People v. Gonzalez CA2/1

Filed 9/30/20 P. v. Gonzalez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B300393

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA068135)
v.

ALBERTO GONZALEZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Connie R. Quinones, Judge. Affirmed.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Michael R. Johnsen and Charles S. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
__________________________________
 Alberto Gonzalez, who was convicted of second degree
murder after a 2003 jury trial, appeals from an order denying his
petition for resentencing under Penal Code section 1170.95.1 In
his form petition, he asserted he was convicted of felony murder
or murder under a natural and probable consequences theory,
and he could not now be convicted of murder because of changes
to sections 188 and 189, which became effective January 1, 2019.
He contends he made a prima facie showing below that he is
entitled to relief, and the trial court erred in summarily denying
his petition without appointing counsel to represent him and
without issuing an order to show cause and holding an
evidentiary hearing. He also challenges, on hearsay grounds, the
trial court’s reliance on the appellate opinion from his direct
appeal in determining he is not entitled to relief under section
1170.95. We reject Gonzalez’s contentions of error and affirm the
order denying his petition for resentencing, as the record of his
conviction and the trial court’s file establish he was convicted of
murder as a direct aider and abettor, a theory of murder that is
still viable after the amendment of sections 188 and 189.
BACKGROUND
In July 2003, an information charged Gonzalez and his
codefendant, Gustavo Reyes, with one count of murder (§ 187,
subd. (a)) and one count of attempted murder (§§ 664 & 187,
subd. (a)), committed for the benefit of, at the direction of, and in
association with a criminal street gang (§ 186.22, subd. (b)(1)).
The information also alleged that codefendant Reyes personally
and intentionally discharged a handgun, and that a principal

1 Further statutory references are to the Penal Code.

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personally and intentionally discharged a handgun, in the
commission of both offenses. (§ 12022.53, subds. (b), (c) & (d).)
At the jury trial in December 2003, the prosecution
presented evidence that the charged offenses involved a drive-by
shooting, committed by gang members (Gonzalez and Reyes)
against rival gang members. Under the prosecution’s theory,
Gonzalez was the driver and codefendant Reyes was the shooter,
who fired several shots out the window of a van at a group of
men, killing one. (People v. Reyes & Gonzalez (Mar. 3, 2005,
B174355) [nonpub. opn.], pp. 3-5 (Gonzalez).)2
The trial court instructed the jury on theories of murder
liability applicable to the actual killer (i.e., the shooter, Reyes)
and the direct aider and abettor of the murder (i.e., the driver,
Gonzalez). In particular, the court instructed the jury with
CALJIC No. 3.01 (Aiding and Abetting--Defined), CALJIC No.
8.10 (Murder--Defined [Penal Code § 187]), CALJIC No. 8.11
(“Malice Aforethought”--Defined), CALJIC No. 8.20 (Deliberate
and Premeditated Murder), and CALJIC No. 8.31 (Second Degree
Murder--Killing Resulting From Unlawful Act Dangerous to
Life). The court did not instruct the jury on felony murder
liability and expressly declined to instruct the jury on aiding and
abetting under the natural and probable consequences doctrine
(CALJIC No. 3.02), denying the prosecution’s request for CALJIC

2 The cited opinion is from Gonzalez’s direct appeal from his
judgment of conviction. As explained more fully below, a court
may consider the record of the conviction, including the opinion
from the direct appeal, in evaluating a petition under section
1170.95 and determining the theory of liability under which the
petitioner was convicted of murder. (See People v. Lewis (2020)
43 Cal.App.5th 1128, 1138, review granted Mar. 18, 2020,
S260598 (Lewis).)

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No. 3.02 on the ground the instruction was not “indicated in this
instance.”3
The jury found Gonzalez guilty of second degree murder
and attempted murder and found true the gang and principal
firearm use enhancement allegations, as to both offenses. On
March 25, 2004, the trial court sentenced Gonzalez to 72 years to
life in state prison: 15 years to life for the murder, plus 25 years
to life for the firearm enhancement under section 12022.53,
subdivision (d); and the middle term of seven years for the
attempted murder, plus 25 years to life for the firearm
enhancement (§ 12022.53, subd. (d)). (Gonzalez, supra, B174355,
p. 2.)4
Gonzalez appealed, and this court affirmed his judgment of
conviction. In that direct appeal, among other contentions not
relevant here, Gonzalez contended insufficient evidence
supported the finding he aided and abetted Reyes in committing
the murder and attempted murder. (Gonzalez, supra, B174355,
p. 3.) This court rejected Gonzalez’s contention, concluding
substantial evidence established a rational trier of fact could find

