Filed 8/28/26 P. v. Simpson CA5
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089915
Plaintiff and Respondent,
(Super. Ct. No. F11905537)
v.
GREGORY LERONE SIMPSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. Jonathan M.
Skiles, Judge.
John F. Schuck, under appointment by the Court of Appeal, and Gregory Lerone
Simpson, in propria persona, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Franson, A.P.J., Snauffer, J., and DeSantos, J.
INTRODUCTION
Appellant and defendant Gregory Lerone Simpson (appellant) pleaded no contest
to two felony charges and admitted a firearm enhancement, and was sentenced to the
stipulated aggregate term of 29 years in prison. The trial court denied his petition for
resentencing filed pursuant to Penal Code1 section 1172.6, because he was ineligible for
relief since he was not convicted of murder, attempted murder, or manslaughter.
In this appeal from the trial court’s denial of his section 1172.6 petition, appellate
counsel filed a brief which summarized the facts and procedural history with citations to
the record, raised no issues, and asked this court to independently review the record
pursuant to People v. Delgadillo (2022) 14 Cal.5th 216.
In response to this court’s invitation, appellant filed a supplemental brief seeking
review of the denial of his section 1172.6 petition. He also seeks reversal of his plea
agreement and the trial court’s denial of other postjudgment motions and petitions. We
affirm the trial court’s denial of his section 1172.6 petition.
PROCEDURAL BACKGROUND
On November 30, 2011, an amended complaint was filed in Fresno County
Superior Court charging appellant with committing the following offenses on or about
September 26, 2011: count 1, premeditated attempted murder of a peace officer, Michael
McCray (§§ 664/187, subd. (a)), with an enhancement for personally and intentionally
discharging a firearm (§ 12022.53, subd. (c)); count 2, assault with a firearm on a peace
officer, McCray (§ 245, subd. (d)(1)), and that he personally used a firearm (§ 12022.5,
subd. (a)); count 3, assault with a semiautomatic firearm on McCray (§ 245, subd. (b)),
and that he personally used a firearm (§ 12022.5, subd. (a)); and count 4, active
participation in a criminal street gang (§ 186.22, subd. (a)).
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
As to all counts, it was alleged appellant was 16 years old at the time of the
commission of the offenses (Welf. & Inst. Code, § 707, subds. (b) & (d)).
Initial Plea Agreement & Withdrawal of Plea
On February 6, 2012, the trial court convened a hearing where appellant pleaded
no contest to count 2, assault with a firearm on a peace officer (§ 245, subd. (d)(1)), and
admitted the personal use enhancement (§ 12022.5, subd. (a)), as alleged in the amended
complaint, for a stipulated aggregate sentence of 19 years in prison and dismissal of the
other charges and allegations.
According to the minute order in the record, on April 9, 2012, the prosecution
moved to “bust” or set aside the plea agreement, and appellant moved to withdraw his
no contest plea to count 2 and admit to the personal use enhancement. The trial court
granted both motions and set the preliminary hearing.
The Information
On April 30, 2012, appellant was held to answer on the charges in the amended
complaint.
On May 8, 2012, the information was filed that charged appellant with committing
the following offenses on the corrected date of September 23, 2011: count 1,
premeditated attempted murder of a peace officer (§§ 664/187, subd. (a)); count 2, assault
on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2)); and count 3, active
participation in a criminal street gang (§ 186.22, subd. (a)).
As to counts 1 and 2, it was alleged appellant personally and intentionally
discharged a firearm (§ 12022.53, subd. (c)) and the offenses were committed for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)). As to all counts, it was alleged
appellant was 16 years old (born 1995) at the time of the commission of the offenses
(Welf. & Inst. Code, § 707, subds. (b), (d)).
3.
Plea and Sentencing Hearings
On August 13, 2012, the trial court conducted another change of plea hearing.
Appellant pleaded no contest to the following charges in the information: count 2,
assault on a peace officer with a semiautomatic firearm, and count 3, active participation
in a criminal street gang, and he admitted the section 12022.53, subdivision (c) firearm
enhancement attached to count 2, for the stipulated aggregate sentence of 29 years. In
response to the court’s questions, appellant stated he understood the terms and provisions
of the plea agreement, including the length of the stipulated sentence. The court
dismissed the attempted murder charge and the other allegations in the information.
On the same day, appellant signed a felony advisement, waiver of rights, and plea
form which stated the terms of the negotiated disposition. He initialed each paragraph,
including that he would be sentenced to the stipulated aggregate term of 29 years.
On October 1, 2012, the trial court sentenced appellant to the stipulated aggregate
term of 29 years based on the upper term of nine years for count 2 plus 20 years for the
firearm enhancement, with a concurrent term for count 3.
SECTION 1172.6 PETITION
On November 18, 2024, appellant filed a section 1172.6 petition for resentencing
in the trial court. He used a preprinted form and checked boxes alleging he was
convicted of murder, attempted murder, or manslaughter, and the conviction was no
longer valid because of statutory amendments to sections 188 and 189. The court
appointed counsel.2
On January 13, 2025, the prosecution filed an opposition and argued appellant was
ineligible for resentencing as a matter of law because he was not convicted of murder,
attempted murder, or manslaughter as required by section 1172.6.
2 Appellant had filed a previous section 1172.6 petition on September 11, 2024.
The trial court denied this petition without prejudice because there was no proof of
service.
