People v. Gonzalez ( 2021 )

Filed 6/11/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G057502
v. (Super. Ct. No. 99CF0831)
ELOY GONZALEZ, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Cheri T. Pham, Judge. Reversed and remanded.
Michelle May Peterson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Senior Assistant Attorney General, Lynne G.
McGinnis and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and
Respondent.
Eloy Gonzalez appeals from the trial court’s postjudgment order denying
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his petition for resentencing pursuant to Penal Code section 1170.95. Gonzalez asserts
the court improperly determined he was ineligible for resentencing as a matter of law.
The Attorney General (AG) concedes section 1170.95 is constitutional but contends the
court’s denial was nevertheless proper. The AG asserts a person convicted of murder
with a robbery-murder special circumstance before the Supreme Court’s decisions in
People v. Banks (2015) 61 Cal.4th 788 (Banks), and People v. Clark (2016) 63 Cal.4th
522 (Clark), is barred from pursuing resentencing under section 1170.95 without first
having obtained a writ of habeas corpus to set aside the special circumstance for
insufficient evidence. We disagree. Because the record of conviction does not establish
Gonzalez’s ineligibility for resentencing as a matter of law, we reverse the postjudgment
order denying the petition for resentencing and remand the matter with directions to issue
an order to show cause (OSC) and to proceed in accordance with section 1170.95,
subdivision (d).
FACTS
A detailed recitation of the facts is set forth in the prior opinion in this case.
(People v. Miller, et al., (Mar. 22, 2004, G029025) [nonpub. opn.] (Miller).) In sum,
“Southside” gang members Gonzalez, Matthew Robert Miller, and Eduardo Vargas
engaged in a series of armed robberies, one of which ended with Vargas shooting a
robbery victim, Jesse Muro. Vargas was tried separately, convicted of first degree
murder, and sentenced to death. (Ibid.)
An information charged Miller and Gonzalez with first degree murder of
Muro, with a special circumstance allegation the murder was committed during the
commission of a robbery pursuant to section 190.2, subdivision (a)(17)(A). (Miller,
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All further statutory references are to the Penal Code, unless otherwise
indicated.
2
supra, G029025.) It also charged both with the following: the robberies of Muro,
Matthew Stukkie, and Simon Cruz; several other counts of robbery; felon in possession
of a firearm (Gonzalez only); and street terrorism. (Ibid.) The information alleged Miller
and Gonzalez were principals who vicariously discharged a firearm during the
commission of a felony committed for the benefit of a street gang (§ 12022.53, subds. (d)
& (e)(1)). (Ibid.) It also alleged the crimes were committed for the benefit of a criminal
street gang (§ 186.22, subd. (b)(1)), and various personal and vicarious arming and gun
use claims. (Ibid.)
Miller and Gonzalez were tried together. Ultimately, the jury convicted
both on several counts of robbery and on one count of first degree murder. (Miller,
supra, G029025.) “Gonzalez was convicted of first degree murder of Muro, the special
circumstances allegation that the murder was committed during a robbery was found to
be true, he was convicted on the Muro and Stukkie robbery counts, and all other
robberies with which he was charged. Allegations of vicariously discharging a firearm
during the commission of a felony committed for the benefit of a street gang, committing
crimes for the benefit of a street gang, personal and vicarious use of a firearm were found
true. Gonzalez received a sentence of life in prison without possibility of parole.” (Ibid.)
As we explained in Miller, “Miller and Gonzalez both raise[d] arguments
concerning their convictions for the murder of Muro as non-shooters. The prosecution
offered two theories of culpability. The primary theory was felony murder, i.e., that both
defendants were perpetrators of a robbery, or involved in a conspiracy to commit a
robbery, and Muro’s murder took place during the commission of that robbery. The
second theory was that Miller and Gonzalez were aiders and abettors of the uncharged
offenses of assault with a deadly weapon, assault, or disturbing the peace by fighting, and
Muro’s murder was the natural and probable consequence of one of those target offenses.
Gonzalez was convicted on the Muro and Stukkie robbery counts, and the special
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circumstance of robbery was found true, so the jury obviously adopted the felony-murder
theory as to him.” (Miller, supra, G029025.) We affirmed the judgment. (Ibid.)
