People v. Garcia CA4/1

Filed 1/30/23 P. v. Garcia CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080080
Plaintiff and Respondent,
v. (Super. Ct. No. INF1700208)
ROBERT GARCIA, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Dale R. Wells, Judge. Remanded for resentencing.
Ronda G. Norris, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Andrew
Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant Robert Garcia, Jr. drove two passengers to Palm Springs in
his sedan after smoking methamphetamine. He made a left turn as the light
was changing, ignoring his passengers’ pleas to stop. An oncoming vehicle
crashed into his sedan as he turned, killing his front seat passenger. Garcia
was unharmed, but his backseat passenger and the occupants of the
oncoming vehicle sustained injuries. Based on these events, a jury convicted
Garcia of second degree murder (Pen. Code, § 187, subd. (a)) and driving
under the influence causing bodily injury.1 Rejecting his request for
probation, the court sentenced him to concurrent prison terms of seven years
and 15 years to life.
On appeal Garcia contends the court violated Evidence Code section
352 in permitting the People to introduce prior act evidence from the 1980s to
show implied malice. He argues this evidence was remote as well as
cumulative where a later 2011 conviction and Watson advisement came in.
Because the evidence of implied malice was overwhelming, we reject this
claim, finding any evidentiary error harmless. Garcia next asks us to revisit
the Watson murder doctrine, a request we readily reject in our role as an
intermediate appellate court. Finally, Garcia raises two challenges
pertaining to his sentence. We conclude that recent amendments to the
Determinate Sentencing Law (DSL) (§ 1170, subd. (b)) made by Assembly Bill
No. 124 (Stats. 2021, ch. 695, § 5.3, effect. Jan. 1, 2022) require remand for
resentencing so that the trial court can consider whether to impose a
presumptive lower term on count 2. Garcia can direct his request for a
1 Implied malice murder involving drunk driving is colloquially “known
as a Watson murder” (People v. Wolfe (2018) 20 Cal.App.5th 673, 677 (Wolfe)),
based on the Supreme Court’s opinion in People v. Watson (1981) 30 Cal.3d
290, 301 (Watson).
Further undesignated statutory references are to the Penal Code.
2
diagnostic report under section 1203.03 to the trial court in the first instance.
Accordingly, we remand for resentencing and in all other respects affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 29, 2017, Garcia stayed up all night smoking
methamphetamine with his friend T.O. Garcia was a daily
methamphetamine user and the two would regularly smoke together. The
next morning, Cesar Z. and Keyon P. came to T.O.’s home and asked Garcia if
he could drive them to Home Depot in Palm Springs to return a garbage
disposal. The group smoked methamphetamine together and got high.
Garcia then got behind the wheel of his Ford Taurus sedan, with Keyon in
the front passenger seat and Cesar in the backseat behind Keyon. T.O. did
not join the trio but described Garcia as behaving “normal like he always is”
when he got behind the wheel.
As Garcia approached Palm Springs on Route 62, he swerved or drifted
out of his lane two or three times. Cesar asked if he was feeling okay and
offered to drive. Garcia refused, saying no one else could drive his car. In
Palm Springs, Garcia got lost trying to locate Home Depot. Ignoring Cesar
and Keyon’s directions, he missed a turn as he was driving south on North
Sunrise Way. Approaching the next intersection—East Amado Rd.—Garcia
failed to slow down at a yellow or red light and proceeded at full speed to turn
left in front of oncoming traffic. Keyon and Cesar yelled at Garcia to stop,
asking, “What’s wrong with you?” and exclaiming, “[Y]ou’re gonna get hit by
the car.” Although the light was yellow or red, Garcia “still wasn’t stopping
. . . [or] even showing signs of slowing down.”
