People v. Gonzalez CA6 ( 2022 )

Filed 4/28/22 P. v. Gonzalez CA6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046911
(Monterey County
Plaintiff and Respondent, Super. Ct. No. SS981989)
v.
JUAN MANUEL GONZALEZ,
Defendant and Appellant.
In 1999, defendant Juan Manuel Gonzalez was convicted by jury trial of second
degree murder (Pen. Code, § 187)1 and attempted murder (§§ 664, 187). The jury found
true gang enhancements (§ 186.22, subd (b)(1)) for both counts, personal and intentional
discharge of a firearm (§ 12022.53, subd. (c)) for the murder count, and personal and
intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)) for
the attempted murder count. Defendant was sentenced to an aggregate term of 67 years
to life. This court affirmed the judgment on appeal. (People v. Gonzalez (Apr. 5, 2011,
H020233) [nonpub. opn.].)
In 2019, defendant petitioned the trial court to vacate his murder and attempted
murder convictions under newly enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Senate Bill No. 1437). After appointment of defense counsel and briefing, the trial court
1
All further statutory references are to the Penal Code unless otherwise indicated.
denied the petition. Defendant appealed. We rejected defendant’s arguments and filed
an opinion affirming the court’s order denying the petition.
The California Supreme Court granted review (October 20, 2021, S270771).
While the matter was pending in the Supreme Court, the Legislature amended section
1170.95. (Stats. 2021, ch. 551, § 2; Senate Bill No. 775.) The Supreme Court transferred
the matter back to this court with directions to vacate our original opinion and reconsider
the cause in light of Senate Bill No. 775. The parties have filed supplemental briefs.
(Cal. Rules of Court, rules 8.528(f), 8.200(b).) Having reconsidered the cause in light of
Senate Bill No. 775, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND2
In August 1998, Hugo Ochoa and Samsun Lara were riding Lara’s bike home in
Salinas. As they rode, a red Chevrolet pickup truck drove past them going in the same
direction. Moments later, two males walked towards them and asked about their gang
affiliation. Ochoa responded, “nothing.” The men said something, drew guns, and shot
Ochoa and Lara. One assailant shot at least five rounds from a .45-caliber handgun; the
other shot at least four rounds from a .380-caliber handgun. Ochoa was shot six times
and survived. Lara was hit three times and died. A resident heard a motor and gunshots
“[a]lmost simultaneously.” The resident saw a red Chevrolet pickup truck pass by with
its headlights off.
Salinas police began to look for a red Chevrolet pickup truck. About 20 minutes
after the shooting, defendant was found driving a red Chevrolet pickup truck. An officer
observed defendant drop off a passenger and continue driving. It was later established
that the truck belonged to defendant’s stepfather.
2
We take the facts from our opinion in the appeal from the original judgment. On
our own motion, we take judicial notice of that prior opinion. (Evid. Code, §§ 452,
subd. (d), 459.)
2
Police secured defendant’s residence, which was near the site of the shooting,
while they sought a search warrant. At one point, defendant’s sister attempted to leave
the residence with a laundry basket, saying she wanted to do her laundry elsewhere.
Police refused to let her leave without searching the laundry basket. After obtaining a
search warrant, police found the .45-caliber and .380-caliber semiautomatic handguns
used to shoot Ochoa and Lara in the laundry basket. Police found additional weapons
and indicia of defendant’s membership in a Norteño street gang in the residence.
After the shooting, defendant’s mother told police she had spoken to defendant
about his role in the shootings. Defendant told his mother that he did not “touch the
gun,” and that “he was just driving. That was it.” Police later interviewed defendant. He
denied any involvement or knowledge of the shooting. He stated that he picked up a
friend, but that the friend was drinking from an open container of alcohol, so he asked the
friend to leave the truck. While defendant was in jail awaiting trial, he spoke to a fellow
gang member and asked him to claim that defendant was somewhere else at the time of
the shooting.
At trial, defendant testified that he was not directly involved in the shooting, but
rather that he unwittingly lent his truck to the shooters, whom he refused to identify, and
then held their guns for them. Defendant also claimed that he was told to give the two
men a ride home. Defendant declined to identify the two men, stating he feared for his
and his family’s safety. He explained that he asked a fellow gang member to provide an
alibi because he was scared.