In 2019, Gonzalez filed a section 1170.95 petition to vacate his murder
conviction and be resentenced. The prosecution filed opposition to the petition, mainly
arguing S.B. 1437 was unconstitutional. It further asserted as follows: “[i]f this Court
rules [S.B.] 1437 is constitutional and issues an [OSC], the People will present evidence
at a hearing that [Gonzalez] is ineligible for resentencing relief under . . . section
1170.95,” based on claims Gonzalez acted with implied malice and he was a major
participant in the felony underlying the murder who acted with reckless indifference to
human life. The prosecution later added a supplemental claim that the jury’s robbery
special circumstance finding under section 190.2, subdivision (a)(17), barred the petition.
Gonzalez’s appointed counsel filed a reply to the opposition. Just over two
weeks later, the trial court denied the petition without issuing an OSC, permitting further
evidence, or hearing argument. The court first determined S.B. 1437 was
unconstitutional and then found sufficient evidence Gonzalez acted with implied malice
and he was a major participant who acted with reckless indifference to human life.
The trial court explained the following: “In this case, it is clear that
[Gonzalez] knew Vargas had a gun. Both [Gonzalez] and Vargas, along with Miller,
were, members of the Southside gang. [Gonzalez] had accompanied Vargas and Miller
two days prior to the murder on a series [of] armed robberies. [Gonzalez] witnessed
Vargas rob victim Cruz at gunpoint on the night of the murder, and knew that Vargas was
‘amped up’ afterwards. Yet, [Gonzalez] intentionally egged Vargas on when victims
Stukkie and Muro walked by asking Vargas if the victims were from a rival gang whose
members had beaten up [Gonzalez] a few days earlier. As fellow gang members,
[Gonzalez] knew this would provoke Vargas to want to retaliate against the victims, and
Vargas did just that. Upon hearing the suggestion that the victims were from Highland
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Street, Vargas immediately ran across the street towards the victims, grabbed one of them
by the neck (presumably victim Muro) and held a gun to the victim’s head. Then, instead
of staying put, [Gonzalez] intentionally crossed the street to Vargas’ location ‘to back’
him up. Contrary to [Gonzalez’s] assertions that he ‘was never placed on notice’ that
Vargas could kill the victim, in intentionally inciting Vargas to retaliate for the beating
that [Gonzalez] suffered at the hands of rival gang members, knowing full well that
Vargas had a gun and was ‘amped up’ from the prior robbery. [Gonzalez] knew there
was a risk of death. [Gonzalez] committed an intentional act the natural and probable
consequence of which was dangerous to human life, which [Gonzalez] knew was
dangerous to human life, and [Gonzalez] deliberately acted with conscious disregard for
human life. As such, [Gonzalez] acted with implied malice and is therefore statutorily
ineligible for resentencing under [section] 1170.95.”
It further opined Gonzalez’s actions after Vargas used lethal force, running
back to the car to find Vargas and taking Stukkie’s bracelet, demonstrated he was a major
participant in the crimes. It continued, “As a member of the Southside gang, [Gonzalez]
had knowledge of guns and knowledge that his fellow gang members had and used guns.
Furthermore, there was evidence that [Gonzalez] had participated in the robberies on
March 30 where Miller and/or Vargas had a gun and had threatened to shoot or kill the
victims with a gun. On April 1, immediately prior to the murder, [Gonzalez] witnessed
Vargas use a gun to rob victim Cruz. [¶] . . . [¶] [Gonzalez] was present at the scene of
the murder and had the opportunity to stop the killing or aid the victim, but he did
neither. Instead, it was [Gonzalez] who instigated the contact with victims Stukkie and
Muro by pointing them out to Vargas as possible members of the Highland Street gang,
whose members had previously beaten up [Gonzalez]. [¶] . . . [¶] [Gonzalez] was aware
Vargas had a gun and had used it to threaten victims in prior robberies, including the one
of victim Cruz immediately prior to the murder. [Gonzalez] was also aware Vargas was
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‘amped up’ from the robber[y] of victim Cruz. Therefore, when [Gonzalez] identified
victims Stukkie and Muro to Vargas as possible members of the Highland Street [gang]
whose members had previously assaulted [Gonzalez], [Gonzalez] knew he was provoking
Vargas to want to retaliate by hurting, and possibly shooting the victims. [¶] . . . [¶]
[Gonzalez] made NO efforts to minimize the possibility of violence during the crime. [¶]
Thus, [Gonzalez] was a major participant who acted with reckless indifference to human
life.”
