Filed 10/21/26 P. v. Gonzalez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B344942
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. NA069374)
BENJAMIN GONZALEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Laura Laesecke, Judge. Affirmed.
Matthew Alger, 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, Senior
Assistant Attorney General, David Madeo and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant Benjamin Gonzalez appeals from an order
denying his petition for writ of habeas corpus. Defendant
requests that we treat his appeal as taken from the denial of a
petition pursuant to Penal Code1 section 1172.6. We will grant
defendant’s request, but because his petition was barred by the
doctrine of issue preclusion, we affirm.
II. BACKGROUND
A. Convictions
On May 17, 2006, plaintiff pled no contest to one count of
making criminal threats (§ 422) and one count of resisting an
executive officer (§ 69; 2006 conviction). The trial court
suspended his sentence, and defendant was placed on probation
for three years.
On September 17, 2008, a jury convicted defendant of the
premeditated, deliberate, and willful murder of Norman Cox.
(See People v. Gonzalez (Feb. 10, 2010, B211559) [nonpub. opn.].)2
The trial court sentenced defendant to 25 years to life, doubled to
50 years to life pursuant to the Three Strikes law. The court also
found that defendant had violated the terms of his probation on
his 2006 conviction and therefore revoked probation and imposed
1 Further statutory references are to the Penal Code.
2 Plaintiff was tried with his codefendants Gilbert Gomez,
Spencer Bazan, and Gerson Bazan. (People v. Gonzalez, supra,
B211559.) They are not parties to this appeal.
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consecutive terms of eight months on each count (one-third the
middle term).
On direct appeal, a panel of this court concluded the
sentence imposed for the probation violation in the 2006
conviction was unauthorized because the indeterminate term
could not serve as the principal term for the determinate
sentences. (People v. Gonzalez, supra, B211559.) The court also
reversed certain assessments, and corrected defendant’s custody
credits. (Ibid.) The court remanded the matter for resentencing
as to the 2006 conviction. (Ibid.)3
B. Section 1172.6 Petition
In January 2019, defendant filed a petition pursuant to
section 1172.6.4 On October 20, 2021, after appointing counsel to
represent defendant, the trial court held an evidentiary hearing
pursuant to section 1172.6, subdivision (d)(3).5 After considering
the clerk’s transcript, the reporter’s transcripts from defendant’s
3 An abstract of judgment filed September 13, 2010,
indicated that the eight-month sentences for the determinate
sentences were “vacated.” The record does not demonstrate when
or if this occurred.
4 Plaintiff filed his petition pursuant to former section
1170.95, which was renumbered to section 1172.6, effective
June 30, 2022, with no change in text. (Stats. 2022, ch. 58, § 10.)
We will refer to the statute by its current section number only.
5 The trial court initially denied the section 1172.6 petition
on the grounds that the statute was unconstitutional. We
reversed and remanded for an evidentiary hearing. (People v.
Gonzalez (Nov. 30, 2020, B300650) [nonpub. opn.].)
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trial, and the argument of counsel, the court found defendant
guilty of murder as a direct aider and abettor, and denied his
resentencing petition. On appeal, we affirmed the denial of the
petition. (People v. Gonzalez (2023) 87 Cal.App.5th 869, 881.)
C. Petition for Writ of Habeas Corpus and Marsden Motion
On June 3, 2024, defendant filed a petition for writ of
habeas corpus. Defendant asserted that his determinate
sentence for the 2006 conviction was unlawful and should be
vacated. Defendant also argued that the trial court erred by
denying his section 1172.6 petition. On November 15, 2024,
defendant filed a Marsden6 motion requesting appointment of
new counsel.
On March 25, 2025, following argument by the parties, the
trial court denied the Marsden motion. The court corrected the
determinate sentences by imposing a 16-month sentence (the low
term) for count one as the principal count, and imposing the same
16-month sentence for count two, to run concurrently. As to the
section 1172.6 argument, the court denied the petition, finding
that defendant was guilty as a direct aider and abettor of the
murder. Plaintiff timely appealed.
