Filed 8/4/26 P. v. Gonzalez CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B347600
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA193832)
v.
MARLON GONZALEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Renee F. Korn, Judge. Affirmed.
Ralph H. Goldsen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Theresa A. Patterson, Deputy
Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Marlon Gonzalez (defendant)
appeals from the superior court’s order denying his petition for
resentencing pursuant to Penal Code1 section 1172.6. The court
appointed counsel for defendant and, after briefing, denied the
petition at the prima facie stage on the ground defendant was
ineligible for relief as a matter of law. We find no error and
affirm the order.
FACTS AND PROCEDURAL BACKGROUND
I. Underlying offenses2
Defendant, Juan Zavala, and Eric Tasin were members of
Mara Salvatrucha (MS) gang. Roberto Reyes was a former MS
member who had recently insulted active MS gang members after
a drive-by shooting incident at a nightclub, by calling them
“punks” and “chickens.”
Several weeks later Reyes went to a different nightclub and
met some MS members, including Zavala, Tasin, and defendant.
While outside the club, Reyes, Zavala, and defendant argued
about the earlier shooting incident. Zavala invited Reyes to
“kickback” at the apartment of Maria Diaz.
Reyes and Edwin Martinez, who was not associated with
MS, went to Diaz’s apartment. Reyes, Zavala, and Tasin went
outside, and defendant followed a short time later. Martinez
1 All further undesignated statutory references are to the
Penal Code.
2 We take these facts from our nonpublished opinion in
defendant’s direct appeal. (People v. Gonzalez (Mar. 7, 2005,
B175485) [nonpub. opn.].) We briefly recount them for context
and do not rely on them as part of the record of conviction in
determining defendant’s eligibility for relief as a matter of law.
2
stayed inside with two others. The three men surrounded Reyes
and asked him why he was not in the gang anymore. Tasin
whispered something in Zavala’s ear and Zavala nodded. The
three men came closer to Reyes, who felt a stab wound in his
chest. Reyes fought back but soon ran away. He ran until he fell
on his back in the street. Defendant came up to Reyes, who
begged him to stop. Defendant knelt beside Reyes and stabbed
him three or four times on his left side. Reyes, who suffered a
total of 39 stab wounds, survived the attack. Reyes identified
defendant, Tasin, and Zavala as the men who attacked him, and
defendant as the man who stabbed him last.
About 15 to 20 minutes after the men left the apartment,
defendant, Tasin, and Zavala returned to the apartment without
Reyes. Zavala told his girlfriend, Tina Molina, they were leaving.
While Molina went to retrieve her belongings, Diaz, in her
bedroom, overheard Zavala tell defendant, “we have to do this” or
“you have to do this,” and defendant said, “We can’t do this here”
or “You can’t do this here,” because Diaz would get mad. Zavala
told defendant he had to do what Zavala told him and said, “You
can’t let me down.” Moments later, Diaz heard the sound of
fighting.
As Molina was leaving, she saw Martinez on the floor and
defendant next to him making a stabbing motion. Diaz saw
defendant and others washing their hands in the bathroom.
When Diaz left the apartment a short time later, she saw
Martinez lying on the floor. Defendant told Diaz not to say
anything “because you know we could kill you.”
Two days later, police found Martinez’s body in the trunk of
a burning car. He had died from 29 stab wounds inflicted using
what appeared to have been a flat-head screwdriver.
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II. Conviction
Defendant was charged with one count of first degree
murder (§ 187; count 1) and one count of attempted willful,
deliberate, and premeditated murder (§§ 187, 664; count 2). The
special circumstance that Martinez was killed because he was a
witness to a crime (§ 190.2, subd. (a)(10)) was also alleged. As to
both counts, it was further alleged that defendant personally
used a deadly weapon (§ 12022, subd. (b)(1)) and the offenses
were “committed for the benefit of, at the direction of, or in
association with a criminal street gang” (§186.22, subd. (b)(1)).
