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Filed 10/6/22 P. v. Gonzalez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

OSCAR GONZALEZ,

Defendant and Appellant.

A165849

(Fresno County

Super. Ct. No. F15901132)

Defendant Oscar Gonzalez appeals a judgment convicting him of, 

among other things, the torture and kidnapping of his sister and sentencing 

him to an aggregate term of life plus nine years in prison. Initially, defendant

requests that the judgment be conditionally reversed and the matter 

remanded to the trial court to allow for a hearing on his eligibility for mental 

health diversion under Penal Code1 section 1001.36. Alternatively, he argues 

the evidence is insufficient to support his torture conviction and he identifies 

several sentencing errors which he contends must be corrected. In addition, 

defendant has filed a supplemental brief seeking resentencing under 

amendments to section 1170, subdivision (b)(6) (Stats. 2021, ch. 731, § 1.3)

and section 654 (Stats. 2021, ch. 441, § 1) which took effect during the 

pendency of this appeal.

1 All statutory references are to the Penal Code unless otherwise noted.
2

We conclude that defendant has forfeited his claim for mental health 

diversion by failing to raise the issue in the trial court and that substantial 

evidence supports his conviction for torture. We agree that defendant is 

entitled to a new sentencing hearing under the recent amendments.

Accordingly, we will remand for a new sentencing hearing and affirm the 

judgment in all other respects. 

Background

Defendant was charged by an amended information with attempted 

murder (count 1; §§ 664, 187, subd. (a)); torture (count 2; § 206); assault by 

means likely to produce great bodily injury (count 3; § 245, subd. (a)(4)); 

kidnapping (count 4; § 207, subd. (a)); making criminal threats (count 5; 

§ 422); and false imprisonment by violence (count 6; § 236). As to counts 1, 3, 

and 4, the information alleged defendant personally used a deadly and 

dangerous weapon (§ 12022, subd. (b)(1)), and personally inflicted great 

bodily injury (§ 12022.7, subd. (a)). As to counts 5 and 6, the information 

alleged defendant personally used a deadly and dangerous weapon (§ 12022, 

subd. (b)(1)).2

At trial, evidence was presented that defendant, 37 years old at the 

time of his offenses, and the victim were siblings. The victim, his sister, is 

approximately four or five years older than defendant. They had another

sister who died before the charged crimes were committed and who was a 

year older than defendant. Defendant and the victim had not had in-person 

contact for approximately 15 years before the night of the assault but 

remained in contact over social media.

2 Defendant’s girlfriend, codefendant Shawnessa Hinojosa, was charged 

with one count of false imprisonment by violence (count 7; § 236) and 

convicted of the lesser-included offense of false imprisonment.
3

Defendant and the victim met around 3:00 p.m. on the night of the 

attack. Over the next few hours, the siblings amicably caught up and went to 

a restaurant for dinner. After dinner, they decided the sister would spend the 

night at defendant’s home. Defendant lived with his girlfriend and her 

teenage son, both of whom were home when they arrived at defendant’s 

house. 

Over the course of the evening, both defendant and his sister drank 

several beers. The sister testified that she did not believe that defendant was 

drunk. At approximately 9:00 p.m., defendant and his sister got into a verbal 

disagreement about the sister’s children, who were serving in the United 

States military. After about 30 minutes, defendant stood and hit his sister in 

her mouth with a closed fist. Then he shoved her into the bedroom and told 

her that he was going to kill her, cut her throat, and bury her body in the 

backyard. He punched her in the mouth a second time, then opened his 

pocketknife and cut her across the nose. As she lay in a fetal position on the 

bed, defendant continued to hit and kick her. Defendant told her he was 

angry because he had his “identity stolen” by their now-deceased sister when 

they were younger and the victim never tried to help him. The victim testified 

that she was bleeding from her face while in the bedroom.

Before leaving the bedroom, defendant used duct tape to bind the 

victim’s wrists together. Then, while she was seated on the bed, defendant 

used his pocketknife to cut her hair and stab her in the head. Again he

repeated “over and over again” that the victim did not help him and was not 

there when he needed her. 

