People v. Garcia CA2/7

Filed 2/15/22 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, B307896
Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. VA070524-02)
v.
AVIU GARCIA,
Defendant and
Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Olivia Rosales, Judge. Reversed and
remanded with directions.
Dan E. Chambers, 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 Ivri and Thomas C. Hsieh,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________
Aviu Garcia, convicted in 2004 with Jacinto Perez Sanchez
of first degree murder with a felony-murder special-circumstance
finding, appeals the superior court’s denial of his petition for
resentencing pursuant to Penal Code section 1170.95 1 without
issuing an order to show cause and holding an evidentiary
hearing to determine his eligibility for relief. We agree with
Garcia that the court erred in concluding the jury found he had
actually fired the shot that killed Adrian Briones, making Garcia
ineligible for resentencing as a matter of law. We also reject the
Attorney General’s contentions the superior court’s error was
harmless because the jury’s special-circumstance finding, made
more than a decade before the Supreme Court’s decisions in
People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark), precluded Garcia’s petition
or, alternatively, the record of conviction, viewed in light of the
Banks/Clark factors, indisputably established Garcia had been a
major participant who acted with reckless indifference to human
life during the underlying attempted robbery and could still be
convicted of felony murder. We reverse the order denying
Garcia’s petition and remand with directions to issue an order to
show cause and to conduct further proceedings in accordance
with section 1170.95, subdivision (d).
1 Statutory references are to this code.
2
FACTUAL AND PROCEDURAL BACKGROUND
1. The Drug Deal, Attempted Robbery and Shooting
Garcia, Sanchez and Janet Cota were charged in an
information with murder (§ 187, subd. (a)), attempted robbery
(§§ 211, 664) and assault with a firearm (§ 245, subd. (a)(2)) with
a special-circumstance allegation the murder had occurred during
the commission of the attempted robbery (§ 190.2, subd. (a)(17)).
The information additionally alleged all three defendants had
personally used a handgun when committing felony murder and
attempted robbery (§ 12022.53, subd. (b)) and Sanchez had
personally and intentionally discharged a handgun proximately
causing Briones’s death (§ 12022.53, subds. (c) & (d)). It was
further alleged that Garcia had used a handgun (§ 12022.5,
subd. (a)) and personally inflicted great bodily injury on a second
victim, Roberto Farias. Cota pleaded guilty to attempted robbery
and admitted a firearm enhancement in a negotiated agreement
and testified at Garcia and Sanchez’s trial.
The prosecutor’s theory of the case, as outlined in the
information and described in his opening statement, was that
Sanchez fired the shot that killed Briones. By closing argument,
however, the prosecutor argued the evidence showed Garcia was
the shooter. Our opinion affirming the judgments of conviction,
reviewed by the superior court when considering Garcia’s
petition, described the evidence presented at the men’s joint trial.
(People v. Sanchez (July 18, 2005, B173340) [nonpub. opn.].)
Cota needed to make money while her husband was in jail.
Cota’s husband put her in touch with Farias, whom her husband
had met while incarcerated. Farias said Briones, Farias’s
nephew, would pay a finder’s fee for bringing him drug buyers.
Farias and Cota set up a drug deal with Sanchez and Garcia, who
3
agreed to purchase between 100 to 150 pounds of marijuana for
$300 to $330 per pound.
The day of the deal Sanchez and Garcia met Cota at a gas
station, and the three drove to Farias’s home. Farias, who
thought Cota was coming alone, spoke to Briones on the phone
and told him to come quickly because the buyers were there. At
Briones’s urging, Farias asked to see the money. Garcia and
Sanchez showed him a bag in the back of the car that appeared to
contain money wrapped in plastic. Sanchez said there was close
to $50,000 in the bag.
Before Briones arrived, Cota noticed a gun in the
waistband of Sanchez’s pants. She asked Sanchez to give it to
her so the deal could go forward. Sanchez gave Cota the gun,
which she put in her pocket. Although Briones was reluctant to
go through with the deal because Cota had not come alone, he
changed his mind when Sanchez showed him the bag of money
and asked to see “the merchandise.” Briones invited Sanchez to
go with him to the trailer behind Farias’s duplex where the
marijuana was stored.
Sanchez accompanied Briones to the trailer, bringing the
bag of money with him. They started weighing packages of
marijuana. Garcia backed the car into the driveway and down
near the trailer. Briones handed Garcia several packages, and
Garcia loaded them into the trunk of the car. By this time,
Farias and Cota had walked down the driveway and were
standing near Garcia. Briones told Garcia to stop loading any
more packages into the car until he counted the money. Sanchez
placed the money bag on the table. Briones picked up some bills
and started counting.