The jury convicted defendant as charged, found the murder
in count 1 to be in the first degree, and found the attempted
murder to be willful, deliberate, and premeditated. The jury also
found true the witness-killing special circumstance, as well as the
personal use of a weapon and gang allegations.
The judgment was affirmed on appeal. (Gonzalez, supra,
B175485.)
III. Section 1172.6 resentencing proceedings
On July 26, 2024, defendant filed a petition for
resentencing pursuant to section 1172.6. The court appointed
counsel.
The People argued defendant is not entitled to relief as a
matter of law “because his jury was not instructed on felony
murder, the natural and probable consequences doctrine or any
other theory of liability where the jury could impute malice.” The
People also argued defendant “was prosecuted as a principal to
these crimes who acted with actual express malice,” and the
court’s instructions all required the jury find defendant acted
with the intent to kill. Specifically, the jury was instructed on
willful, deliberate, and premeditated first degree murder, which
4
required they find “a clear, deliberate intent on the part of the
defendant to kill”; direct aiding and abetting, which also
required defendant’s intent to kill; and conspiracy to commit
murder and attempted murder, which required “‘the specific
intent to commit the crime of murder or attempted murder,
and with the further specific intent to commit that
crime….’” (Boldface in original.)
No supplemental filing was offered by defendant or his
counsel.
On May 23, 2025, a hearing to determine whether
defendant had established a prima facie case for relief was held.
The court indicated it reviewed the jury instructions and noted,
the jury was not instructed on felony murder or natural and
probable consequences. The court discussed the jury’s findings,
including the finding that defendant personally used a knife
during the murder and attempted murder.
Defense counsel conceded defendant’s jury was not
instructed with felony murder or natural and probable
consequences but argued the jury was instructed with the gang
allegation, “which in [her] opinion, … could have influenced the
jury to … impute intent to kill.” The People disagreed and
reiterated defendant was prosecuted under theories of liability
that remain valid.
The court denied defendant’s petition finding “the jury
instructions established conclusively, that [defendant] is
ineligible for relief.”
Defendant timely filed a notice of appeal.
DISCUSSION
Defendant contends, though his jury was not instructed
regarding felony murder or natural and probable consequences,
5
under CALJIC No. 6.11, “the jury could have had a doubt
whether the attacks on Reyes and Martinez were intended by
[defendant] to result in death” (boldface in original) because
that instruction “conveys a form of vicarious liability for crimes
committed by fellow participants in a conspiracy” (capitalization
omitted). We disagree.
I. Applicable legal principles and standard of review
Effective January 1, 2019, Senate Bill No. 1437 (2017–2018
Reg. Sess.) (Senate Bill 1437) made “ameliorative changes to our
state’s homicide law.” (People v. Patton (2025) 17 Cal.5th 549,
558 (Patton).) “As part of these ameliorative changes, malice, a
key element the People must prove in a murder prosecution, may
no longer be imputed to a defendant solely because the defendant
participated in another crime.” (Ibid.) That means, a person
may not be convicted of a murder committed by someone else
without proof that the nonkiller defendant personally harbored
an intent to kill or was a major participant who acted with
reckless indifference to human life. (§§ 188, subd. (a)(3) & 189,
subd. (e).)
For those who were previously convicted of murder under
one of these now invalid theories, the Legislature provided a
mechanism through which that individual may be resentenced.
(Patton, supra, 17 Cal.5th at p. 558.) The Legislature has since
“expanded this path to allow relief for those with ‘attempted
murder’ convictions based on ‘the natural and probable
consequences doctrine.’” (Ibid.; see § 1172.6, subd. (a); Stats.
2021, ch. 551, § 2.)
A petition that includes a declaration the petitioner is
eligible for relief entitles the petitioner to counsel. (§ 1172.6,
subd. (b).) “‘After the parties have had an opportunity to submit
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briefings, the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief.’” (Patton, supra,
17 Cal.5th at p. 559.) If the petitioner makes a prima facie
showing, then the trial court issues an order to show cause and
holds a hearing to determine whether to vacate the conviction
and to recall the sentence and resentence the petitioner. (Ibid.)
