Filed 1/26/21 P. v. Gonzales CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304024
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. NA072796)
v.
ROBERT GONZALES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Stephen A. Marcus, Judge. Affirmed.
Deborah L. Hawkins, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Michael P. Pulos, Supervising Deputy Attorney General, Seth
M. Friedman and Joseph C. Anagnos, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant and appellant Robert Gonzales appeals from an order
summarily denying his petition for resentencing under Penal Code
section 1170.951 after the appointment of counsel, briefing, and a
hearing. He contends that the trial court erred by relying on
statements made in the appellate opinion from his direct appeal from
the judgment of conviction. We conclude that the trial court
appropriately relied on our prior opinion, in which we held that
sufficient evidence supported defendant’s second degree murder
conviction based on a theory that defendant was an actual killer who
acted with malice aforethought. We affirm the order.
FACTUAL BACKGROUND2
1. Prosecution Evidence
Defendant was part of a group of gang members who killed
Christopher Ash, a 204th Street gang member accused of “snitching” on
another 204th Street gang member (Jonathan Fajardo) regarding the
murder of Cheryl Green. In separate proceedings, Fajardo, Daniel
1 Undesignated statutory references are to the Penal Code.
2 We previously granted defendant’s request to take judicial notice of the
prior appellate record and opinion to “establish the facts and circumstances
underlying [his] conviction.” We recite the factual and procedural
background from the record on appeal in this case, and from defendant’s prior
appeal in People v. Gonzales (Aug. 13, 2013, B237860) [nonpub. opn.]
(Gonzales I).
2
Aguilar, and Raul Silva were convicted for first degree murder in
connection with Ash’s murder.3
A. The Green Murder
On December 15, 2006, Fajardo fired on a group of individuals
gathered in the driveway of a home, killing Green and wounding three
other individuals. As part of an investigation, police officers executed
search warrants and searched the residences of various individuals
connected to the 204th Street gang. During the search of Ash’s
apartment, the police took Ash into custody for questioning and
escorted seven other individuals, including Fajardo, Aguilar, and Jose
Covarrubias, out of Ash’s apartment.
B. The Ash Murder
Covarrubias, another member of the 204th Street gang and
accomplice in Ash’s killing, was the key prosecution witness at trial.4
According to Covarrubias, Ash was murdered inside Silva’s residential
garage on December 28, 2006.
3 At defendant’s trial, gang experts established that despite being a
member of a different gang (the Fries Street gang), defendant acted for the
benefit of the 204th Street gang during the commission of Ash’s murder.
4 In exchange for testifying truthfully against his accomplices,
Covarrubias pled guilty to voluntary manslaughter and was sentenced to 22
years imprisonment.
3
In the late afternoon of December 28, 2006, Covarrubias and three
other 204th Street gang members (Silva, Aguilar, and Eugenio Claudio)
drove to Silva’s house. The men entered the garage and saw defendant
(who Covarrubias had never met before) and an unidentified woman.
When the woman left a few minutes later, Fajardo and Juan Carlos
Pimentel, another member of the 204th Street gang, arrived at the
garage. Pimentel pulled Covarrubias aside, at which time Covarrubias
told him that he believed Ash was a snitch.
According to Covarrubias, all seven men—including defendant—
discussed the matter together. Pimentel stated, “[w]e’re gonna [sic]
take care of Christopher Ash because of some snitching.” Pimentel told
Covarrubias to follow his lead and “tear up” Ash’s body whenever he
arrived. Everyone agreed that Aguilar would bring Ash to the garage,
where he would be killed. Defendant offered to drive Aguilar to pick up
Ash, and before leaving, defendant gave Covarrubias and Pimentel a
knife.5
Approximately 20 minutes later, defendant and Aguilar returned
to the garage with Ash. After Ash entered the garage, Fajardo struck
him from behind with the butt of a shotgun. According to Covarrubias,
Ash replied, “What the fuck? I’m not a snitch” before defendant,
Aguilar, Silva, and Claudio rushed over and began punching him.
Pimentel told everyone to calm down. As he walked Ash toward a Pepsi
machine, Pimentel stabbed Ash in the neck, causing him to fall down.
5 Covarrubias provided ambiguous and conflicting statements about
defendant furnishing a knife.
4
Pimentel stabbed Ash in the chest, and Covarrubias stabbed Ash in the
stomach before vomiting and dropping the knife.
