Filed 7/30/24 P. v. Gonzales CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E081613
v. (Super. Ct. No. FVA011613)
VICTOR GONZALES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Michael A. Knish,
Judge. Reversed and remanded with directions.
Melissa Hill, 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, James M. Toohey, and Arlene
A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant Victor Gonzales appeals the trial court’s order denying 1 2 his Penal Code section 1172.6 (formerly § 1170.95) petition to recall his attempted
murder (§§ 664/187) conviction and for resentencing. On appeal, defendant contends the
trial court erred in summarily denying his petition without issuing an order to show cause
and holding an evidentiary hearing because it impermissibly engaged in factfinding at the
prima facie stage by relying on this court’s prior opinion from defendant’s direct appeal.
Contrary to the trial court, we conclude defendant’s record of conviction does not
foreclose relief as a matter of law because the jury may have found defendant guilty of
natural and probable consequences attempted murder without finding that he harbored
malice aforethought, which is no longer a permissible theory of murder liability under the
amendments to the state’s murder laws. Because we cannot rule out the possibility that
defendant may have been convicted of murder under a theory of liability that is no longer
legally valid, we reverse the summary denial order and remand the matter with directions
that the trial court issue an order to show cause and conduct further proceedings as are
required by section 1172.6.
II. 3 FACTUAL AND PROCEDURAL BACKGROUND
At approximately 1:30 p.m. on March 7, 1999, Jose Fuerte, Daniel Munoz, and
1 Unless otherwise specified, all future statutory references are to the Penal Code. [footnote continued on next page]
2 Steven Reynolds, all three of whom were members of the Trece Fontana Kings gang
(TFK), were at a Baker’s Restaurant in Fontana. At that time, three other males,
defendant, Neal Shackelford, and codefendant Adan Flores, entered the restaurant.
Defendant and his companions were members of a rival gang, Westside Fontana or
Westside Diablos. One of the men in defendant’s group asked Fuerte and his
companions where they were from. When they responded, someone from defendant’s
group said, “‘It’s going down right now.’” Apparently, a couple of weeks before this
confrontation, TFK gang members attacked defendant and beat him up. At some point,
defendant, who was the only one carrying a weapon, flashed his gun.
After eating their meals, defendant and his companions walked out of the
restaurant and waited for the other group. As his group exited the restaurant, Fuerte took
off his shirt and asked defendant to fight one-on-one without weapons. One of
defendant’s companions told Fuerte to “‘[c]ome over here.’” Fuerte responded, “‘Right
here. We don’t need to go over there.’” At about this time, Shackelford yelled, “‘Cap his
2 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section 1172.6 (Stats. 2022, ch. 58, § 10), without substantive changes to the statute’s content. We hereafter cite to section 1172.6 for ease of reference. 3 The factual background is taken from this court’s prior nonpublished opinion in defendant’s direct appeal, case No. E027214, which is found in the clerk’s transcript of the present appeal. (People v. Gonzales (Mar. 16, 2001, E027214) [nonpub. opn.] (Gonzales I).) We granted the People’s request to take judicial notice of defendant’s record of conviction from his direct appeal in case No. E027214.
3 ass.’” Defendant then retrieved his gun from his waistband and fired six rounds at
Fuerte.
After Fuerte’s group scrambled to their car and drove away, Fuerte realized that he
had been shot in his right arm and right thigh. Several bullets also hit the car.
Police officers eventually found defendant hiding in an attic and arrested him.
A jury found defendant guilty of attempted murder (§§ 664/187), but it could not
reach a verdict as to the premeditation allegation. The jury found true the allegations that
defendant used a firearm (§ 12022.53, subd. (b)), that defendant personally and
intentionally discharged a firearm and proximately caused great bodily injury (§
12022.53, subd. (d)), that a principal personally and intentionally discharged a firearm
and proximately caused great bodily injury (§ 12022.53, subd. (e)(1)), and that the crime
was committed for the benefit of, at the direction of, or in association with a criminal 4 street gang (§ 186.22, subd. (b)). The trial court eventually dismissed the allegation that
the attempted murder was premeditated and that the crime was committed for the benefit
of a gang. The court sentenced defendant to a total prison term of 34 years to life (the
upper term of nine years for the attempted murder plus a consecutive term of 25 years to
life for the § 12022.53, subd. (d) allegation; the remaining terms were stayed).
