Opinion
G058717
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. WESLEY EIWIN GIBBS, JR., Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. INF1101884) OPINION Appeal from a postjudgment order of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Defendant Wesley Eiwin Gibbs, Jr., appeals from an order dismissing his petition for resentencing (Petition) under Penal Code section 1170.95 (section 1170.95).
In 2012, a jury convicted defendant and codefendant James Charles Oudin of first degree special-circumstance murder for financial gain (Pen. Code §§ 187, subd. (a), 190.2, subd. (a)(1)), and the court sentenced them both to life in prison without the possibility of parole. We affirmed the convictions and sentences on appeal. (People v. Oudin & Gibbs (June 12, 2015, G050682) [nonpub. opn.].)
In 2019, defendant filed the Petition seeking resentencing. The court granted the prosecution's oral motion and dismissed the Petition, on the grounds the jury found defendant acted with an intent to kill when it found the financial gain special circumstance true. Defendant timely appealed.
We appointed counsel to represent defendant on appeal. Counsel filed a brief which summarized the proceedings and the facts of the case and advised us she found no arguable issues to assert on defendant's behalf. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) To assist us in our independent review, counsel suggested we consider whether the court erred when it denied the Petition without issuing an order to show cause or holding an eligibility hearing.
Defendant filed a supplemental brief on his own behalf, which stated: "I want to bring to the court's attention the following cases to add reflection on my case 'People v. Lopez Division SF Case No. S258175' and 'People v. Sanchez Division SF Case No. S261768."
Apparently, defendant is referring to People v. Lopez (2019) 38 Cal.App.5th 1087, review granted November 10, 2019, S258175 (Lopez), and People v. Sanchez (2020) 46 Cal.App.5th 637, review granted June 10, 2020, S261768 (Sanchez).
We have independently reviewed the entire record as required under Anders v. California (1967) 386 U.S. 738 and Wende, supra, 25 Cal.3d 436, and have found no arguable issues on appeal. Therefore, we affirm the postjudgment order.
DISCUSSION
Section 1170.95 relief is available only to those "'convicted of felony murder or murder under a natural and probable consequences theory . . . .'" (People v. Martinez (2019) 31 Cal.App.5th 719, 723.) In People v. Lewis (2020) 43 Cal.App.5th 1128, 1137, review granted March 18, 2020, S260598, the court held (1) a trial court may rely on the record of conviction in determining whether the defendant's petition makes a prima facie showing for relief under section 1170.95, and (2) the record of conviction includes the opinion of the Court of Appeal in the underlying conviction.
Our opinion in People v. Oudin and Gibbs, supra, G050682, recites a lengthy description of the circumstantial evidence presented to the jury upon which it found beyond a reasonable doubt that defendant and codefendant Oudin murdered Oudin's sister for financial gain. Plus, it is undisputed (1) the jury's financial gain special circumstance true finding included a finding that the murder was intentional (Pen. Code §§ 190.2, subd. (a)(1), 190.4, subd. (a)), and (2) defendant was not convicted of felony murder or murder under a natural and probable consequence theory.
Accordingly, we conclude the court correctly determined, based on the record of conviction in defendant's case and contrary to the Petition, that defendant was not eligible for relief under section 1170.95 as a matter of law. It follows the court did not err by dismissing the Petition without first issuing an order to show cause or holding an eligibility hearing. (People v. Verdugo (2020) 44 Cal.App.5th 320, 330, review granted Mar. 18, 2020, S260493.) Thus, counsel's assessment there were no arguable issues to raise in this appeal was manifestly correct. And nothing in either of the cases cited by defendant, Lopez and Sanchez, suggests otherwise.
Lopez involved second degree murder and attempted murder convictions prosecuted on a natural and probable consequences theory where the target offense was vandalism. (Lopez, supra, 38 Cal.App.5th at pp. 1092-1093.) Similarly, Sanchez involved an attempted murder conviction prosecuted as a natural and probable consequence of an assault with a firearm. (Sanchez, supra, 46 Cal.App.5th at p. 639.)
DISPOSITION
The order is affirmed.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.