Opinion
B305502
10-18-2021
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE GONZALEZ, Defendant and Appellant.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant Enrique Gonzalez. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA261252, Curtis B. Rappe, Judge. Reversed with directions.
Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant Enrique Gonzalez.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Peggy Z. Huang, Deputy Attorneys General for Plaintiff and Respondent.
FEUER, J.
Enrique Gonzalez appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.95 as to his prior conviction of second degree murder. Because the trial court applied the incorrect standard of proof in determining Gonzalez was ineligible for relief, we reverse for the trial court to hold a new evidentiary hearing. At the evidentiary hearing the trial court is to apply the beyond-a-reasonable-doubt standard of proof and make express findings as to whether Gonzalez is guilty of second degree murder as an aider and abettor pursuant to amended sections 188 and 189.
All statutory references are to the Penal Code.
Gonzalez also contends, the People concede, and we agree the trial court erred in resentencing Gonzalez on remand following our issuance of a writ of habeas corpus by imposing seven 2-year firearm enhancements under section 12022, subdivision (d). In resentencing Gonzalez, the court must exercise its discretion whether to impose or strike the lesser-included firearm enhancements on each count under section 12022, subdivision (a)(1).
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
We described the 2004 killing of Gregory Gabriel in our prior opinion in In re Gonzalez (Jan. 23, 2019, B285807) [nonpub. opn.] (Gonzalez II). At trial, the People presented evidence of three shootings.
1. The February 13, 2004 shooting
On February 13, 2004 Carlos Argueta was the passenger in a car that was rear-ended by a car driven by Francisco Amezcua, who was driving two of his friends. Argueta "looked angry" and used his Sten Mark submachine gun, which required two hands to carry and operate, to fire nine shots into Amezcua's car. Amezcua and one friend survived, but the other friend was killed. The Sten Mark's magazine held 32 nine-millimeter bullets and could be shot in either a semiautomatic or fully automatic mode.
2. The February 14, 2004 shooting
On February 14, 2004 four school friends went to a nightclub-12-year-old Gregory Gabriel, 14-year-old Marvin Emmanuel, 15-year-old Camille Johnson, and Johnson's sister, 13-year-old Girnet Hart. Johnson noticed the people at the club seemed older and largely Hispanic. Emmanuel told Gabriel, "[T]here were too many Mexicans." Gonzalez overheard the remark and walked over to the group. He asked what they had said about Mexicans. The minors denied saying anything. Gonzalez responded, "You fools talking about Mexicans." Gonzalez "threw out" the letters of his "tag-banging" crew T.C.A.as he continued to ask what they had said. Hart became scared because she believed Gonzalez would not be "throwing out" letters unless it was connected to a gang.
Gonzalez and Argueta belonged to the tag-banging crew T.C.A. A tag-banging crew is a tagging crew whose activities have escalated to include crimes, but the police have not yet categorized the group as a criminal street gang.
Gonzalez became angry. He asked Gabriel and Emmanuel, "Where are you from?" They responded they were just students and denied being from anywhere. Johnson recognized Gonzalez's question as a challenge. She knew when a gang member asks this question it meant there was "going to be a conflict. A big conflict." Hart ran across the street and started praying.
Gonzalez called out to Argueta, who was standing across the street. Gonzalez told him to come over and "bring the strap." Argueta approached holding the Sten Mark gun in two hands. Gonzalez told him, "These fools was talking about Mexicans." Gonzalez told Argueta they did not know T.C.A. One of the friends asked what T.C.A. stood for, and either Gonzalez or Argueta told them. Argueta and Gonzalez were angry. Argueta pointed his gun in Johnson's face. Johnson asked Argueta if he was going to shoot her. Argueta smiled, then pointed the gun at Emmanuel and Gabriel. They were very scared, and Gabriel started crying.
A security guard told Argueta, "[T]hese are kids. Don't be bothering them." Gonzalez said, "No. They disrespected us." Argueta added, "I don't care. They disrespecting T.C.A." Johnson started to walk away, and Emmanuel and Gabriel followed. Gonzalez and Argueta walked back across the street. Thinking the crisis was over, Hart recrossed the street to join her sister.
