P. v. Gunn CA2/4
Appellant Phillip Benjamin Gunn was convicted of first degree murder and robbery in 1981 and was sentenced to life without the possibility of parole. In 2019, he filed a petition under Penal Code section 1172.6 (former section 1170.95) to vacate his murder conviction. Appellant claimed that he was convicted under the felony murder rule, and that he was not the actual killer, had not acted with intent to kill, and had not even participated in the underlying robbery. Among other things, he alleged that although he shot the victim (in self-defense), he merely injured him, and another person shot and killed him after appellant left the scene. The superior court denied the petition without issuing an order to show cause after concluding that appellant was ineligible for relief as a matter of law because he was “the actual shooter.” On appeal, appellant contends the court erred in denying his petition without holding an evidentiary hearing.
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