Filed 1/22/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B299615
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA283054)
v.
MELISSA GARCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa B. Lench, Judge. Affirmed.
Allen G. Weinberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
——————————
Melissa Garcia petitioned for resentencing under Penal
Code1 section 1170.95. The trial court summarily denied the
petition. She appeals and contends that she was entitled to have
counsel appointed. We disagree.
BACKGROUND2
In 2002, Garcia drove two men to a location where the
victim Aileen Alvarez was walking. The men were Mara
Salvatrucha gang members, and Garcia was either a member or
associate of the gang. The men believed that Alvarez was going
to testify against a fellow gang member. At gunpoint, the men
forced a struggling Alvarez into the car, and Garcia drove away.
That night, Alvarez’s body was found. She had been shot in the
head and back. In a statement to detectives, Garcia said she had
been driving with the men when they saw Alvarez. When Garcia
stopped the car at the men’s behest, she had a feeling something
was going to happen to Alvarez. Garcia drove to a residential
area where the men made Alvarez get out of the car. One of the
men shot Alvarez. Garcia denied prior knowledge of any order to
kill Alvarez. Once Alvarez got into the car, Garcia was just doing
what she was told.
A jury found Garcia guilty of first degree murder (§ 187,
subd. (a); count 1) with true findings on two special circumstance
allegations (§ 190.2, subd. (a)(10) [killing a witness] & (17)
[kidnapping]) and kidnapping (§ 207, subd. (a); count 2). As to
1 All further statutory references are to the Penal Code.
2 The background is from the opinion affirming the
judgment of conviction, People v. Garcia (July 14, 2010, B212638)
[nonpub. opn.]. Garcia attached that opinion to her petition and
agrees it may be considered as part of her record of conviction.
2
both counts, the jury found true principal-gun use (§ 12022.53,
subds. (b), (c), (d) & (e)) and gang allegations (§ 186.22, subd.
(b)(1)). The trial court sentenced Garcia to life without the
possibility of parole plus 25 years to life.
Thereafter, our Legislature passed Senate Bill No. 1437
(2017–2018 Reg. Sess.), which took effect January 1, 2019. That
law amended the felony-murder rule and eliminated the natural
and probable consequences doctrine as it relates to murder, all to
the end of ensuring that a person’s sentence is commensurate
with their criminal culpability. Based on that new law, a person
convicted of murder under a felony murder or natural and
probable consequences theory may petition the sentencing court
for vacation of the conviction and resentencing, if certain
conditions are met. (§ 1170.95.)
In 2019, Garcia petitioned for resentencing under Senate
Bill No. 1437. In her petition and accompanying declaration,
Garcia alleged she met the requirements for relief. The trial
court denied the petition without appointing counsel for Garcia
based on its conclusion that the special circumstance findings
rendered her ineligible as a matter of law.
Garcia appealed, and her appellate counsel filed a brief
under People v. Wende (1979) 25 Cal.3d 436. We requested
supplemental briefs.
DISCUSSION
Garcia contends the trial court erred by summarily denying
the petition without appointing counsel for her. The People
respond that the special circumstance findings preclude relief as
a matter of law. As we explain, the trial court did not err by
summarily denying Garcia’s petition.
3
Under Senate Bill No. 1437, malice may no longer be
imputed to a person based solely on the person’s participation in
the crime; now, the person must have acted with malice
aforethought to be convicted of murder. (§ 188; People v. Munoz
(2019) 39 Cal.App.5th 738, 749, review granted Nov. 26, 2019,
S258234.) To that end, the natural and probable consequences
theory of accomplice liability no longer applies to murder. A
participant in enumerated crimes is liable under the felony-
murder doctrine only if the participant was the actual killer; or
with the intent to kill, aided and abetted an accomplice in
commission of first degree murder; or was a major participant in
the underlying felony and acted with reckless indifference to
human life. (§ 189, subd. (e); see Munoz, at pp. 749–750.)