At that moment, Michael E. was approaching the intersection traveling
north on North Sunrise Way. He was driving a GMC Yukon sports utility
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vehicle with Michael D. in the front passenger seat. Seeing the light turn
green, he accelerated toward the intersection. He did not see Garcia’s sedan
turn left until it was too late. The Yukon smashed into the Taurus’s front
passenger door, killing Keyon. Cesar’s leg got caught as he tried leaping
toward the driver’s side of the backseat seconds before the collision. As the
parties would stipulate at trial, Keyon died of multiple blunt force traumatic
injuries from the collision, Cesar suffered great bodily injury, and Michael E.
and Michael D. each suffered bodily injuries.
Responding officers spoke to Garcia, observed signs of impairment, and
conducted field sobriety tests. Garcia had droopy eyelids and constricted
pupils. He performed poorly on the walk-and-turn test and finger-to-nose
test, leading officers to conclude he was under the influence and could not
safely operate a vehicle. A more detailed evaluation by a drug recognition
expert in a controlled setting at the police station confirmed these findings.
Garcia’s eyelid tremors suggested stimulant use, and he had slow, slurred
speech. Garcia claimed to have taken Tramadol and smoked marijuana that
day. He knew he was not supposed to drive after consuming either
substance. As he told Palm Springs Patrol Sergeant Kevin Lu, driving under
the influence of those substances could affect his senses and response time,
resulting in possible collision and death.
A search warrant was issued for a blood sample, which indicated 102
nanograms per milliliter of methamphetamine and 27 nanograms per
milliliter of amphetamine, a metabolite, in Garcia’s system. Although
methamphetamine is a stimulant that causes hyperactivity, during the crash
phase a user experiences slowness in movement and speech and exhibits
balance and coordination issues. Some stimulant effects of
methamphetamine such as eyelid tremors may still be present during the
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crash phase. Officers initially suspected that Garcia was under the influence
of a narcotic analgesic, like the Tramadol he claimed to be taking, but lab
results led them to conclude he was instead experiencing the downside effects
of methamphetamine use.
The Riverside County District Attorney charged Garcia by information
with second degree murder of Keyon (§ 187, subd. (a), count 1) and driving
under the influence causing bodily injury (Veh. Code, § 23153, subd. (f),
count 2).2 As to count 2, it was alleged that Garcia personally inflicted great
bodily injury on Cesar (Pen. Code, §12022.7, subd. (a)) and proximately
caused bodily injury to Michael E. and Michael D. (Veh. Code, § 23558).3 The
jury convicted Garcia as charged and found all allegations true. The court
sentenced him to an indeterminate term of 15 years to life on count 1. On
count 2, it imposed a concurrent determinate sentence of seven years,
consisting of the two-year middle term for driving under the influence
(§ 1170, subd. (h)), three years for the great bodily injury enhancement, and
two one-year terms for each bodily injury enhancement.
2 As Garcia notes on appeal, the information incorrectly cited subdivision
(e) rather than subdivision (f) of Vehicle Code section 23153. Vehicle Code
section 23153, subdivision (f) prohibits any person while under the influence
of any drug to drive negligently, causing bodily injury to any person other
than the driver.
3 Section 12022.7, subdivision (a) adds a three-year consecutive prison
term for “[a]ny person who personally inflicts great bodily injury on any
person other than an accomplice in the commission of a felony or attempted
felony . . . .” Where properly pleaded and proven, the one-year enhancement
attaches to a “person who proximately causes bodily injury or death to more
than one victim in any one instance of driving in violation of Section 23153 of
[the Vehicle Code].” (Veh. Code, § 23558.)
5
DISCUSSION
On appeal, Garcia urges us to find evidentiary error and revisit the
Watson murder doctrine of implied malice. We reject both contentions. But
we accept his claim that recent amendments to the DSL require remand for
resentencing, where the effects of his 1993 traumatic brain injury can be
more fully considered.
A. Any error in admitting remote or cumulative DUI cases from the 1980s
was harmless.
Garcia challenges as remote and cumulative evidence of past driving-
under-the-influence (DUI) arrests from the 1980s, which the prosecution
introduced to establish implied malice. As we explain, even assuming the
court erred in admitting one or more of these prior acts, there is no
reasonable probability it affected the outcome where evidence of implied
malice was overwhelming.