Seconds later gunshots were fired. Everyone tried to run into the club. Hart was hit twice by the bullets. She ran into the club's bathroom and collapsed. Gabriel was hit twice in his back and fell on the sidewalk. Another club patron, Rene Jesus Jimenez, was on the sidewalk when several bullets struck his chest. Gabriel died that night from two bullets to his back. Jimenez and Hart were severely injured, but survived. Officers found 21 nine-millimeter shell casings at the scene.
3. The February 19, 2004 shooting
Argueta's younger brother Johnny was charged with a serious felony unrelated to this case. After the preliminary hearing, Gonzalez and Argueta drove past Miguel Ramos, who had testified at the hearing, and Ramos's friend Robert Carrillo. Gonzalez was driving Argueta's car; Argueta sat in the passenger seat with his Sten Mark gun. Gonzalez made a U-turn and pulled behind Ramos. Ramos tried to evade Argueta's car, but he could not get away. After 15 or 20 blocks, Argueta opened fire on Ramos's car. A bullet shattered Ramos's rear window, and Carrillo felt a stabbing in his back. The bullet put a hole in Carrillo's shirt and burned the skin on his back. Ramos crashed, and he and Carrillo ran away. Gonzalez sped off.
4. Gonzalez's arrest and statements
The police subsequently arrested Argueta and Gonzalez together. Gonzalez gave a written statement about the February 19 shooting in which he described the incident and that Argueta had fired a shot through the back window of Ramos's car. As to the February 14 incident, Gonzalez admitted in a taped interview that he got angry when he heard Emmanuel say, "There's too many Mexicans up in here." He said he argued with the "black people." Gonzalez admitted he was a member of T.C.A. with the moniker "Epic Loc." He also admitted he called Argueta "over and told him to bring the strap." At the detectives' suggestion, Gonzalez agreed he wanted only to scare Emmanuel, Gabriel, Johnson, and Hart. Gonzalez stated they "started the argument, I guess, I took it to the next level or whatever. He didn't have to start shooting."
Gonzalez denied being with Argueta the night of the February 13, 2004 shooting. But he admitted he had known about the shooting when he called Argueta over and told him to bring his "strap." Argueta told Gonzalez he "let off on some fools cause they crashed into his car."
B. The Jury Instructions, Verdict, and Sentencing
The trial court instructed the jury with CALCRIM Nos. 400 and 401 on direct aider and abettor liability for the first degree murder of Gabriel, as well as CALCRIM No. 403 regarding the natural and probable consequences doctrine. The trial court also instructed the jury that it did not need to agree unanimously on the theory of liability. In her closing argument the prosecutor argued both theories of liability.
Judge Curtis B. Rappe presided over the trial and later resentencing hearings.
CALCRIM No. 403 provides in part, as read to the jury, "To prove that the defendant is guilty of murder or attempted murder under the natural and probable consequence doctrine, the People must prove that, (1) The defendant is guilty of assault with a firearm; (2) During the commission of the assault with a firearm, the crimes of murder and attempted murder were committed; AND (3) Under all of the circumstances, a reasonable person in the defendant's position would have known that the commission of the murder or attempted murder was a natural and probable consequence of the commission of the assault with a firearm."
The jury convicted Gonzalez of the first degree murder of Gabriel (§ 187, subd. (a)) and the attempted, premeditated, deliberate, and willful murders of Hart, Jimenez, Emmanuel, Johnson, Carrillo, and Ramos (§§ 664/187, subd. (a).). The jury also found true as to each count the allegations Gonzalez knew a principal was personally armed with a firearm in the commission of the offenses. (§ 12022, subd. (d).)
The trial court sentenced Gonzalez to 25 years to life on the murder count, plus a consecutive term of two years for the firearm enhancement. The trial court also imposed six consecutive life terms for each of Gonzalez's attempted murder convictions. The court imposed a consecutive eight-month term (one-third the middle term of two years) for the firearm enhancement on one of the attempted murder counts and stayed the remaining counts.
