People v. Garcia CA2/3 ( 2024 )

Filed 2/7/24 P. v. Garcia CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B331662
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. TA135154
v.
ROBERTO CARLOS GARCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, H. Clay Jacke II, Judge. Affirmed.
Roberto Carlos Garcia, in pro. per.; and Lenore De Vita,
under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Under People v. Delgadillo (2022) 14 Cal.5th 216(Delgadillo), we review this appeal of an order denying a
petition for resentencing under Penal Code section 1172.6.1
We affirm.
BACKGROUND
In September 2015, a jury convicted Roberto Carlos Garcia
of two counts of attempted murder and found true allegations
that the attempted murders were willful, deliberate, and
premeditated. The jury also found true allegations that Garcia
personally used and personally and intentionally discharged
a firearm causing great bodily injury to both victims. In addition,
the jury convicted Garcia of being a felon in possession of a
firearm, felony resisting, and possession of methamphetamine.
The jury found true gang allegations as to the attempted murder
and gun possession counts.
The trial court sentenced Garcia to 86 years to life in the
state prison. In August 2018, we affirmed Garcia’s conviction
but vacated his sentence and remanded the matter for the
court to consider whether to strike one or both of the firearm
enhancements under then-recently-enacted Senate Bill No. 620.
(People v. Garcia (Aug. 14, 2018, B272046) [nonpub. opn.]
(Garcia I).) Back in the trial court, the court struck one
of the firearm enhancements as well as the prison priors and
resentenced Garcia to 59 years to life.
We summarize very briefly the facts set forth in Garcia I,
not for their truth but only for the basis of Garcia’s conviction.
1 References to statutes are to the Penal Code. Garcia filed
his petition under former section 1170.95, now renumbered
section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
2
(See People v. Woodell (1998) 17 Cal.4th 448, 459–460.) Around
10:20 p.m. one night in September 2014, Amber Haynes was
“hanging” with a group of people outside an apartment complex
in Compton. She saw Garcia approaching. She looked down
at her phone, then up again to see Garcia holding a black
semiautomatic handgun in his gloved hand. Garcia pointed
the gun at Haynes, then turned and pointed it at a crowd
of people near a staircase. Garcia “twice angrily yelled,
‘Where are you from, fool?’ ” (Garcia I.)
Garcia fired a shot and everyone ran. Haynes heard three
or four shots and then, seconds later, a second volley of shots.
Two people—Andrew Duvea and Uzziel Curry—were hit by
gunfire but survived. Swandea Davis was “hanging out” with
both victims that night as well. At trial, she testified Garcia
seemed to be aiming at Duvea. (Garcia I.)
The morning after the shooting, Haynes identified Garcia
in a photographic lineup. Both Haynes and Davis identified
gloves found behind a tree in the area as those Garcia wore
during the shooting. (Garcia I.)
Garcia’s defense at trial was misidentification. Duvea,
a member of a rival gang, denied at trial that Garcia was the
person who shot him. Duvea claimed the shooter was someone
named Jose Sosa, with the moniker “Crayzo.” (Garcia I.)
On appeal, “[t]he fact [Garcia] was the shooter [was]
not at issue.” (Garcia I.)
On April 1, 2022, Garcia filed a form petition for
resentencing. He checked boxes stating (as relevant here)
an information had been filed against him that allowed the
prosecution to proceed under a theory of “attempted murder
under the natural and probable consequences doctrine,” he was
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convicted of attempted murder following a trial, and he could
not presently be convicted of attempted murder because of
changes made to sections 188 and 189. The trial court appointed
counsel for Garcia and called for briefing.
The prosecution filed a response asserting Garcia was not
entitled to relief “because he was the actual shooter in this case
and acted with express malice. In addition, the jury was not
instructed on the natural and probable consequences doctrine.”
Garcia’s counsel filed a reply conceding the jury was not
instructed on the natural and probable consequences doctrine.
However, counsel contended the “kill zone” instruction the
trial court gave the jury “nullifie[d] ‘intent’ and in essence
argue[d] and substitute[d] ‘natural and probable consequences.’ ”
Counsel attached a copy of CALJIC No. 8.66.1 entitled,
“Attempted Murder—Concurrent Intent.” The instruction stated,
“A person who primarily intends to kill one person, may also
concurrently intend to kill other persons within a particular zone
of risk.” Counsel also attached one page from the prosecutor’s
closing argument in which he noted that, according to Davis’s
testimony, Garcia “was aiming at Duvea.” The prosecutor
continued, “But there’s an instruction that the judge read.
It’s reasonable to infer the perpetrator intended to kill the
primary victim by killing everyone in that victim’s vicinity.”2
2 Garcia’s counsel also argued there was insufficient evidence
to support the gang enhancement because “the requirement of
two predicate offenses was objectionable and should have been
excluded.” However, a section 1172.6 petition is not a vehicle
to relitigate alleged trial court errors. (See, e.g., People v. Farfan
(2021) 71 Cal.App.5th 942, 947 [“mere filing” of § 1172.6 petition
doesn’t afford petitioner new opportunity to raise trial court error
claims or attack sufficiency of evidence to support jury’s findings];
4
On July 10, 2023 the court held a hearing. Garcia’s
counsel acknowledged his argument about the gang allegation
was “more of a habeas” “rather than an 1172.6.” Counsel
mentioned “the kill zone instruction being not modified” and
then concluded, “I would submit it.”