1. Additional Background
Before trial, the People filed a motion in limine to admit evidence that
Garcia had four prior law enforcement contacts relating to DUIs. Three
incidents took place in the 1980s, while a fourth happened in 2010. The
prosecution maintained that this evidence was admissible under Evidence
Code section 1101, subdivision (b) to prove Garcia had the requisite
knowledge that the natural consequences of his impaired driving were
dangerous to human life.
Defense counsel moved to exclude the 1980s incidents under Evidence
Code section 352. While Garcia was advised in pleading guilty in 2011 about
the dangers of impaired driving, counsel maintained there was no
nonspeculative way to determine what he had learned from decades-old
incidents (particularly the one resulting in acquittal). To the extent the court
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was inclined to admit this evidence, counsel sought to introduce it by
stipulation to minimize its prejudicial effect. The People agreed to introduce
this prior act evidence by stipulation. Ultimately the court ruled that the
prosecution could introduce by stipulation evidence of all four of Garcia’s past
DUI incidents to show that he possessed the requisite mental state for
Watson murder.
Midway through trial, several stipulations were read to the jury. In
1986, Garcia was acquitted of driving while intoxicated in North Carolina,
but he received a reprimand from his military commanding officer. In 1987,
he was again charged but this time convicted of driving while intoxicated in
North Carolina, reprimanded by his commanding officer, and ordered to
enroll in drug and alcohol traffic school. Garcia received a second conviction
in 1989, this time arising out of a DUI hit-and-run accident that caused
injury in Santa Barbara. Finally, Garcia was convicted of a DUI in 2011,
placed on probation, and ordered to attend a three-month drinking and
driving education program. He acknowledged in a written statement that
“ ‘ “being under the influence of alcohol or drugs or both, impairs my ability to
safely operate a motor vehicle.” ’ ” By initialing, Garcia said he understood
that “ ‘ “it is extremely dangerous to human life to drive while under the
influence of alcohol or drugs or both” ’ ” and that continuing “ ‘ “to drive while
under the influence of alcohol or drugs or both” ’ ” could result in murder
charges if “ ‘ “as a result of that driving someone is killed.” ’ ”
The prosecutor highlighted the 2011 Watson advisement during her
closing argument, stating Garcia knew in initialing this statement after his
fourth DUI arrest that driving under the influence was extremely dangerous
to human life. Nevertheless, he consciously disregarded that risk by staying
up all night doing methamphetamine and getting behind the wheel. He
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further ignored the known risk to human life in refusing Cesar’s offer to drive
as he swerved and drifted across lanes, and in ignoring pleas from his
passengers to stop rather than turn left as the traffic light changed color.
Given Garcia’s past driving history—in particular, the hit-and-run in 1989
and the Watson advisement he initialed in 2011—the prosecutor argued that
Garcia knew the consequences of impaired driving. Garcia admitted as much
to the responding officer, saying he knew well enough not to drive under the
influence of marijuana and Tramadol, which by extension suggested he knew
not to drive under the influence of methamphetamine.
Defense counsel, by contrast, argued to the jury that Garcia did not
swerve or drive erratically until getting lost in Palm Springs. In the
defense’s view, Garcia’s mannerisms in speaking with responding law
enforcement officers did not suggest he was on the downside of a
methamphetamine high. Looking to the totality of the circumstances,
counsel suggested there was evidence Garcia suffered a prior traumatic brain
injury and could not remember what happened back in 2011. Counsel asked:
“Has the prosecution proven beyond a reasonable doubt that that unfortunate
left turn on the yellow was due to impairment? Is it reasonable based on the
state of the evidence that that could have been due to his head injury
previously in 1993? If you don’t know the answer to that, that’s reasonable
doubt.”
In rebuttal, the prosecutor remarked that this case was not about
“ ‘[a]n unfortunate left turn’ ” but rather about “a man who was arrested for
driving under the influence for the fifth time after he was explicitly told not
to do this.” Despite Garcia’s history of being in a collision while under the
influence and receiving an explicit Watson advisement, she maintained that
Garcia refused to take responsibility for what he knew in getting behind the
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wheel. She reminded jurors to not “forget this is his [fifth] time he’s been
arrested for DUI.” “The defendant has been told over and over again that he
can’t do this. But he still chooses to drive while under the influence. He
knows the risks. He told Sergeant Lu all about them.” “He’d been in a
collision while driving under the influence before he’d spent time in jail.
