People v. Gonzalez CA2/6

Filed 5/12/23 P. v. Gonzalez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B321634 (Super. Ct. No. CR31081) Plaintiff and Respondent, (Ventura County)

v.

FRANCISCO GONZALEZ,

Defendant and Appellant.

Francisco Gonzalez appeals the trial court’s denial of his motion for resentencing pursuant to Penal Code section 1172.6.1 We conclude that the court properly denied Gonzalez’s motion because, as the actual shooter, he is ineligible for relief pursuant to section 1172.6 as a matter of law. (People v. Lewis (2021) 11 Cal.5th 952, 959, 971; People v. Hurtado (2023) 89 Cal.App.5th 887, 892-893.) We affirm. In December 1992, Gonzalez and an accomplice, Mark Estrada, attempted to rob an Oxnard convenience store.

1 All statutory references are to the Penal Code.

1

Gonzalez used a .45 caliber handgun in committing the crime; Estrada was unarmed. The shopkeeper was armed, however, and a gun battle ensued. During an exchange of gunfire with Gonzalez, the shopkeeper shot and killed Estrada. Gonzalez later pleaded guilty to two charged counts and admitted the personal firearm use allegations in the felony complaint. FACTUAL AND PROCEDURAL HISTORY On February 3, 1993, Gonzalez, then 17 years old, pleaded guilty to one count of first degree murder and one count of attempted murder. (§§ 187, subd. (a), 189, 664.) He also admitted that during commission of the offenses, he personally used a firearm. (§ 12022.5, subd. (a).) Gonzalez expressly agreed that the trial court could consider the probation report to be prepared, as well as the 21-page juvenile fitness report, as the factual basis for his plea.2 Factual Basis in Probation Report Gonzalez acquired a .45 caliber automatic handgun from a friend and displayed it to his brother. On December 2, 1992, Gonzalez and companion Estrada left the Gonzalez family residence carrying beanies. The two men went into an Oxnard convenience store wearing dark clothing and beanie masks. Gonzalez approached the clerk (the shopkeeper’s wife) sitting near the cash register, pointed the handgun at her, and demanded money. The clerk screamed for her shopkeeper husband who was in the back office of the store.