Filed 10/29/20 P. v. Gonzales CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX
THE PEOPLE, 2d Crim. No. B304135
(Super. Ct. No. 1434089)
Plaintiff and Respondent, (Santa Barbara County)
v.
REYES GONZALES, JR.,
Defendant and Appellant.
Reyes Gonzales, Jr., appeals from the trial court’s
denial of his petition for resentencing. (Pen. Code,1 § 1170.95.)
He contends the court erred when it summarily denied his
petition without appointing counsel. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In May 2015, a jury convicted Gonzales and four
codefendants of first degree murder (§§ 187, subd. (a), 189, subd.
(a)), and found true a special circumstance allegation that they
committed murder during the commission of a kidnapping
1 Further statutory references are to the Penal Code.
(§ 190.2, subd. (a)(17)(B)). (People v. Gonzales (Aug. 7, 2018,
B264384) 2018 WL 3737940 at p. *1 (Gonzales) [nonpub. opn.].)
In a bifurcated proceeding, the trial court found true allegations
that Gonzales had served four prior prison terms (§ 667.5, subd.
(b)). (Ibid.) It sentenced him to life in state prison without the
possibility of parole plus four years. (Ibid.)
We affirmed the judgment on appeal. (Gonzales,
supra, 2018 WL 3737940 at p. *17.) Among other things, we
concluded that substantial evidence supported the jury’s finding
on the kidnapping special circumstance allegation because
Gonzales “was a major participant in the kidnapping that led to
the victim’s murder” and “demonstrated reckless disregard for
human life.” (Id. at p. *1; see People v. Clark (2016) 63 Cal.4th
522, 618-623 (Clark) and People v. Banks (2015) 61 Cal.4th 788,
797-803 (Banks).) Specifically, Gonzales “assisted in a violent
and ultimately lethal attack of long duration during which any
available deadly object was used to inflict severe . . . injuries on”
the victim. (Gonzales, at p. *7.) Additionally, Gonzales helped
lure the victim to the house where he was murdered. (Id. at p.
*8.) He helped force the victim into a back room and remained
there for 20 minutes, a period during which he may have slashed
the victim’s back with a piece of glass. (Ibid.) And although
other codefendants inflicted most of the victim’s injuries, he
neither tried to restrain them nor provided the victim with any
assistance. (Id. at p. *7.) He ignored the victim’s cries for help,
choosing to dance and drink beer instead. (Id. at p. *8.)
After his case was final on appeal, Gonzales
petitioned for resentencing pursuant to section 1170.95. In his
petition, Gonzales declared that: (1) the information filed against
him allowed the prosecution to proceed on a felony murder
2
theory, (2) he was convicted of first degree felony murder, (3) he
could not now be convicted of first degree murder based on
amendments to sections 188 and 189, and (4) he was not the
actual killer. Gonzales also requested the appointment of counsel
to assist him during the resentencing process.
The trial court summarily denied Gonzales’s petition
without appointing counsel. It concluded that Gonzales
“manifestly failed to show, even on a prima facie [basis], that he
[was] entitled to relief as contemplated by section 1170.95.” The
jury found true the kidnapping special circumstance allegation,
which required proof that an aider and abettor who was not the
actual killer acted as a major participant in the kidnapping with
reckless indifference to human life. In light of that finding, which
was upheld on appeal, Gonzales could not show that he was
entitled to relief.
DISCUSSION
Gonzales contends the trial court erred when it
denied his section 1170.95 resentencing petition without
appointing counsel. We disagree.
In 2018, the Legislature enacted Senate Bill No. 1437
(S.B. 1437) to “amend the felony murder rule . . . to ensure that
murder liability is not imposed on a person who [was] 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,
subd. (f).) To accomplish these goals, S.B. 1437 redefined
“malice” in section 188, and narrowed the classes of persons
liable for felony murder under section 189. (Stats. 2018, ch. 1015,
§§ 2-3.) It also added section 1170.95 to the Penal Code, which
permits those convicted of felony murder to petition to have their
3
murder convictions vacated and to be resentenced on any
remaining charges. (Stats. 2018, ch. 1015, § 4.)
A convicted defendant may petition for resentencing
if the information allowed prosecutors to proceed under a theory
of felony murder, the defendant was convicted of first degree
murder, and the defendant could not now be convicted of murder
under the amendments to sections 188 and 189. (§ 1170.95, subd.
(a).) If the defendant files a petition declaring that they meet
these requirements (id., subd. (b)(1)(A)), the trial court
undertakes a “two-step process” to determine whether they are
eligible for relief (People v. Offley (2020) 48 Cal.App.5th 588, 596;
see § 1170.95, subd. (c)). First, the court determines “whether
the defendant has made a ‘prima facie showing [that they] “fall
within the provisions” of the statute.’ [Citation.]” (Offley, at pp.
