Filed 3/25/21 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B304788
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA128373)
v.
ISAAC GARCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Affirmed.
Janet J. Gray, 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, Charles S. Lee and Nima Razfar, Deputy
Attorneys General.
******
Isaac Garcia (defendant) filed a petition to vacate his
conviction for attempted murder pursuant to Penal Code section
1170.95,1 as amended by Senate Bill No. 1437 (2017-2018 Reg.
Sess.). The trial court summarily denied that petition and
defendant now appeals. Under People v. Love (2020) 55
Cal.App.5th 273, review granted Dec. 16, 2020, S265445,
defendant’s petition fails as a matter of law; as a direct result, his
related procedural challenges also fail. So, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts2
A. The underlying crime
In November 2012, defendant and two other members of
the Bellflower Devils clique of the 18th Street gang, Israel Itehua
(Itehua) and Jeremy Harris (Harris), chased a putative rival gang
member into an apartment complex. There, Itehua shot and
paralyzed one woman and then, as the men fled, Itehua fired four
shots at a homeless man who had earlier refused to affirm his
gang affiliation to them.
B. Prosecution, conviction and appeal
The People charged defendant with (1) the attempted
murder of the woman Itehua shot (§§ 187, subd. (a) & 664), and
(2) the attempted murder of the homeless man (§§ 187, subd. (a)
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s convictions. (People v. Garcia (May
30, 2019, B266328) [nonpub. opn.].)
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& 664).3 The People further alleged that the attempted murders
were committed for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)(1)(C));
that both attempted murders were committed willfully,
deliberately and with premeditation (§ 664, subd. (a)); that a
principal discharged a firearm in the course of each attempted
murder (§ 12022.53, subd. (d)); and that defendant personally
inflicted great bodily injury in the course of each attempted
murder (§ 12022.7, subd. (b)).
A jury convicted defendant of both attempted murders and
found all allegations to be true.
The trial court sentenced defendant to prison for a term of
68 years and four months to life. As part of this sentence, the
trial court imposed a 32-year sentence for each attempted murder
count, comprised of seven years to life for the attempted murder
plus 25 years for the discharge of a firearm allegation; the court
ran the two attempted murder sentences consecutively.
Defendant appealed his conviction and we affirmed in an
unpublished opinion.
II. Procedural Background
On October 22, 2019, defendant filed a petition seeking
resentencing under section 1170.95 for his two attempted murder
convictions. Without appointing counsel for defendant or holding
a hearing, the court summarily denied defendant’s petition on the
ground that “section 1170.95” does not provide relief for
attempted murder convictions.
Defendant filed this timely appeal.
3 The People also charged defendant with second degree
robbery (§ 211), but that charge and the resulting conviction are
not at issue in this appeal.
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DISCUSSION
Defendant argues that the trial court erred in denying his
section 1170.95 petition because section 1170.95 applies to
attempted murder convictions. Because this argument turns on a
question of statutory construction and the application of law to
undisputed facts, our review is de novo. (People v. Blackburn
(2015) 61 Cal.4th 1113, 1123; Martinez v. Brownco Construction
Co. (2013) 56 Cal.4th 1014, 1018.)
Section 1170.95 authorizes a defendant “convicted of felony
murder or murder under a natural and probable consequences
theory” to vacate his murder conviction if, as a threshold matter,
he makes a “prima facie showing” of entitlement to relief.
(§ 1170.95, subds. (a) & (c).) This, in turn, requires a showing
that, among other things, he “could not be convicted of first or
second degree murder” under the amendments to the murder
statutes that became effective on January 1, 2019. (Id., subd.
(a)(3).) These statutes, even as amended, still authorize a
murder conviction based on a theory of vicarious liability if the
defendant “was a major participant in the underlying felony and
acted with reckless indifference to human life . . . .” (§ 189, subd.
(e)(3)).
In People v. Love, supra, 55 Cal.App.5th at p. 279, we held
that section 1170.95 does not provide for relief for attempted
murder convictions. Applying this authority, the trial court was
right to summarily deny defendant section 1170.95 relief for
defendant’s two attempted murder convictions without the
appointment of counsel or any other procedural trapping.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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