3 We granted the Attorney General’s request for judicial
notice of: (1) the above-referenced jury instructions given at
Gonzalez and Reyes’s trial; (2) the portion of the reporter’s
transcript from the trial where the court denied the prosecution’s
request that CALJIC No. 3.02 be given to the jury; and (3) the
opinion from Gonzalez and Reyes’s direct appeal from the
judgment of conviction.
4The jury also found Reyes guilty of second degree murder
and attempted murder and found true the gang and personal
firearm use enhancement allegations, as to both offenses.
(Gonzalez, supra, B174355, p. 2.)

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beyond a reasonable doubt that Gonzalez aided and abetted the
murder and attempted murder. (Id. at pp. 14, 15-16.)
On April 15, 2019, Gonzalez, representing himself, filed a
form petition for resentencing under section 1170.95, a statute
which permits a person convicted of felony murder or murder
under a natural and probable consequences theory to petition the
court to have the murder conviction vacated and to be
resentenced, if the person could not be convicted of murder today
in light of amendments to sections 188 and 189. Senate Bill No.
1437, which added section 1170.95 and amended sections 188 and
189, was enacted in 2018 “to amend the felony murder rule and
the natural and probable consequences doctrine, as it relates to
murder, to ensure that murder liability is not imposed on a
person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who
acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) & 189, subd. (e).)
In his form petition, Gonzalez checked boxes stating, in
pertinent part, that he was convicted of second degree murder
under the natural and probable consequences doctrine or under
the second degree felony murder doctrine and he could not now
be convicted of murder because of changes to sections 188 and
189, effective January 1, 2019. Gonzalez did not check the box
requesting the trial court appoint counsel to represent him in
connection with his petition.
On June 28, 2019, the trial court issued a minute order,
denying Gonzalez’s petition for resentencing without appointing
counsel for him or holding a hearing. In the minute order, the
court noted that at Gonzalez’s trial, the jury was instructed that
Gonzalez could be found guilty of murder as a direct aider and

5
abettor. The trial court also quoted the portion of the opinion
from Gonzalez’s direct appeal where this court rejected
Gonzalez’s challenge to the sufficiency of the evidence supporting
the finding that he aided and abetted Reyes in committing the
murder and attempted murder. For these reasons, the court
concluded Gonzalez did not qualify for resentencing under section
1170.95.5
DISCUSSION
Gonzalez contends he made a prima facie showing that he
is entitled to relief under section 1170.95, and the trial court
erred in summarily denying his petition for resentencing without
issuing an order to show cause and holding an evidentiary
hearing. As part of this contention, he argues the trial court
relied on inadmissible hearsay in this court’s opinion from his
direct appeal in determining he is not entitled to relief under
section 1170.95. He also contends the trial court erred in denying
his petition without appointing counsel to represent him.

5 The trial court summarized the evidence presented at
Gonzalez’s trial, based on this court’s appellate opinion from the
direct appeal, and also found Gonzalez was not entitled to relief
under section 1170.95 because he “was a major participant in the
underlying felony and acted with reckless indifference to human
life” within the meaning of section 189, subdivision (e)(3), a
statutory provision added by Senate Bill No. 1437. It is not clear
what “felony” the trial court was referring to here, as section 189,
subdivision (e)(3) relates to the underlying felony in a felony
murder, a theory of liability the prosecution did not advance at
trial, based on the record of conviction and the trial court’s file,
including the jury instructions given and this court’s opinion in
the direct appeal.

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I. Section 1170.95’s Requirements
Under section 1170.95, subdivision (a), “A person convicted
of felony murder or murder under a natural and probable
consequences theory may file a petition with the court that
sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining
counts when all of the following conditions apply: [¶] (1) A
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine. [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder. [¶] (3) The
petitioner could not be convicted of first or second degree murder
because of changes to Section 188 or 189 made effective January
1, 2019.”
In amending section 188, Senate Bill No. 1437 added the
following provision: “Except as stated in subdivision (e) of
Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3); Stats. 2018, ch. 1015, § 2.) To prove
liability for murder as a direct aider and abettor—a theory that is
still viable after Senate Bill No. 1437’s amendment of section
188—the prosecution must show the defendant acted with
knowledge of the perpetrator’s criminal purpose and with the
intent of committing, encouraging, or facilitating commission of
the offense. (See People v. McCoy (2001) 25 Cal.4th 1111, 1117-
1118.)