Defendant was convicted by jury trial of second degree murder (count 1; § 187)
and attempted murder (count 2; §§ 664, 187). The jury found that defendant committed
both offenses for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The jury
also found true enhancements in count 1 for personal and intentional discharge of a
firearm (§ 12022.53, subd. (c)) and in count 2 for personal and intentional discharge of a
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firearm causing great bodily injury (§ 12022.53, subd. (d)). Defendant was sentenced to
an indeterminate term of 67 years to life in state prison, composed of 15 years to life for
second degree murder plus a consecutive term of 20 years to life for the personal and
intentional discharge of a firearm enhancement, a consecutive term of 7 years for
attempted murder, and a consecutive term of 25 years to life for the personal and
intentional discharge of a firearm causing great bodily injury enhancement. The court
imposed two-year terms of imprisonment on the criminal street gang enhancements, but
stayed those terms pursuant to section 12022.53, subdivision (e)(2). Defendant appealed,
and this court affirmed the judgment.
In January 2019, defendant petitioned the trial court to vacate his murder and
attempted murder convictions under newly enacted Senate Bill No. 1437. The petition
indicated, by checking the appropriate boxes, that defendant “was convicted of 1st or 2nd
degree murder pursuant to the felony murder rule or the natural and probable
consequences doctrine” and “could not now be convicted of 1st or 2nd degree murder
because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019.” The
prosecution opposed the petition. Defense counsel was appointed to represent defendant,
and a briefing schedule was established.
The trial court denied the petition. The court stated: “In this case, the complaint
alleged willful deliberate premeditated murder. The defendant was convicted on a theory
of aiding and abetting. The case was not prosecuted on a theory of felony murder, nor
was it prosecuted on a theory of natural and probable consequences. [¶] It is important
to note that the jury was not instructed on either of those theories. Consequently, the jury
necessarily found malice aforethought based on their verdict. [¶] Additionally, the
petitioner could still be convicted under the current state of the law. [¶] Petitioner has
failed to state a prima facie showing for relief. The petition is denied.”
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II. DISCUSSION
A. Section 1170.95
Defendant argues that he is entitled to relief under section 1170.95. He contends
that his conviction for second degree murder was “based on something less than malice”
because there was “no evidence of intent to kill, the only theory on which the jury was
instructed” at trial.
Defendant also contends that under recently enacted Senate Bill No. 775, he is
now eligible for section 1170.95 relief. He concedes that while the jury was not
instructed on felony murder or the natural and probable consequences doctrine, since
there was no evidence that he “harbored malice,” then the jury must have convicted him
based on a “ ‘theory under which malice [was] imputed to [him] based solely on [his]
participation in a crime.’ ”3
1. Background
For count 1, the jury was instructed with CALJIC No. 8.10: “Every person who
unlawfully kills a [human being] [with malice aforethought] is guilty of the crime of
murder in violation of section 187 of the Penal Code. [¶] In order to prove this crime,
each of the following elements must be proved: [¶] 1. A human being was killed; [¶]
The killing was unlawful; and [¶] 3. The killing [was done with malice
aforethought] . . . .” The trial court also gave the jury CALJIC No. 8.11, which told it:
“ ‘Malice’ may be either express or implied.” “Malice is express when there is
manifested an intention unlawfully to kill a human being.” The instruction further
described that “[t]he mental state constituting malice aforethought does not necessarily
3
We need not consider whether Senate Bill No. 775 is an ameliorative change in
the law (see In re Estrada (1965) 63 Cal.2d 740, 744-745), or whether defendant would
be entitled to file a new section 1170.95 petition in light of Senate Bill No. 775’s
changes. We assume Senate Bill No. 775 applies to this case and consider only whether
relief is required under its provisions.
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require any ill will or hatred of the person killed,” and “[t]he word ‘aforethought’ does
not imply deliberation or the lapse of a considerable time. It only means that the required
mental state must precede rather than follow the act.”
After giving the jury CALJIC No. 8.20, which described the elements of first
degree murder, the court gave CALJIC No. 8.30, which set forth the elements of second
degree murder: “Murder of the second degree is the unlawful killing of a human being
with malice aforethought when the perpetrator intended unlawfully to kill a human being
but the evidence is insufficient to prove deliberation and premeditation.”
For count 2, the trial court gave the jury CALJIC No. 8.66, which set forth the
elements of attempted murder: “Every person who attempts to murder another human
being is guilty of a violation of Penal Code sections 664 and 187. [¶] Murder is the
unlawful killing of a human being with malice aforethought. [¶] In order to prove
attempted murder, each of the following elements must be proved; [¶] 1. A direct but
ineffectual act was done by one person towards killing another human being; and [¶] 2.
The person committing the act harbored express malice aforethought, namely, a specific
intent to kill unlawfully another human being.”
