1

Filed 9/14/23 P. v. Gonzalez CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO GODINEZ GONZALEZ,

Defendant and Appellant.

 A166251

 (Mendocino County Super. Ct. 

 No. SCUKCRCR15832642)

ORDER MODIFYING

OPINION; AND ORDER 

DENYING REHEARING [NO 

CHANGE IN JUDGMENT]

BY THE COURT:

The opinion filed September 5, 2023, is modified as follows:

(1) Delete the last paragraph starting on page 9 that currently 

states:

First, Gonzalez forfeited any self-defense argument by failing to raise it 

below despite having ample opportunity to do so in his briefing and at 

the section 1172.6 hearing. “As a general rule, a party who does not 

raise an argument below forfeits the argument on appeal.” (In re 

Abram L. (2013) 219 Cal.App.4th 452, 462.) This rule “is founded on 

considerations of fairness to the court and opposing party, and on the 

practical need for an orderly and efficient administration of the law.” 

(People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.) 
2

09/14/2023 Simons, J.

(2) In the first full paragraph on page 10, delete the last three 

sentences and citation, which currently state:

As the defendant, it was Gonzalez’s burden to raise this affirmative

defense before the prosecution was obligated to respond to it. (People v. 

Frye (1992) 7 Cal.App.4th 1148, 1154–1155.) The fact that the trial 

court briefly referenced self-defense in its order is irrelevant. It was 

Gonzalez’s obligation to raise it in his resentencing petition if he did 

not want to forfeit the issue. 

Replace those last three sentences and citation with the following 

sentences and citations:

“As a general rule, a party who does not raise an argument below 

forfeits the argument on appeal.” (In re Abram L. (2013) 219 Cal.App.4th 

452, 462.) However, because the People did not raise the issue of forfeiture in 

its respondent’s brief, we will address the merits of Gonzalez’s argument. 

(Gov. Code, § 68081.) We conclude that substantial evidence supports the 

trial court’s finding that Gonzalez acted with reckless indifference to human 

life.”

(3) In the last paragraph on page 10, delete the first sentence which 

states:

Second, even assuming Gonzalez did not forfeit the issue, 

substantial evidence supports the trial court’s finding that Gonzalez 

acted with reckless indifference to human life.

This order does not effect a change in the judgment.

Gonzalez’s September 12, 2023 petition for rehearing is denied. 

Date: ________________ __________________________, Acting P.J.
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Filed 9/5/23 P. v. Gonzalez CA1/5 (unmodified opinion)

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 FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO GODINEZ GONZALEZ,

Defendant and Appellant.

 A166251

 (Mendocino County Super. Ct. 

 No. SCUKCRCR15832642)

Defendant and appellant Mario Godinez Gonzalez appeals the trial 

court’s denial of his petition for resentencing pursuant to former Penal Code1

section 1170.95.

2 The trial court initially denied the petition after finding

that Gonzalez failed to make a prima facie showing that he was eligible for

relief. Gonzalez appealed that denial and this court reversed and remanded

the matter for an evidentiary hearing. 

Following the evidentiary hearing, the trial court again denied the 

petition because it found that Gonzalez could still be convicted of murder

under amended section 189. Specifically, the court concluded that the 

1 All further statutory references are to the Penal Code unless 

otherwise specified.

2 The Legislature subsequently renumbered section 1170.95 to section 

1172.6. (Stats. 2022, ch. 58, § 10.) For clarity and consistency, we will only

reference section 1172.6. 
2

evidence showed beyond a reasonable doubt that Gonzalez was a major 

participant in the underlying robbery and acted with reckless indifference to 

human life. Gonzalez appeals on the grounds that he was prejudiced by the 

erroneous admission of an autopsy report and that the trial court erred in 

finding there was no evidence Gonzalez acted in self-defense. We affirm. 

