May 20, 1996 attempted murder of J.H. (§§ 664, 187, subd. (a)); (2) the May 20, 1996 assault upon J.H. with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); and (3) the May 20, 1996 possession of a deadly weapon (a sharp object) by a prisoner (§ 4502). With respect to the attempted murder count, Gilbert also admitted that he personally inflicted great bodily injury upon J.H. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)) and personally used a deadly and dangerous weapon, to wit, a sharp instrument (§ 12022, subd. (b)). The trial court imposed a sentence of 46 years to life, to run consecutive to the prison term Gilbert was already serving. In October 2022, Gilbert petitioned for resentencing (§ 1172.6) by submitting a preprinted form. The trial court appointed counsel to represent Gilbert. In their initial response to the petition, the People argued that, based on the record of conviction, Gilbert had not met his burden to make a prima facie case of eligibility for relief. One of the exhibits relied upon by the People