The court also described the law of principals with CALJIC No. 3.00: “Persons
who are involved in [committing] [or] [attempting to commit] a crime are referred to as
principals in that crime. Each principal, regardless of the extent or manner of
participation is equally guilty. Principals include: [¶] 1. Those who directly and actively
[commit] [or] [attempt to commit] the act constituting the crime, or [¶] 2. Those who aid
and abet the [commission] [or] [attempted commission] of the crime.” The court then
gave the jury CALJIC No. 3.01, which set forth the requirements to find that defendant
aided and abetted the commission of a crime. Finally, the court also gave the jury
CALJIC No. 3.31, stating that for counts 1 and 2 “there must exist a union or joint
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operation of act or conduct and a certain specific intent in the mind of the perpetrator.
Unless this specific intent exists the [crime] to which it relates [is not committed].”
As stated in its closing argument, the prosecution’s theory of the case was that
defendant was guilty of murder and attempted murder as “a principal” based on aiding
and abetting the actual shooters.
2. Applicable Law
In 2018, Senate Bill No. 1437 was enacted to amend the felony murder rule and
the natural and probable consequences doctrine “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).) In part, Senate Bill No. 1437
amended section 188 to require that a principal “shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3).)
Senate Bill No. 1437 also added section 1170.95, which created a procedure by
which a petitioner who was “convicted of felony murder or murder under a natural and
probable consequences theory” may “file a petition with the court that sentenced the
petitioner to have the petitioner’s murder conviction vacated and to be resentenced on
any remaining counts . . . .” (Former § 1170.95, subd. (a).) Attempted murder and
manslaughter were not expressly included as crimes that were eligible for resentencing
under former section 1170.95. Thus, most Courts of Appeal construed relief under
section 1170.95 as limited to murder convictions and not applicable to persons convicted
of manslaughter or attempted murder. (See, e.g., People v. Turner (2020) 45 Cal.App.5th
428, 435-436.)
Recently, the Legislature amended section 1170.95 by enacting Senate Bill
No. 775, effective January 1, 2022, to clarify that persons who were convicted of
7
attempted murder or manslaughter under a theory of felony murder or the natural and
probable consequences doctrine may obtain the same relief as persons convicted of
murder under those theories. (Stats. 2021, ch. 551, § 1, subd. (a).) In addition, Senate
Bill No. 775 also amended section 1170.95, subdivision (a), to add the following
language (which we italicize) concerning convictions that qualify for relief: “(a) 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 when all
of the following conditions apply: [¶] (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.” (Italics added.)
3. Analysis
In People v. Soto (2020) 51 Cal.App.5th 1043 (Soto), review dismissed Nov. 17,
2021, S263939, the defendant was the driver of a car carrying another man who shot the
victim to death. The defendant was convicted of second degree murder. As to the
offense of murder, the jury was instructed on “principles of aider and abettor liability.
The instructions informed the jury that a person aids and abets the commission of a crime
when he, ‘with knowledge of the unlawful purpose of the perpetrator’ and ‘with the intent
or purpose of committing, encouraging, or facilitating the commission of the crime, by
act or advice, aids, promotes, encourages or instigates the commission of the crime.’ ”
8
(Id. at p. 1050.) The jury was not given instructions that the defendant “could be liable
for [second degree murder] either as the natural and probable consequence of the
commission of another crime or based upon the felony murder rule.” (Ibid.)
The defendant petitioned for resentencing under former section 1170.95, and the
trial court denied the petition. (Soto, supra, 51 Cal.App.5th at p. 1048.) This court
affirmed, holding that “the jury instructions themselves demonstrate as a matter of law
that [the defendant] could not make a prima facie showing that he is entitled to relief.”
(Id. at p. 1055.) The court reasoned that the defendant’s “jurors were not provided any
instruction on which they could have found [the defendant] guilty of murder under [the
natural and probable consequences] doctrine.” (Ibid.) Accordingly, “under the
instructions, the jury necessarily found [the defendant] culpable for murder based on his
own actions and mental state as a direct aider and abettor of murder.” (Ibid.)
Here, defendant indisputably was not entitled to relief under former section
1170.95 because he was convicted of second degree murder as a direct aider and abettor.
At trial, the prosecution’s only theory of guilt was that defendant aided and abetted the
perpetrators of the offenses. The jury was given instructions consistent with this theory:
the court instructed the jury on aiding and abetting, the necessity of a union of act and
intent, and the necessity and definition of “malice aforethought” for second degree
murder. As in Soto, the jury was not given instructions on the felony murder rule or the
natural and probable consequences doctrine. Rather, under the instructions given, the
jury necessarily found defendant culpable for murder based on his own actions and
mental state as a direct aider and abettor. Accordingly, defendant was not entitled to
resentencing under former section 1170.95 for his second degree murder conviction.