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 Senate Bill No. 1437 also added subdivision (e) to section
189 (the statute that codified the felony murder rule), providing:
“A participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a)[6] in which a death occurs is liable
for murder only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e);
Stats. 2018, ch. 1015, § 3.) Section 189, subdivision (e)(3) is not
relevant to our analysis—notwithstanding the trial court’s
citation to this statutory provision—as the record of Gonzalez’s
conviction establishes he was not convicted of felony murder.7

6 Subdivision (a) of section 189 provides: “All murder that
is perpetrated by means of a destructive device or explosive, a
weapon of mass destruction, knowing use of ammunition
designed primarily to penetrate metal or armor, poison, lying in
wait, torture, or by any other kind of willful, deliberate, and
premeditated killing, or that is committed in the perpetration of,
or attempt to perpetrate, arson, rape, carjacking, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act
punishable under Section 206, 286, 287, 288, or 289, or former
Section 288a, or murder that is perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at
another person outside of the vehicle with the intent to inflict
death, is murder of the first degree.”
7Accordingly, Gonzalez’s assertion he is entitled to an
evidentiary hearing on his petition at which he may present
evidence that he was not a major participant in the underlying

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 Subdivision (b) of section 1170.95 sets forth the filing and
service requirements of a petition for resentencing and states
that the petition must include the following: (1) a declaration by
the petitioner that he or she is eligible for relief under the
statute; (2) the superior court case number and year of conviction;
and (3) an indication as to whether the petitioner requests
appointment of counsel. There is no dispute as to Gonzalez’s
compliance’s with subdivision (b). As set forth above, Gonzalez
indicated he did not request appointment of counsel in connection
with his petition by declining to check the box requesting the
trial court appoint counsel to represent him.
A trial court that receives a petition for resentencing under
section 1170.95 must follow these steps: “The court shall review
the petition and determine if the petitioner has made a prima
facie showing that the petitioner falls within the provisions of
this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines
shall be extended for good cause. If the petitioner makes a prima
facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.” (§ 1170.95, subd. (c).)
At the evidentiary hearing on the order to show cause “to
determine whether the petitioner is entitled to relief, the burden
of proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing. If the

felony who acted with reckless indifference to human life misses
the mark. This was never prosecuted as a felony murder case.
Thus, Gonzalez was not convicted of felony murder.

9
 prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges. The prosecutor and the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet their respective burdens.” (§ 1170.95,
subd. (d)(3).)
II. Gonzalez Did Not Make a Prima Facie Showing That
He Is Entitled to Relief Under Section 1170.95
Gonzalez asserts that in his form petition for resentencing
he “pleaded facts that, if true, entitle him to relief” within the
meaning of section 1170.95, subdivision (c), triggering his
entitlement to the evidentiary hearing described in subdivision
(d). He argues that the trial court’s review of his prima facie
showing under subdivision (c) begins and ends with consideration
of his form petition because, in his words, “subdivision (c), unlike
subdivision (d), does not authorize resentencing courts to review
the record of conviction in determining whether to issue an order
to show cause.” He acknowledges, however, that several divisions
of this appellate district, including ours, have published decisions
that disagree with his interpretation of subdivision (c), concluding
that a trial court may consider the record of conviction in
evaluating the petitioner’s prima facie showing. (See, e.g., Lewis,
supra, 43 Cal.App.5th at p. 1138, review granted; People v.
Verdugo (2020) 44 Cal.App.5th 320, 323, review granted Mar. 18,
2020, S260493 (Verdugo); People v. Cornelius (2020) 44
Cal.App.5th 54, review granted Mar. 18, 2020, S260410.)
In Lewis, supra, 43 Cal.App.5th 1128, review granted, this
division explained: “Allowing the trial court to consider its file
and the record of conviction is . . . sound policy. As a respected