This court conditionally affirmed defendant’s judgment in a nonpublished opinion
filed March 16, 2001, and remanded to the trial court with directions to hold a hearing on
4 The jury found codefendant Flores not guilty of attempted murder.
4 5 defendant’s posttrial Marsden motion. We noted, “If the trial court denies the motion, or
the trial court grants the motion and a new trial motion is either not made or is denied, the
original judgment shall be reinstated.”
On January 4, 2023, defendant in pro. per. filed a petition for resentencing under
section 1172.6 and Senate Bill No. 775. Defendant asserted that (1) a complaint,
information, or indictment was filed against him that allowed the prosecution to proceed
under a theory of felony murder, murder under the natural and probable consequences
doctrine or other theory under which malice is imputed to a person based solely on that
person’s participation in a crime under the natural and probable consequences doctrine,
(2) he was convicted of attempted murder following a trial, and (3) he could not now be
convicted of attempted murder because of changes to sections 188 and 189 made
effective January 1, 2019. Defendant requested that counsel be appointed to represent
him. In support, defendant attached the relevant jury instructions and verdicts given to
the jurors at the time of trial, the felony complaint, the information, the abstract of
judgment, the reporter’s transcript of a postjudgment hearing, and the reporter’s transcript
of the motion for new trial and sentencing hearing.
On February 21, 2023, the People filed opposition to defendant’s petition for
resentencing and request for judicial notice of defendant’s record of conviction. The
People argued that defendant’s record of conviction, without weighing the evidence or
making a factual determination, showed defendant was ineligible for relief as a matter of
5 People v. Marsden (1970) 2 Cal.3d 118.
5 law as he was the actual shooter. In support, the People attached our prior nonpublished
opinion in Gonzales I, case No. E027214.
A prima facie hearing to determine defendant’s eligibility was held on June 27,
2023. The prosecutor argued that while the jury was given instructions on the natural and
probable consequences theory, since this was an attempted murder case, the elements for
attempted murder specify that the perpetrator has to have the specific intent to kill. The
prosecutor further noted that because the jury found the section 12022.53, subdivision (d)
[personal discharge of a firearm proximately causing great bodily injury] allegation true,
malice is not being imputed to defendant since he is the actual perpetrator. Following
argument, the trial court denied defendant’s section 1172.6 petition, finding defendant
was the actual shooter and ineligible as a matter of law. The court explained, “I think he
was the shooter. And I’m basing this on Ms. Mann’s summary of the appellate opinion,
which the Court can consider. And it said that the Defendant retrieved his gun and fired
six rounds at [the victim]. The jury’s verdict notwithstanding, I think that happened.
Those are the facts. He’s the actual shooter, and the natural-and-probable-consequence
instruction is not of consequence given that. So I will deny the prima-facie showing at
this point.” Defendant timely appealed.
III.
DISCUSSION
Defendant contends the trial court erred in summarily denying his section 1172.6
petition for resentencing because the court engaged in impermissible factfinding at the
6 prima facie stage by relying on the description of the crime set forth in our prior
nonpublished opinion from his direct appeal. He thus believes the matter should be
remanded for further proceedings. We agree.
A. Standard of Review
We independently review the trial court’s determination that the petitioner failed
to make a prima facie showing for relief. (People v. Harden (2022) 81 Cal.App.5th 45,
52; People v. Eynon (2021) 68 Cal.App.5th 967, 975.) A denial at this stage is
appropriate if the record of conviction demonstrates the petitioner is ineligible for relief
as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 960 (Lewis).)
