Unreported / Non-Citable
Background
Phillip Gunn and Renee Amber Banks were charged in 1979 with willful, deliberate, premeditated murder, with a special-circumstance allegation that the murder occurred during a robbery. They also faced a robbery count, a principal-armed allegation, and allegations that each defendant personally used a firearm. A jury found Gunn guilty on all charges and found the special circumstance true. On July 24, 1981, the trial court sentenced him to life without the possibility of parole.
Gunn sought recall and resentencing on January 29, 2020, under former Penal Code section 1170.95, now section 1172.6. The superior court initially denied the petition for failure to demonstrate prima facie entitlement to relief. The Court of Appeal reversed and remanded with instructions to issue an order to show cause and hold an evidentiary hearing. The superior court issued that order on November 14, 2022, and held the hearing on June 30, 2025.
At the hearing, the court found beyond a reasonable doubt that Gunn was the actual killer and acted with intent to kill. Alternatively, it found that he was a major participant in the robbery who acted with reckless indifference to human life under People v. Banks and People v. Clark. Gunn appealed. Appointed counsel filed a brief identifying no error under People v. Delgadillo, and Gunn filed a supplemental brief after receiving notice and 30 days to respond.
The Court’s Holding
The court explained that Delgadillo requires evaluation of the specific arguments in a defendant's supplemental brief and a written opinion, but does not compel an independent search of the entire record for unraised issues. It nevertheless exercised its discretion to review the record independently. The court rejected Gunn's contention that the superior court failed to consider his argument and evidence that he was not the actual killer. That argument appeared in his evidentiary brief, the superior court said it had considered the briefing, and the appellate court found no error in its consideration and rejection of the argument.
The alternative finding supplied an independent basis for affirmance. Because an order must be affirmed if correct on any ground, and because an appealed order is presumed correct, Gunn had to demonstrate error through evidence and argument. He did not challenge the finding that he was a major participant who acted with reckless indifference to human life. The court therefore presumed that finding correct and concluded that he had not met his burden to show error.
The court also rejected Gunn's argument concerning a letter he sent to the superior court on or about January 1, 2025. Courts ordinarily may not consider a party's ex parte communications under Canon 3(B)(7) of the California Code of Judicial Ethics, and nothing in the appellate record showed that an exception applied. The court thus found no error in refusing to consider the letter. Its independent review disclosed no error or grounds for reversal, and it affirmed the June 30, 2025 order. A footnote also declined Gunn's request to order his counsel to respond to his supplemental brief.
Key Takeaways
- A supplemental brief after a Delgadillo filing requires the appellate court to address the defendant's specific arguments, but does not automatically require a search for unraised issues.
- An unchallenged alternative finding can independently defeat an appeal because the appellant bears the burden of demonstrating that the order is erroneous.
- The court found that Gunn's actual-killer argument was presented in the evidentiary briefing and was considered and rejected by the superior court.
- The superior court did not err by declining to consider Gunn's letter because the record showed no exception to the ordinary prohibition on ex parte communications.
- The Court of Appeal affirmed the June 30, 2025 order denying resentencing and declined to direct appointed counsel to respond to Gunn's supplemental brief.
Why It Matters
The decision applies settled appellate principles to a section 1172.6 proceeding: a challenge to one basis for denial does not establish reversible error when an independent alternative finding remains unchallenged. It also illustrates how Delgadillo review operates when the defendant files a supplemental brief, including the court's discretion to conduct a broader record review.
The opinion additionally distinguishes consideration of evidence and arguments properly presented in petition briefing from consideration of a party's direct ex parte letter. On this record, the former was considered and rejected, while the latter could be refused under judicial ethics rules. The opinion is not certified for publication.