People v. Garcia CA5

Filed 6/13/22 P. v. Garcia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082008
Plaintiff and Respondent,
(Super. Ct. No. BF133232B)
v.
ALBERTO FARAGIA GARCIA, OPINION
Defendant and Appellant.
THE COURT *
APPEAL from an order of the Superior Court of Kern County. John R. Brownlee,
Judge.
Diana E. Berley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Robert
Gezi, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Detjen, Acting P. J., Franson, J. and Smith, J.
Appellant Alberto Faragia Garcia appeals following the denial of his petition for
resentencing under the then applicable statute, Penal Code1 former section 1170.95
(Stats. 2018, ch. 1015, § 4). The parties agree that the trial court erred in making certain
factual findings and thus should not have denied appellant’s petition at the prima facie
stage of the statutory proceedings. Upon review of the record and arguments, we agree
and therefore reverse the trial court’s order and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On March 30, 2016, an amended information was filed charging appellant and
Carla Mariela Garcia Torres with the premediated murder of appellant’s niece, whom the
two had been fostering. The information included additional charges related to child
abuse and endangerment, along with an enhancement for personally inflicting great
bodily injury.
After a jury trial, appellant and Torres were found guilty of a lesser included
murder offense and the child abuse charges. Appellant eventually received an
indeterminate term of 15 years to life, plus a consecutive, determinate term of four years.
On March 9, 2020, appellant petitioned for resentencing under former
section 1170.95 by submitting a preprinted form. By checking various boxes, appellant
alleged he had been charged with an offense that allowed the prosecution to proceed
under a natural and probable consequences theory, that he was convicted of second
degree murder under that doctrine, and that he could no longer be convicted of second
degree murder because of changes made to sections 188 and 189. Appellant requested
appointment of counsel and checked another box stating he had been convicted of second
degree murder under the natural and probable consequences doctrine and could not now
be convicted of murder.
1 All further statutory references are to the Penal Code.
2.
The People opposed appellant’s petition. Reciting the facts of the case as detailed
in the opinion from appellant’s direct appeal, the People argued appellant could still be
convicted of murder because he was both a major participant in the underlying crime and
he had acted with reckless indifference to human life. The People also argued the
evidence demonstrated appellant was the actual killer in this instance.
On November 12, 2020, following a hearing where the court detailed its
reasoning, the trial court entered a minute order denying appellant’s petition. The court’s
reasoning as stated at the hearing was twofold. First, relying on the opinion from
appellant’s direct appeal (People v. Torres (Sept. 25, 2019, F073750) [nonpub. opn.]), the
court found that “[b]ased on the evidence presented at the trial, and specifically referring
to the appellate opinion so as to not weigh or determine credibility, but only to
understand the issues raised on appeal, there was evidence to support the proposition that
[appellant]’s conduct directly led to the death of the victim, as well as a sufficient
evidentiary showing to find [appellant] guilty as a direct perpetrator of the failure-to-act
version of second-degree murder.” The court thus determined, “there was sufficient
evidence presented that [appellant] was a direct perpetrator. That’s based on the
language in the appellate opinion. That alone is dispositive as to [appellant]’s proposed
relief.” The court also concluded the evidence detailed showed appellant was a major
participant in the murder who acted with reckless indifference to human life.
This appeal timely followed.
DISCUSSION
As it currently stands and relevant to this case, section 1170.95, subdivision (a)
provides:
“(a) A person convicted of felony murder or murder under the natural and
probable consequences doctrine or other theory under which malice is imputed to a
person based solely on that person’s participation in a crime, attempted murder under the
3.
natural and probable consequences doctrine, or manslaughter may file a petition with the
court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or
manslaughter conviction vacated and to be resentenced on any remaining counts when all
of the following conditions apply:
“(1) A complaint, information, or indictment was filed against the petitioner that
allowed the prosecution to proceed under a theory of felony murder, murder under the
natural and probable consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in a crime, or attempted
murder under the natural and probable consequences doctrine.
“(2) The petitioner was convicted of murder, attempted murder, or manslaughter
following a trial or accepted a plea offer in lieu of a trial at which the petitioner could
have been convicted of murder or attempted murder.
“(3) The petitioner could not presently be convicted of murder or attempted
murder because of changes to Section 188 or 189 made effective January 1, 2019.”
Section 1170.95, subdivision (c) explains, “After the parties have had an
opportunity to submit briefings, the court shall hold a hearing to d etermine whether the
petitioner has made a prima facie case for relief. If the petitioner makes a prima facie
showing that the petitioner is entitled to relief, the court shall issue an order to show
cause .…” (Stats. 2021, ch. 551, § 2.)
The dispute in this case arises in the context of section 1170.95, subdivision (c)
and its requirement that the court determine whether appellant “is entitled to relief.” The
process for making this determination is similar to habeas corpus proceedings. (People v.
Lewis (2021) 11 Cal.5th 952, 971.) Thus, “when assessing the prima facie showing, the
trial court should assume all facts stated in the section 1170.95 petition are true.
[Citation.] The trial court should not evaluate the credibility of the petition’s assertions,
but it need not credit factual assertions that are untrue as a matter of law—for example, a
4.
petitioner’s assertion that a particular conviction is eligible for relief where the crime is
not listed in subdivision (a) of section 1170.95 as eligible for resentencing. Just as in
habeas corpus, if the record ‘contain[s] facts refuting the allegations made in the petition
... the court is justified in making a credibility determination adverse to the petitioner.’
[Citation.] However, this authority to make determinations without conducting an
evidentiary hearing pursuant to section 1170.95, subd[ivision] (d) is limited to readily
ascertainable facts from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of discretion (such as
determining whether the petitioner showed reckless indifference to human life in the
commission of the crime).” (People v. Drayton (2020) 47 Cal.App.5th 965, 980, second
bracketed insertion in original, abrogated on another ground in Lewis, at p. 963.)
In this case, the parties agree the trial court erred in determining appellant had not
made a prima facie showing of eligibility. Upon review, this court accepts the parties’
position. Although the factual recitation in appellant’s prior appeal can support a finding
appellant was convicted under a failure to act theory of liability, it is not dispositive on
this point. Rather, as the trial court noted, in addition to this theory of liability, the jury
was presented with a theory relying on the natural and probable consequences doctrine.
Although the court found sufficient facts in the record of conviction to support a failure
to act theory of liability, concluding that this made appellant ineligible for relief required
the court to weigh these facts against competing facts supporting the alternative theory
presented to the jury. Such factfinding is inappropriate at the prima facie stage of the
proceedings and can only be made at the show cause hearing under section 1170.95,
subdivision (d)(3).
DISPOSITION
The court grants the People’s request for judicial notice filed on August 24, 2021.
5.
The November 12, 2020 order denying appellant’s petition for resentencing is
vacated. The matter is remanded to the superior court with directions to issue an order to
show cause and conduct a hearing on the petition to determine whether to vacate
appellant’s murder conviction, recall his sentence, and resentence him consistent with
Penal Code section 1170.95, as amended effective January 1, 2022 (Stats. 2021, ch. 551,
§ 2).
6.