People v. Garcia CA2/2 ( 2022 )

Filed 12/30/22 P. v. Garcia CA2/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308824
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA110432)
v.
OPINION ON REMAND
FRANCISCO GARCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Robert C. Vanderet, Judge. Reversed and
remanded with directions.
Tracy J. Dressner, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Irvi and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Francisco Garcia appealed the summary denial of his
petition for resentencing under Penal Code1 section 1172.6.2 In
an unpublished decision filed February 4, 2022, we affirmed,
holding that the superior court may summarily deny a section
1172.6 petition at the initial prima facie review on the ground
that a defendant convicted of murder with a felony-murder
special-circumstance finding (§ 190.2, subd. (a)(17)) is not, as a
matter of law, eligible for resentencing under section 1172.6.
(People v. Garcia (Feb. 4, 2022, B308824) (Garcia).) The majority
further held that a section 1172.6 petition is not a vehicle for
challenging, under our Supreme Court’s decisions in People v.
Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63
Cal.4th 522, a murder conviction by attacking the jury’s prior
factual finding that the defendant was a major participant who
acted with reckless indifference to human life. (Garcia, supra,
B308824.)
The California Supreme Court granted review and deferred
further action pending consideration and disposition of related
issues in People v. Strong, S266606. On November 22, 2022, the
California Supreme Court transferred the case back to this court
with directions to vacate our prior decision and reconsider in
light of People v. Strong (2022) 13 Cal.5th 698 (Strong).
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text. (Stats. 2022,
ch. 58, § 10.)
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DISCUSSION
The Attorney General acknowledges that respondent’s
previous arguments in Garcia were the same arguments
presented to, and rejected by, the high court in Strong. For this
reason, respondent concedes the matter should be remanded for
the trial court to issue an order to show cause and conduct an
evidentiary hearing wherein relief should be denied if the
prosecution proves “beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1172.6, subd. (d)(3).)
We agree. Upon reconsideration of the cause in light of
Strong, supra, 13 Cal.5th 698, we conclude that the superior
court erred in denying appellant’s petition under section 1172.6.
We therefore remand the matter for the issuance of an order to
show cause and further proceedings in accordance with section
1172.6, subdivision (d).
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DISPOSITION
It is ordered that the previous opinion and decision filed in
this case on February 4, 2022, is vacated. The matter is
remanded for reappointment of counsel, the issuance of an order
to show cause, and further proceedings in accordance with Penal
Code section 1172.6, subdivision (d).
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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