People v. Garcia CA2/7 ( 2023 )

Filed 8/21/23 P. v. Garcia CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B321238
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA078290)
v.
ANTHONY DANIEL GARCIA,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, William C. Ryan, Judge. Affirmed.
David R. Greifinger, 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, Noah P. Hill, Supervising Deputy
Attorney General, and Steven E. Mercer, Deputy Attorney
General, for Plaintiff and Respondent.
_________________________
1
Penal Code section 1170.126, subdivision (b), requires that
a petition for recall of sentence under the resentencing provisions
of Proposition 36, the Three Strikes Reform Act of 2012, be filed
within two years of the initiative’s November 7, 2012 effective
date “or at a later date upon a showing of good cause.” Anthony
Daniel Garcia, representing himself, filed a petition for
resentencing under Proposition 36 on July 29, 2019. The
superior court denied the petition, finding Garcia had failed to
show good cause for the delayed filing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Garcia’s Convictions and State Prison Sentence
Garcia was convicted following a jury trial of grand theft of
an automobile (Pen. Code, § 487, subd. (d)(1)), kidnapping (Pen.
Code, § 207, subd. (a)), obstructing or resisting an executive
officer (Pen. Code, § 69) and transportation of a controlled
substance (Health & Saf. Code, § 11379, subd. (a)). The trial
court found true special allegations that Garcia had suffered two
prior serious or violent felony convictions within the meaning of
the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12)
and one prior serious felony conviction pursuant to Penal Code
section 667, subdivision (a). The court sentenced Garcia to an
aggregate indeterminate state prison term of 55 years to life.
(See People v. Garcia (Aug. 31, 2009, B206563) [nonpub. opn.].)
Garcia’s sentence included two consecutive terms of 25 years to
life for grand theft and obstructing or resisting an executive
officer and five years for the prior serious felony sentencing
enhancement. Concurrent prison terms were imposed for the
1
Statutory references are to this code unless otherwise
stated.
2
other two felony convictions. On appeal we reduced the grand
theft conviction to taking or driving a vehicle without the owner’s
consent (Veh. Code, § 10851, subd. (a)), affirmed the other
convictions and remanded the case for resentencing.
On remand Garcia was again resentenced to an aggregate
indeterminate state prison term of 55 years to life, a sentence
that now consisted of two consecutive terms of 25 years to life for
kidnapping and obstructing or resisting an executive officer, plus
a five-year prior serious felony sentencing enhancement. The
court imposed and stayed the sentence on the Vehicle Code
offense and imposed a concurrent term for transporting a
controlled substance. We affirmed the judgment on appeal.
(People v. Garcia (May 10, 2011, B222521) [nonpub. opn.].)
2. Garcia’s Proposition 47 Petition
In December 2015 Garcia petitioned pursuant to
Proposition 47, the Safe Neighborhoods and Schools Act of 2014
(§ 1170.18), to reduce to a misdemeanor his felony conviction for
obstructing or resisting an executive officer. The superior court
denied the petition, ruling none of Garcia’s four felony convictions
was eligible for reduction to a misdemeanor under Proposition 47.
We affirmed the order to the extent it addressed Garcia’s
conviction for obstructing or resisting an executive officer, but
reversed as to his Vehicle Code conviction because the issue
whether that offense could be reduced to a misdemeanor under
Proposition 47, then pending before the Supreme Court in People
v. Page (2017) 3 Cal.5th 1175, had not been presented by Garcia’s
petition. (People v. Garcia (May 15, 2017, B270278) [nonpub.
opn.].)
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3. Garcia’s Proposition 36 Petition
On July 29, 2019 Garcia petitioned under Proposition 36
(§ 1170.126, subd. (b)) to recall his sentence and to resentence
him on his conviction for obstructing or resisting an executive
officer—the second offense for which he was serving a consecutive
25-year-to-life third strike sentence. On September 16, 2019,
without Garcia being present or represented by counsel, the
superior court denied the petition, ruling Garcia was ineligible
for resentencing because the conviction at issue was a serious or
violent felony. (See § 1170.126, subd. (e)(1) [an inmate is eligible
for resentencing if the inmate is serving a three strikes sentence
“for a conviction of a felony or felonies that are not defined as
serious and/or violent felonies by subdivision (c) of Section 667.5
or subdivision (c) of Section 1192.7”].)