4.
On May 7, 2025, the trial court held the prima facie hearing on appellant’s
section 1172.6 petition. Defense counsel stated she had researched the issue and
conceded appellant was ineligible for resentencing.
The trial court agreed and held appellant was ineligible for section 1172.6
resentencing since he was not convicted of murder, attempted murder, or manslaughter,
and denied the petition.
On June 2, 2025, appellant filed a timely notice of appeal that expressly stated it
was from the trial court’s denial of his section 1172.6 petition on May 7, 2025.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to
Delgadillo. The brief also included counsel’s declaration that appellant was advised he
could file his own brief with this court.
Appellant filed a supplemental brief where he raised several issues and requested
independent review of the record.
I. Denial of Section 1172.6 Petition
As to appellant’s section 1172.6 petition, the trial court correctly denied the
petition for failing to state a prima facie case. Section 1172.6, subdivision (a) states a
person may file a petition to vacate a conviction and resentencing only if he or she was
“convicted of felony murder or murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter .…”
Appellant was ineligible for resentencing as a matter of law because he was not
convicted of murder, attempted murder, or manslaughter.
II. Terms of the Plea Agreement
In his supplemental brief, appellant challenges the nature and terms of the plea
agreement. Appellant insists the only valid plea agreement occurred on February 6,
5.
2012, it was for the indicated sentence of 19 years, the prosecution improperly withdrew
from that plea agreement to impose a harsher sentence, the trial court improperly
permitted the prosecution to file the information, and the court should have sentenced
him to 19 years.
Appellant’s notice of appeal in this case was from the trial court’s order of May 7,
2025, that denied his section 1172.6 petition for resentencing. Appellant’s challenge to
his plea agreement is not cognizable in this appeal from the trial court’s denial of a
section 1172.6 petition for resentencing. (People v. Farfan (2021) 71 Cal.App.5th 942,
947.)
Even if we were to address the merits of this contention, appellant’s arguments are
completely refuted by the record. While appellant’s initial plea agreement was for an
aggregate term of 19 years, he fails to acknowledge that on April 9, 2012, the prosecution
moved to “bust” or set aside this plea agreement and, more importantly, that appellant
separately moved to withdraw his no contest plea to count 2 and his admission to the
personal use enhancement. The trial court granted both motions and set the preliminary
hearing. On April 30, 2012, appellant was held to answer on the charges in the amended
complaint.
Since appellant withdrew his first plea, a valid and existing plea agreement for a
stipulated sentence of 19 years no longer existed when (1) appellant was held to answer
on the amended complaint, (2) the information was filed on May 8, 2012, (3) appellant
pleaded no contest on August 13, 2012, to counts 2 and 3 and admitted the firearm
enhancement attached to count 2, as alleged in the information, for the stipulated
sentence of 29 years, and (4) the court sentenced him to 29 years in prison consistent with
that plea agreement on October 1, 2012.
6.
III. Appellant’s Other Postjudgment Motions and Petitions
Finally, appellant’s supplemental letter brief seeks review of the trial court’s prior
rulings on his other postjudgment motions and petitions, and claims the court should have
granted relief in all these cases.
As with his assertions about the terms of his plea agreement, appellant’s
contentions about his other postjudgment matters are not cognizable in this appeal from
the trial court’s denial of his section 1172.6 petition. Moreover, the record once again
refutes his claims about these cases.3
First, appellant filed a petition in the trial court on February 23, 2024, for
resentencing pursuant to section 1172.1, and claimed the entirety of his sentence was
invalid because of subsequent statutory amendments. On March 4, 2024, the court
summarily denied the petition and held appellant was not entitled to file his own petition
for resentencing under section 1172.1. “A defendant is not entitled to file a petition
seeking relief from the court under this section. If a defendant requests consideration for
relief under this section, the court is not required to respond.” (§ 1172.1, subd. (c).)
Second, appellant filed a motion in the trial court on October 28, 2024, for relief
pursuant to section 745 and the Racial Justice Act. On March 7, 2025, the trial court
summarily denied the motion because appellant failed to provide “any information that
would allow the court to find [he] made a prima facie showing of a violation of …
§ 745[, subdivision ](a) as required by … § 745[, subdivision ](c).” Section 745 requires
that such a motion make a prima facie showing that a violation occurred. (§ 745,
subd. (c).) A “ ‘[p]rima facie showing’ means that the defendant produces facts that, if
true, establish that there is a substantial likelihood that a violation of [section 745,]
3 Appellant’s supplemental letter brief also contains several pages captioned “Tony
Emilio Ramirez,” about alleged evidentiary and instructional errors in a jury trial held in
Riverside County. These matters are irrelevant and obviously not cognizable in this
appeal.
7.
subdivision (a) occurred .…” (§ 745, subd. (h)(2); Finley v. Superior Court (2023) 95
Cal.App.5th 12, 22.)
Finally, on December 4, 2023, appellant filed a notice in the trial court for a
hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261. On May 7, 2025, the same
day the court denied appellant’s section 1172.6 petition, the court appointed counsel to
represent appellant on the Franklin motion and set a status hearing. The record thus
indicates this matter is still pending and not cognizable herein.
DISPOSITION
The trial court’s order of May 7, 2025, denying appellant’s section 1172.6 petition
for resentencing, is affirmed.
8.