Filed 2/1/22 P. v. Gonzalez CA2/7

Opinion following transfer from Supreme Court

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL GONZALEZ, SR., 

Defendant and Appellant.

 B307148

 (Los Angeles County

 Super. Ct. No. PA056995)

APPEAL from order of the Superior Court of Los Angeles 

County, Hayden A. Zacky, Judge. Reversed and remanded with 

directions.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, 

Lance E. Winters, Chief Assistant Attorney General, Susan 

Sullivan Pithey, Assistant Attorney General, Zee Rodriguez, 

Wyatt Bloomfield and Michael C. Keller, Deputy Attorneys

General for Plaintiff and Respondent.
2

_________________

In 2010 a jury convicted Daniel Gonzalez, Sr., of two counts 

of attempted willful, deliberate, and premeditated murder (Pen. 

Code, §§ 187, subd. (a), 664)1 and two counts of assault with a 

firearm (§ 245, subd. (a)(2)) arising from a gang-related shooting 

of two men. The jury also found true multiple firearm and gang 

enhancement allegations. The trial court sentenced Gonzalez to 

two consecutive life terms plus 45 years for the firearm 

enhancements. We affirmed. (People v. Blanco (Aug. 15, 2012, 

B227650) [nonpub. opn.].)

In June 2020 Gonzalez, representing himself, filed a 

petition for resentencing seeking to vacate his attempted murder 

conviction and be resentenced pursuant to section 1170.95. The 

trial court summarily denied Gonzalez’s petition without 

appointing counsel on the basis Gonzalez was ineligible for 

resentencing as a matter of law because he was not convicted of 

murder. We again affirmed. (People v. Gonzalez (July 19, 2021, 

B307148) [nonpub. opn.].)

The Supreme Court granted review and transferred the 

case to us with directions to vacate our decision and reconsider

Gonzalez’s appeal in light of amendments to section 1170.95 by 

Senate Bill No. 775 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 551, 

§ 2) (Senate Bill 775), effective January 1, 2022. In supplemental 

briefing Gonzalez again argues, the Attorney General now 

concedes, and we agree the superior court’s order denying 

Gonzalez’s petition should be reversed and the case remanded to 

the superior court for the court to appoint counsel for Gonzalez 

1 Further statutory references are to the Penal Code.
3

and perform a prima facie review of Gonzalez’s petition pursuant 

to section 1170.95, subdivision (c).

DISCUSSION

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, 

ch. 1015) (Senate Bill 1437) eliminated the natural and probable 

consequences doctrine as a basis for finding a defendant guilty of 

murder and significantly limited the scope of the felony-murder 

rule. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v. 

Gentile (2020) 10 Cal.5th 830, 842-843, 847-848.) The legislation

also provided a procedure in new section 1170.95 for an 

individual convicted of felony murder or murder under a natural 

and probable consequences theory to petition the sentencing 

court to vacate the conviction and be resentenced on any 

remaining counts if he or she could not have been convicted of 

murder under Senate Bill 1437’s changes to sections 188 and 189. 

(Lewis, at p. 959; Gentile, at pp. 842-843.)

If the section 1170.95 petition contains all the required 

information, including a declaration by the petitioner that he or 

she is eligible for relief based on the requirements of 

subdivision (a), the court must appoint counsel to represent the 

petitioner upon his or her request pursuant to section 1170.95, 

subdivision (b)(3). Further, upon the filing of a facially sufficient 

petition, the court must direct the prosecutor to file a response to 

the petition and permit the petitioner to file a reply, and the 

court must determine whether the petitioner has made a prima 

facie showing that he or she is entitled to relief. (See § 1170.95, 

subd. (c).) Where a petitioner carries the burden of making the 

requisite prima facie showing he or she falls within the 

provisions of section 1170.95 and is entitled to relief, the court 
4

must issue an order to show cause and hold an evidentiary 

hearing to determine whether to vacate the murder conviction 

and resentence the petitioner on any remaining counts. 

(§ 1170.95, subd. (d)(1).)

At the time Gonzalez filed his petition, the Courts of 

Appeal agreed that, by its express terms, section 1170.95 as 

enacted by Senate Bill 1437 did not provide relief for a petitioner

convicted of attempted murder. Section 1170.95, subdivision (a),

as amended by Senate Bill 775, now provides for relief where the 

petitioner was convicted of “attempted murder under the natural 

and probable consequences doctrine” and “could not presently be 

convicted of . . . attempted murder because of changes to Section 

188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a) 

& (a)(3).)

Gonzalez contends and the People concede we should

reverse the superior court’s denial of Gonzalez’s petition as to his 

attempted murder convictions and remand for consideration of 

the petition in light of Senate Bill 775 because the jury was 

instructed on the natural and probable consequences doctrine

and section 1170.95 now applies to attempted murder. We agree 

and reverse the order denying Gonzalez’s petition and remand 

with directions for the court to appoint counsel for Gonzalez, to 

order the prosecutor to file a response to the petition and provide 

Gonzalez an opportunity to file a reply, and for the court to hold a 

hearing to determine whether Gonzalez has made a prima facie 

showing he is entitled to relief under amended section 1170.95,
5

and if he has, to issue an order to show cause and set an 

evidentiary hearing.

2

DISPOSITION

The order denying Gonzalez’s petition for resentencing 

under section 1170.95 is reversed. The matter is remanded for 

the superior court to appoint counsel for Gonzalez, order the 

prosecutor to file a response to the petition, provide Gonzalez an 

opportunity to file a reply, and determine whether Gonzalez has 

made a prima facie case for relief pursuant to section 1170.95, 

subdivision (c).

FEUER, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

2 In light of the People’s concession that the jury was 

instructed on the natural and probable consequences doctrine, 

the parties on remand may elect to stipulate to the issuance of an 

order to show cause and holding of an evidentiary hearing.