Taken at least three DUI education courses and then we’ve got that written
admonishment. He knew what he was doing. He knew the risk he was
creating, and he just didn’t care.” Indeed Garcia “chose to stay behind the
wheel when someone else offered to drive.” As to Garcia’s 1993 head injury,
the prosecutor noted that the injury did not stop him from being convicted in
2011 of another DUI.
The jury was given a limiting instruction that it could consider the
prior DUIs if proven by a preponderance of the evidence solely to decide
whether Garcia “knew that driving under the influence of drugs or alcohol or
both is dangerous to human life” or to conclude that his “alleged actions were
not the result of mistake or accident.” (CALCRIM No. 375.) The court
directed the jury not to consider the prior act evidence for any other purpose.
(Ibid.)
2. Applicable Legal Principles
As a rule, prior act evidence is admissible where it is relevant to prove
some fact other than propensity, “such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident.”
(Evid. Code, § 1101, subds. (a)−(b).) Garcia was charged with Watson
murder, which rests on a theory of implied malice. (Watson, supra, 30 Cal.3d
at pp. 300−301; Pen. Code, §§ 187, 188; see CALCRIM No. 520.) “ ‘Malice is
implied when an unlawful killing results from a willful act, the natural and
probable consequences of which are dangerous to human life, performed with
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conscious disregard for that danger.’ ” (Wolfe, supra, 20 Cal.App.5th at
p. 681.) Unlike gross negligence, implied malice “depends upon a
determination that the defendant actually appreciated the risk involved, i.e.,
a subjective standard.” (Watson, at pp. 296−297.) As one court put it, “the
state of mind of a person who acts with conscious disregard for life [i.e.,
implied malice] is, ‘I know my conduct is dangerous to others, but I don’t care
if someone is hurt or killed.’ The state of mind of the person who acts with
conscious indifferences to the consequences [i.e., gross negligence] is simply,
‘I don’t care what happens.’ ” (People v. Olivas (1985) 172 Cal.App.3d 984,
987−988 (Olivas).)
Although implied malice requires actual awareness of the risk created,
it does not require proof “by an admission or other direct evidence of the
defendant’s mental state.” (People v. Superior Court (Costa) (2010) 183
Cal.App.4th 690, 697.) “[L]ike all other elements of a crime, implied malice
may be proven by circumstantial evidence.” (Ibid.) Past DUI convictions,
courses, and advisements have been admitted for this purpose. (See Wolfe,
supra, 20 Cal.App.5th at pp. 677, 683 [20-year-old prior conviction for DUI
followed by impaired driving class, as well as five-year-old attestation during
license renewal].) Circumstantial evidence of implied malice may also be
found from the nature of the incident itself. (Id. at pp. 683−684 [inability to
stay in her lane, flight from the scene, and circumstances of the collision];
Olivas, supra, 172 Cal.App.3d at pp. 987−988 [speeding, collision with one car
and near misses with two others, and deliberate avoidance of pursuing
officers]; Watson, supra, 30 Cal.3d at p. 301 [speeding, running a red light,
and near miss with another vehicle before colliding with the victim’s car].)
“Regardless of its probative value, evidence relating to other crimes
always creates a risk of serious prejudice.” (People v. Brogna (1988) 202
10
Cal.App.3d 700, 709.) Under Evidence Code section 352, the court may
exclude prior act evidence if its prejudicial effect substantially outweighs the
probative value. (Ibid.) Prior act evidence is unduly prejudicial where it
uniquely tends to evoke an emotional bias against the defendant or causes
the jury to prejudge the defendant on extraneous factors. (People v. Foster
(2010) 50 Cal.4th 1301, 1331.) We review a trial court’s evidentiary rulings
under Evidence Code sections 1101 and 352 for abuse of discretion. (Id. at
p. 1328.) Any error is harmless if there is no reasonable likelihood that it
affected the outcome. (See People v. Thomas (2011) 52 Cal.4th 336, 356,
fn. 20 (Thomas) [applying the harmless error standard of People v. Watson
(1956) 46 Cal.2d 818, 836 to rulings under Evidence Code section 1101].)
