Filed 10/7/26 P. v. Gonzales CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
THE PEOPLE,
Plaintiff and Respondent, G065338
v. (Super. Ct. No. FSB060061)
JASON GONZALES, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of San Bernardino
County, David J. Mazurek, Judge. Affirmed in part, reversed in part and
remanded.
Michelle T. LiVecchi-Raufi, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Assistant
Attorney General, Arlene A. Sevidal, A. Natasha Cortina and Elizabeth M.
Renner, Deputy Attorney General, for Plaintiff and Respondent.
* * *
In 2012, defendant Jason Gonzales was convicted, among other
counts, of first degree murder with numerous enhancements, including three
firearm enhancements. (Pen. Code,1 §§ 187, subd. (a); 12022.53, subds. (b),
(c), (d).) As relevant here, he was sentenced to 25 years to life for the murder
and a consecutive term of 25 years to life for the discharge of a firearm during
a qualifying felony causing great bodily injury or death. (§ 12022.53, subd.
(d).)
In 2023, defendant’s sentence was recalled pursuant to section
1172.75. As pertinent to this appeal, the trial court reimposed consecutive
sentences of 25 years to life each for the murder and its attached firearm
enhancement. He now appeals, contending the trial court used an incorrect
legal standard when considering whether to dismiss the firearm
enhancement. We disagree, finding the trial court properly considered the
relevant facts and did not abuse its discretion during resentencing.
We do agree with defendant that the abstract of judgment must
be corrected to reflect the accurate number of custody credits and to strike a
restitution fine. We order a limited remand for the purpose of recalculating
his custody credits and striking the fine, and for the preparation of a new
abstract of judgment. In all other respects, the judgment is affirmed.
STATEMENT OF FACTS
We draw an abbreviated version of the facts of the case from our
prior opinion. (People v. Gonzales (Apr. 21, 2015, G049919) [nonpub. opn.]
(Gonzales).)
“Rhonda Santellanez, the mother of Nicholas Montag’s son, lived
with Montag at his mother’s house in Highland, California in 2007. Montag,
1 Subsequent statutory references are to the Penal Code.
2
Santellanez, and their son were home at approximately 3:00 p.m. when there
was a knock at the door. Montag answered the door. Thomas Rodriguez,
someone Montag knew and who had been to Montag’s residence ‘lots of
times,’ was at the door. Montag saw defendant, whom he had never met
before, getting out of a car in front of the house. Rodriguez introduced
defendant as ‘Lucky.’ Rodriguez said defendant had a computer that would
not turn on. The three went to the dining room. At some point, Santellanez
came from the back of the house. She and Rodriguez said hello to each other.
Santellanez then returned to the back of the house to her son.
“About 10 or 15 minutes later, there was another knock at the
door. It was Albert Mulligan, who defendant knew as ‘Spider.’ Defendant had
known Mulligan for a couple months at that time. Mulligan entered and said
hello to Rodriguez and defendant. Montag said Mulligan seemed to know
defendant. One of the visitors brought beer, but Montag did not remember
which visitor. Defendant, Mulligan, and Rodriguez were all members of the
North Side Redlands gang.
“Montag worked on the computer. At one point, the three visitors
went outside to smoke cigarettes. Montag joined them. When Montag
finished, he went back to work on the computer. Twenty to 30 minutes later,
Rodriguez and defendant went back outside. At that point, Mulligan was
asleep on the couch.
“Montag felt uncomfortable about defendant being in the house
because defendant asked questions about Santellanez. Montag attempted to
get the visitors to leave by telling them his mother was due home soon.
Rodriguez got up and tried to wake up Mulligan. Defendant and Montag tried
as well. Rodriguez gave up and went outside. As Montag continued to
attempt to wake up Mulligan, defendant walked down the hallway to the
3
back of the house. Montag thought defendant was walking to the bathroom.
Less than a minute later, Montag heard a gunshot.
“Montag started to run into the living room and saw Mulligan
jump up from the couch and defendant returning down the hallway.
