Opinion
F087243
07-29-2024
THE PEOPLE, Plaintiff and Respondent, v. LOUIE JAMES GONZALES, JR., Defendant and Appellant.
Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Merced County. No. 19CR-01718A Carol K. Ash, Judge.
Sara E. Coppin, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
In 2021, appellant and defendant Louie James Gonzales, Jr. (appellant) was charged with first degree premeditated murder and other offenses. He pleaded no contest to voluntary manslaughter and robbery with firearm enhancements, and was sentenced to 26 years in prison. In 2022, he filed a petition for resentencing pursuant to Penal Code section 1172.6. The trial court denied the petition because he was charged and entered his plea after the effective dates of the amendments to sections 188 and 189, and he could not have been tried and convicted based upon legal theories that were now legally invalid.
All further statutory citations are to the Penal Code.
On appeal, appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record pursuant to both People v. Delgadillo (2022) 14 Cal.5th 216 and People v. Wende (1979) 25 Cal.3d 436. Appellant submitted a letter brief and raises various issues. We review the trial court's ruling, address appellant's contentions, and affirm the denial of his petition.
PROCEDURAL BACKGROUND
On February 3, 2021, an information was filed in the Superior Court of Merced County charging appellant with committing the following offenses on or about January 24, 2019: count 1, appellant and codefendants Felipe Heredia, Jr., and Christopher Olvera committed the murder of Jeff Bergeron, with a special circumstance (§§ 187, subd. (a)/190.2, subd. (a)(1)); count 2, appellant and Olvera committed first degree residential robbery (§ 211); and count 3, appellant and Olvera committed first degree burglary (§ 459). It was further alleged as to all counts that a principal was armed with a firearm during the commission of the offenses, appellant was not personally armed, and appellant knew a principal was personally armed (§ 12022, subd. (d)).
On September 10, 2021, appellant entered into a negotiated disposition and pleaded no contest to amended count 1, voluntary manslaughter (§ 192, subd. (a)) and count 2, robbery; and admitted the amended enhancement attached to count 2, that another principal personally discharged a firearm (§ 12022.53, subds. (c), (e)(1)).
On October 22, 2021, the trial court sentenced appellant consistent with the negotiated disposition to an aggregate term of 26 years, based on the upper term of six years for robbery and a consecutive term of 20 years for the attached firearm enhancement; and a concurrent term of 11 years for manslaughter.
PETITION FOR RESENTENCING
On June 23, 2022, appellant filed a petition for resentencing pursuant to section 1172.6 and requested appointment of counsel.
Appellant filed a supporting declaration that consisted of a preprinted form where he checked boxes that (1) he was eligible for resentencing because a complaint, information, or indictment was filed that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine; (2) he was convicted of murder, attempted murder, or manslaughter following a trial, or accepted a plea offer in lieu of a trial in which he could have been convicted of murder or attempted murder; and (3) he could not presently be convicted of murder or attempted murder because of changes made to sections 188 and 189, effective January 1, 2019.
The trial court appointed counsel.
The Prosecution's Opposition
On August 23, 2022, the prosecution filed opposition and argued appellant was ineligible for resentencing because he was charged and convicted after the amendments to sections 188 and 189 became effective, and he could not have been convicted under the now-invalid theories of imputed malice.
The Trial Court's Order
On October 16, 2023, the trial court conducted the hearing on the prima facie determination.
The prosecutor stated appellant could not have been convicted under an invalid theory because he was charged and convicted in 2021, after the amendments to sections 188 and 189 went into effect in 2019. Appellant's counsel argued that the timing of the charge and plea were not determinative because appellant was charged with first degree malice murder, he may not have been the shooter, and he still could have been convicted under an invalid theory of imputed malice. Counsel argued that unless the prosecution introduced evidence that appellant was the actual shooter, then appellant was eligible for resentencing. The prosecutor replied that the People were legally prohibited from relying on an invalid imputed malice theory as a result of the statutory amendments.
The trial court found appellant's petition failed to state a prima facie case and he was ineligible for resentencing as a matter of law because he was charged and entered his plea after the amendments to sections 188 and 189 went into effect, and he could not have been convicted pursuant to an invalid imputed malice theory.