3. Analysis
Garcia argues that the decades-old DUI incidents from the 1980s
should have been excluded under Evidence Code section 352. (See People v.
Harris (1998) 60 Cal.App.4th 727, 739 [remoteness of 23-year-old prior
conviction weighed toward exclusion].) While acknowledging that there is no
clear time cutoff for remoteness (see ibid.), he notes that prior act evidence
admissible to show propensity under Evidence Code section 1109 must be less
than 10 years old. (Evid. Code, § 1109, subd. (e).) While a high degree of
similarity between incidents may balance out remoteness concerns (see
People v. Hernandez (2011) 200 Cal.App.4th 953, 968), Garcia notes that his
prior DUIs all involved alcohol, not methamphetamine. The People respond
that remoteness of prior act evidence generally affects weight, not
admissibility. (People v. Caitlin (2001) 26 Cal.4th 81, 127.) They further
suggest that a remoteness argument in introducing decades-old convictions is
undermined by Garcia’s failure to lead a blameless life thereafter given his
conviction in 2011. (See Harris, at p. 739.)
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Beyond remoteness, Garcia deems the 1980s evidence cumulative given
ample other evidence demonstrating his knowledge that impaired driving
was dangerous to life. Defense counsel conceded that the 2011 DUI
conviction and Watson advisement was relevant and admissible to prove
Garcia’s mental state. The jury additionally heard Garcia’s statements to
officers after his arrest. The People by contrast suggest that the admission of
other evidence tending to show Garcia’s mental state did not alone render the
1980s evidence cumulative. Moreover, where the evidence was presented to
the jury in the form of a stipulation, it “did not consume much time and was
no more inflammatory than the other evidence presented at trial.”
Garcia questions how a 1986 acquittal of driving under the influence
was probative of his mental state decades later. To this, the People cite
People v. Garcia (1995) 41 Cal.App.4th 1832, which at page 1849 found no
abuse of discretion in admitting evidence of three prior DUI arrests where
only one led to conviction.
As we explain, we need not decide whether admitting evidence of
Garcia’s three prior DUI arrests from the 1980s was an abuse of discretion
under Evidence Code section 352. Assuming the court erred in failing to
exclude one or more of these prior acts, the error was harmless.
The main question at trial was whether Garcia possessed the requisite
knowledge that driving under the influence of drugs was dangerous to human
life as he got behind the wheel, and if he consciously disregarded that risk.
Blood tests revealed methamphetamine in Garcia’s system, and trial
testimony confirmed that Garcia was a daily user who had smoked the
morning of the collision and the night before. The defense did not challenge
the admission of his 2011 DUI conviction, or the Watson advisement that
spoke directly to his knowledge that driving under the influence of drugs or
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alcohol was extremely dangerous to human life. As Garcia approached Palm
Springs on Route 62, he drifted out of his lane two or three times, causing
Cesar to offer to drive. Ignoring his passengers’ pleas to stop, Garcia
ploughed through a yellow or red light without breaking to turn left. After
the crash, Garcia told responding law enforcement that he knew driving
under the influence of marijuana or Tramadol could affect his senses and
response time and result in a collision or death.
Simply put, the strongest evidence of malice came from the 2011
Watson advisement, his driving behavior and postaccident admissions that
day, and his response to Cesar and Keyon’s pleas—evidence to which no
admissibility challenge is raised. Prior act evidence was offered by
stipulation to minimize its prejudicial effect. Although the prosecutor
repeatedly highlighted Garcia’s multiple DUI priors during her closing
argument, she tied this evidence to the question of whether he acted with
implied malice, and the jury was given an appropriate limiting instruction.
