Filed 1/20/23

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

 Plaintiff and Respondent,

v.

BENJAMIN GONZALEZ et al.,

 Defendants and Appellants.

 B315921

 (Los Angeles County

 Super. Ct. No. NA072648)

APPEAL from orders of the Superior Court for the County 

of Los Angeles, Tomson T. Ong, Judge. Affirmed.

Joanna McKim, under appointment by the Court of Appeal, 

for Defendant and Appellant Benjamin Gonzalez.

Jonathan E. Demson, under appointment by the Court of 

Appeal, for Defendant and Appellant Gilbert Gomez.

Vanessa Place, under appointment by the Court of Appeal, 

for Defendant and Appellant Gerson Bazan.

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication except for

Discussion Part A.
2

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Idan Ivri and Stephanie C. Santoro, Deputy 

Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendants Benjamin Gonzalez, Gilbert Gomez, and 

Gerson Bazan appeal from the trial court’s denial of their Penal 

Code section 1172.61 petitions for resentencing on their first 

degree murder convictions.2 Gonzalez contends the court 

erroneously denied his petition at the prima facie stage without 

issuing an order to show cause and holding an evidentiary

hearing pursuant to section 1172.6, subdivision (d)(3). Gomez 

contends the court erred in denying his petition without reducing 

his first degree murder conviction to second degree murder 

because the court did not find he satisfied the elements of 

deliberate and premeditated first degree murder. Gerson and 

Gonzalez join Gomez’s contention. We affirm.

1 All further statutory references are to the Penal Code

unless otherwise stated. Defendants filed their petitions 

pursuant to former section 1170.95. Effective June 30, 2022, the 

Legislature renumbered section 1170.95 to section 1172.6 with no 

change in text. (Stats. 2022, ch. 58, § 10.) We will refer to the 

statute by its current section number only.

2 The jury also convicted Spencer Bazan, Gerson Bazan’s 

brother, of first degree murder. We will refer to Spencer, who is 

not a party to this appeal, and Gerson Bazan by their first names 

to avoid confusion.
3

II. FACTUAL BACKGROUND

The following factual background is from a prior 

nonpublished opinion from a different panel of this division,

People v. Gonzalez (Feb. 10, 2010, B211559) [nonpub. opn.])3:

“On November 20, 2006, 14-year-old Geovonie Taylor was 

living with his cousins, Michael and Norman Cox, who were 16 

and 18 years old. After school that day, Taylor met the Cox 

brothers at a friend’s house. It was nighttime when they left the 

friend’s house and decided to walk home. None of them was 

armed. They walked down Anaheim Street and began to turn 

down Gundry Avenue, near a construction site. There were three 

Hispanic males across the street, along with two Hispanic 

females. Taylor heard the males call out repeatedly, ‘Eastside 

Longos,’ ‘fuck [racial slur],’ ‘F Insane,’

4 and ‘F 20.’ Taylor knew 

that Eastside Longos, the 20’s, and Insane were all gangs. He 

understood them to be making gang threats. Taylor was wearing 

his school uniform, which included a burgundy colored shirt. 

3 On our own motion, we take judicial notice of the prior 

nonpublished opinion as well as the underlying trial record in 

that appeal. We also take judicial notice of the subsequent 

nonpublished opinion in this case, People v. Gonzalez

(Nov. 30, 2020, B300650).) Accordingly, we deny as moot 

Gonzalez’s request for judicial notice of the prior opinion and 

certain portions of the trial record.

4 “Detective Malcolm Evans of the City of Long Beach Police 

Department testified that ‘Baby Insane is a clique of the Insane 

Crips criminal street gang.’ The gang is reputed to be violent.
4

Norman wore red and blue sweat pants, a black long-sleeved 

shirt, and a red and white baseball cap with ‘Big Baby’ on it.5

“Taylor and the Cox brothers continued to walk, but they 

could not continue down Anaheim because their path was blocked 

by the construction site gates—so they turned left onto Gundry.

