Filed 9/14/23 P. v. Gonzalez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A166251
v.
MARIO GODINEZ GONZALEZ, (Mendocino County Super. Ct.
No. SCUKCRCR15832642)
Defendant and Appellant.
ORDER MODIFYING
OPINION; AND ORDER
DENYING REHEARING [NO
CHANGE IN JUDGMENT]
BY THE COURT:
The opinion filed September 5, 2023, is modified as follows:
(1) Delete the last paragraph starting on page 9 that currently
states:
First, Gonzalez forfeited any self-defense argument by failing to raise it
below despite having ample opportunity to do so in his briefing and at
the section 1172.6 hearing. “As a general rule, a party who does not
raise an argument below forfeits the argument on appeal.” (In re
Abram L. (2013) 219 Cal.App.4th 452, 462.) This rule “is founded on
considerations of fairness to the court and opposing party, and on the
practical need for an orderly and efficient administration of the law.”
(People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.)
1
(2) In the first full paragraph on page 10, delete the last three
sentences and citation, which currently state:
As the defendant, it was Gonzalez’s burden to raise this affirmative
defense before the prosecution was obligated to respond to it. (People v.
Frye (1992) 7 Cal.App.4th 1148, 1154–1155.) The fact that the trial
court briefly referenced self-defense in its order is irrelevant. It was
Gonzalez’s obligation to raise it in his resentencing petition if he did
not want to forfeit the issue.
Replace those last three sentences and citation with the following
sentences and citations:
“As a general rule, a party who does not raise an argument below
forfeits the argument on appeal.” (In re Abram L. (2013) 219 Cal.App.4th
452, 462.) However, because the People did not raise the issue of forfeiture in
its respondent’s brief, we will address the merits of Gonzalez’s argument.
(Gov. Code, § 68081.) We conclude that substantial evidence supports the
trial court’s finding that Gonzalez acted with reckless indifference to human
life.”
(3) In the last paragraph on page 10, delete the first sentence which
states:
Second, even assuming Gonzalez did not forfeit the issue,
substantial evidence supports the trial court’s finding that Gonzalez
acted with reckless indifference to human life.
This order does not effect a change in the judgment.
Gonzalez’s September 12, 2023 petition for rehearing is denied.
09/14/2023
Date: ________________ Simons, J.
__________________________, Acting P.J.
2
Filed 9/5/23 P. v. Gonzalez CA1/5 (unmodified opinion)
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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A166251
v. (Mendocino County Super. Ct.
MARIO GODINEZ GONZALEZ, No. SCUKCRCR15832642)
Defendant and Appellant.
Defendant and appellant Mario Godinez Gonzalez appeals the trial
court’s denial of his petition for resentencing pursuant to former Penal Code1
section 1170.95.2 The trial court initially denied the petition after finding
that Gonzalez failed to make a prima facie showing that he was eligible for
relief. Gonzalez appealed that denial and this court reversed and remanded
the matter for an evidentiary hearing.
Following the evidentiary hearing, the trial court again denied the
petition because it found that Gonzalez could still be convicted of murder
under amended section 189. Specifically, the court concluded that the
1 All further statutory references are to the Penal Code unless
otherwise specified.
2 The Legislature subsequently renumbered section 1170.95 to section
1172.6. (Stats. 2022, ch. 58, § 10.) For clarity and consistency, we will only
reference section 1172.6.
1
evidence showed beyond a reasonable doubt that Gonzalez was a major
participant in the underlying robbery and acted with reckless indifference to
human life. Gonzalez appeals on the grounds that he was prejudiced by the
erroneous admission of an autopsy report and that the trial court erred in
finding there was no evidence Gonzalez acted in self-defense. We affirm.