10
commentator has explained: ‘It would be a gross misuse of
judicial resources to require the issuance of an order to show
cause or even appointment of counsel based solely on the
allegations of the petition, which frequently are erroneous, when
even a cursory review of the court file would show as a matter of
law that the petitioner is not eligible for relief. For example,
if the petition contains sufficient summary allegations that
would entitle the petitioner to relief, but a review of the court
file shows the petitioner was convicted of murder without
instruction or argument based on the felony murder rule or
[the natural and probable consequences doctrine], . . . it would
be entirely appropriate to summarily deny the petition based
on petitioner’s failure to establish even a prima facie basis
of eligibility for resentencing.’ (Couzens et al., Sentencing
Cal. Crimes [The Rutter Group 2019] ¶ 23:51(H)(1), pp. 23–150 to
23–151.) We agree with this view and, accordingly, conclude that
the court did not err by considering our opinion in defendant’s
direct appeal in evaluating his petition.” (Id. at p. 1138.) We will
adhere to Lewis, pending guidance from our Supreme Court.
The jury instructions given at Gonzalez’s trial, which are
part of the trial court’s file in this case, demonstrate Gonzalez
was prosecuted and convicted under a direct aider and abettor
theory of murder liability. (See CALJIC Nos. 3.01 [Aiding and
Abetting--Defined], 8.10 [Murder--Defined (Penal Code § 187)],
8.11 [“Malice Aforethought”--Defined], 8.20 [Deliberate and
Premeditated Murder] & 8.31 [Second Degree Murder--Killing
Resulting From Unlawful Act Dangerous to Life].) The trial
court did not instruct the jury on felony murder and expressly
declined to instruct on aiding and abetting under the natural and
probable consequences doctrine (CALJIC No. 3.02).

11
 The opinion from Gonzalez’s direct appeal, which is part of
the record of conviction, also demonstrates Gonzalez was
convicted as a direct aider and abettor of the murder. In the
opinion, this court rejected Gonzalez’s contention there was
insufficient evidence supporting the jury’s finding that he aided
and abetted Reyes in committing the murder and attempted
murder, specifically addressing the state of the evidence
regarding Gonzalez’s knowledge of Reyes’s plan to shoot the
victim. (Gonzalez, supra, B174355, pp. 3, 14, 15-16.) By raising
this contention in his direct appeal, Gonzalez acknowledged the
jury found him guilty of murder as a direct aider and abettor and
not under some other theory of liability (i.e., felony murder or
murder under the natural and probable consequences doctrine).
Gonzalez’s objection, on hearsay grounds, to consideration of the
appellate opinion in this manner is without merit. The opinion is
relied on for a nonhearsay purpose—to determine under what
theory Gonzalez was convicted of murder. (See People v. Woodell
(1998) 17 Cal.4th 448, 460 [“The admissibility of an appellate
opinion used for this nonhearsay purpose does not turn on
whether each factual statement in that opinion comes within an
exception to the hearsay rule but on whether the opinion logically
shows what the original trial court found was the basis of the
conviction”].)8

8 Gonzalez challenges, on hearsay grounds, the trial court’s
summary of the evidence presented at trial, taken from this
court’s opinion, to support the trial court’s finding that he “was a
major participant in the underlying felony and acted with
reckless indifference to human life” within the meaning of section
189, subdivision (e)(3). As explained above, section 189,
subdivision (e)(3) is not relevant to our analysis because section
189 is the statute that codified the felony murder rule, and the

12
 Because the trial court’s file and the record of conviction
demonstrate Gonzalez is not entitled to relief under section
1170.95 as a matter of law because he was convicted of murder as
a direct aider and abettor, the trial court did not err in denying
his petition for resentencing without issuing an order to show
cause and holding an evidentiary hearing.
III. Gonzalez Was Not Entitled to Appointment of
Counsel
As set forth above, section 1170.95, subdivision (c) provides:
“The court shall review the petition and determine if the
petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response
within 60 days of service of the petition and the petitioner may
file and serve a reply within 30 days after the prosecutor
response is served. These deadlines shall be extended for good
cause. If the petitioner makes a prima facie showing that he or
she is entitled to relief, the court shall issue an order to show
cause.”
In Lewis, supra, 43 Cal.App.5th 1128, review granted, this
division concluded “the trial court’s duty to appoint counsel
[under section 1170.95, subdivision (c)] does not arise unless and
until the court makes the threshold determination that petitioner
‘falls within the provisions’ of the statute.” (Id. at p. 1140.)

trial court’s file and the record of conviction demonstrate
Gonzalez was not convicted of felony murder. Accordingly, we
need not address Gonzalez’s argument that the trial court
impermissibly relied on hearsay in this court’s opinion in making
a finding that is inapplicable to this case.