On November 27, 2023, appellant filed a timely notice of appeal.
DISCUSSION
As explained above, appellate counsel filed a brief with this court pursuant to Wende and Delgadillo. The brief also included counsel's declaration that appellant was advised he could file his own brief with this court. This court advised appellant that he could file a supplemental letter brief.
On June 3, 2024, appellant filed a letter brief and argued the trial court improperly denied his petition without conducting an evidentiary hearing because the information alleged murder with malice; the prosecution could have convicted him of murder based on "other theories of malice" aside from the felony-murder rule and the natural and probable consequences doctrine; the court improperly made factual findings to deny his petition; there was no factual basis for the prosecutor to state and the court to find the jury would have received proper instructions if the case had gone to trial; there was no evidence appellant was the actual shooter; appellant could not have been sentenced to life without parole because the court dismissed the special circumstance before the plea; the prosecution could have relied on an improper theory of aiding and abetting if he went to trial; and an evidentiary hearing would show his participation was minimal and he was not a major participant.
"Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Senate Bill . . . 1437). This amended both the felony-murder rule and the natural and probable consequences doctrine to ensure 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. [Citation.] Senate Bill . . . 1437 also added . . . section 1170.95, now renumbered as section 1172.6. This created a procedural mechanism for those convicted under the former law to seek retroactive relief." (People v. Reyes (2023) 97 Cal.App.5th 292, 295 (Reyes).) "[W]hen a petitioner files a facially sufficient petition, the trial court must appoint counsel to represent the petitioner. The trial court may consider the record of conviction to determine whether the petitioner makes a prima facie showing only after the appointment of counsel and the opportunity for briefing has occurred. [Citation.] At the prima facie hearing, the court must take the petitioner's factual allegations as true. However, if the record contains facts refuting the allegations made in the petition, the court may deny the petition without issuing an order to show cause." (Reyes, supra, 97 Cal.App.5th at p. 298.)
B. Analysis
The trial court correctly denied appellant's petition. "[I]n order to be resentenced, the charging document filed against appellant must have allowed the prosecution to proceed under a theory of murder liability that is now invalid. [Citation.] This requirement is not met here. The prosecution filed the information against appellant in [2021]. Thus, when this criminal proceeding was initiated, the prosecution was precluded from proving the murder charge under a theory of imputed malice. This deficiency amply demonstrates that the trial court did not err when it denied appellant's petition for resentencing." (Reyes, supra, 97 Cal.App.5th at p. 298.) Appellant entered his change of plea to manslaughter in 2021, with the advice and consent of legal counsel. When appellant entered his change of plea, the now-invalid theories of murder liability had already been eliminated. Consequently, appellant already received the benefits of Senate Bill 1437. (Reyes, at p. 298.)
Appellant argues his petition stated a prima facie case because there were other people who committed the crimes and, if he had gone to trial, the prosecution could have improperly relied on aiding and abetting. We note that appellant could have been properly tried as an aider and abettor after the amendments enacted by Senate Bill 1437. "It is well settled that Senate Bill 1437 'does not eliminate direct aiding and abetting liability for murder because a direct aider and abettor to murder must possess malice aforethought.' [Citation.] 'Under a direct aider and abettor liability theory, the prosecution must prove the person who is not the actual killer "engaged in the requisite acts [actus reus] and had the requisite intent [means rea]" to aid and abet the target crime of murder.'" (People v. Williams (2022) 86 Cal.App.5th 1244, 1252; People v. Estrada (2022) 77 Cal.App.5th 941, 945.)
"[A]ppellant does not qualify for resentencing under section 1172.6. He is not the type of defendant this retroactive procedure was intended to benefit, and any contrary interpretation of this statute would lead to absurd results." (Reyes, supra, 97 Cal.App.5th at pp. 298-299.)
DISPOSITION
The trial court's order of October 16, 2023, denying appellant's petition for resentencing, is affirmed.
[*] Before Levy, Acting P. J., Poochigian, J. and Franson, J.