B. Legal Principles
Senate Bill No. 1437, effective January 1, 2019, “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); see
People v. Strong (2022) 13 Cal.5th 698, 707-708.) With a narrow exception for peace
officer victims (§ 189, subd. (f)), the Legislature effectively eliminated murder
convictions premised on any theory of imputed malice—that is, any theory by which a
person can be convicted of murder for a killing committed by someone else, such as
felony murder or the natural and probable consequences doctrine—unless the People also
prove that the nonkiller defendant personally acted with the intent to kill or was a major
7 participant who acted with reckless disregard to human life. (§§ 188, subd. (a)(3), 189,
subd. (e); see People v. Strong, supra, at pp. 707-708.) Specifically, the Legislature
amended section 188 to require that, except in cases of first degree felony murder, a
principal in the crime of murder “shall act with malice aforethought” and “[m]alice shall
not be imputed to a person based solely on his or her participation in a crime.” (§ 188,
subd. (a)(3); People v. Brown (2023) 14 Cal.5th 453, 468, fn. 7; People v. Guiffreda
(2023) 87 Cal.App.5th 112, 122.)
Senate Bill No. 1437 also added section 1172.6 (former § 1170.95) to the Penal
Code, creating “a procedure for convicted murderers who could not be convicted under
the law as amended to retroactively seek relief.” (Lewis, supra, 11 Cal.5th at p. 957; see
Stats. 2018, ch. 1015.) Effective January 1, 2022, Senate Bill No. 775 amended section
1172.6 to expand its coverage to individuals convicted of “attempted murder under the
natural and probable consequences doctrine.” (§ 1172.6, subd. (a); People v. Saibu
(2022) 81 Cal.App.5th 709, 747.) As amended by Senate Bill No. 775, section 1172.6,
subdivision (a) provides: “A person convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in a crime, attempted
murder under the natural and probable consequences doctrine, or manslaughter may file a
petition with the court that sentenced the petitioner to have the petitioner’s murder,
attempted murder, or manslaughter conviction vacated and to be resentenced on any
remaining counts.”
8 An offender must file a petition in the sentencing court averring that: “(1) A
complaint, information, or indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder, murder under the natural and
probable consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, or attempted murder under
the natural and probable consequences doctrine[;] [¶] (2) The petitioner was convicted
of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in
lieu of a trial at which the petitioner could have been convicted of murder or attempted
murder[;] [¶] [and] (3) The petitioner could not presently be convicted of murder or
attempted murder because of changes to [s]ection[s] 188 or 189 made effective January 1,
2019.” (§ 1172.6, subd. (a)(1)-(3); see also id., subd. (b)(1)(A).) Additionally, the
petition shall state “[w]hether the petitioner requests the appointment of counsel.” (Id.,
subd. (b)(1)(C).)
“Upon receiving a petition in which the information required by this subdivision is
set forth or a petition where any missing information can readily be ascertained by the
court, if the petitioner has requested counsel, the court shall appoint counsel to represent
the petitioner.” (§ 1172.6, subd. (b)(3).) The prosecutor shall file a response within 60
days of the service of the petition, and the petitioner may file a reply within 30 days of
the response. (Id., subd. (c).) When briefing has been completed, “the court shall hold a
hearing to determine whether the petitioner has made a prima facie case for relief.”
9 (Ibid.) “If the petitioner makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause.” (Ibid.)
In determining whether a petitioner has made a prima facie showing of entitlement
to relief, the trial court’s inquiry will necessarily be informed by the record of conviction,
which facilitates the court’s ability to distinguish “petitions with potential merit from
those that are clearly meritless.” (Lewis, supra, 11 Cal.5th at p. 971.) The court may not
engage in “‘factfinding involving the weighing of evidence or the exercise of
discretion.’” (Id. at p. 972.) Rather, the court must “‘“take[] [the] petitioner’s factual
allegations as true”’” and make a “‘“preliminary assessment regarding whether the
petitioner would be entitled to relief if his or her factual allegations were proved.”’” (Id.
at p. 971.) Summary denial is appropriate where the record of conviction establishes the
petitioner is ineligible for resentencing as a matter of law. (People v. Estrada (2022) 77
Cal.App.5th 941, 945; People v. Coley (2022) 77 Cal.App.5th 539, 548.)
At the evidentiary hearing following issuance of an order to show cause, the
superior court acts as an independent fact finder, and the prosecution bears the burden of
proving beyond a reasonable doubt that the petitioner is guilty of murder or attempted
murder under California law as amended by Senate Bill No. 1437. (§ 1172.6, subd.