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Where a petitioner fails to make a prima facie showing that
section 1170.95 applies to the murder conviction, the petitioner is
not entitled to the appointment of counsel. (Lewis, at p. 1140;
accord, Verdugo, supra, 44 Cal.App.5th at p. 323, review granted
[“the relevant statutory language, viewed in context, makes plain
the Legislature’s intent to permit the sentencing court, before
counsel must be appointed, to examine readily available portions
of the record of conviction to determine whether a prima facie
showing has been made that the petitioner falls within the
provisions of section 1170.95”].)
Even if Gonzalez had requested the appointment of counsel
in his petition for resentencing—which he did not—we would
conclude he was not entitled to such appointment because he
failed to make a prima facie showing that section 1170.95 applied
to his murder conviction, as discussed above.
The First District Court of Appeal, disagreeing with Lewis
and Verdugo, recently held “a petitioner is entitled to counsel
upon the filing of a facially sufficient petition for relief [within
the meaning of section 1170.95, subdivision (b)] that requests
counsel be appointed.” (People v. Cooper (Sept. 1, 2020, A156880)
____ Cal.App.5th ____ [2020 WL 5175210, 10].) We respectfully
disagree with Cooper’s holding, which cannot be harmonized with
a plain reading of the statute. If a facially sufficient petition
within the meaning of subdivision (b) gives rise to a requirement
for appointment of counsel, subdivision (b) would so state.
Instead, the Legislature placed the appointment of counsel
requirement in subdivision (c), as the next step after the trial
court’s review of the petition to determine if the petitioner has
made a prima facie showing that petitioner falls within the
provisions of section 1170.95. We will adhere to Lewis, pending

14
guidance from our Supreme Court. But even if we were to apply
Cooper’s holding to the facts of this case, we would not reverse
the order denying Gonzalez’s petition on the ground the trial
court did not appoint counsel to represent him because Gonzalez
did not request the appointment of counsel in his petition.
Gonzalez argues, regardless of whether he requested
counsel below under subdivision (c) of section 1170.95, he had a
constitutional right to the appointment of counsel, which was
triggered at the time he filed his petition for resentencing,
because it was a “ ‘critical stage[]’ of the criminal process.” A
critical stage, at which a defendant has a state and federal
constitutional right to be represented by counsel, “can be
understood as those events or proceedings in which the accused is
brought in confrontation with the state, where potential
substantial prejudice to the accused’s rights inheres in the
confrontation, and where counsel’s assistance can help to avoid
prejudice.” (Gardner v. Appellate Division of Superior Court
(2019) 6 Cal.5th 998, 1004-1005.)
The stage at which the trial court denied Gonzalez’s
petition for resentencing does not constitute a critical stage of the
criminal process, as defined in case law and set forth above.
There was no confrontation with the state; indeed, the
prosecution was not even involved at the stage the trial court
denied the petition. Nor was there the potential for substantial
prejudice to Gonzalez’s rights. The trial court determined
Gonzalez was ineligible for relief as a matter of law. Thus, our
review on appeal is de novo. (In re Richards (2012) 55 Cal.4th
948, 960 [questions of law are reviewed de novo].) In any case, he
was not prejudiced. Gonzalez is represented by appointed
counsel on appeal, and he has had a full opportunity to present,

15
through counsel, whatever arguments he believes he was unable
to assert below when he was unrepresented.
Moreover, because the retroactive relief provided by section
1170.95 represents an act of lenity by the Legislature, a
petitioner has no constitutional right to representation by counsel
during the proceedings. (Cf. People v. Anthony (2019) 32
Cal.App.5th 1102, 1156 [no right to jury trial in proceedings
under Senate Bill No. 1437 because its retroactive relief is “an act
of lenity that does not implicate defendants’ Sixth Amendment
rights”], citing People v. Perez (2018) 4 Cal.5th 1055, 1063-1064;
Pennsylvania v. Finley (1987) 481 U.S. 551, 555 [prisoners have
no constitutional right to counsel “when mounting collateral
attacks upon their convictions”].)
For the foregoing reasons, the trial court did not err in
summarily denying Gonzalez’s petition for resentencing under
section 1170.95 without appointing counsel to represent him and
without issuing an order to show cause and holding an
evidentiary hearing.
DISPOSITION
The June 28, 2019 order denying Gonzalez’s petition for
resentencing is affirmed.
NOT TO BE PUBLISHED

CHANEY, J.
We concur:

ROTHSCHILD, P. J. BENDIX, J.

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