Defendant had a gun in his right hand, down by his side. Montag moved
halfway into the kitchen. Defendant raised the gun and pointed it in
Montag’s direction. Mulligan jumped in front of defendant, put up a hand,
and said, ‘He’s cool. He’s cool.’ Defendant told Montag he would be back and
hurt Montag and his family if Montag told anyone or spoke to the police. He
then told Montag[] to ‘[c]lean up this mess,’ and ran out of the house. [¶]
Montag ran into the back bedroom. Santellanez was on the bed. He pulled
her up into a sitting position. She had a gunshot wound to the middle of her
forehead. Montag called 911.
“When the police responded, Montag did not say who the killer
was because he was afraid for his family. Later that day, Montag told police
the shooter said he would come back and kill Montag and his family if
Montag talked to the police. Montag eventually gave the police Rodriguez’s
name, but not Mulligan’s. He did not give Mulligan’s name because Mulligan
had saved him and he was afraid the police would find out about defendant
from Mulligan.
“Santellanez died of the gunshot wound between her eyebrows. A
.45-caliber bullet was recovered from her body.” (Gonzales, supra, G049919.)
At trial, the prosecution presented evidence that defendant was
an active North Side Redlands gang member whose “status in the gang
‘skyrocketed’ after Santellanez’s murder.” (Gonzales, supra, G049919.)
Mulligan also testified that defendant was in North Side Redlands and that
he had brought defendant into the gang. (Gonzales, supra, G049919.)
4
At the conclusion of a jury trial, defendant was convicted of first
degree murder (§§ 187, subd. (a), 189; count one), assault with a firearm
(§ 245, subd. (a)(2); count two), making a terrorist threat (§ 422; count three),
and intimidating a witness (§ 136.1, subd. (c)(1); count four). The jury found
true firearm use allegations and gang allegations in connection with all four
counts. The jury also found defendant served four separate prior terms in
state prison. (§ 667.5, subd. (b).)
Defendant was originally sentenced on January 4, 2013. The trial
court designated count one, the murder, as the principal count. The court
sentenced defendant to an indeterminate term of 25 years to life on count one
with a consecutive sentence of 25 years to life on the enhancement which
alleged defendant personally and intentionally discharged a firearm during a
qualifying felony and caused great bodily injury death. (§ 12022.53, subd. (d).)
The court imposed 10-year and 20-year sentences but suspended imposition
on the remaining gun enhancements. (§ 12022.53, subds. (b), (c).) As to the
gang enhancement (§ 186.22, subd. (b)(1)), the court imposed the upper term
of 10 years but struck punishment. The court imposed four years for the four
prison enhancements to be served consecutively with count one. (§ 667.5,
subd. (b).)
On count two, assault with a firearm, and count three, making a
terrorist threat, the court imposed and stayed the middle terms of three years
and two years, respectively, pursuant to section 654. The court imposed and
stayed sentence on the gang and firearm allegations attached to count two.
On count four, intimidating a witness, the court imposed the
upper term of four years to life to run consecutively to count one. The court
struck one of the firearms enhancements attached to count four (§ 12022.5,
subd. (a)) and imposed the upper term of 10 years on the other (§ 12022.5,
5
subds. (a),(d)) to run consecutively to count four. The court stayed sentence on
the gang allegation (§186.22, subd. (b)(1)) but found that the true finding on
the gang allegation converted the determinate sentence on count four to an
indeterminate sentence pursuant to section 186.22, subdivision (b)(4)(C).
Accordingly, the sentence was a term of four years for the prison
priors with indeterminate consecutive sentences of 50 years to life on count
one and the firearm enhancement and 14 years to life on count four and the
firearm enhancement, for a total sentence of four years plus 64 years to life.
Defendant was awarded custody credits. Various fines and fees were also
imposed, including a $10,000 restitution fine. An abstract of judgment was
prepared, but for whatever reason, the restitution fine was not listed.
Defendant appealed, and we reversed the true finding on the
gang enhancement attached to count one and one of the prison prior
enhancements. (Gonzales, supra, G049919.) We also ordered an amended
abstract of judgment to be prepared. The amended abstract of judgment
reflects the previously omitted $10,000 restitution fine.
In November 2023, the sentence was recalled pursuant to section
1172.75. The court struck the remaining prison priors under section 667.5,
subdivision (b), and set the matter for a full resentencing hearing.