I. BACKGROUND3

A. Procedural History 

In March 2016, plaintiff and respondent the People of the State of 

California (People) filed an information charging Gonzalez, Edgar Contreras, 

and Isidro Lopez Bernal (collectively, defendants) with one count of murder 

(§ 187), with a special circumstance that the murder was committed during a 

robbery (§ 190.2, subd. (a)(17)(D)), and one count of second degree robbery 

(§§ 211, 212.5, subd. (c).) The information further alleged that all three 

defendants personally and intentionally discharged firearms during the 

commission of these crimes (§ 12022.53, subd. (c)) and that they personally 

and intentionally discharged firearms which proximately caused the victim’s 

death (§ 12022.53, subd. (d)).

In February 2017, Gonzalez pled no contest to second degree murder

and second degree robbery and admitted to personally using a firearm during 

the commission of the murder. (§ 12022.53, subd. (b).) On the People’s 

motion, the trial court dismissed the remaining count and special allegations. 

The parties agreed Gonzalez would receive a sentence of five years for the 

robbery conviction, 10 years for the firearm enhancement, and a consecutive 

3 Pursuant to the People’s request, we take judicial notice of the record 

in Gonzalez’s prior related appeal, People v. Godinez-Gonzales (August 19, 

2021, A160026) [nonpub. opn.]. It is not immediately clear why Gonzalez’s 

name was spelled slightly differently in the prior opinion but we use 

“Gonzalez” because that is how Gonzalez spells it in his opening brief. 
3

15 years to life for the murder conviction. Accordingly, the court sentenced 

Gonzalez to 30 years to life in state prison. 

In March 2019, Gonzalez filed a petition for resentencing pursuant to 

section 1172.6. The petition alleged that Gonzalez was prosecuted under a 

felony-murder theory; that he pled guilty to second degree murder because he 

believed he could have been convicted at trial under the felony murder rule; 

and that he could no longer be convicted of murder because of amendments to 

sections 188 and 189.

Following briefing by the parties, the trial court concluded that 

Gonzalez failed to make a prima facie case for relief and denied the petition.

Specifically, the court found that “[w]hile ‘felony-murder’ was the theory 

relied upon by the prosecutor at the preliminary hearing, the Information 

and the available facts would have certainly allowed the prosecution to 

proceed to trial on both a felony-murder theory and an aiding and abetting 

theory.” Gonzalez appealed this denial. In an unpublished opinion, this 

court reversed and remanded the matter “with directions to issue an order to 

show cause and to hold a hearing at which the prosecution bears the burden 

of proving, beyond a reasonable doubt, that [Gonzalez] is ineligible for 

resentencing.” (People v. Godinez-Gonzales, supra, A160026.) 

On remand, the trial court held an evidentiary hearing.

4 The People 

relied on the transcript from the preliminary hearing as well as the victim’s 

autopsy report as evidence. Gonzalez did not offer any evidence. Following 

4 The trial court conducted a joint evidentiary hearing with Contreras,

who also filed a petition for resentencing, and the two defendants requested

that their petitions be heard together.
4

the hearing, the trial court again denied the petition.5 The court held that 

the evidence showed beyond a reasonable doubt that Gonzalez “was a major 

participant in the robbery and in its commission acted with reckless

indifference to human life.” The court specifically noted that this was a 

planned robbery and that Gonzalez and Contreras both “fired their weapons 

when a voice from the dark told them to stop stealing the marijuana.” The 

court further stated there was “no evidence they fired their weapons in 

self-defense.” The court concluded that Gonzalez could still be convicted of 

murder under amended section 189 and was therefore not entitled to relief 

under section 1172.6. Gonzalez timely appealed this second denial. 

B. Facts from Preliminary Hearing

At around 1:00 a.m. on September 27, 2015, Gonzalez drove his truck to 

a friend’s house after she asked to borrow it. When Gonzalez arrived at the 

house, he told his friend he needed a ride. Contreras was in the passenger 

seat of the truck. The friend got into the backseat and Gonzalez drove. They 

stopped and picked up Bernal. They continued driving for about an hour

before Gonzalez turned down a dirt road and stopped under an oak tree at 

around 2:00 a.m. Gonzalez and Contreras got out of the truck for a minute or 

two and then got back inside. They then drove for a mile before stopping 

again. This time, all three defendants got out and the friend drove the truck 

away. Defendants proceeded towards a marijuana garden. 

