People v. Gonzalez CA4/2 ( 2023 )

Filed 12/21/23 P. v. Gonzalez CA4/2
See Dissenting Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E082083
v. (Super.Ct.No. RIF146726)
RUPERTO CORTEZ GONZALEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Dismissed.
Jason L. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
On October 27, 2009, a jury found defendant and appellant Ruperto Cortez
Gonzalez guilty of attempted murder (Pen. Code, §§ 664, 187, subd. (a), count 1)1 and
1 All further statutory references are to the Penal Code.
1
assault with a firearm (§ 245, subd. (a)(2), count 3). The jury also found true an
allegation attached to the count 1 offense that defendant personally discharged a firearm
proximately causing great bodily injury. (§ 12022.53, subd. (d).) As to the count 3
offense, the jury found true an allegation that defendant personally used a firearm (§
12022.5, subd. (a)) and personally inflicted great bodily injury upon the victim
(§ 12022.7, subd. (a)). The court sentenced defendant to an indeterminate term of
imprisonment of life with the possibility of parole, plus a consecutive term of 25 years to
life.2 (Gonzalez I, supra, E050275; Gonzalez II, supra, E074482.)
On October 17, 2022, defendant filed a second form petition for resentencing
pursuant to former section 1170.95.3 (Gonzalez II, supra, E074482.) At a prima facie
hearing on September 1, 2023, the trial court denied the petition after reviewing the jury
instructions and finding that the jury did not convict defendant on a theory of imputed
malice.
On appeal, defendant’s appointed counsel has filed a brief pursuant to People v.
Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the case and
identifying one potentially arguable issue: whether the court erred in denying
defendant’s petition after reviewing the jury instructions presented at defendant’s trial.
2 We take judicial notice of our prior nonpublished opinions from defendant’s
appeal from the original judgment (People v. Gonzalez (May 31, 2011, E050275)
(Gonzalez I)), and his appeal from his first former section 1170.95 petition (People v.
Gonzalez (July 27, 2020, E074482) (Gonzalez II)), the former of which the People
requested the court below take judicial notice.
3 Effective June 30, 2022, Assembly Bill No. 200 (2021-2022 Reg. Sess.)
amended and renumbered section 1170.95 as section 1172.6. (Stats. 2022, ch. 58, § 10.)
2
We gave defendant the opportunity to file a personal supplemental brief. We
noted that if he did not do so, we could dismiss the appeal; nevertheless, he has not filed
one. Under these circumstances, we have no obligation to independently review the
record for error. (Delgadillo, supra, 14 Cal.5th. at pp. 224-231.) Rather, we dismiss the
appeal. (Id. at pp. 231-232.)
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
I concur:
MENETREZ
J.
3
[People v. Gonzalez, E082083]
RAMIREZ, P.J.
I respectfully dissent. Defendant had the benefit of an independent review of the
record in his appeal from the July 2020 denial of his first section 1170.95 (now
renumbered as 1172.6) petition. (People v. Gonzalez (July 27, 2020, E074482) [nonpub.
opn.].) Since then, however, Penal Code section 1172.6 was amended to expand its reach
to include, inter alia, persons convicted of murder under any theory under which malice is
imputed to a person based solely on that person’s participation in a crime and persons
convicted of attempted murder under the natural and probable consequences doctrine.
(Stats. 2021, ch. 551, § 2 (Sen. Bill No. 775), eff. Jan. 1, 2022.) In view of the
amendments and for the reasons set forth in People v. Griffin (2022) 85 Cal.App.5th 329,
I would exercise the discretion afforded by our Supreme Court in People v. Delgadillo
(2022) 14 Cal.5th 216, 232 to conduct an independent review of the record.
RAMIREZ
P. J.
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