C. Gonzalez's Appeal (Gonzalez I) and Petition for Writ of Habeas Corpus (Gonzalez II)
In 2008 we affirmed Gonzalez's conviction but remanded to the trial court for resentencing as to the firearm enhancements under section 12022, subdivision (d), because subdivision (d) did not apply to convictions of murder and attempted murder, and the correct firearm enhancements had to be fully imposed or stricken. We vacated the sentence and remanded for the trial court to exercise its discretion whether to impose the lesser-included firearm enhancement under section 12022, subdivision (a)(1), or to strike the enhancement. (People v. Gonzalez (Apr. 29, 2008, B197530) [nonpub. opn.] (Gonzalez I).) The court on remand imposed seven 2-year firearm enhancements. Gonzalez did not appeal.
On June 2, 2014 the Supreme Court held in People v. Chiu (2014) 59 Cal.4th 155, 167 that the natural and probable consequences theory of aiding and abetting a crime cannot be the basis for convicting a defendant of first degree murder. On October 20, 2017 Gonzalez filed a petition for a writ of habeas corpus seeking relief from his first degree murder conviction under Chiu. In Gonzalez II, supra, B285807, we granted Gonzalez's petition, concluding the trial court committed Chiu error when it instructed the jury under both the legally valid direct aider and abettor theory and the legally invalid natural and probable consequences theory of first degree murder. We explained the error was not harmless because "[a] rational juror could reasonably conclude Gonzalez only intended that Argueta use the gun to instill fear in the minors by pointing it at them, not to kill them. By the time Argueta started shooting, he and Gonzalez had crossed the street and the quarrel with the minors had ended or at least paused. Significantly, the prosecutor in her closing argument argued the jury could convict Gonzalez of first degree murder under the natural and probable consequences doctrine even if he only intended to scare the youths. She concluded, 'if you believe he intended to aid and abet that assault with a firearm and . . . you believe . . . that that shooting was foreseeable then he's on the hook.'" (Gonzalez II, B285807.)
We rejected the People's argument that Gonzalez's summoning Argueta to bring his gun across the street during Gonzalez's confrontation with the four minors, knowing Argueta had used the gun previously to shoot people, could only mean Gonzalez intended for Argueta to shoot and kill Gabriel. As we reasoned, "While this may be a persuasive argument that the People could and did make to the jury, it is by no means the only rational explanation for Gonzalez's actions." (Gonzalez II, supra, B285807.) Thus, we explained, "[T]he People had not shown beyond a reasonable doubt the jury relied on the legally valid theory of direct aider and abettor theory of liability in convicting Gonzalez of first degree murder." We vacated Gonzalez's conviction of first degree murder, with the People having the option on remand under People v. Chiu, supra, 59 Cal.4th at page 168 to accept a reduction of the conviction to second degree murder or to retry the greater offense. If the People elected the former option, we directed the trial court to conduct further proceedings consistent with our opinion, as well as amended section 188 and section 1170.95, as applicable, and then to resentence Gonzalez and enter judgment. (Gonzalez II, B285807.)
On remand, the prosecutor informed the trial court that the People had elected not to retry the case, and he requested Gonzalez be sentenced for second degree murder. The trial court continued the hearing to allow Gonzalez to file a petition for resentencing under section 1170.95.
D. The Petition for Resentencing, Evidentiary Hearing, and Ruling
On September 17, 2019 Gonzalez, represented by counsel, filed a form petition for resentencing and "resentencing motion" seeking to vacate his murder conviction and be resentenced in accordance with recent statutory changes relating to accomplice liability for murder. In his petition, Gonzalez declared he "was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine" and he "could not now be convicted of 1st or 2nd degree murder because of changes made to Penal Code §§ 188 and 189, effective January 1, 2019." He also checked the box on the form stating he was not the actual killer and did not act with the intent to kill. Further, he asserted he was not a major participant in the felony or did not act with reckless indifference to human life. In the resentencing motion, Gonzalez urged the trial court to resentence Gonzalez on only the attempted murder counts because a jury could find that Gonzalez, in asking Argueta to get the gun, was not acting with malice aforethought, and thus under current law Gonzalez could not be convicted of second degree murder.
In their opposition, the People argued Senate Bill 1437 was unconstitutional and Gonzalez was not eligible for resentencing because he "could" have been convicted of murder based on the evidence received at trial as a direct aider and abettor. (Boldface omitted.) Gonzalez reiterated in his reply brief that the jury could reasonably find that his asking Argueta to bring the gun did not show he had had malice aforethought.
