California Court of Appeal Jun 11, 2025 No. E083667Unpublished
Filed 6/11/25 P. v. Ibanez CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083667
v. (Super.Ct.No. 16CR018708)
GONZALO JOSE IBANEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steve Malone,
Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
1
Gonzalo Jose Ibanez appeals from the denial of his petition to vacate his attempted
murder conviction under section 1172.6 of the Penal Code. (Unlabeled statutory citations
refer to this code.) We affirm.
BACKGROUND
In 2016, a jury convicted Ibanez of one count of shooting at an occupied motor
vehicle (§ 246), one count of shooting at an inhabited dwelling (§ 246), and one count of
attempted murder (§§ 664, 187, subd. (a)). The jury found as to each count that the crime
was committed for the benefit of, at the direction of, or in association with a criminal
street gang with the specific intent to promote, further, or assist in criminal conduct by
gang members (§ 186.22, subd. (b)(1)(C)) and that a principal personally and
intentionally discharged a firearm (§ 12022.53, subd. (c)). The jury also found not true
the allegation that the attempted murder was willful, deliberate, and premeditated.
The trial court sentenced Ibanez to 15 years to life in state prison for the shooting
at an occupied motor vehicle count (§ 246) and a consecutive 15 years to life for the
shooting at an inhabited dwelling count (§ 246). The court imposed the upper term of
nine years for the attempted murder count but stayed that sentence pursuant to section
654. The court also imposed but stayed under section 654 a 20-year term for the firearm
enhancement and a 10-year term for the gang enhancement.
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017-
2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4), which amended sections 188 and 189,
thereby eliminating natural and probable consequences liability for murder and narrowing
2
the definition of first degree felony murder. (People v. Gentile (2020) 10 Cal.5th 830,
843, 847, superseded by statute on another ground as stated in People v. Wilson (2023) 14
Cal.5th 839, 868-869.) The bill also created section 1172.6 (originally codified as section
1170.95) as a mechanism for retroactive application of those changes in the law. (People
v. Strong (2022) 13 Cal.5th 698, 708 (Strong).) Two years later, Senate Bill No. 775
(2021-2022 Reg. Sess.) amended the statute to make it applicable to defendants convicted
of attempted murder or manslaughter. (Stats. 2021, ch. 551, § 1; see also People v.
Curiel (2023) 15 Cal.5th 433, 449 (Curiel).)
In 2022, Ibanez filed a petition for resentencing under former section 1170.95 to
vacate his attempted murder conviction. The People opposed the petition, arguing that he
was ineligible for resentencing because he “was convicted of one count of attempted
murder under a theory of aiding and abetting, but not under a natural and probable
consequences theory. The jurors were never instructed on natural and probable
consequences and the theory was never relied on at any point in litigation.” The court
found that the “petition [was] meritless” after reviewing the “jury instruction[s] and the
record,” and it denied the petition. Ibanez did not appeal that order.
In February 2024, Ibanez filed a second petition for resentencing under section
1172.6 to vacate his attempted murder conviction. The following month, the trial court
denied the petition on the ground that the denial of the prior petition “preclude[d]
reconsideration.”
3
DISCUSSION
We appointed counsel to represent Ibanez on appeal, and counsel filed a brief
under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), raising no issues and
asking us to exercise our discretion to conduct an independent review of the record.
After defense counsel filed the Delgadillo brief, we advised Ibanez that he could file a
personal supplemental brief, which he did.
Ibanez argues that he is entitled to resentencing because there was “[a] more
logical explanation” of the facts and that the facts “do[] not line up with the [d]river
[d]irectly [a]iding [a] [p]assenger.” He argues that there was “much doubt” in the
prosecution’s theory that the driver was a direct aider and abettor.
Those arguments are irrelevant to Ibanez’s inability to make a prima facie case for
relief under section 1172.6. Section 1172.6 is a mechanism to provide relief for murder,
attempted murder, or manslaughter convictions that may have been based on now-invalid
theories. (Strong, supra, 13 Cal.5th at p. 708; Curiel, supra, 15 Cal.5th at p. 449.)
Ibanez’s jury was not instructed on any now-invalid theories of imputed malice as to the
charge of attempted murder, and the arguments in his supplemental brief have no
tendency to show the contrary. Those arguments therefore do not show that the trial
court erred by denying his 2024 petition.
4
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
FIELDS Acting P. J.
RAPHAEL J.
5
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's petition for resentencing under Penal Code section 1172.6, finding the defendant failed to establish a prima facie case for relief because his conviction was not based on now-invalid theories of imputed malice.
Issues
Whether the trial court erred in denying the defendant's second petition for resentencing under Penal Code section 1172.6.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Ibanez’s jury was not instructed on any now-invalid theories of imputed malice as to the charge of attempted murder, and the arguments in his supplemental brief have no tendency to show the contrary.”