Filed 2/1/22 P. v. Gonzalez CA2/7
Opinion following transfer from Supreme Court
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B307148
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA056995)
v.
DANIEL GONZALEZ, SR.,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles
County, Hayden A. Zacky, Judge. Reversed and remanded with
directions.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General, Susan
Sullivan Pithey, Assistant Attorney General, Zee Rodriguez,
Wyatt Bloomfield and Michael C. Keller, Deputy Attorneys
General for Plaintiff and Respondent.
_________________
In 2010 a jury convicted Daniel Gonzalez, Sr., of two counts
of attempted willful, deliberate, and premeditated murder (Pen.
Code, §§ 187, subd. (a), 664)1 and two counts of assault with a
firearm (§ 245, subd. (a)(2)) arising from a gang-related shooting
of two men. The jury also found true multiple firearm and gang
enhancement allegations. The trial court sentenced Gonzalez to
two consecutive life terms plus 45 years for the firearm
enhancements. We affirmed. (People v. Blanco (Aug. 15, 2012,
B227650) [nonpub. opn.].)
In June 2020 Gonzalez, representing himself, filed a
petition for resentencing seeking to vacate his attempted murder
conviction and be resentenced pursuant to section 1170.95. The
trial court summarily denied Gonzalez’s petition without
appointing counsel on the basis Gonzalez was ineligible for
resentencing as a matter of law because he was not convicted of
murder. We again affirmed. (People v. Gonzalez (July 19, 2021,
B307148) [nonpub. opn.].)
The Supreme Court granted review and transferred the
case to us with directions to vacate our decision and reconsider
Gonzalez’s appeal in light of amendments to section 1170.95 by
Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551,
§ 2) (Senate Bill 775), effective January 1, 2022. In supplemental
briefing Gonzalez again argues, the Attorney General now
concedes, and we agree the superior court’s order denying
Gonzalez’s petition should be reversed and the case remanded to
the superior court for the court to appoint counsel for Gonzalez
1 Further statutory references are to the Penal Code.
2
and perform a prima facie review of Gonzalez’s petition pursuant
to section 1170.95, subdivision (c).
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437) eliminated the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder and significantly limited the scope of the felony-murder
rule. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v.
Gentile (2020) 10 Cal.5th 830, 842-843, 847-848.) The legislation
also provided a procedure in new section 1170.95 for an
individual convicted of felony murder or murder under a natural
and probable consequences theory to petition the sentencing
court to vacate the conviction and be resentenced on any
remaining counts if he or she could not have been convicted of
murder under Senate Bill 1437’s changes to sections 188 and 189.
(Lewis, at p. 959; Gentile, at pp. 842-843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief based on the requirements of
subdivision (a), the court must appoint counsel to represent the
petitioner upon his or her request pursuant to section 1170.95,
subdivision (b)(3). Further, upon the filing of a facially sufficient
petition, the court must direct the prosecutor to file a response to
the petition and permit the petitioner to file a reply, and the
court must determine whether the petitioner has made a prima
facie showing that he or she is entitled to relief. (See § 1170.95,
subd. (c).) Where a petitioner carries the burden of making the
requisite prima facie showing he or she falls within the
provisions of section 1170.95 and is entitled to relief, the court
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must issue an order to show cause and hold an evidentiary
hearing to determine whether to vacate the murder conviction
and resentence the petitioner on any remaining counts.
(§ 1170.95, subd. (d)(1).)
At the time Gonzalez filed his petition, the Courts of
Appeal agreed that, by its express terms, section 1170.95 as
enacted by Senate Bill 1437 did not provide relief for a petitioner
convicted of attempted murder. Section 1170.95, subdivision (a),
as amended by Senate Bill 775, now provides for relief where the
petitioner was convicted of “attempted murder under the natural
and probable consequences doctrine” and “could not presently be
convicted of . . . attempted murder because of changes to Section
188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)
& (a)(3).)
Gonzalez contends and the People concede we should
reverse the superior court’s denial of Gonzalez’s petition as to his
attempted murder convictions and remand for consideration of
the petition in light of Senate Bill 775 because the jury was
instructed on the natural and probable consequences doctrine
and section 1170.95 now applies to attempted murder. We agree
and reverse the order denying Gonzalez’s petition and remand
with directions for the court to appoint counsel for Gonzalez, to
order the prosecutor to file a response to the petition and provide
Gonzalez an opportunity to file a reply, and for the court to hold a
hearing to determine whether Gonzalez has made a prima facie
showing he is entitled to relief under amended section 1170.95,
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and if he has, to issue an order to show cause and set an
evidentiary hearing.2
DISPOSITION
The order denying Gonzalez’s petition for resentencing
under section 1170.95 is reversed. The matter is remanded for
the superior court to appoint counsel for Gonzalez, order the
prosecutor to file a response to the petition, provide Gonzalez an
opportunity to file a reply, and determine whether Gonzalez has
made a prima facie case for relief pursuant to section 1170.95,
subdivision (c).
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
2 In light of the People’s concession that the jury was
instructed on the natural and probable consequences doctrine,
the parties on remand may elect to stipulate to the issuance of an
order to show cause and holding of an evidentiary hearing.
5