People v. Garza CA4/2 ( 2024 )

Filed 1/16/24 P. v. Garza CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082166
v. (Super.Ct.No. INF1601917)
ANTHONY GARZA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge.
Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
A jury found defendant and appellant Anthony Garza guilty of second degree
murder (Pen. Code, § 187, subd. (a), count 1)1 and found true an allegation that he
1 All further statutory references are to the Penal Code unless otherwise indicated.
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discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)).2 The
trial court sentenced him to 15 years to life, plus 25 years for the firearm enhancement.
(Garza, supra, E077734.)
On appeal from the judgment, we remanded the matter for resentencing for the
court to consider whether to impose a lesser, uncharged firearm enhancement in lieu of
the charged allegation. (Garza, supra, E077734.) On remand, the court declined to do
so.
After defendant filed a notice of appeal, this court appointed counsel to represent
defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25
Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of
facts, a statement of the case, and requesting that we independently review the record.
Defendant was offered the opportunity to file a personal supplemental brief, which he has
not done. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
After smoking methamphetamine and drinking alcohol in the garage in which
defendant was staying, defendant and the victim became embroiled in a verbal and
physical altercation. Defendant then shot the victim in the forehead. Defendant and an
associate wrapped the victim’s body in a blanket and moved it to the alley behind the
2 We take judicial notice of our prior opinion in defendant’s appeal from the
judgment. (People v. Garza (Jan. 10, 2023, E077734) [nonpub. opn.]; Evid. Code,
§§ 452, 459.)
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home’s backyard. The body was discovered at least a day later. (Garza, supra,
E077734.)
Defendant requested the court strike his firearm enhancement. At sentencing, the
trial court stated: “In this particular case, I cannot fathom how it would be in the interest
of justice to strike that particular gun allegation. The killing was done in a cruel manner.
It was done in a vicious manner. It was done in a senseless manner. It was done
callously. The treatment of the decedent afterwards was as equally cruel, vicious, and
callous, simply dragging someone out and leaving them in the desert, as [the victim’s]
family so bluntly put it, like an animal. [¶] Most people wouldn’t even treat their pets
that way. And if their pet died, they would make sure they had a proper burial and not
just thrown out and dragged out and left to rot in the desert. [¶] [Defendant’s] actions
demonstrate someone who has absolutely no regard whatsoever for humanity, no regard
for anyone else. And someone who is not meritorious of the Court exercising its
discretion under 1385 to strike that allegation. So, therefore, the request to strike the
allegation is denied at this time.” (Garza, supra, E077734.)
On appeal from the judgment, defendant contended resentencing was required
because the court was unaware of its discretion to impose a lesser, uncharged firearm
enhancement. We noted that at the time of defendant’s sentencing, the California
Supreme Court had not yet issued its decision in People v. Tirado (2022) 12 Cal.5th 688,
which held that subdivision (h) of section 12022.53 authorizes trial courts to strike a
greater, charged section 12022.53 enhancement and impose a lesser, uncharged section
12022.53 enhancement. Thus, we held that the matter should be remanded for
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resentencing for the trial court to consider all sentencing options under section 12022.53.
(Garza, supra, E077734.)
On remand, the court stated: “The comments which I made at the time of
sentencing regarding the cruel, callous, vicious nature of the attack do not change,
obviously. There’s nothing to change those. The facts have not changed as to what
happened at the underlying offense, and I stand by those statements as they were stated at
the original sentencing, and I’m incorporating all my comments that I made at the
original sentencing . . . .” The court declined to exercise its discretion to impose a lesser
enhancement.
II. DISCUSSION
Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have
independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
CODRINGTON
J.
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