THE PEOPLE, Plaintiff and Respondent, v. ELOY GONZALEZ, Defendant and Appellant.
G057502
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Filed 6/11/21
(Super. Ct. No. 99CF0831)
Cheri T. Pham, Judge.
CERTIFIED FOR PUBLICATION
ΟΡΙΝΙΟΝ
Appeal from a postjudgment order of the Superior Court of Orange County, Cheri T. Pham, Judge. Reversed and remanded.
Michelle May Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Lynne G. McGinnis and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
FACTS
A detailed recitation of the facts is set forth in the prior opinion in this case. (People v. Miller, et al., (Mar. 22, 2004, G029025) [nonpub. opn.] (Miller).) In sum, “Southside” gang members Gonzalez, Matthew Robert Miller, and Eduardo Vargas engaged in a series of armed robberies, one of which ended with Vargas shooting a robbery victim, Jesse Muro. Vargas was tried separately, convicted of first degree murder, and sentenced to death. (Ibid.)
An information charged Miller and Gonzalez with first degree murder of Muro, with a special circumstance allegation the murder was committed during the commission of a robbery pursuant to
Miller and
As we explained in Miller, “Miller and Gonzalez both raise[d] arguments concerning their convictions for the murder of Muro as non-shooters. The prosecution offered two theories of culpability. The primary theory was felony murder, i.e., that both defendants were perpetrators of a robbery, or involved in a conspiracy to commit a robbery, and Muro‘s murder took place during the commission of that robbery. The second theory was that Miller and Gonzalez were aiders and abettors of the uncharged offenses of assault with a deadly weapon, assault, or disturbing the peace by fighting, and Muro‘s murder was the natural and probable consequence of one of those target offenses. Gonzalez was convicted on the Muro and Stukkie robbery counts, and the special circumstance of robbery was found true, so the jury obviously adopted the felony-murder theory as to him.” (Miller, supra, G029025.) We affirmed the judgment. (Ibid.)
In 2019, Gonzalez filed a
Gonzalez‘s appointed counsel filed a reply to the opposition. Just over two weeks later, the trial court denied the petition without issuing an OSC, permitting further evidence, or hearing argument. The court first determined S.B. 1437 was unconstitutional and then found sufficient evidence Gonzalez acted with implied malice and he was a major participant who acted with reckless indifference to human life.
It further opined Gonzalez‘s actions after Vargas used lethal force, running back to the car to find Vargas and taking Stukkie‘s bracelet, demonstrated he was a major participant in the crimes. It continued, “As a member of the Southside gang, [Gonzalez] had knowledge of guns and knowledge that his fellow gang members had and used guns. Furthermore, there was evidence that [Gonzalez] had participated in the robberies on March 30 where Miller and/or Vargas had a gun and had threatened to shoot or kill the victims with a gun. On April 1, immediately prior to the murder, [Gonzalez] witnessed Vargas use a gun to rob victim Cruz. [¶] ... [¶] [Gonzalez] was present at the scene of the murder and had the opportunity to stop the killing or aid the victim, but he did neither. Instead, it was [Gonzalez] who instigated the contact with victims Stukkie and Muro by pointing them out to Vargas as possible members of the Highland Street gang, whose members had previously beaten up [Gonzalez]. [¶] ... [¶] [Gonzalez] was aware Vargas had a gun and had used it to threaten victims in prior robberies, including the one of victim Cruz immediately prior to the murder. [Gonzalez] was also aware Vargas was ‘amped up’ from the robber[y] of victim Cruz. Therefore, when
DISCUSSION
I. S.B. 1437 and Section 1170.95
S.B. 1437, “amended
The Legislature enacted S.B. 1437 to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, 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.” (
Under
The sole issue raised by the AG on appeal, one which the trial court did not address, is Gonzalez is ineligible for relief as a matter of law because his murder conviction included a robbery special circumstance under
”
“To be sure,
In Banks, the Supreme Court identified the factors courts should consider in determining whether a defendant was a “major participant” under
The Clark court outlined considerations relevant to determining whether a defendant had acted with reckless indifference to human life, such as: was the defendant aware that guns would be used; did the defendant himself or herself use a gun; did the defendant have an opportunity to reduce the overall risk of violence during the felony or to aid the victim; and did the defendant know his or her cohorts were likely to use lethal force? (Clark, supra, 63 Cal.4th at pp. 618-622.) Banks and Clark both instruct to determine whether the defendant acted with reckless indifference, courts must “look to whether a defendant has ‘“knowingly engag[ed] in criminal activities known to carry a grave risk of death.“’ [Citations.]” (Banks, supra, 61 Cal.4th at p. 801.)
