Filed 7/8/26 P. v. Gonzalez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D086039
Plaintiff and Respondent,
v. (Super. Ct. No. RIF1404885)
DAVID GONZALEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Thomas Kelly, Judge. Affirmed.
Johanna Pirko, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General, Collette C.
Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and
Respondent.
David Gonzalez was sentenced to a term of 75 years to life after being
convicted of first degree murder. He is before us for a fourth time on appeal,
after we remanded the matter to the trial court three times for resentencing.1
In this appeal, Gonzalez contends the trial court abused its discretion when it
declined to dismiss a 25-year-to-life firearm enhancement, finding that a
reduction of his sentence would “endanger public safety” within the meaning
of Penal Code2 section 1385, subdivision (c)(2). We disagree with Gonzalez
and affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2014, Gonzalez was 30 years old. His 19-year-old brother-in-
law, Jaime Lopez, called him from a basketball court, which was roughly four
houses away from Lopez’s house. Lopez told Gonzalez about a confrontation
that began when Lopez noticed 21-year-old Salvador Cendejas and 25-year-
old Aurelio Gonzalez (Aurelio) driving down the street. He saw Cendejas
throw trash out of the car window, consisting of a fast-food meal and an
empty beer can. A few minutes later, when Cendejas and Aurelio drove back
the same way, passing by the basketball court, Lopez threw Cendejas’s trash
at the car. Cendejas and Aurelio stopped the car, and an argument ensued
over the trash. Cendejas pushed Lopez two or three times. Lopez backed
1 We remanded in People v. Gonzalez (2024) 103 Cal.App.5th 215
(Gonzalez 2), which we rely on here for the procedural history; People v.
Gonzalez (May 1, 2019, D074726) [nonpub. opn.] (Gonzalez 1); and People v.
Lopez (Feb. 21, 2018, D072636) [nonpub. opn.] (Lopez), which we rely on for
the facts of the underlying offense. We take judicial notice of these prior
opinions. (See Evid. Code, §§ 452, subd. (a), 459, subd. (c) [an appellate court
on its own motion may take judicial notice of the decisional law of any state of
the United States].)
2 All subsequent statutory references are to the Penal Code unless
otherwise noted.
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down. Cendejas and Aurelio decided to leave. Cendejas said, “ ‘I’ll be back.’ ”
Cendejas and Aurelio drove a few blocks to their homes and walked back to
the basketball court together. Cendejas said he wanted to teach Lopez a
lesson.
After Lopez told Gonzalez about the confrontation, Gonzalez drove to
the basketball court and saw Cendejas. Gonzalez got out of the car and asked
Cendejas if he was the one disrespecting Lopez. Cendejas said, “ ‘[Y]eah.’ ”
According to Gonzalez, Cendejas swung at him but missed, and then
Gonzalez punched Cendejas in the face.
Cendejas ran down the street toward Lopez’s house, and Aurelio began
running too because Cendejas said Gonzalez had a gun. Gonzalez chased
Cendejas up a driveway on the side of Lopez’s house and fired one or two
shots toward Cendejas. Cendejas ran into Lopez’s yard, attempting to
escape. He entered Lopez’s house and ran through, ending up in the laundry
room. Lopez trapped Cendejas inside and called for Gonzalez. Gonzalez went
inside the laundry room and came out wrestling with Cendejas. With one
hand on Cendejas’s shoulder, Gonzalez got Cendejas down on his knees. At
that point, Cendejas was not struggling. Gonzalez then placed the gun on
Cendejas’s back and fired it, killing Cendejas.
A jury convicted Gonzalez of first degree murder (§ 187, subd. (a)), with
the additional finding that Gonzalez personally and intentionally discharged
a firearm in the course of committing the murder (§ 12022.53, subd. (d)). The
trial court subsequently made a true finding regarding Gonzalez’s prior
serious felony conviction and prior strike (§§ 667, subds. (a), (c), (e)(1),
1170.12, subd. (c)(1)), which was based on Gonzalez’s juvenile adjudication
for robbery involving personal use of a firearm (§§ 211, 12022.53, subd. (b)).
The trial court denied Gonzalez’s motion to strike his prior strike. It
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sentenced him to prison for an indeterminate term of 75 years to life, which
included a term of 50 years to life for the murder (calculated with doubling in
light of the prior strike), a term of 25 years to life for the firearm
enhancement (§ 12022.53, subd. (d)), and a consecutive determinate term of
five years for the prior serious felony conviction (§ 667, subd. (a)(1)).