The court stated,
“[A]s to the 1172.6, the court finds as a matter
of law that there is nothing—no malice that
could be imputed to Mr. Garcia. [¶] You don’t
have a felony murder, you don’t have a natural
and probable consequences theory. He is
the actual shooter . . . by virtue of the jury
instructions. [¶] So I don’t think there is
anything elsewhere [by which] malice could
be imputed to him, so as a matter of law
he is ineligible for relief under 1172.6.”
Garcia appealed and we appointed counsel to represent him
on appeal. On November 14, 2023, counsel filed a brief stating
she had “reviewed the entire record and found no arguable
issues to raise on appeal.” Counsel stated “[a]n attorney at
the Los Angeles California Appellate Project has also reviewed
the record.” Counsel asked us to “exercise [our] discretion to
conduct an independent review of the record.” Counsel stated
she had sent the record and a copy of her brief to Garcia, and
had advised him he could file a supplemental brief.
On December 1, 2023, Garcia filed a supplemental brief.
Garcia states, “I’m in fact innocent of this alleged crime!” Garcia
attached several pages of what appears to be trial testimony:
People v. DeHuff (2021) 63 Cal.App.5th 428, 438 [§ 1172.6 is not
a direct appeal].)
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a witness (presumably Duvea) saying he didn’t see the shooter
“here in court” and a witness (presumably a forensic scientist)
saying there were “at least three contributors” of DNA on a gun.
Garcia claims his attorney in his direct appeal “failed [him]”
as, he says, did his counsel in this appeal.
DISCUSSION
Senate Bill No. 1437 (2017–2018 Reg. Sess.) (SB 1437)
eliminated the natural and probable consequences doctrine
as a basis for murder liability and limited the scope of the felony
murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis).)
Petitions for resentencing carry out the intent of SB 1437:
“to ensure that murder liability is not imposed on a person
who is not the actual killer, did not act with the intent to kill, or
was not a major participant in the underlying felony who acted
with reckless indifference to human life.” (Stats. 2018, ch. 1015,
§ 1, subd. (f); Lewis, at p. 967.) SB 1437 changed the elements
of murder by limiting the circumstances in which malice can
be implied. (People v. Solis (2020) 46 Cal.App.5th 762, 779.)
Petitions under section 1172.6, then, address convictions where
a defendant was not the killer, but was held vicariously liable
on one of several theories of liability identified in the statute.
Senate Bill No. 775 (2021–2022 Reg. Sess.), effective as of
January 1, 2022, extended resentencing eligibility to individuals
convicted of attempted murder under the natural and probable
consequences doctrine. (Stats. 2021, ch. 551, § 1, subd. (a).)
Section 1172.6 “applies by its terms only to attempted murders
based on the natural and probable consequences doctrine.”
(People v. Coley (2022) 77 Cal.App.5th 539, 548.)
In Delgadillo, our Supreme Court clarified the procedures
required in an appeal from the denial of a section 1172.6 petition
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where counsel finds no arguable issues: (1) “counsel should
file a brief informing the court of that determination, including
a concise recitation of the facts bearing on the denial of the
petition”; and (2) the defendant should be notified of his right
to file a supplemental brief. (Delgadillo, supra, 14 Cal.5th at
pp. 231–232.) If the defendant then files a supplemental brief,
“the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.
The filing of a supplemental brief or letter does not compel an
independent review of the entire record to identify unraised
issues.” (Id. at p. 232.)
Counsel’s Delgadillo brief notes Garcia’s jury “was
not instructed on felony murder, or natural and probable
consequences,” and “the trial court found as a matter of law
that” Garcia “was the actual shooter.” Nothing in the record
of conviction suggests there were two perpetrators. The People
charged Garcia as the sole and actual shooter, and the jury
convicted him on that basis. The record contains no allegation
of accomplice liability. Accordingly, the record of conviction
establishes Garcia is not entitled to relief as a matter of law.
(See, e.g., People v. Pickett (2023) 93 Cal.App.5th 982, 987,
989–990, 994, review granted Oct. 11, 2023, S281643 [affirming
summary denial of resentencing petition; defendant failed
to make a prima facie showing that he was eligible for relief;
preliminary hearing transcript demonstrated defendant acted
alone in killing the victim; there was no allegation or evidence
of an accomplice in the killing of the victim]; People v. Harden
(2022) 81 Cal.App.5th 45, 53–54, 56; People v. Myles (2021)
69 Cal.App.5th 688, 692–694 [affirming denial of resentencing
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because defendant, as actual killer was directly—not vicariously
—liable]; People v. Edwards (2020) 48 Cal.App.5th 666, 669,
671, 674 [affirming summary denial of resentencing petition
where record of conviction showed petitioner was actual killer].
Cf. Delgadillo, supra, 14 Cal.5th at p. 233 [defendant not entitled
to resentencing because he “was the actual killer and the only
participant in the killing”].)
For these reasons, we conclude the issue Garcia raises
lacks arguable merit. The trial court correctly ruled Garcia
did not show a prima facie case for relief. (See Lewis, supra,
11 Cal.5th at pp. 970–971.) As for Garcia’s claims that counsel
“failed” him, he did not file a motion to have his attorney in
his direct appeal removed, and the record in this resentencing
proceeding contains no evidence to support any assertion of
incompetence.
We have exercised our discretion to review the entire
record independently (Delgadillo, supra, 14 Cal.5th at
pp. 232–233 & fn. 6) and find no arguable issues on appeal.
We are satisfied Garcia’s counsel has fully complied with her
responsibilities and no arguable issues exist. (People v. Kelly
(2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25
Cal.3d 436, 441.)
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DISPOSITION
We affirm the order denying Roberto Carlos Garcia’s
petition for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
EDMON, P. J.
ADAMS, J.
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