Filed 6/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B308589
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA042216)
v.
STEVEN RUDY GONZALES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court for Los Angeles
County, Steven Blades, Judge. Affirmed.
Kathy R. Moreno, 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 Thomas C. Hsieh, Deputy Attorneys General, for
Plaintiff and Respondent.
Defendant Steven Rudy Gonzales successfully petitioned the trial
court under Penal Code1 section 1170.95 to vacate his second degree
murder conviction, for which he had been sentenced to a term of 15
years to life in prison (plus 25 years to life for a gun enhancement). His
conviction was redesignated as the uncharged target offense, battery
(§ 242), in accordance with section 1170.95, subdivision (e). Although
battery ordinarily is a misdemeanor offense punishable by up to six
months in county jail, the court sentenced defendant under section
186.22, subdivision (d) (hereafter section 186.22(d)), relying upon the
jury’s finding under section 186.22, subdivision (b) that defendant had
committed the criminal act for the benefit of a criminal street gang.
Section 186.22(d), which had not yet been enacted at the time defendant
committed the act for which he was convicted, provides that a person
who is convicted of a misdemeanor or felony offense committed for the
benefit of a gang shall be punished by six months to one year
imprisonment in county jail or by imprisonment in a state prison for
one, two, or three years. The court imposed the high term of three
years.
Defendant appeals, contending that application of section
186.22(d) violated the ex post facto clauses of the United States and
California Constitutions (U.S. Const., art. 1, § 10; Cal. Const., art. I,
§ 9). He also contends that even if no ex post facto violation occurred,
the judgment must be reversed because the trial court failed to exercise
1 Further undesignated statutory references are to the Penal Code.
2
its discretion in choosing to impose an upper term felony sentence
without considering evidence of defendant’s rehabilitation and good
conduct during his long imprisonment. We conclude that when a
defendant is resentenced under a legislative enactment, such as section
1170.95, that gives inmates serving otherwise final sentences the
opportunity to petition to take advantage of ameliorative changes to the
law governing their convictions, there is no ex post facto violation if the
court resentences the defendant under the then existing law so long as
that law does not prescribe a penalty that is greater than the penalty
that was prescribed for the criminal act at the time it was committed.
We also find the trial court did not abuse its discretion in imposing a
three year sentence. Accordingly, we affirm the judgment.
BACKGROUND
In 1998, defendant, along with two fellow gang members, engaged
in a fist fight with rival gang members that ended when one of
defendant’s fellow gang members shot and killed one of the rival gang
members.2 Defendant, who was 16 years old at the time of the crime,
denied knowing that his fellow gang member had a gun, and there was
no evidence that defendant intended to do anything but engage in a fist
2 The details of the events are not particularly relevant for purposes of
this appeal. Further details of the events may be found in our opinions in
defendant’s appeals from the original judgment (People v. Gonzales (2001) 87
Cal.App.4th 1, 5 (Gonzales I) and from the judgment after defendant’s first
degree murder conviction was vacated and he was resentenced on a second
degree murder conviction (People v. Gonzales (Nov. 19, 2019, B291309)
[nonpub. opn.] (Gonzales II)).
3
fight. Defendant was convicted of first degree murder under a natural
and probable consequences theory, and a section 12022.53, subdivision
(d) firearm allegation and a section 186.22, subdivision (b) gang
allegation were found to be true. He was sentenced to 25 years to life in
prison on the murder plus 25 years to life on the firearm enhancement.
In 2017, defendant filed a petition for writ of habeas corpus
seeking to have his first degree murder conviction vacated under People
v. Chiu (2014) 59 Cal.4th 155 (Chiu). After the Los Angeles District
Attorney’s Office filed a concession letter in response to the petition,
stating that defendant was entitled to a reduction of his sentence to
second degree murder under Chiu, the trial court granted the petition
and set the matter for resentencing. Before resentencing, defendant
filed a motion to strike the firearm enhancement, noting that the
Legislature had amended the firearm enhancement statute since his
original sentencing to allow courts to exercise discretion under section
1385 to strike or dismiss the enhancement. Defendant argued the trial
court should exercise its discretion in the present case due to
defendant’s age at the time of the crime, the fact that he did not know
his companion had a gun, and the fact that during the 19 years he had
been in prison he had participated in many different programs, was
close to earning an AA degree, and had been found to be a very low risk
for recidivism, dangerousness, or violence. Although the trial court
found that defendant had “been a model prisoner” and tried to better
himself, it concluded it was not permitted to consider what defendant
had done since the initial sentencing. Therefore, the court denied
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defendant’s motion and sentenced him to 15 years to life on the second
degree murder, plus 25 years to life on the firearm enhancement.
Defendant appealed, raising two issues. First, he argued the trial
court erred when it concluded it could not consider defendant’s post-
conviction conduct in deciding whether to strike the gun enhancement.
