Opinion
B328660
12-15-2023
THE PEOPLE, Plaintiff and Respondent, v. DANIEL GONZALEZ, Defendant and Appellant.
Cheryl Lutz, 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NOT TO BE PUBLISHED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. KA046872, Rob B. Villeza, Judge. Affirmed.
Cheryl Lutz, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
MORI, J.
Defendant and appellant Daniel Gonzalez (Gonzalez) appeals from the summary denial of his petition for resentencing under Penal Code former section 1170.95 (now section 1172.6).The trial court held he was ineligible for relief because he was the actual killer and his conviction was not based on any theory of imputed malice. His appellate counsel filed a brief raising no issues and requesting we follow the procedures described in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Gonzalez filed a supplemental brief. We have reviewed the contentions he raised, and we affirm the trial court's order denying relief.
All subsequent statutory references are to the Penal Code. Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute. All further references to the statute will be to the new section number.
FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the facts is taken from the opinion of Gonzalez's direct appeal following his conviction, People v. Gonzalez (March 30, 2006, B178520 [nonpub. opn.]), which affirmed the judgment. We do not rely on the facts in resolving this appeal.
Gonzalez and Arnold Ugarte, both high school seniors, were engaged in a dispute for over a year. During this period, Gonzalez purchased a handgun for protection against Ugarte. In December 1999, Gonzalez, his brother, and two friends had a minor confrontation with Ugarte in the high school parking lot and then at a donut shop. Gonzalez and his companions arranged to meet Ugarte at a local park. Ugarte showed up with his girlfriend, Carolina Oyarzabal, and friend, Delfino Gomez.
Oyarzabal stayed in the car while Ugarte and Gomez approached Gonzalez. Gonzalez and Ugarte argued for approximately 10 minutes. Oyarzabal saw Ugarte raise his arm and begin to turn around. Gonzalez pulled out a gun and fired five shots at Ugarte, killing him. Gonzalez then shot Gomez twice as Gomez started running away. Gomez survived.
A jury convicted Gonzalez of second degree murder as to Ugarte and attempted voluntary manslaughter as to Gomez.The jury further found true allegations Gonzalez personally and intentionally discharged a firearm, and discharging the firearm proximately caused great bodily injury and death to Ugarte.
Gonzalez was also charged with the attempted murder of Oyarzabal. Oyarzabal testified that Gonzalez pointed the gun at her as he drove by after the shooting but did not fire. He was acquitted of this charge.
B. Petition for Resentencing
In August 2022, Gonzalez filed a petition for resentencing under section 1172.6. The trial court appointed counsel for Gonzalez and directed the People to file a response. In their opposition, the People argued that Gonzalez's jury was not instructed on felony murder or the natural and probable consequences doctrine. The People asserted that Gonzalez was prosecuted and convicted as the actual killer who committed the murder with malice.
At a hearing in January 2023, Gonzalez submitted on the briefing without the filing of a reply brief. Based on its review of the record of conviction, including the jury instructions, information, abstract of judgment, and preliminary hearing transcript dated August 25, 2003, the trial court summarily denied the petition. The court found that "[Gonzalez] as the actual killer was not prosecuted on murder liability theories of aiding and abetting, felony murder, or natural and probable consequences." Gonzalez timely appealed.
After reviewing the record, Gonzalez's appointed counsel did not identify any arguable issues and so informed this court. We directed counsel to send the record and a copy of the brief to Gonzalez. We also notified Gonzalez of his right to respond within 30 days and that his appeal could be dismissed if he failed to respond. Gonzalez filed a supplemental brief.
DISCUSSION
Pursuant to Delgadillo, when the appellant files a supplemental brief, "the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion." (Delgadillo, supra, 14 Cal.5th at p. 232.) Gonzalez raises two contentions. First, he argues the trial court improperly relied on the preliminary hearing transcript to deny his petition. Second, he asserts he received ineffective assistance of counsel. We disagree with each argument.
A. Even if the Trial Court Erred by Considering the Preliminary Hearing Transcript, Gonzalez Was Not Prejudiced
Gonzalez contends that the preliminary hearing transcript could not be relied upon as part of the record of conviction because his conviction resulted from a jury verdict. Gonzalez cites People v. Houck (1998) 66 Cal.App.4th 350, in which the defendant argued the trial court improperly relied on a preliminary hearing transcript to establish that one of his prior convictions was for a "'serious felony'" for purposes of the three strikes law. (Id. at p. 352.) Houck held a preliminary hearing transcript is not part of the record of conviction when the conviction results from a jury verdict. (Id. at pp. 356-357.) In this case, however, we need not decide if the trial court erred by relying on the preliminary hearing transcript, as Gonzalez cannot demonstrate any such error was prejudicial. The record of conviction otherwise establishes Gonzalez was not entitled to relief under section 1172.6 as a matter of law.