5 The trial court’s order noted that statements by Gonzalez and 

Contreras were admitted at the preliminary hearing under Evidence Code 

section 1220 and were admissible at the evidentiary hearing on the same 

grounds in that “the respective statements of the petitioners are admissible 

as to only the declarant/defendant/petitioner.” Thus, neither Gonzalez nor 

the People can rely on any inadmissible hearsay statements by his codefendants on appeal. 
5

Gonzalez later admitted that he went to the garden to steal marijuana 

because of a past debt owed to him. Defendants retrieved firearms that 

Gonzalez hid at the drop-off location ahead of time. Gonzalez had a .223 

caliber rifle and provided firearms to Contreras and Bernal. Gonzalez later 

stated that his intent was to steal marijuana and not to kill anyone. When 

they arrived at the garden, defendants began cutting and bundling the 

marijuana. After about an hour in the garden, Gonzalez heard a voice telling 

him to stop. He was on the hillside, slipped, and heard gunshots. Gonzalez 

believed there were at least two people shooting at them and stated that he 

fired two or three shots in the air. He then ran and discarded his rifle under 

some brush and leaves. He saw the victim and believed he was dead. At 

some point during this gunfire exchange, Contreras was shot. 

Police officers were dispatched to the area to attend to Contreras.

Detective Clinton Wyant was also dispatched to the area to investigate. He

walked up the hill and found an encampment at the top as well as what 

appeared to be a well-traveled trail. He followed the trail and discovered the 

victim’s body. The victim had three separate bullet wounds. The victim also 

had a firearm at his side that was in its holster. Two nearby trees at the top 

of the hill were damaged by bullets. A rifle casing was found in the garden 

below and .9mm shell casings were found throughout the area, including nine

.9mm fired casings in one of the marijuana bundles. A live .9mm round was 

also found where police believed the victim was initially. 

The victim’s autopsy revealed that he was shot from a distant range

and that the fatal shot was likely fired at a downward angle. The autopsy did 

not reveal what kind of ammunition caused the victim’s gunshot wounds. 

Wyant attended the autopsy and testified as to the various bullet wounds he 

observed, including bullet holes through the victim’s leg, abdomen, and back.
6

II. DISCUSSION

A. Law and Standard of Review 

Effective January 1, 2019, Senate Bill No. 1437 (2017–2018 Reg. Sess.) 

(Senate Bill 1437) “ ‘amend[ed] 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.’ 

([Stats. 2018, ch. 1015, § 1,] subd. (f).)” (People v. Gentile (2020) 10 Cal.5th 

830, 846–847.) Among other things, Senate Bill 1437 added section 189, 

subdivision (e), which “limits liability under a felony-murder theory 

principally to ‘actual killer[s]’ ([] § 189, subd. (e)(1)) and those who, ‘with the 

intent to kill,’ aid or abet ‘the actual killer in the commission of murder in 

the first degree’ (id., subd. (e)(2)). Defendants who were neither the actual 

killers nor acted with the intent to kill can be held liable for murder only if 

they were ‘major participant[s] in the underlying felony and acted with 

reckless indifference to human life’ ” under section 189, subdivision (e)(3).

(People v. Strong (2022) 13 Cal.5th 698, 708.)

Senate Bill 1437 also added section 1172.6, which outlines the 

procedure for defendants convicted of murder to petition for resentencing in 

the trial court if they believe they could no longer be convicted of murder 

based on amended section 189. (Stats. 2018, ch. 1015, § 4.) If the trial court 

determines that the petitioner has made a prima facie showing for relief, it 

must issue an order to show cause and hold an evidentiary hearing. 

(§ 1172.6, subd. (c).) At the evidentiary hearing, the parties may rely upon 

evidence in the record of conviction or new evidence to show whether the 

petitioner is eligible for resentencing. (§ 1172.6, subd. (d)(3).) The 
7

prosecution bears the burden of proving, “beyond a reasonable doubt, that the 

petitioner is ineligible for resentencing.” (Id.)

