Filed 12/16/20 P. v. Garcia 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E075068
v. (Super.Ct.No. FSB056399)
ANDRES LANDEROS GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. Affirmed.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
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Defendant and appellant, Andres Landeros Garcia, filed a petition for resentencing
pursuant to Penal Code section 1170.95,1 which the trial court denied. After defense
counsel filed a notice of appeal, this court appointed counsel to represent him. Counsel
has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 (Wende)
and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the case and
one potentially arguable issue: whether the trial court erred in denying defendant’s
petition after reviewing the record of conviction. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A group of three friends left a club in a vehicle, which was part of a caravan.
After the driver of the vehicle began making gang signs, a Hummer and black Ford F-150
truck pulled alongside the vehicle: “Shots were fired at the [vehicle] from both the
Hummer and the truck.” (People v. Garcia (Sept. 2, 2010, E048866) [nonpub. opn.]
(Garcia I).) “The passenger side of the [vehicle] was riddled with bullet holes and the
windows were shattered. Nine millimeter shell casings were retrieved from the roadway.
[The murder victim] had suffered a fatal gunshot wound to the torso and died at the
scene.” (Ibid.)
A security guard at the club, who was also a member of the caravan in another car,
had seen defendant drive away from the club in a “dark-colored Hummer,” which was
similar to the one he saw during the incident. (Garcia I, supra, E048866.) One of the
other members of the caravan told police that defendant was in a Hummer with several
1 All further statutory references are to the Penal Code unless otherwise indicated.
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other men “who whistled at them as they entered the club that evening.” (Ibid.) She
identified defendant from a photograph. (Ibid.)
Several weeks after the shooting, the Hummer was found abandoned. “A
fingerprint which matched defendant’s right index finger was found on the left side of the
interior sunroof panel.” (Garcia I, supra, E048866.) Defendant’s brother, who had pled
guilty to assault with a deadly weapon and admitted to the personal use of a firearm with
respect to the incident, was repeatedly called to testify but remained silent; the trial court
instructed the jury it could infer from defendant’s brother’s refusal to testify that he was
protecting defendant. (Ibid.)
The trial court instructed the jury that defendant had been prosecuted “under
several theories.” (CALCRIM No. 548.) The court further instructed the jury that it
could find defendant guilty of first degree murder under one of two theories: (1) the
murder was willful, deliberate, and premeditated; and/or (2) the murder was committed
by shooting a firearm from a motor vehicle. (CALCRIM No. 521.) Under the latter
theory, the court instructed the jury it would have to find, in part, that defendant intended
to kill the victim. The court also instructed the jury with felony murder, as the theory
under which it could find defendant guilty of second degree murder. (CALCRIM
No. 541A.)
The jury found defendant (1) guilty of first degree murder (§ 187, subd. (a),
count 1) and found true an allegation that defendant had personally used and discharged a
firearm causing death (§ 12022.53, subd. (d)); guilty of the willful, deliberate, and
premeditated attempted murder of a second victim (§ 664, 187, subd. (a), count 2) and
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found true an allegation that defendant personally used a firearm (§ 12022.53, subd. (b));
and (3) guilty of assault with a firearm on a third victim (§ 245, subd. (a)(2), count 3) and
found true an allegation that defendant used a firearm causing the offense to become a
serious felony (§ 12022.5, subd. (a)).
On April 8, 2019, defendant filed a petition for resentencing pursuant to
section 1170.95. On June 6, 2019, the People filed a motion to strike defendant’s
petition; the People additionally requested the court take judicial notice of this court’s
nonpublished opinion is Garcia I, supra, E048866, and the trial record. On the same
date, the People filed an informal response, again asking the court to take judicial notice
of this court’s prior opinion and the trial record.
At the hearing on defendant’s petition on January 17, 2020, the trial court
exposited its reasoning for its ruling on the petition: “The Court has reviewed the record,
the court file in the case. I was the trial judge. Actually both attorneys were the trial
attorneys, so we’re all fairly well acquainted with the facts of the case; however, in
reviewing just the paper record, I have reviewed the jury instructions, the jury verdict, in
the case and the Court of Appeal opinion. I feel that I can make a decision on the prima
facie issue based on review of the file, taking judicial notice of it.”
The trial court continued, noting defendant “was convicted of a first degree
murder . . . . The jury found true that the defendant had personally and intentionally
discharged a firearm which proximately caused her death. The jury did find the
defendant was the actual killer of the victim. Two theories of first degree murder were
presented to the jury in this case; one that the murder was willful, deliberate and
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premediated; and two that the murder was committed while discharging a firearm from a
motor vehicle.”
The trial court ruled: “No matter which theory the jury relied on the defendant is
ineligible for relief under . . . [section] 1170.95. If tried today, he would still be subject
to a first degree murder conviction under both those theories pursuant to . . . Section
189[, subdivision] (a). The petition, therefore, fails to state a prima facie case for relief,
and the petition is denied with prejudice.”
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which
he has not done. We recognize that the court in People v. Cole (2020) 52 Cal.App.5th
1023, review granted October 14, 2020, S264278, recently held “that Wende’s
constitutional underpinnings do not apply to appeals from the denial of postconviction
relief . . . .” (Cole, at p. 1028.) Nonetheless, pursuant to its supervisory authority, Cole
determined to employ a quasi-Wende review to postjudgment cases, giving the defendant
the right to file a supplemental brief when defense counsel files a Wende brief. The court
would then dismiss the case if the defendant failed to file a supplemental brief or would
address the issues raised if defendant did file a supplemental brief. (Cole, at p. 1028.)
Pursuant to the same supervisory authority, we elect to conduct a traditional
Wende review in criminal appeals from the denial or dismissal of postconviction avenues
of relief. We agree with the recent decision in People v. Flores (2020) 54 Cal.App.5th
266, “that when an appointed counsel files a Wende brief in an appeal from a summary
denial of a section 1170.95 petition, a Court of Appeal is not required to independently
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review the entire record, but the court can and should do so in the interests of justice.”
(Flores, at p. 269; accord People v. Gallo (2020) 57 Cal.App.5th 594, 598-599; see
People v. Allison (2020) 55 Cal.App.5th 449, 456 [“[W]e have the discretion to review
the record in the interests of justice.”].) 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 order denying defendant’s petition for resentencing pursuant to Penal Code
section 1170.95 is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
MILLER
J.
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