III. DISCUSSION
“[I]n noncapital cases, if the superior court denies a petition
for a writ of habeas corpus, the petitioner has no statutory right
to appeal. Instead, the petitioner must file a new, original
petition, generally in the Court of Appeal.” (Robinson v. Lewis
6 See People v. Marsden (1970) 2 Cal.3d 118.
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(2020) 9 Cal.5th 883, 895.) Defendant concedes that an order
denying a writ of habeas corpus petition is a nonappealable order.
He contends, however, that we should treat the trial court’s order
as one denying a petition filed pursuant to section 1172.6.
We will grant defendant’s request to construe the trial
court’s order as one denying a petition filed pursuant to section
1172.6. We conclude, however, that the court did not err when it
denied the petition because, among other things, the petition was
barred by the doctrine of issue preclusion. (See People v. Farfan
(2021) 71 Cal.App.5th 942, 950–951 [doctrine of collateral
estoppel, although not automatic, can apply to preclude
successive § 1172.6 petition].)
“‘In general, whether a prior finding will be given
conclusive effect in a later proceeding is governed by the doctrine
of issue preclusion, also known as collateral estoppel.’ [Citation.]”
(People v. Curiel (2023) 15 Cal.5th 433, 451.) “‘As traditionally
understood and applied, issue preclusion bars relitigation of
issues earlier decided “only if several threshold requirements are
fulfilled. First, the issue sought to be precluded from relitigation
must be identical to that decided in a former proceeding. Second,
this issue must have been actually litigated in the former
proceeding. Third, it must have been necessarily decided in the
former proceeding. Fourth, the decision in the former proceeding
must be final and on the merits. Finally, the party against whom
preclusion is sought must be the same as, or in privity with, the
party to the former proceeding.”’ [Citation.]” (Id. at pp. 451–452.)
Here, all the threshold requirements for the application of
the doctrine of issue preclusion were met. The issues are
identical: whether defendant can presently be convicted of
murder pursuant to the change of law effective January 1, 2019.
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The issue was actually litigated in the prior proceeding when the
trial court, on October 20, 2021, held an evidentiary hearing
pursuant to section 1172.6, subdivision (d)(3). It was necessarily
decided after the court found defendant guilty beyond a
reasonable doubt of murder as a direct aider and abettor and
denied the petition. It was final and on the merits, as we
affirmed the order denying the petition on appeal. (People v.
Gonzalez, supra, 87 Cal.App.5th at p. 881.) Finally, the parties
are the same or in privity with the parties to the first petition.
Defendant counters that Senate Bill No. 775 (Stats. 2021,
ch. 551, § 2, eff. Jan. 1, 2022) amended section 1172.6 to allow a
person convicted of murder under any “other theory under which
malice is imputed to a person based solely on that person’s
participation in a crime” to petition for resentencing, and was an
intervening change in law that affected his entitlement to relief.
(See People v. Strong (2022) 13 Cal.5th 698, 717 [“‘[A] judicial
declaration intervening between the two proceedings may so
change the legal atmosphere as to render the rule of collateral
estoppel inapplicable’”]; People v. Jimenez (2024) 103 Cal.App.5th
994, 1005 [change in law regarding consideration of young adult
offender’s age and implied malice murder warranted exception to
collateral estoppel].) Defendant does not articulate how Senate
Bill No. 775’s amendment applies to his petition. The jury
instructions delivered at defendant’s criminal trial demonstrate
that the jury was instructed on the natural and probable
consequences doctrine for the crime of assault, but not on any
“other theory under which malice [was] imputed” to him based
only on his participation in the assault. A person convicted of
murder under the natural and probable consequences doctrine
could petition for resentencing since January 1, 2019, under
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former section 1170.95 (see Stats. 2018, ch. 1015, § 4), and
defendant did so (see People v. Gonzalez, supra, 87 Cal.App.5th at
p. 879). Moreover, defendant does not raise any new facts that
were not presented at the first evidentiary hearing. Accordingly,
the trial court did not err when it denied defendant’s successive
section 1172.6 petition.
IV. DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM (D.), J.
We concur:
HOFFSTADT, P. J.
MOOR, J.
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