People v. Gonzalez CA4/1

Filed 10/24/24 P. v. Gonzalez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D083016

Plaintiff and Respondent,

v. (Super. Ct. No. CR136721)

ERNESTO GONZALEZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Jason L. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION For the reasons that follow, we decline Ernesto Gonzalez’s request to remand this matter to the trial court for further resentencing and affirm.

I. Background Gonzalez shot a man in the head, at close range, with a revolver loaded with a hollow point bullet. This was after his two codefendants had stabbed the man three times in the chest. In 1993 a jury convicted Gonzalez of first

degree murder (Pen. Code,1 § 187, subd. (a)) and found true he personally used a gun (former § 12022.5, subd. (a)) and had served a prior prison term (§ 667.5, subd. (b)). He was sentenced to serve 30 years to life, which included consecutive terms of four years on the gun enhancement and one

year for the prison prior.2 This court affirmed the judgment in 1996. In August 2023, upon recommendation by the Secretary of the California Department of Corrections and Rehabilitation (CDCR), the trial court recalled Gonzalez’s sentence pursuant to section 1172.75 to strike the now legally invalid one-year prison prior term enhancement. In a full resentencing at which Gonzalez was represented by counsel, the court also struck the punishment for the gun use enhancement, reducing the sentence by a total of five years. At the resentencing hearing, Gonzalez’s attorney requested the trial court to “reduce” his conviction for first degree murder to a voluntary manslaughter. The prosecutor responded this was “not … the appropriate time or venue” for such a request. The court declined to consider the request, stating it had “absolutely no authority to change the conviction” from murder