Second, he asked this court to vacate his murder conviction based upon
Senate Bill No. 1437 (SB 1437). We agreed with his first contention,
but declined to vacate the murder conviction, concluding that SB 1437
requires that defendant file a section 1170.95 petition in the trial court
to seek such relief. We remanded with instructions to the trial court to
first decide defendant’s section 1170.95 petition (defendant had filed a
petition while the appeal was pending, and the trial court stayed it
until the appeal was resolved) and, if the petition was denied, to
address defendant’s motion to strike the gun enhancement.
On remand, the prosecutor conceded that the second degree
murder conviction could not stand under section 1170.95, and the trial
court (a different judge than the judge who presided over the trial or the
judge who resentenced defendant after his successful habeas petition)
granted the section 1170.95 petition. The court noted that defendant
was not charged with any other crime, and therefore it was unsure
whether it could or should impose any sentence at all. The prosecutor
explained that subdivision (e) of section 1170.95 provides that in cases
in which a petitioner is entitled to relief from a murder conviction, if the
murder had been charged generically and the target offense was not
charged, the petitioner’s conviction must be redesignated as the target
offense for resentencing purposes.
5
Although the prosecutor conceded that the jury at defendant’s
trial was instructed that the target offense was a simple battery (§ 242),
he argued that because the jury found the gang enhancement (under
§ 186.22, subd. (b)(1)) to be true, defendant should be sentenced under
section 186.22(d). He argued that under that section the battery should
be elevated to a felony with a sentence of one, two, or three years; he
noted that if the battery was not elevated to a felony, there was a
mandatory minimum sentence of 180 days. Defense counsel did not
specifically argue that section 186.22(d) should not be applied, but
argued that the facts of the crime did not support a felony sentence on
the battery conviction. The court disagreed, and sentenced defendant to
the high term of three years under section 186.22(d), with credit for
time served, and three years of parole. Defendant timely filed a notice
of appeal from the judgment.
DISCUSSION
A. There Was No Violation of Ex Post Facto or Due Process Principles
“The ex post facto prohibition forbids the Congress and the States
to enact any law ‘which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes additional
punishment to that then prescribed.’ [Citations.] Through this
prohibition, the Framers sought to assure that legislative Acts give fair
warning of their effect and permit individuals to rely on their meaning
until explicitly changed.” (Weaver v. Graham (1981) 450 U.S. 24, 28–29
(Weaver), fns. omitted.) The Supreme Court has identified “two critical
elements [that] must be present for a criminal or penal law to be ex post
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facto: it must be retrospective, that is, it must apply to events occurring
before its enactment, and it must disadvantage the offender affected by
it.” (Id. at p. 29, fns. omitted.)3
In his initial appellant’s opening brief4 in the present case,
defendant contends the felony sentence he received on his redesignated
conviction for battery violated the ex post facto clauses of the United
States and California Constitutions because at the time he committed
the offense, simple battery under section 242 could be punished only as
a misdemeanor for a maximum of six months in county jail (see § 243).
In his reply brief and supplemental opening brief, defendant argues
that even if the court’s application of section 186.22(d) to elevate his
battery conviction from a misdemeanor to a felony was not strictly an ex
post facto violation, it nevertheless violated due process principles
because the elevation of a misdemeanor battery to a felony was not
foreseeable at the time of the offense.5 Defendant’s analysis is faulty.
3 We interpret the ex post facto clause of the California Constitution “no
differently than its federal counterpart.” (People v. Snook (1997) 16 Cal.4th
1210, 1220.)
4 After the Attorney General filed his respondent’s brief, defendant
requested permission to file a supplemental appellant’s opening brief raising
an additional issue (discussed in section B, post), which we granted. The
Attorney General then filed a supplemental respondent’s brief, and defendant
filed a supplemental reply brief.
5 The Attorney General argues that the trial court’s decision to apply
section 186.22(d) in conjunction with sections 242 and 1170.95 was a judicial
act to which the ex post facto clauses do not apply. (Citing People v.
Sandoval (2007) 41 Cal.4th 825, 855 [“the prohibition on ex post facto laws
applies only to statutory enactments, not to judicial decisions”].) Instead, the
Attorney General argues, the court’s decision is to be reviewed “under ‘core
7
In determining whether the imposition of a sentence violates ex
post facto or due process principles, the focus is on the notice provided
to an individual of the potential punishment for criminal acts at the
time those acts were committed. (See Weaver, supra, 450 U.S. at p. 30
[“the ex post facto prohibition . . . forbids the imposition of punishment
more severe than the punishment assigned by law when the act to be
punished occurred”]; People v. Sandoval, supra, 41 Cal.4th at p. 857 [in
determining whether a sentence violates due process “the appropriate
question [is] . . . whether the particular sentence imposed on the
defendant ‘so far disappoints reasonable expectations as to raise due
process concerns’”].) Thus, the proper inquiry here is not what
punishment was assigned to the crime of battery at the time defendant
joined his fellow gang members in a fight against rival gang members.
