People v. Gonzalez

1

THE PEOPLE, Plaintiff and Respondent, v. CHARLES GONZALEZ, Defendant and Appellant.

E079030

California Court of Appeals, Fourth District, Second Division

July 24, 2023

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No FVA900485. John Nho Trong Nguyen, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Charles Gonzalez, in pro. per.; and Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

OPINION

McKINSTER ACTING P. J.

Defendant and appellant, Charles Gonzalez, filed a form petition for resentencing pursuant to Penal Code former section 1170.95,^[1] which the court denied. After defense counsel filed a notice of appeal, this court appointed counsel to represent defendant.

Counsel has filed a brief under the authority of People v Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), setting forth a statement of the case, requesting that this court independently review the record for error, and identifying one potentially arguable issue: whether the record conclusively establishes that defendant was ineligible for relief.

This court offered defendant the opportunity to file a personal supplemental brief, which he has done.^[2] Defendant contends (1) the court prejudicially erred in denying his petition without taking a waiver of his presence at the hearing; and (2) that he should be permitted to raise issues from his purported appeal from a resentencing hearing which occurred on January 17, 2014. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND^[3]

Frank Marshall Martinez, defendant's codefendant, invited the victims to go with him to Las Vegas to gamble and hang out with girls. Defendant drove the vehicle, with Martinez as the passenger, to pick up the victims at the airport.

After leaving the airport, defendant drove up a dirt road on a mountain or hill, where he pulled over. Martinez turned around and pointed a gun at the victims. One of the victims ran toward an open field. Defendant got of the car and fired several shots before giving chase. The victim was hit. He was taken to the hospital and treated for a gunshot wound and fractured pelvis.

After defendant stopped shooting, the other victim fled from the car. Martinez got out of the car and fired several shots at the second victim. One of the shots hit him in the middle of his lower back, causing him to fall to the ground unable to move his leg. Martinez came up to the second victim and ordered him to give Martinez money. Defendant walked up, with his gun still in hand, and also demanded money The second victim pulled some money out of his pocket and threw it at Martinez. When asked where the rest of his money was, he told Martinez it was in his bag in the trunk of the car. Defendant and Martinez then drove off.

The second victim called 911 with his cell phone. He was treated at the hospital and suffered permanent nerve damage in his lower back and leg.

On January 7, 2010, a jury found defendant guilty of the premeditated, attempted murders of the victims (§§ 664, 187, subd. (a), counts 1 &2), assaulting the victims with a firearm (§ 245, subd. (a)(2), counts 3 &4), and the second degree robbery of the second victim (§ 211, count 5). The jury additionally found firearm enhancements true in each count (§§ 12022.53, subds. (b) &(c), 12022.5, subd. (a).). The court sentenced defendant to a term of imprisonment of 54 years to life. At a restitution hearing thereafter, the court ordered defendant to pay a restitution fine in the amount of $3,274.73 pursuant to section 1202.4.

The court had not instructed the jury on aiding and abetting principles on counts 1 through 4; thus, the prosecution had relied on claims that defendant had directly perpetrated each offense. Therefore, on appeal from the judgment, as relevant here, this court reversed defendant's convictions on counts 2 and 4, pertaining to the offenses committed against the second victim, based on insufficient evidence.

At a hearing on January 17, 2014, on remittitur from this court, the trial court dismissed counts 2 and 4 and resentenced defendant to 43 years to life. The court reviewed the victim restitution order, but found that it applied to the victim against whom defendant had committed the extant offenses, counts 1 and 3: "I will make the same order $3,274.73, actual restitution to the victim compensation ...."

On February 18, 2022, defendant filed a form petition for resentencing pursuant of former section 1170.95. On April 14, 2022, the People filed opposition to the petition. In reliance on the facts as recited in Gonzalez, supra, E054599, the People argued defendant was the direct perpetrator of the attempted murder against the first victim.

At a hearing on April 15, 2022, at which defendant was not present but was represented by counsel, the court indicated, "I intend to adopt the position of the District Attorneys in their opposition. Because I believe in this case it's a factual determination clearly met by the jury [¶] . . . [¶] beyond a reasonable doubt that the Defendant [] personally fired, how many shots, three, five shots, at" the victim. "I read the decision. The Court of Appeal specifically finds that it is not probable and natural consequences; it's direct conduct of [defendant]. I think he doesn't have the benefit of the 1170.95."

Defense counsel submitted. The court denied the petition.

II. DISCUSSION

A. Presence at the Hearing

Defendant contends the court prejudicially erred in denying his petition without taking a waiver of his presence at the hearing. Specifically, defendant maintains that had he been present at the hearing, he may have retained counsel of his choice, filed a Marsden^[4] motion, or elected to represent himself. He argues, without citation to authority, that counsel is required to have at least one contact with his client and, therefore, any Marsden motion would have per se been granted. We disagree.

"Senate Bill 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of the felony-murder rule to effectuate the Legislature's declared intent '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.'" (People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong).)

"When the trial court receives a petition containing the necessary declaration and other required information, the court must evaluate the petition 'to determine whether the petitioner has made a prima facie case for relief.' [Citations.] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss the petition." (Strong, supra, 13 Cal.5th at p. 708.)

" 'A defendant has the constitutional right to be personally present in court "where necessary to protect the defendant's opportunity for effective cross-examination, or to allow him to participate at a critical stage and enhance the fairness of the proceeding."' [Citations.]" (People v. Basler (2022) 80 Cal.App.5th 46, 57 (Basler).) "Critical stages of a defendant's criminal prosecution include the imposition of sentence, a sentence modification hearing, and resentencing. [Citations.]" (Id. at pp. 57-58.) These rights attach where an evidentiary hearing is required. (Id. at p. 58.)

A defendant has "a constitutional right to be present at his section [1172.6] evidentiary hearing ...." (Basler, supra, 80 Cal.App.5th at p. 51.) A defendant must either be present or competently waive his presence at the evidentiary hearing; a competent waiver requires "a knowing, intelligent[,] and voluntary waiver of his presence." (Id. at p. 51.) Whether a violation of a defendant's right to be personally present at the evidentiary hearing is prejudicial is determined by asking "whether his absence was harmless beyond a reasonable doubt. [Citations.]" (Id. at p. 59.)

Where "the record of conviction does not conclusively negate the possibility that the jury found" the defendant guilty under a theory which imputed malice to him by the actions of the actual perpetrator, "an evidentiary hearing is required." (People v. Langi (2022) 73 Cal.App.5th 972, 984.) On the other hand, where the record of conviction reflects that the defendant was not convicted under any theory of imputed malice, no evidentiary hearing is required. (People v. Patton (2023) 89 Cal.App.5th 649, 657 ["As the sole and actual perpetrator of the attempted murder of" the victim, a defendant "is ineligible for resentencing as a matter of law."]; People v. Soto (2020) 51 Cal.App.5th 1043, 1055, review dismissed Nov. 17, 2021, S263939 ["[T]he jury instructions themselves demonstrate[d] as a matter of law that [the defendant] could not make a prima facie showing that he is entitled to relief."].)

Here, defendant had no right to be present at the prima facie hearing because it was not a critical stage. No case has held that a defendant's presence, or waiver thereof, is required at the prima facie stage of a section 1172.6 petition.

The purpose of the prima facie hearing is to determine whether defendant is legally eligible for relief. (Strong, supra, 13 Cal.5th at p. 708.) Thus, no factual determinations are to be made, and defendant's presence cannot affect the outcome of the hearing. (People v. Lewis (2021) 11 Cal.5th 952, 972 ["In 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.' "].)

Moreover even if d...