Senate Bill No. 1437 also created a petitioning process by
which defendants convicted of murder under a now invalid theory
can be resentenced. Newly added section 1170.95, subdivision (a)
provides that individuals who meet three conditions are eligible
for relief: (1) the person must have been charged with murder
under a theory of felony murder or murder under the natural and
probable consequences doctrine, (2) convicted of first or second
degree murder, and (3) could not be convicted of first or second
degree murder because of changes to section 188 or 189 made
effective January 1, 2019. (See generally People v. Drayton
(2020) 47 Cal.App.5th 965, 973.)
Courts of Appeal are divided on how to interpret section
1170.95; for example, when counsel must be appointed under
subdivision (c) of that section.3 So far, most appellate courts
3 TheSupreme Court is reviewing whether superior courts
may consider the record of conviction in determining whether a
defendant has made a prima facie showing of eligibility for relief
4
have held that subdivision (c) requires trial courts to undertake
two prima facie reviews before issuing an order to show cause—
first, under the first sentence of the provision, “that the petitioner
falls within the provisions of this section,” and second, under the
last sentence of the provision, that the petitioner “is entitled to
relief”—and that it need not appoint counsel and the prosecution
need not file a response until after the first prima facie review is
complete. (§ 1170.95, subd. (c); see, e.g., People v. Tarkington
(2020) 49 Cal.App.5th 892, review granted Aug. 12, 2020,
S263219; People v. Drayton, supra, 47 Cal.App.5th at pp. 975–
976; People v. Verdugo (2020) 44 Cal.App.5th 320, 323, 329,
review granted Mar. 18, 2020, S260493.)
Another view is that the first sentence of section 1170.95,
subdivision (c), states the rule—the “ ‘ “court shall review the
petition and determine if the petitioner has made a prima facie
showing that [he or she] falls within the provisions of this
section” ’ ”—and “ ‘[t]he rest of the subdivision establishes the
process for complying with that rule: Appoint counsel, if
requested. Wait for the prosecutor’s required response and the
petitioner’s optional reply. If the petitioner makes a prima facie
showing, issue an order to show cause.’ ” (People v. Cooper (2020)
54 Cal.App.5th 106, 115, review granted Nov. 10, 2020, S264684.)
Another area in which Courts of Appeal are divided is the
interplay between a section 1170.95 petition and a special
circumstance finding that predates our California Supreme
Court’s decisions in People v. Banks (2015) 61 Cal.4th 788 and
under section 1170.95 and when the right to appointed counsel
arises under subdivision (c) of that section. (People v. Lewis
(2020) 43 Cal.App.5th 1128, review granted Mar. 18, 2020,
S260598.)
5
People v. Clark (2016) 63 Cal.4th 522. Banks and Clark clarified
the definitions of major participant and of reckless indifference to
human life.
Some Courts of Appeal conclude that defendants such as
Garcia are ineligible for relief. They characterize petitions such
as Garcia’s as challenges to the special circumstance finding.
(See, e.g., People v. Jones (2020) 56 Cal.App.5th 474; People v.
Allison (2020) 55 Cal.App.5th 449; People v. Murillo (2020)
54 Cal.App.5th 160, 167–168, review granted Nov. 18, 2020,
S264978; People v. Gomez (2020) 52 Cal.App.5th 1, 16–17, review
granted Oct. 14, 2020, S264033; People v. Galvan (2020)
52 Cal.App.5th 1134, 1142–1143, review granted Oct. 14, 2020,
S264284.) As such, they have held that a section 1170.95 petition
is not the appropriate vehicle to make that challenge; it should be
made via a writ of habeas corpus. (See, e.g., Galvan, at p. 1142;
Gomez, at p. 17.) Galvan, at page 1142, also reasoned that a
defendant convicted of murder with special circumstance findings
pre-Banks and Clark could not be convicted of murder because of
clarifications to the law per those cases rather than because of
changes Senate Bill No. 1437 made to sections 188 and 189.