The victim testified that defendant’s girlfriend entered the room three 

times while she was being attacked. The third time, the girlfriend told 

defendant she was going to take her son and leave, because she did not want 
4

him to see what was happening. At that point, defendant forced the victim to 

walk to the basement. At the bottom of the basement stairs, defendant

shoved her and she fell to the ground. Defendant turned on the light and 

began kicking and stabbing his sister as she lay on the ground in the fetal 

position. Defendant stabbed and cut the victim’s head, arms, and hands. The 

victim testified, “the more I would cry the more he would start to cut. I had 

stab wounds on my left arm . . . and on my elbow.” She explained further, “So 

I got stabbed two times here. (Indicating) And again, the more I cried, the 

more was just -- like he was cutting my fingers. My hands were tied together 

so I couldn't really do much. So he cut my right hand and wrist with the knife 

as well. So it was just the more I cried the more he would sit there. He was 

torturing me the whole time I was down there.”

The abuse and threats continued for a period of time in the basement 

until, for reasons unknown to the victim, defendant suddenly stopped and 

went up the stairs. When he returned to the basement, he tossed the victim’s

purse at her and told her to “[g]et her keys and get the fuck out of [his]

house.” Defendant cut the duct tape off the victim’s wrists and told her that if 

she told the police what happened he would kill himself. 

When the victim was away from defendant’s home, she called a friend, 

who picked her up and took her to the hospital. At the hospital, staples were 

used to close the gash on the back of her head because it was bleeding 

heavily. Photographs of the victim’s injuries, including bruises on her face, 

the cut on her nose and the lacerations on her head and body, were 

introduced at trial.

Defendant testified that there was a lot of conflict and abuse in his 

childhood home but that the victim was his favorite sister growing up and 

they never fought. He was looking forward to reuniting with her and enjoyed 
5

the early part of the evening. As the evening went on, both he and his sister

drank a lot of alcohol. He admitted that they got into an argument about the 

military but denied hitting the victim in the face. He claimed that he told her

to leave and followed her into the bedroom when she went to retrieve her 

belongings. 

While in the bedroom, defendant asked his sister about his “stolen 

identity.” He kept pressing her for information until the victim admitted that 

she knew that their sister had sold his social security number, but never told 

him. According to defendant, at this point he “lost it” and pulled out his 

pocketknife. He wanted to cut her hair but she kept putting her hands in the 

way, so he went into the kitchen and grabbed the duct tape. When he

returned to the bedroom, he hit, punched, and kicked his sister. Then he 

continued cutting off her hair. He testified that he cut her hair to humiliate 

and degrade her.

Defendant also admitted that he moved his sister to the basement and 

continued to cut off her hair. He testified, “I was just yelling at her to answer 

me. And she wouldn't tell me why she knew -- she knew the whole time about 

my social, but she didn't want to tell me.” According to defendant, up to that

point, he did not realize she was bleeding because she did not tell him that he 

had cut her. He thought he was just cutting her hair. He explained that there 

was just a single lightbulb in the basement, so the light was very dim. After 

he saw the blood, he knew he had gone “too far,” so he cut the duct tape off

and told her that he was sorry.

The jury found defendant guilty of counts 2 through 4 and 6 and found 

all enhancement allegations as to those counts true. The jury found 

defendant not guilty of count 1 and was not able to reach a verdict on count 5.

The trial court sentenced defendant to state prison for life plus nine years.
6

Defendant timely filed a notice of appeal.