I. BACKGROUND3
A. Procedural History
In March 2016, plaintiff and respondent the People of the State of
California (People) filed an information charging Gonzalez, Edgar Contreras,
and Isidro Lopez Bernal (collectively, defendants) with one count of murder
(§ 187), with a special circumstance that the murder was committed during a
robbery (§ 190.2, subd. (a)(17)(D)), and one count of second degree robbery
(§§ 211, 212.5, subd. (c).) The information further alleged that all three
defendants personally and intentionally discharged firearms during the
commission of these crimes (§ 12022.53, subd. (c)) and that they personally
and intentionally discharged firearms which proximately caused the victim’s
death (§ 12022.53, subd. (d)).
In February 2017, Gonzalez pled no contest to second degree murder
and second degree robbery and admitted to personally using a firearm during
the commission of the murder. (§ 12022.53, subd. (b).) On the People’s
motion, the trial court dismissed the remaining count and special allegations.
The parties agreed Gonzalez would receive a sentence of five years for the
robbery conviction, 10 years for the firearm enhancement, and a consecutive
3 Pursuant to the People’s request, we take judicial notice of the record
in Gonzalez’s prior related appeal, People v. Godinez-Gonzales (August 19,
2021, A160026) [nonpub. opn.]. It is not immediately clear why Gonzalez’s
name was spelled slightly differently in the prior opinion but we use
“Gonzalez” because that is how Gonzalez spells it in his opening brief.
2
15 years to life for the murder conviction. Accordingly, the court sentenced
Gonzalez to 30 years to life in state prison.
In March 2019, Gonzalez filed a petition for resentencing pursuant to
section 1172.6. The petition alleged that Gonzalez was prosecuted under a
felony-murder theory; that he pled guilty to second degree murder because he
believed he could have been convicted at trial under the felony murder rule;
and that he could no longer be convicted of murder because of amendments to
sections 188 and 189.
Following briefing by the parties, the trial court concluded that
Gonzalez failed to make a prima facie case for relief and denied the petition.
Specifically, the court found that “[w]hile ‘felony-murder’ was the theory
relied upon by the prosecutor at the preliminary hearing, the Information
and the available facts would have certainly allowed the prosecution to
proceed to trial on both a felony-murder theory and an aiding and abetting
theory.” Gonzalez appealed this denial. In an unpublished opinion, this
court reversed and remanded the matter “with directions to issue an order to
show cause and to hold a hearing at which the prosecution bears the burden
of proving, beyond a reasonable doubt, that [Gonzalez] is ineligible for
resentencing.” (People v. Godinez-Gonzales, supra, A160026.)
On remand, the trial court held an evidentiary hearing.4 The People
relied on the transcript from the preliminary hearing as well as the victim’s
autopsy report as evidence. Gonzalez did not offer any evidence. Following
4 The trial court conducted a joint evidentiary hearing with Contreras,
who also filed a petition for resentencing, and the two defendants requested
that their petitions be heard together.
3
the hearing, the trial court again denied the petition.5 The court held that
the evidence showed beyond a reasonable doubt that Gonzalez “was a major
participant in the robbery and in its commission acted with reckless
indifference to human life.” The court specifically noted that this was a
planned robbery and that Gonzalez and Contreras both “fired their weapons
when a voice from the dark told them to stop stealing the marijuana.” The
court further stated there was “no evidence they fired their weapons in
self-defense.” The court concluded that Gonzalez could still be convicted of
murder under amended section 189 and was therefore not entitled to relief
under section 1172.6. Gonzalez timely appealed this second denial.
B. Facts from Preliminary Hearing
At around 1:00 a.m. on September 27, 2015, Gonzalez drove his truck to
a friend’s house after she asked to borrow it. When Gonzalez arrived at the
house, he told his friend he needed a ride. Contreras was in the passenger
seat of the truck. The friend got into the backseat and Gonzalez drove. They
stopped and picked up Bernal. They continued driving for about an hour
before Gonzalez turned down a dirt road and stopped under an oak tree at
around 2:00 a.m. Gonzalez and Contreras got out of the truck for a minute or
two and then got back inside. They then drove for a mile before stopping
again. This time, all three defendants got out and the friend drove the truck
away. Defendants proceeded towards a marijuana garden.