Another appellate court has disagreed and argues that
characterizing a section 1170.95 petition as a challenge to a
special circumstance finding misapprehends the nature of the
petition. (See, e.g., People v. Smith (2020) 49 Cal.App.5th 85,
review granted July 22, 2020, S262835; People v. Torres (2020)
46 Cal.App.5th 1168, review granted June 24, 2020, S262011;
People v. York (2020) 54 Cal.App.5th 250, 260, review granted
Nov. 18, 2020, S264954.) A section 1170.95 petition is a
challenge to a murder conviction “that can obviously result in a
vacatur of a special circumstance finding as a collateral
6
consequence.” (York, at pp. 263–264 (conc. opn. of Baker, J.);
Smith, at p. 94.) York, at page 261, further observes, “What
permits a defendant convicted of felony murder to challenge his
or her murder conviction based on the contention that he or she
was not a major participant in the underlying felony who acted
with reckless indifference to human life, are the changes to
Senate Bill 1437 made to sections 188 and 189, and in particular,
the addition of section 189, subdivision (e)(3), not the rulings in
Banks and Clark.”
We need not discuss these disputes in depth, because
Garcia is ineligible for section 1170.95 relief under the doctrine of
law of the case. The law of the case doctrine precludes multiple
appellate reviews of the same issue in a single case. (People v.
Barragan (2004) 32 Cal.4th 236, 246–247.) At Garcia’s trial, the
jury was instructed that if it found a defendant guilty of murder
in the first degree, the jury then had to determine if one or both
of the special circumstances was true. As for the witness-killing
special circumstance, the jury was not instructed that intent to
kill was an element of the offense. The jury was thus instructed
that unless “an intent to kill is an element of a special
circumstance, if you are satisfied beyond a reasonable doubt that
a defendant actually killed a human being, you need not find that
the defendant intended to kill in order to find the special
circumstance to be true. [¶] If you find that a defendant was not
the actual killer of a human being, or if you are unable to decide
whether the defendant was the actual killer or an aider and
abettor, you cannot find the special circumstance to be true as to
that defendant unless you are satisfied beyond a reasonable
doubt that such defendant with the intent to kill aided, abetted,
or assisted any actor in the commission of the murder in the first
7
degree, or with reckless indifference to human life and as a major
participant, aided, abetted, or assisted in the commission of the
crime of kidnapping, which resulted in the death of a human
being.” Under this instruction, the jury could have found Garcia
guilty of the witness-killing special circumstance on any of three
theories: she was the actual killer (although it does not appear
that was a theory of the case), a direct aider and abettor who had
the intent to kill, or she was an aider and abettor who was a
major participant that acted with reckless indifference to human
life.
Garcia contended in her direct appeal from the judgment of
conviction that the jury was erroneously instructed on the
witness-killing special circumstance because it did not tell the
jury it had to find that she harbored an intent to kill. A different
panel of this division did not directly resolve the issue. (People v.
Garcia, supra, B212638.) Instead, it found “overwhelming
evidence” that Garcia “intended to kill and harbored more
culpable mental states” such that any failure to instruct on intent
to kill was harmless. (Id. at p. *22.) Given this finding that
there was “overwhelming evidence” of Garcia’s intent to kill,
which finding we cannot revisit, Garcia is ineligible for relief
under section 1170.95. Stated otherwise, to state a prima facie
case for relief, section 1170.95, subdivision (a)(3) required Garcia
to show she “could not be convicted of first or second degree
murder” because of the changes to section 188 or 189. She cannot
make that showing because, per the opinion affirming Garcia’s
judgment of conviction, she could be convicted of murder because
of the “overwhelming evidence” of her intent to kill.
8
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
I concur:
EDMON, P. J.
9
LAVIN, J., Concurring :
I agree we should affirm the trial court’s order because any
error in this case was harmless under any standard of prejudice.
Melissa Garcia’s petition, which attached a copy of this court’s
opinion in her direct appeal, established that she was ineligible
for relief under Penal Code section 1170.95.
LAVIN, J.