Filed 2/17/21 P. v. Tracchia CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B300730
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA033116)
v.
GLENN MATTHEW TRACCHIA,
JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Steven D. Blades, Judge. Reversed and
remanded with directions.
Jonathan E. Demson, 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, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr. and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Glenn Matthew Tracchia, Jr.
(defendant) appeals from the summary denial of his petition for
resentencing pursuant to Penal Code section 1170.95,1 based
upon the trial court’s finding that the statute was
unconstitutional. Respondent agrees and joins defendant in
requesting reversal. We reverse the trial court’s order and
remand with instructions.
BACKGROUND
Defendant’s murder conviction
In 1997, a jury convicted defendant and codefendant Steve
Mejico (Mejico) of one count of second degree murder (§ 187,
subd (a)), and found true the allegation under section 12022,
subdivision (a)(1) that a principal was armed with a firearm.2
The jury also found true the allegation under section 186.22,
subdivision (b)(1) and (4) that the murder was committed for the
benefit of, at the direction of, and in association with a criminal
street gang with the specific intent to promote and assist in
criminal conduct by gang members. A third participant in the
crime, David Valdez (Valdez), pled guilty to second degree
murder. Defendant and his codefendant were sentenced to terms
of 16 years to life in prison, and we affirmed the judgments.
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2 At respondent’s request, we have taken judicial notice of
the opinion affirming defendant’s 1997 conviction, and
summarize the background facts from that opinion. (See People
v. Tracchia (Oct. 19, 1998, B117379 [nonpub. opn.].)
2
The evidence at trial was that the victim, Robert Imperial,
and two others were visiting Valdez at his home, when Valdez
learned that Imperial belonged to a different gang. Valdez then
called over three of his fellow gang members, including defendant
and Mejico. After a lengthy conversation Valdez went inside,
retrieved a jacket, and said they were going to go buy more beer
and marijuana. Imperial, defendant, Mejico and Valdez then left
together in a car, later identified as belonging to defendant’s
grandmother.
A witness saw two men push Imperial against a fence, and
heard them speaking loudly and angrily. One of the men tried to
hit Imperial, but Imperial blocked the punch and started to run.
The witness hid and heard four or five gunshots. Imperial was
later found dead from a gunshot wound in the back. Valdez
admitted to Imperial’s cousin that he killed Imperial because he
“was talking smut about” Valdez’s gang.
A search of Valdez’s house turned up a revolver wrapped in
clothing. The gun was determined to be the murder weapon.
When Valdez pled guilty to second degree murder, he asserted
under oath that he had remained in the car during the shooting
and that it was defendant and Mejico who got out of the car with
Imperial. After he heard gunfire, defendant and Mejico returned
to the car and they all drove away. At trial the prosecutor argued
to the jury that Valdez was the shooter.
Section 1170.95 petition
In January 2019, defendant filed a petition for resentencing
under section 1170.95. On the form petition, defendant checked
the boxes for the allegations that he had been charged with
murder, that he was convicted pursuant to the second degree
3
felony-murder rule or the natural and probable consequences
doctrine, and that he now could not be convicted of murder
because of the changes made to sections 188 and 189, effective
January 1, 2019. He also requested the appointment of counsel.
Attached as exhibits to the petition were copies of the abstract of
judgment and the CALJIC No. 3.02 instruction regarding the
natural and probable consequences doctrine, taken from the
record of defendant’s conviction.3
The prosecution filed opposition to the petition, arguing
that Senate Bill No. 1437 (S.B. 1437), which enacted section
1170.95 violated the California constitution in several respects.
The trial court appointed counsel for defendant who filed a brief
in opposition. The prosecution added a reply brief, and the trial
court heard argument. The court agreed with the prosecution
that S.B. 1437 unconstitutionally amended voter initiatives,
Propositions 7 and 115, in violation article II, section 10,
subdivision (c) of the California Constitution, and that S.B. 1437
violated article 1, section 28 of the California Constitution
(known as “Marsy’s Law”). Based solely on its finding S.B. 1437
unconstitutional, the court denied defendant’s petition on
August 9, 2019.
3 A person is entitled to vacatur and resentencing under
section 1170.95 if, (1) “[a] complaint, information, or indictment
was filed against [him] that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine,” (2) he “was convicted of first or
second degree murder following a trial,” and (3) he “could not be
convicted of first or second degree murder because of changes to
Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a).)
4
Defendant filed a timely notice of appeal from the order.
DISCUSSION
Defendant and respondent agree that the trial court erred
in finding S.B. 1437 unconstitutional. We agree that the trial
court erred in declaring section 1170.95 unconstitutional. (See
People v. Lopez (2020) 51 Cal.App.5th 589, 594, 600-602 [section
1170.95 does not impermissibly amend Propositions 7 or 115];
People v. Johns (2020) 50 Cal.App.5th 46, 66-69 [section 1170.95
does not violate Marsy’s Law or the separation of powers].) We
thus reverse the trial court’s order and remand so the court can
consider defendant’s section 1170.95 petition on its merits.
DISPOSITION
The order is reversed and the matter remanded for
consideration of defendant’s petition under the terms of section
1170.95.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________, J.
CHAVEZ
We concur:
__________________________, Acting P. J.
ASHMANN-GERST
__________________________, J.
HOFFSTADT
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