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Filed 5/12/23 P. v. Gonzalez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

FRANCISCO GONZALEZ,

 Defendant and Appellant.

2d Crim. No. B321634

(Super. Ct. No. CR31081)

(Ventura County)

Francisco Gonzalez appeals the trial court’s denial of his

motion for resentencing pursuant to Penal Code section 1172.6.1 

We conclude that the court properly denied Gonzalez’s motion 

because, as the actual shooter, he is ineligible for relief pursuant 

to section 1172.6 as a matter of law. (People v. Lewis (2021) 11 

Cal.5th 952, 959, 971; People v. Hurtado (2023) 89 Cal.App.5th 

887, 892-893.) We affirm.

In December 1992, Gonzalez and an accomplice, Mark 

Estrada, attempted to rob an Oxnard convenience store. 

1 All statutory references are to the Penal Code.
2

Gonzalez used a .45 caliber handgun in committing the crime; 

Estrada was unarmed. The shopkeeper was armed, however, and 

a gun battle ensued. During an exchange of gunfire with 

Gonzalez, the shopkeeper shot and killed Estrada. Gonzalez

later pleaded guilty to two charged counts and admitted the 

personal firearm use allegations in the felony complaint.

FACTUAL AND PROCEDURAL HISTORY

On February 3, 1993, Gonzalez, then 17 years old, pleaded 

guilty to one count of first degree murder and one count of 

attempted murder. (§§ 187, subd. (a), 189, 664.) He also 

admitted that during commission of the offenses, he personally 

used a firearm. (§ 12022.5, subd. (a).) Gonzalez expressly agreed

that the trial court could consider the probation report to be 

prepared, as well as the 21-page juvenile fitness report, as the 

factual basis for his plea.2

Factual Basis in Probation Report

Gonzalez acquired a .45 caliber automatic handgun from a 

friend and displayed it to his brother. On December 2, 1992, 

Gonzalez and companion Estrada left the Gonzalez family 

residence carrying beanies. 

The two men went into an Oxnard convenience store 

wearing dark clothing and beanie masks. Gonzalez approached 

the clerk (the shopkeeper’s wife) sitting near the cash register, 

pointed the handgun at her, and demanded money. The clerk 

screamed for her shopkeeper husband who was in the back office 

of the store.

2 The appellate record contains the probation report but not 

the fitness report. The superior court clerk has filed a certificate 

stating that the fitness report cannot be located.
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The shopkeeper grabbed a .38 caliber revolver that he kept 

in the office and walked into the store area. Upon seeing the 

shopkeeper with a firearm, Gonzalez ran toward the door. As he 

reached the doorway, Gonzalez turned, raised his hand, and shot 

at the shopkeeper’s head who then returned fire. The trajectory 

of the bullet that Gonzalez fired resulted in the bullet landing on 

the shopkeeper’s office chair. 

As the shopkeeper continued walking inside the store, he 

saw Estrada. The shopkeeper mistakenly believed that Estrada 

was holding a firearm and might shoot him, so he shot Estrada. 

Estrada stumbled from the store into the parking lot. As the 

shopkeeper stood in the doorway of the store, Gonzalez continued 

shooting at him from the parking lot. The shopkeeper returned 

fire as Gonzalez and Estrada ran away. Estrada died later at the 

hospital.

When questioned by police officers, Gonzalez initially 

denied using a firearm to rob the convenience store. He then 

admitted that he shot at the shopkeeper when he saw that the

shopkeeper was armed. Gonzalez stated that after running from 

the store, he threw the .45 caliber firearm into a drainage ditch. 

In a later interview, Gonzalez stated that the shopkeeper shot 

first and that he (Gonzalez) returned fire from outside the store. 

Oxnard police officers found the .45 caliber firearm near a 

drainage ditch; the magazine was empty but a hollow point bullet

was in the chamber. The firearm’s safety was in the off position 

and the hammer was in the cocked position.

Sentencing and Section 1172.6 Petition

At sentencing, the trial court imposed a sentence of 25-

years-to-life imprisonment for the murder conviction plus a 

consecutive four-year prison term for the personal firearm use 
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enhancement. The court stayed sentence pursuant to section 654 

for the attempted murder conviction and its attendant firearm 

use enhancement.