5 The trial court’s order noted that statements by Gonzalez and
Contreras were admitted at the preliminary hearing under Evidence Code
section 1220 and were admissible at the evidentiary hearing on the same
grounds in that “the respective statements of the petitioners are admissible
as to only the declarant/defendant/petitioner.” Thus, neither Gonzalez nor
the People can rely on any inadmissible hearsay statements by his co-
defendants on appeal.
4
Gonzalez later admitted that he went to the garden to steal marijuana
because of a past debt owed to him. Defendants retrieved firearms that
Gonzalez hid at the drop-off location ahead of time. Gonzalez had a .223
caliber rifle and provided firearms to Contreras and Bernal. Gonzalez later
stated that his intent was to steal marijuana and not to kill anyone. When
they arrived at the garden, defendants began cutting and bundling the
marijuana. After about an hour in the garden, Gonzalez heard a voice telling
him to stop. He was on the hillside, slipped, and heard gunshots. Gonzalez
believed there were at least two people shooting at them and stated that he
fired two or three shots in the air. He then ran and discarded his rifle under
some brush and leaves. He saw the victim and believed he was dead. At
some point during this gunfire exchange, Contreras was shot.
Police officers were dispatched to the area to attend to Contreras.
Detective Clinton Wyant was also dispatched to the area to investigate. He
walked up the hill and found an encampment at the top as well as what
appeared to be a well-traveled trail. He followed the trail and discovered the
victim’s body. The victim had three separate bullet wounds. The victim also
had a firearm at his side that was in its holster. Two nearby trees at the top
of the hill were damaged by bullets. A rifle casing was found in the garden
below and .9mm shell casings were found throughout the area, including nine
.9mm fired casings in one of the marijuana bundles. A live .9mm round was
also found where police believed the victim was initially.
The victim’s autopsy revealed that he was shot from a distant range
and that the fatal shot was likely fired at a downward angle. The autopsy did
not reveal what kind of ammunition caused the victim’s gunshot wounds.
Wyant attended the autopsy and testified as to the various bullet wounds he
observed, including bullet holes through the victim’s leg, abdomen, and back.
5
II. DISCUSSION
A. Law and Standard of Review
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.)
(Senate Bill 1437) “ ‘amend[ed] the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, 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.’
([Stats. 2018, ch. 1015, § 1,] subd. (f ).)” (People v. Gentile (2020) 10 Cal.5th
830, 846–847.) Among other things, Senate Bill 1437 added section 189,
subdivision (e), which “limits liability under a felony-murder theory
principally to ‘actual killer[s]’ ([] § 189, subd. (e)(1)) and those who, ‘with the
intent to kill,’ aid or abet ‘the actual killer in the commission of murder in
the first degree’ (id., subd. (e)(2)). Defendants who were neither the actual
killers nor acted with the intent to kill can be held liable for murder only if
they were ‘major participant[s] in the underlying felony and acted with
reckless indifference to human life’ ” under section 189, subdivision (e)(3).
(People v. Strong (2022) 13 Cal.5th 698, 708.)
Senate Bill 1437 also added section 1172.6, which outlines the
procedure for defendants convicted of murder to petition for resentencing in
the trial court if they believe they could no longer be convicted of murder
based on amended section 189. (Stats. 2018, ch. 1015, § 4.) If the trial court
determines that the petitioner has made a prima facie showing for relief, it
must issue an order to show cause and hold an evidentiary hearing.
(§ 1172.6, subd. (c).) At the evidentiary hearing, the parties may rely upon
evidence in the record of conviction or new evidence to show whether the
petitioner is eligible for resentencing. (§ 1172.6, subd. (d)(3).) The
6
prosecution bears the burden of proving, “beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Id.)