Discussion

1. Mental Health Diversion 

In June 2018, the Legislature enacted sections 1001.35 and 1001.36

(Stats. 2018, ch. 34, § 24), which created a discretionary pretrial diversion 

program for defendants with certain mental disorders who may benefit from 

localized treatment. (§ 1001.36, subd. (b); People v. Frahs (2020) 9 Cal.5th 

618, 624, 626 (Frahs).) In July 2019, at the time of defendant’s trial, section 

1001.36 gave trial courts discretion to grant pretrial diversion if it found all 

of the following: (1) the defendant had been diagnosed with a qualifying 

mental disorder “as identified in the most recent edition of the Diagnostic and 

Statistical Manual of Mental Disorders (DSM), including, but not limited to, 

bipolar disorder, schizophrenia, schizoaffective disorder, or PTSD, but 

excluding antisocial personality disorder, borderline personality disorder, and 

pedophilia”; (2) the disorder was a significant factor in the commission of the 

charged offense; (3) in the opinion of a qualified mental health expert, 

defendant’s symptoms of the mental disorder motivating the criminal 

behavior would respond to mental health treatment; (4) subject to certain 

exceptions related to incompetence, the defendant consented to diversion and 

waived his or her speedy trial rights; (5) the defendant agreed to comply with 

treatment as a condition of diversion; and (6) the court was satisfied that the 

defendant would not pose an unreasonable risk of danger to public safety if 

treated in the community, as defined in section 1170.18. (§ 1001.36, 

subd. (b)(1); Frahs, supra, at pp. 626–627.) 

Defendant concedes that despite the availability of the pretrial 

diversion program at the time of his trial, he did not at any point request the 

trial court to consider referring him to the program. Nonetheless, he contends 
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that he should be considered for diversion, and that we should remand this 

matter to the trial court with directions that it consider the issue. He relies 

on Frahs, supra, 9 Cal.5th at page 626, in which the court held that for cases 

on appeal that are not yet final, section 1001.36 applies retroactively, and an 

appellate court may remand a matter for the trial court to consider whether 

the defendant should be granted pretrial diversion.

The retroactivity of the statute, however, does not excuse defendant’s 

failure to seek diversion in the trial court when he had a meaningful 

opportunity to do so. A defendant who has the opportunity to seek 

discretionary relief in the trial court but fails to do so forfeits the right to 

raise the issue on appeal. (See People v. Carmony (2004) 33 Cal.4th 367, 375–

376 [“[A]ny failure on the part of a defendant to invite the court to dismiss 

under section 1385 following [People v. Superior Court (Romero) (1996) 13 

Cal.4th 497] waives or forfeits his or her right to raise the issue on appeal.”]; 

People v. Scott (1994) 9 Cal.4th 331, 352–353 [forfeiture results where a 

defendant fails to object to a trial court's discretionary sentencing choices].) 

“All issues . . . are subject to the rule of forfeiture, and a defendant’s failure to 

raise the issue before the trial court will generally result in the appellate 

court’s refusal to consider it.” (People v. Navarro (2013) 212 Cal.App.4th 

1336, 1347, fn. 9; People v. Trujillo (2015) 60 Cal.4th 850, 856 [“ ‘ “ ‘ “[A] 

constitutional right,” or a right of any other sort, “may be forfeited in criminal 

as well as civil cases by the failure to make timely assertion of the right 

before a tribunal having jurisdiction to determine it.” ’ ” ’ ”].)

Mental health diversion had been available to defendant for over a year 

before his trial. Yet he never sought to avail himself of the diversionary relief. 

Section 1001.36 requires a defendant to raise the issue of diversion and 

“[e]vidence of the defendant’s mental disorder shall be provided by the 
8

defense and shall include a recent diagnosis by a qualified mental health 

expert.” (§ 1001.36, subd. (b)(1)(A).) Because defendant failed to request 

mental-health diversion in the trial court, he has forfeited the right to raise 

the issue for the first time on appeal.

Defendant’s alternative argument that trial counsel rendered 

ineffective assistance by failing to request diversion fares no better. To 

prevail on an ineffective assistance of counsel claim, defendant must 

establish that trial counsel’s representation fell below professional standards 

of reasonableness and must affirmatively establish prejudice. (Strickland v. 

Washington (1984) 466 U.S. 668, 687.) “Reviewing courts defer to counsel’s 

reasonable tactical decisions in examining a claim of ineffective assistance of 

counsel [citation], and there is a ‘strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance.’ ” (People v. 

Lucas (1995) 12 Cal.4th 415, 436–437.)