At the prima facie stage of the petition process, the court
may not engage in factfinding about the petitioner’s culpability
but should deny a petition if the petitioner fails to make a prima
facie showing. (Patton, supra, 17 Cal.5th at p. 563.) “‘The record
of conviction will necessarily inform the trial court’s prima facie
inquiry … , allowing the court to distinguish petitions with
potential merit from those that are clearly meritless. This is
consistent with the statute’s overall purpose: to ensure that
murder culpability is commensurate with a person’s actions,
while also ensuring that clearly meritless petitions can be
efficiently addressed’ without the need for an evidentiary
hearing.” (Ibid.) “‘“[I]f the record, including the court’s own
documents, ‘contain[s] facts refuting the allegations made in the
petition,’ then ‘the court is justified in making a credibility
determination adverse to the petitioner.’”’ (Ibid.) In other words,
“‘[i]f the petition and record in the case establish conclusively that
the [petitioner] is ineligible for relief, the trial court may dismiss
the petition’” at the prima facie stage. (People v. Curiel (2023) 15
Cal.5th 433, 450 (Curiel), italics added.)
This court independently reviews the trial court’s
determination that defendant failed to make a prima facie case
for relief. (People v. Cunningham (2025) 112 Cal.App.5th 1243,
1248.)
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II. Relevant background
Using CALJIC Nos. 3.00 and 3.01, the jury was instructed
defendant could be liable for both counts as either a direct
perpetrator or as a direct aider and abettor. Relevant here, using
CALJIC Nos. 6.10.5 and 6.11, the jury was also instructed
defendant could be guilty as a conspirator to murder and
attempted murder.3
The jury was instructed using CALJIC Nos. 8.10, defining
murder, including the requirement of malice; 8.11, defining
express and implied malice; and 8.20, defining first degree
murder, including the requirement of express malice. The jury
was instructed regarding second degree murder using CALJIC
Nos. 8.30 and 8.31. Using CALJIC Nos. 8.66 and 8.67, the jury
was instructed about willful, deliberate, and premeditated
attempted murder, including the requirement of express malice
and the “unambiguous [specific] intent to kill.”
The jury was also instructed regarding the witness-killing
special circumstance using CALJIC Nos. 8.81.10 and 8.83.1.
During closing argument, the People argued defendant’s
liability could rest on three potential theories: (1) “the actual
stabber,” (2) a direct aider and abettor, or (3) a coconspirator to
murder and/or attempted murder.
As noted, the jury found defendant guilty of first degree
murder and willful, deliberate, and premeditated attempted
murder. The jury found true the special circumstance that
Martinez was killed because he was a witness to a crime, and, in
3 With regard to conspiracy, the jury was instructed using
CALJIC Nos. 6.10.5, 6.11, 6.12, 6.13, 6.14, 6.16, 6.17, 6.18, 6.19,
6.20, 6.21, and 6.24. However, defendant takes issue only with
CALJIC No. 6.11.
8
both counts, the jury found true the offenses were committed for
the benefit of the gang and defendant personally used a knife.
III. Defendant is ineligible for resentencing as a matter
of law as no theory of imputed malice was presented
to the jury, and each theory of liability required
defendant’s intent to kill
Preliminarily, regarding the attempted murder of Reyes,
we note the plain language of section 1172.6, subdivision (a)(1)
allows a person to file a petition for relief when that “person
[was] convicted of … [¶] … attempted murder under the natural
and probable consequences doctrine.” Here, the jury was not
instructed on natural and probable consequences as the theory of
liability for the attempted murder. Thus, relief on count 2 is
precluded. (See People v. Muhammad (2024) 107 Cal.App.5th
268, 276 [“with respect to attempted murder, section 1172.6
affords relief only to a person convicted under the natural and
probable consequences doctrine”].) However, because defendant
argues CALJIC No. 6.11 allowed the jury to convict under a
theory of natural and probable consequences and imputed malice
as to both counts 1 and 2, we will address both counts together.
