People v. Garcia CA2/1

Filed 10/21/21 P. v. Garcia CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B305691

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA032965)
v.

ARTURO GARCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of
Los Angeles County, Thomas Rubinson, Judge. Affirmed.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Charles S. Lee and Amanda V. Lopez, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
 Defendant Arturo Garcia, who was convicted in a court
trial of second degree murder, challenges the trial court’s
summary denial of his Penal Code section 1170.95 resentencing
petition.1 The trial court properly determined that Garcia, who
was represented by counsel, was not eligible for resentencing
because the record of conviction demonstrates as a matter of law
that Garcia aided and abetted a second degree murder.
We affirm.

BACKGROUND
On September 15, 1999, the People charged Garcia and
Salvador Morales with one count of murder, alleging that Garcia
and Morales killed Juan Fernando Galeana with malice
aforethought. The People also alleged that a principal was armed
with a firearm within the meaning of section 12022,
subdivision (a)(1) and a principal personally discharged a firearm
causing great bodily injury and death within the meaning of
section 12022.53, subdivision (d). The People further alleged a
gang enhancement.

1. Descriptions of Garcia’s crime in appellate and
habeas opinions
In review of our opinion in defendant’s direct appeal of his
conviction, our Supreme Court described the facts of this case as
follows:
“In a drive-by shooting, Juan Fernando Galeana, a
member of the Burbank Trece street gang, was shot and killed.
Salvador Morales, a member of the Vineland Boys (related to the
Sun Valley Diablos street gang), later bragged to his friend and

1 Undesignated statutory citations are to the Penal Code.

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fellow gang member, Sergio Arriola, that he was the shooter and
that defendant Arturo Garcia, also part of the Vineland Boys,
was the driver. Arriola told the police what Morales said, but
later changed his story after he was beaten up. Defendant
[Garcia] told the same story to another fellow gang member, who
informed the police. At the time of his arrest, defendant
admitted his involvement in Galeana’s murder and later gave the
police a full confession.” (People v. Garcia (2002) 28 Cal.4th 1166,
1169.)
“Following a court trial, defendant was convicted of second
degree murder (§ 187, subd. (a)), for aiding and abetting in the
killing of Galeana. As to defendant, the trial court found true the
allegations under sections 186.22 and 12022.53, subdivision (d).
Defendant’s 15-year-to-life sentence was increased by 25 years to
life pursuant to the section 12022.53 enhancement. Morales, the
alleged shooter, was acquitted of all charges. The evidence
against defendant showed that he was not the shooter.”
(People v. Garcia, supra, 28 Cal.4th at p. 1170, first italics
added.)
In rejecting Garcia’s petition for writ of habeas corpus, the
federal district court described Garcia’s crime as follows: “On
April 24, 2000, following a court trial, petitioner was convicted of
aiding and abetting a second degree murder [citations]. The
trial court additionally found true the allegations that a principal
personally discharged a firearm causing the victim’s death
and that the murder was gang related [citations].” (Garcia v.
Yarborough (C.D.Cal., Apr. 13, 2006, No. CV 03-6791-RSWL
(PLA)) [2006 U.S. Dist. LEXIS 102265, at p. *1].)

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2. Garcia’s confession
The trial court indicated that it had relied on Garcia’s
confession when it found he committed second degree murder.
The court stated: “The person that probably did the shooting was
acquitted, because there was no credible eyewitness
identification.” With respect to Garcia, the court indicated: “If he
hadn’t spoken, it probably would have been somewhat different.”
Garcia first confessed at the time of his arrest. Garcia
spontaneously said, “ ‘I’m fucked, you got me, my homeys and I
did a drive by, my homey’s in jail, he rolled over on me.’ ”
Garcia next confessed in a tape-recorded conversation with
police officers. Garcia admitted being a Vineland gang member.
Garcia said he was pumping gas when he saw “Bampy”
exchanging gang signs with four rival gang members. Garcia
did not identify Bampy’s given name. Garcia was afraid and
did not finish pumping gas.
Bampy, got into Garcia’s truck and Garcia “took off,”
believing that the rival gang members may have had a gun.
Garcia drove Bampy to pick up a gun and then they went back to
the gas station “to see if those guys were over there . . . .” Garcia
knew Bampy was going to pick up a gun. As Garcia looked
towards the gas station, he heard four shots. Garcia saw one
person fall down. Garcia stated that “Bampy was pulling the
trigger.” Garcia then drove away “[t]rying to get away from, from
the area.”

3. Garcia’s trial testimony
At trial, Garcia testified that he heard about the murder
from “Cuzzy.” Cuzzy told Garcia that he and “Shy Boy” “smoked”
the rival gang member. Cuzzy said that the shooting occurred

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after he and Shy Boy exchanged gang signs with a rival gang
member. Garcia testified that he was in Tracy, California the
night of the murder and his sister also testified that Garcia was
in Tracy.