Here, a licensed psychologist testified at trial that he had interviewed 

defendant and diagnosed him as suffering from two disorders contained in 

DSM-5: major depression, recurrent and substance-induced delirium

disorder—namely, alcohol. The doctor also indicated that defendant’s mental 

disorders were connected to the February 21, 2015 incident. There is, 

however, no evidence that the doctor believed defendant would be amenable 

to treatment. (§ 1001.36, subd. (b)(1)(E).) Accordingly, there may be a

reasonable explanation for trial counsel’s failure to raise the issue in the trial 

court. (People v. Mai (2013) 57 Cal.4th 986, 1009 [Reversal on appeal for 

ineffective assistance is proper “only if (1) the record affirmatively discloses 

counsel had no rational tactical purpose for the challenged act or omission;

(2) counsel was asked for a reason and failed to provide one; or (3) there 

simply could be no satisfactory explanation.”].) On the record before us, 
9

defendant’s claim that he was likely to qualify for diversion and, therefore,

prejudiced by the failure to request it is mere speculation that does not, at 

this juncture, support a finding of ineffective assistance.

2. Torture: Sufficiency of the Evidence

The crime of torture, as defined by section 206, has two elements: 

“(1) the infliction of great bodily injury; and (2) the specific intent to cause 

cruel or extreme pain and suffering for the purpose of revenge, extortion, 

persuasion, or for any sadistic purpose.” (People v. Massie (2006) 142 

Cal.App.4th 365, 370–371 (Massie).) The record undoubtedly contains 

substantial evidence to support the jury’s finding that defendant inflicted 

great bodily injury for the purpose of revenge. The lacerations to the victim’s 

head and the bruises on her body support the jury’s finding that defendant 

inflicted great bodily injury. (See § 12022.7, subd. (f) [Great bodily injury 

means “significant or substantial physical injury.”]; People v. Odom (2016) 

244 Cal.App.4th 237, 247 (Odom) [Great bodily injury does not require 

permanent, disabling, or disfiguring injuries; abrasions, lacerations, and 

bruising may suffice.].) Defendant’s testimony that he cut the victim’s hair to 

“shame” and “insult” her is consistent with a finding that the assaultive acts 

were committed for the purpose of exacting revenge. Defendant admitted that 

he was enraged that the victim knew their sister had “stolen his identity”—

that is, sold his social security number to another—and acknowledged that 

throughout the assault, he repeatedly pressed her for information about the 

subject.

Defendant contends there is insufficient evidence that he acted with 

the specific intent to cause cruel or extreme pain and suffering. He argues 

that the evidence shows that he intended to beat the victim, but that he did 

not intend to cause her extreme physical pain and suffering. He also argues 
10

that “[e]xtreme pain and suffering is a far greater level of injury than great 

bodily injury” and that if he had intended to inflict extreme pain and 

suffering, “the wounds that would have been inflicted . . . would have been far

more severe.” We disagree.

The California Supreme Court has clarified that torture requires a 

specific intent to inflict cruel or extreme “physical pain or suffering.” (People 

v. Mejia (2017) 9 Cal.App.5th 1036, 1047; People v. Pre (2004) 117 

Cal.App.4th 413, 420 (Pre) [“The statutory requirement of an intent to inflict 

‘cruel’ pain and suffering has been interpreted to require that the defendant 

had an intent to inflict extreme or severe pain.”].) The intent to cause cruel or 

extreme pain “is rarely susceptible of direct proof and usually must be 

inferred from the facts and circumstances surrounding the offense.” (Pre, 

supra, at p. 420.) The length of time over which the offense occurred and the 

severity of any wounds are relevant, but not necessarily determinative. 

(Massie, supra, 142 Cal.App.4th at p. 371.)

Here, there is ample evidence that defendant acted with the intent to 

cause severe pain. He acknowledges that he repeatedly punched and kicked 

the victim while in the bedroom and the basement. “Torture . . . does not 

require a specific modality” and the fact that “great bodily injury was 

inflicted with ‘fists and feet’ does not negate the substantial evidence of 

intent to cause cruel or extreme pain and suffering.” (Odom, supra, 244

Cal.App.4th at p. 248.) The victim testified that the more she cried, the more 

he hit her. The reasonable inference is that he meant to increase her pain 

and suffering in response to her cries. 