On appeal, we review the trial court’s factual findings for substantial 

evidence. (People v. Williams (2020) 57 Cal.App.5th 652, 663.) The test is 

“ ‘whether any rational trier of fact could have’ made the same determination, 

namely that ‘[t]he record . . . disclose[s] . . . evidence that is reasonable, 

credible, and of solid value—such that a reasonable trier of fact could find [as 

did the superior court]. [Citation.] In applying this test, we review the 

evidence in the light most favorable to the prosecution and presume in 

support of the [order] the existence of every fact the [superior court] could 

reasonably have deduced from the evidence.’ ” (Ibid.) 

B. Admission of the Autopsy Report Was Not Prejudicial.

Gonzalez contends that the trial court erred in admitting the victim’s 

autopsy report as reliable hearsay and that the admission of the report was 

prejudicial. The People concede the court erred in admitting the autopsy 

report based on a recent amendment to section 1172.6 which made the 

admission of evidence in a section 1172.6 proceeding subject to the Evidence 

Code. (§ 1172.6, subd. (d)(3).) However, the People argue that the error was 

harmless.

6 We agree. 

Gonzalez argues that the autopsy report was the only evidence that the 

victim died from gunshot wounds. We see no merit in this argument. 

6 We also agree with the People that the state law standard applies 

here—whether it is “reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the error.” 

(People v. Watson (1956) 46 Cal.2d 818, 836.) This standard is applied to the 

erroneous admission of evidence in a section 1172.6 hearing. (People v. Myles

(2021) 69 Cal.App.5th 688, 706.) However, our conclusion would be the same 

even under the standard set forth in Chapman v. California (1967) 386 U.S. 

18, 24, which Gonzalez argues should apply in this appeal. 
8

Gonzalez himself stated that after the exchange of gunshots, he saw the 

victim and believed he was dead. Later that morning, Detective Wyant

found the victim’s body with blood on different parts of him and stated, “It 

appeared to be a shooting victim.” Photographs of the victim’s body were 

admitted into evidence at the preliminary hearing. Detective Wyant 

attended the autopsy and observed several bullet holes on the victim’s body. 

He testified that the first bullet hole “went through-and-through from the 

leg with an exit wound behind the left thigh.” The second bullet hole had an 

entrance wound “just below the right rib cage area” and “an exit wound to

the left side of the abdomen.” The third bullet hole had an exit wound on the 

right side of the back. When the victim’s body cavity was opened during the 

autopsy, Wyant observed an area of vital organs that were destroyed by a 

bullet wound.

This evidence amply established that the victim died from his gunshot 

wounds. Gonzalez cites to Kinsey v. Pacific Mutual Life Ins. Co. (1918) 178 

Cal. 153 to support his argument that a lay witness is not qualified to give 

an opinion on the cause of death. In Kinsey, the evidence was in dispute as 

to whether the decedent died from drowning or from an underlying heart 

condition. During trial, the lifeguards who had attempted to resuscitate the 

decedent were barred from opining as to whether the decedent’s death was 

due to drowning. (Id. at p. 156.) On appeal, the court found no abuse of 

discretion and held that the lifeguards were not qualified to testify as to the 

cause of death based on “their observation of the appearance of the body of 

[the] deceased.” (Ibid.) Here by contrast, there was no evidence that the 

victim’s death was caused by anything other than his gunshot wounds.

Accordingly, it was not necessary for Detective Wyant to opine as to the 

victim’s cause of death and he did not offer any such opinions. Wyant 
9

testified as to what he personally observed when he initially found the 

victim as well as when he attended the victim’s autopsy. This included the

plainly visible bullet wounds on the victim’s body which Wyant described in 

detail at the preliminary hearing and the trial court properly relied on in its 

order. 

Thus, even without the autopsy report, the trial court had more than 

sufficient evidence to conclude beyond a reasonable doubt that the victim 

died of his gunshot wounds. There was no prejudice to Gonzalez from the 

admission of the autopsy report. 

C. The Argument of Self-Defense is Forfeited and Without Merit. 

Gonzales next argues that the trial court erred in concluding there was 

no evidence Gonzalez acted in self-defense and by extension, erred in finding 

that the prosecution carried its burden of proving beyond a reasonable doubt

that he was guilty of murder. In its order, the trial court stated that both 

Gonzalez and Contreras “fired their weapons when a voice from the dark told 

them to stop stealing the marijuana. There is no evidence they fired their 

weapons in self-defense.” The court made this comment in support of its 

conclusion that Gonzalez could still be convicted of murder under section 189, 

subdivision (e)(2), because he was a major participant in the underlying 

robbery and acted with reckless indifference to human life. We find no error 

warranting reversal.

