Opinion
E081998
03-06-2024
THE PEOPLE, Plaintiff and Respondent, v. ROBERT GONZALES, Defendant and Appellant.
Robert Gonzales, in pro. per.; Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF10004191. John D. Molloy, Judge. Affirmed.
Robert Gonzales, in pro. per.; Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MILLER Acting P. J.
Defendant and appellant Robert Gonzales appeals from the trial court's order denying his petition for resentencing pursuant to former Penal Code former section 1170.95 (now renumbered section 1172.6). For the reasons set forth post, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
On January 7, 2011, an information charged defendant with violating section 187, subdivision (a), a felony, in that defendant "did willfully, unlawfully, and with deliberation, premeditation, and malice aforethought murder JESSE OCHOA, a human being." The information also alleged that defendant personally used a knife in the commission of the offense under section 12022, subdivision (b)(1). Moreover, the information alleged that defendant had been convicted of a prior serious felony, and that he had served a prior prison term under sections 667.5, subdivision (a), and 667, subdivisions (a), (c), and (e)(1).
On March 17, 2011, a jury convicted defendant of murder and found true the knife-use allegation. After defendant's admission of the prior strike, on July 29, 2011, the trial court sentenced defendant to a total term of 50 years to life plus nine years. After defendant appealed, in People v. Gonzales (May 7, 2013, E054350) [nonpub. opn.]), this court directed the trial court to strike the three-year enhancement under section 667.5, subdivision (a), but affirmed the judgment in all other respects. On remitter, the trial court reduced defendant's sentence to a total sentence of 50 years to life plus six years.
On July 27, 2022, defendant filed a section 1172.6 petition. The prosecution requested the trial court take judicial notice of the trial court file and this court's unpublished opinion in People v. Gonzales, supra. Defense counsel filed two briefs in support of defendant's petition.
On August 18, 2023, the trial court denied defendant's petition at the prima facie stage. The court stated: "Well, I just want to make sure I don't have anything wrong here. It was a first-degree finding. There were no aiding and abetting instructions. There was [sic] no felony murder instructions. There were no natural and probable consequences instructions." Moreover, the court noted that there was a finding that defendant "personally used a deadly or dangerous weapon" in the commission of the murder.
After further discussion between the trial court and defense counsel, the court stated: "All right. In this particular case, the instructional set that was given to the jury absolutely refutes what the defendant says. Because his prima facie case says the People relied or could have relied on a now invalid theory of murder. There is not one single invalid theory of murder that appears anywhere in the instructional set that the jury was given. [¶] It appears that they were instructed on actual killer instructions. I am not making a finding that he was the actual killer/ That would be improper at the prima facie stage. [¶] What I'm saying is there is no way for the jury to have followed this set of instructions and arrived at a guilty verdict that runs afoul of the change in the law, and, therefore, the instructions in the court's own records refute his prima facie articulations/
It is simply not true as a matter of law what he has said, and for that reason his petition is denied."
On August 21, 2023, defendant filed a timely notice of appeal.
On November 2, 2023, this court granted defendant's request for judicial notice to add the jury instructions to the record, which were attached as Exhibit A to the request for judicial notice.
DISCUSSION
Counsel has filed a brief under the authorities of People v. Wende (1979) 25 Cal.3d 436, Anders v. California (1967) 386 U.S. 739, and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). In the brief, pursuant to Anders, supra, appellate counsel has identified the following issue to assist the court in its search of the record for error: "Did the court err in determining that the record of conviction, which it considered in denying the petition, rendered appellant ineligible for relief as a matter of law?"
On December 12, 2023, we sent notice to defendant regarding the filing of a Delgadillo brief, as follows: "Counsel for appellant has filed a brief stating no arguable issues can be found. Because this is an appeal from the denial of a post-conviction proceeding, this court is not required to conduct an independent review of the record but may do so in its discretion. (People v. Delgadillo (2022) 14 Ca1.5th 216 []; People v. Serrano (2012) 211 Cal.App.4th 496.) The appellant is personally granted 30 days to file any supplemental brief deemed necessary. If appellant files a supplemental brief, this court will evaluate the specific arguments presented in that brief in its opinion. (Delgadillo, supra, 14 Ca1.5th 216[.]) Failure to timely file a supplemental brief may result in the dismissal of the appeal as abandoned."
On January 16, 2024, defendant filed a one-page handwritten supplemental brief. In the brief, defendant states that the trial court" 'doubled' my initial sentence due to a prior strike and a prison prior," and at the time, "my trial judge stated he had no other choice but to do so." However, defendant argues that "under new law, the judge has discretion to re: sentence in the interest of justice. Under new laws those prior and strike sentences are now illegal." Defendant's argument is without merit.
Here, the appeal stems from the trial court's denial of defendant's petition for resentencing under section 1172.6. In a section 1172.6 petition, a defendant can challenge whether he could now be convicted of murder pursuant to changes in the law regarding murders. Nothing in section 1172.6 states that "prior and strike sentences" are now illegal, and no such claims were made in the trial court.
Based on the above and our independent review of the record, we find that the trial court correctly determined defendant is ineligible for relief under section 1172.6. (Delgadillo, supra, 12 Cal.5th at p. 233.)
DISPOSITION
The order denying defendant's petition for resentencing under section 1172.6 is affirmed.
We concur: CODRINGTON J., RAPHAEL J.