Defendant’s self-serving testimony that he did not know he had cut his 

sister because the light in the basement was too dim to see the blood was 

contradicted by the victim’s credible testimony that defendant cut her across 
11

her nose while in the bedroom and that by the time she left the bedroom she 

was already bleeding. Defendant’s argument also disregards the victim’s 

testimony, which was confirmed in photographs, that defendant stabbed her 

on her arms and legs as well as her head. Defendant did not need to see blood 

to know that stabbing someone with a knife would inflict severe pain and 

suffering.

Finally, we note that in the course of the attack, defendant had the

opportunity to reflect and to stop. Rather than do so, he bound the victim’s

hands with duct tape and later moved her away from other occupants in the 

house. A reasonable jury could infer from this that defendant’s attack was 

intentional and not an emotional overreaction fueled by alcohol consumption. 

(See Odom, supra, 244 Cal.App.4th at p. 247, fn. 8 [“ ‘Although evidence of 

binding, by itself, is insufficient to establish an intent to torture [citation], it 

is appropriate to consider whether the victim was bound and gagged, or was 

isolated from others.’ ”]; Massie, supra, 142 Cal.App.4th at p. 372 [“The role 

that anger may have played in a criminal attack is a matter for the jury to 

determine. In many circumstances, the jury may determine that anger was 

the reason that the accused formed the intent to inflict injury. There is 

nothing logically or legally inconsistent in such a determination. On the other 

hand, if the jury believes the accused acted in such a mindless rage that 

thought processes were impossible, then it may conclude he did not harbor 

the intent to inflict injury.”].) 

Accordingly, there was sufficient evidence to support defendant’s 

conviction for torture.

3. Sentencing Issues

Defendant was sentenced as follows: The court imposed an 

indeterminate state prison term of life with the possibility of parole on 
12

count 2 (torture). On count 3 (assault by means of force likely to produce 

great bodily injury), the court imposed the midterm of three years, a threeyear term on the section 12022.7, subdivision (a) enhancement and a oneyear term on the section 12022, subdivision (b)(1) enhancement, and stayed 

those terms pursuant to section 654. On count 4 (kidnapping), the court 

imposed the midterm of five years, a term of three years for the section 

12022.7, subdivision (b) enhancement and a term of one year for the section 

12022, subdivision (b)(1) enhancement, to run consecutive to the term on 

count 2. Finally, on count 6 (false imprisonment), the court imposed eight 

months or one-third the midterm and a one-year term for the section 12022, 

subdivision (b)(1) enhancement to run consecutive to the term on count 4, but 

stayed those terms under section 654.

While defendant’s appeal was pending, the Legislature amended 

sections 654 and 1170 to significantly alter a trial court’s sentencing 

discretion. We briefly summarize the relevant amendments:

Section 654 “ ‘precludes multiple punishments for a single act or 

indivisible course of conduct.’ ” (People v. Pinon (2016) 6 Cal.App.5th 956, 

967.) When a court determines that a conviction falls within the meaning of 

section 654, the trial court “is required to impose judgment on each count, 

which involves selecting a term, and then staying execution of the duplicative 

sentence, the stay to become permanent upon defendant’s service of the 

portion of the sentence not stayed.” (People v. Mani (2022) 74 Cal.App.5th 

343, 380.) At the time of sentencing in this case, section 654, subdivision (a) 

required the sentencing court to impose the sentence that “provides for the 

longest potential term of imprisonment” and stay execution of the other term. 

(§ 654, former subd. (a).) As amended by Assembly Bill No. 518, “section 654 

now provides the trial court with discretion to impose and execute the 
13

sentence of either term, which could result in the trial court imposing and 

executing the shorter sentence rather than the longer sentence.” (People v. 

Mani, supra, at p. 379; see § 654, subd. (a) [“An act or omission that is 

punishable in different ways by different provisions of law may be punished 

under either of such provisions, but in no case shall the act or omission be 

punished under more than one provision.” (Italics added.)].)