Defendant’s jury was not instructed on a felony murder
theory, the natural and probable consequences doctrine, or on
any other theory where malice could be imputed to defendant
simply based on his participation in a crime. Instead, in both
counts 1 and 2, the jury was presented with three potential
theories of liability: (1) direct perpetrator, (2) direct aider and
abettor, and (3) coconspirator in an uncharged conspiracy to
commit murder and attempted murder. We start with the
conclusion each of these remains a valid theory of murder or
9
attempted murder liability, and none required the jury to impute
malice to defendant.
First, if the jury found defendant was the direct
perpetrator, they found he had the specific intent to kill Martinez
and Reyes without imputing malice. (See People v. Fisher (2023)
95 Cal.App.5th 1022, 1029 [where defendant was the actual
killer, he “could not have been convicted under the natural and
probable consequences doctrine, so malice could not have been
imputed to him under that theory”].)
Second, if the jury found defendant was a direct aider and
abettor to Martinez’s murder and/or Reyes’s attempted murder,
they necessarily found he acted with knowledge of his cohort’s
“unlawful purpose” and “[w]ith the intent or purpose of
committing or encouraging or facilitating the commission of the
[murder and/or attempted murder].” (CALJIC No. 3.01; see also
People v. McCoy (2001) 25 Cal.4th 1111, 1118 [“when the charged
offense and the intended offense—murder or attempted murder—
are the same, i.e., when guilt does not depend on the natural and
probable consequences doctrine, … the aider and abettor must
know and share the murderous intent of the actual
perpetrator”].) Direct aiding and abetting remains a legally
permissible theory of liability. (See People v. Williams (2022) 86
Cal.App.5th 1244, 1252 [“It is well settled that Senate Bill 1437
‘does not eliminate direct aiding and abetting liability for murder
because a direct aider and abettor to murder [or attempted
murder] must possess malice aforethought.’”].)
Furthermore, because the jury found the murder was in the
first degree, the jury would have also necessarily found defendant
aided and abetted a “willful, deliberate and premeditated killing
with express malice aforethought” (CALJIC No. 8.20); and,
10
because the jury found the attempted murder was “willful,
deliberate and premeditated,” the jury would have necessarily
found he aided and abetted a “direct but ineffectual act” to kill
Reyes with the “specific intent to kill” him, and his intent to do so
was formed after “careful thought and” consideration (CALJIC
Nos. 8.66 & 8.67).
Third, at issue here, if the jury found defendant was a
coconspirator in an uncharged conspiracy to commit murder
and/or attempted murder, they necessarily found he harbored the
specific intent to kill Martinez and/or Reyes. Here, CALJIC
No. 6.10.5 instructed, “A conspiracy is an agreement between two
or more persons with the specific intent to agree to commit the
crime of murder or attempted murder, and with the further
specific intent to commit that crime” (italics and underscoring
added).
“[C]onspiracy is a specific intent crime requiring an intent
to agree or conspire, and a further intent to commit the target
crime, here murder [and attempted murder4], the object of the
conspiracy. Since murder committed with intent to kill is the
functional equivalent of express malice murder, conceptually
speaking, no conflict arises between the specific intent element of
conspiracy and the specific intent requirement for such category
4 We note, attempted murder is a specific intent crime
requiring the person to have “harbored express malice
aforethought, namely, a specific intent to kill.” (CALJIC
No. 8.66.) In contrast to murder, which “does not require the
intent to kill,” “‘[a]ttempted murder requires the specific intent to
kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.’” (People v. Smith (2005) 37
Cal.4th 733, 739.)