The parties submitted briefs and in February 2025, a
resentencing hearing was conducted. The court heard argument from counsel
and a statement from defendant. The court noted its discretion but declined
to alter the sentence, reimposing a sentence of 25 years to life on the murder
with a 25 years to life consecutive term on the gun enhancement, finding by
clear and convincing evidence that striking the gun enhancement would
result in danger to public safety. The court also sentenced defendant to a
determinate term of four years on the witness tampering charge. Sentence on
6
all other counts and enhancements were stayed or stricken. The total
sentence, therefore, was 50 years to life plus a four-year determinate term.
Defendant now appeals.
DISCUSSION
I.
FIREARM ENHANCEMENT
Defendant argues the trial court used an incorrect standard to
determine that he posed a risk to public safety. “In a resentencing proceeding
under section 1172.75, we review the court’s sentencing decisions for abuse of
discretion.” (People v. Lua (2026) 121 Cal.App.5th 472, 476–477.)
A. Relevant Legislation
1. Section 1172.75
Section 1172.75 invalidated most sentence enhancements
imposed prior to January 1, 2020, under section 667.5, subdivision (b).
(§ 1172.75, subd. (a).) The Department of Corrections and Rehabilitation
(CDCR) was required to identify all inmates serving terms that included such
invalid enhancements and provide relevant case information to the
sentencing court. (§ 1172.75, subd. (b).) Upon receipt of this information, the
sentencing court was required to “review the judgment and verify that the
current judgment includes a sentencing enhancement described in
subdivision (a). If the court determines that the current judgment includes an
enhancement described in subdivision (a), the court shall recall the sentence
and resentence the defendant.” (§ 1172.75, subd. (c).)
“Resentencing pursuant to this section shall result in a lesser
sentence than the one originally imposed as a result of the elimination of the
repealed enhancement, unless the court finds by clear and convincing
evidence that imposing a lesser sentence would endanger public safety.”
7
(§ 1172.75, subd. (d)(1).) Moreover, the resentencing court was required to use
the current “sentencing rules of the Judicial Council and apply any other
changes in law that reduce sentences or provide for judicial discretion.”
(§ 1172.75, subd. (d)(2).)
In resentencing the defendant, “[t]he court may consider
postconviction factors, including, but not limited to, the disciplinary record
and record of rehabilitation of the defendant while incarcerated, evidence
that reflects whether age, time served, and diminished physical condition, if
any, have reduced the defendant’s risk for future violence, and evidence that
reflects that circumstances have changed since the original sentencing so
that continued incarceration is no longer in the interest of justice.”
(§ 1172.75, subd. (d)(3).)
2. Section 1385
Amendments to section 1385 direct the court to dismiss a count
or enhancement if it is in the interests of justice to do so, and sets forth a
number of factors the court shall consider, including whether the
enhancement could result in a sentence exceeding 20 years. (§ 1385, subds.
(a), (c).) In such a case, “dismissing the enhancement, unless the court finds
that dismissal of the enhancement would endanger public safety.” (§ 1385,
subd. (c)(2).)
B. Resentencing Information
In support of defendant’s request for resentencing, defense
counsel filed what appears to be a fill-in-the-blank style brief mentioning a
long list of recent changes in the law that impacts sentencing, without regard
to whether the change was relevant to this particular case. As best we can
discern and as relevant here, the brief asked the court to dismiss any
enhancements previously imposed pursuant to section 1385.
8
Facts the brief cited in support of this request included that
defendant had renounced his gang membership for more than 15 years and
was on a waiting list to have his tattoos removed. He also presented
“activities, programs and work assignments” he had participated in while
incarcerated. These included earning a GED and AA degree, and certification
as a counselor for the “Anti-Recidivism Coalition Project and Gang
Awareness Prevention Program.” Starting in 2017, he had participated in
numerous multiweek education programs, including anger management,
domestic violence awareness, parenting, gang awareness, victim awareness, a
Board of Parole Hearings preparation course, and two “Turning Point
Modules.” Defendant’s brief stated his record in prison had “largely been
discipline free, with the exception of a fight with an inmate.”
