By Josué Monroy
SACRAMENTO – A petition to vacate the first-degree murder conviction of Jose Gonzales for the 2008 Memorial Day murder of Jose Guerrero was brought before Judge Kevin McCormick in Sacramento County Superior Court last week.
The petition is pursuant to SB 1437, a law enacted in 2019 that allows felony murder convictions and convictions based on the natural and probable consequences theory to be remanded to the trial court for resentencing.
Deputy District Attorney Greg Porter represented the People via Zoom for the hearing, while defense counsel Jesse Ortiz represented the defendant in person before the judge. Gonzales was present via Zoom from Mule Creek State Prison, where he has been serving his sentence.
DDA Porter noted that the victim’s family was tuning into the court’s YouTube broadcast, underscoring the importance of this hearing to all involved.
Judge McCormick was the original trial judge in the case – the jury found Gonzales and co-defendant Jaime Torres guilty of first-degree murder with gang and firearm enhancements after a gang-related altercation outside the victim’s home in north Sacramento. Guerrero, 47, was pistol-whipped and then shot and killed in cold blood in front of his family.
The defendants were Norteño gang members, who had walked up to Guerrero’s house with a group of fellow gangsters in order to confront the victim’s stepsons, who were rival Sureño gang members.
After the victim threatened to call police, Torres attacked him, leading to a fight in which the defendant pulled out a gun. The victim managed to throw the gun, only for it to be picked up by one of Torres’ associates, who subsequently shot Guerrero in the head.
Gonzales was alleged to be the one who fired the fatal shot, as he matched the description of the shooter given by witnesses. However, he was never officially identified in photo line ups or in court testimony during trial. Although the prosecution argued that there was “high confidence” that he was the perpetrator, there is no indication that the jury found him guilty under that assumption.
The defendants, both 24 at the time, were sentenced to 50 years to life for the crime, and both have appealed their convictions in California Supreme Court.
In a 2014 decision, the 3rd District Court of Appeals found that Judge McCormick’s jury instructions “were erroneous because they did not allow the jury to consider whether the defendants might have been guilty of only second-degree murder even if the shooter committed first-degree murder.”
The judgement also contended that proper jury instructions would have required jurors, in the event that they found the shooter had committed first-degree murder, to determine whether the defendants could have reasonably foreseen which outcome – first- or second-degree murder – was the natural and probable consequence of their actions.
The natural and probable consequences doctrine has been used heavily in convicting gang-related crimes, as it infers that gang members can reasonably foresee that, by engaging in gang-motivated confrontations, the most likely outcome will be physical altercations that can lead to death. Their actions can find defendants guilty of murder in the second degree.
The doctrine has been controversial, because individuals have been convicted of murder without being the perpetrator, and solely on the basis of gang participation, which influences their perceived mindset or foresight in engaging in violence.
The appellate court overturned the first-degree murder convictions, and remanded the cases back to the trial courts to either have the charges reduced to second-degree murder by the district attorney, or grant the defendants a new trial.
The district attorney reduced Torres’ sentence to 40 years to life in prison; 25 to life for the murder, plus a 15-year firearm enhancement.
Gonzales has taken his appeal further, and is hoping to get his murder conviction vacated by invoking SB 1437. The bill added section 1170.95 to the California Penal Code, which gives defendants the right to bring their petition to the trial court.
According to SB 1437, one can petition to vacate a murder conviction if (1) the charges allowed that the district attorney could argue a “felony murder” or a “natural and probable consequences” theory , (2) you were convicted of first-degree or second-degree murder, and (3) could not be convicted of murder if you were prosecuted now because of the changes made by SB 1437.
“This is a significant shift in the law, there’s no question about it,” stated Judge McCormick in speaking about the new statute. He noted that, although the probable consequences theory could no longer be applied to the case, the other liability theories were still in play.
The judge then asked counsel Ortiz how, if there were no previous grounds for acquittal due to insufficient evidence to support any of those theories, he could justify seeking to reverse a conviction without knowing which theory the jury used to reach a guilty verdict.
Simply put, just because the law did away with one theory, it is still possible the jury found the defendant guilty under the two remaining theories
With that possibility, according to Judge McCormick, wouldn’t vacating the murder charges deny the prosecution its right to have a new jury trial determine which theory was used to convict the defendant?
“I have no idea,” responded Ortiz. “The legislature did not address [it].”
“Wouldn’t that mean that it’s unconstitutional?” asked Judge McCormick, referring to the possible legal blind spot SB 1437 would create in denying the prosecution a right to trial.
“How does that not deny the People their right to have a jury decide that one of those theories that was originally given to the original jury was not the one relied upon to in coming to the conviction,” he continued. “Why would we assume it was ‘natural and probable’?”
“That could have been resolved very simply,” responded Ortiz. “They could have asked the jury [to find that] Mr. Gonzales personally fired the firearm during the commission of this offense.”
“I don’t disagree with you,” stated the judge. “The problem is that we don’t have that information.”
The fact that it is possible the jury used the direct perpetrator theory in finding Gonzales guilty of murder in the first degree, although the shooter was not identified beyond a reasonable doubt, is the defense’s argument for ruling him out as the shooter.
During the hearing, Ortiz reiterated this by reminding the court that there were conflicting descriptions of the shooter- some witnesses described the shooter as Samoan or Asian. Gonzales is Latino.
DDA Porter argued that the defendant was the only individual in the group that went up to the victim’s house who sported a “Mongolian-style” haircut with a long-braided ponytail. Multiple witnesses testified that the shooter was the only one with that hairstyle, and Gonzales wore his hair in that way at the time of the murder.
But no physical evidence was tied to the defendant, including gunshot residue, according to the defense.
As for the aiding and abetting theory, Ortiz claimed that his client was not an active participant in the altercation and ensuing fight, and he was standing “one house away.” He insisted that in standing at a distance and staying away from the confrontation, Gonzales showed no implied malice or intent to kill, both being mental states which the prosecution must prove the defendant was in to be found guilty of aiding and abetting murder in the first degree.
Ortiz’s interpretation of SB 1437 leads him to believe that his client is eligible for a petition to vacate his conviction on those grounds
From the outset, the prosecution asked the court to deny the petition, and referred to the appellate court’s decision to still uphold Gonzales’ conviction, though it could be brought down to second-degree murder on the technically of erroneous jury instructions.
“The appellate court upholds the decision based on the fact that the defendant could have been convicted as the direct perpetrator. That should be the standard that governs this hearing,” stated DDA Porter. “On the basis of the 3rd District’s opinion alone, I believe that the petition should be denied.”
In its second year as California law, SB 1437 gives hope to those seeking vindication from wrongful convictions. However, there are also legal gray areas that will arise in its implementation.
Judge McCormick seems to understand that, and he let the parties know that it would take him some time to come to a decision on this matter.
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