Defendant then “pushed [Covarrubias] to the side,” picked up the
knife, and rapidly stabbed Ash “a lot of times” in the stomach before
Pimentel turned Ash over and stabbed him in the back. The men
wrapped Ash’s body in a tarp and blanket, and placed the body inside a
van. Fajardo and Pimentel left in the van while the other men,
including defendant, stayed behind to clean up the garage with water
and paint thinner. The police discovered Ash’s body the same evening
on December 28. Ash died of stab wounds, 11 to the chest and 32 to the
abdomen.
The prosecution played for the jury a February 7, 2007 interview
between defendant and the police wherein defendant provided
inconsistent and false statements about the murder. Defendant first
denied that he had been at Silva’s home the night of December 28, 2006,
and he denied meeting Ash, Covarrubias, and Aguilar. Later,
defendant admitted that he had seen Ash at Silva’s residence and that
the murder had occurred, but claimed that he was inside the home
when Ash was killed. Finally, defendant admitted that he had heard
the other men talk about a snitch; that he and Aguilar had picked up
Ash; and that when they returned, someone hit Ash with a stick, at
which time defendant left the garage.
2. Defense Evidence
Defendant testified on his own behalf and denied any involvement
in Ash’s murder. Defendant denied hearing a conversation about
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planning to stab someone. Defendant agreed to pick up Aguilar’s
“friend,” and when they arrived at the garage, defendant saw someone
hit Ash in the back of the head with an object. At that point, defendant
left and went inside Silva’s residence.
3. Information, Verdict, and Sentence
Defendant was charged with first degree murder (§ 187, subd. (a)),
three special circumstances allegations, an allegation of personal use of
a deadly weapon (a knife) (§ 12022, subd. (b)(1)), and a gang
enhancement (§ 186.22, subd. (b)(1)(C)).
The jury was instructed on multiple theories of culpability for
murder, including first degree premeditated murder, second degree
murder based on malice aforethought but without deliberation and
premeditation, and a homicide that was the natural and probable
consequences of an intentional act—either assault with a deadly
weapon or intimidating a witness by force—committed with conscious
disregard for human life.
By general verdict on May 3, 2011, the jury acquitted defendant of
first degree murder, but convicted him of second degree murder. The
jury found the gang enhancement to be true, but found the personal use
of a deadly weapon not to be true. The court sentenced defendant to 15
years to life.
PROCEDURAL BACKGROUND
Defendant challenged his conviction on two grounds in his direct
appeal in Gonzales I. As relevant here, defendant argued that his
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murder conviction should be reversed because there was insufficient
evidence to support liability for second degree murder.6 He argued that
the jury, by acquitting him of first degree murder, “necessarily rejected
Mr. Covarrubias’ testimony” that defendant was part of a group that
agreed to kill Ash. He asserted that “[n]o jury could have reached a
second degree murder conviction based upon the testimony of Mr.
Covarrubias, who was clearly out to pin the murder on [defendant] to
preserve the benefit of his bargain with the prosecution.” Similarly,
defendant argued the jury could have only reached its verdict on second
degree murder based on the natural and probable consequences
doctrine to which no evidence was presented that defendant intended to
aid and abet an assault or witness intimidation.
We rejected these arguments and affirmed defendant’s conviction.
Because the jury’s general verdict did not disclose which theory of
liability it had relied upon to convict defendant of second degree
murder, we began with the premise that defendant’s conviction could be
sustained on any theory presented to the jury that was supported by
substantial evidence. (People v. Curtin (1994) 22 Cal.App.4th 528, 531.)
Without determining whether the evidence supported the conviction on
a natural and probable consequences theory, we concluded that
“substantial evidence support[ed] the theory of second degree murder
based upon the theory of a homicide committed with malice
aforethought.” (Gonzales I, supra, at p. 6.) Our conclusion was based
6 Defendant also contended that the trial court erred when it denied his
motion for new trial based on a claim of juror misconduct.
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on “more than ample evidence” from which the jury “reasonably could
have concluded that after defendant, Aguilar and Ash returned to the
garage and Fajardo hit Ash on the back of the head . . . defendant joined
in the fatal assault upon Ash by stabbing him multiple times.” (Id. at
p. 6, original italics.) Our conclusion, we held, was not undermined by
the jury’s not true finding on the personal use of a deadly weapon. (Id.
at p. 6, fn. 15, citing People v. Brown (1989) 212 Cal.App.3d 1409, 1421
[inconsistent verdicts are “within the province of the jury as an exercise
of their mercy. It does not compel reversal of the conviction”], overruled
on another ground in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10;
People v. Santamaria (1994) 8 Cal.4th 903, 911; People v. Lewis (2001)
25 Cal.4th 610, 654–656].)
Following the enactment of Senate Bill No. 1437 (S.B. 1437),
defendant filed a petition for resentencing under section 1170.95, which
provides that persons who were convicted under theories of felony
murder or murder under the natural and probable consequences
doctrine, and who could no longer be convicted of murder following the
enactment of S.B. 1437, may petition the sentencing court to vacate the
conviction and resentence on any remaining counts. (Stats. 2018, ch.