4
According to Farias, who was standing outside the trailer
door, Sanchez pulled out a gun, pointed it at Briones and said,
“You’re fucked. I’m taking everything.” Briones dropped the
money and reached for the gun. He grabbed Sanchez’s arm, and
the two men struggled. Briones had his back to the trailer door
during the struggle. Farias saw Garcia run by him, raise his gun
and point it at Briones. Farias tried to grab Garcia’s hands.
Farias felt something hit his hand and went down to the ground.
He later realized he had been shot. Once on the ground Farias
shielded his face with his hands. He was shot two more times,
once in the arm and once in the stomach. He did not know who
shot Briones.
Cota’s narrative differed from Farias’s. She testified she
had been back near the trailer when the men were loading
packages into the trunk. She, Garcia and Farias then walked to
the front yard of Farias’s home. When they heard a shot, they
ran back to the trailer.2 Farias, who arrived first, got up on the
step and looked inside the trailer. He then turned around and
jumped on top of Garcia. Garcia, who was holding a gun, fired a
shot. (Cota said she only heard a total of two shots.) Sanchez ran
out of the trailer; and he, Garcia and Cota ran to the car.
Cota did not see a gun in Sanchez’s hand as he left the
trailer, but she saw him holding a gun when they were in the car.
(Cota still had the gun Sanchez had given her earlier. Garcia and
Sanchez told her to take that gun home with her.) Sanchez said
everything had gone badly and he had left the money behind.
Briones died as a result of a gunshot wound. According to a
deputy medical examiner, Briones was shot in the back from a
2 Faustino Farias, Roberto Farias’s brother, testified he saw
Cota back by the trailer before any shots were fired.
5
distance of more than two or three feet. The bullet traveled
through his body at an upward angle. A supervisor from the
firearms identification section of the sheriff’s department
testified three .38 caliber shell casings found at the scene were
fired from the same gun.3
The jury convicted Garcia and Sanchez of first degree
murder, attempted robbery and assault with a firearm, found
true the felony-murder special-circumstance allegation and, as to
Garcia, also found true the firearm-use and great bodily injury
enhancements with respect to the aggravated assault charge.
The jury found not true the allegations Sanchez had personally
and intentionally discharged a firearm during the attempted
robbery and felony murder. The court sentenced both men to life
without parole for murder plus determinate terms for the
additional charges and enhancements.
We affirmed the judgments on appeal, rejecting Garcia’s
arguments there was insufficient evidence to support his
convictions and the trial court had erred in failing to instruct sua
sponte on self-defense and voluntary manslaughter as a lesser
included offense of murder. We also found no merit to Garcia’s
claim of prosecutorial misconduct based on the inconsistency
between the information, which alleged Sanchez had been the
shooter, and the prosecutor’s closing argument in which he told
the jury Garcia had been the shooter. (People v. Sanchez, supra,
B173340.)
3 Two of the shell casings were found outside the trailer and
one inside it.
6
2. Garcia’s Petition for Resentencing
On February 25, 2019 Garcia, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel to represent him in the resentencing
proceedings. Garcia checked boxes on the printed form petition
to establish his eligibility for resentencing relief, including the
boxes stating he had been convicted under a felony-murder
theory and could not now be convicted of first or second degree
murder because of changes made to sections 188 and 189 by
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437). The superior court appointed
counsel to represent Garcia.4
The prosecutor filed a response to the resentencing petition
contending Garcia was ineligible for resentencing under
section 1170.95 based, in part, on the jury’s special-circumstance
finding. The prosecutor attached as an exhibit a copy of our
opinion affirming Garcia’s judgment of conviction. Garcia’s
appointed counsel filed a reply memorandum. The prosecution
then filed a supplemental opposition, again arguing Garcia had
failed to carry his prima facie burden, now arguing the record of
conviction showed Garcia was the actual killer; he was a major
participant in the underlying attempted robbery who had acted
with reckless indifference to human life; and he had acted with
implied malice, which continued to be a valid basis for a murder
conviction. Garcia’s counsel filed a further response, challenging
the evidentiary basis for the prosecutor’s arguments; and the
prosecutor filed yet another supplemental response.
4 Judge Robert J. Higa presided at Garcia and Sanchez’s
2004 trial. Judge Higa retired prior to the filing of Garcia’s
petition. The matter was assigned to Judge Olivia Rosales.
