Opinion
B324447
09-13-2023
THE PEOPLE, Plaintiff and Respondent, v. ARNOLD GONZALES, Defendant and Appellant.
Arnold Gonzales, in pro. per.; Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. A362694 Ronald S. Coen, Judge. Affirmed.
Arnold Gonzales, in pro. per.; Kelly C. Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EDMON, P. J.
Decades ago, a jury found Arnold Gonzales guilty of a murder committed during a robbery in which his accomplice was the actual killer. Gonzales petitioned for resentencing under Penal Code section 1172.6, which limited accomplice liability for murder. The trial court denied the petition, and Gonzales appealed. His appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216, and Gonzales filed a supplemental brief, arguing that his petition was improperly denied. We conclude that the trial court properly found Gonzales ineligible for resentencing because his jury was instructed he had to intentionally aid and abet a first degree murder.
All further undesignated statutory references are to the Penal Code.
Effective June 30, 2022, section 1170.95 was renumbered to section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
INTRODUCTION
I. The underlying crime, verdict, and sentence
We derive the factual background from the opinion affirming Gonzales's judgment of conviction on direct appeal. (People v. Gonzales (June 28, 1985, 43221) [nonpub. opn.].) We have taken judicial notice of that opinion. (Evid. Code, §§ 451, subd. (a), 452, subd. (d).)
In 1980, Gonzales and his codefendant Adam Miranda went to a market where a clerk refused to sell them beer. Lifting his shirt to grab what appeared to be the handle of something, Miranda asked whether the clerk would give him money if Miranda were to rob him. The clerk warned Miranda that there was someone in the back with a shotgun who would blow his head off, so Miranda and Gonzales left. The two men then went to another market, which they robbed. During the robbery, Miranda shot and killed a store clerk and shot a second clerk, who survived.
In 1982, a jury found Gonzales guilty of first degree murder (§ 187, subd. (a); count 1), assault with intent to commit murder (§ 217; count 2), and burglary (§ 459; count 3). The jury found true principal gun use allegations as to all counts (§ 12022, subd. (a)), and, as to count 1, the special circumstance allegation that the murder was committed during the commission of a robbery (§ 190, subd. (a)(17)). The jury made special findings that Gonzales was Miranda's coconspirator and aider and abettor; that the murder was willful, deliberate and premeditated; and that the killing occurred as a result of an attempt to commit robbery.
The jury also found Miranda guilty of special circumstance murder.
The trial court sentenced Gonzales to life without the possibility of parole.
II. Section 1172.6 petition for resentencing
In 2021, Gonzales petitioned for resentencing on his murder conviction under section 1172.6. The People opposed the petition on the ground that the jury necessarily found he had the intent to kill. In support of its opposition, the People submitted jury instructions, the information, and verdicts.
The People also submitted documents related to Miranda's appellate proceedings, but the trial court disregarded them.
At a hearing on the petition, the trial court said it had considered People v. Gonzales, supra, 43221 for the procedural history and other documents from Gonzales's conviction. The trial court denied Gonzales's petition, explaining that Gonzales's jury had been instructed with former CALJIC No. 8.80, which required an aider and abettor to murder to have an intent to kill.
This appeal followed. Court-appointed appellate counsel filed an opening brief that raised no issues and asked this court to independently review the record under People v. Delgadillo, supra, 14 Cal.5th 216. We directed appellant's counsel to send Gonzales the record and a copy of the opening brief, and we advised that within 30 days of the date of the notice, Gonzales could submit a supplemental brief or letter stating any grounds for an appeal, or contentions, or arguments he wished this court to consider. Gonzales submitted a supplemental brief in which he argues he was entitled to resentencing under People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, cases which substantially clarified the requirements to be a major participant who acts with reckless indifference to human life for the purposes of felony murder.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and limited the scope of the felony murder rule. (People v. Reyes (2023) 14 Cal.5th 981, 984, 986; People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Lewis (2021) 11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 842-843.) As relevant here, Senate Bill 1437 amended the felony-murder rule by adding section 189, subdivision (e), which provides that a participant in the perpetration of qualifying felonies is liable for felony murder only if the person: (1) was the actual killer; (2) was not the actual killer but, with the intent to kill, acted as a direct aider and abettor; or (3) the person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in section 190.2, subdivision (d). (Gentile, at p. 842.)
Senate Bill 1437 also created a procedure, codified at section 1172.6, for a person convicted of murder under the former law to be resentenced if the person could no longer be convicted of murder under amended section 189. (People v. Lewis, supra, 11 Cal.5th at p. 959; People v. Gentile, supra, 10 Cal.5th at p. 847.) If the petition establishes a prima facie case for relief, the trial court must appoint counsel for the petitioner if requested, issue an order to show cause, and hold an evidentiary hearing. (Ibid.; § 1172.6, subds. (b)(3), (c), &(d)(1).) At the evidentiary hearing, it is the prosecution's burden to prove beyond a reasonable doubt that the petitioner is ineligible for resentencing. (§ 1172.6, subd. (d)(3); Strong, supra, 13 Cal.5th at pp. 708-709.) If the trial court finds beyond a reasonable doubt that the petitioner is guilty of murder notwithstanding the amendments to section 189, the petitioner is ineligible for relief under section 1172.6. (Strong, at pp. 708-709.)
The trial court here found that Gonzales did not establish a prima facie case for relief because the jury found that although he was not the actual killer, he acted as a direct aider and abettor with intent to kill, satisfying the current law in section 189. That is, Gonzales's jury was instructed with former CALJIC No. 8.80, which provided that if the jury found a defendant guilty of first degree murder, it then had to decide if the murder was committed while the defendants were engaged in the attempted commission of the crime of robbery. Former CALJIC No. 8.80 further instructed, "If defendant, Gonzales, was not the actual killer, it must be proved beyond a reasonable doubt that he intentionally aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of the murder in the first degree before you are permitted to find the alleged special circumstance of that first degree murder to be true as to defendant, Gonzales." (Italics added.) The jury made the special finding that Gonzales was an aider and abettor, not the actual killer, and it therefore must have found he intentionally aided and abetted first degree murder, per former CALJIC No. 8.80.
As interpreted by our California Supreme Court, former CALJIC No. 8.80 required the jury to find that Gonzales intentionally participated in first degree murder. (Carlos v. Superior Court (1983) 35 Cal.3d 131, 154.) People v. Anderson (1987) 43 Cal.3d 1104, 1147, overruled Carlos insofar as Carlos had required intent to kill for the actual killer in a felony-murder case, but Anderson left in place the intent requirement for aiders and abettors. (See also People v. Maury (2003) 30 Cal.4th 342, 430-432; People v. Fauber (1992) 2 Cal.4th 792, 835-836; People v. Banks, supra, 61 Cal.4th at p. 798.)
Because Gonzales's jury found he had intent to kill as a direct aider and abettor, it is unnecessary to address Gonzales's argument in his supplemental brief that he was not a major participant in the robbery who acted with reckless indifference to human life.
DISPOSITION
The order denying Arnold Gonzales's Penal Code section 1172.6 petition is affirmed.
We concur: LAVIN, J. ADAMS, J.