1015, § 1, subd. (f).)
In his petition for resentencing, defendant stated that an
information had been filed against him that allowed the prosecution to
proceed under a theory of felony murder or murder under the natural
and probable consequences doctrine; at trial, he was convicted of second
degree murder pursuant to the felony-murder rule or the natural and
probable consequences doctrine; and he could not now be convicted of
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second degree murder because of the changes made to sections 188 and
189. Defendant requested that counsel be appointed on his behalf.
The trial court appointed counsel for defendant, the People filed
an opposition, and defendant filed a reply. At a hearing on the petition,
defense counsel argued that the jury’s not true finding on the personal
use deadly weapon enhancement meant that it had rejected the factual
theory that defendant stabbed Ash. Consistent with our opinion in
Gonzales I, the court rejected the argument, reasoning that the jury
could well have convicted defendant of second degree murder as an
actual killer who acted with malice aforethought. In the alternative,
the court found that defendant could have been convicted of direct
aiding and abetting murder and conspiracy to commit murder, though
neither theory was presented to the jury. The court summarily denied
the petition for resentencing.
Defendant timely filed a notice of appeal.
DISCUSSION
1. Governing Law
The legislature enacted S.B. 1437 “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, subd. (f).)
S.B. 1437 also “added a crucial limitation to section 188’s
definition of malice for purposes of the crime of murder.” (People v.
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Verdugo (2020) 44 Cal.App.5th 320, 326 (Verdugo), rev. granted,
S260493, Mar. 18, 2020.) Under the revised section 188, subdivision
(a)(3), “‘[m]alice shall not be imputed to a person based solely on his or
her participation in a crime.’ [Citations.]” (People v. Lewis (2020) 43
Cal.App.5th 1128, 1135 (Lewis), rev. granted, S260598, Mar. 18, 2020.)
Section 1170.95, as enacted by S.B. 1437, permits individuals who were
convicted of felony-murder or murder under the natural and probable
consequences doctrine, but who could not be convicted of murder
following S.B. 1437’s changes to sections 188 and 189, to petition the
sentencing court to vacate the conviction and resentence on any
remaining counts. (§ 1170.95, subd. (a); see People v. Johns (2020) 50
Cal.App.5th 46, 54 [“Now, a person so accused must have killed the
victim, aided the person who did kill the victim with the intent to kill
[them], or acted as a major participant in the felony with reckless
indifference to human life”].)
A petition for relief under section 1170.95 must include a
declaration by the petitioner that he is eligible for relief under section
1170.95 based on all the requirements of subdivision (a), the superior
court case number and year of the petitioner’s conviction, and a request
for appointment of counsel, should the petitioner seek appointment.
(§ 1170.95, subd. (b)(2).)
If the petition includes the required information, subdivision (c) of
section 1170.95, prescribes “a two-step process” for the court to
determine if it should issue an order to show cause. (Verdugo, supra, 44
Cal.App.5th at p. 327.) The court first “review[s] the petition and
determine[s] if the petitioner has made a prima facie showing that the
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petitioner falls within the provisions of this section.” (§ 1170.95, subd.
(c).) The court then appoints counsel, if requested, and reviews the
petition a second time after briefing by the parties to determine if
petitioner has established a prima facie case for relief. (Ibid.; see Lewis,
supra, 43 Cal.App.5th at p. 1140.) At this stage, the court may review
the petitioner’s record of conviction to determine whether the
allegations set forth in the petition are untrue as a matter of law.
(Verdugo, supra, at p. 333; Lewis, supra, 43 Cal.App.5th at p. 1138,
quoting Couzens et al., Sentencing Cal. Crimes (The Rutter Group
2019) ¶ 23:51(H)(1), pp. 23–150 to 23–151.) If the court concludes the
petitioner has made a prima facie showing, it must issue an order to
show cause. (§ 1170.95, subd. (c); Verdugo, supra, at p. 328.)
“Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction and to
recall the sentence and resentence the petitioner on any remaining
counts.” (Verdugo, supra, 44 Cal.App.5th at p. 327, citing § 1170.95,
subd. (d)(1).)
