Filed 8/15/23 P. v. Gonzalez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JORGE GONZALEZ,

Defendant and Appellant.

 B312344

 (Los Angeles County

 Super. Ct. No. YA076269)

APPEAL from an order of the Superior Court of Los Angeles County, 

Scott T. Millington, Judge. Reversed and remanded with directions.

John Lanahan, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah 

P. Hill, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy 

Attorney General, for Plaintiff and Respondent.
2

INTRODUCTION

In 2013, a jury convicted defendant Jorge Gonzalez of felony murder 

and found true a robbery-murder special allegation. We affirmed the 

judgment. (People v. Gonzalez (2016) 246 Cal.App.4th 1358 (Gonzalez I).) 

After the enactment of Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437), 

which narrowed the felony murder rule, Gonzalez filed successive petitions 

for resentencing under Penal Code1 section 1170.95 (now 1172.6),

2 alleging he 

was not guilty of murder in light of SB 1437. The trial court denied both 

petitions. In 2020, Gonzalez filed a form petition for writ of habeas corpus on 

the same ground as his prior petitions for resentencing. The trial court 

denied the petition. Gonzalez appealed from this order. 

As explained below, we construe the appeal as one from an order 

denying a petition for resentencing under section 1172.6. We accept the 

Attorney General’s concession that Gonzalez demonstrated a prima facie case 

for relief. Therefore, we reverse and remand for further proceedings in the 

trial court. 

FACTUAL AND PROCEDURAL BACKGROUND

In 2013, a jury convicted Gonzalez of felony murder and found true a 

robbery-murder special circumstance allegation. (§§ 187, subd. (a), 190.2, 

subd. (a)(17).) The jury found several firearm allegations to be not true, 

including that Gonzalez personally and intentionally discharged a firearm 

causing death. (§ 12022.53, subd. (d).) The jury also acquitted Gonzalez of 

1 All statutory references are to the Penal Code, unless otherwise stated. 

2 Effective June 30, 2022, section 1170.95 was renumbered section 

1172.6, with no change in text (Stats. 2022, ch. 58, § 10). For ease of 

reference, we will refer to the section by its new numbering only. 
3

shooting at an occupied motor vehicle. (§ 246.) The trial court sentenced 

Gonzalez to life without the possibility of parole. 

In 2016, this court affirmed his conviction.

3 (Gonzalez I, supra, 246 

Cal.App.5th at pp. 1382–1386.) Our Supreme Court granted review on issues 

not relevant to this appeal and affirmed the judgment. (People v. Gonzalez 

(2018) 5 Cal.5th 186 (Gonzalez II).) 

On May 6, 2019, Gonzalez filed a petition for resentencing under 

section 1172.6, which was enacted by SB 1437. The trial court summarily 

denied the petition, reasoning that Gonzalez was ineligible for relief as a 

matter of law based on the jury’s robbery-murder special circumstance 

finding. The court noted that the jury was instructed with CALCRIM No. 

703, “which specifically advised the jury that they could not find the special 

circumstance true if the [defendant] was not the actual killer, unless the 

People proved either (1) the [defendant] intended to kill; or (2) that the 

[defendant]’s participation in the crime began before or during the killing, the 

[defendant] was a major participant in the crime, and when the [defendant] 

participated in the crime, he or she acted with reckless indifference to human 

life.” On October 24, 2019, Gonzalez filed a second petition for resentencing. 

The court denied it for the same reason previously stated. 

On November 10, 2020, Gonzalez filed a Judicial Council “petition for 

writ of habeas corpus” form MC-275, contending that he is entitled to relief 

under section 1172.6. Gonzalez argued that the trial court erred in denying 

his prior petitions for resentencing in light of People v. Torres (2020) 46 

Cal.App.5th 1168 (Torres), which held in part that a jury’s special 

3 We held, in part, that the special circumstance finding was supported 

by substantial evidence as to Gonzalez’s codefendants Erica Estrada and 

Alfonso Garcia. (Gonzalez I, supra, 246 Cal.App.4th at pp. 1385–1386.) 

Gonzalez did not challenge the special circumstance finding on direct appeal. 
4

circumstance finding did not per se render defendant ineligible for relief. 

Defendant requested that the court appoint counsel and order briefing. 

On January 6, 2021, the court requested the People file an informal 

response. On January 21, 2021, the People filed an informal response 

regarding “the court’s authority to summarily deny a Penal Code section 

117[2.6] petition” based on the special circumstance finding. The People

argued that such a finding does not preclude eligibility for relief under 

section 1172.6, and that a summary denial would be error. The People cited 

Torres and other cases that held the same. The People also noted cases that 

have held to the contrary. In reply, Gonzalez argued that he had made a

prima facie showing he falls within the provisions of section 1172.6. 

On February 16, 2021, the trial court did not appoint counsel for 

Gonzalez. It denied the petition based on the CALCRIM No. 703 instruction, 

the jury’s special circumstance finding, and the holdings in Gonzalez I and II. 

Specifically, the court noted the jury’s special circumstance finding “would 

allow [defendant] to be convicted of first degree murder notwithstanding 

Senate Bill No. 1437’s changes to sections 188 and 189.” “Because the jury’s 

special circumstance finding shows as a matter of law that [Gonzalez] could 

still be convicted of felony murder under section 189 as amended, [Gonzalez] 

cannot make a prima facie showing of eligibility for resentencing.”

On April 21, 2021, Gonzalez filed a notice of appeal from the “Denial of 

[a] Petition for Recall and Resentencing P.C. 117[2.6].”