596-597, alterations omitted.) In making that determination, the
court “may examine the record of conviction” (id. at p. 597),
including the jury instructions provided at trial and any prior
decision on appeal (People v. Gomez (2020) 52 Cal.App.5th 1, 16
(Gomez), review granted Oct. 14, 2020, S264033). If that
examination reveals that the defendant does not fall within the
provisions of section 1170.95 as a matter of law, the court may
summarily deny the petition without appointing counsel.2
2 Nearly all decisions published to date are in accord. (See
Gomez, supra, 52 Cal.App.5th at pp. 15-16, review granted;
People v. Soto (2020) 51 Cal.App.5th 1043, 1054, fn. 10, review
granted Sept. 23, 2020, S263939; People v. Tarkington (2020) 49
Cal.App.5th 892, 899-902, review granted Aug. 12, 2020,
S263219; People v. Lee (2020) 49 Cal.App.5th 254, 262-263,
review granted July 15, 2020, S262459; People v. Edwards (2020)
48 Cal.App.5th 666, 673-675, review granted July 8, 2020,
S262481; People v. Torres (2020) 46 Cal.App.5th 1168, 1178
4
(Offley, at p. 597.) But if the examination instead reveals that
the defendant may be eligible for relief, the court must proceed to
the second step and appoint counsel to assist in subsequent
proceedings. (Ibid.)
The record of conviction here reveals that Gonzales
was ineligible for section 1170.95 relief as a matter of law. Before
sending the case to jurors, the trial court instructed them on the
intent required to prove the kidnapping special circumstance
allegation. (Gonzales, supra, 2018 WL 3737940 at p. *8.) This
instruction told jurors that they could convict Gonzales of first
degree murder as an aider and abettor only if prosecutors proved
either (1) that he participated in the kidnapping with the intent
to kill, or (2) that his participation in the kidnapping began
before or during the killing, that he was a major participant in
the kidnapping, and that he acted with reckless indifference to
human life. (CALCRIM No. 703.) These are the same theories
that permit a first degree felony murder conviction pursuant to
section 189 as amended. (See § 189, subd. (e).) Thus, in finding
the kidnapping special circumstance true, jurors necessarily
determined that Gonzales could still be convicted of murder
pursuant to the current versions of sections 188 and 189.
(Gomez, supra, 52 Cal.App.5th at pp. 14-15, review granted.) The
(Torres), review granted June 24, 2020, S262011; People v.
Verdugo (2020) 44 Cal.App.5th 320, 327-333, review granted Mar.
18, 2020, S260493; People v. Cornelius (2020) 44 Cal.App.5th 54,
58, review granted Mar. 18, 2020, S260410; People v.
Lewis (2020) 43 Cal.App.5th 1128, 1137-1140, review granted
Mar. 18, 2020, S260598.) We disagree with People v. Cooper
(2020) 54 Cal.App.5th 106, 118-123, which adopted a contrary
view.
5
trial court correctly found him ineligible for section 1170.95 relief
as a matter of law. (Ibid.; see also People v. Gutierrez-Salazar
(2019) 38 Cal.App.5th 411, 419-420 [defendant ineligible for
section 1170.95 relief where jury found true a robbery special
circumstance allegation].)
Gonzales counters that the trial court should not
have relied on the jury’s special circumstance finding when it
summarily denied his resentencing petition because the jury
made that finding in May 2015, prior to our Supreme Court’s
decisions in Clark and Banks. (See People v. Smith (2020) 49
Cal.App.5th 85, 93-94 (Smith), review granted July 22, 2020,
S262835; Torres, supra, 46 Cal.App.5th at pp. 1178-1180, review
granted.) Clark and Banks “construed the meanings of ‘major
participant’ and ‘reckless indifference to human life’ ‘in a
significantly different[] and narrower manner than courts had
previously.’ [Citation.]” (Smith, at p. 93.) Because the jury in
his trial did not have these cases’ guidance, Gonzales argues it
may have employed an outdated definition when it made its
special circumstance finding, punishing him for conduct that is
no longer prohibited. (Torres, at p. 1180.) It was thus
inappropriate for the trial court to treat that finding as if it
“resolved key disputed facts” when it denied his resentencing
petition. (Ibid.)
Smith and Torres are inapplicable here. The direct
appeals in those cases were decided in 1996 and 2003,
respectively, years before Clark and Banks. (Smith, supra, 49
Cal.App.5th at p. 88, review granted; Torres, supra, 46
Cal.App.5th at p. 1174, review granted.) The reviewing courts
thus did not have our Supreme Court’s guidance when they
upheld the special circumstance findings.
6
In contrast, we decided Gonzales’s direct appeal in
2018. And we applied Clark and Banks in upholding the jury’s
special circumstance finding. That finding was thus necessarily
based on conduct that remains prohibited today. It was
accordingly proper for the trial court to rely on it when
summarily denying Gonzales’s section 1170.95 petition without
appointing counsel.
DISPOSITION
The trial court’s order denying Gonzales’s petition for
resentencing pursuant to section 1170.95, entered January 15,
2020, is affirmed.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Rick S. Brown, Judge
Superior Court County of Santa Barbara
______________________________
Alex Green, 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, Idan Ivri and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.