DISCUSSION
I. S.B. 1437 and Section 1170.95
S.B. 1437, “amended sections 188 and 189 and added section 1170.95 to
the Penal Code, significantly modifying the law relating to accomplice liability for
murder.” (People v. Lopez (2019) 38 Cal.App.5th 1087, 1098-1099, review granted Nov.
13, 2019, S258175 (Lopez); Cal. Rules of Court, rule 8.1115(e)(1) [while review pending
may rely on for persuasive value].) Section 1170.95, subdivision (a), provides, in
relevant part, “A person 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 . . . .”
The Legislature enacted S.B. 1437 to “amend 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.” (§§ 188, 189, as amended by Stats. 2018, ch. 1015,
§ 1, subd. (f).)
Under section 1170.95, if the petitioner makes a prima facie showing, the
court must issue an OSC and, absent a waiver and stipulation by the parties, hold a
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hearing to determine whether to vacate the murder conviction, recall the sentence, and
resentence the petitioner. (§ 1170.95, subds. (c) & (d)(1).) A prima facie showing under
section 1170.95 requires the following: (1) an accusatory pleading was filed against the
petitioner allowing the prosecution to proceed under a theory of felony murder or murder
under the natural and probable consequences doctrine; (2) he or she was convicted of first
or second degree murder following a trial, or accepted a plea offer to first or second
degree murder in lieu of trial, at which he or she could have been so convicted; and (3) he
or she could not be convicted of murder due to the amendments to sections 188 and 189.
(§ 1170.95, subd. (a)(1)-(3).)
II. Challenge to the Special Circumstance Finding As a Matter of Law
The sole issue raised by the AG on appeal, one which the trial court did not
address, is Gonzalez is ineligible for relief as a matter of law because his murder
conviction included a robbery special circumstance under section 190.2, subdivision (d).
The AG asserts, “[u]nless and until [Gonzalez] invalidate[d] the special circumstance on
habeas, he is not entitled to resentencing under section 1170.95 as a matter of law.” We
disagree with the AG. Based on the record at this prima facie stage of review, we cannot
say Gonzalez is ineligible for resentencing as a matter of law. Accordingly, we reverse
and remand the postjudgment order for the trial court to issue an OSC as required by
section 1170.95, subdivision (c).
“Section 189, subdivision (e), which permits a felony-murder conviction
only when specified facts relating to the defendant’s individual culpability have been
proved, incorporates in subdivision (e)(3) the same requirements for proving the
defendant acted with reckless indifference to human life as a major participant in one of
the identified serious felonies as necessary for a felony-murder special-circumstance
finding under section 190.2, subdivision (d). The factors properly considered in
assessing such a felony-murder special-circumstance finding were clarified in Banks . . .
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and Clark . . . , nearly two decades after [Gonzalez’s] conviction. [Citations.]” (People
v. Harris (2021) 60 Cal.App.5th 939, 954 fn. omitted (Harris).)
“To be sure, section 189, subdivision (e)(3), as amended by Senate Bill
1437, is now ‘the same as the standard for finding a special circumstance under section
190.2[, subdivision] (d) as the former provision expressly incorporates the latter.’
[Citations.] But ‘[w]hat permits a defendant convicted of felony murder to challenge his
or her murder conviction based on the contention that he or she was not a major
participant in the underlying felony who acted with reckless indifference to human life,
are the changes Senate Bill 1437 made to sections 188 and 189, and in particular the
addition of section 189, subdivision (e)(3), not the rulings in Banks and Clark.’
[Citation.]” (Harris, supra, 60 Cal.App.5th at p. 957.)
In Banks, the Supreme Court identified the factors courts should consider in
determining whether a defendant was a “major participant” under section 190.2,
subdivision (d): “What role did the defendant have in planning the criminal enterprise
that led to one or more deaths? What role did the defendant have in supplying or using
lethal weapons? What awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or conduct of the other
participants? Was the defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after lethal force was used?”