The prosecution opposed. As relevant here, the prosecution asked
the court to deny defendant’s request for the court to exercise its discretion to
strike or modify the 25 to life sentence enhancement on count one due to the
public safety risk.
In support of its claim that defendant posed a risk to public
safety, the prosecution cited a number of incidents that had occurred within
the prior two years:
“On May 20, 2024, the petitioner assaulted another inmate in the
vocational area of the prison. The other inmate received injuries consistent
with being assaulted.
“On April 20, 2024, custody officers observed the petitioner
shoving another inmate with an open hand in the upper chest area trying to
provoke a fight. Both inmates were ordered to go to the ground. They both
complied with officer’s commands.
9
“On April 11, 2024, the petitioner approached his vocational
masonry instructor and indicated that the instructor had dropped a napkin.
The instructor advised the petitioner that he did not have a napkin. When
the instructor looked at the inmate, the inmate was holding a napkin that
stated, ‘$1,000 waiting for you.’ The instructor told the inmate that was not
happening. On April 5, 2024, the petitioner asked the same instructor to look
up Bitcoin on the internet. The instructor stated, ‘no.’ The petitioner stated,
‘If you ever want to make some money on the outside with my people, let me
know.’ The instructor again stated, ‘no.’
“On March 30, 2024, custody officers observed the petitioner and
another inmate pushing each other with open hands. The petitioner was
observed attempting to strike that other inmate in the facial and torso area.
The other inmate was also attempting to strike the petitioner. Both the
petitioner and other inmate were ordered to the ground and complied.
“On February 2, 2023, custody officers observed the petitioner
approach another inmate and strike him in the left side of his face. The
petitioner was ordered to the ground and complied.”
The prosecutor also cited two nonviolent rules violations from
2018 and 2016, and an altercation with another inmate in 2013: “[T]he
petitioner was observed in an altercation with another inmate. The petitioner
was ordered to the ground. The petitioner did not comply and continued to
confront the other inmate.”
The prosecution argued that despite his age, time in prison, and
participation in educational programming, defendant “continues to engage in
extensive assaultive behavior.” Taken together with the facts of defendant’s
crime, the prosecution contended this was clear and convincing evidence that
he presented an ongoing danger to the public.
10
At the resentencing hearing, the court heard argument and a
statement from defendant. Just prior to submitting, defense counsel admitted
that “it’s a stretch to ask the Court to take 25 years off or run that 25
concurrent, but that is the request today.”
The court denied the request, stating, “I’m not going to exercise
my discretion to do anything differently than I did previously. [¶] . . . [¶] The
Court understands that now under 1385 it has discretion with respect to the
gun enhancement to strike that [or] to run it concurrent to substitute a lesser
gun-related enhancement in its place. Again, the Court, is, again, not going to
choose to exercise discretion to do anything else.”
The court found “by clear and convincing evidence that to strike
that gun enhancement would result in a danger to public safety, not only
based upon the defendant’s conduct in committing the offense, but also his
continued assaultive behavior while in prison.” Additional factors the court
recognized were the facts of the murder, defendant’s age at the time of the
offense,2 and his criminal record of increasingly serious crimes.
C. The Court Did Not Abuse its Discretion3
Defendant claims the court did not apply the proper legal
standard. He takes issue with the court referring to the murder as a “gang
execution” despite evidence he had dropped out of the gang. He also contends
the court did not consider leaving the gang as mitigating evidence. The court
also did not take into consideration, he argues, the correct time period to
determine whether he was a risk to public safety.
2 Defendant was 28 at the time of the offense and 45 at the time of the
resentencing hearing.
3 Although the Attorney General contends defendant forfeited this
issue, we exercise our discretion to consider the merits.
11
Defendant claims the trial court did not consider whether he
would pose a risk to public safety at the time he could be found suitable for
parole and released if he was resentenced without the enhancement. He
argues neither the facts of the murder nor his conduct in prison “credibly
supported a finding that appellant would pose an unreasonable risk of danger
to public safety if the court made concurrent the firearm enhancement, since
appellant’s first parole suitability hearing (§ 3055 [elder parole]) is only
tentatively set for 2028 . . .with no guarantee that the Board of Parole
Hearings would find him suitable for release on parole at that time . . . .”