On May 9, 2022, Gonzalez, represented by counsel, filed a 

petition to vacate his conviction pursuant to section 1172.6. The 

petition alleged that the prosecution rested upon a theory of 

felony murder, murder pursuant to the natural and probable 

consequences doctrine, or another theory where malice is 

imputed to a person solely on his participation in a crime. The 

prosecutor opposed the petition and requested that the court take 

judicial notice of the 1993 probation report. The prosecutor also 

asserted that Gonzalez’s conviction rested upon the theory of 

provocative act murder, not felony murder. (People v. Mancilla

(2021) 67 Cal.App.5th 854, 867-868.) Gonzalez did not file a reply 

brief but unsuccessfully opposed the prosecutor’s request 

regarding the probation report.

On September 3, 2020, the trial court denied the 

resentencing petition based upon Gonzalez’s 1993 guilty pleas 

and admissions and the evidence set forth in the probation and 

fitness reports. The trial judge stated that the court file 

indicated that Gonzalez was a major participant in the 

underlying felony and acted with reckless indifference to human 

life.

DISCUSSION

Gonzalez contends that the trial court erred by denying his

resentencing petition without issuing an order to show cause and 

holding an evidentiary hearing. (§ 1172.6, subd. (c).)

A person is entitled to resentencing relief pursuant to 

section 1172.6 if (1) “[a] complaint, information, or indictment 

was filed against the petitioner that allowed the prosecution to 
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proceed under a theory of felony murder [or] murder under the 

natural and probable consequences doctrine,” (2) the petitioner

“was convicted of murder,” and (3) the petitioner “could not 

presently be convicted of murder . . . because of changes to 

Section 188 or 189 made effective January 1, 2019.” (Id., subd. 

(a)(1)-(3).) In January 2019, our Legislature amended section 188 

to provide that “in order to be convicted of murder, a principal in 

a crime shall act with malice aforethought” and that “[m]alice 

shall not be imputed to a person based solely on his . . .

participation in a crime.” (Id., subd. (a)(3), Stats. 2018, ch. 1015, 

§ 2.) The amendment ensures 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. Lewis, supra, 11 Cal.5th 952, 959.) Section 1172.6 

provides a procedure for convicted murderers who could not be 

convicted under the amended law to retroactively seek relief. 

Effective January 2022, section 1172.6, subdivision (a),

permits relief if an attempted murder conviction may have been 

based upon a natural and probable consequences theory. (People 

v. Coley (2022) 77 Cal.App.5th 539, 548.) This recent amendment 

also recognized “the trial court’s authority to promptly screen out 

petitions by categorically ineligible defendants.” (People v. 

Hurtado, supra, 89 Cal.App.5th 887, 892.)

The trial court may consider the petitioner’s record of 

conviction, including the court’s own documents, in assessing 

whether a petitioner has made a prima facie case for relief 

pursuant to section 1172.6. (People v. Lewis, supra, 11 Cal.5th 

952, 972.) If the record, including the court’s own documents,

contains facts refuting the allegations in the petition, the court 
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may make a credibility determination adverse to the petitioner. 

(Id. at p. 971.) We independently review the summary denial of a 

resentencing petition pursuant to section 1172.6. (People v. 

Coley, supra, 77 Cal.App.5th 539, 545.) 

The trial court properly denied Gonzalez’s resentencing 

petition because he is ineligible for relief as a matter of law. The 

undisputed facts in the record of conviction as well as Gonzalez’s 

plea and admissions establish that he was the actual shooter who 

attempted to murder the shopkeeper. As Gonzalez was leaving 

the store, he shot at the shopkeeper. After leaving the store, 

Gonzalez continued to shoot at the shopkeeper from the parking 

lot. Gonzalez later directed police officers to the location of the 

firearm that he tossed into the drainage ditch. The felony 

complaint alleged that Gonzalez, with malice aforethought, 

committed first degree murder and attempted murder, and 

personally used a firearm in the commission of the offenses. The 

record of conviction conclusively establishes that Gonzalez

attempted to murder the shopkeeper by shooting him. (People v. 