As they did so, the Hispanic males ran across the street toward 

them, calling out gang names, ‘F [racial slur]’ and ‘Eastside 

Longos.’ There appeared to be five males in all. The Hispanic 

males asked where they were from, which Taylor understood as 

asking for their gang affiliation.6 Neither Taylor nor the Cox 

brothers responded. In the meantime, the Hispanic males 

surrounded them as they tried to back away. One of the Hispanic 

males approached them, while making a gang threat; another 

reached for something from his back, near his hip. Norman 

pushed Taylor and Michael back and faced the Hispanic males, 

who surrounded him.

“One of the Hispanic males ran up to Norman and ‘socked 

him in the head.’ Norman tried to escape, but slipped and fell. 

While Norman was on the ground, the Hispanic males repeatedly 

kicked and punched Norman all over his body. Norman curled up 

and tried to fend off the blows. Taylor was too afraid to help his 

cousin. When another of the male Hispanics approached, Taylor 

and Michael said they ‘did not bang,’ and they were left alone.

5 “Members of Baby Insane typically have ‘BIG,’ ‘BABY,’ or 

‘B’ on their red hats.

6 “Detective Evans testified that the question ‘where are you 

from’ can mean a challenge to identify one’s gang affiliation or a 

challenge to fight.
5

Taylor heard Norman say, ‘Please don’t stab me.’ There were 

four Hispanic males around Norman at the time. Although 

Taylor did not see any of the attackers holding a weapon, he saw 

one of them making stabbing motions at the time Norman cried 

out. Norman did not fight back; he was not armed. The Hispanic 

males ran away when Taylor yelled and ran toward them.

“Taylor saw Norman was bleeding from his mouth, so he 

ran to the park where a dance was going on and asked for help. 

The paramedics and police arrived approximately 15 minutes 

later. Norman had suffered eight stab wounds, including a fatal 

wound to the left side of his chest that penetrated the lung. 

Other wounds appeared to be defensive in nature. The stabbing 

instrument that was used had one blunt edge and one sharp 

edge. It could not be determined whether there were multiple 

instruments used. At trial, Taylor identified Gonzalez and

Gerson as attackers. From a photographic six-pack lineup, 

Taylor identified Gonzalez as the one who stomped on Norman 

and punched his ribs. At the preliminary hearing, Taylor 

identified Gonzalez, along with Spencer and Gerson. He was not 

sure about his identification of Gomez.

“Seleta Castillo lived on Hoffman Avenue, a block away 

from Gundry. That night, she was walking home from work 

along Gundry. At the intersection of Gundry and Anaheim, she 

saw four or five male Hispanics, which included defendants, and 

two female Hispanics across the street. She had previously seen 

defendants in the neighborhood and in her apartment complex, 

and she had also seen the two females holding hands with 

Gonzalez and Gerson. As Castillo walked home, she saw some 

African-American males walking down Anaheim. Defendants 

called out their gang affiliation and told the African-Americans 
6

they were not supposed to be there—it was not their ‘turf.’ They 

repeatedly demanded to know what the African-Americans were 

doing in their neighborhood. Gonzalez called out, ‘[racial slur].’ 

The African-Americans did not respond.

“Defendants approached the African-Americans, who were 

turning down Gundry. Norman said, ‘I don’t want no problems’

and put his hands up. There was nothing in his hands. 

Defendants surrounded him and passed a weapon amongst 

themselves. Defendants began to strike and kick Norman. They 

continued to beat Norman after he had fallen to the ground. 

Afterwards, they ran away to Hoffman Avenue. Castillo walked 

past defendants during the course of the attack. At no time 

during the incident did the African-Americans say anything 

hostile or antagonistic to defendants.

“Castillo went home, but was too frightened to call the 

police. Defendants had seen her and knew where she lived. She 

feared that she or her family would be in danger if she did. When 

the police subsequently contacted her at work, she identified 

Gonzalez by name and identified all four defendants’

photographs. After the incident, Castillo saw Gonzalez’s sister on 

the bus, who mumbled something to her in a threatening manner 

and said she would ‘get’ Castillo’s daughter.7 That made Castillo 

afraid to testify. She received financial assistance from Los 

Angeles County to help her move to a different neighborhood.

