Filed 5/20/22 P. v. Gonzales CA2/4
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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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. OPINION FOLLOWING
TRANSFER FROM
ROBERT GONZALES, SUPREME COURT
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Stephen A. Marcus, Judge. Reversed and remanded.
Deborah L. Hawkins, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Melissa A. Mandel, Supervising Deputy Attorney General, Lynne G.
McGinnis and Joseph C. Anagnos, Deputy Attorneys General, for
Plaintiff and Respondent.
This appeal is from the trial court’s summary denial of defendant
and appellant Robert Gonzales’s petition under Penal Code section
1170.95 seeking resentencing on his conviction for second degree
murder.1 We affirmed the court’s summary denial in a previous opinion
(People v. Gonzales (Jan. 26, 2021, B304024) [nonpub. opn.]
(Gonzales II)). Thereafter, the Supreme Court granted review and
transferred the matter back to us with directions to vacate the decision
and reconsider the cause in light of Senate Bill No. 775 (Stats. 2021, ch.
551) (S.B. 775) and People v. Lewis (2021) 11 Cal.5th 952 (Lewis).
We vacate our prior opinion in Gonzales II and, after
reconsidering the cause, agree with the parties that the trial court erred
by summarily denying appellant’s petition for resentencing. We reverse
the order and remand the matter to the trial court with directions to
issue an order to show cause and proceed in accordance with section
1170.95, subdivision (d).
FACTUAL BACKGROUND2
1. Prosecution Evidence
Appellant 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
1 Undesignated statutory references are to the Penal Code.
2 We recite the factual and procedural background from Gonzales II and
appellant’s direct appeal (People v. Gonzales (Aug. 13, 2013, B237860)
[nonpub. opn.] (Gonzales I)).
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murder of Cheryl Green. In separate proceedings, Fajardo, Daniel
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 a 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 appellant’s trial, gang experts established that despite being a
member of a different gang (the Fries Street gang), appellant 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 appellant
(whom Covarrubias had never met before) and an unidentified woman.
After 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 appellant—
discussed the matter together. Pimentel stated, “[w]e’re gonna [sic]
take care of Christopher Ash because of some snitching.” Everyone
agreed that Aguilar would bring Ash to the garage, where he would be
killed. Appellant offered to drive Aguilar to pick up Ash, and before
leaving, appellant gave Covarrubias and Pimentel a knife.5
Approximately 20 minutes later, appellant 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 appellant,
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.
Pimentel stabbed Ash in the chest, and Covarrubias stabbed Ash in the
stomach before vomiting and dropping the knife.
5 Covarrubias provided ambiguous and conflicting statements about
appellant furnishing a knife.
4
Appellant 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 appellant, stayed behind to clean up the garage with water
and paint thinner. The police discovered Ash’s body the same evening.
The body sustained 11 stab wounds to the chest and 32 to the abdomen.
The prosecution played for the jury a February 7, 2007 interview
between appellant and the police wherein he provided inconsistent and
false statements about the murder.
2. Defense Evidence
Appellant testified on his own behalf and denied any involvement
in Ash’s murder. Appellant denied hearing a conversation about
planning to stab someone. He agreed to pick up Aguilar’s “friend,” and
when they arrived at the garage, appellant saw someone hit Ash in the
back of the head with an object. At that point, appellant left and went
inside Silva’s residence.
3. Information, Verdict, and Sentence
Appellant 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)).
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The jury was instructed on multiple theories of culpability for
murder, including first degree premeditated murder, second degree
express malice murder, and second degree murder based on 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 appellant of
first degree murder, but convicted him of second degree murder. The
jury found the gang enhancement to be true, and found the personal use
of a deadly weapon not true. Appellant was sentenced to 15 years to
life.
PROCEDURAL BACKGROUND
Defendant challenged the sufficiency of the evidence to support
his murder conviction in Gonzales I. He argued that the jury, by
acquitting him of first degree murder, “necessarily rejected Mr.
Covarrubias’ testimony” that appellant was part of a group that agreed
to kill Ash. Appellant also argued that 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 he
intended to aid and abet an assault or witness intimidation. (Gonzales
I, supra, at p. 5.)
We rejected these arguments and affirmed appellant’s conviction.
Without determining whether the evidence supported a natural and
probable consequences theory, we concluded that “substantial evidence
support[ed] the theory of second degree murder based upon the theory
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of a homicide committed with malice aforethought.” (Gonzales I, supra,
at p. 6.) Our conclusion was based on “more than ample evidence” from
which the jury reasonably could have concluded that after appellant,
Aguilar and Ash returned to the garage and Fajardo hit Ash on the
back of the head, appellant “joined in the fatal assault upon Ash by
stabbing him multiple times.” (Ibid., 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, 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 (Stats. 2018,
ch. 1015) (S.B. 1437), appellant 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, appellant 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
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probable consequences doctrine; and he could not now be convicted of
second degree murder because of the changes made to sections 188 and
189. Appellant requested that counsel be appointed on his behalf.
The trial court appointed counsel for appellant, received briefing
by the parties, and held a hearing on his petition. Following the
hearing, the trial court summarily denied the petition. Consistent with
our prior holding in Gonzales I, the court reasoned that appellant had
failed to make a prima facie showing because the jury could have
convicted him of second degree malice aforethought murder. The court
also reasoned that under the facts of the case, appellant could have
been convicted as an aider and abettor to murder and conspiracy to
commit murder even though the jury was never presented with either
theory.