(d)(3); People v. Garrison (2021) 73 Cal.App.5th 735, 745; People v. Strong, supra, 13
Cal.5th at p. 709.) The petitioner and the prosecutor may offer new or additional
evidence, and the court may consider evidence “previously admitted at any prior hearing
10 or trial that is admissible under current law,” including witness testimony. (§ 1172.6,
subd. (d)(3).)
C. Analysis
Defendant contends the trial court committed reversible error by summarily
denying his petition based on the facts from this court’s prior opinion in his direct appeal.
Specifically, he argues the jury here “received instructions that would have permitted
conviction of attempted murder on the theory that the crime of attempted murder was the
natural and probable consequence of the commission of the target crime of ‘challenging
to fight,’” and because the jury was instructed on the natural and probable consequences
theory of liability for attempted murder, that established his prima facie eligibility for
resentencing. The People counter defendant’s record of conviction shows he was the
actual shooter and thus ineligible as a matter of law. The People further assert “the [trial
court] did not engage in impermissible factfinding at the prima facie stage, and to the
extent it did, reversal is unwarranted because a correct judgment, even if based on an
incorrect reason, must be affirmed on any legally valid basis.”
Here, the trial court erred in denying the petition because the record does not
support a conclusion that defendant was ineligible as a matter of law. First, there is
nothing in this record to support a finding that the jury expressly found defendant
specifically intended to kill the victim. Thus, there is nothing to reflect that the jury
dispositively determined that defendant acted with intent to kill.
11 Second, even if there were an express intent to kill finding, this, in and of itself,
would not render defendant ineligible for relief. (People v. Curiel (2023) 15 Cal.5th 433,
460, 463.) This is because the jury was presented with two theories under which it could
find defendant guilty of attempted murder: (1) it could find that defendant had the
specific intent to kill (CALJIC No. 8.66); or (2) it could find defendant intended to
challenge a fight, of which the attempted murder was the natural and probable
consequence (CALJIC No. 3.02). The jury might have convicted defendant of natural
and probable consequences attempted murder with a target crime of “challenging to
fight” without finding beyond a reasonable doubt that he acted with malice
aforethought—a theory of murder liability that is no longer legally permissible.
“‘The natural and probable consequences doctrine was recognized at common law
and is firmly entrenched in California law as a theory of criminal liability.’” (People v.
Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 904-905.) The natural and
probable consequences doctrine provides that “‘“‘[a] person who knowingly aids and
abets criminal conduct is guilty of not only the intended crime [target offense] but also of
any other crime the perpetrator actually commits [nontarget offense] that is a natural and
probable consequence of the intended crime.’”’” (Id. at p. 905.) “Because the jury was
instructed on the natural and probable consequences doctrine, the jury was required to
find only that [defendant] . . . intended to commit one of the underlying target offenses
and that [defendant] intended . . . that offense, not [attempted] murder. Nor was the jury
required to find that the underlying target offenses, themselves, were dangerous to human
12 life.” (People v. Curiel, supra, 15 Cal.5th at pp. 468, 471 [“The jury could have relied on
the natural and probable consequences doctrine to convict [defendant] of [attempted]
murder, and the findings required under that theory—even when combined with [a]
finding of intent to kill . . . do not encompass all of the elements of any theory of
[attempted] murder under current law.”].) Thus, the jury could have found defendant
guilty only under the natural and probable consequences doctrine.
Both the People and the court below appear to have been under the belief that
because the court instructed the jury with CALJIC No. 8.66, which requires that a
defendant harbor “a specific intent to kill unlawfully another human being,” the jury
necessarily found defendant intended to kill the victim. This is apparently regardless of
the trial court’s additional instruction of the jury with CALJIC No. 3.02. However,
CALJIC No. 8.66 provided only one of two theories under which the jury could have
found defendant guilty of attempted murder. The court’s instruction of the jury with
CALJIC No. 3.02 gave the jury the option of rejecting a finding that defendant acted with
the specific intent to kill. Otherwise, the court’s instruction of the jury with CALJIC No.
3.02 would have been mere surplusage.
