Filed 3/27/23 P. v. Gonzales CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E079799
v. (Super.Ct.No. FVA09485)
RICHARD RAUL GONZALES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller,
Judge. Affirmed.
Richard Raul Gonzales, in pro. per., and Robert L.S. Angres, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
1
Defendant and appellant, Richard Raul Gonzales, filed a petition for resentencing
pursuant to Penal Code former section 1170.95,1 which the court denied. After defense
counsel filed a notice of appeal, this court appointed counsel to represent defendant.
Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d
436 (Wende), Anders v. California (1967) 386 U.S. 738 (Anders), and People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo),2 setting forth a statement of the case and
identifying one potentially arguable issue: whether the court prejudicially erred in
denying defendant’s petition without issuing an OSC and holding an evidentiary hearing.
This court offered defendant the opportunity to file a personal supplemental brief,
which he has done.3 Defendant requests we conduct an independent review of the matter.
Specifically, defendant avers (1) due process violations involving ineffective assistance of
counsel for failing to communicate with him, (2) the purported improper use of this
court’s opinion from defendant’s appeal of the judgment, and (3) error in not holding an
evidentiary hearing on his petition. We affirm.
1 All further statutory references are to the Penal Code unless otherwise indicated.
Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.) amended
and renumbered Penal Code section 1170.95 as section 1172.6. (Stats. 2022, ch. 58,
§ 10.)
2In Delgadillo, the California Supreme Court recently held that Wende and
Anders procedures do not apply in appeals from the denial of a section 1172.6
postjudgment petition. (Delgadillo, supra, 14 Cal.5th at pp. 224-226.)
3 “If the defendant . . . files a supplemental brief or letter, the Court of Appeal is
required to evaluate the specific arguments presented in that brief and to issue a written
opinion.” (Delgadillo, supra, 14 Cal.5th at p. 232.)
2
I. FACTUAL AND PROCEDURAL BACKGROUND 4
“On January 16, 1998, defendant and other Prophecy[5] members Ricardo Gomez
and David Pineda retrieved guns from defendant’s house. Gomez took a ‘.22-millimeter
nine-shot’ revolver, Pineda took a ‘.45-millimeter’ [semiautomatic,] and defendant took a
‘.380-[caliber] [semi]automatic.’” (Gonzales, supra, E025273.)
After a fight at a party, defendant borrowed Gomez’s .22-caliber revolver and ran
down the street. “Witnesses saw a Hispanic male, about 17 years old, matching
defendant’s description and wearing a ‘Prophecy’ baseball cap, shoot the victim,” who
died. (Gonzales, supra, E025273.)
On May 14, 1999, a jury convicted defendant of first degree murder (Pen. Code,
§ 187, subd. (a)) and found true the allegation that he personally used a firearm in the
commission of the offense (§ 12022.53, subd. (b)). The trial court sentenced defendant to
25 years to life on the murder charge and 25 years to life on the personal use of a firearm
enhancement, to run consecutively. (Gonzales, supra, E025273.)
Defendant appealed. This court affirmed the judgment. (Gonzales, supra,
E025273.)
4 We take judicial notice of our prior nonpublished opinion from defendant’s
appeal from the original judgment (People v. Gonzales (Aug. 7, 2000, E025273)
[nonpub. opn.] (Gonzales)), which the People attached to and relied upon in their
opposition to defendant’s petition below. We take our factual recitation from Gonzales.
5 Prophecy was a “party crew,” to which defendant belonged; its members “attend
parties advertised on fliers, distributed through a high school. Although party crews
claim not to be gangs, they may not get along with rival party crews. These rivalries
sometimes result in violence.” (Gonzales, supra, E025273.)
3
On May 31, 2022, defendant filed a petition for resentencing under former
section 1170.95. The superior court appointed counsel for defendant.
On July 26, 2022, the People filed an opposition to defendant’s petition. The
People asserted defendant had failed to make a prima facie case because the jury had not
been instructed with felony murder, murder under the natural and probable consequences
doctrine, or any other theory under which malice could be imputed to defendant based
upon his participation in a crime. Moreover, the People maintained that as the actual
killer, defendant was not entitled to relief as a matter of law. On August 25, 2022,
defense counsel filed a brief in support of a prima facie finding.
At the hearing on the petition on September 15, 2022, the court stated it had read
and considered defendant’s petition, the People’s opposition, and defendant’s reply. The
court indicated it had reviewed the verdict and jury forms. “[T]he jury was instructed
only on the issue of express malice murder; therefore, they did not consider the theory of
the natural and probable consequences doctrine or any other theory under which malice is
imputed to a person based solely on the person’s participation in the crime. And ,
therefore, the defendant has not met his burden of a prima facie showing. And I am
going to deny his petition.”
II. DISCUSSION
Defendant requests we conduct an independent review of the matter. Specifically,
defendant avers (1) due process violations involving ineffective assistance of counsel for
failing to communicate with him, (2) the purported improper use of this court’s opinion
4
from defendant’s appeal of the judgment, and (3) error in not holding an evidentiary
hearing on his petition. We affirm.
“Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the
felony-murder rule to effectuate the Legislature’s declared intent ‘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.’” (People v. Strong (2022) 13 Cal.5th 698, 707-708.)
“When the trial court receives a petition containing the necessary d eclaration and
other required information, the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record
in the case establish conclusively that the defendant is ineligible for relief, the trial court
may dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.)
Here, a review of the jury instructions and verdicts conclusively demonstrates that
the jury convicted defendant of express malice murder, i.e., as the actual, intentional
killer of the victim.6 Because defendant was per se ineligible for relief, defendant did
not, and could not, make the prima facie showing that is a prerequisite to the issuance of
an order to show cause and the holding of an evidentiary hearing. Moreover, for the
same reason, any error by counsel could not be prejudicial for the purpose of finding that
counsel rendered prejudicial ineffective assistance of counsel. Furthermore, courts are
6 Defendant made statements admitting that he had shot the victim. At trial, he
requested instructions on self-defense, which the court denied. This court affirmed the
court’s refusal to give self-defense instructions. (Gonzales, supra, E025273.)
5
not barred from relying on the procedural background of a court’s prior opinion in
determining defendant’s eligibility for relief; rather, they are barred only from relying on
an opinion’s factual recitation. (People v. Clements (2022) 75 Cal.App.5th 276, 292;
accord People v. Flores (2022) 76 Cal.App.5th 974, 988.) Finally, the court below
indicated it was relying on the jury instructions and verdicts in denying the petition, not
this court’s opinion. Thus, the court properly denied defendant’s petition for failure to
make a prima facie showing for relief.
III. DISPOSITION
The court’s order dismissing the petition is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
MILLER
J.
RAPHAEL
J.
6