People v. Garcia CA2/4 ( 2023 )

Filed 7/19/23 P. v. Garcia CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B324471
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. PA063528)
v.
MELESIO GARCIA,
Defendant and
Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Ann Krausz, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
INTRODUCTION
Melesio Garcia appeals from an order denying his petition
for resentencing under Penal Code section 1172.6.1 His appellate
counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo), and Garcia filed a supplemental brief. We
review the contentions Garcia raises in his supplemental brief,
and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, after “stalking and shooting at his estranged wife
and her boyfriend,” appellant Melesio Garcia was charged with
“two counts of premeditated attempted murder (counts 1 & 2;
Pen. Code, §§ 664, 187, subd. (a)),[ ] two counts of assault with a
firearm (counts 3 & 4; § 245, subd. (a)(2)), two counts of stalking
(counts 5 & 7; § 646.9, subd. (a)), possession of cocaine (count 6;
Health & Saf. Code, § 11350, subd. (a)), and unlawful firearm
activity (count 8; § 12021, subd. (g)(2)). As to counts 1 and 2, it
was further alleged that Garcia personally discharged and used a
handgun (§ 12022.53, subds. (b) & (c)). As to counts 3 and 4, it
was alleged that Garcia personally used a handgun (§ 12022.5,
subd. (a)). . . . [¶] [In December 2009, a] jury found Garcia guilty
on all counts as charged, and found the gun-use enhancements to
be true. Garcia was sentenced to state prison for two consecutive
life terms, plus 44 years and four months.” (People v. Garcia
(Oct. 4, 2011, B223214) [nonpub. opn.].)
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
In January 2022, Garcia filed a petition for resentencing
under former section 1170.95, now section 1172.6.2 The People
opposed the petition on the grounds that Garcia was ineligible for
relief as a matter of law because his jury was not instructed on
the theory of natural and probable consequences or on aiding and
abetting, and because Garcia was prosecuted as the actual
perpetrator who acted with malice. The People attached this
court’s opinion from Garcia’s direct appeal, as well as the jury
instructions from the trial. Garcia, in his reply brief, conceded
that the jury was not instructed on felony murder or natural and
probable consequences, but argued that the jury “could have
found mens rea based on an impermissible imputed malice
theory.”
The trial court denied the motion on the grounds that
Garcia failed to demonstrate prima facie entitlement to relief. At
the hearing on the petition, the court noted that no jury
instructions were given regarding natural and probable
consequences, felony murder, aiding and abetting, or imputed
malice. The court stated that Garcia, as the “actual attempted
killer . . . is ineligible for relief as a matter of law.”
Garcia timely appealed.
DISCUSSION
Garcia’s appointed attorney filed a brief raising no issues
and requesting that this court proceed pursuant to Delgadillo,
supra, 14 Cal.5th 216. This court advised Garcia of his right to
file a supplemental brief (see Delgadillo, supra, 14 Cal.5th at pp.
231-232), and Garcia did so. We evaluate the arguments set forth
2 Effective June 30, 2022, former section 1170.95 was
renumbered to section 1172.6, with no change in text. (Stats.
2022, ch. 58, § 10.)
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in that supplemental brief. (See id. at p. 232 [“If the defendant
subsequently files a supplemental brief or letter, the Court of
Appeal is required to evaluate the specific arguments presented
in that brief and to issue a written opinion”].)
Garcia argues that the evidence presented at his trial did
not support a finding that he intended to kill his ex-wife or her
companion, G.B.,3 and therefore “the requirements to convict me
of attempted murder were not met.” Garcia admits he
approached G.B. and “at a distance of seven to eight feet, I fired
(3) three rounds towards him which left (3) remaining live
rounds” in the revolver. Garcia notes that he did not chase or
shoot at G.B. when he ran away, despite “a clear view of his
person at all times” and “the immediate opportunity and ability
to chase him down or shoot him on his back.” Garcia notes that
he then approached his ex-wife, and “the revolver I still had on
my person still contained (3) live rounds in the cylinder. If my
true intentions were to hurt or kill her, I had the opportunity and
ability to retrieve the weapon from my waistband and shoot her
at point blank range. What prevented me from ‘pistol whipping’
or physically assaulting her?” Garcia further requests that this
court consider recent changes to law and policy that “give[ ] the
sentencing court the discretion to dismiss/strike sentencing
enhancements.”
Garcia has not demonstrated that the trial court erred in
denying his petition for resentencing. (People v. Gonzalez (2021)
12 Cal.5th 367, 410 [it is the appellant’s burden to affirmatively
demonstrate error].) Resentencing under section 1172.6 is
available to petitioners who have been convicted of “attempted
3 We refer to the victim by initials to protect his privacy.
(See Cal. Rules of Court, rule 8.90(b)(4).)
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murder under the natural and probable consequences doctrine,”
who “could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1172.6, subd. (a).) The natural and probable
consequences doctrine is a theory of accomplice liability in which
“the defendant aid[s] and abet[s] the target crime, . . . a
coparticipant in the target crime also commit[s] a nontarget
crime, and . . . this nontarget crime [is] a natural and probable
consequence of the target crime the defendant aided and
abetted.” (People v. Hardy (2018) 5 Cal.5th 56, 92.) A person
convicted of attempted murder is not eligible for resentencing
under section 1172.6 “if the record of conviction demonstrates
that he was convicted of murder and attempted murder either as
a perpetrator or a direct aider and abettor, and not under the
natural and probable consequences doctrine, or indeed any theory
under which malice is imputed to a person based solely on that
person’s participation in a crime.” (People v. Cortes (2022) 75
Cal.App.5th 198, 204.)
Garcia was charged and convicted as the actual shooter, not
under an accomplice liability theory. The jury found that Garcia
personally and intentionally discharged a firearm in the
commission of the attempted murders. Nothing in the record
suggests Garcia was charged or convicted under the natural and
probable consequences doctrine or any other theory in which
malice was imputed to him. For these reasons, the trial court
was correct in concluding Garcia is ineligible for relief under
section 1172.6 as a matter of law. The trial court properly denied
Garcia’s petition.
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DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P.J.
MORI, J.
ZUKIN, J.
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