Metropolitan News-Enterprise


Wednesday, June 30, 2021


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Court of Appeal:

Applying New Law to Defendant Benefitted by Resentencing Statute Not Ex Post Facto  


By a MetNews Staff Writer


The Court of Appeal for this district yesterday rejected an inmate’s contention that in resentencing him under an ameliorative statute, the trial court violated his constitutional right against ex post facto application of a law by utilizing a Penal Code provision that did not exist at the time he committed his offense.

Acting Presiding Justice Thomas L. Willhite Jr.  wrote the opinion which affirms a judgment by Los Angeles Superior Court Judge Steven Blades. It comes in the case of Steven Rudy Gonzales who successfully petitioned under Penal Code §1170.95 for an order vacating his ameliorative second degree murder conviction because his acts would no longer constitute a murder.

He was originally convicted of first-degree murder in connection with a killing by another in the course of a 1998 brawl between two street gangs; a writ of habeas corpus was granted and he wound up sentenced for second-degree murder with a term of 15 years to life in prison, with a 25 years to life enhancement based on gun use.

Gonzales’s petition for a resentencing succeeded. He was convicted under a “natural and probable consequences” theory that has been legislatively repudiated.

Three-Year Sentence

His target offense was now battery, normally a misdemeanor carrying a maximum sentence of six months in jail. However, based on a gang enhancement, Blades sentenced Gonzales as a felon, pursuant to Penal Code §186.22(d) to three years, with credit for time served, and a three-year term of probation.

Sec. 186.22(d) did not exist in 1998. The sentence violated his right against an ex post facto application of a law, Gonzales maintained, and defied due process.

Disagreeing, Willhite said:

“We conclude that when a  defendant is resentenced under a legislative enactment, such as section  1170.95, that gives inmates serving otherwise final sentences the  opportunity to petition to take advantage of ameliorative changes to the  law governing their convictions, there is no ex post facto violation if the  court resentences the defendant under the then existing law so long as  that law does not prescribe a penalty that is greater than the penalty  that was prescribed for the criminal act at the time it was committed.”

Focus on Notice

He explained:

  “In determining whether the imposition of a sentence violates ex post facto or due process principles, the focus is on the notice provided to an individual of the potential punishment for criminal acts at the time those acts were committed….Thus, the proper inquiry here is not what  punishment was assigned to the crime of battery at the time defendant  joined his fellow gang members in a fight against rival gang members.  Rather, the inquiry is what punishment was assigned to the act of a gang member joining in a fight against rival gang members in which one of those rivals is shot and killed. And in 1998, when defendant engaged in the fist fight at issue, the punishment assigned for that act was 15 years to life plus 25 years to life for second degree murder.6 Therefore, defendant was not disadvantaged by the retroactive application of section 186.22(d), resulting in the imposition of a three year sentence.”

Willhite said that SB 1437, which created § 1170.95, “in granting leniency to certain individuals who have been convicted of murder, gives notice that the individual may be resentenced on criminal offenses that were not charged but are supported by the record, with the limitation that the new sentence cannot exceed the original sentence.”

The case is People v. Gonzales, 2021 S.O.S. 2812.


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