Filed 7/22/22 P. v. Gomez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA THE PEOPLE, D079134 Plaintiff and Respondent, v. (Super. Ct. No. SCE243463) RUBEN GOMEZ, Defendant and Appellant. APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Steve Oetting, Alan L. Amann, and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent. Ruben Gomez, who is serving a prison sentence for second degree murder, appeals from the denial of his petition for resentencing pursuant to Penal Code former section 1170.95 (now renumbered as § 1172.6).1 After issuing an order to show cause, the trial court found that Gomez was not entitled to resentencing because the People proved beyond a reasonable doubt that Gomez is guilty of murder under a theory that remains valid following the Legislature’s change to the substantive law of murder in Senate Bill No. 1437 (Stats. 2018, ch. 1015) (Senate Bill 1437). Specifically, based on the transcripts and exhibits from Gomez’s trial, and our appellate opinion in Gomez’s appeal from his conviction (People v. Gomez (July 13, 2008, D049431) [nonpub. opn.]), the trial court found beyond a reasonable doubt that Gomez participated in a conspiracy to commit murder. Gomez contends: (1) both the statutory language of section 1172.6 and the Sixth Amendment right to a jury trial should have prevented the trial court from making its own factual findings that Gomez is guilty of murder under a currently valid theory, rather than examining whether the jury made findings that would support guilt under a currently valid theory; (2) based on due process notice principles, a trial court deciding a petition for resentencing is not permitted to rely on a theory of murder that was not presented to the jury; (3) we should apply a de novo standard in reviewing the trial court’s factual findings; and (4) insufficient evidence supports the trial court’s finding that Gomez acted with the intent to kill needed for a conviction of conspiracy to commit murder. 1 Unless otherwise indicated, all further statutory references are to the Penal Code. Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). In our discussion we will use the new statutory designation (i.e., § 1172.6) in referring, in general, to the statute previously designated as section 1170.95 and in referring to the specific statutory language of the current version of the statute. However, in referring to the specific statutory language in prior versions …
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