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Name: People v. Gonzalez
Case #: G057502
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 06/11/2021

A person convicted of murder with a robbery-murder special circumstance before the Supreme Court’s decisions in People v. Banks (2015) 61 Cal.4th 788, and People v. Clark (2016) 63 Cal.4th 522, is not required to first obtain a writ of habeas corpus setting aside the special circumstance before pursuing resentencing under Penal Code section 1170.95. Appellant and two others engaged in a series of armed robberies, one of which ended with a codefendant shooting and killing a robbery victim. Appellant was convicted of first degree murder, and a robbery-murder special circumstance allegation (Pen. Code, § 190.2, subd. (a)(17)(A)) was found true. In 2019, appellant filed a petition for resentencing under section 1170.95. The trial court denied the petition without issuing an order to show cause, finding sufficient evidence appellant was a major participant who acted with reckless indifference to human life. Held: Reversed and remanded with directions to issue an order to show cause and hold an evidentiary hearing. Section 189, subdivision (e), which now permits a felony-murder conviction only in certain circumstances, requires proof the defendant acted with reckless indifference to human life as a major participant, as is also necessary for a felony-murder special circumstance finding under section 190.2, subdivision (d). The court disagreed with the Attorney General’s argument that appellant was not entitled to section 1170.95 resentencing unless and until the robbery special circumstance was invalidated on habeas. A section 1170.95 petition challenges the murder conviction, not the special circumstance finding. Section 1170.95 does not state that a true finding on a special circumstance allegation automatically precludes relief, and its language implies that there is no such bar to eligibility. Further, because factfinding is not permitted at the prima facie stage of review, any analysis under Banks and Clark was improper without first conducting an evidentiary hearing pursuant to section 1170.95, subdivision (d).

Neither the claim preclusion doctrine, issue preclusion, nor the law of the case principle foreclose appellant’s section 1170.95 petition. The claim preclusion doctrine, formerly called res judicata, prohibits a second suit between the same parties on the same cause of action. When the law authorizes a particular postjudgment remedy, like section 1170.95, claim preclusion does not apply to invocation of that remedy. Moreover, there is no claim preclusion here because appellant sought relief from the conviction, not the prosecution’s cause of action on the special circumstance. Second, issue preclusion or collateral estoppel, precludes relitigation of issues argued and decided in prior proceedings. Here, because appellant made no effort to litigate the special circumstance, and had no reason to do so, the “actually litigated” element of collateral estoppel is not satisfied by the jury’s true finding. Thus, it has no preclusive effect on a current section 1170.95 proceeding. Finally, under the doctrine of the law of the case, where an appellate court states in its opinion a principle of law necessary to the decision, that principle becomes law of the case and must be adhered to in all subsequent proceedings. However, this doctrine does not extend to points of law which might have been but were not presented and determined on a prior appeal. Because the prior opinion did not address whether appellant was a major participant or acted with reckless indifference to human life, the law of the case is inapplicable to the jury’s prior special circumstance finding.