People v. Gonzales CA4/3 ( 2023 )

Filed 12/19/23 P. v. Gonzales CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G062229
v. Super. Ct. No. 06CF3111
CARLOS ROSARIO GONZALES, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County, Sheila
F. Hanson, Judge. Affirmed.
Cindy Brines, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
* * *
In 2009, a jury found Carlos Rosario Gonzales guilty of first degree murder and
found true firearm allegations. He received a sentence of 75 years to life, plus five years.
In 2022, he filed a petition for resentencing pursuant to Penal Code section 1172.6.1 The
trial court denied the petition without an Order to Show Cause, finding Gonzales failed to
state a prima facie case for resentencing relief.
Gonzales appealed, and his appointed counsel filed a brief under the
procedures outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende) and People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), stating no arguable issues could result in a
disposition more favorable to Gonzales (id. at p. 232). Gonzales filed a supplemental
brief raising numerous issues. As discussed below, we find no reasonably arguable issue
on appeal. We therefore affirm.
FACTS
On October 19, 2009, a jury found Gonzales guilty of first degree murder
(§ 187, subd. (a)), and found true the allegations he personally used a firearm during the
commission of the murder and he personally and intentionally discharged a firearm
proximately causing the death of the victim (§§ 12022.5, subd. (a), 12022.53, subd. (d)).
After Gonzales appealed, this court affirmed his murder conviction, but remanded for
resentencing. (People v. Gonzales (March 27, 2012, G044503) [nonpub. opn.].)
Subsequently, the trial court sentenced Gonzales to an indeterminate term of 75 years to
life, plus a consecutive term of five years.
On August 2, 2022, Gonzales filed a petition for resentencing. The court
appointed counsel on August 19, 2022. The district attorney filed a response, requesting
a prima facie hearing and arguing that the petition should be denied at the hearing.
Appointed counsel filed a reply, and Gonzales personally filed a supplemental prima
facie brief.
1 All further statutory references shall be to the Penal Code.
2
After considering all the briefing and the parties’ arguments at the prima
facie hearing, the court denied the resentencing petition. The court found after a review
of the jury instructions and verdict forms that the jury was not instructed on any theory of
liability for murder that required malice be imputed to Gonzales. Specifically, the
instructions did not reference — and no separate instruction was given — regarding “the
felony murder rule, conspiracy, natural and probable consequences, or the involvement of
another perpetrator.” The court concluded Gonzales failed to establish a prima facie case
for relief because the jury could not have improperly imputed malice to him based on his
participation in a crime.
Gonzales timely appealed.
DISCUSSION
Following Wende/Delgadillo guidelines, we have reviewed counsel’s brief,
Gonzales’s supplemental brief, and the appellate record.
Section 1172.6 provides in pertinent part: a “person convicted of . . .
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
. . . 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 when all of
the following conditions apply: [¶] (1) A[n] . . . information . . . 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
. . . . [¶] (2) The petitioner was convicted of murder . . . following a trial . . . . [¶] (3) The
petitioner could not presently be convicted of murder . . . because of changes to Section
188 or 189 made effective January 1, 2019.” (§ 1172.6, subd. (a).)
“‘We independently review a trial court's determination on whether a
petitioner has made a prima facie showing.’ [Citation.]” (People v. Lee (2023) 95
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Cal.App.5th 1164, 1174.) A petitioner is ineligible for resentencing relief if “the jury was
not instructed on any theory of liability for murder . . . that required that malice be
imputed to him.” (People v. Cortes (2022) 75 Cal.App.5th 198, 205.) A review of the
record of conviction, including the jury instructions, shows that appellant was not
convicted based on a now invalid malice theory. Gonzales thus is ineligible for
resentencing relief as a matter of law. (Cf. People v. Harden (2022) 81 Cal.App.5th 45,
52 [“For example, if the record shows that the jury was not instructed on either the
natural and probable consequences or felony-murder doctrines, then the petitioner is
ineligible for relief as a matter of law.”].)
In his supplemental brief, Gonzales argues that he did not have the intent to
kill when he fired the gun. He also raises numerous trial evidentiary issues, including:
(1) the jury was not allowed to hear evidence that he was pepper sprayed; (2) trial counsel
was ineffective; (3) the prosecutor committed misconduct; and (4) the trial court erred in
admitting evidence of petitioner’s prior felony convictions to impeach hearsay
statements. He also argues this court should exercise our discretion to strike his firearm
enhancements and the evidence was insufficient to support his murder conviction.
Gonzales has not shown how these issues are relevant to the court’s ruling on his
resentencing petition. In any case, we conclude Gonzales has forfeited these arguments
by not raising them in his direct appeal. (Cf. People v. Burns (2023) 95 Cal.App.5th 862,
868, fn. omitted [“His failure to raise the argument on direct appeal forfeited that claim
[citation], and the subsequent petition process created by the Legislature when it enacted
Senate Bill No. 1437 did nothing to change the applicable law so as to resurrect an
argument he had already abandoned.”].)
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Our review of the entire record does not show the existence of an arguable
issue. (Wende, supra, 25 Cal.3d at pp. 442-443.) Consequently, we affirm the
postjudgment order.
DISPOSITION
The trial court’s postjudgment order denying resentencing relief is
affirmed.
DELANEY, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
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