In Gonzalez’s first appeal, we affirmed the conviction. We also
remanded so that the trial court could consider dismissing the term imposed
for the firearm enhancement based on a new statutory amendment. (Lopez,
supra, D072636.) On remand, the trial court declined to dismiss the
enhancement.
In Gonzalez’s second appeal, we remanded the matter for resentencing,
instructing the trial court to consider whether to dismiss the five-year
enhancement imposed for the prior serious felony conviction. (Gonzalez 1,
supra, D074726.) When the trial court resentenced Gonzalez, it struck the
five-year term pursuant to section 667, subdivision (a). It declined, however,
to strike the firearm enhancement under the newly amended statute, section
1385, subdivision (c), on the ground that Gonzalez endangered public safety
at the time of the hearing.
In his third appeal, we concluded the trial court erred because it
neither considered whether Gonzalez would endanger public safety at the
time he could be released if it dismissed the firearm enhancement nor the
fact that his release would be subject to a review by the Board of Parole
Hearings and the Governor. (Gonzalez 2, supra, 103 Cal.App.5th at pp. 230–
231.)
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In March 2025, the trial court resentenced Gonzalez.3 At the
resentencing hearing, Gonzalez relied on his prior sentencing position
memorandum, requesting that he be resentenced to an aggregate term of
25 years to life. Gonzalez agreed the trial court “has to look into its crystal
ball to determine [whether Gonzalez will] be a danger when he’s released at
the age of 80-something.”
Gonzalez emphasized he was only involved in two fights over the course
of his 10-year incarceration; he was in a special needs yard, indicating he
might be considered uniquely vulnerable; he was downgraded from a level
four security threat to a level three security threat; and he had engaged in
multiple rehabilitative educational and vocational programs in prison. Due
to the indeterminate sentence, he would be around 80 years old at the time of
any evaluation by the parole board. Accordingly, Gonzalez concluded that
dismissal of the firearm enhancement would not endanger public safety
within the meaning of section 1385, subdivision (c)(2).
In its ruling, the trial court considered Gonzalez’s juvenile adjudication
for robbery, which resulted in a commitment to the California Youth
Authority. The court noted that “[i]n his favor, he did get an early discharge
from parole.” The court recalled that Gonzalez suffered physical, verbal, and
emotional abuse by his stepfather over a long period of time, with Child
Protective Services intervention and periods of homelessness in childhood.
3 Judge Thomas Kelly presided over Gonzalez’s trial and Deputy District
Attorney Daima Calhoun was the trial prosecutor in 2015. At the
resentencing hearing, Calhoun commented that the court had a “very good
memory on the underlying facts,” to which the court replied, “It’s not a case
you forget.”
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Additionally, the trial court noted Gonzalez is married, has children,
and was a caregiver for a disabled relative, which showed a sense of
compassion. The court also acknowledged Gonzalez was a counselor for
underprivileged children through a program hosted by the district attorney’s
office. Further, at the time of the current offense, Gonzalez was involved
with his church and youth mentoring.
Next, the trial court considered Gonzalez’s current offense, reciting the
facts of the case and recalling that after Gonzalez shot the victim in the back,
he lied to the police and claimed at trial the gun accidentally misfired. The
court noted Gonzalez tried to stop the flow of blood and called 911, “[s]o he
gets points there, but small points.”
The trial court also considered Gonzalez’s behavior in prison, noting an
incident where staff had to use pepper spray because Gonzalez ignored their
orders to stop assaulting an inmate. And, in 2020, Gonzalez knocked out an
inmate to the point of unconsciousness. Finally, the court explained that less
than a year ago Gonzalez received a behavior write-up for refusing a new
cellmate. The court called this “[n]ot a big violation, but still a showing of
attitude in this incarceration.” The court acknowledged that Gonzalez was
downgraded from level four, the highest level of security, to level three, but it
also noted that inmates at level three were “a dangerous crowd.”
The trial court noted that if it struck the 25-year-to-life firearm
enhancement, Gonzalez could be approximately 80 years old when released.
Observing that there was no indication Gonzalez was in bad health, the court
stated: “The fact that he’s 80 does not mean much to me. You can do a lot at
80.” The court remarked, “he’s been acting out in a very violent fashion. He’s
like a lot of us, I guess, he’s got a good and a bad side. Nobody is perfect. But
my God, when you get a phone call just to come to break up a rumble; and
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you feel you have to bring a weapon, which you shouldn’t be having; and then
you arrive and you see that there’s no weapons there, just a bunch of guys
arguing, getting in a fight; and then you take shots at them as they’re
running away; and you chase them, you shoot them in cold blood in a house,
that’s the kind of person I think is evil and will remain evil.”