On appeal the Attorney General conceded the superior
court had erred—obstructing or resisting an executive officer in
violation of section 69 is not a serious or violent felony as defined
by sections 667.5, subdivision (c), or 1192.7, subdivision (c).
Nonetheless, the Attorney General urged us to affirm the order
denying Garcia’s petition because the petition was untimely and
Garcia had made no attempt to establish good cause for his delay
in filing. In the alternative, the Attorney General suggested we
remand the matter with directions to the superior court to
consider the timeliness of the petition, including any explanation
by Garcia for his delay, and, if Garcia established good cause for
the untimely filing, to consider Garcia’s eligibility for relief on the
merits. We adopted that suggestion (as Garcia requested we do),
reversed the order denying Garcia’s petition and remanded for
the superior court to consider whether good cause existed for
Garcia’s delay in filing and, if so, to consider the petition on its
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merits pursuant to section 1170.126, subdivisions (e), (f) and (g)—
that is, to determine if Garcia was ineligible for resentencing
because he had used a firearm or deadly weapon or intended to
cause great bodily injury to another person during the
commission of the offense, one of his prior convictions was for a
“super strike offense,” or resentencing him would pose an
unreasonable risk of danger to public safety.
4. The Hearing on Remand
Following remand, on November 4, 2020 the superior court
issued an order to show cause why Garcia’s petition should not be
denied as untimely. Garcia, now represented by counsel, filed a
reply to the order to show cause on January 29, 2021, explaining
he had contacted paralegal Lee West in September 2015 and
retained him in November 2015 to assist with all of Garcia’s legal
matters. Garcia asserted his failure to timely file the
Proposition 36 petition was attributable to his reasonable
reliance on West’s poor advice. West apparently assisted Garcia
in filing a failed petition for writ of habeas corpus and his
unsuccessful Proposition 47 petition but, according to Garcia’s
2
response, did not properly advise him regarding Proposition 36.
2
In a December 6, 2020 letter to his superior court counsel,
attached as an exhibit to the January 29, 2021 reply, Garcia
stated, when he met with West in 2015, West agreed “to raise any
issue he could find in my case [and] file my Prop 36, 47, 57 and
anything else that applied to my case.” According to Garcia,
West said he wanted to file the Proposition 47 petition first and
that he would file the Proposition 36 petition next “and assured
me he could navigate around any time limitations and not to
worry.” Although Garcia states this conversation occurred in
2015, Proposition 57 was not adopted by the electorate until
November 2016. (In re Mohammad (2022) 12 Cal.5th 518, 523.)
5
After delays due in part to the COVID-19 pandemic, the
district attorney filed a response on April 13, 2022, arguing
Garcia had not established good cause for the significant delay in
filing his petition (more than four years beyond the two-year
period for filing a petition specified in section 1170.126,
subdivision (b)). The district attorney’s memorandum relied on
People v. Drew (2017) 16 Cal.App.5th 253 (Drew), as had the
Attorney General in his brief in this court in the 2020 appeal,
which rejected the petitioning inmate’s argument that his lack of
counsel and consequent ignorance of his right to request
resentencing under Proposition 36 established good cause for the
delay in filing. Although Garcia’s claim was somewhat different
from Drew’s—Garcia insisted not only that he was unaware of his
right to seek resentencing but also that he had relied on
paralegal West to protect his rights—the district attorney
emphasized that West had not been retained until after the
deadline for filing a Proposition 36 petition had passed and
Garcia’s correspondence with West attached to Garcia’s response
to the order to show cause did not mention Proposition 36 until
2020.
The superior court denied the petition on May 11, 2022,
ruling, “None of the above justifications stated by petitioner
support his claims that either he relied on improper advice of his
retained paralegal or that the paralegal failed to advise him.”