“Officer Vuong Nguyen of the City of Long Beach Police 

Department was on patrol in Long Beach at 9:00 p.m. He and his 

partner responded to a stabbing incident on Gundry and 

7 “The trial court instructed the jury that Castillo’s 

testimony was being offered solely as to Gonzalez.
7

Anaheim. He found Norman on the ground, bleeding. The area 

was fairly well illuminated by streetlights. There was a red hat 

lying next to Norman’s body.

“Eva Ramirez was Gonzalez’s girlfriend at the time of the 

incident. Gonzalez told her that he was a member of ‘NKS,’ but 

Ramirez was not sure whether it was a street gang. Spencer told 

her that he was a member of the Eastside Longos. Ramirez was 

afraid to testify because of ‘the consequences,’ which included 

risk to the safety of her family. She was also acquainted with the 

other three defendants for some months. As such, she knew 

Gerson’s girlfriend, Nancy Ascencio, who lived with the Bazan 

brothers on Hoffman.

“Ramirez saw the stabbing incident. That morning, she, 

Ascencio, and another female visited Spencer. Toward the end of 

the day, Gomez and Gonzalez joined them. It was dark outside 

when they all left together to go to the nearby park. They walked 

back on Gundry. A young female Ramirez did not know came up 

and spoke with Gomez. A young male named Marcos joined them 

too; Gerson was not present. Three African-Americans were 

walking across the street from them. She heard them say 

something. At some point, she heard someone twice yell, ‘This is 

Insane Crips,’ which she understood as a gang challenge. She 

looked over and saw an African-American male wearing a red 

hat, which she believed was a gang color. Gonzalez, Gomez, 

Spencer, and Marcos ran across the street to confront the 

African-Americans. She heard one of them swear at the AfricanAmericans; she also heard one of them say Eastside Longos. 

Gonzalez, Gomez, and Spencer fought one of the AfricanAmericans. Ramirez did not see them use any weapon. Marcos 

did not take part; he was standing with the two African-
8

Americans who were not fighting. Gonzalez, Gomez, and Spencer 

ran back across the street, leaving the victim on the ground, 

before running back to the apartment complex on Hoffman.

“A few weeks after the incident, Gonzalez told Ramirez that 

the victim had died and whichever one of them was first arrested 

‘would take the blame.’

8 Gonzalez telephoned her from jail after 

his arrest. In the conversation, Gonzalez told Ramirez to say 

that she was with him at his house at the time of the incident 

and to arrange an alibi with his sister Andrea.9 Gonzalez got a 

‘Long Beach’ tattoo on his forehead while in custody. She knew 

Gonzalez by the nickname ‘Ceenoe’; Gomez by ‘Muneco’; Spencer 

by ‘Minor’; and Gerson by ‘Sonick.’

“Marcos Robles, 15 years old at the time of the incident, 

was acquainted with Gonzalez and Gomez. Robles testified

pursuant to an agreement immunizing him from prosecution. He 

was present at the stabbing scene. He ran away with a group of 

ten persons toward Hoffman. He denied telling the police that he 

saw defendants running across the street and joined them. An 

audiotape of his interview with police was played to the jury. He 

was afraid of testifying against defendants because he feared 

violent retribution.

“In February 2007, Kwanna Childress received a letter in 

the mail. The envelope indicated that it was sent by Gerson and 

addressed to ‘Elizabeth Nancy’ on Hoffman Avenue. Childress 

opened the envelope without looking at the address, however, 

8 “This testimony was admitted solely against Gonzalez.

9 “Ramirez later received a threatening message on her 

‘Myspace’ page from Andrea.
9

assuming it was addressed to her. The evidence concerning the 

letter was admitted solely as to Gerson. One line in the letter 

stated, ‘Remember you are also a suspect in the murder on 

Gundry.’ It was signed by ‘Sonick’ with the letter ‘c’ crossed out.

She took the letter to the police. Detective Daniel Mendoza 

testified that the letter contained the word ‘Longeros,’ which is a 

reference to the Eastside Longos. It also contained the letters 

‘M.D.S.,’ which members of that gang used to refer to their sect as 

the ‘Malditos.’ There was also a reference to someone called 

‘Massive,’ who was a member of the Eastside Longos.

“Spanish language interpreter Alfred Calderon translated 

portions of the letter, which referred to Ascencio as a ‘bitch’ and a 

‘whore.’ The writer was angry with her because she had 

disobeyed his request to stay away from ‘every Longero, 

especially from the M.D.S.’ It also contained a threat that 

‘Massive’ would ‘fuck [her] up.’ The letter went on to say that ‘the 

Big Homey’ said he needed the money owed by ‘G Strap’ and 

‘Acid’ by March 14 ‘because of the business they were doing.’ He 

advised her not to leave her house ‘because if the police get [her], 

that’s all on [her].’ She must ‘stay away from everyone’ because 

the Eastside ‘Longos got the green light.’

“Detective Malcolm Evans testified that defendants lived in 

apartments on Hoffman, close to each other and the murder 

scene. Detective Evans interviewed Spencer on the day of his 

arrest. After advising Spencer of his Miranda rights,10 Spencer 

waived those rights and agreed to speak to the detective. 

Initially, Spencer denied any knowledge of Norman’s stabbing. 

The audiotape of the interview was played to the jury, subject to 

10 “Miranda v. Arizona (1966) 384 U.S. 436.
10

the instruction that the evidence was admissible solely against 

Spencer. In his statement, Spencer admitted stabbing the victim, 

but explained that he did it in self-defense. One of the AfricanAmerican males first approached Spencer and made a gang 

challenge. When Spencer said he was ‘from Longo,’ the AfricanAmericans made more threats. The ‘main guy’—apparently, 

Norman—ran at Spencer and knocked him down. Spencer saw 

the others begin to run toward him. Fortuitously at the moment 

Spencer fell, he found a screwdriver lying on the ground, which 

he used repeatedly to stab his victim. Detective Evans 

participated in a search of the Bazan residence. Two 

screwdrivers and a knife were found in his bedroom.

“Officer Miguel Rosales testified that Gonzalez had 

admitted being a member of a ‘tag banger crew’ called ‘NKS,’ or 

‘Nip Killing Squad.’ His gang moniker was ‘C-Note.’ Officer 

Rosales understood that Gonzalez had subsequently been 

‘jumped into’ the Eastside Longos, which was a full-fledged 

criminal street gang. Gomez had admitted to membership in the 

Eastside Longos. Both Spencer and Gerson had admitted being 

members of the Eastside Longos. The stabbing scene was inside 

Eastside Longos territory. Baby Insane, a violent clique of the 

Insane Crip gang, claim all of Long Beach as their territory and 

are enemies of the Eastside Longos. The hat worn by Norman is 

consistent with Baby Insane membership.11

11 “Detective Carlos Grimaldo testified that Gomez admitted 

Eastside Longo membership, as did Spencer. If a person yells 

out, ‘This is Baby Insane’ in the streets, it is likely to be meant as 

a gang challenge.
11

“Detective Hector Gutierrez was the prosecution’s gang 

expert. He was familiar with the Eastside Longos gang, having 

investigated it for 18 years. At the time of Norman’s murder, the 

gang numbered approximately 1100 members. The location of 

the stabbing was within territory claimed by Eastside Longo. He 

testified as to predicate crimes committed by other Eastside 

Longos. ‘M.D.S.’ or ‘Malditos’ was an Eastside Longo clique. The 

Eastside Longos are in conflict with African-Americans. Violent 

confrontations with African-Americans are likely to be fatal due 

to the Eastside Longos’ ‘mindset.’ Within the Eastside Longos, it 

is understood that a member will enhance his reputation in the 

gang by committing increasingly violent crimes. Eastside Longo 

members will tend to be armed in their own territory because 

rival gangs claim portions of territory within that claimed by the 

Eastside Longos.

“Gerson is also a self-admitted Eastside Longo, with a 

gang-related tattoo on his arm. He also has the letters ‘SUR’

tattooed on his chest, which is significant for prison purposes 

because northern and southern California gang members are 

enemies in prison. Gerson’s gang moniker is ‘Sonick.’ Most 

Hispanic gangs are related to the Mexican Mafia, which is a 

prison gang. The phrase ‘green light’ means that ‘it is open 

season on your gang because you’re not obeying by the Mexican 

Mafia rules.’