(Banks, supra, 61 Cal.4th at p. 803, fn. omitted.)
The Clark court outlined considerations relevant to determining whether a
defendant had acted with reckless indifference to human life, such as: was the defendant
aware that guns would be used; did the defendant himself or herself use a gun; did the
defendant have an opportunity to reduce the overall risk of violence during the felony or
to aid the victim; and did the defendant know his or her cohorts were likely to use lethal
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force? (Clark, supra, 63 Cal.4th at pp. 618-622.) Banks and Clark both instruct to
determine whether the defendant acted with reckless indifference, courts must “look to
whether a defendant has “‘knowingly engag[ed] in criminal activities known to carry a
grave risk of death.”’ [Citations.]” (Banks, supra, 61 Cal.4th at p. 801.)
Here, the felony-murder special circumstance allegations required the jury
to find Gonzalez acted with reckless indifference to human life and as a major participant
in the robbery that resulted in Muro’s death (§ 190.2, subd. (a)(17)). The AG asserts the
jury’s true finding on the robbery special circumstance precludes relief under section
1170.95 as a matter of law. The AG contends the only mechanism for Gonzalez to test
the evidentiary support for the robbery special circumstance finding based on Banks and
Clark was by petition for writ of habeas corpus. We recognize there is a split of authority
on this issue, and the AG’s position has been upheld by several recent appellate
decisions. (People v. Murillo (2020) 54 Cal.App.5th 160, 168, review granted Nov. 18,
2020, S264978 (Murillo); People v. Galvan (2020) 52 Cal.App.5th 1134, 1142-1143,
review granted Oct. 14, 2020, S264284 (Galvan); People v. Gomez (2020)
52 Cal.App.5th 1, 17, review granted Oct. 14, 2020, S264033 (Gomez).) The Supreme
Court has not yet weighed in on this issue. We join several of our sister courts who have
rejected the argument advanced by the AG “as contrary to the language and intent of
section 1170.95.” (Harris, supra, 60 Cal.App.5th at p. 956; People v. York (2020)
54 Cal.App.5th 250, 260-261, review granted Nov. 18, 2020, S264954 (York); People v.
Smith (2020) 49 Cal.App.5th 85, 93-94, review granted July 22, 2020, S262835 (Smith);
People v. Torres (2020) 46 Cal.App.5th 1168, 1178-1179, review granted June 24, 2020,
S262011 (Torres).)
The Galvan court affirmed the trial court’s determination that “[b]y finding
a [pre-Banks and Clark] special circumstance allegation true, the jury makes precisely the
same finding it must make in order to convict a defendant of felony murder under the
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new law. Because a defendant with a felony-murder special circumstance could still be
convicted of murder, he is ineligible as a matter of law to have his murder conviction
vacated. . . . If [a defendant] is entitled to relief based on Banks and Clark, the avenue for
such relief is not section 1170.95, but a petition for writ of habeas corpus.” (Galvan,
supra, 52 Cal.App.5th at pp. 1141-1142.) We respectfully disagree with the Gomez,
Galvan, and Murillo line of cases. Instead, we join with the decisions in Harris, Torres,
Smith, and York.
The Gomez, Galvan, and Murillo line of cases misperceive the nature of the
section 1170.95 petition, which challenges the murder conviction, not the special
circumstance finding. (York, supra, 54 Cal.App.5th at p. 260 [“section 1170.95 permits a
petitioner to challenge a murder conviction” and if successful, “then under section
1170.95, subdivision (d)(3), the special circumstance is vacated as a collateral
consequence”].) We adopt the York court’s holding: “[W]e do not agree that section
1170.95 requires a defendant to challenge a pre-Banks and Clark special circumstance
finding in a habeas corpus proceeding before he or she may successfully challenge the
underlying murder conviction in a section 1170.95 proceeding. The statute does not state
that a true finding on a special circumstance allegation automatically precludes relief. To
the contrary, its language implies that there is no such bar to eligibility. Section 1170.95,
subdivision (d)(2), provides: ‘If there was a prior finding by a court or jury that the
petitioner did not act with reckless indifference to human life or was not a major
participant in the felony, the court shall vacate the petitioner’s conviction and resentence
the petitioner.’ We find it significant that the Legislature made no provision for the
consequence of a prior finding by a court or a jury that a petitioner was a major
participant and did act with reckless indifference to human life. If the Legislature had
intended such a finding automatically to preclude eligibility for relief, it could have said
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so. We will not read a preclusive provision into the statute absent any indication that the
Legislature intended one.” (Id. at pp. 260-261, fn. omitted.)
