People v. Gonzalez CA2/6

Filed 5/12/23 P. v. Gonzalez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B321634
(Super. Ct. No. CR31081)
Plaintiff and Respondent, (Ventura County)
v.
FRANCISCO GONZALEZ,
Defendant and Appellant.
Francisco Gonzalez appeals the trial court’s denial of his
motion for resentencing pursuant to Penal Code section 1172.6.1
We conclude that the court properly denied Gonzalez’s motion
because, as the actual shooter, he is ineligible for relief pursuant
to section 1172.6 as a matter of law. (People v. Lewis (2021) 11
Cal.5th 952, 959, 971; People v. Hurtado (2023) 89 Cal.App.5th
887, 892-893.) We affirm.
In December 1992, Gonzalez and an accomplice, Mark
Estrada, attempted to rob an Oxnard convenience store.
1 All statutory references are to the Penal Code.
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Gonzalez used a .45 caliber handgun in committing the crime;
Estrada was unarmed. The shopkeeper was armed, however, and
a gun battle ensued. During an exchange of gunfire with
Gonzalez, the shopkeeper shot and killed Estrada. Gonzalez
later pleaded guilty to two charged counts and admitted the
personal firearm use allegations in the felony complaint.
FACTUAL AND PROCEDURAL HISTORY
On February 3, 1993, Gonzalez, then 17 years old, pleaded
guilty to one count of first degree murder and one count of
attempted murder. (§§ 187, subd. (a), 189, 664.) He also
admitted that during commission of the offenses, he personally
used a firearm. (§ 12022.5, subd. (a).) Gonzalez expressly agreed
that the trial court could consider the probation report to be
prepared, as well as the 21-page juvenile fitness report, as the
factual basis for his plea.2
Factual Basis in Probation Report
Gonzalez acquired a .45 caliber automatic handgun from a
friend and displayed it to his brother. On December 2, 1992,
Gonzalez and companion Estrada left the Gonzalez family
residence carrying beanies.
The two men went into an Oxnard convenience store
wearing dark clothing and beanie masks. Gonzalez approached
the clerk (the shopkeeper’s wife) sitting near the cash register,
pointed the handgun at her, and demanded money. The clerk
screamed for her shopkeeper husband who was in the back office
of the store.
2 The appellate record contains the probation report but not
the fitness report. The superior court clerk has filed a certificate
stating that the fitness report cannot be located.
2
The shopkeeper grabbed a .38 caliber revolver that he kept
in the office and walked into the store area. Upon seeing the
shopkeeper with a firearm, Gonzalez ran toward the door. As he
reached the doorway, Gonzalez turned, raised his hand, and shot
at the shopkeeper’s head who then returned fire. The trajectory
of the bullet that Gonzalez fired resulted in the bullet landing on
the shopkeeper’s office chair.
As the shopkeeper continued walking inside the store, he
saw Estrada. The shopkeeper mistakenly believed that Estrada
was holding a firearm and might shoot him, so he shot Estrada.
Estrada stumbled from the store into the parking lot. As the
shopkeeper stood in the doorway of the store, Gonzalez continued
shooting at him from the parking lot. The shopkeeper returned
fire as Gonzalez and Estrada ran away. Estrada died later at the
hospital.
When questioned by police officers, Gonzalez initially
denied using a firearm to rob the convenience store. He then
admitted that he shot at the shopkeeper when he saw that the
shopkeeper was armed. Gonzalez stated that after running from
the store, he threw the .45 caliber firearm into a drainage ditch.
In a later interview, Gonzalez stated that the shopkeeper shot
first and that he (Gonzalez) returned fire from outside the store.
Oxnard police officers found the .45 caliber firearm near a
drainage ditch; the magazine was empty but a hollow point bullet
was in the chamber. The firearm’s safety was in the off position
and the hammer was in the cocked position.