The court pointed out (as had the district attorney) that West was
not retained until November 2015, one year after the statutory
deadline had passed. In addition, although Garcia and West had
corresponded starting in September 2015, the Proposition 36
petition was not filed until July 2019, three and one-half years
6
later, even though Garcia had sought resentencing relief in the
interim under other ameliorative legislation.
Garcia filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
Proposition 36 prospectively reduced the punishment
proscribed for certain defendants convicted of a third strike
offense. It also created a retroactive relief procedure by adding
section 1170.126, which permits inmates previously sentenced to
life terms under an earlier version of the three strikes law to
petition to recall their sentences and, if eligible for relief, to be
resentenced to the term that would have been imposed for their
crime under the new sentencing provisions. (§ 1170.126,
subd. (a).)
Eligibility for resentencing depends on several factors. An
inmate will be denied resentencing if (1) the current offense was
serious or violent; (2) the prosecution establishes one of four
disqualifying exceptions to resentencing under Proposition 36; or
(3) the superior court determines, in its discretion, that
resentencing the inmate would pose an unreasonable risk of
danger to public safety. (§ 1170.126, subds. (e) & (f).)
An inmate is eligible for resentencing on a qualifying
current offense under Proposition 36 despite his or her
contemporaneous conviction for one or more other offenses that
were serious or violent. (People v. Johnson (2015) 61 Cal.4th 674,
675, 695.) That is, the superior court must determine eligibility
for relief under section 1170.126, subdivision (e), on a count-by-
count basis. (See Johnson, at p. 688.)
As discussed, section 1170.126, subdivision (b), provides
that a petition for recall of sentence under the resentencing
7
provisions of Proposition 36 had to be filed “within two years
after the effective date of the act that added this section or at a
later date upon a showing of good cause.” Proposition 36 became
effective on November 7, 2012. (See People v. Johnson, supra,61 Cal.4th at p. 682.)
Section 1170.126 does not define “good cause.” However,
“[w]here the language of a statute uses terms that have been
judicially construed, the presumption is almost irresistible that
the terms have been used in the precise and technical sense
which had been placed upon them by the courts.” (Richardson v.
Superior Court (2008) 43 Cal.4th 1040, 1050 [internal quotation
marks omitted]; accord, People v. Lawrence (2000) 24 Cal.4th 219,
231.) “Courts have generally considered the following factors
relevant to a determination of good cause: (1) the nature and
strength of the justification for the delay, (2) the duration of the
delay, and (3) the prejudice to either the defendant or the
prosecution that is likely to result from the delay.” (People v.
Valencia (2021) 64 Cal.App.5th 641, 648 [internal quotation
marks omitted]; accord, Drew, supra, 16 Cal.App.5th at p. 257.)
Courts must also “‘consider all of the relevant circumstances of
the particular case, “applying principles of common sense to the
totality of circumstances.”’” (Valencia, at p. 648.)
We review the superior court’s good cause determination
for abuse of discretion. (Drew, supra, 16 Cal.App.5th at p. 257
[“our review of the . . . ‘good cause’ determination employs the
familiar ‘abuse of discretion’ standard”]; see People v. O’Day
(2022) 85 Cal.App.5th 426, 433; see also People v. Williams (2018)
19 Cal.App.5th 1057, 1062 [denial of a petition to recall sentence
under Proposition 36 is reviewed for abuse of discretion].) Under
that deferential standard, we may set aside the superior court’s
8
decision only if it is “arbitrary, capricious, or so outside the
bounds of reason as to render its ruling an abuse of discretion.”
(People v. Thomas (2023) 14 Cal.5th 327, 400; see People v.
Johnson (2022) 12 Cal.5th 544, 605 [“To establish an abuse of
discretion, defendants must demonstrate that the trial court’s
decision was so erroneous that it falls outside the bounds of
reason. [Citations.] A merely debatable ruling cannot be deemed
an abuse of discretion”; internal quotation marks omitted].)