12 Spencer is a self-admitted Eastside Longo with 

the monikers ‘Minor’ and ‘Crow.’ Gomez is a self-admitted 

Eastside Longo, with the moniker ‘Little Muneco.’ Gonzalez is 

also a self-admitted Eastside Longo, who was previously 

associated with NKS, which is a tagging crew.

12 “This testimony was admitted only as to Gerson.
12

“As to Gerson’s letter to Ascencio, Detective Gutierrez 

opined that it was signed with his gang moniker and referred to 

‘Massive,’ who was also a member of that gang. The letter also 

uses the term ‘Longero,’ which means Eastside Longo. An 

Eastside Longo member will typically cross out the letter ‘c,’ as 

was done in ‘Sonick’s’ signature, because ‘c’ stands for the gang’s 

rivals, the Crips. Eastside Longos are hostile towards AfricanAmericans and Asian-Americans because those ethnic groups 

comprise the membership of Crip gangs.

“After listening to a hypothetical set of facts consistent with 

the prosecution case, Detective Gutierrez opined that Norman’s 

stabbing would have been committed to benefit the Eastside 

Longos. The Eastside Longos ‘have problems with AfricanAmericans.’ The Eastside Longos often commit violent crimes, 

and their reputation within the gang is enhanced by doing so. 

Further, commission of violent offenses serves as a warning to 

rivals and to community members. The former will be less likely 

to attack Eastside Longos and the latter will be less likely to 

report Eastside Longos for committing crimes. Within the gang’s 

culture, it is understood that those who ‘snitch’ against gang 

members will suffer violent retribution. Civilians, as well as 

gang members, understand this. As a result, many witnesses are 

afraid to testify against gang members, which inures to the 

benefit of the gang, allowing its members to commit crimes with 

impunity.

“If an African-American male wearing a red cap with ‘Big 

Baby’ on it yelled out ‘This is Baby Insane,’ it would be 

understood as a gang challenge from a gang with a reputation for 

violence.
13

“Defense Case

“Gonzalez rested without presenting any evidence.

“Gomez called Detective Evans, who testified that when 

Gomez was arrested in May 2007, he had 12 paycheck stubs in 

his possession, dating from November 19, 2006, through 

May 6, 2007.

“Gerson called his mother, Maria De Los Angeles Lozano, 

who testified that her two sons lived with her in an apartment on 

Hoffman Avenue at the time of the incident. Marta Monzon was 

the building manager. Lozano arrived at her apartment from 

work at 4:30 p.m. and fell asleep until approximately 8:30 p.m. 

At that time, Monzon unlocked the apartment door for Gerson 

and his girlfriend, Ascencio. Neither Gerson nor Ascencio left the 

apartment that night. On cross-examination, Lozano testified 

that she awoke to see Gerson and Ascencio. After that, Lozano 

went to Spencer’s bedroom and fell asleep until 11:30 p.m. 

Lozano would not have known whether they left the apartment in 

the meantime.

“Monzon testified that she was on duty on an evening 

around the time of the incident. Gerson and Ascencio asked for a 

key to the Bazan apartment because his mother did not answer 

the door. Monzon gave Gerson the key and saw him and Ascencio 

go upstairs toward the Bazan apartment. It was approximately 

6:30 p.m. From Monzon’s apartment, she could see persons 

entering the apartment building. At approximately 8:30 p.m., 

Gerson returned the key to Monzon. She went to sleep at 9:30 or 

10:00 p.m.

“Gerson testified that on the day of the stabbing incident 

Ascencio stopped by to see him, and he told her they were going 

to a party that night. However, their ride did not show up, so 
14

they went back to the Bazan apartment. It was approximately 

8:00 p.m. He knocked on the door, but there was no answer. He 

did not have the apartment key, so he got a key from Monzon. 

He opened the door for himself and Ascencio and found his 

mother asleep. Within approximately 30 minutes, he went 

downstairs and returned the key to Monzon. He went back to the 

apartment and went to bed and slept there until the following 

day. He did not participate in an attack of an African-American 

male.