Sentencing and Section 1172.6 Petition
At sentencing, the trial court imposed a sentence of 25-
years-to-life imprisonment for the murder conviction plus a
consecutive four-year prison term for the personal firearm use
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enhancement. The court stayed sentence pursuant to section 654
for the attempted murder conviction and its attendant firearm
use enhancement.
On May 9, 2022, Gonzalez, represented by counsel, filed a
petition to vacate his conviction pursuant to section 1172.6. The
petition alleged that the prosecution rested upon a theory of
felony murder, murder pursuant to the natural and probable
consequences doctrine, or another theory where malice is
imputed to a person solely on his participation in a crime. The
prosecutor opposed the petition and requested that the court take
judicial notice of the 1993 probation report. The prosecutor also
asserted that Gonzalez’s conviction rested upon the theory of
provocative act murder, not felony murder. (People v. Mancilla
(2021) 67 Cal.App.5th 854, 867-868.) Gonzalez did not file a reply
brief but unsuccessfully opposed the prosecutor’s request
regarding the probation report.
On September 3, 2020, the trial court denied the
resentencing petition based upon Gonzalez’s 1993 guilty pleas
and admissions and the evidence set forth in the probation and
fitness reports. The trial judge stated that the court file
indicated that Gonzalez was a major participant in the
underlying felony and acted with reckless indifference to human
life.
DISCUSSION
Gonzalez contends that the trial court erred by denying his
resentencing petition without issuing an order to show cause and
holding an evidentiary hearing. (§ 1172.6, subd. (c).)
A person is entitled to resentencing relief pursuant to
section 1172.6 if (1) “[a] complaint, information, or indictment
was filed against the petitioner that allowed the prosecution to
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proceed under a theory of felony murder [or] murder under the
natural and probable consequences doctrine,” (2) the petitioner
“was convicted of murder,” and (3) the petitioner “could not
presently be convicted of murder . . . because of changes to
Section 188 or 189 made effective January 1, 2019.” (Id., subd.
(a)(1)-(3).) In January 2019, our Legislature amended section 188
to provide that “in order to be convicted of murder, a principal in
a crime shall act with malice aforethought” and that “[m]alice
shall not be imputed to a person based solely on his . . .
participation in a crime.” (Id., subd. (a)(3), Stats. 2018, ch. 1015,
§ 2.) The amendment ensures 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. (People v. Lewis, supra, 11 Cal.5th 952, 959.) Section 1172.6
provides a procedure for convicted murderers who could not be
convicted under the amended law to retroactively seek relief.
Effective January 2022, section 1172.6, subdivision (a),
permits relief if an attempted murder conviction may have been
based upon a natural and probable consequences theory. (People
v. Coley (2022) 77 Cal.App.5th 539, 548.) This recent amendment
also recognized “the trial court’s authority to promptly screen out
petitions by categorically ineligible defendants.” (People v.
Hurtado, supra, 89 Cal.App.5th 887, 892.)
The trial court may consider the petitioner’s record of
conviction, including the court’s own documents, in assessing
whether a petitioner has made a prima facie case for relief
pursuant to section 1172.6. (People v. Lewis, supra, 11 Cal.5th
952, 972.) If the record, including the court’s own documents,
contains facts refuting the allegations in the petition, the court
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may make a credibility determination adverse to the petitioner.
(Id. at p. 971.) We independently review the summary denial of a
resentencing petition pursuant to section 1172.6. (People v.
Coley, supra, 77 Cal.App.5th 539, 545.)
The trial court properly denied Gonzalez’s resentencing
petition because he is ineligible for relief as a matter of law. The
undisputed facts in the record of conviction as well as Gonzalez’s
plea and admissions establish that he was the actual shooter who
attempted to murder the shopkeeper. As Gonzalez was leaving
the store, he shot at the shopkeeper. After leaving the store,
Gonzalez continued to shoot at the shopkeeper from the parking
lot. Gonzalez later directed police officers to the location of the
firearm that he tossed into the drainage ditch. The felony
complaint alleged that Gonzalez, with malice aforethought,
committed first degree murder and attempted murder, and
personally used a firearm in the commission of the offenses. The
record of conviction conclusively establishes that Gonzalez
attempted to murder the shopkeeper by shooting him. (People v.