2. The Superior Court Did Not Abuse Its Discretion in
Determining Garcia Failed To Establish Good Cause for
His Delay in Filing His Petition
As the court of appeal explained in Drew, supra,
16 Cal.App.5th at page 257, section 1170.126’s inclusion of a
limitations period subject to a good cause exception constituted
an implied determination “that not every delay in filing a recall
petition would be excusable.” Evaluating the factors generally
used by courts in determining good cause, the Drew court held
the superior court had not abused its discretion in finding the
petitioner failed to demonstrate good cause. The delay (nearly
two years after the deadline) was “substantial” (id. at p. 258), and
the petitioner had done nothing to investigate potential relief for
three and one-half years between the effective date of the Three
Strikes Reform Act and the filing of the petition “even though he
was then serving a life sentence that at least arguably was
impacted by [Proposition 36]. He did not contact the court. He
did not request assistance from the public defender’s office that
previously represented him. He did not inquire of anyone at the
Department of Corrections and Rehabilitation.” (Id. at p. 260.)
The court found unpersuasive the petitioner’s contention there
was good cause because he lacked counsel and promptly filed his
9
petition for recall after learning of the potential for resentencing.
(Id. at p. 259.) This argument, the court reasoned, effectively
advocated for “no time limits for filing a recall petition as long as
no one told him he had the ability to request resentencing. Were
this contention accepted, it would be tantamount to erasing the
limitations period from the statute in all but the most unusual of
circumstances.” (Ibid.; see People v. Valencia, supra,
64 Cal.App.5th at p. 648 [good cause should generally be found
where the delay occurred due to circumstances outside the
inmate’s control].)
Here, Garcia’s delay in filing the petition—four-plus years
after the deadline—was more than twice as long as the delay
considered substantial in Drew; and, like the inmate in Drew,
Garcia apparently did nothing to investigate potential relief until
well after the two-year limitations period had expired. Although
Garcia contends his reasonable reliance on advice from paralegal
West constituted good cause for the delay, as the superior court
explained, Garcia did not retain West until November 2015.
Whatever reliance there may have been occurred far too late for a
3
timely filing of the Proposition 36 petition.
In his reply brief Garcia suggests, if West had properly
advised him to file the petition in the fall of 2015, good cause
would have existed for a delayed filing because it was unclear
prior to the Supreme Court’s decision in People v. Johnson, supra,3
Indeed, in Garcia’s December 2020 letter to superior court
counsel in which Garcia claimed he and West had in 2015
discussed filing a Proposition 36 petition, Garcia acknowledges he
was aware at that time there was a problem with the limitations
period, but asserted West assured him that West could “navigate
around” it.
10
61 Cal.4th 674 in July 2015 that he was eligible for resentencing
on his qualifying offense (obstructing or resisting an officer) even
though he had also been convicted of a nonqualifying serious or
violent felony (kidnapping). We agree the superior court could, in
the exercise of its broad discretion, find good cause for not filing a
petition until the second half of 2015 if an inmate demonstrated
that pre-Johnson uncertainty was the reason for the delayed
filing. (Cf. Drew, supra, 16 Cal.App.5th at p. 259 [“[T]here was
reasonable support for an argument, which Drew could have
interposed prior to the expiration of the period for a timely
petition for resentencing, that his other nonqualifying conviction
did not preclude resentencing. . . . Under these circumstances,
the court could well conclude there was no good cause for the
delay”].) But Garcia does not argue this was the actual reason for
his delay. To the contrary, Garcia insists he was entirely
unaware of Proposition 36 until his contact with West after the
deadline had already passed.
Neither Garcia’s ignorance of Proposition 36 and lack of
counsel nor his subsequent reliance on West’s purported
malfeasance compelled a finding that good cause existed for the
delayed filing of Garcia’s petition for recall of sentence and
resentencing. The superior court’s determination that the
petition was untimely was well within its discretion.
11
DISPOSITION
The postjudgment order denying Garica’s petition is
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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