“While in custody following his arrest, Gerson corresponded 

with Ascencio. He did not author the letter referenced by 

Childress. ‘Sonick’ is not his nickname. Gerson is not associated 

with the Eastside Longos. His tattoos are not gang-related.

“Ascencio generally corroborated Gerson’s testimony 

concerning the events of November 20, 2006. They spent the 

evening and night in the Bazan apartment and did not go outside 

to the location of the stabbing incident. She did not see the other 

defendants that night. The letter referenced by Childress was 

not in Gerson’s writing.

“Spencer called Officer Bernardo Brajas who had responded 

to the stabbing incident and interviewed Taylor. Taylor did not 

tell the officer that prior to the stabbing, he was coming from a 

residence near 10th and Alamitos, as he had done at trial.” 

(People v. Gonzalez, supra, B211559.)

III. PROCEDURAL BACKGROUND

A jury convicted defendants of first degree murder (§ 187, 

subd. (a)) and found true the allegation that the murder was 

committed for the benefit of a criminal street gang (§ 186.22, 
15

subd. (b)).13 The trial court sentenced Gomez and Gerson to 25 

years to life in state prison and Gonzalez to 50 years to life in 

state prison under the Three Strikes law (§§ 667, 1170.12). With 

modifications not relevant to this appeal, a prior panel of this 

court affirmed defendants’ convictions. (People v. Gonzalez, 

supra, B211559.)

In January 2019, defendants filed petitions for 

resentencing pursuant to section 1172.6.14 The trial court 

appointed counsel for defendants and ordered the District 

Attorney to file responses to the petitions. The District Attorney 

filed an opposition to the petitions, arguing, in part, that Senate 

Bill No. 1437, former section 1170.95’s enacting legislation, 

impermissibly amended two California voter initiatives 

(Propositions 7 and 115) and violated the California Constitution 

insofar as it purported to vacate final judgments in criminal 

cases. The court agreed with the District Attorney’s arguments 

and denied the petitions. Defendants appealed, the Attorney 

General conceded the court erred, and we reversed and remanded 

the matter for further proceedings consistent with our opinion 

and section 1172.6. (People v. Gonzalez, supra, B300650.)

13 The jury also convicted Spencer of first degree murder and 

found true the gang allegation and the allegation that he 

personally used a knife in the commission of the crime (§ 12022, 

subd. (b)(1)).

14 Gerson filed a form petition for a writ of habeas corpus. 

Finding that the crux of that petition concerned “‘Senate Bill 

[No.] 1437, Petition for Resentencing, P.C. [1172.6],’” the trial 

court treated the petition as a petition for resentencing. (People 

v. Gonzalez (Nov. 30, 2020, B300650) [nonpub. opn.].)
16

On remand, the trial court held a hearing on October 20, 

2021, on defendants’ petitions for resentencing. After hearing the 

parties’ arguments for and against finding defendants guilty of 

murder and considering the evidence adduced at trial, the court 

found defendants guilty of murder as direct aiders and abettors 

and denied defendants’ petitions for resentencing.

IV. DISCUSSION

A. Section 1172.6, Subdivision (d)(3) Evidentiary Hearing

Gonzalez contends the trial court erred and violated his 

state and federal constitutional rights to procedural due process 

when it denied his petition for resentencing at the prima facie 

stage without issuing an order to show cause and holding an 

evidentiary hearing pursuant to section 1172.6, subdivision 

(d)(3). We disagree.

1. Background

At the October 20, 2021, hearing, the trial court stated, “So 

I set the hearing because I find that there is sufficient showing by 

the defense to go forward with the hearing.” The court then 

asked counsel for each party whether he or she had anything to 

add and specifically asked the prosecutor why it should not grant 

defendants’ petitions for resentencing.

The prosecutor summarized the evidence adduced at trial 

that she believed showed the defendants guilty of murder under 

still valid theories of guilt: conspiracy to commit murder, direct 

perpetrators, direct aiding and abetting, and implied malice.
17

Gonzalez’s counsel stated that the facts were not in dispute, 

but that it was not persuasive to argue those facts established a 

conspiracy when that theory was not charged or litigated at trial. 

Counsel limited his argument, stating he would join Gerson’s 

argument.