(Fn. omitted.)
Defendant cites People v. Gonzalez (2024) 103 Cal.App.5th 215,
230–231, for the proposition that the court must consider whether the
defendant would pose a danger at the time he could be released absent the
enhancement. But the record does not support defendant’s contention that
the court considered the wrong time period. Regardless of the outcome of
resentencing, defendant becomes eligible for elder parole once he turns 50
and has served at least 20 years. (§ 3055, subd. (a).) He was 45 at the time of
resentencing and had served almost 20 years. The trial court is presumed to
be aware of his eligibility for elder parole as early as 2028. (People v. Myers
(1999) 69 Cal.App.4th 305, 310.) There is no indication from the record that
the court was not considering the danger he would pose at the time of
potential release rather than at the date of resentencing.
As to whether there was sufficient evidence of a danger to public
safety, “the superior court’s public risk determination based on
uncontroverted evidence of . . . postconviction behavior in combination with
the circumstances of his commitment offense and criminal record was not
arbitrary or capricious.” (People v. Garcia (2024) 101 Cal.App.5th 848, 858.)
12
Despite defendant’s claims of rehabilitation, he was still engaging in violent
behavior in prison. It was uncontested that defendant had been involved in as
many as four incidents involving violence in the years immediately prior to
his resentencing hearing. Additionally, his claims of leaving gang life were
contradicted by his behavior towards the instructor he attempted to bribe,
referring to “mak[ing] some money on the outside with my people.”
Further, the underlying crime was itself evidence that defendant
posed a danger to public safety. He committed the apparently unmotivated
and cold-blooded murder of a woman lying in her bed, shooting her in the
forehead before instructing another gang member to “‘[c]lean up this mess,’”
as he departed. (Gonzales, supra, G049919.) The facts of this egregious crime,
particularly when combined with defendant’s recent behavior, suggest a
willingness to use violence that has not disappeared despite age or
rehabilitation efforts. In sum, we find no error in the trial court’s exercise of
its discretion here.
II.
CREDITS AND RESTITUTION FINE
A. Custody Credits
Defendant contends he is entitled to custody credits for the period
between his original sentencing and the resentencing hearing. The Attorney
General agrees he is correct, and we concur. (§ 2900.1; People v. Buckhalter
(2001) 26 Cal.4th 20, 37.) We shall order the matter remanded for the court
to recalculate defendant’s custody credits. (People v. Montalvo (1982) 128
Cal.App.3d 57, 62.)
13
B. Restitution Fine
Defendant also argues that the $10,000 restitution fine that was
imposed at his initial sentencing in 2013 should be stricken due to a change
in law. Again, the Attorney General concurs, as do we.
The Legislature enacted Assembly Bill No. 1186, effective
January 1, 2025. (Stats. 2024, ch. 805, § 1.) The law amended section 1465.9
to add subdivision (d), which states, “Upon the expiration of 10 years after
the date of imposition of a restitution fine pursuant to Section 1202.4, the
balance, including any collection fees, shall be unenforceable and
uncollectible and any portion of a judgment imposing those fines shall be
vacated.”
The fine appears to have been imposed, but omitted from the
abstract of judgment, in 2013, at defendant’s original sentencing hearing. The
fine is reflected in the clerk’s transcript. When defendant was resentenced in
2025, the court explicitly stated it was making no change to the sentence:
“[T]he ultimate sentence is 50 years to life plus a four-year determinant term,
and with respect to all other findings including restitution, the restitution
fines and victim restitution fine, the Court makes the same findings and
confirms its previous imposition of sentence with respect to those matters.”
The abstract of judgment prepared after that hearing shows the $10,000 fine.
Since the fine was imposed more than 10 years ago, it must be
vacated. (§ 1465.9, subd. (d).) We shall order the trial court to do so on
remand.
DISPOSITION
This matter is remanded for the limited purpose of recalculating
defendant’s custody credits and vacating the $10,000 restitution fine. The
trial court is directed to prepare an amended abstract of judgment and
14
forward a certified copy to the CDCR. In all other respects, the judgment is
affirmed.
MOORE, ACTING P. J.
WE CONCUR:
DELANEY, J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
15