Opinion
B330419
04-23-2024
THE PEOPLE, Plaintiff and Respondent, v. EVERETT GONZALEZ, Defendant and Appellant.
Joshua L. Siegel, under appointment by the Court of Appeal, and Everett Gonzalez, in pro. per., for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from a postjudgment order of the Superior Court of Los Angeles County, No. KA010081 Rogelio G. Delgado, Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of Appeal, and Everett Gonzalez, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ZUKIN, J.
INTRODUCTION
In 1992, defendant Everett Gonzalez was convicted of first degree murder after a jury trial. His conviction was affirmed on direct appeal. In 2022, Gonzalez filed a resentencing petition under Penal Code section 1170.95 (1172.6). The trial court denied the petition after an evidentiary hearing, concluding Gonzalez was ineligible for relief because he was a direct aider and abettor who harbored the intent to kill.
Effective June 30, 2022, section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For ease of reference, we will refer to the section by its new numbering only. All further statutory references are to the Penal Code.
On appeal, appointed counsel filed a brief that summarized the procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to People v. Delgadillo (2022) 14 Cal.5th 216. Gonzalez submitted his own letter brief raising several issues. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the unpublished opinion on Gonzalez's direct appeal. (People v. Gonzalez (Sept. 29, 1994, B075164) [nonpub. opn.].)
In 1991, Luiz Figueroa and Juan Lopez were walking down Valley Boulevard in El Monte. Figueroa and Lopez were approached by Gonzalez and three other men. Two of the men began fighting with Lopez, and two demanded money from Figueroa. They searched Figueroa's pockets and took 25 cents from him.
During the struggle, Figueroa saw Gonzalez throw a gun to one of his companions and heard Gonzalez say, "Shoot him, shoot him." Subsequently, the man with the gun shot Lopez in the chest at close range. Gonzalez saw Lopez get shot. Gonzalez did not render aid to Lopez after the shooting. He ran with the attackers to a car and drove off. Lopez was taken to the hospital and later died from the gunshot wound.
In 1992, a jury found Gonzalez guilty of first degree murder (§ 187, subd. (a)). The jury found true the allegation that during the commission of the offense a principal was armed with a firearm (§ 12022, subd. (a)(1)). The court sentenced Gonzalez to one year plus life in state prison without the possibility of parole.
In 1994, this court affirmed the judgment.
In February 2019, Gonzalez filed, in pro. per., a petition for resentencing under section 1172.6. The trial court denied the petition, finding that Gonzalez failed to establish a prima facie case that he was entitled to relief.
In June 2022, Gonzalez again filed, in pro. per., a petition for resentencing. The court appointed counsel. On April 21, 2023, the trial court denied the petition after an evidentiary hearing. The court concluded beyond a reasonable doubt Gonzalez was guilty of first degree murder under current law as a direct aider and abettor who harbored the intent to kill.
Gonzelez filed a timely notice of appeal.
DISCUSSION
In his supplemental brief, Gonzalez appears to challenge the trial court's ineligibility finding as being unsupported by substantial evidence. He also challenges the credibility of eyewitness testimony in the original trial. We reject these contentions and affirm the order denying Gonzalez relief.
A. Governing Principles
Senate Bill No. 1437 (2017-2018 Reg. Sess.) limited accomplice liability under the felony-murder rule, eliminated the natural and probable consequences doctrine as it relates to murder, and eliminated convictions for murder based on a theory under which malice is imputed to a person based solely on that person's participation in a crime. (See generally People v. Reyes (2023) 14 Cal.5th 981; People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile).) Senate Bill No. 1437 (SB 1437) added section 189, subdivision (e) (limiting application of the felony-murder rule) and section 188, subdivision (a)(3) (stating that "to be convicted of murder, a principal in a crime shall act with malice aforethought" and "[m]alice shall not be imputed to a person based solely on his or her participation in a crime").
SB 1437 also created a procedure, codified in section 1172.6, for a person convicted of murder under the former law to be resentenced if the defendant could no longer be convicted of those crimes under the current law. (Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at p. 847.) A defendant commences that procedure by filing a petition containing a declaration that, among other things, the defendant could not presently be convicted of murder, attempted murder, or voluntary manslaughter under the current law. (People v. Strong (2022) 13 Cal.5th 698, 708.) If a petition establishes a prima facie case for relief, the trial court must appoint counsel if requested, issue an order to show cause, and hold an evidentiary hearing. (Strong, at pp. 708-709; § 1172.6, subds. (b)(3), (c), &(d)(1).)
We review the trial court's finding that Gonzalez is guilty of murder under current law for substantial evidence. (See People v. Nieber (2022) 82 Cal.App.5th 458, 476.)
B. Analysis
In his letter brief, Gonzalez challenges the sufficiency of the evidence of the first degree murder conviction. He argues that because Figueroa's testimony was not credible, there is insufficient evidence in the record demonstrating he is guilty of murder under current law. Because we do not substitute our own evaluation of witness credibility with that of the court, we reject Gonzalez's argument. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also People v. Farfan (2021) 71 Cal.App.5th 942, 947 ["[t]he mere filing of a section [1172.6] petition does not afford the petitioner a new opportunity to . . . attack the sufficiency of the evidence supporting the jury's findings"].) Moreover, Gonzalez's questioning of the evidence against him at his original trial does not demonstrate that the court erred in denying his petition for resentencing. (People v. Gonzalez (2021) 12 Cal.5th 367, 410 [it is the appellant's burden to affirmatively demonstrate error].)
We further conclude substantial evidence supports the trial court's finding that Gonzalez is guilty of first degree murder under current law. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [in assessing sufficiency of the evidence, we review the record in the light most favorable to the trial court's finding, assessing whether any reasonable trier of fact could reach the finding being challenged on appeal].) As the trial court observed, Figueroa testified that he saw Gonzalez throw the shooter the handgun as the victim resisted the robbery. Figueroa also testified that Gonzalez told the shooter, "Shoot him, shoot him." Gonzalez subsequently fled the scene after his companion shot the victim and failed to render aid to the victim. Therefore, the record supports the conclusion that substantial evidence supports the trial court's finding.
DISPOSITION
The trial court's postjudgment order denying Gonzalez's section 1172.6 petition is affirmed.
WE CONCUR: CURREY, P. J., MORI, J.