Third, the jury did find that defendant personally and intentionally discharged a
firearm and proximately caused great bodily injury. (§ 12022.53, subd. (d).) On that
basis, the People argue the jury must have found defendant guilty of attempted murder as
the direct perpetrator or actual killer. But while section 12022.53, subdivision (d)
provides that a defendant must have intended to discharge a firearm, it “does not refer to
13 an ‘intent to achieve any additional consequence.’” (People v. Offley (2020) 48
Cal.App.5th 588, 598 (Offley), quoting People v. Lucero (2016) 246 Cal.App.4th 750,
759.)
In Offley, supra, 48 Cal.App.5th 588, Offley was one of five defendants charged
with taking part in a gang-related shooting during which one victim was killed and
another was seriously injured. (Id. at p. 592.) A jury convicted him of second degree
murder and found he had personally and intentionally discharged a firearm, proximately
causing great bodily injury and death to the victim (§ 12022.53, subd. (d)). (Offley,
supra, at p. 593.) Thereafter, the trial court denied Offley’s petition for relief pursuant to
former section 1170.95 at the prima facie stage based on the true finding as to the
allegation Offley had intentionally fired a weapon at the victim and caused great bodily
injury and death (§ 12022.53, subd. (d)). (Offley, supra, at p. 597.) The Offley court
reversed the denial of the petition, holding that the section 12022.53, subdivision (d)
enhancement did not establish as a matter of law that Offley acted with malice
aforethought. (Offley, supra, at p. 597.) The Offley court reasoned, the enhancement
does not require the prosecution to prove the defendant harbored a particular mental state
as to the victim’s injury or death, meaning it does not establish the defendant acted with
malice aforethought. (Id. at p. 598.) And the Offley court could not rule out the
possibility the jury relied on the natural and probable consequences doctrine in convicting
the defendant in that case. (Id. at p. 599.)
14 The People’s attempt to distinguish Offley from the present matter is unavailing.
We acknowledge that in Offley there was evidence of at least three shooters. (Offley,
supra, 48 Cal.App.5th at p. 592.) We also acknowledge that the trial evidence in this
case, as summarized in the previous opinion and the parties’ briefs, could support an
inference not only that defendant was the sole shooter but also that he fired shots with the
express intent to kill. However, as in Offley, we cannot conclude the jury’s true finding
on the intentional and personal discharge of a firearm (§ 12022.53, subd. (d))
enhancement on its own necessarily rendered him ineligible for relief. The record before
us does not preclude the possibility that defendant could have been convicted under a
now invalid theory. (See People v. Davenport (2021) 71 Cal.App.5th 476, 479, 484-485
[concluding language in information charging murder was generic and did not limit
prosecution to particular theory, and defendant’s admission to personal use of firearm
enhancement also did not preclude possibility of prosecution under felony-murder
theory]; see generally In re Ferrell (2023) 14 Cal.5th 593, 604 [§ 12022.53, subd. (d)
finding was not dispositive of whether defendant harbored malice].) Thus, we cannot say
that the jury’s finding on the section 12022.53, subdivision (d) enhancement, alone,
rendered defendant ineligible for relief as a matter of law.
Significantly, the jury was not asked to specify the theory under which it found
defendant guilty of attempted murder, even as the lone shooter. In finding that he
personally and intentionally discharged a firearm, the jury need not have also found that
defendant intended to kill by doing so because the now-invalid natural and probable
15 consequences doctrine allowed a conviction for attempted murder without a finding of
express intent to kill. Denying defendant’s petition at the prima facie stage therefore
required “‘factfinding involving the weighing of evidence or the exercise of discretion’”
which is not permitted, as the “‘prima facie bar was intentionally and correctly set very
low.’” (Lewis, supra, 11 Cal.5th at p. 972.)
“Because the trial court must consider the trial evidence and assess the strength
and credibility of the evidence, section 1172.6 requires that it issue an order to show
cause and conduct an evidentiary hearing. We remand the section 1172.6 proceedings for
that purpose.” (People v. Campbell (2023) 98 Cal.App.5th 350, 357.)
IV.
DISPOSITION
The order denying defendant’s petition under section 1172.6 is reversed and the
matter is remanded with instructions to issue an order to show cause and conduct an
evidentiary hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J. We concur:
FIELDS J.
MENETREZ J.