Accordingly, the trial court opined that Gonzalez will pose a danger to
the community “as long as he lives” and declined to dismiss the firearm
enhancement, reimposing the total 75-year-to-life sentence.
II.
DISCUSSION
A. Relevant Legal Principles and Standard of Review
Under section 1385, subdivision (c)(1), a sentencing court “shall dismiss
an enhancement if it is in the furtherance of justice to do so . . . .” (Italics
added.) In “exercising its discretion” on this point, “the court shall consider
and afford great weight” to certain enumerated mitigating circumstances,4
proof of which “weighs greatly in favor of dismissing the enhancement, unless
the court finds that dismissal of the enhancement would endanger public
safety.” (Ibid., italics added.) “That provision means that if the court finds
4 There are nine mitigating circumstances: “(A) Application of the
enhancement would result in a discriminatory racial impact . . . . [¶]
(B) Multiple enhancements are alleged in a single case. . . . [¶] (C) The
application of an enhancement could result in a sentence of over 20 years. . . .
[¶] (D) The current offense is connected to mental illness. [¶] (E) The current
offense is connected to prior victimization or childhood trauma. [¶] (F) The
current offense is not a violent felony . . . . [¶] (G) The defendant was a
juvenile when they committed the current offense or any prior offenses . . . .
[¶] (H) The enhancement is based on a prior conviction that is over five years
old. [¶] (I) Though a firearm was used in the current offense, it was
inoperable or unloaded.” (§ 1385, subd. (c)(2).)
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that dismissal of an enhancement ‘would endanger public safety,’ then the
court need not consider the listed mitigating circumstances.” (People v.
Mendoza (2023) 88 Cal.App.5th 287, 296–297 (Mendoza); see § 1385, subd.
(c)(2); see generally People v. Walker (2024) 16 Cal.5th 1024, 1029, 1038.)
“The Legislature specifically defined ‘[e]ndanger public safety’ to mean
‘there is a likelihood that the dismissal of the enhancement would result in
physical injury or other serious danger to others.’ ” (Gonzalez 2, supra,
103 Cal.App.5th at p. 227.) The trial court is not required to consider any
particular factors in determining whether the dismissal of the enhancement
would endanger public safety. (Ibid.) However section 1385, subdivision
(c)(2), directs the trial court to consider “the impact to public safety if the
defendant was granted sentencing relief[,]” requiring consideration of,
“among other things, the date on which the defendant would be released
under the revised sentence, and, in the case of an indeterminate sentence, the
safety valve that exists due to the review by the Board of Parole Hearings.”
(Gonzalez 2, at p. 229.)
“In reviewing the trial court’s determination that dismissal of
Gonzalez’s firearm enhancement would endanger public safety, we apply an
abuse of discretion standard of review.” (Gonzalez 2, supra, 103 Cal.App.5th
at p. 225.) “When, ‘ “as here, a discretionary power is statutorily vested in
the trial court, its exercise of that discretion ‘must not be disturbed on appeal
except on a showing that the court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage
of justice.’ ” ’ ” (Mendoza, supra, 88 Cal.App.5th at p. 298.) “Absent evidence
to the contrary, we presume the trial court knew the law and followed it.”
(People v. Ramirez (2021) 10 Cal.5th 983, 1042 (Ramirez).)
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B. Analysis
Gonzalez contends the trial court abused its discretion in denying his
request to strike the 25-year-to-life firearm enhancement. We disagree.
As Gonzalez concedes, the trial court recited the correct legal standard
and took heed of our prior guidance in Gonzalez 2. It also appropriately
applied the legal standard, determining that Gonzalez would likely endanger
the public at the time he could be released if the firearm enhancement was
dismissed. (See Gonzalez 2, supra, 103 Cal.App.5th at p. 228.) And in
accordance with our guidance in Gonzalez 2, the trial court expressly took
into account that a future review by the Board of Parole Hearings and the
Governor would occur, which “operates as a safety valve or check on any
modification that I might grant today.”