7
The superior court heard argument on August 7, 2020 and,
after taking the matter under submission, on August 10, 2020
issued a memorandum decision denying Garcia’s petition.
Explaining its ruling, the court stated, “In this case, [Garcia] was
convicted of first degree murder and the jury found true the
special circumstance that the murder was committed in
furtherance of a felony. The jury also found true that [Garcia]
personally used a firearm in committing the murder charge as
well as committing the assault charge in count III. [Garcia]
armed himself with the firearm to attempt to rob drug dealers of
over 100 pounds of marijuana. The jury found [Garcia] actually
fired the gun and shot victim Briones. [Garcia] has failed to
make a prima facie case for relief under Penal Code
section 1170.05, subdivision (c).”
Garcia filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 substantially modified the law relating to
accomplice liability for murder, eliminating the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843
(Gentile)) and significantly narrowing the felony-murder
exception to the malice requirement for murder. (§§ 188,
subd. (a)(3), 189, subd. (e); see People v. Lewis (2021) 11 Cal.5th
952, 957 (Lewis).)5 It also authorized, through new
5 As amended by Senate Bill No. 775 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 551, § 2), effective January 1, 2022, the
ameliorative provisions of Senate Bill 1437 now also apply to
attempted murder and voluntary manslaughter.
8
section 1170.95, an individual convicted of felony murder or
murder based on the natural and probable consequences doctrine
to petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Lewis, at p. 957; Gentile, at
p. 843.)
If the section 1170.95 petition contains all the required
information, including a declaration by the petitioner that he or
she is eligible for relief (§ 1170.95, subd. (b)(1)(A)), the court must
appoint counsel to represent the petitioner, if requested
(§ 1170.95, subd. (b)(3)),6 and direct the prosecutor to file a
response to the petition, permit the petitioner to file a reply and
determine if the petitioner has made a prima facie showing that
he or she is entitled to relief. (§ 1170.95, subd. (c); see Lewis,
supra, 11 Cal.5th at pp. 962-963.)
In determining whether the petitioner has carried the
burden of making the requisite prima facie showing he or she
falls within the provisions of section 1170.95 and is entitled to
relief, the superior court properly examines the record of
conviction, “allowing the court to distinguish petitions with
potential merit from those that are clearly meritless.” (Lewis,
supra, 11 Cal.5th at p. 971.) However, “the prima facie inquiry
under subdivision (c) is limited. Like the analogous prima facie
inquiry in habeas corpus proceedings, the court takes petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
6 Prior to enactment of Senate Bill No. 775 the requirement
to appoint counsel was set forth in subdivision (c) of
section 1170.95.
9
or her factual allegations were proved. If so, the court must issue
an order to show cause. . . . However, if the record, including the
court’s own documents, contain[s] facts refuting the allegations
made in the petition, then the court is justified in making a
credibility determination adverse to the petitioner.” (Id. at
pp. 970-971, internal quotation marks omitted.)
If the section 1170.95, subdivision (c), prima facie showing
has been made, the court must issue an order to show cause and
hold an evidentiary hearing to determine whether to vacate the
murder conviction and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3).)7 The prosecutor and petitioner may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens. (See Gentile, supra, 10 Cal.5th at
pp. 853-854.)
7 As amended by Senate Bill No. 775, section 1170.95,
subdivision (d)(3), now clarifies, “A finding that there is
substantial evidence to support a conviction for murder,
attempted murder, or manslaughter is insufficient to prove,
beyond a reasonable doubt, that the petitioner is ineligible for
resentencing.”
10
2. Section 189, Subdivision (e), and the Narrowed Felony-
murder Rule
At the time of Garcia and Sanchez’s trial section 189
permitted a conviction for felony murder by imputing malice to a
participant in an inherently dangerous felony, including
attempted robbery, that resulted in a homicide. (See People v.
Chun (2009) 45 Cal.4th 1172, 1184.) As amended by Senate
Bill 1437, section 188, subdivision (a)(3), now prohibits imputing
malice based solely on an individual’s participation in a crime
and requires proof of malice to convict a principal of murder
except under the revised felony-murder rule as set forth in
section 189, subdivision (e), which requires proof of specific facts
relating to the defendant’s individual culpability: The defendant
was the actual killer (§ 189, subd. (e)(1)); although not the actual
killer, the defendant, with the intent to kill, assisted in the
commission of the murder (§ 189, subd. (e)(2)); or the defendant
was a major participant in an underlying felony listed in
section 189, subdivision (a), and acted with reckless indifference
to human life, “as described in subdivision (d) of Section 190.2,”
the felony-murder special-circumstance provision (§ 189,
subd. (e)(3)).