At the March 10, 2020 hearing on Gonzalez's petition, the parties proceeded on the assumption the trial court had issued an order to show cause. Neither side presented evidence. Gonzalez argued that in Gonzalez II we had rejected the People's contention "the record supports the conclusion beyond a reasonable doubt that the jury relied on the valid direct aider and abettor theory in convicting Gonzalez" and concluded "[a] rational juror could reasonably conclude Gonzalez only intended that Argueta used a gun to instill fear in the minors by pointing it at them, not to kill them." (Gonzalez II, supra, B285807)~ The prosecutor argued that Gonzalez, knowing that Argueta had used the Sten Mark gun the night before, called his friend over and asked him to "'bring a strap.'" And when the security guard told Gonzalez and Argueta to just leave the minors alone, Gonzalez responded that they had "disrespected us." Thus, the prosecutor asserted, "the evidence is pretty clear that the defendant intended for Gregory and his friends to be shot, to be killed."
The court observed in response to Gonzalez's argument that "the issue is not what did the jury do, but what could a jury do." The court added, "What appeared to happen in this case was the jury was kind of hung up by one or more jurors that didn't buy direct aider and abettor. But if all of them didn't, they would have acquitted. And so it seems to me that what happened was when the court gave the natural and probable consequences instruction, that brought some of the jurors back to a theory that would support conviction, and so you had a mixed result." In denying the petition, the court reasoned, "[T]he logical interpretation of the statute is the People have to show that given all the evidence, including the record, he could be convicted if he were retried at this point." The court added, "[Gonzalez] is the person among the two defendants that really started it all. He was the one that confronted the victims. He is the one that called over Argueta. He knew Argueta had I think the night before fired upon this other car, killing one person. Then shortly thereafter, I think it was the 19th, he drives, positioning Argueta to shoot and try to kill another victim." Further, "the evidence was sufficient that the People, if they had retried this, could have convicted him on a direct aider and abettor theory. So for all those reasons, I deny it."
In its March 10 written ruling further explaining the reasons for its denial of Gonzalez's petition, the court stated it had reviewed the file in the case, including the appellate opinions in Gonzalez I and Gonzalez II and the jury instructions referenced in the opinions. The court reasoned that Gonzalez's statement that he only intended to scare the victims when he told Argueta to bring the "'strap'" was a "self-serving effort to minimize guilt[] [and] did not bind the jury, which reasonably could have looked to the other evidence, which suggested Gonzalez intended and expected Argu[e]ta to shoot."
The trial court resentenced Gonzalez to 15 years to life on the murder count plus six consecutive life terms for Gonzalez's attempted murder convictions. After the court reviewed the sentence imposed following the remand in Gonzalez II, without further argument on sentencing, the court again imposed seven 2-year terms for the firearm enhancements.
Gonzalez timely appealed.
DISCUSSION
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Sen. Bill 1437) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and significantly limited the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848 (Gentile).) New section 188, subdivision (a)(3), provides, "Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." New section 189, subdivision (e), in turn, limits the felony-murder rule exception to the malice requirement to circumstances where the People prove the defendant "was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
Senate Bill 1437 also provides a procedure in new section 1170.95 for an individual convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and be resentenced on any remaining counts if he or she could not have been convicted of murder under Senate Bill 1437's changes to sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; Gentile, supra, 10 Cal.5th at pp. 842-843.) If the section 1170.95 petition contains all the required information, including a declaration by the petitioner that he or she was convicted of murder and could not now be convicted of murder because of changes to section 188 or 189 (§ 1170.95, subd. (b)(1)(A)), the court must appoint counsel to represent the petitioner upon his or her request pursuant to section 1170.95, subdivision (c). (Lewis, at pp. 957, 959-960.) Further, upon the filing of a facially sufficient petition, the court must direct the prosecutor to file a response to the petition and permit the petitioner to file a reply, and the court must determine whether the petitioner has made a prima facie showing that he or she is entitled to relief. (See § 1170.95, subd. (c); Lewis, at p. 964.)