11
of murders. Simply put, where the conspirators agree or conspire
with specific intent to kill and commit an overt act in furtherance
of such agreement, they are guilty of conspiracy to commit
express malice murder.” (People v. Swain (1996) 12 Cal.4th 593,
602 (Swain).) Thus, notwithstanding the jury’s explicit finding
that the murder here was in the first degree, “‘all conspiracy to
commit murder is necessarily conspiracy to commit premeditated
and deliberated first degree murder.’” (People v. Beck and
Cruz (2019) 8 Cal.5th 548, 641, italics added.)
Defendant takes issue with CALJIC No. 6.11 because
CALJIC No. 6.11 instructed the jury that, as a member of a
criminal conspiracy, defendant “is liable for each act … of every
other member of the conspiracy if that act … is in furtherance of
the object of the conspiracy,” defendant argues he could have
been found “vicarious[ly] liab[le] for crimes committed by fellow
participants” of the conspiracy. (Capitalization omitted.) So
understood, defendant contends “the jury would have convicted
[him] of malice murder and attempted murder based on the
mental state of [his cohort,] Zavala, who was giving orders.”
(Underscoring omitted.) He argues, by “making [co]conspirators
liable for the acts of other conspirators done in the course and
scope of the conspiracy, [CALJIC No. 6.11] is inconsistent with
the legislative intent of SB 1437 and the changes that enactment
made to sections 188 and 189.” Not so.
“Murder liability based on an uncharged conspiracy to
commit murder [or attempted murder] remains a valid legal
theory because it requires proof that the defendant acted with
express malice regardless of whether he was the actual killer.
(See People v. Medrano (2021) 68 Cal.App.5th 177, 185
[conspiracy to commit murder requires proof that the defendant
12
had the intent to kill].)” (People v. Virgen (2025) 110 Cal.App.5th
440, 451 (Virgen).)
By contrast, “a defendant may no longer be convicted of
murder based on a theory that he or she conspired to commit a
nonmurder offense because such a theory imputes malice to the
defendant based on his or her participation in the nonmurder
offense, without any need to find the defendant acted with actual
malice. (People v. Offley (2020) 48 Cal.App.5th 588, 599 (Offley).)
That is, murder based on a conspiracy to commit a crime other
than murder operates in the same manner as the natural and
probable consequences doctrine. (See People v. Rivera (2015) 234
Cal.App.4th 1350, 1356 (Rivera) [explaining that a natural and
probable consequences theory of murder and murder based on an
uncharged conspiracy to commit a crime other than murder are
‘analogous’].)” (Virgen, supra, 110 Cal.App.5th at p. 451, italics
added.)
Acknowledging this distinction, defendant puts a finer
point on his argument, arguing “the direct language of CALJIC
[No.] 6.11 making all participants equally guilty, and … not
depend[ent] on foreseeability.” He distinguishes People v.
Nguyen (2024) 103 Cal.App.5th 668, which also involved a
conspiracy to commit murder, and argues, unlike Nguyen, the
instructions in this case “did not define conspiracy to commit
murder” and did not “distinguish between conspiracy to commit
murder and conspiracy to commit a ‘nonmurder offense.’”
Therefore, he avers, “[i]t was sufficient that there was any
conspiracy.” We disagree.
CALJIC No. 6.11 does not operate in a vacuum. Rather, it
works together with CALJIC No. 6.10.5, which requires the jury
to find defendant personally harbored the specific intent to kill
13
and informs the jury the object of the conspiracy was murder and
attempted murder. “‘“[T]he correctness of jury instructions is to
be determined from the entire charge of the court, not from a
consideration of parts of an instruction or from a particular
instruction.”’” (People v. Musselwhite (1998) 17 Cal.4th 1216,
1248; see also CALJIC No. 1.01 [instructed the jury not to “single
out any particular sentence or any individual point or instruction
and ignore the others[, and to c]onsider the instructions as a
whole and each in light of all the others”].) CALJIC No. 6.11
attributes the acts and words (actus reus) of coconspirators “in
furtherance of the object of the conspiracy” to fellow conspirators.