The overlapping factors for assessing whether a defendant
was a major participant in an underlying serious felony and acted
with reckless indifference to human life for purposes of
section 190.2, subdivision (d), and thus for new section 189,
subdivision (e)(3), were identified by the Supreme Court in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522,
and reiterated most recently in In re Scoggins (2020) 9 Cal.5th
667 (Scoggins). As to whether the defendant was a major
participant in one of the specified felonies, the Banks Court listed
11
the following factors: “What role did the defendant have in
planning the criminal enterprise that led to one or more deaths?
What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?” (Banks, at p. 803,
fn. omitted.)
As to whether a defendant acted with reckless indifference
to human life, the Supreme Court has enumerated the following
factors: “Did the defendant use or know that a gun would be used
during the felony? How many weapons were ultimately used?
Was the defendant physically present at the crime? Did he or she
have the opportunity to restrain the crime or aid the victim?
What was the duration of the interaction between the
perpetrators of the felony and the victims? What was the
defendant’s knowledge of his or her confederate’s propensity for
violence or likelihood of using lethal force? What efforts did the
defendant make to minimize the risks of violence during the
felony?” (Scoggins, supra, 9 Cal.5th at p. 677; accord, Clark,
supra, 63 Cal.4th at pp. 618-622.) “‘“[N]o one of these
considerations is necessary, nor is any one of them necessarily
sufficient.”’” (Scoggins, at p. 677; accord, Banks, supra,
61 Cal.4th at p. 803.)
As the Scoggins Court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins, supra,
12
9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808
[“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire that
death as the outcome of his actions.’” (Scoggins, at pp. 676- 677,
quoting Clark, supra, 63 Cal.4th at p. 617.)
3. The Superior Court Erred in Denying Garcia’s Petition
Without Issuing an Order To Show Cause
a. The jury’s pre-Banks/Clark felony-murder special-
circumstance finding does not preclude relief as a
matter of law
In People v. Harris (2021) 60 Cal.App.5th 939, 954-958,
review granted April 28, 2021, S267802, we rejected the
argument a jury’s pre-Banks/Clark felony-murder special-
circumstance finding precludes relief under section 1170.95
absent a successful challenge to the evidentiary support for the
finding through a petition for writ of habeas corpus, the Attorney
General’s principal ground for arguing any error in the superior
court’s denial of Garcia’s petition for resentencing was harmless.
We also held in Harris, although a pre-Banks/Clark jury would
have been instructed it had to find the defendant was a major
participant in the underlying felony that led to the victim’s death
while acting with reckless indifference to human life to find the
felony-murder special-circumstance allegations true, the
elements now found in section 189, subdivision (e)(3), such a pre-
Banks/Clark finding, without more, does not preclude relief under
section 1170.95. (Harris, at p. 957; see Scoggins, supra, 9 Cal.5th
at pp. 673-674 [“[w]here a decision clarifies the kind of conduct
13
proscribed by a statute, a defendant whose conviction became
final before that decision ‘is entitled to post-conviction relief upon
a showing that his [or her] conduct was not prohibited by the
statute’ as construed in the decision”]; People v. Secrease (2021)
63 Cal.App.5th 231, 256, review granted June 30, 2021, S268862
[“[A] jury’s pre-Banks and Clark special circumstance
determination cannot, by itself, defeat the allegations of
Secrease’s petition as a matter of law. There must also be a
judicial determination of the sufficiency of the evidence to
support that determination, and Secrease is entitled to have it
made in a section 1170.95 proceeding—under current law”].) The
Attorney General contends Harris was incorrectly decided but
has presented no persuasive reason for us to modify our view on
this issue.8
b. The record of conviction does not establish Garcia is
ineligible for resentencing as a matter of law
i. Was Garcia the actual killer?
As we explained in rejecting Garcia’s challenge to the
sufficiency of the evidence to support his convictions, “The
evidence indicated Garcia was the one who shot Briones in the
back.” Yet we also stated, in holding the trial court did not abuse
its discretion in denying Sanchez’s motion for acquittal as to the
section 12022.53, subdivisions (c) and (d), enhancement
allegations (which alleged Sanchez, not Garcia, had fired the
8 Whether a felony-murder special-circumstance finding
made before Banks, supra, 61 Cal.4th 788 and Clark, supra,
63 Cal.4th 522 precludes a defendant from making a prima facie
showing of eligibility for relief under section 1170.95 is pending
before the Supreme Court in People v. Strong, review granted
March 10, 2021, S266606.