Gomez’s counsel argued the facts were in dispute. He 

contended that Castillo’s testimony did not support the appellate 

court’s conclusion that she testified defendants passed a weapon 

among themselves. Counsel argued it was the prosecution’s 

burden to prove beyond a reasonable doubt that Gomez aided and 

abetted the stabbing—that burden was to prove guilt at that 

hearing and not to show guilt was established at the prior trial 

because the law had changed—and the prosecution failed to meet 

its burden.

Gerson’s attorney first focused on the prosecutor’s 

arguments at trial, noting that the prosecutor had argued that 

Spencer was the killer and Gerson was guilty under the natural 

and probable consequences theory of guilt and not as a 

conspirator. He then argued that the trial court was not 

permitted to consider factual assertions in the appellate court 

opinion as evidence and that the facts in the reporter’s transcript 

should control. Counsel explained, “We are having a court trial 

right now, because the burden of proof is beyond a reasonable 

doubt, and you are sitting as the juror. A jury and juror.” 

Finally, counsel recited the evidence submitted at trial and 

argued that evidence did not support a murder finding against 

his client.

The trial court, which had served as the court for 

defendants’ trial, stated its view of the evidence. It concluded the 

evidence showed that defendants chased down, surrounded, and 
18

beat Norman—thereby preventing him from escaping or 

defending himself—so Spencer could stab him. Thus, the court 

concluded, defendants were major participants and direct aiders 

and abettors. Accordingly, it denied defendants’ petitions for 

resentencing.

2. Analysis

Section 1172.6 “creates a procedure for convicted murderers

who could not be convicted under the law as amended to 

retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th 952, 

957.) “If the petitioner makes a prima facie showing that the 

petitioner is entitled to relief, the court shall issue an order to 

show cause.” (§ 1172.6, subd. (c).) Within 60 days of issuance of 

the order to show cause, the trial court shall hold an evidentiary 

hearing “to determine whether the petitioner is entitled to relief.” 

(Id., subds. (d)(1) & (d)(3).)

“[T]he burden of proof shall be on the prosecution to prove, 

beyond a reasonable doubt, that the petitioner is guilty of murder 

or attempted murder under California law as amended by the 

changes to Section 188 or 189 made effective January 1, 2019.

The admission of evidence in the hearing shall be governed by the 

Evidence Code, except that the court may consider evidence 

previously admitted at any prior hearing or trial that is 

admissible under current law, including witness testimony, 

stipulated evidence, and matters judicially noticed. The court 

may also consider the procedural history of the case recited in 

any prior appellate opinion. However, hearsay evidence that was 

admitted in a preliminary hearing pursuant to subdivision (b) of 

Section 872 shall be excluded from the hearing as hearsay, unless 
19

the evidence is admissible pursuant to another exception to the 

hearsay rule. The prosecutor and the petitioner may also offer 

new or additional evidence to meet their respective burdens.” 

(§ 1172.6, subd. (d)(3).)

As the Attorney General concedes, the trial court did not 

expressly issue an order to show cause. Nevertheless, the court 

held the evidentiary hearing section 1172.6, subdivision (d)(3) 

requires. The court explained at the outset of the October 20, 

2021, hearing that it had set the hearing because defendants had 

made a sufficient showing to hold a hearing—i.e., that defendants 

had made a prima facie showing that they were entitled to relief.

(§ 1172.6, subds. (c) and (d)(1) & (3).) It then asked whether any 

party had anything to add. Then, it asked the prosecutor why it 

should not grant defendants section 1172.6 relief. It thus put the 

prosecution to its section 1172.6, subdivision (d)(3) burden of 

proof—at a section 1172.6, subdivision (d)(3) hearing, the 

prosecution has the burden of proof to show a defendant’s guilt 

beyond a reasonable doubt. The prosecutor responded by 

discussing the trial evidence she believed showed defendants 

were guilty of murder under a still valid theory of guilt.

Likewise, defense counsel participated in the hearing as if 

it was a section 1172.6, subdivision (d)(3) evidentiary hearing, 

arguing the trial evidence did not support a guilty finding. 

