Opinion
F062248
01-20-2012
In re JOHN JACOB GULLATT III, On Habeas Corpus.
Peter Gold, under appointment by the Court of Appeal, for Petitioner. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi Simpson, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Related Stanislaus County Superior Ct. Case No. 1019871
OPINION
ORIGINAL PROCEEDING; order to show cause issued by Supreme Court, returnable to Court of Appeal, Fifth Appellate District. Aldo Girolami, Judge.
Peter Gold, under appointment by the Court of Appeal, for Petitioner.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Christina Hitomi Simpson, Deputy Attorneys General, for Respondent.
On the ground of lack of statutory authorization, John Jacob Gullatt III petitions for a writ of habeas corpus and argues that the firearm enhancements to his sentence for attempted robbery in concert and attempted robbery cannot stand. We agree.
BACKGROUND
On January 9, 2003, the district attorney filed a four-count information charging Gullatt with attempted robbery in concert (count 1; Pen. Code, §§ 213, subd. (a)(1)(A), 664), attempted robbery (count 2; §§ 212.5, 664), and assault with a deadly weapon (counts 3 & 4; § 245, subd. (a)(2)), all on November 13, 2000, and alleging, inter alia, that he was a principal and that "at least one principal intentionally and personally discharged and personally used a firearm, and proximately caused great bodily injury" in the commission of the attempted robbery in concert and the attempted robbery (§ 12022.53, subd. (d)). (People v. Gullatt (Super. Ct. Stanislaus County, 2003, No. 1019871).)
Later statutory references are to the Penal Code.
On May 5, 2003, a jury found Gullatt guilty as charged and found both firearm allegations true. On February 20, 2004, the trial court imposed an aggregate determinate term of five years and six months on the attempted robbery in concert and one of the assaults with a firearm consecutive to an indeterminate term of 25 years to life on the firearm enhancement to the attempted robbery in concert. The trial court imposed and stayed sentence on both other counts and imposed and stayed an indeterminate term of 25 years to life on the firearm enhancement to the attempted robbery.
Gullatt appealed, arguing that (1) the trial court's denial of his posttrial discovery motion was error, (2) the trial court's denial of his new trial motion was error, (3) the evidence in support of the jury's true findings on the firearm allegations require was insufficient on two grounds, (4) the lead detective committed prosecutorial misconduct by intimidating witnesses, and (5) the abstract of judgment contained a clerical error. (People v. Gullatt (July 27, 2005, F045184) [nonpub. opn.] (Gullatt).)
As to the first ground of Gullatt's challenge to the firearm allegations, we wrote, "In his argument, defendant appears to construe section 12022.53, subdivision (d) as requiring a showing of specific intent to cause great bodily injury. This construction of the statute is incorrect. 'Section 12022.53(d) requires that the defendant "intentionally and personally discharged a firearm" ... but only that he "proximately caused" the great bodily injury or death.' (People v. Bland (2002) 28 Cal.4th 313, 336.) Accordingly, we reject defendant's claim there was insufficient evidence to show he specifically intended to cause great bodily injury, since no such showing was required." (Gullatt, italics in original.)
As to the second ground of Gullatt's challenge to the firearm allegations, we wrote, "We also reject defendant's claim that the evidence was insufficient to show he intentionally discharged the firearm. [The shooting victim] testified the shooter aimed his gun at her while demanding money. After she insisted she did not have any money, he pulled the trigger. The victim's testimony is substantial evidence the shooter, whose identity was established by other witnesses as defendant, did in fact intend to discharge the gun. On appeal, defendant suggests [her] version of events was unreliable because she was mistaken as to the type of firearm involved in the shooting, and the particular type of gun involved would require defendant to pull a lever before pulling the trigger in order for it to fire. However, [she] did not testify to seeing him pull the lever. This, defendant contends, is evidence he did not realize that the gun would fire by simply pulling the trigger. Defendant also points to testimony of other witnesses claiming defendant told them the shooting was accidental. [¶] The above facts and theories which could arguably cast doubt on [the shooting victim's] version of events were presented to the jury. The jury was, of course, free to assign whatever weight it wished to this evidence and make its own determination as to credibility. The jury clearly rejected the defense theory the shooting was accidental. We will not substitute our evaluations of the credibility of a witness for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)" (Gullatt)
In summary, our opinion rejected Gullatt's contention that "the evidence was insufficient to support the jury's finding he intentionally discharged a firearm within the meaning of section 12022.53, subdivision (d)," corrected the error in the abstract of judgment, and affirmed the judgment in all other respects. (Gullatt.) On September 7, 2005, he filed a petition for review in the California Supreme Court, which denied his petition. (People v. Gullatt (Oct. 12, 2005, S137121).)