14
fatal shot), “Although the prosecutor unequivocally stated his
belief Garcia was the shooter, there was still evidence from which
the jury could reasonably find Sanchez was the one who shot and
killed Briones. The fatal bullet could have been discharged from
the weapon Sanchez pulled on Briones during their struggle.” It
was error, therefore, for the superior court to conclude when
making the limited prima facie inquiry pursuant to
section 1170.95, subdivision (c), that Garcia was the actual
shooter and could still be convicted of felony murder under
section 189, subdivision (e)(1).
ii. Did Garcia act with reckless indifference to human
life?
Although the jury’s pre-Banks/Clark felony-murder special-
circumstance findings, standing alone, do not preclude
resentencing under section 1170.95, before it issued an order to
show cause, the superior court was authorized to review the
record of conviction to determine whether Garcia was ineligible
for resentencing under section 1170.95 as a matter of law.
(See Lewis, supra, 11 Cal.5th at p. 971.) As a general matter,
however, determining whether an aider and abettor was a major
participant in the underlying felony who acted with a reckless
indifference to human life is a fact-intensive inquiry, properly
performed by the trier of fact following issuance of an order to
show cause and an evidentiary hearing. (Cf. Scoggins, supra,
9 Cal.5th at p. 683 [determining whether a defendant was a
major participant in an underlying felony who acted with
reckless indifference to life within the meaning of the special-
circumstance statute “requires a fact-intensive, individualized
inquiry”]; In re Parrish (2020) 58 Cal.App.5th 539, 542 [Supreme
Court has prescribed “a fact-intensive and individualized inquiry”
15
to determine whether the evidence demonstrates reckless
indifference and major participation].)
Here, contrary to the Attorney General’s argument on
appeal, although there is certainly evidence Garcia could still be
convicted of murder under the felony-murder rule, the record of
conviction does not establish as a matter of law—that is, without
weighing the evidence and engaging in factfinding—that, if not
the actual shooter, Garcia nonetheless is ineligible for
resentencing as a major participant in the attempted robbery
who acted with reckless indifference to human life. (See Lewis,
supra, 11 Cal.5th at p. 974 [“at the prima facie stage, a
petitioner’s allegations should be accepted as true, and the court
should not make credibility determinations or engage in
‘factfinding involving the weighing of evidence or the exercise of
discretion’”]; People v. Duchine (2021) 60 Cal.App.5th 798, 815
[“the time for weighing and balancing and making findings on the
ultimate issues arises at the evidentiary hearing stage rather
than the prima facie stage, at least where the record is not
dispositive on the factual issues”].)
To be sure, both Garcia and Sanchez arrived at the scene of
the drug deal armed (Sanchez apparently came with at least
two guns), and it is a reasonable inference they planned to rob
the dealers from the outset—a crime that could likely escalate
into violence. Garcia remained present at the scene of the killing;
and he did nothing after Briones was shot to aid the victim,
fleeing with Sanchez and Cota. All those factors would tend to
support a finding of reckless indifference as defined in Banks and
Clark. But it was Sanchez, not Garcia, who initially used his
firearm, pointing it at Briones and crudely announcing the
robbery. Sanchez’s actions, not Garcia’s, precipitated the
16
struggle among Briones, Farias, Sanchez and Garcia,
culminating in Briones’s death. Displaying a gun might well
have been intended and understood only as a show of force, not as
an inevitable prelude to a deadly encounter. (See Clark, supra,
63 Cal.4th at p. 618 [“while the fact that a robbery involves a gun
is a factor beyond the bare statutory requirements for first degree
robbery felony murder, this mere fact, on its own and with
nothing more presented, is not sufficient to support a finding of
reckless indifference to human life for the felony-murder aider
and abettor special circumstance”].)
Simply put, determining the evidence in the trial record
proves beyond a reasonable doubt that Garcia was the actual
killer or, if not, he acted during the attempted robbery with
reckless indifference to life, requires a weighing of the evidence—
factfinding—not permitted at the prima facie stage of the
section 1170.95 process. Inferences from the evidence, even if
reasonable, are not properly made before issuance of an order to
show cause and an evidentiary hearing pursuant to
section 1170.95, subdivision (d).
DISPOSITION
The postjudgment order denying Garcia’s section 1170.95
petition is reversed. On remand the superior court is to issue an
order to show cause and to conduct further proceedings in
accordance with section 1170.95, subdivision (d).
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
17