The trial court also appropriately considered Gonzalez’s past and
current dangerousness. As we explained in Gonzalez 2, supra,
103 Cal.App.5th at p. 228, his current dangerousness is important because it
bears on whether he will still be dangerous at the time of his modified
release. Accordingly, the trial court properly considered Gonzalez’s criminal
history, which started as a juvenile when he was convicted for robbing and
assaulting a person in a public restroom, and the circumstances of the
current offense. Specifically, the court highlighted that Gonzalez showed up
with a gun to break up an argument over some trash, pursued and fired a
gun at a person running away, and executed a person, who was on his knees,
harmless, with no weapons, and pleading for his life. The court reasonably
found these circumstances relevant to Gonzalez’s ongoing dangerousness
because they were “aggravated,” “extremely callous,” and amounting to a
“cold-blooded execution.”
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Following our guidance in Gonzalez 2, supra, 103 Cal.App.5th at p. 228,
the trial court considered how the dismissal would impact Gonzalez’s
sentence and acknowledged that if it struck the firearm enhancement,
Gonzalez would be released when he is around 80 years old. Nevertheless,
the court reasonably determined that the passage of time would not reduce
Gonzalez’s risk to the public because his prison records demonstrate he has
not chosen the path of rehabilitation. Indeed, Gonzalez’s pattern of violence
and callousness continued in prison when he assaulted an inmate and
ignored orders to stop. As recently as March 2020, Gonzalez knocked out an
inmate and left him unconscious.
The statute requires a judge, after considering the nature and severity
of the offense and other relevant facts, to use their best judgment. Given the
trial court’s consideration of the aggravated circumstances of the crime and
Gonzalez’s resistance to rehabilitation and violence in custody after
committing such a crime, we cannot say that the court’s determination that
dismissal of the enhancement “would endanger public safety” (§ 1385,
subd. (c)(2)) was so irrational or arbitrary that no reasonable judge could
agree with it.
Gonzalez contends the trial court’s decision was fundamentally
incompatible with the principles, purposes, and goals underlying
sections 1385, subdivision (c)(2), and 12022.53, subdivision (h). In particular,
he emphasizes that the purpose of incarceration is rehabilitation and
successful reintegration. He relies on legislative history and committee
reports to show that the Legislature acknowledges that defendants are
capable of rehabilitation and tend to rehabilitate as they age.
Although we do not disagree that the Legislature has expressed a focus
on rehabilitation, we are not persuaded the trial court’s decision was
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incompatible with this purpose. First, section 1385, subdivision (c)(2), does
not require the trial court to consider any committee reports, particular
factors, or empirical research in determining whether “there is a likelihood
that the dismissal of the enhancement would result in physical injury or
other serious danger to others.” (See § 1385, subd. (c)(2); Gonzalez 2, supra,
103 Cal.App.5th at p. 227.)
Second, striking a 25-year enhancement from a convicted criminal’s
sentence subjects society to the risk that it will be victimized during the
period when he would otherwise be confined. Of course, Gonzalez is capable
of rehabilitation in theory. The pertinent question is, will he be rehabilitated
by the time of the modified release date to a sufficient level that he will not
endanger public safety? This question requires a judicial determination
based upon an “individualized consideration of the offense, the offender, and
the public interest.” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th
968, 978, italics added.) On this record, a court could reasonably find the
chances of full rehabilitation are slight.
When the trial court considered all it knew about Gonzalez, including
his “extremely callous” murder, along with the prison records which showed
his continued callousness and resistance to rehabilitation, the court
reasonably found Gonzalez was unlikely to rehabilitate to a sufficient level
during his lifetime. In the court’s words, there is “a likelihood, for as long as
he lives he’s going to pose a danger to the community.”
The trial court reasoned that Gonzalez’s senseless offense was an
outgrowth of his character, which is necessarily hard to change. The court
further reasoned Gonzalez’s character was unlikely to change in the number
of years he had left to live. In the trial court’s more cutting language,
Gonzalez is “the kind of person I think is evil and will remain evil.” While we
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may have chosen our words differently, the trial court’s analysis reflects an
individualized consideration of the offense and the offender, and its
determination is not incompatible with the spirit of the law.
The trial court exercised its best judgment in making a weighty and
challenging prediction. We presume the court was informed by the law, its
decision was in conformity with its spirit (see Ramirez, supra, 10 Cal.5th at
p. 1042), and we will not impermissibly substitute our judgment for the
judgment of the trial court (People v. Hoffman (2021) 61 Cal.App.5th 976,
978). For all these reasons, we conclude the court did not abuse its
discretion. Gonzalez’s claim of error, therefore, fails.
III.
DISPOSITION
The judgment is affirmed.
KELETY, J.
WE CONCUR:
DO, Acting P. J.
CASTILLO, J.
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