Filed 6/7/22 P. v. Gonzales CA2/4
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B301485
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.PA042487)
v.
ROBERT GONZALES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, David W. Stuart, Judge. Reversed and
remanded with instructions.
Edward J. Haggerty, 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, Charles S. Lee, Charles J.
Sarosy, Daniel C. Chang and John Yang Deputy Attorneys
General, for Plaintiff and Respondent.
After being instructed on aiding and abetting principles
and the felony murder theory, a jury convicted appellant Robert
Gonzales of first degree murder and found true a robbery-murder
special circumstance. We affirmed on direct appeal. (People v.
Gonzales (Feb. 27, 2007, B188161) [nonpub. opn.] (Gonzales I).)
Appellant later filed a petition to vacate his conviction and
for resentencing under Penal Code section 1170.95.1 The trial
court appointed counsel for appellant but denied his petition at
the prima facie stage. Relying on the facts recited in Gonzales I,
the trial court found appellant ineligible for relief as a matter of
law because he directly aided and abetted the murder, was a
major participant in the crime, and acted with reckless
indifference. Appellant challenged the order on appeal. We
affirmed, concluding appellant could still be convicted of murder
because Gonzales I found substantial evidence supported the
murder conviction on an aiding and abetting theory. (People v.
Gonzales (Dec. 29, 2020, B301485) [nonpub. opn.] (Gonzales II).)
The Supreme Court granted review and subsequently
transferred the matter back to us with directions to vacate
Gonzales II 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 Gonzales II. After reconsidering the cause with
the aid of supplemental briefing from the parties, we conclude the
order denying appellant’s petition must be reversed. After S.B.
775, a finding that there is substantial evidence to support a
conviction for murder is insufficient to prove, beyond a
reasonable doubt, that a section 1170.95 petitioner is ineligible
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
for relief even at the evidentiary hearing stage. (See § 1170.95,
subd. (d)(3).) Our findings in Gonzales I that substantial
evidence supported the murder conviction and robbery-murder
special circumstance finding accordingly are not preclusive of
relief as a matter of law. Nor is the special circumstance finding
itself, which the jury made prior to Supreme Court cases
clarifying the meaning of the special circumstance statute, People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark). (E.g., People v. Torres (2020) 46
Cal.App.5th 1168, 1173 (Torres), review granted June 24, 2020,
S262011, overruled in part by Lewis, supra, 11 Cal.5th at p. 963.)
Moreover, Lewis clarified that a trial court may not engage in
factfinding involving the weighing of evidence or the exercise of
discretion at the prima facie review stage. The trial court thus
erred by finding that appellant was an aider and abettor and
major participant who acted with reckless indifference to human
life. For all these reasons, we reverse the order denying
appellant’s petition 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.
FACTUAL BACKGROUND2
On September 29, 2002, appellant attended a party in the
backyard of a house in Pacoima. Joe Gonzalez (Gonzalez), Victor
2 Our factual narrative is drawn from the factual recitation
in Gonzales I. We note that appellant relies on the same
recitation in his opening brief, although he states that he does so
“without conceding that it is necessarily complete” or “agree[ing]
that the following facts are the only facts that might have been
relevant to whether he is entitled to relief under section 1170.95.”
3
Zapata, and brothers Jamul Thomas and Teevaughn Thomas
were also in attendance.3
Around midnight, Zapata and Jamul went to the side yard,
where two groups of men were arguing. Appellant was there, and
Zapata saw him pull out a shotgun and cock it. Zapata and
Jamul ran from the party, but returned to find Teevaughn.
Zapata and Jamul waited for Teevaughn in the street in
front of the house. While they were waiting, an SUV pulled up.
Zapata and Jamul talked with the occupants of the SUV. Zapata
then heard arguing behind him. He turned and saw Jamul
arguing with Gonzalez; the men were cursing at each other.
Zapata saw appellant standing 10 to 12 feet behind Gonzalez at
an angle, with his shotgun out. After he saw appellant, Zapata
pulled Jamul toward the middle of the street.
