People v. Gonzalez CA2/5 ( 2020 )

Filed 11/30/20 P. v. Gonzalez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B300650
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA072648)
v.
BENJAMIN GONZALEZ et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Tomson T. Ong, Judge. Reversed and remanded with
directions.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant Benjamin Gonzalez.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant Gilbert Gomez.
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant Gerson Bazan.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Stephanie C.
Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
I. INTRODUCTION
Defendants and appellants Benjamin Gonzalez, Gilbert
Gomez, and Gerson Bazan appeal from the trial court’s denial of
their Penal Code section 1170.951 petitions for resentencing. We
reverse and remand for further proceedings as set forth below.
II. PROCEDURAL BACKGROUND
A jury convicted defendants of first degree murder (§ 187,
subd. (a)) and found true the allegation that the murder was
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)).2 The trial court sentenced Gomez and Bazan to 25
years to life in state prison and Gonzalez to 50 years to life in
state prison under the Three Strikes law (§§ 667, 1170.12). With
modifications not relevant to this appeal, a prior panel of this
1 All further statutory references are to the Penal Code.
2 The jury also convicted Spencer Bazan, Gerson Bazan’s
brother, of first degree murder and found true the gang allegation
and the allegation that he personally used a knife in the
commission of the crime (§ 12022, subd. (b)(1)). Spencer Bazan is
not a party to this appeal. All further references to “Bazan” are
to Gerson Bazan.
2
court affirmed defendants’ convictions. (People v. Gonzalez
(Feb. 10, 2010, B211559) [nonpub. opn.].)
In January 2019, defendants filed petitions for
resentencing pursuant to section 1170.95.3 The trial court
appointed counsel for defendants and ordered the District
Attorney to file responses to the petitions.4 The District Attorney
filed an opposition to the petitions, arguing that Senate Bill
No. 1437 (Senate Bill 1437) impermissibly amended two
California voter initiatives (Propositions 7 and 115); violated the
California Constitution insofar as it purported to vacate final
judgments in criminal cases; and violated the separation of
powers doctrine by commanding courts to reopen final judgments
and by infringing upon the Governor’s pardon and commutation
power. Gomez and Bazan filed replies. Counsel for Gonzalez
elected not to file a reply. The trial court agreed with the District
Attorney’s arguments and denied the petitions.
3 Bazan filed a form petition for a writ of habeas corpus.
Finding that the crux of that petition concerned “‘Senate Bill
1437, Petition for Resentencing, P.C. 1170.95,’” the trial court
treated the petition as a petition for resentencing.
4 The record contains prepared orders for Gomez and Bazan.
A minute order suggests the trial court prepared an order
concerning Gonzalez’s petition that appointed counsel for
Gonzalez and ordered the District Attorney to file a response to
Gonzalez’s petition. That order is not a part of the record on
appeal.
3
III. DISCUSSION
“Through section 1170.95, Senate Bill 1437 created a
petitioning process by which a defendant convicted of murder
under a felony murder theory of liability [or the natural and
probable consequences doctrine] could petition to have his
conviction vacated and be resentenced. Section 1170.95 initially
requires a court to determine whether a petitioner has made a
prima facie showing that he or she falls within the provisions of
the statute as set forth in subdivision (a), including that ‘(1) [a]
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine[,] [¶] (2) [t]he petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder[, and] [¶]
(3) [t]he petitioner could not be convicted of first or second degree
murder because of changes to [s]ection[s] 188 or 189 made
effective January 1, 2019.’ (See § 1170.95, subd. (c); People v.
Verdugo (2020) 44 Cal.App.5th 320, 327 . . ., review granted
Mar. 18, 2020, [S260493] (Verdugo).) If it is clear from the record
of conviction that the petitioner cannot establish eligibility as a
matter of law, the trial court may deny the petition. (Verdugo,
[supra, 44 Cal.App.5th] at p. 330.) If, however, a determination
of eligibility requires an assessment of the evidence concerning
the commission of the petitioner’s offense, the trial court must
appoint counsel and permit the filing of the submissions
contemplated by section 1170.95. ([Id.] at p. 332; [People v.]
Lewis [(2020)] 43 Cal.App.5th [1128,] 1140, rev[iew] granted
4
[Mar. 18, 2020, S260598].)” (People v. Smith (2020) 49
Cal.App.5th 85, 92, review granted (July 22, 2020, S262835), fn.
omitted.)
Defendants argue the trial court erred in ruling that
Senate Bill 1437 impermissibly amended Propositions 7 and 115
and that section 1170.95 violates the California Constitution.5
The Attorney General concedes the trial court erred. We agree
with the parties and our sister courts that Senate Bill 1437 did
not directly modify or amend the statutory changes effected by
Propositions 7 and 115 and that section 1170.95 does not violate
the California Constitution. (People v. Bucio (2020) 48
Cal.App.5th 300, 307–312; People v. Solis (2020) 46 Cal.App.5th
762, 774–780; People v. Cruz (2020) 46 Cal.App.5th 740, 753–759;
People v. Superior Court (Gooden) (2019) 42 Cal.App.5th 270,
280–284; People v. Lamoureux (2019) 42 Cal.App.5th 241, 250–
251.)
5 Bazan limits his arguments to section 1170.95’s
constitutionality.
5
IV. DISPOSITION
The orders are reversed. The matter is remanded to the
trial court for further proceedings consistent with this opinion
and section 1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
MOOR, J.
6