Moreover, when Gomez’s counsel argued it was the prosecution’s 

burden to prove beyond a reasonable doubt that Gomez aided and 

abetted the stabbing, Gonzalez’s counsel did not object and seek 

clarification about the nature of the hearing. When Gerson’s 

counsel also contended the section 1172.6, subdivision (d)(3) 

beyond a reasonable doubt standard applied at the hearing, 

Gonzalez’s counsel again remained silent.
20

Finally, the trial court’s ruling demonstrates that it 

conducted a section 1172.6, subdivision (d)(3) evidentiary 

hearing. At the hearing’s conclusion, it stated, “the court finds

that [defendants] are major participants and they are direct 

abettor and abettor [sic.]. They prevented the escape and 

prevented the person from defending themselves.” (Italics 

added.) (See People v. Garrison (2021) 73 Cal.App.5th 735, 745 [a 

trial court is to act as an independent factfinder in determining 

beyond a reasonable doubt whether a defendant is guilty of 

murder under a still valid theory of murder].)

B. Failure to Reduce Defendants’ First Degree Murder

Convictions to Second Degree Murder

Gomez contends the trial court erred in denying his 

petition without reducing his first degree murder conviction to 

second degree murder because the court did not find he satisfied 

the elements of deliberate and premeditated first degree murder. 

Gerson and Gonzalez join Gomez’s contention. The court did not 

err.

1. Standard of Review

We review the interpretation of a statute de novo. (People 

v. Lewis (2021) 11 Cal.5th 952, 961.) In determining the 

“Legislature’s intent so as to effectuate the law’s purpose,” we 

“begin by examining the statute’s words, giving them a plain and 

commonsense meaning.” (Ibid., internal citations and quotation 

marks omitted.) “If the plain language of the statute is clear and 

unambiguous, our inquiry ends, and we need not embark on 
21

judicial construction. [Citations.] If the statutory language 

contains no ambiguity, the Legislature is presumed to have 

meant what it said, and the plain meaning of the statute governs. 

[Citations.]” (People v. Johnson (2002) 28 Cal.4th 240, 244.)

2. Analysis

Defendants do not argue the prosecution failed to meet its 

burden of proving they are guilty of murder beyond a reasonable 

doubt and thus the trial court erred in denying their petitions. 

Instead, they argue that even when the prosecution proves a 

defendant is guilty of murder beyond a reasonable doubt, section 

1172.6 nevertheless requires a trial court to reduce a first degree 

murder conviction to second degree murder if it did not find the 

defendant committed the murder with deliberation and 

premeditation. We disagree. Section 1172.6’s plain language 

does not contain a mechanism for a trial court to reduce a first 

degree murder conviction to second degree murder.

Under section 1172.6, if the prosecution meets its burden of 

proving beyond a reasonable doubt that a defendant “is guilty of 

murder . . . under California law as amended by the changes to 

Section 188 or 189 made effective January 1, 2019,” then the 

defendant is not entitled to relief and the trial court must deny 

the defendant’s petition for resentencing. (Id., subd. (d)(3).) If, 

however, “the prosecution fails to sustain its burden of proof, the 

prior conviction, and any allegations and enhancements attached 

to the conviction, shall be vacated and the petitioner shall be 

resentenced on the remaining charges.” (Ibid.) If the defendant 

is entitled to relief and the murder was charged generically, then 
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the “conviction shall be redesignated as the target offense or 

underlying felony for resentencing purposes.” (Id., subd. (e).)

Accordingly, under section 1172.6, a trial court has two 

options in adjudicating a resentencing petition: Deny the petition 

and leave in place the murder conviction or grant the petition 

and vacate the murder conviction and resentence the defendant

on the remaining charges or target offense or underlying felony. 

Reducing a first degree murder conviction to second degree 

murder is not an option under section 1172.6.15

15 Because we hold that section 1172.6 does not permit 

reducing a first degree murder conviction to second degree 

murder, we do not reach the Attorney General’s contentions that 

defendants forfeited this issue or that the trial court found 

defendants acted with intent to kill as well as deliberation and 

premeditation.
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V. DISPOSITION

The orders are affirmed.

KIM, J.

We concur:

RUBIN, P. J.

MOOR, J.