Here, Gonzalez’s petition is made possible by changes to section 189, not
because of the clarifications made in Banks and Clark. (See § 1170.95, subd. (a)(3)
[allowing petition if “[t]he petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective January 1, 2019”].)
Accordingly, Gonzalez properly challenged the underlying murder conviction pursuant to
section 1170.95. Furthermore, as discussed below, any evidence supporting the robbery
special circumstance finding has never been reviewed under the Banks and Clark
standards. Because the trial court may not engage in factfinding at this early stage, any
analysis under Banks and Clark was improper without first conducting an evidentiary
hearing pursuant to section 1170.95, subdivision (d).
III. Trial Court’s Factfinding
The AG argues Gonzalez was ineligible for resentencing based upon the
jury’s true finding on the robbery special circumstance, which we reject, but the trial
denied the petition on other grounds after citing to evidence in the record and engaging in
factfinding. The court summarily denied the petition after determining the facts of the
case, taken from our prior opinion, demonstrated Gonzalez was a major participant who
acted with reckless disregard for human life. However, some of the facts, made
particularly significant by the Supreme Court’s decisions in Banks and Clark, were
disputed at trial and not clearly resolved by the jury’s findings. This was also error.
The “authority to make determinations without conducting an evidentiary
hearing pursuant to section 1170.95, [subdivision] (d) is limited to readily ascertainable
facts from the record (such as the crime of conviction), rather than factfinding involving
the weighing of evidence or the exercise of discretion (such as determining whether the
petitioner showed reckless indifference to human life in the commission of the crime).”
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(People v. Drayton (2020) 47 Cal.App.5th 965, 980.) “If, accepting the facts asserted in
the petition as true, the petitioner would be entitled to relief because he or she has met the
requirements of section 1170.95[, subdivision] (a), then the trial court should issue an
order to show cause. [Citation.]” (Id. at pp. 980-981.)
Here, it is clear the trial court engaged in factfinding, improper at the prima
facie stage of review, to determine whether the evidence supported Gonzalez’s conviction
on the robbery special circumstance in light of the post-Banks and Clark standards. The
court cited to evidence in the record including our opinion on direct appeal. After a
lengthy analysis of the facts under the post-Banks and Clark standards, it then determined
sufficient evidence supported a finding Gonzalez acted with implied malice, and he “was
a major participant who acted with reckless indifference to human life.”
Tellingly, the AG concedes, “the superior court did not follow the proper
procedures in that it appeared to find the prima facie stages met but skipped the OSC and
hearing before weighing the evidence and deciding that [Gonzalez] was not entitled to
resentencing . . . .” We agree the court misunderstood its statutory duties. Factfinding
following an evidentiary hearing is necessary to determine whether Gonzalez could be
convicted of felony murder under the current version of section 189, subdivision (e).
Accordingly, the trial court, after determining Gonzalez made a prima facie showing of
eligibility, was required to issue an OSC and hold a hearing pursuant to section 1170.95,
subdivisions (c) and (d).
IV. Preclusion
Finally, Gonzalez asserts his petition is not precluded under the theories of
res judicata, collateral estoppel, or law of the case. We agree.
“The claim preclusion doctrine, formerly called res judicata, ‘prohibits a
second suit between the same parties on the same cause of action.’ [Citation.] ‘Claim
preclusion arises if a second suit involves (1) the same cause of action (2) between the
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same parties (3) after a final judgment on the merits in the first suit.’ [Citation.]” (Kim v.
Reins International California, Inc. (2020) 9 Cal.5th 73, 91.) Furthermore, when the law
authorizes a particular postjudgment remedy, like section 1170.95, claim preclusion does
not apply to invocation of that remedy. (See McCready v. Whorf (2015) 235 Cal.App.4th
478, 482.)