In determining whether the petitioner has made a prima facie showing he or she is entitled to relief under section 1170.95, subdivision (c), "[l]ike the analogous prima facie inquiry in habeas corpus proceedings, '"the court takes petitioner's factual allegations as true and makes a preliminary assessment regarding whether the petitioner would be entitled to relief if his or her factual allegations were proved. If so, the court must issue an order to show cause."' [Citations.] '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.' [Citations.] 'However, if the record, including the court's own documents, "contain[s] facts refuting the allegations made in the petition," then "the court is justified in making a credibility determination adverse to the petitioner."'" (Lewis, supra, 11 Cal.5th at p. 971.)
Appellate opinions are generally part of the record of conviction, but as the Supreme Court in Lewis cautioned, the opinion "'might not supply all the answers.'" (Lewis, supra, 11 Cal.5th at p. 972.) Further, "[i]n reviewing any part of the record of conviction at this preliminary juncture, a trial court should not engage in 'factfinding involving the weighing of evidence or the exercise of discretion.'" (Ibid.)
If the petitioner makes a prima facie showing under section 1170.95, subdivision (c), the court must issue an order to show cause and hold a hearing "to determine whether to vacate the murder conviction and to recall the sentence and resentence the petitioner on any remaining counts." (§ 1170.95, subd. (d)(1).) If a hearing is held, "[t]he prosecutor and the petitioner may rely on the record of conviction or offer new or additional evidence to meet their respective burdens." (§ 1170.95, subd. (d)(3); see Gentile, supra, 10 Cal.5th at p. 853; People v. Rodriguez (2020) 58 Cal.App.5th 227, 237, review granted Mar. 10, 2021, S266652 (Rodriguez).)
B. The Trial Court Applied an Incorrect Standard of Proof in Denying Gonzalez's Petition for Resentencing
1. The prosecution's burden of proof at the evidentiary hearing
Section 1170.95, subdivision (d)(3), provides that at the evidentiary hearing, "the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing." In Rodriguez, we clarified that at the evidentiary hearing, "it is the court's responsibility to act as independent factfinder and determine whether the evidence establishes a petitioner would be guilty of murder under amended sections 188 and 189 and is thus ineligible for resentencing under section 1170.95, subdivision (d)(3)." (Rodriguez, supra, 58 Cal.App.5th at pp. 243-244, review granted; accord, People v. Fortman (2021) 64 Cal.App.5th 217, 224-225; People v. Duchine (2021) 60 Cal.App.5th 798, 814; People v. Clements (2021) 60 Cal.App.5th 597, 603, review granted Apr. 28, 2021, S267624; People v. Lopez (2020) 56 Cal.App.5th 936, 949 (Lopez), review granted Feb. 10, 2021, S265974; but see People v. Duke (2020) 55 Cal.App.5th 113, 123 (Duke), review granted Jan. 13, 2021, S265309.)
At the time of the superior court's March 10, 2020 ruling, no published appellate court had addressed the standard of proof the superior court should apply at the evidentiary hearing. Duke, supra, 55 Cal.App.5th 113, review granted, was filed on September 28, 2020; Lopez, supra, 56 Cal.App.5th 936, review granted, which was the first opinion to disagree with Duke, was filed on October 30, 2020.
Although the People argue in their respondent's brief that the trial court properly followed the standard articulated in Duke, supra, 55 Cal.App.5th at page 123, review granted, that "the prosecution must therefore prove beyond a reasonable doubt that the defendant could still have been convicted of murder under the new law," in its August 13, 2021 letter to the court, the Attorney General's office stated it had reconsidered its position with respect to Duke "that a Penal Code section 1170.95 petition may be denied at the subdivision (d)(3) evidentiary hearing based on a finding that substantial evidence supports a still-valid theory of murder," and now "adopt[s] the view that superior courts should act as independent factfinders at these evidentiary hearings," citing to Lopez, supra, 56 Cal.App.5th at pages 950-951, review granted. The Lopez court rejected the argument the superior court should apply a substantial evidence standard to determine whether a reasonable trier of fact "'could find the defendant guilty beyond a reasonable doubt.'" (Lopez, at p. 952.) Instead, "to establish a petitioner's ineligibility for section 1170.95 relief for failure to satisfy the third condition [in subdivision (a)(3)], the prosecutor must prove beyond a reasonable doubt the elements of first or second degree murder under the current law." (Lopez, at p. 951.) We agree, and unless the Supreme Court directs us otherwise, we continue to apply our holding in Rodriguez.