It does not attribute or impute the mental state (mens rea) of one
coconspirator to another. Thus, by the time CALJIC No. 6.11
enters the calculation to attribute a coconspirator’s act(s) to
defendant, the jury has already found the conspiracy to commit
murder and/or attempted murder applied and, as a result,
defendant intended to kill. Simply put, malice is not being
imputed to defendant through operation of the conspiracy. By
finding defendant conspired to commit murder/attempted
murder, defendant has brought his own malice to the table. (See
Swain, supra, 12 Cal.4th at pp. 602–603 [conspiracy to commit
murder requires each coconspirator to personally harbor express
malice].)
After reviewing the instructions, we find there is “no
reasonable likelihood the jury misunderstood or misapplied the
law.” (People v. Estrada (2022) 77 Cal.App.5th 941, 948; also
People v. Allen (2023) 97 Cal.App.5th 389, 397.) The jury either
found defendant was the direct perpetrator, a direct aider and
abettor, or a coconspirator to a conspiracy to commit murder and
14
attempted murder. Any one of these theories required defendant
personally harbor the intent to kill.
In addition to finding defendant guilty of first degree
murder and willful, deliberate, and premeditated attempted
murder, we note, the jury also found true “defendant had the
required specific intent” to intentionally kill Martinez to prevent
him “from giving testimony in a criminal proceeding” (see § 190.2,
subd. (a)(10); CALJIC Nos. 8.81.10 & 8.83.1) and that defendant
personally used a knife in the commission of the murder of
Martinez and attempted murder of Reyes (see § 12022, subd.
(b)(1)). Thus, while these additional true findings may not, on
their own, establish section 1172.6 ineligibility, they need not
carry such weight here. These additional jury findings operate to
corroborate what the jury instructions and verdicts already
establish—that defendant personally acted with express malice.
The jury verdicts and jury instructions conclusively establish
defendant’s ineligibility as a matter of law. (See Curiel, supra, 15
Cal.5th at p. 470.)
IV. Section 1172.6 does not provide a mechanism for
reduction of murder from first to second degree
To the extent defendant asks this court to reduce count 1 to
second degree murder pursuant to People v. Chiu (2014) 59
Cal.4th 155 (Chiu), we decline his invitation. As discussed ante,
we have addressed defendant’s challenge to the trial court’s
denial of his section 1172.6 petition. While related, the remedies
provided for by filing a section 1172.6 petition and filing a
petition for writ of habeas corpus alleging Chiu error are
different. “Reducing a first degree murder conviction to second
degree murder is not an option under section 1172.6” (People v.
Gonzalez (2023) 87 Cal.App.5th 869, 881) and a “‘habeas corpus
15
action is not a resentencing petition under section [1172.6],
[where] Senate Bill 1437 is inapplicable and Chiu … governs’”
(People v. Perez-Tinoco (2025) 115 Cal.App.5th 861, 874).
Moreover, section 1172.6, subdivision (f) provides, “This
section does not diminish or abrogate any rights or remedies
otherwise available to the petitioner.” Therefore if defendant
believes he has grounds to file a habeas action on the basis of
Chiu error, he may do so. However, we note, Chiu abrogated first
degree murder for aiders and abettors under the natural and
probable consequences doctrine, holding “an aider and abettor
may not be convicted of first degree premeditated murder under
the natural and probable consequences doctrine. Rather, his or
her liability for that crime must be based on direct aiding and
abetting principles.” (Chiu, supra, 59 Cal.4th at pp. 158–159.)
As discussed, defendant’s jury was not instructed on natural and
probable consequences theory of liability, and, for the reasons
expressed herein, the conspiracy instructions given in defendant’s
case did not operate to impute malice to defendant based on the
actions of his coconspirators.
DISPOSITION
The order is affirmed.
CHAVEZ, J.
We concur:
LUI, P. J. GOORVITCH, J.
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