On this record, we are persuaded that despite the remoteness or
cumulativeness concerns raised by Garcia, there is no reasonable likelihood
he would have obtained a more favorable outcome had the 1980s DUI
evidence been excluded from trial.
B. We Cannot Reconsider Watson.
Maintaining we are “ ‘bound but not gagged’ ” by California Supreme
Court precedent, Garcia urges us to reconsider the Watson murder doctrine of
implied malice, suggesting that impaired drivers should instead face
punishment for gross vehicular manslaughter while intoxicated. As an
intermediate appellate court, we need not dwell on this argument. The
Supreme Court’s 1981 ruling in Watson remains binding precedent, and
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Garcia offers no reasoned basis to depart from it. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
C. Resentencing Is Required
Evidence at trial and sentencing suggested Garcia suffered a traumatic
brain injury in 1993 that may have contributed to the collision. When he was
sentenced in November 2021, the court had no basis to take this evidence into
account when it imposed the middle term on count 2. Because recent
amendments to the DSL enacted as part of Assembly Bill No. 124 may make
lower term sentencing presumptive on our record, resentencing is required.
1. Additional Background
A central issue at trial was whether Garcia acted with implied malice
when he drove a vehicle while he was under the influence of a controlled
substance. Soon after the collision, Garcia told responding officers that he
suffered a brain injury in 1993. He said his brain injury made it challenging
to process information. Cesar felt that on the day of the accident, Garcia was
acting like a “space cadet”—he seemed to listen one moment but not be
present in the next. Relying on this evidence, defense counsel asserted in
closing that Garcia was “a space cadet” who, because of his brain injury,
could not recall the 2011 Watson advisement. He suggested the brain injury
created reasonable doubt whether Garcia failed to stop due to his 1993 head
injury rather than the influence of methamphetamine. In her rebuttal, the
prosecutor claimed law enforcement ruled out the possibility that a head
injury affected the results of Garcia’s sobriety tests. She added that Garcia
got his license back after the head injury, continued driving for 20 years, and
was convicted of a DUI in the interim in 2011.
After the jury convicted him, Garcia requested formal probation in his
sentencing brief. He reported experiencing a traumatic brain injury in 1993
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after a car accident. (Garcia was the unbelted passenger in a pickup truck
being driven by his father on a dirt road; his father lost control and crashed
into a tree.) Doctors had to perform an emergency craniotomy, and Garcia
lost significant cognitive functioning. Medical records from 1993 and 2007
confirmed residual cognitive effects. The People opposed Garcia’s request for
probation, claiming he was not a suitable candidate notwithstanding a 28-
year-old injury. To the extent Garcia still experienced cognitive deficits from
the 1993 collision, the People argued that the incident enhanced rather than
negated his dangerousness because he should not have been driving at all.
At the start of the sentencing hearing, the court indicated its tentative
decision to deny probation and impose a determinate prison term of seven
years on the DUI count to be served concurrently with an indeterminate 15-
years-to-life term on the murder count. Invited to comment, defense counsel
reiterated his request for probation in light of Garcia’s brain injury. If
probation were denied, counsel urged the court to impose only the
determinate term on count 2 and stay the sentence on count 1 based on
amendments due to take effect.4 He further asked the court for a 90-day
4 Effective January 1, 2022, Assembly Bill No. 518 amended section 654
to permit the court to stay execution of either term, whereas before the
statute required the court to stay the shorter sentence. (See generally, People
v. Jones (2022) 79 Cal.App.5th 37, 45.) Garcia was sentenced two months
before the amendments took effect. The court concluded that section 654 did
not apply, imposed sentences on both counts, and ran the terms on counts 1
and 2 concurrently. Garcia does not challenge that ruling on appeal.
15
diagnostic pursuant to section 1203.03 that could be considered in recalling
the sentence.5
Garcia’s sister Elida S. then spoke. She indicated that Garcia’s
traumatic brain injury left him “with the functioning capability of a seven-
year-old,” a fact not considered during trial. Nor, in her view, “was his
mental status taken into consideration.” She asked for probation so that the
family could help Garcia receive mental health therapy and assured the court
that he would not be permitted to drive.