Section 1170, subdivision (b) governs the trial court’s discretion when 

“a judgment of imprisonment is to be imposed and the statute specifies three 

possible terms.” At the time of defendant’s sentencing, section 1170, former 

subdivision (b), provided that the choice between sentencing a defendant to 

the lower, middle, or upper term “shall rest within the sound discretion of the 

court,” with the court to determine which term “best serves the interests of 

justice.” (§ 1170, former subd. (b).) Pursuant to Senate Bill No. 567, 

section 1170, subdivision (b)(6) now provides that “[u]nless the court finds 

that the aggravating circumstances outweigh the mitigating circumstances

[such] that imposition of the lower term would be contrary to the interests of

justice, the court shall order . . . the lower term if any of the following was a 

contributing factor in the commission of the offense: [¶] (A) The person has 

experienced psychological, physical, or childhood trauma, including, but not 

limited to, abuse, neglect, exploitation, or sexual violence. . . .” 

Defendant argues that because these amendments were enacted before

his convictions were final and they provide the trial court new discretion to 

impose a lower sentence, defendant is entitled to their ameliorative benefit. 

(See People v. Mani, supra, 74 Cal.App.5th at pp. 379–380, People v. Garcia

(2022) 76 Cal.App.5th 887, 902.) Defendant argues that “[i]n light of the 

passage of [Assembly Bill No.] 518 and its amendment of section 654, 

subdivision (a), the trial court should now exercise its discretion and 
14

determine whether to impose and execute the sentence on the shorter term, 

i.e., the assault, rather than the longer one [torture], as it had done before 

the change in law.” With respect to the amendment of section 1170, 

subdivision (b), defendant argues that given the evidence of his childhood 

abuse, the trial court may well impose the lower terms rather than the 

middle terms on his convictions for assault and kidnapping.

We agree that the amendments apply to defendant’s convictions and 

that remand is appropriate in this case. Generally, “ ‘[d]efendants are 

entitled to sentencing decisions made in the exercise of the “informed 

discretion” of the sentencing court’ ” (People v. Gutierrez (2014) 58 Cal.4th 

1354, 1391), and “ ‘a court that is unaware of its discretionary authority 

cannot exercise its informed discretion.’ ” (People v. McDaniels (2018) 22 

Cal.App.5th 420, 425.) Nothing in the record clearly indicates that the trial 

court would have imposed the same sentence under the amended statutes. 

(See ibid. [When “ ‘ “the record shows that the trial court would not have 

exercised its discretion even if it believed it could do so, then remand would 

be an idle act and is not required.” ’ ”].)

Accordingly, we vacate defendant’s sentence and remand for a new 

sentencing hearing.3 The trial court is entitled in this instance to exercise its 

full sentencing authority in the first instance. (See People v. Buycks (2018) 5 

Cal.5th 857, 893 [“[W]hen part of a sentence is stricken on review, on remand 

for resentencing ‘a full resentencing as to all counts is appropriate, so the 

trial court can exercise its sentencing discretion in light of the changed 

circumstances.’ ”]; People v. Jones (2022) 79 Cal.App.5th 37, 46 [Full 

3 The parties agree that defendant’s conviction for false imprisonment 

should be vacated because false imprisonment is a lesser included offense of 

the kidnapping committed in this case. We agree and accordingly, on remand,

the court must vacate defendant’s conviction on count 6.
15

resentencing is appropriate where “[a]pplication of the amended statutes will 

require the trial court, at a minimum, to reconsider which triad term to 

impose for certain counts of conviction and which terms to stay under 

section 654.”].) Accordingly, we do not address defendant’s arguments that 

section 654 prohibits separate sentences on (1) the torture and kidnapping 

convictions because the crimes were committed pursuant to a single intent 

and objective and (2) the great bodily injury enhancement attached to the 

kidnapping conviction and the torture conviction based on the same injuries.

Defendant may raise these arguments in the trial court and the prosecutor 

may respond as appropriate. On remand, defendant may also make any 

arguments regarding his ability to pay any fines and assessments imposed by 

the court and the sufficiency of prison wages to satisfy his financial

obligations.

Disposition

The matter is remanded with directions to vacate defendant’s 

conviction for false imprisonment and conduct a new sentencing hearing. In 

all other respects, the judgment is affirmed. 

POLLAK, P. J.

WE CONCUR:

STREETER, J.

GOLDMAN, J.