DISCUSSION

As a preliminary matter, Gonzalez contends that the denial of his 

habeas petition is an appealable order as the trial court treated it as a 

successive petition for relief under section 1172.6. As to the merits, Gonzalez 
5

contends the court erred in finding him ineligible for relief as a matter of law 

based on the jury’s special circumstance finding, citing People v. Strong 

(2022) 13 Cal.5th 698 (Strong). In response, the Attorney General argues the 

denial of a habeas petition is not an appealable order. However, the Attorney 

General concedes that assuming the order is appealable, Gonzalez made a 

prima facie case for relief. 

I. Appealability 

The Attorney General insists that we must dismiss this appeal because 

the denial of a habeas petition is not an appealable order. We decline to do 

so. 

In a noncapital case, a habeas petitioner cannot appeal from an order 

denying relief but must file a new petition in a higher court. (Robinson v. 

Lewis (2020) 9 Cal.5th 883, 895.) On the other hand, an order granting or 

denying relief pursuant to section 1172.6 is appealable as an order after 

judgment affecting a party’s substantial rights. (§ 1237, subd. (b); see Teal v. 

Superior Court (2014) 60 Cal.4th 595, 600–601.) “‘The label given a petition 

. . . is not determinative; rather, the true nature of a petition . . . is based on 

the facts alleged and remedy sought in that pleading.’” (People v. Picklesimer 

(2010) 48 Cal.4th 330, 340; Cox v. Superior Court (2016) 1 Cal.App.5th 855, 

858–859.)4

4 Prior to oral argument, defendant submitted a letter pursuant to 

California Rules of Court, rule 8.254 citing new authority, People v. Hodges 

(2023) 92 Cal.App.5th 186. We have considered the decision, which looked to 

the substance, not form, of the “motion” filed by the defendant in determining 

appealability. (Id. at p. 190.) As stated above, we reach the same conclusion 

on the issue. 
6

Here, defendant filed a form petition for writ of habeas corpus but 

made clear he was seeking resentencing relief pursuant to section 1172.6. 

The People treated defendant’s petition as such. The trial court also 

analyzed the petition pursuant to section 1172.6, despite continuing to 

caption the matter as a petition for a writ of habeas corpus. In his notice of 

appeal, defendant stated he was appealing from the “Denial of [a] Petition for 

Recall and Resentencing P.C. 117[2.6].” Therefore, regardless of how 

defendant’s petition was titled, the court’s denial of his request for 

resentencing pursuant to section 1172.6 is reviewable by us on the merits. 

II. Petition for Resentencing 

A defendant “convicted of felony murder” may file a petition to have the 

murder conviction vacated and “be resentenced on any remaining counts.”

(§ 1172.6, subd. (a).) A defendant makes a prima facie case for relief under 

this section if, among other requirements, the defendant “could not presently 

be convicted of murder” under the amendments to sections 188 or 189 that 

became effective on January 1, 2019. (§ 1172.6, subd. (a)(3).) These statutes, 

as amended, still authorize a murder conviction under the felony murder 

doctrine if the defendant “was a major participant in the underlying felony 

and acted with reckless indifference to human life.” (§ 189, subd. (e)(3).)

Thus, if these facts can be established as a matter of law based on the record 

of the defendant’s conviction, the court may determine that the defendant has 

failed to make a prima facie case for relief and deny the defendant’s petition 

without an evidentiary hearing. (People v. Lewis (2021) 11 Cal.5th 952, 971.)

In Strong, supra, 13 Cal.5th 698, as in the instant case, the jury found 

true the special circumstance that he was a “‘major participant’” who acted 

with “‘reckless indifference to human life.’” (Id. at p. 703.) There, as here, 
7

the jury’s finding was made prior to the Supreme Court’s decisions in People 

v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 

522 (Clark), “which for the first time provided substantial guidance on the 

meaning of the two relevant statutory phrases.” (Strong, supra, 13 Cal.5th at 

p. 703.) 

In Strong, the trial court had summarily denied the defendant’s 

petition under section 1172.6 on the ground that the jury’s pre-Banks and 

pre-Clark finding was binding. The Supreme Court reversed, and explained 

that Banks and Clark “substantially clarified the law governing findings 

under . . . section 190.2, subdivision (d): Banks elucidated what it means to be 

a major participant and, to a lesser extent, what it means to act with reckless 

indifference to human life, while Clark further refined the reckless 

indifference inquiry.” (Strong, supra, 13 Cal.5th at pp. 706–707.) As a result, 

facts that would support a jury finding that a defendant was a major 

participant or had acted with reckless disregard for life prior to Banks and 

Clark would not necessarily be sufficient to support the same finding after 

Banks and Clark. (Ibid.) Thus, after Strong, a jury’s finding that a 

defendant was a major participant in a felony and acted with reckless 

indifference to human life made before Banks and Clark does not support a 

summary denial of a section 1172.6 petition. 

In light of Strong, we accept the Attorney General’s concession that 

Gonzalez has made a prima facie case for relief and that the matter should be 

remanded for further proceedings.

5

5 Because we are remanding the matter back to the trial court, we need 

not address Gonzalez’s argument that the court erred in failing to appoint 

him counsel. 
8

DISPOSITION

The order is reversed, and the matter is remanded to the trial court 

with directions to appoint counsel, issue an order to show cause, and conduct 

an evidentiary hearing in accordance with section 1172.6, subdivision (d). 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, J.

WE CONCUR:

CURREY, P. J.

COLLINS, J.