The prosecutor urged the court to find Garcia unsuitable for probation.
She highlighted his failure to take responsibility or show remorse for his
actions. She further noted that Garcia had served past probationary terms
and completed education components but nevertheless drove while impaired
and killed someone. As to the request for a diagnostic evaluation, the
prosecutor remarked that this should have been requested before sentencing.
While a diagnostic report would offer additional information on Garcia’s
cognitive functioning, the prosecutor did not feel it would be material. The
court already had extensive information about Garcia’s cognitive deficiencies
following the 1993 accident. To the extent the court credited the family’s
5 Where a defendant faces confinement in state prison and a court
concludes “that a just disposition of the case” requires diagnosis and
treatment services, the court “may order that defendant be placed
temporarily in such facility for a period not to exceed 90 days” for the
Department of Corrections diagnose his mental state and submit
recommendations in a written report. (§ 1203.03, subds. (a)−(b).) Time
spent in a diagnostic facility is credited against the defendant’s sentence.
(Id., subd. (g).) If during the diagnostic period defendant is found “to be
suffering from a remediable condition relevant to his criminal conduct, the
department may, with the permission of defendant, administer treatment for
such condition.” (Id., subd. (h).)
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account of lasting repercussions, she felt that made his conduct more
egregious, not less, in driving while under the influence.
Defense counsel responded that Garcia’s apparent failure to show
remorse or accept responsibility should be construed in light of his
immaturity, which was caused by his brain injury. Garcia was not a callous
person who sought to inflict pain, and his actions and statements were “a
result of his injury.”
Judge Wells ruled that while there was no bar to granting probation, he
did not believe Garcia was a suitable candidate. He wished he had “more
current information about his mental state,” noting the 2007
neuropsychological report was 14 years old. Given its age, he could not rely
on the report to determine Garcia’s probation-eligibility. The court accepted
defense counsel’s reason for Garcia’s “apparently callous remarks.”
Nevertheless, past opportunities to learn about impaired driving did not
prevent him from killing someone. As sympathetic as the court was to the
family, it did not believe probation would be responsible or proper.
The court then listed reasons for and against probation. Garcia did not
have an extensive criminal record and had performed satisfactorily on
probation or parole in the past. He was not currently on probation or parole
and had the ability and willingness to comply with reasonable conditions of
probation. The adverse collateral consequences of a prison term would be
serious. On the other hand, the court considered the serious nature of the
offense and circumstances of the crime. The victim was vulnerable, and
Garcia abused his position of trust or confidence, ignoring his passengers’
pleas to stop. On balance, even if Garcia was technically eligible for
probation, the court did not believe he was a suitable candidate for it.
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In selecting a prison term, the court imposed a 15-years-to-life
indeterminate term on count 1. Count 2 was punishable by 16 months, two
years, or three years. (§ 1170, subd. (h).) Based on the aggravating and
mitigating factors, the court imposed a two-year middle term. To this, it
added a three-year great bodily injury enhancement as to Cesar and two one-
year bodily injury enhancements as to Michael E. and Michael D. The court
commented that it was showing leniency by running the terms on counts 1
and 2 concurrently rather than consecutively. Turning to Garcia’s request for
a 90-day diagnostic, Judge Wells expressed that section 1203.03 envisioned
any diagnostic study being completed before sentencing and denied Garcia’s
request.6
2. Assembly Bill No. 124
Assembly Bill No. 124 amended the DSL to make lower term
sentencing presumptive under certain circumstances. (Stats. 2021, ch. 695,
6 Section 1203.03 indeed envisions any diagnostic study to be completed
before sentencing. (See § 1170, subd. (b)(4) [listing “reports received
pursuant to Section 1203.03” among the materials a court may consider
during sentencing].) Even so, Garcia argues that nothing prohibited a
request being made at the sentencing hearing, with the court free to postpone
the hearing or recall the sentence after his evaluation. Claiming the trial
court abused its discretion in denying his request, he seeks remand with
directions that the trial court order a diagnostic study before resentencing.