As Zapata pulled Jamul away, Gonzalez drew a handgun
and pointed it at Jamul's head. Jamul batted the gun away
several times and told Gonzalez to put the gun down and fight
like a man. Gonzalez asked Jamul if he was afraid to die and
demanded the chain Jamul wore around his neck. Jamul removed
the chain and held it out. Gonzalez grabbed the chain. He then
shot Jamul in the chest.
Zapata reached toward Jamul, and Gonzalez pointed the
gun at him and demanded his chain as well. As Zapata was
taking off his chain, Gonzalez shot at him and missed. Appellant
remained in the same general area throughout the entirety of the
incident, angled behind Gonzalez, with his shotgun out.
When Zapata realized he had not been hit, he ran down the
sidewalk. Gonzalez fired at him several more times. A group of
3 We refer to the Thomas brothers by their first names to
avoid confusion. No disrespect is intended.
4
men standing behind appellant yelled “Astoria, Astoria” as
Zapata ran away.4 Zapata also heard bullets flying past his head
as he ran. Teevaughn, who was running behind him, shouted
that he too had been hit. Both Zapata and Teevaughn made it to
the car. Jamul died of a single gunshot wound.
Police recovered three .22 caliber casings and one shotgun
shell from the area of the shooting. The shotgun shell had been
fired from a shotgun later recovered from appellant’s apartment.
PROCEDURAL HISTORY
I. Trial
Appellant and Gonzalez were jointly charged with murder
in the commission of a robbery (§§ 187, subd. (a), 190.2, subd.
(a)(17)) and attempted premeditated murder (§§ 664, 187, subd.
(a)). The information also included firearm (§ 12022.53, subds.
(b)-(e)) and gang (§ 186.22, subd. (b)(1)) allegations, and a felon in
possession charge against appellant (former § 12021, subd.
(a)(1)).
Appellant and Gonzalez were tried jointly. The jury found
Gonzalez guilty of second degree murder and attempted murder,
but rejected the gang and firearm allegations. The jury found
appellant guilty of the felon in possession charge. It was unable
to reach a verdict on the murder and attempted murder charges
and related allegations.
The prosecution subsequently filed an amended
information against appellant, adding an additional count of
robbery (§ 211) to the counts and allegations mistried during the
first trial. A second jury found appellant guilty of first degree
4 A gang expert testified that Astoria Gardens Locos was a
gang, and that appellant had tattoos demonstrating allegiance
with the Astoria Gardens Locos.
5
murder with a robbery special circumstance, attempted murder,
and robbery. It also found true the firearm and gang
enhancements. The trial court sentenced appellant to life
without the possibility of parole for the special circumstances
murder, plus 25 years to life for the firearm enhancement on that
count. Appellant also received a life term for the attempted
murder. The court imposed concurrent sentences for the robbery
and felon in possession convictions, and stayed the gang
enhancement.
II. Direct Appeal
On direct appeal, appellant successfully challenged his
conviction for attempted murder. We affirmed both his murder
conviction and the special circumstance finding, however. We
rejected his argument that collateral estoppel should bar the
murder conviction, concluding he was “a direct participant in the
crime.” We also rejected his contentions that the murder
conviction and special circumstance finding were not supported
by substantial evidence. We observed that the prosecution case
“rested on aiding and abetting and felony-murder theories,” but
not on the natural and probable consequences doctrine. We
ultimately held there was sufficient evidence to support his
conviction as an “as an aider and abettor of murder and robbery,”
and that the jury could conclude he “was a major participant in
the incident and that he acted with reckless indifference to
human life.” The Supreme Court denied appellant’s petition for
review. (People v. Gonzales, S151594).
III. Section 1170.95 Petition
On March 11, 2019, appellant filed a form section 1170.95
petition to vacate his murder conviction and for resentencing. He
checked boxes indicating that he was convicted pursuant to the
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felony-murder theory or the natural and probable consequences
doctrine and could no longer be so convicted due to changes in the
law. He also checked boxes indicating that he did not act with
the intent to kill or otherwise assist the killer in committing the
murder, and that he was not a major participant in the crime or
did not act with reckless indifference to human life. Appellant
requested appointment of counsel.