Rather, the inquiry is what punishment was assigned to the act of a
gang member joining in a fight against rival gang members in which
one of those rivals is shot and killed. And in 1998, when defendant
engaged in the fist fight at issue, the punishment assigned for that act
was 15 years to life plus 25 years to life for second degree murder.6
Therefore, defendant was not disadvantaged by the retroactive
due process concepts of notice, foreseeability, and, in particular, the right to
fair warning.’” (Ibid.)
6 Although defendant originally was found guilty of first degree murder
and sentenced to 25 years to life plus 25 years to life, our Supreme Court
subsequently found it unconstitutional to convict a person who was neither
the killer nor a direct aider and abettor of first degree murder on a natural
and probable consequences theory. (Chiu, supra, 59 Cal.4th 155.)
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application of section 186.22(d), resulting in the imposition of a three
year sentence.
The fact that subsequent legislation changed the law applicable to
the criminal act in question to make that act no longer eligible to be
charged as second degree murder with a 15 years to life sentence does
not change the analysis. While SB 1437 eliminated the natural and
probable consequences theory for second degree murder for individuals
who were not the actual killers or direct aiders and abettors, it did not
automatically recall or vacate by operation of law any previously
imposed sentence for second degree murder. Instead, it allows those
who were convicted before its enactment to petition to vacate the
sentence. And, it specifically provides that if relief is granted and the
petitioner’s murder conviction is vacated, he or she will be resentenced
on the remaining charges and/or, in some circumstances, on the
previously uncharged target offense or underlying felony, so long as the
new sentence is based upon the record of conviction and is not greater
than the initial sentence. (§ 1170.95, subds. (d)(1), (d)(3), (e).) Thus, SB
1437, in granting leniency to certain individuals who have been
convicted of murder, gives notice that the individual may be
resentenced on criminal offenses that were not charged but are
supported by the record, with the limitation that the new sentence
cannot exceed the original sentence.
To conclude, we hold that when a murder conviction is vacated
under section 1170.95, it does not violate ex post facto or due process
principles for the court to retroactively apply a sentencing provision
that is supported by the record of conviction when resentencing the
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defendant, as long as the new sentence is no more severe than the
punishment assigned by law when the act to be punished occurred, and
is not greater than the defendant’s original sentence.
B. The Court Did Not Abuse Its Discretion
Defendant contends in his supplemental appellant’s opening brief
that “the trial court got so swept away by the prosecutor’s juggernaut
suggestion that the gang statute could be used to sentence [defendant]
as a felon that it overlooked its duty to exercise its discretion” in
determining whether to impose a misdemeanor or a felony sentence,
and whether to impose the lower, middle, or high term. He argues that,
based upon his post-conviction conduct in prison, all of the factors that
should be considered in determining whether to sentence a “wobbler” as
a misdemeanor—i.e., whether “‘the rehabilitation of the convicted
defendant either does not require, or would be adversely affected by,
incarceration in a state prison as a felon’” (People v. Park (2013) 56
Cal.4th 782, 790)—weighed heavily in favor of a misdemeanor sentence.
Therefore, he contends the court necessarily failed to exercise its
discretion. We disagree.
Importantly, defense counsel did not argue to the trial court that
it should take into consideration defendant’s post-conviction conduct in
determining whether to sentence the battery as a misdemeanor or a
felony, nor did he offer any evidence of that conduct. Therefore, we
could find that defendant has forfeited this issue. (People v. Kidane
(2021) 60 Cal.App.5th 817, 826; see also People v. Scott (1994) 9 Cal.4th
331, 353.) But in any event, we conclude defendant has failed to
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demonstrate that the court did not exercise or abused its discretion in
sentencing defendant. In fact, the record shows the contrary.
The record shows that the court was informed that section
186.22(d) “can elevate a misdemeanor to a felony [with a sentence of
one, two, or three years]. Alternatively, if it’s not elevated to a felony,
it’s a mandatory minimum of 180 days as a misdemeanor.” The court
also was informed (by defense counsel) of the general facts of the crime:
that defendant got out of the car he was riding in because two rival
gang members flashed gang signs at the car, so he and another person
went to fight with the rivals, during which fight one of the rivals was
shot and killed. Finally, the court was aware that defendant had
already served 21 years on his original sentence, and that any sentence
he imposed would be significantly less than the time he already served.
In deciding to impose a three-year sentence, the court
acknowledged that if the fight had not been for the benefit of a gang,
the appropriate sentence would be a misdemeanor. But based upon the
facts of the crime, the court determined that the high term of three
years was appropriate. We find the court did not abuse its discretion in
reaching this conclusion.
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DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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