2. Analysis
Defendant contends the trial court erred by relying on our prior
opinion to summarily deny his petition for resentencing. He asserts
this was error because the opinion contains hearsay statements that do
not fall within an exception to the hearsay rule, and because the trial
court made independent factfinding beyond the theories on which the
jury was instructed.
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We agree that the trial court should not have engaged in judicial
factfinding to find defendant culpable of theories that were neither
charged by the People nor presented to the jury. The court’s error is of
no moment, however, as our prior opinion establishes that defendant is
ineligible for relief as a matter of law. (People v. Chism (2014) 58
Cal.4th 1266, 1295, fn. 12 [“‘we review the ruling, not the court’s
reasoning, and, if the ruling was correct on any ground, we affirm’”];
People v. Edwards (2020) 48 Cal.App.5th 666, 675 [any procedural
errors by the trial court “were harmless under any standard of review
[citations] and remand would be an idle act” because defendant did not
fall within the provisions of § 1170.95 as a matter of law].)
The trial court properly utilized Gonzales I to determine the basis
of defendant’s conviction—that defendant was an actual killer who
acted with malice aforethought—to determine whether the allegations
in his petition were untrue as a matter of law. “A court of appeal
opinion, whether or not published, is part of the appellant’s record of
conviction” that may be reviewed when ruling on a section 1170.95
petition. (Verdugo, supra, 44 Cal.App.5th at p. 333; People v. Cruz
(2017) 15 Cal.App.5th 1105, 1110.) Analogous petitioning procedures
for resentencing under sections 1170.18 and 1170.126 contemplate a
similar gatekeeping function in which trial courts review the record of a
petitioner’s conviction to determine if the allegations set forth by the
petitioner are untrue as a matter of law. (See People v. Washington
(2018) 23 Cal.App.5th 948, 955 [§ 1170.18]; People v. Oehmigen (2014)
232 Cal.App.4th 1, 6–7 [§ 1170.126].) As section 1170.95 makes clear,
petitions under this new law are no exception. (See § 1170.95, subd.
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(b)(2) [“[i]f any of the information required” under subdivision (a) is
missing, the court may deny the petition unless the information can be
“readily ascertained by the court”]; Cooley v. Superior Court (2002) 29
Cal.4th 228, 249 [to “readily ascertain[]” missing information, court
must be permitted to consider documents outside the petition, including
the record of conviction].)
When considering defendant’s record of conviction during the
prima facie stages of review, the trial court should have limited its
review to determining whether the petitioner is ineligible for relief as a
matter of law. (Verdugo, supra, 44 Cal.App.5th at pp. 328–330.) To do
so, the trial court could (and did) look at Gonzales I “for the nonhearsay
purpose of determining the basis of” defendant’s conviction. (People v.
Woodell (1998) 17 Cal.4th 448, 459.) The “basis of the conviction” may
be established when an appellate opinion “logically shows what the
original trial court found,” including “the issue the jury has to resolve in
determining whether the conviction is a qualifying one.” (Id. at p. 460;
accord, People v. Trujillo (2006) 40 Cal.4th 165, 180 [“an appellate court
decision . . . can be relied upon to determine the nature of a prior
conviction because it may disclose the facts upon which the conviction
was based”].)
Here, defendant was required to make a prima facie showing that
he “could not be convicted of first or second degree murder because of
changes to Section 188 or 189” following the enactment of S.B. 1437.
(§ 1170.95, subd. (a)(3), italics added.) Our prior opinion in Gonzales I
makes clear—and defendant does not dispute—that the jury was
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instructed on a theory of culpability for second degree murder based on
defendant acting with malice aforethought as an actual killer. S.B.
1437 did not alter the law regarding criminal liability for this category
of offender. (Stats. 2018, ch. 1015, § 1, subds. (f), (g).)
Indeed, we rejected defendant’s argument on direct appeal that
substantial evidence did not support a theory that he was an actual
killer. We held that “substantial evidence supports the theory of second
degree murder based upon the theory of a homicide committed with
malice aforethought.” (Gonzales I, supra, at p. 6.) Such basis for
defendant’s conviction means that defendant cannot demonstrate, as a
matter of law, that he could not now be convicted of second degree
murder. We shall not disturb our prior holding in this appeal. (See
Lewis, supra, 43 Cal.App.5th at pp. 1138–1139; People v. Garcia (2020)
57 Cal.App.5th 100, 108; People v. Gray (2005) 37 Cal.4th 168, 196–
197.) Therefore, the court did not err in denying the petition for
resentencing.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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