We affirmed the order summarily denying appellant’s petition in
Gonzales II. In our decision, we found that the trial court had erred by
engaging in judicial factfinding to find appellant culpable of theories
that were neither charged nor presented to the jury. (Gonzales II,
supra, at p. 5.) However, we found the error to be harmless based on
our prior holding in Gonzales I, in which we found substantial evidence
to support appellant’s conviction based on second degree malice
aforethought murder. (Gonzales II, supra, at pp. 5–6.)
Appellant petitioned for review in the Supreme Court. On
February 23, 2022, the Supreme Court granted review and transferred
the matter back to this court with directions to vacate Gonzales II and
reconsider the cause in light of S.B. 775 and Lewis, supra, 11 Cal.5th
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952. In supplemental briefing filed with this court, appellant and the
Attorney General agree that we must reverse and remand the order
summarily denying appellant’s petition.
DISCUSSION
Having reconsidered the cause as directed, we agree with the
parties and reverse and remand the trial court’s order.
The current version of section 1170.95 permits those convicted of
murder under the natural and probable consequences (or other theory
under which malice is imputed based solely on the person’s
participation in a crime) to petition the sentencing court to vacate their
conviction, and to be resentenced on any remaining counts. (See
§§ 1170.95, subd. (a), 188, 189.)
Upon the filing of a facially sufficient petition, the court must
appoint counsel for the petitioner, if requested, allow the parties to file
briefs, and determine whether the petitioner has made a prima facie
showing of entitlement to relief. (§ 1170.95, subd. (c); see Lewis, supra,
11 Cal.5th at pp. 962–963, 966.)
During this prima facie stage of review, the trial court “may look
at the record of conviction . . . to determine whether a petitioner has
made a prima facie” showing. (Lewis, supra, 11 Cal.5th at p. 971.)
However, “the prima facie inquiry under subdivision (c) is limited. . . .
‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary hearing.’
[Citations.]” (Ibid.) Appellate opinions, generally considered to be part
of the record of conviction, “‘might not supply all answers’” during this
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preliminary stage of review. (Id. at p. 972, quoting People v. Woodell
(1998) 17 Cal.4th 448, 457.) Despite the trial court’s ability to review a
petitioner’s record of conviction at this stage, the court “should not
engage in ‘factfinding involving the weighing of evidence or the exercise
of discretion.’ [Citation.]” (Lewis, supra, at p. 972.)
Following the decision in Lewis, the Legislature enacted S.B. 775
in part to codify the holding in Lewis regarding “the standard for
determining the existence of a prima facie case,”6 and to reaffirm that
the “proper burden of proof at a resentencing hearing under [§ 1170.95]
is proof beyond a reasonable doubt.” (Stats. 2021, ch. 551, § 1.) As
amended by S.B. 775, section 1170.95, subdivision (d)(3), which governs
the proceedings following the issuance of an order to show cause,
provides: “A finding that there is substantial evidence to support a
conviction for murder . . . is insufficient to prove, beyond a reasonable
doubt, that the petitioner is ineligible for resentencing.”
In light of the foregoing, we agree with the parties that our
holding in Gonzales I that substantial evidence supported a theory of
second degree malice aforethought murder does not refute, as a matter
6 It is unclear what the Legislature intended when it declared that S.B.
775 would codify the holding of Lewis regarding “the standard for
determining the existence of a prima facie case.” The Lewis Court never
formulated a standard for what constitutes a prima facie showing of
entitlement to relief: “We are not asked to resolve what is substantively
required under subdivision (a)(3); here we only address if, in assessing
whether the petitioner has made a prima facie case for relief under section
1170.95, subdivision (c), the court may consider documents in the record of
conviction if they are relevant to the underlying substantive question.”
(Lewis, supra, 11 Cal.5th at p. 972, fn. 6.)
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of law, appellant’s assertion at the prima facie stage of review that he
could not be convicted under the current law. Our prior holding
indicates only that the record contained enough evidence to support a
still-valid theory of second degree murder. It does not, as a matter of
law, refute appellant’s assertion that he is eligible for relief. (See
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1008 [“[i]n assessing how
the evidence reasonably could have been evaluated by the trier of fact,
an appellate court . . . must indulge reasonable inferences that the trier
of fact might have drawn from the evidence”].)
Moreover, there is no readily ascertainable fact in the record of
conviction to demonstrate that the jury did not rely on the natural and
probable consequences doctrine. (See People v. Secrease (2021) 63
Cal.App.5th 231, 244, 246–247, rev. granted, S268862, June 30, 2021.)
In sum, we conclude that the trial court erred by summarily
denying appellant’s petition for resentencing. We reverse the order
denying appellant’s petition, and remand to the trial court with
directions to issue an order to show cause and proceed in accordance
with section 1170.95. (See Lewis, supra, 11 Cal.5th at p. 962.)
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DISPOSITION
The order summarily denying appellant’s petition for resentencing
under section 1170.95 is reversed. The matter is remanded to the trial
court with directions to issue an order to show cause and proceed in
accordance with section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, Acting P. J.
We concur:
COLLINS, J.
CURREY, J.
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