On May 10, 2019, the prosecution filed a substantive
opposition.5 It argued the petition should be denied because
appellant was a major participant who acted with reckless
indifference to human life, even under the updated standards of
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522.
The prosecution also pointed to Gonzales I’s holding that
sufficient evidence supported appellant’s conviction on an aiding
and abetting theory, and attached a copy of Gonzales I.
The court appointed counsel for appellant. Appellant’s
counsel filed a reply in which he argued that the record before the
trial court contained insufficient evidence to support a finding
that appellant was a major participant who acted with reckless
indifference to human life under Banks and Clark. The
prosecution subsequently filed an additional response arguing
that Gonzales I found appellant was an aider and abettor and a
major participant who acted with reckless indifference to human
life.
The court held a hearing on September 26, 2019.
Appellant’s counsel argued that the court could not rely on the
5 It also filed a separate opposition arguing that section
1170.95 and its enabling legislation were unconstitutional. Only
the substantive opposition is relevant here; the trial court did not
reach the constitutional issue.
7
jury’s findings that appellant was a major participant who acted
with reckless indifference to human life, or Gonzales I’s
discussion thereof, because they pre-dated Banks and Clark. The
prosecution responded that the jury also found, and Gonzales I
affirmed, that appellant was a direct aider and abettor, such that
“there’s no theory upon which the court would [sic] grant defense
motion.” Appellant’s counsel declined the court's invitation to
respond to that argument.
The court concluded appellant was not eligible for
resentencing under section 1170.95. It stated, “Evidence is
clearly overwhelming that he was a direct aider and abetter [sic]
and that he was a major participant with reckless indifference.
He stood guard with a shotgun, and while the robbery and
murder took place right in front of him, backing up the actual
shooter. It's just - - it's not really even a close call. So this is not
appropriate for resentencing under SB 1437.”
Appellant timely appealed. We affirmed the trial court’s
ruling, concluding appellant was ineligible for relief as a matter
of law because Gonzales I held there was substantial evidence to
convict him under an aiding and abetting theory.
Appellant filed a petition for review, which the Supreme
Court granted and held pending resolution of Lewis. (See People
v. Gonzales, No. S266887.) The Supreme Court issued a decision
in Lewis, supra, 11 Cal.5th 952 in July 2021. Shortly thereafter,
the Legislature enacted and the governor signed into law Senate
Bill No. 775 (Stats. 2021, ch. 551), which amended and clarified
several subdivisions of section 1170.95. Senate Bill No. 775 took
effect January 1, 2022.
On February 23, 2022, the Supreme Court transferred the
matter to this court with directions to vacate Gonzales II and
8
reconsider the cause in light of Lewis, supra, 11 Cal.5th 952, and
Senate Bill No. 775. Appellant and respondent filed
supplemental briefing addressing those and other new
authorities.
DISCUSSION
I. Legal Framework
Senate Bill No. 1437 eliminated murder liability under
theories of imputed malice other than the felony murder rule,
which it significantly narrowed by amending sections 188 and
189. (§§ 188, subd. (a)(3), 189, subd. (e); Stats. 2018, ch. 1015, §§
2, 3.) Senate Bill No. 1437 also added section 1170.95 to the
Penal Code. (Stats. 2018, ch. 1015, § 4.) As amended by Senate
Bill No. 775, section 1170.95 permits a person who was convicted
of murder, attempted murder, or manslaughter under any theory
of imputed malice, including the felony-murder theory, but who
could no longer be convicted due to Senate Bill No. 1437’s
changes to the law, to petition the sentencing court to have the
conviction vacated and to be resentenced on any remaining
counts. (§ 1170.95, subd. (a); Stats. 2021, ch. 551, § 2.)