First, Gonzalez forfeited any self-defense argument by failing to raise it 

below despite having ample opportunity to do so in his briefing and at the 

section 1172.6 hearing. “As a general rule, a party who does not raise an 

argument below forfeits the argument on appeal.” (In re Abram L. (2013) 219 

Cal.App.4th 452, 462.) This rule “is founded on considerations of fairness to 

the court and opposing party, and on the practical need for an orderly and 
10

efficient administration of the law.” (People v. Gibson (1994) 27 Cal.App.4th 

1466, 1468.) 

In his resentencing petition, Gonzalez argued there was insufficient 

evidence that he was a major participant in the robbery and acted with 

reckless indifference to human life. Gonzalez did not raise the issue of selfdefense or imperfect self-defense. Similarly, at the section 1172.6 hearing, 

Gonzalez did not offer any evidence and argued that the prosecution failed to 

prove beyond a reasonable doubt that he was a major participant or acted 

with reckless indifference pursuant to the factors set forth in People v. Clark 

(2016) 63 Cal.4th 522. Again, Gonzalez could have but did not raise the issue 

of self-defense. As the defendant, it was Gonzalez’s burden to raise this 

affirmative defense before the prosecution was obligated to respond to it.

(People v. Frye (1992) 7 Cal.App.4th 1148, 1154–1155.) The fact that the trial 

court briefly referenced self-defense in its order is irrelevant. It was 

Gonzalez’s obligation to raise it in his resentencing petition if he did not want

to forfeit the issue. 

Second, even assuming Gonzalez did not forfeit the issue, substantial 

evidence supports the trial court’s finding that Gonzalez acted with reckless 

indifference to human life. Indeed, Gonzalez does not directly challenge this 

finding. Instead, he argues only that the court made a factual error in 

stating there was no evidence Gonzalez fired his weapon in self-defense. 

Gonzalez is arguably correct if the trial court’s statement is read literally and 

in isolation because Gonzalez did state during his interview that he fired his 

rifle in response to hearing gun shots. But he ignores the findings that we 

must imply in support of the judgment. (See People v. Francis (2002) 98 

Cal.App.4th 873, 878 [on appeal, we “ ‘imply all findings necessary to support 

the judgment, and our review is limited to whether there is substantial 
11

evidence in the record to support these implied findings’ ”].) Because the trial 

court found that Gonzalez acted with reckless indifference to human life, we 

conclude it necessarily and impliedly found that there was no credible

evidence of self-defense when it stated that there was “no evidence [Gonzalez] 

fired [his] weapon[] in self-defense.” Specifically, we conclude the court 

impliedly found that Gonzalez’s statement—the only evidence suggesting 

self-defense—was not credible and should not be afforded any weight. 

Substantial evidence supports this implied finding. When Gonzalez 

was first interviewed by law enforcement about what had happened, he lied 

and claimed he was at home the entire time on the night of the shooting.

When he was interviewed a second time, he continued to lie. Only after he 

was shown pictures from a surveillance camera which contradicted his claim 

that he was at home all night did he admit to going to the marijuana garden

and claim to have fired his weapon after hearing gunshots. Moreover, the 

victim was found with a firearm at his side that was still in its holster,

indicating that he did not fire his gun. That a live, rather than a spent, .9mm 

round was found where the victim was believed to have been standing does 

not, as Gonzalez argues, mean that the victim had used his gun. Nor was 

there any other evidence at the preliminary hearing to support his claim 

asserted for the first time on appeal that he acted in self-defense. 

Because substantial evidence supports the trial court’s implied finding 

of a lack of credible evidence to support self-defense, we need not consider the 

People’s argument that self-defense is not a defense to felony-murder.

III. DISPOSITION

The order denying the section 1172.6 petition is affirmed.
12

CHOU, J.

We concur.

SIMONS, Acting P. J.

BURNS, J.

People v. Godinez Gonzalez / A166251