On appeal, we review the trial court’s factual findings for substantial
evidence. (People v. Williams (2020) 57 Cal.App.5th 652, 663.) The test is
“ ‘whether any rational trier of fact could have’ made the same determination,
namely that ‘[t]he record . . . disclose[s] . . . evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find [as
did the superior court]. [Citation.] In applying this test, we review the
evidence in the light most favorable to the prosecution and presume in
support of the [order] the existence of every fact the [superior court] could
reasonably have deduced from the evidence.’ ” (Ibid.)
B. Admission of the Autopsy Report Was Not Prejudicial.
Gonzalez contends that the trial court erred in admitting the victim’s
autopsy report as reliable hearsay and that the admission of the report was
prejudicial. The People concede the court erred in admitting the autopsy
report based on a recent amendment to section 1172.6 which made the
admission of evidence in a section 1172.6 proceeding subject to the Evidence
Code. (§ 1172.6, subd. (d)(3).) However, the People argue that the error was
harmless.6 We agree.
Gonzalez argues that the autopsy report was the only evidence that the
victim died from gunshot wounds. We see no merit in this argument.
6 We also agree with the People that the state law standard applies
here—whether it is “reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.”
(People v. Watson (1956) 46 Cal.2d 818, 836.) This standard is applied to the
erroneous admission of evidence in a section 1172.6 hearing. (People v. Myles
(2021) 69 Cal.App.5th 688, 706.) However, our conclusion would be the same
even under the standard set forth in Chapman v. California (1967) 386 U.S.
18, 24, which Gonzalez argues should apply in this appeal.
7
Gonzalez himself stated that after the exchange of gunshots, he saw the
victim and believed he was dead. Later that morning, Detective Wyant
found the victim’s body with blood on different parts of him and stated, “It
appeared to be a shooting victim.” Photographs of the victim’s body were
admitted into evidence at the preliminary hearing. Detective Wyant
attended the autopsy and observed several bullet holes on the victim’s body.
He testified that the first bullet hole “went through-and-through from the
leg with an exit wound behind the left thigh.” The second bullet hole had an
entrance wound “just below the right rib cage area” and “an exit wound to
the left side of the abdomen.” The third bullet hole had an exit wound on the
right side of the back. When the victim’s body cavity was opened during the
autopsy, Wyant observed an area of vital organs that were destroyed by a
bullet wound.
This evidence amply established that the victim died from his gunshot
wounds. Gonzalez cites to Kinsey v. Pacific Mutual Life Ins. Co. (1918) 178
Cal. 153 to support his argument that a lay witness is not qualified to give
an opinion on the cause of death. In Kinsey, the evidence was in dispute as
to whether the decedent died from drowning or from an underlying heart
condition. During trial, the lifeguards who had attempted to resuscitate the
decedent were barred from opining as to whether the decedent’s death was
due to drowning. (Id. at p. 156.) On appeal, the court found no abuse of
discretion and held that the lifeguards were not qualified to testify as to the
cause of death based on “their observation of the appearance of the body of
[the] deceased.” (Ibid.) Here by contrast, there was no evidence that the
victim’s death was caused by anything other than his gunshot wounds.
Accordingly, it was not necessary for Detective Wyant to opine as to the
victim’s cause of death and he did not offer any such opinions. Wyant
8
testified as to what he personally observed when he initially found the
victim as well as when he attended the victim’s autopsy. This included the
plainly visible bullet wounds on the victim’s body which Wyant described in
detail at the preliminary hearing and the trial court properly relied on in its
order.
Thus, even without the autopsy report, the trial court had more than
sufficient evidence to conclude beyond a reasonable doubt that the victim
died of his gunshot wounds. There was no prejudice to Gonzalez from the
admission of the autopsy report.
C. The Argument of Self-Defense is Forfeited and Without Merit.
Gonzales next argues that the trial court erred in concluding there was
no evidence Gonzalez acted in self-defense and by extension, erred in finding
that the prosecution carried its burden of proving beyond a reasonable doubt
that he was guilty of murder. In its order, the trial court stated that both
Gonzalez and Contreras “fired their weapons when a voice from the dark told
them to stop stealing the marijuana. There is no evidence they fired their
weapons in self-defense.” The court made this comment in support of its
conclusion that Gonzalez could still be convicted of murder under section 189,
subdivision (e)(2), because he was a major participant in the underlying
robbery and acted with reckless indifference to human life. We find no error
warranting reversal.
