Filed 5/10/21 P. v. Garcia CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B307757
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA357126)
v.
RICARDO GARCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County. Curtis B. Rappe, Judge. Reversed and remanded.
Eric R. Larson, 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, Michael C. Keller and Wyatt E. Bloomfield,
Deputy Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Ricardo Garcia appeals from the
denial of his petition for resentencing pursuant to Penal Code
section 1170.95. We reverse and remand for a new sentencing
hearing pursuant to section 1170.95, subdivision (d)(3).
In 2009, defendant was charged with first degree murder
(Pen. Code, § 187, subd. (a)) and attempted murder (§ 187,
subd. (a), § 664). Firearm use and gang allegations were alleged as
to both counts (§ 12022.53, § 186.22). The charges arose from an
incident on March 19, 2009, in which defendant’s fellow gang
member and codefendant, Francisco Ruiz, walked up to the front of
an apartment building where several members of a family were
gathered and began shooting, wounding one family member and
killing another. Defendant was charged and prosecuted as the
dropoff and getaway driver for Ruiz. (People v. Garcia (May 22,
2013, B236196) [nonpub. opn.].)
During deliberations, the jury indicated an inability to reach
a decision on defendant’s liability as a direct aider and abettor.
After discussing the matter with counsel, the court instructed the
jury on the natural and probable consequences doctrine. The jury
thereafter returned with a verdict. The jury acquitted defendant of
first degree murder, found him guilty of second degree murder and
acquitted him of attempted murder. The jury found true the gang
allegation and the allegation that a principal discharged a firearm
in the commission of the offense. (People v. Garcia, supra,
B236196.) The trial court sentenced defendant to an
indeterminate term of 40 years to life.
In an unpublished decision, we affirmed defendant’s
conviction. (People v. Garcia, supra, B236196.)
In 2018, Senate Bill 1437 (2017–2018 Reg. Sess.) was passed.
Penal Code section 1170.95 was enacted as part of the legislative
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changes effected by Senate Bill 1437 and became effective
January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
In early 2019, defendant filed in propria persona a form
petition for resentencing pursuant to Penal Code section 1170.95.
The court appointed counsel for defendant. The People filed a
response opposing defendant’s petition, and defense counsel filed a
reply.
Because of delays occasioned by the COVID-19 pandemic,
the hearing on defendant’s petition was not held until
September 4, 2020. Defendant was present and represented by
counsel. No new evidence was presented.
The court denied the petition. The court explained it
believed the appropriate standard of review was akin to a
substantial evidence standard focused on whether defendant
“could ‘be convicted of first or second degree murder’ under the
present law” and that the prosecution had proved that defendant
could still be convicted as a direct aider and abettor under the
amended law.
Defendant appealed. We granted defendant’s request to take
judicial notice of the case file and our prior opinion affirming his
conviction.
At the time of the hearing on defendant’s petition, there were
no published decisions discussing the correct standard to be
applied by a trial court at an evidentiary hearing pursuant to
Penal Code section 1170.95, subdivision (d)(3).
Shortly after the hearing, People v. Duke (2020)
55 Cal.App.5th 113, review granted January 13, 2021, S265309,
concluded the relevant standard was similar to the substantial
evidence test. “To carry its burden, the prosecution must therefore
prove beyond a reasonable doubt that the defendant could still
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have been convicted of murder under the new law—in other words,
that a reasonable jury could find the defendant guilty of murder
with the requisite mental state for that degree of murder. This is
essentially identical to the standard of substantial evidence, in
which the reviewing court asks “ ‘whether, on the entire record, a
rational trier of fact could find the defendant guilty beyond a
reasonable doubt. . . . [¶] . . . ’ [Citation.]” (Id. at p. 123.)
Respondent urges us to follow Duke and affirm the trial
court’s order. Defendant argues the language of Penal Code
section 1170.95, subdivision (d)(3) requires the trial court, ruling
on a petition at a post-OSC evidentiary hearing, to act as an
independent fact finder and apply the beyond a reasonable doubt
standard of proof. We agree with defendant and several decisions
that have disagreed with Duke.
In People v. Lopez (2020) 56 Cal.App.5th 936, 949, review
granted February 10, 2021, S265974, the court reasoned “[t]he
statute itself provides the answer. [Penal Code] Section 1170.95,
subdivision (d)(3) expressly states that the beyond a reasonable
doubt standard of proof applies. Accordingly, we construe the
statute as requiring the prosecutor to prove beyond a reasonable
doubt each element of first or second degree murder under current
law in order to establish ineligibility.”
People v. Rodriguez (2020) 58 Cal.App.5th 227, 243–244,
review granted March 10, 2021, S266652, followed Lopez and said,
“it is the court’s responsibility to act as independent fact finder and
determine whether the evidence establishes a petitioner would be
guilty of murder under amended [Penal Code] sections 188 and 189
and is thus ineligible for resentencing under section 1170.95,
subdivision (d)(3).” Rodriguez also noted that less than two
months before the introduction of Senate Bill 1437, the Supreme
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Court held in People v. Frierson (2017) 4 Cal.5th 225 that a
prosecutor must prove ineligibility beyond a reasonable doubt for
resentencing under Proposition 36, the Three Strikes Reform Act
of 2012. (Rodriguez, at p. 242.) “It is unlikely the Legislature
would have selected that language if it had intended only an
appellate-type review of the sufficiency of the evidence of the
petitioner’s guilt on a still-viable theory, rather than requiring the
prosecutor to actually establish the petitioner’s guilt under the
newly amended statutes.” (Ibid.)
People v. Clements (2021) 60 Cal.App.5th 597, 615, review
granted April 28, 2021, S267624, explained the factual inquiry in a
post-OSC evidentiary hearing under Penal Code section 1170.95,
subdivision (d)(3) is whether the defendant committed murder
under a theory still valid under the amended murder statutes.
“The Legislature made this clear by explicitly holding the People to
the beyond a reasonable doubt evidentiary standard and by
permitting the parties to submit new or additional evidence at the
hearing on eligibility.” (Clements, at p. 615.)
Our Supreme Court is now considering this issue. Pending
guidance from the Supreme Court, we agree with and adopt the
analyses in Lopez, Rodriguez and Clements. At a hearing pursuant
to Penal Code section 1170.95, subdivision (d)(3), whether a
defendant is eligible for resentencing is to be decided by the
superior court acting as an independent fact finder and applying
the beyond a reasonable doubt standard of proof. Because the trial
court used a standard akin to the substantial evidence test, the
case must be remanded for a new hearing.
DISPOSITION
The order denying defendant’s resentencing petition is
reversed and the case remanded to the superior court to conduct a
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new evidentiary hearing pursuant to Penal Code section 1170.95,
subdivision (d)(3).
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
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