The following case out of the Pomona courthouse within Los Angeles County posed an interesting question: may a judge, in resentencing defendant under SB 1437 (Penal Code § 1170.95), sentence defendant to an uncharged offense under a statute that had not yet been enacted at the time defendant committed the offense? In other words, does such a sentence violate fundamental due process and the prohibition against ex post facto laws?
“The ex post facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment for an act that was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ Through this prohibition, the Framers sought to assure that legislative Acts give fair warning to their effect and permit individuals to rely on their meaning until explicitly changed.” Weaver v. Graham (1981) 450 U.S. 24, 28-29.
The Supreme Court has identified “two critical elements [that] must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment; and it must disadvantage the offender affect by it.” Weaver, supra, at 29.
The facts of this case are rather straightforward. In 1998, Steven Rudy Gonzales, the age 16, along with two fellow gang members, got into a fist fight with rival gang members that ended when one of defendant’s gang members shot and killed one of the rival gang members.
Gonzales denied knowing that his fellow gang member had a gun, and there was no evidence that defendant intended to do anything more than engage in a fist fight.
However, the jury in Pomona convicted Gonzales of first degree murder under a natural and probable consequences theory and a Penal Code § 12022.53(d) firearm allegation and a Penal Code § 186.22(b) gang allegation were found true. He was then sentenced to 25 years to life in prison on the murder plus 25 years to life on the firearm enhancement.
In 2017, Gonzales filed a writ for writ of habeas corpus seeking to have his first degree murder conviction vacated under People v. Chiu (2014) 59 Cal. 4th 155. This was granted and the first degree murder conviction was reduced to a second degree murder. The case was then remanded back for resentencing.
Before resentencing, Gonzales filed a motion to strike the firearm enhancement under Penal Code § 1385 (AB 620) based on the fact that he did not know his companion had a gun.
On resentencing, the judge denied Gonzales’ motion to strike the firearm enhancement and sentenced Gonzales to 15 years to life on the second degree murder, plus 25 years to life on the firearm enhancement.
Defendant then appealed to the Second Appellate District, arguing that the Pomona court judge had erred by not considering his post-conviction conduct in resentencing him and my not applying Senate Bill (SB) 1437.
The appellate court agreed with Gonzales on both arguments, but instructed him to file a separate 1437 petition for resentencing. In his petition, Gonzales then argued that there was no other charge he could be sentenced to because only felony murder was charged. In response, the People explained that Penal Code § 1170.95(e) provides that in cases in which a petitioner is entitled to relief from a murder conviction, if the murder has been charged generically and the target offense was not charged, the petitioner’s conviction must be redesignated as the target offense for resentencing purposes.
At trial, the prosecution had argued that the target offense was simple battery (Penal Code § 242). Simple battery is punishable by six months in county jail. However, the jury found the gang allegation under § 186.22(b) to be true, so the prosecution argued to the judge in Pomona that on resentencing, the judge should sentence Gonzales to three years in state prison under Penal Code § 186.22(d), which had not yet been enacted at the time defendant committed the act for which he was convicted.
The judge agreed and sentenced Gonzales to three years in state prison.
Gonzales then appealed, claiming the judge violated ex post facto principals by applying a law retroactively to him to punish him.
The Second Appellate District disagreed, saying there was no ex post facto violation because the penalty imposed was less than the penalty originally imposed. Gonzales was not disadvantaged by retroactive application of 186.22(d), as the sentence was less than the original sentence.
We bring this summary to the readers’ attention because if one is lucky enough to have 1170.95 relief granted, the new sentence may possibly be an ex post facto violation. Here, it was not, however.
For more information about SB 1437 resentencing, please click on the following articles: