People v. Harrell CA4/3

Opinion

Filed 8/20/26 P. v. Harrell CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G065121 v. (Super. Ct. No. C-37737)

GARY TIRAN HARRELL, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Steven S. Lubliner, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. Defendant Gary Tiran Harrell appeals an order denying his petition for resentencing under Penal Code section 1172.6.1 His appointed attorney filed a brief under the procedures described in People v. Delgadillo (2022) 14 Cal.5th 216, declaring he was unable to find any issues to raise on Harrell’s behalf. Having reviewed the record ourselves, we also detect no arguable issues. We therefore affirm the trial court’s order. FACTUAL AND PROCEDURAL BACKGROUND In March 1977, Harrell and three other accomplices went to an apartment where James Harbin lived with S.C. and two other women. Upon entering the apartment, accomplice King beat Harbin over the head with a gun, and Harrell tied Harbin’s hands behind his back and muzzled him with a towel. Harrell and accomplice Jackson then took Harbin and S.C. upstairs and tied them to a railing. At King’s direction, Jackson started cutting S.C.’s throat with a small knife. While he was doing so, Harrell handed him a larger knife and told him to use that one instead, which Jackson did. S.C. was also stabbed in the back multiple times by King during the incident, but she survived. Harbin was not so fortunate. After wriggling free of his restraints, he ended up fighting with Harrell and King in one of the bedrooms. While Harrell was holding Harbin down, King fatally stabbed him 35 times with a knife that Harrell had given him.

1 That section originally was housed in Penal Code section 1170.95, but it subsequently was renumbered without substantive change as Penal Code section 1172.6. (Stats. 2022, ch. 58, § 10.) For ease of reference, we refer to the current provision. All further statutory references are to the Penal Code.

2 Harrell and his accomplices were charged with burglary, murder, and attempted murder. It was also alleged they inflicted great bodily injury on S.C. The first trial ended in a mistrial as to Harrell, due to the illness of a juror after both sides had rested. But when Harrell was retried the following year, in 1978, the jury convicted him of all the charges and found the injury allegation true. The trial court sentenced Harrell to life in prison for the murder and stayed sentencing on the remaining charges. In the ensuing years, Harrell was denied parole multiple times before being released from prison on parole in 2020. In 2019, Harrell filed a petition for resentencing pursuant to section 1172.6. The petition was summarily denied on two occasions, but following successful appeals, Harrell was eventually granted an evidentiary hearing in 2025. By that time, the transcripts from Harrell’s trial in 1978 were no longer available. Therefore, the prosecutor asked the trial court to adjudicate Harrell’s petition based on the transcript of his 1977 trial, as well as the transcripts from Harrell’s parole hearings. Defense counsel objected to the trial transcript on the basis the 1977 trial had ended in a mistrial, and he objected to the parole hearing transcripts on the basis they constituted inadmissible hearsay. The trial court overruled both objections and denied Harrell’s petition for resentencing. In so doing, the court found beyond a reasonable doubt that, acting with malice, Harrell directly aided and abetted the murder of Harbin and the attempted murder of S.C.2 2 At the hearing, the prosecution argued Harrell also was ineligible for resentencing because he was a major participant in the burglary and acted with reckless indifference to human life for purposes of the current 3 On appeal, Harrell’s appointed counsel filed a brief raising no issues but requesting that we independently review the record pursuant to People v. Delgadillo, supra, 14 Cal.5th 216. We informed Harrell of his right to file a supplemental brief, but he did not do so. In the interest of justice, we have examined the entire record for any arguable issues. (See id. at p. 230.) DISCUSSION Pursuant to section 1172.6, a defendant who has been convicted of murder and/or attempted murder may petition for retroactive resentencing relief based on Senate Bill No. 1437 (2017–2018 Reg. Sess.), which narrowed the scope of vicarious liability for those crimes. (See Stats. 2018, ch. 1015, §§ 1–4; People v. Lewis (2021) 11 Cal.5th 952, 957.) If the defendant makes a prima facie showing for relief, the trial court is required to issue an order to show cause and conduct an evidentiary hearing on his petition. (§ 1172.6, subds. (c), (d).) At the hearing, the court “may consider evidence previously admitted at any prior hearing or trial that is admissible under current law.” (§ 1172.6, subd. (d)(3).) That includes evidence that was adduced at the defendant’s parole hearings. (People v. Rodriguez (2025) 110 Cal.App.5th 458, 466, 468; People v. Zavala (2024) 105 Cal.App.5th 366, 373; People v. Mitchell (2022) 81 Cal.App.5th 575, 586; People v. Myles (2021) 69 Cal.App.5th 688, 697–706.) Ultimately, the prosecution must prove beyond a reasonable doubt the defendant is ineligible for resentencing. In particular, the prosecution must prove that, notwithstanding Senate Bill No. 1437’s felony-murder rule. The court stated it did not have to decide that issue due to the “overwhelming” evidence of Harrell’s guilt on the direct theory of aiding and abetting.

4 ameliorative changes, the defendant’s conduct constituted murder and/or attempted murder under a still-valid theory of liability, such as direct aiding and abetting. (§ 1172.6, subd. (d)(3); People v. Gentile (2020) 10 Cal.5th 830, 850, abrogated by statute on other grounds as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.) Otherwise, the defendant is entitled to resentencing pursuant to the terms of section 1172.6. (See id., subd. (e).) When the trial court denies a resentencing petition following an evidentiary hearing, we review the court’s order for substantial evidence. (People v. Reyes (2023) 14 Cal.5th 981, 988.) In doing so, “‘we review the record “‘“in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact”’”’ could find beyond a reasonable doubt that” the defendant was ineligible for resentencing. (People v. Emanuel (2025) 17 Cal.5th 867, 885.) Having reviewed the record with these principles in mind, we conclude there is no arguable basis to disturb the trial court’s ruling. Accordingly, we affirm. DISPOSITION The trial court’s order denying Harrell’s postjudgment petition for resentencing is affirmed.

GOODING, J. WE CONCUR:

MOTOIKE, P. J.

SERVINO, J.