Delgadillo (2022) 14 Cal.5th 216, 233 [record makes clear that 

defendant was the actual killer and only participant]; People v. 

Garrison (2021) 73 Cal.App.5th 735, 743 [lack of evidence that 

anyone else had a firearm and shot victim].) This evidence 

establishes that Gonzalez’s prosecution did not rest upon a theory 

of liability of imputed malice.

Gonzalez contends that the trial court erred by relying 

upon the probation report because it is not part of the record of 

conviction. (People v. Rivera (2021) 62 Cal.App.5th 217, 235

[grand jury transcript as factual basis for plea not part of record 

of conviction]; People v. Flores (2022) 76 Cal.App.5th 974, 991-

992.) We disagree. (People v. Nguyen (2020) 53 Cal.App.5th 
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1154, 1161, 1166-1167 [defendant stipulated that preliminary 

examination transcript and police reports would provide factual 

basis for his plea; litigants agreed that section 1172.6 

resentencing court could review same].) Here Gonzalez

stipulated that the probation report provided a factual basis for 

his plea. He admitted therein that he was the actual shooter and 

the only robber with a firearm. During police questioning, 

Gonzalez stated that he shot at the shopkeeper when the 

shopkeeper walked into the store area holding a firearm. “The 

record of conviction will necessarily inform the trial court’s prima 

facie inquiry under section [1172.6], allowing the court to 

distinguish petitions with potential merit from those that are 

clearly meritless.” (People v. Lewis, supra, 11 Cal.5th 952, 971.)

Gonzalez also contends that an evidentiary hearing was 

required to establish the theory of provocative act murder, 

including his mental states of premeditation and deliberation, in 

committing the attempted murder of the shopkeeper.

Pursuant to the provocative act doctrine, “when the 

perpetrator of a crime maliciously commits an act that is likely to 

result in death, and the victim kills in reasonable response to 

that act, the perpetrator is guilty of murder.” (People v. Gonzalez

(2012) 54 Cal.4th 643, 655.) The doctrine has two elements: 1) 

the defendant must personally harbor the mental state of malice, 

and 2) either the defendant or an accomplice intentionally 

committed a provocative act that proximately caused an unlawful 

killing. (Ibid.) The provocative act doctrine does not impute 

malice at all, and certainly does not impute it based solely on a 

defendant’s participation in a crime. (People v. Mancilla, supra, 

67 Cal.App.5th 854, 867-868.)
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The provocative act doctrine is distinguishable from felonymurder and the natural and probable consequences doctrines. 

The felony-murder rule does not apply where an accomplice is 

killed by the victim or another third party. (People v. Gonzalez,

supra, 54 Cal.4th 643, 654-655.) “The classic provocative act 

scenario occurs when a perpetrator of the underlying crime 

instigates a gun battle, usually by firing first, and a police officer, 

or victim of the underlying crime, responds with privileged lethal 

force by returning fire and kills the perpetrator’s accomplice.” 

(People v. Mejia (2012) 211 Cal.App.4th 586, 602-603.) Here 

Gonzalez shot at the shopkeeper at head level and the 

shopkeeper returned fire and struck Estrada. Gonzalez pleaded 

guilty to attempted murder and admitted that he harbored 

malice aforethought.

The natural and probable consequences doctrine could not 

have applied to convict Gonzalez because the doctrine requires a 

killing by a principal involved in a target crime. (People v. Mejia,

supra, 211 Cal.App.4th 586, 628.) Thus, the only theory 

applicable to prosecute Gonzalez was provocative act murder, a 

doctrine that does not impute malice based upon a defendant’s 

participation in a crime. Gonzalez cannot establish that he is 

eligible for relief pursuant to the methods set forth in section 

1172.6 regarding implied malice.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J. BALTODANO, J.
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David R. Worley, Judge

Superior Court County of Ventura

______________________________

Wayne C. Tobin, 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 and Heidi Salerno, Deputy 

Attorneys General, for Plaintiff and Respondent.