First, Gonzalez forfeited any self-defense argument by failing to raise it
below despite having ample opportunity to do so in his briefing and at the
section 1172.6 hearing. “As a general rule, a party who does not raise an
argument below forfeits the argument on appeal.” (In re Abram L. (2013) 219
Cal.App.4th 452, 462.) This rule “is founded on considerations of fairness to
the court and opposing party, and on the practical need for an orderly and
9
efficient administration of the law.” (People v. Gibson (1994) 27 Cal.App.4th
1466, 1468.)
In his resentencing petition, Gonzalez argued there was insufficient
evidence that he was a major participant in the robbery and acted with
reckless indifference to human life. Gonzalez did not raise the issue of self-
defense or imperfect self-defense. Similarly, at the section 1172.6 hearing,
Gonzalez did not offer any evidence and argued that the prosecution failed to
prove beyond a reasonable doubt that he was a major participant or acted
with reckless indifference pursuant to the factors set forth in People v. Clark
(2016) 63 Cal.4th 522. Again, Gonzalez could have but did not raise the issue
of self-defense. As the defendant, it was Gonzalez’s burden to raise this
affirmative defense before the prosecution was obligated to respond to it.
(People v. Frye (1992) 7 Cal.App.4th 1148, 1154–1155.) The fact that the trial
court briefly referenced self-defense in its order is irrelevant. It was
Gonzalez’s obligation to raise it in his resentencing petition if he did not want
to forfeit the issue.
Second, even assuming Gonzalez did not forfeit the issue, substantial
evidence supports the trial court’s finding that Gonzalez acted with reckless
indifference to human life. Indeed, Gonzalez does not directly challenge this
finding. Instead, he argues only that the court made a factual error in
stating there was no evidence Gonzalez fired his weapon in self-defense.
Gonzalez is arguably correct if the trial court’s statement is read literally and
in isolation because Gonzalez did state during his interview that he fired his
rifle in response to hearing gun shots. But he ignores the findings that we
must imply in support of the judgment. (See People v. Francis (2002) 98
Cal.App.4th 873, 878 [on appeal, we “ ‘imply all findings necessary to support
the judgment, and our review is limited to whether there is substantial
10
evidence in the record to support these implied findings’ ”].) Because the trial
court found that Gonzalez acted with reckless indifference to human life, we
conclude it necessarily and impliedly found that there was no credible
evidence of self-defense when it stated that there was “no evidence [Gonzalez]
fired [his] weapon[] in self-defense.” Specifically, we conclude the court
impliedly found that Gonzalez’s statement—the only evidence suggesting
self-defense—was not credible and should not be afforded any weight.
Substantial evidence supports this implied finding. When Gonzalez
was first interviewed by law enforcement about what had happened, he lied
and claimed he was at home the entire time on the night of the shooting.
When he was interviewed a second time, he continued to lie. Only after he
was shown pictures from a surveillance camera which contradicted his claim
that he was at home all night did he admit to going to the marijuana garden
and claim to have fired his weapon after hearing gunshots. Moreover, the
victim was found with a firearm at his side that was still in its holster,
indicating that he did not fire his gun. That a live, rather than a spent, .9mm
round was found where the victim was believed to have been standing does
not, as Gonzalez argues, mean that the victim had used his gun. Nor was
there any other evidence at the preliminary hearing to support his claim
asserted for the first time on appeal that he acted in self-defense.
Because substantial evidence supports the trial court’s implied finding
of a lack of credible evidence to support self-defense, we need not consider the
People’s argument that self-defense is not a defense to felony-murder.
III. DISPOSITION
The order denying the section 1172.6 petition is affirmed.
11
CHOU, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. Godinez Gonzalez / A166251
12