The Supreme Court, in granting review in People v. Rodriguez, S266652, ordered further action deferred pending consideration and disposition of the related issue in People v. Duke, S265309. In Duke the Supreme Court granted review to consider: "Can the People meet their burden of establishing a petitioner's ineligibility for resentencing under . . . section 1170.95, subdivision (d)(3) by presenting substantial evidence of the petitioner's liability for murder under . . . sections 188 and 189 as amended by Senate Bill No. 1437 (Stats. 2018, ch. 1015), or must the People prove every element of liability for murder under the amended statutes beyond a reasonable doubt?"
2. The trial court must apply the correct burden of proof in considering Gonzalez's petition on remand
The trial court made clear at the evidentiary hearing and in its written ruling that its denial of Gonzalez's petition was based on its interpretation of section 1170.95-later adopted by the court in Duke, supra, 55 Cal.App.5th at page 123-that "the People have to show that given all the evidence, including the record, he could be convicted if he were retried at this point." Applying this standard, the court observed "the evidence was sufficient that the People, if they had retried this, could have convicted him on a direct aider and abettor theory." The court noted the evidence "suggested" that Gonzalez, by calling Argueta over with the Sten Mark gun, "intended and expected Argu[e]ta to shoot." But the court speculated that some of the jurors would not have convicted Gonzalez under a direct aiding and abetting theory because they "didn't buy direct aider and abettor." The court never determined as an independent factfinder whether the evidence established beyond a reasonable doubt that Gonzalez was guilty of murder under amended sections 188 and 189 and thus was ineligible for resentencing under section 1170.95, subdivision (d)(3). (Rodriguez, supra, 58 Cal.App.5th at pp. 243-244, review granted.)
We therefore reverse and remand for the trial court to conduct a new evidentiary hearing at which it must make express findings on whether the prosecution has met this burden. If the trial court determines Gonzalez is ineligible for resentencing, the court should enter judgment and resentence him on all counts. If the court determines Gonzalez is eligible for resentencing, the court shall resentence him on the six counts of attempted murder. In resentencing Gonzalez, the court must follow our direction in Gonzalez I, supra, B197530, that the court exercise its discretion whether to impose or strike the lesser-included firearm enhancements on each count under section 12022, subdivision (a)(1) (one year, not two years).
The prosecutor can, of course, on remand stipulate that Gonzalez is eligible for resentencing under section 1170.95. (See § 1170.95, subd. (d)(2) ["The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have his or her murder conviction vacated and for resentencing."].) We do not reach whether our decision in Gonzalez II, supra, B285807, is dispositive as to whether Gonzalez is eligible for resentencing, but we note, as discussed, that we found in Gonzalez II that "[a] rational juror could reasonably conclude Gonzalez only intended that Argueta use the gun to instill fear in the minors by pointing it at them, not to kill them."
Because we are remanding for a new evidentiary hearing, we do not reach the People's contention we should correct the trial court's sentencing error by imposing a one-year term on each attempted murder count pursuant to section 12022, subdivision (a)(1).
DISPOSITION
The order denying Gonzalez's petition for resentencing under section 1170.95 is reversed, and the cause remanded for a new evidentiary hearing at which the trial court is to determine whether the evidence establishes beyond a reasonable doubt Gonzalez is guilty of murder under amended sections 188 and 189 and to make express findings as to whether Gonzalez is ineligible for resentencing under section 1170.95, subdivision (d)(3). If the trial court determines Gonzalez is ineligible for resentencing on the murder count, the court should enter judgment and resentence him on all counts. If the court determines Gonzalez is eligible for resentencing, the court shall resentence him on the six counts of attempted murder. In resentencing Gonzalez, the court must exercise its discretion whether to impose or strike the lesser-included firearm enhancements on each count under section 12022, subdivision (a)(1).
We concur: PERLUSS, P. J. SEGAL, J.