A section 1170.95 petition must contain the petitioner’s
declaration that he or she is eligible for resentencing, the
superior court case number and year of the relevant conviction,
and an indication whether the petitioner requests the
appointment of counsel. (§ 1170.95, subd. (b)(1).) After
ascertaining that the petition contains the required information,
the trial court must appoint counsel for the petitioner if he or she
requested it. (§ 1170.95, subd. (b)(3).) The trial court then must
allow the parties to file briefs and hold a hearing to determine
whether the petitioner has made a prima facie showing of
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entitlement to relief. (§ 1170.95, subd. (c); Lewis, supra, 11
Cal.5th at pp. 960-968.)
“[A]t the prima facie stage, a petitioner’s allegations should
be accepted as true, and the court should not make credibility
determinations or engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’” (Lewis, supra, at p. 974,
quoting People v. Drayton (2020) 47 Cal.App.5th 965, 980
(Drayton).) The prohibition against factfinding at the prima facie
stage is subject to a limited exception: “‘if the record, including
the court’s own documents, “contain[s] facts refuting the
allegations made in the petition,” then “the court is justified in
making a credibility determination adverse to the petitioner.’””
(Lewis, supra, 11 Cal.5th at 971, quoting Drayton, supra, 47
Cal.App.5th at p. 979.) “However, this authority to make
[factual] determinations without conducting an evidentiary
hearing . . . is limited to readily ascertainable facts from the
record (such as the crime of conviction). . . .” (Drayton, supra, 47
Cal.App.5th at p. 980.) The record, for this purpose, generally
includes appellate opinions such as Gonzales I. (Lewis, supra, 11
Cal.5th at p. 972.) The probative value of an appellate opinion is
case-specific. (Ibid.)
“‘[T]he prima facie bar was intentionally . . . set very low.’”
(Lewis, supra, 11 Cal.5th at p. 972.) If a petitioner clears it, the
trial court must issue an order to show cause. (§ 1170.95, subd.
(c).) The court then holds a hearing to determine whether to
vacate the petitioner’s conviction and resentence him or her on
any remaining counts. (Id., subd. (d)(1).) At the hearing, “the
burden of proof shall be on the prosecution to prove, beyond a
reasonable doubt, that the petitioner is guilty of murder or
attempted murder under California law as amended by the
10
changes to Section 188 or 189 made effective January 1, 2019.”
(Id., subd. (d)(3).) The court may consider currently admissible
evidence that was admitted at a prior hearing or trial involving
the petitioner, and both sides may also offer new or additional
evidence. (Ibid.) “A finding that there is substantial evidence to
support a conviction for murder, attempted murder, or
manslaughter is insufficient to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” (Ibid.) “If the
prosecution fails to sustain its burden of proof, the prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Ibid.) The court must
vacate the petitioner’s conviction if a factfinder previously found
the petitioner was not a major participant in the crime or did not
act with reckless indifference to human life. (Id., subd. (d)(2).)
II. Analysis
We conclude the trial court erred in denying appellant’s
section 1170.95 petition without issuing an order to show cause.
Gonzales I indicated that appellant’s jury was instructed on the
felony-murder theory, and his petition alleged he was not the
actual killer, did not act with the intent to kill as an aider and
abettor, was not a major participant in the underlying robbery,
and did not act with reckless indifference to human life. If these
allegations are true, appellant could no longer be convicted of
murder under section 189, subdivision (e), and is entitled to
resentencing. (See § 1170.95, subd. (a)(3); Stats. 2018, ch. 1015,
§ 3.) The court was required to accept appellant’s allegations as
true, and to issue an order to show cause, unless readily
ascertainable facts from the record of conviction refuted his
allegations as a matter of law. (See Drayton, supra, 47
11
Cal.App.5th at 980; Lewis, supra, 11 Cal.5th at 974.) Nothing in
the record of conviction did so.
Our conclusion in Gonzales I that sufficient evidence
supported appellant’s conviction does not establish that appellant
is ineligible for resentencing as a matter of law. (§ 1170.95, subd.