On April 19, 2011, Gullatt filed a motion requesting judicial notice of "the briefs, pleadings, records, motions, orders, and the record on appeal" in Gullatt. (Evid. Code, §§ 452, subd. (d), 459; Cal. Rules of Court, rule 8.252(a)(1).) On August 15, 2011, the Attorney General filed a return to the order to show cause arguing against a grant of relief but not opposing the motion. We grant the motion.
The California Supreme Court and the United States District Court for the Eastern District of California both denied Gullatt's subsequent petitions for writ of habeas corpus. (In re Gullatt (June 13, 2007, S192898; Gullatt v. Felker (Dec. 19, 2008, No. 07-0873).)
On April 19, 2011, Gullatt filed a petition for writ of habeas corpus in this court. He argues that his appellate counsel rendered ineffective assistance of counsel by not challenging on appeal the trial court's imposition of the firearm enhancements on the ground of lack of statutory authorization. He emphasized not only that the information alleged, and the jury found, that a principal discharged a firearm but also that the statute authorizes those enhancements only if the defendant "personally" discharges a firearm. (§ 12022.53, subd. (d).) He did not, however, show why, in the first instance, he should not be required to file a petition for writ of habeas corpus in the trial court. (See In re Kler (2010) 188 Cal.App.4th 1399, 1403.) On April 28, 2011, we summarily denied his petition.
On May 6, 2011, Gullatt filed a petition for review in the California Supreme Court, which granted his petition, transferred the matter here, and ordered us to vacate our summary denial and to issue an order that the Secretary of the Department of Corrections and Rehabilitation show cause "why appellate counsel did not render ineffective assistance by failing to raise the issue that the sentence enhancement for personal and intentional discharge of a firearm (Pen. Code, § 12022.53, subd. (d)) was unauthorized as not properly pled or proven. (See People v. Garcia (2002) 28 Cal.4th 1166, 1174 [(Garcia)].)" (In re Gullatt (July 20, 2011, S192898.)
DISCUSSION
The statute at issue reads, "Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life." (§ 12022.53, subd. (d), italics added.)
Garcia holds that "to find an aider and abettor - who is not the shooter - liable under section 12022.53, subdivision (d), the prosecution must plead and prove that (1) a principal committed an offense enumerated in section 12022.53, subdivision (a), section 246, or section 12034, subdivision (c) or (d); (2) a principal intentionally and personally discharged a firearm and proximately caused great bodily injury or death to any person other than an accomplice during the commission of the offense; (3) the aider and abettor was a principal in the offense; and (4) the offense was committed 'for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.'" (Garcia, supra, 28 Cal.4th at p. 1174, citing, inter alia, § 186.22, subd. (b)(1) & (4), italics added.)
Here, the information alleged, and the jury found, that a principal personally discharged a firearm. However, the information did not allege, and the jury did not find, that Gullatt personally discharged a firearm. Likewise, the information did not allege, and the jury did not find, that the offense was committed "for the benefit of, at the direction of, or in association with any criminal street gang." (§§ 186.22, subd. (b)(1) & (4), italics added.) On that record, the firearm enhancements he challenges cannot stand.
DISPOSITION
Let a writ of habeas corpus issue directing the trial court (1) to strike the imposition of an indeterminate term of 25 years to life on the firearm enhancement to the attempted robbery in concert (§ 12022.53, subd. (d)), (2) to strike the imposition and stay of an indeterminate term of 25 years to life on the firearm enhancement to the attempted robbery (ibid.), (3) to amend the abstract of judgment accordingly, and (3) to send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. Gullatt has no right to be present at those proceedings. (See People v. Virgil (2011) 51 Cal.4th 1210, 1234-1235.)
As noted in footnote 2, Gullatt's motion requesting judicial notice is granted.
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Gomes, Acting P.J.
WE CONCUR:
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Dawson, J.
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Kane, J.