Because we conclude remand for a full resentencing hearing is necessary
based on recent amendments to the DSL, we need not address this issue. We
presume a request for a diagnostic study under section 1203.03 will be made
well before resentencing, and any remaining argument about the propriety of
such a study can be directed to the trial court.
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§ 5.3.)7 As relevant here, lower term sentencing is presumptively
appropriate where a defendant “has experienced psychological, physical, or
childhood trauma” and that trauma “was a contributing factor in the
commission of the offense.” (§ 1170, subd. (b)(6)(A); see Cal. Rules of Court,
rule 4.420(e)(1).) Where the presumption applies, the court must apply the
lower term unless it “finds that the aggravating circumstances outweigh the
mitigating circumstances that imposition of the lower term would be contrary
to the interests of justice.” (§ 1170, subd. (b)(6).)
As the People appropriately concede, this amendment applies
retroactively to Garcia. (In re Estrada (1965) 63 Cal.2d 740, 745; see People
v. Gerson (2022) 80 Cal.App.5th 1067, 1095 (Gerson).) Nevertheless, they
suggest that remand for resentencing is unnecessary because the court’s
statements at sentencing demonstrate it would have found a lower term on
count 2 “contrary to the interests of justice.” The People support this claim
by pointing to the aggravating and mitigating factors justifying a denial of
probation. Separately, the People suggest that the court was aware of
Garcia’s 1993 brain injury, but was not presented with sufficient evidence
that the trauma “was a contributing factor in the commission of the offense.”
(§ 1170, subd. (b)(6).)
7 The Legislature passed two bills amending the DSL in the same
session. Garcia mistakenly refers to Senate Bill No. 567 (Stats. 2021, ch. 731,
§ 1.3), but that bill amended the DSL by making the middle term in a
sentencing triad the presumptive choice unless aggravating circumstances
stipulated to by the defendant or found true beyond a reasonable doubt by
the jury “justify” imposition of a higher term. (§ 1170, subd. (b)(1)−(b)(3).)
Garcia instead relies on the changes made by Assembly Bill No. 124, which
added subdivision (b)(6) to the statute to make the lower term presumptive
where certain conditions are met.
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Contrary to the People’s argument, there is no indication—much less a
clear one—that the court would have imposed the same middle term on count
2 had Assembly Bill No. 124 been in effect at sentencing. (See Gerson, supra,
80 Cal.App.5th at p. 1096.) In requesting probation, Garcia submitted
medical records from 1993 and 2007 pertaining to his traumatic brain injury.
The probation report indicated that Garcia’s 1993 accident left him in a coma
for 21 days with severe brain damage; “it took him about 5 years to recover,
but he was never able to fully recover” and felt lingering physical and mental
effects. Garcia’s sister suggested the brain injury contributed to the current
offense.
Before Assembly Bill No. 124, Garcia had no reason to seek, and the
court had no reason to make, a finding that past trauma contributed to his
offense—there was no statutory basis to apply a lower term based on such a
finding. (Gerson, supra, 80 Cal.App.5th at p. 1096.) Judge Wells’s wish for
“more current information about [Garcia’s] mental state” and his desire to
show “leniency” by running the two counts concurrently suggest that a
remand for resentencing would not necessarily result in the same outcome.
(See People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)
Accordingly, we vacate Garcia’s sentence and remand the matter for a
full resentencing hearing. (People v. Buycks (2018) 5 Cal.5th 857, 893;
Gerson, supra, 80 Cal.App.5th at p. 1096.) Any request for a diagnostic study
pursuant to section 1203.03 may be directed to the trial court in the first
instance.
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DISPOSITION
This matter is remanded for resentencing consistent with Penal Code
section 1170, subdivision (b) as amended. Following resentencing, the court
is directed to prepare an amended abstract of judgment and forward a
certified copy to the Department of Corrections and Rehabilitation. In all
other respects the judgment is affirmed.
DATO, J.
WE CONCUR:
McCONNELL, P. J.
BUCHANAN, J.
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