Full Opinion

Filed 10/20/26 P. v. Gunn CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR THE PEOPLE, B347714 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. A348521) v. PHILLIP GUNN, Defendant and Appellant. APPEAL from a judgment of the Superior Court of Los Angeles County, Karla D. Kerlin, Judge. Affirmed. Kelly C. Martin, under appointment by the Court of Appeal, and Phillip Benjamin Gunn, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent. INTRODUCTION Phillip Gunn appeals from the denial of his petition for resentencing under Penal Code section 1172.6.1 His appointed counsel identified no error in the proceedings below and filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Gunn filed a supplemental brief. He argues that the trial court erred in failing to consider mitigating evidence. We affirm. FACTS AND PROCEDURAL BACKGROUND On June 5, 1979, Phillip Gunn and Renee Amber Banks were charged with one count of willful, deliberate, premeditated murder in violation of section 187, subdivision (a), with a special circumstance allegation that the murder was committed during the commission of a robbery under former section 190.2, subdivision (a)(17)(i). Both defendants were also charged with a second count of robbery in violation of section 211, with an allegation that a principal was armed with a firearm within the meaning of section 12022, subdivision (a). Both counts alleged that each defendant personally used a firearm within the meaning of section 12022.5. A jury found Gunn guilty on all charges and found true the special circumstance allegation. On July 24, 1981, the trial court sentenced Gunn to life without the possibility of parole. Gunn filed a motion for recall and resentencing on January 29, 2020, under former section 1170.95, now section 1172.6. The trial court denied the petition for failure to demonstrate prima facie entitlement to relief. On 1 Undesignated section references are to the Penal Code. 2 appeal, we reversed and remanded with instructions for the trial court to issue an order to show cause and hold an evidentiary hearing.2 The trial court issued an order to show cause on November 14, 2022 and held an evidentiary hearing on June 30, 2025. The trial court denied Gunn’s petition. The trial court found beyond a reasonable doubt that Gunn was the actual killer and acted with intent to kill.3 The trial court also found in the alternative that Gunn was a major participant in the robbery who acted with reckless indifference to human life, as defined in People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522. Gunn timely appealed. DISCUSSION Gunn’s appointed counsel filed a brief raising no issues and asking this court to follow the procedures set forth in Delgadillo, supra, 14 Cal.5th 216. This court notified Gunn that he had 30 days to file a supplemental brief and that his appeal could be abandoned if he declined to do so. Gunn timely filed a supplemental brief. When a defendant files a supplemental brief on an appeal from the denial of a section 1172.6 petition where appointed counsel has found no 2 On our own motion, we take judicial notice of our prior nonpublished opinion in this case (People v. Gunn (July 27, 2022, B310486, 2022 WL 2965223 [nonpub. opn.].) (Evid. Code, § 452, subd. (d); Stephenson v. Drever (1997) 16 Cal.4th 1167, 1170, fn. 1.) Citation of our prior unpublished opinion “is permitted by California Rules of Court, rule 8.1115(b)(1) to explain the factual background of the case and not as legal authority.” (In re W.R. (2018) 22 Cal.App.5th 284, 286, fn. 2, internal citation and quotation marks omitted.) 3 The court stated that it had read the entire record of conviction and the parties’ submissions. The transcripts from the original trial are not in the record on appeal. The prosecution’s evidentiary brief is also not in the record on appeal. 3 arguable issues, we are required to evaluate the specific arguments presented in the supplemental brief and to issue a written opinion. (Delgadillo, supra, 14 Cal.5th at p. 232.) A defendant’s filing of a supplemental brief does not compel us to independently review the entire record to identify unraised issues, though we retain the discretion to do so. (Ibid.) Here, we find the arguments in Gunn’s supplemental brief unpersuasive. Gunn contends that, at the evidentiary hearing, the trial court did not consider his argument and evidence that Gunn was not the actual killer. That is not accurate. The argument was expressly raised in Gunn’s evidentiary brief on his petition. At the evidentiary hearing, the trial court stated that it had considered the arguments in the briefing. The trial court considered and rejected Gunn’s argument, and we see no error in the trial court doing so. The trial court also found in the alternative that even if Gunn was not the actual killer, he was a major participant in the robbery who acted with reckless indifference to human life. A lower court’s order must be affirmed if it is correct on any grounds. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145.) An appealed order is presumed to be correct, and Gunn bears the burden of demonstrating through evidence and argument that the appealed order is erroneous. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) Because Gunn has not challenged the trial court’s alternative finding, we presume that finding to be correct. Since one independent basis of the trial court’s order has not been challenged, Gunn has not met his burden to show that the order was made in error. For that reason, as well, we affirm the order. Gunn also argues that the trial court erred in failing to consider a letter which he sent to the court on or about January 1, 2025. This was not error. 4 A court may not ordinarily consider ex parte communications by a party. (Cal. Code Jud. Ethics, Canon 3(B)(7).) Nothing in the record on appeal indicates that any exception to that rule applied. Thus, the trial court did not err in refusing to consider Gunn’s letter.4 Finally, we have exercised our discretion to independently review the record in this case. Having done so, we see no error by the trial court and no grounds for reversal. DISPOSITION The trial court’s June 30, 2025 order is affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS DAUM, J. We concur: MORI, Acting P. J. TAMZARIAN, J. 4 Gunn also requests that we order his counsel to respond to his supplemental brief. We decline to do so. 5