People v. Gonzales CA4/2

I.

INTRODUCTION

Defendant and appellant Victor Gonzales appeals the trial court’s order denying 2 his Penal Code section 1172.6 (formerly § 1170.95) petition to recall his attempted

murder (§§ 664/187) conviction and for resentencing. On appeal, defendant contends the

trial court erred in summarily denying his petition without issuing an order to show cause

and holding an evidentiary hearing because it impermissibly engaged in factfinding at the

prima facie stage by relying on this court’s prior opinion from defendant’s direct appeal.

Contrary to the trial court, we conclude defendant’s record of conviction does not

foreclose relief as a matter of law because the jury may have found defendant guilty of

natural and probable consequences attempted murder without finding that he harbored

malice aforethought, which is no longer a permissible theory of murder liability under the

amendments to the state’s murder laws. Because we cannot rule out the possibility that

defendant may have been convicted of murder under a theory of liability that is no longer

legally valid, we reverse the summary denial order and remand the matter with…