Here, the felony-murder special circumstance allegations required the jury to find Gonzalez acted with reckless indifference to human life and as a major participant in the robbery that resulted in Muro‘s death (
The Galvan court affirmed the trial court‘s determination that “[b]y finding a [pre-Banks and Clark] special circumstance allegation true, the jury makes precisely the same finding it must make in order to convict a defendant of
The Gomez, Galvan, and Murillo line of cases misperceive the nature of the
Here, Gonzalez‘s petition is made possible by changes to
The AG argues Gonzalez was ineligible for resentencing based upon the jury‘s true finding on the robbery special circumstance, which we reject, but the trial denied the petition on other grounds after citing to evidence in the record and engaging in factfinding. The court summarily denied the petition after determining the facts of the case, taken from our prior opinion, demonstrated Gonzalez was a major participant who acted with reckless disregard for human life. However, some of the facts, made particularly significant by the Supreme Court‘s decisions in Banks and Clark, were disputed at trial and not clearly resolved by the jury‘s findings. This was also error.
The “authority to make determinations without conducting an evidentiary hearing pursuant to
Here, it is clear the trial court engaged in factfinding, improper at the prima facie stage of review, to determine whether the evidence supported Gonzalez‘s conviction on the robbery special circumstance in light of the post-Banks and Clark standards. The court cited to evidence in the record including our opinion on direct appeal. After a lengthy analysis of the facts under the post-Banks and Clark standards, it then determined sufficient evidence supported a finding Gonzalez acted with implied malice, and he “was a major participant who acted with reckless indifference to human life.”
Tellingly, the AG concedes, “the superior court did not follow the proper procedures in that it appeared to find the prima facie stages met but skipped the OSC and hearing before weighing the evidence and deciding that [Gonzalez] was not entitled to resentencing....” We agree the court misunderstood its statutory duties. Factfinding following an evidentiary hearing is necessary to determine whether Gonzalez could be convicted of felony murder under the current version of
Finally, Gonzalez asserts his petition is not precluded under the theories of res judicata, collateral estoppel, or law of the case. We agree.
“The claim preclusion doctrine, formerly called res judicata, ‘prohibits a second suit between the same parties on the same cause of action.’ [Citation.] ‘Claim preclusion arises if a second suit involves (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.’ [Citation.]” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 91.) Furthermore, when the law authorizes a particular postjudgment remedy, like
There is no claim preclusion here because Gonzalez did not challenge the prosecution‘s cause of action on the special circumstance. Gonzalez seeks relief from the conviction, which is not the same cause of action as the special circumstance. The petition addresses only the first degree murder conviction, as expressly provided by
As for issue preclusion or collateral estoppel, it “precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. ommitted.)
Here, defense counsel did not “actually litigate” the robbery special circumstance. Instead, he argued Gonzalez was not guilty of murder at all. Because Gonzalez made no effort to litigate the special circumstance, and had no reason to do so, the “actually litigated” element of collateral estoppel is not satisfied by the jury‘s true finding. Therefore, the jury‘s prior special circumstance finding has no preclusive effect on a current
Furthermore,
Other resentencing provisions categorically disqualify certain classes of people for eligibility for relief. (See e.g.,
Finally, the law of the case principle is also inapplicable. “Where an appellate court states in its opinion a principle of law necessary to the decision, that principle becomes law of the case and must be adhered to in all subsequent proceedings . . . under the doctrine of the law of the case, the case may not go over ground that has been covered before in an appellate court.” (Sargon Enterprises, Inc. v. University of Southern California (2013) 215 Cal.App.4th 1495, 1506.) This doctrine, however, “does not extend to points of law which might have been but were not presented and determined on a prior appeal. [Citation.]” (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127.) Our prior opinion did not address the issues of whether Gonzalez was a major participant in the felony or acted with reckless indifference to human life. Accordingly, the law of the case is inapplicable to the jury‘s prior special circumstance finding.
The postjudgment order denying Gonzalez‘s
O‘LEARY, P.J.
WE CONCUR:
BEDSWORTH, J.
GOETHALS, J.