"Courts of Appeal are split on the import of the preliminary hearing transcript in determining whether a petitioner has made a prima facie case for resentencing under section [1172.6]." (People v. Flores (2022) 76 Cal.App.5th 974, 989; compare People v. Patton (2023) 89 Cal.App.5th 649, 657, review granted June 28, 2023, S279670 [finding uncontroverted facts in preliminary hearing transcript established appellant was ineligible for relief as a matter of law], with People v. Davenport (2021) 71 Cal.App.5th 476, 483 [trial court may not use testimony from preliminary hearing at prima facie stage absent a stipulation by appellant that the transcript provided a factual basis for the plea], and People v. Rivera (2021) 62 Cal.App.5th 217, 224 [prohibiting any use of testimony from a preliminary hearing to determine a petitioner's ineligibility for relief, even if the defendant previously stipulated to a factual basis for the plea].)
The Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) to clarify the felony-murder rule and eliminate 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." (Stats. 2018, ch. 1015, § 1, subd. (f); accord, § 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) SB 1437 also added what is now section 1172.6, providing a procedure for individuals convicted of felony murder or murder under the natural and probable consequences doctrine to seek retroactive relief by petitioning the sentencing court to vacate the conviction and resentence on any remaining counts. (§ 1172.6, subd. (a).)
The record of conviction necessarily informs the trial court's inquiry into whether a petitioner has made a prima facie case for relief, "allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Lewis, supra, 11 Cal.5th at p. 971.) "'"[T]he 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."' [Citation.]" (Ibid.) But if the petition and record in the case establish conclusively that the defendant is ineligible for relief as a matter of law, the trial court may deny the petition. (People v. Strong (2022) 13 Cal.5th 698, 708; People v. Harden (2022) 81 Cal.App.5th 45, 52 (Harden) ["For example, if the record shows that the jury was not instructed on either the natural and probable consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a matter of law"].) To show prejudice from the denial of a section 1172.6 petition before the issuance of an order to show cause, the petitioner must show it is reasonably probable that, absent the error, the petition would not have been summarily denied without an evidentiary hearing. (Lewis, supra, 11 Cal.5th at p. 974; People v. Watson (1956) 46 Cal.2d 818, 836.)
Here, although the trial court reviewed the preliminary hearing transcript, it also considered the information, jury instructions, and abstract of judgment in denying the petition. The information alleged Gonzalez committed the crime of murder as to Ugarte and attempted murder as to Gomez. It did not allege that anyone else was involved in the commission of the crimes. There was no codefendant, and no offenses charged other than murder and attempted murder.
Moreover, the jury was not instructed on felony murder or the natural and probable consequences doctrine, and it was not instructed on aiding and abetting. The record shows the jury convicted Gonzalez of one count of second degree murder as to Ugarte and one count of attempted voluntary manslaughter as to Gomez. The jury found true the allegation that Gonzalez personally and intentionally discharged a firearm as to both counts, and as to the murder count, found doing so proximately caused great bodily injury and death to Ugarte.
Accordingly, the record of conviction establishes that Gonzalez was the sole-actual killer, whose criminal liability was based on his own acts and mental state, not any theory of imputed malice. Gonzalez was thus ineligible for resentencing as a matter of law, and any alleged error by the trial court in also reviewing the preliminary hearing transcript to deny the petition was not prejudicial. (See People v. Garrison (2021) 73 Cal.App.5th 735, 745-747 [even if trial court applied incorrect standard of proof, defendant could not show prejudice because he was the "actual killer" and therefore ineligible for resentencing as a matter of law]; see also Harden, supra, 81 Cal.App.5th at pp. 47-48 [defendant ineligible as a matter of law where record "conclusively establish[ed]-with no factfinding, weighing of evidence, or credibility determinations" the jury convicted him on a still-valid theory of murder].)
B. Gonzalez Does Not Have a Constitutional Right to Effective Assistance of Counsel
Gonzalez asserts that he was denied effective assistance of counsel because, at the prima facie stage, his counsel failed to object to the People's use of the preliminary hearing transcript, and on appeal, his counsel "failed to investigate the trial records." Additionally, Gonzalez asserts that had his counsel read the trial transcripts, counsel would have discovered that his attorneys at the "last stages of the trial" were "in fact not attorneys at all." We do not agree with these contentions.
To the extent Gonzalez is arguing ineffective assistance of counsel, there is no constitutional right to effective assistance of counsel in postconviction proceedings or proceedings to obtain collateral relief from a judgment of conviction. (Delgadillo, supra, 14 Cal.5th at pp. 226-227.) Even if there were, Gonzalez does not demonstrate that his appointed counsel's performance, at the prima facie stage or on appeal, fell below an objective standard of reasonableness. (See Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Gonzalez does not show that counsel acted unreasonably by not asserting an objection to the use of the preliminary hearing transcript. As discussed above, the record of conviction establishes that Gonzalez is ineligible for relief as a matter of law regardless of whether the transcript is considered. (See People v. Solomon (2010) 49 Cal.4th 792, 843, fn. 24 [defense counsel is not ineffective for failing to raise futile arguments].) Gonzalez's unsupported assertion that he was represented by unlicensed attorneys at the last stages of his trial does not bear on whether he could "presently be convicted of murder" under section 1172.6. Section 1172.6 "does not permit a petitioner to establish eligibility [for resentencing] on the basis of alleged trial error." (People v. DeHuff (2021) 63 Cal.App.5th 428, 438, fn. omitted.)
DISPOSITION
The order denying Gonzalez's section 1172.6 petition is affirmed.
We concur: CURREY, P. J., ZUKIN, J.