(d)(3).) Nor does our conclusion that he was “a direct participant”
in the murder. The extent of appellant’s involvement in the
crime is a factual question that cannot properly be resolved at the
prima facie stage of review. Moreover, appellant alleged in his
petition—and argues here — that he did not act with the intent
to kill; that assertion is not squarely foreclosed by anything in
the record and therefore should have been credited. This is not to
say we accept appellant’s contention that the trial court could not
rely on the appellate opinion; we conclude only that nothing in
that opinion precluded relief.
We also disagree with the trial court’s conclusion (and
respondent’s contention) that appellant’s allegations were refuted
as a matter of law by the felony-murder special circumstance
finding that pre-dated both Banks and Clark. Banks established
an analytical framework for determining whether a defendant is
a “major participant” in an underlying felony for purposes of
establishing the felony-murder special circumstance, while Clark
focused on what it means to act with “‘reckless indifference to
human life’” in connection with the same issue. (See Banks,
supra, 61 Cal.4th at pp. 803-804; Clark, supra, 63 Cal.4th at pp.
614-623.) Whether those cases “merely clarified the law as it
always was” (People v. Simmons (2021) 65 Cal.App.5th 739, 747,
review granted Sept. 1, 2021, S270048), or substantively changed
it such that previous special circumstances findings may no
12
longer be valid has divided the Courts of Appeal and is pending
review in the Supreme Court.6
Cognizant of the conflicts in the law, we continue to follow
the Torres line of cases. (See Torres, supra, 46 Cal.App.5th 1168.)
Under those cases, a special circumstance finding that pre-dates
Banks and Clark does not preclude a petitioner’s eligibility for
relief under section 1170.95 as a matter of law, because “‘the
factual issues that the jury was asked to resolve [before Banks
and Clark were decided] are not the same factual issues our
Supreme Court has since identified as controlling.’” (People v.
Mejorado (2022) 73 Cal.App.5th 562, 571, review granted March
23, 2022, S273159, quoting People v. Smith (2020) 49 Cal.App.5th
85, 93, review granted July 22, 2020, S262835; see also Torres,
supra, 46 Cal.App.5th at p. 1179.)
Respondent contends that even under Torres, any error by
the trial court is harmless “if this Court holds that a petitioner is
ineligible for relief under a purely legal Banks/Clark analysis.”
In so arguing, respondent suggests we may, in the first instance,
engage in a de novo review to determine whether appellant
committed the underlying felonies as a major participant who
acted with reckless indifference under the standards set forth in
Banks and Clark. We disagree. Lewis clarified that a trial court’s
authority at the prima facie stage of review is “limited,” in that it
may not “engage in ‘factfinding involving the weighing of
6 The Supreme Court granted review in People v. Strong
(Dec. 18, 2020, C091162) [nonpub. opn.], review granted March
10, 2021, S266606, to resolve the issue whether a felony-murder
special circumstance finding made before Banks and Clark
precludes a petitioner from making a prima facie showing of
eligibility for relief under section 1170.95. (People v. Strong,
S266606.)
13
evidence.’” (Lewis, supra, 11 Cal.5th at p. 972, quoting Drayton,
supra, 47 Cal.App.5th at p. 980.) Moreover, section 1170.95,
subdivision (d)(3) specifically contemplates the introduction of
“new or additional evidence,” and nothing in the statute indicates
that evidence may not concern whether appellant was a major
participant in the underlying felonies, or acted with reckless
indifference to human life. We accordingly decline to conduct our
own assessment of the current limited record to determine in the
first instance whether appellant was a major participant who
acted with reckless indifference to human life. (See People v.
Smith, supra, 49 Cal.App.5th at pp. 95-96.)
Regardless of whether the trial record contains substantial
evidence of aiding and abetting or special circumstances under
Banks and Clark, appellant satisfied his prima facie burden. He
is therefore entitled to an evidentiary hearing, at which the
parties may offer new or additional evidence, and at which the
trial court will determine whether the prosecution proved beyond
a reasonable doubt that appellant was a major participant in the
robbery and acted with reckless indifference to human life, or
was otherwise guilty of murder under current law.
14
DISPOSITION
The order 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
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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