The same is true for defendant’s attempted murder conviction. Even assuming
former section 1170.95 applied to attempted murder, the record clearly establishes that
defendant’s conviction for attempted murder, like his conviction for second degree
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murder, was based on a theory of direct aiding and abetting liability. It was not based on
a natural and probable consequences theory or the felony murder rule. Thus, defendant
was not entitled to resentencing under former section 1170.95.
Finally, we conclude that under amended section 1170.95, defendant is still
ineligible for resentencing as a matter of law on his murder and attempted murder
convictions. Defendant was not convicted based on any other “theory under which
malice is imputed to a person based solely on that person’s participation in a crime . . . .”
(§ 1170.95, subd. (a).) Rather, defendant was convicted as a direct aider and abettor to
second degree murder and attempted murder. As we noted, the jury was given
instructions consistent with this theory: the court instructed the jury on aiding and
abetting, the necessity of a union of act and intent, and the necessity and definition of
malice aforethought for second degree murder and attempted murder. Under the
instructions given, the jury necessarily found defendant culpable for murder and
attempted murder based on his own actions and mental state as a direct aider and abettor.
Put another way, defendant could presently be convicted of murder or attempted murder
notwithstanding changes to sections 188 and 189. (§ 1170.95, subd. (a)(3).) He therefore
cannot establish a prima facie case for resentencing.
On this point, defendant contends that the jury was given “a legally deficient and
erroneous implied malice instruction,” which allowed it to convict defendant using some
unspecified theory under which malice was imputed based solely on his participation in
the crime. We disagree. Read as a whole, the jury instructions did not allow the jury to
convict defendant based solely on his participation in the crime. Rather, the trial court
adequately instructed the jury on the principles of aiding and abetting liability with
respect to second degree murder and attempted murder, including the requirement that an
aider and abettor shares the actual perpetrators’ intent to commit the charged crimes. In
that way, malice could not have been imputed based solely on defendant’s participation
10
in the crime, as the instructions required the jury to find defendant personally acted with
malice. Because the record of conviction demonstrates that defendant was convicted
under a theory of direct aiding and abetting liability, he has failed to meet his burden of
making a prima facie showing of entitlement to relief under amended section 1170.95.
B. Instructional Error
Defendant contends that the trial court erred during his underlying trial by not
giving a natural and probable consequences instruction. He admits that the court’s failure
to do so was not prejudicial at the time, but he argues that it is now prejudicial because,
had the court so instructed, his “current entitlement to section 1170.95 relief would then
be obvious.”
Defendant’s contentions do not address the superior court’s ruling on his
section 1170.95 petition. Rather, defendant seeks to raise issues involving his trial,
which defendant could have raised in his appeal from the original judgment. Section
1170.95 does not provide convicted defendants an opportunity to challenge or relitigate
the merits of their underlying judgments of conviction. Any argument regarding
instructional error with respect to the underlying judgment is not properly within the
scope of an appeal from an order denying a section 1170.95 petition. (See People v.
Gomez (2020) 52 Cal.App.5th 1, 16-17, review granted Oct. 14, 2020, S264033 [agreeing
that section 1170.95 does not provide a defendant with an opportunity to relitigate the
merits of an underlying judgment of conviction] (Gomez).) Thus, we do not address
defendant’s claim of instructional error.
C. Firearm Enhancement
Defendant argues that the firearm enhancements imposed under section 12022.53,
subdivision (e) are unauthorized. He contends that the prosecution failed to plead a
section 12022.53, subdivision (e) firearm enhancement, and therefore the trial court was
11
not permitted to impose a sentence under that provision. He further contends that
because the sentence is unauthorized, this court has jurisdiction to correct it.
As with the instructional error challenge, we conclude that this claim is not
cognizable in an appeal from an order denying relief in a section 1170.95 proceeding.
The only issue before this court is whether the superior court erred in denying
section 1170.95 relief. A challenge to the underlying judgment is not properly before this
court. The proper procedure for challenging the propriety of the vicarious firearm
enhancement findings is to bring a petition for a writ of habeas corpus. (See People v.
Gomez, supra, 52 Cal.App.5th at pp. 16-17 [proper procedure is to bring habeas
petition].)
III. DISPOSITION
The trial court’s order denying defendant’s section 1170.95 petition for
resentencing is affirmed.
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_________________________________
ELIA, ACTING P.J.
WE CONCUR:
_______________________________
BAMATTRE-MANOUKIAN, J.
_______________________________
DANNER, J.
People v. Gonzalez
H046911
13