There is no claim preclusion here because Gonzalez did not challenge the
prosecution’s cause of action on the special circumstance. Gonzalez seeks relief from the
conviction, which is not the same cause of action as the special circumstance. The
petition addresses only the first degree murder conviction, as expressly provided by
section 1170.95.
As for issue preclusion or collateral estoppel, it “precludes relitigation of
issues argued and decided in prior proceedings. [Citation.] Traditionally, we
have applied the doctrine only if several threshold requirements are fulfilled. First, the
issue sought to be precluded from relitigation must be identical to that decided in a
former proceeding. Second, this issue must have been actually litigated in the former
proceeding. Third, it must have been necessarily decided in the former proceeding.
Fourth, the decision in the former proceeding must be final and on the merits. Finally,
the party against whom preclusion is sought must be the same as, or in privity with, the
party to the former proceeding. [Citations.]” (Lucido v. Superior Court (1990) 51 Cal.3d
335, 341, fn. ommitted.)
Here, defense counsel did not “actually litigate” the robbery special
circumstance. Instead, he argued Gonzalez was not guilty of murder at all. Because
Gonzalez made no effort to litigate the special circumstance, and had no reason to do so,
the “actually litigated” element of collateral estoppel is not satisfied by the jury’s true
finding. Therefore, the jury’s prior special circumstance finding has no preclusive effect
on a current section 1170.95 proceeding.
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Furthermore, section 1170.95, subdivision (d)(2), expressly provides, ‘“[i]f
there was a prior finding by a court or jury that the petitioner did not act with reckless
indifference to human life or was not a major participant in the felony, the court shall
vacate the petitioner’s conviction and resentence the petitioner.”’ It omits any reference
to a felony-murder special circumstance true finding being “an automatic statutory bar”
to resentencing eligibility. (Smith, supra, 49 Cal.App.5th at p. 94.) “[T]he potential
remedies outlined in section 1170.95 indicate that the Legislature anticipated some
special circumstance findings would not preclude eligibility as a matter of law, and that
those findings would be inconsistent with vacatur of the corresponding murder
conviction. Section 1170.95, subdivision (d)(3) provides, ‘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.’ . . . The statute is clearly designed to resolve the question of whether
a murder conviction—not a special circumstance—is sufficiently supported. If the
conviction cannot stand, the special circumstance will necessarily be vacated as well.”
(Ibid.)
Other resentencing provisions categorically disqualify certain classes of
people for eligibility for relief. (See e.g., §§ 1170, subd. (d)(2)(A)(ii) [disqualifying
inmates sentenced to life without parole for offense involving torture or when victim was
law enforcement or other public safety officer]; 1170.02 [disqualifying from eligibility
for compassionate release under § 1170, subd. (e), inmates convicted of first degree
murder of a peace officer]; 1170.126, subds. (c), (e)(2) & (e)(3) [disqualifying from
Proposition 36 relief second-strike inmates, and inmates who suffered prior convictions
for specified offenses]; 1170.18, subd. (i) [disqualifying from Proposition 47 relief
anyone with prior conviction of specified offenses].) Because section 1170.95 is devoid
of any language disqualifying defendants facing a felony-murder special circumstance
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finding, collateral estoppel cannot operate as a categorical preclusion bar to a section
1170.95 petition.
Finally, the law of the case principle is also inapplicable. “Where an
appellate court states in its opinion a principle of law necessary to the decision, that
principle becomes law of the case and must be adhered to in all subsequent proceedings
. . . under the doctrine of the law of the case, the case may not go over ground that has
been covered before in an appellate court.” (Sargon Enterprises, Inc. v. University of
Southern California (2013) 215 Cal.App.4th 1495, 1506.) This doctrine, however, “does
not extend to points of law which might have been but were not presented and
determined on a prior appeal. [Citation.]” (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127.)
Our prior opinion did not address the issues of whether Gonzalez was a major participant
in the felony or acted with reckless indifference to human life. Accordingly, the law of
the case is inapplicable to the jury’s prior special circumstance finding.
DISPOSITION
The postjudgment order denying Gonzalez’s section 1170.95 petition is
reversed, and the matter remanded with directions to issue an OSC and to proceed
consistently with section 1170.95, subdivision (d).
O’LEARY, P.J.
WE CONCUR:
BEDSWORTH, J.
GOETHALS, J.
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