Delgadillo (2022) 14 Cal.5th 216, 233 [record makes clear that
defendant was the actual killer and only participant]; People v.
Garrison (2021) 73 Cal.App.5th 735, 743 [lack of evidence that
anyone else had a firearm and shot victim].) This evidence
establishes that Gonzalez’s prosecution did not rest upon a theory
of liability of imputed malice.
Gonzalez contends that the trial court erred by relying
upon the probation report because it is not part of the record of
conviction. (People v. Rivera (2021) 62 Cal.App.5th 217, 235
[grand jury transcript as factual basis for plea not part of record
of conviction]; People v. Flores (2022) 76 Cal.App.5th 974, 991-
992.) We disagree. (People v. Nguyen (2020) 53 Cal.App.5th
61154, 1161, 1166-1167 [defendant stipulated that preliminary
examination transcript and police reports would provide factual
basis for his plea; litigants agreed that section 1172.6
resentencing court could review same].) Here Gonzalez
stipulated that the probation report provided a factual basis for
his plea. He admitted therein that he was the actual shooter and
the only robber with a firearm. During police questioning,
Gonzalez stated that he shot at the shopkeeper when the
shopkeeper walked into the store area holding a firearm. “The
record of conviction will necessarily inform the trial court’s prima
facie inquiry under section [1172.6], allowing the court to
distinguish petitions with potential merit from those that are
clearly meritless.” (People v. Lewis, supra, 11 Cal.5th 952, 971.)
Gonzalez also contends that an evidentiary hearing was
required to establish the theory of provocative act murder,
including his mental states of premeditation and deliberation, in
committing the attempted murder of the shopkeeper.
Pursuant to the provocative act doctrine, “when the
perpetrator of a crime maliciously commits an act that is likely to
result in death, and the victim kills in reasonable response to
that act, the perpetrator is guilty of murder.” (People v. Gonzalez
(2012) 54 Cal.4th 643, 655.) The doctrine has two elements: 1)
the defendant must personally harbor the mental state of malice,
and 2) either the defendant or an accomplice intentionally
committed a provocative act that proximately caused an unlawful
killing. (Ibid.) The provocative act doctrine does not impute
malice at all, and certainly does not impute it based solely on a
defendant’s participation in a crime. (People v. Mancilla, supra,
67 Cal.App.5th 854, 867-868.)
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The provocative act doctrine is distinguishable from felony-
murder and the natural and probable consequences doctrines.
The felony-murder rule does not apply where an accomplice is
killed by the victim or another third party. (People v. Gonzalez,
supra, 54 Cal.4th 643, 654-655.) “The classic provocative act
scenario occurs when a perpetrator of the underlying crime
instigates a gun battle, usually by firing first, and a police officer,
or victim of the underlying crime, responds with privileged lethal
force by returning fire and kills the perpetrator’s accomplice.”
(People v. Mejia (2012) 211 Cal.App.4th 586, 602-603.) Here
Gonzalez shot at the shopkeeper at head level and the
shopkeeper returned fire and struck Estrada. Gonzalez pleaded
guilty to attempted murder and admitted that he harbored
malice aforethought.
The natural and probable consequences doctrine could not
have applied to convict Gonzalez because the doctrine requires a
killing by a principal involved in a target crime. (People v. Mejia,
supra, 211 Cal.App.4th 586, 628.) Thus, the only theory
applicable to prosecute Gonzalez was provocative act murder, a
doctrine that does not impute malice based upon a defendant’s
participation in a crime. Gonzalez cannot establish that he is
eligible for relief pursuant to the methods set forth in section
1172.6 regarding implied malice.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J. BALTODANO, J.
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David R. Worley, Judge
Superior Court County of Ventura
______________________________
Wayne C. Tobin, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
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