4. Closing arguments
The prosecutor argued, “[T]he evidence is clear and well
beyond a reasonable doubt that this defendant was involved
knowingly in the murder of the victim . . . .” The prosecutor
added defendant’s alibi was not credible. During his argument,
the prosecutor relied heavily on Garcia’s confession.
Defense counsel argued that the eyewitness identification
was not reliable. Defense counsel maintained that when he was
arrested, defendant did not know “what murder he was being
charged with.” Counsel further argued Garcia did not have a
motive to kill Galeana, and only learned of the murder from
Cuzzy. Counsel also referenced Garcia’s testimony that he was
out of town at the time of the murder.
Assuming that Garcia was the driver, defense counsel
further argued that Garcia did not “know there’s going to be a
shooting. He doesn’t even see the guy until after he hears the
shots fired.” Counsel questioned whether the gun was “for
protection or to commit a murder.”

5. Conviction and sentencing
In 2000, the trial court found Garcia guilty of second degree
murder and found all enhancements true. The court sentenced
Garcia to an indeterminate term of 15 years with the possibility
of parole. The trial court sentenced Garcia to an additional
25-year-term for the section 12022.53, subdivision (d)
enhancement.

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6. Direct appeal of the conviction in the Court of Appeal
and Supreme Court
Garcia appealed the judgment of conviction. In an opinion
later reversed by the Supreme Court, this court reversed the
section 12022.53, subdivision (d) enhancement. (People v. Garcia
(2001) 88 Cal.App.4th 794, reversed, remanded & superseded by
People v. Garcia, supra, 28 Cal.4th 1166.) This court held that
because Morales was not convicted, the People had not proven
the elements of a section 12022.53, subdivision (d) enhancement.
(Ibid.) The Supreme Court reversed, holding that a shooter’s
conviction is not required to impose liability on a nonshooter
under section 12022.53, subdivision (d). (People v. Garcia, supra,
28 Cal.4th at p. 1169.)

7. Section 1170.95 petition
On January 30, 2019 Garcia filed a section 1170.95
resentencing petition. Garcia alleged an information 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. He also averred that he was
convicted of second degree murder pursuant to the felony murder
rule or natural and probable consequences doctrine and that he
could not now be convicted of murder because of changes made to
sections 188 and 189. The trial court appointed counsel for
Garcia.
The People argued, among other things, that Garcia
was not eligible for resentencing because he was not convicted of
felony murder or murder under the natural and probable
consequences doctrine.

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 At a hearing, the parties disputed whether Garcia’s
confession demonstrated that Garcia had knowledge Morales
intended to shoot anyone. Defense counsel stated: “[T]his is a
very strange case where the actual shooter and killer was
acquitted, and but for the comments made by my client, he too
would have been at liberty.”
The trial court rejected Garcia’s argument, finding, “This
was a case of . . . implied malice . . . . or . . . express[ ] malice with
intent to kill. This is a gang confrontation. He [Garcia]
knowingly . . . drives this fellow gang member to go get a gun and
then back to the exact same spot where these . . . rival gang
members” are located. The trial court denied Garcia’s
resentencing petition, finding that Garcia was ineligible under
section 1170.95, subdivision (a). Garcia timely appealed.

DISCUSSION

A. Background on Section 1170.95
“A person who aids and abets the commission of a crime is
culpable as a principal in that crime. (§ 31.) Aiding and abetting
is not a separate offense but a form of derivative liability for the
underlying crime. [Citation.] Our law recognizes two forms of
liability for aiders and abettors. [Citation.] First, under direct
aiding and abetting principles, an accomplice is guilty of an
offense perpetrated by another if the accomplice aids the
commission of that offense with “knowledge of the direct
perpetrator’s unlawful intent and [with] an intent to assist in
achieving those unlawful ends.’ [Citation.]” (People v. Gentile
(2020) 10 Cal.5th 830, 843 (Gentile).) “Second, under the natural
and probable consequences doctrine, an accomplice is guilty not
only of the offense he or she directly aided or abetted (i.e., the

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target offense), but also of any other offense committed by the
direct perpetrator that was the ‘natural and probable
consequence’ of the crime the accomplice aided and abetted (i.e.,
the nontarget offense).” (Ibid.) Under the (no-longer-valid)
natural and probable consequence theory, “ ‘if a person aids and
abets only an intended assault, but a murder results, that person
may be guilty of that murder, even if unintended, if it is a natural
and probable consequence of the intended assault.’ [Citation.]”
(Id. at p. 844.)
Senate Bill No. 1437 changed the law to bar a conviction for
second degree murder based on the natural and probable
consequences theory. (Gentile, supra, 10 Cal.5th at p. 846.)
Under the current law, second degree murder requires the
prosecution “prove the defendant acted with the accompanying
mental state of mind of malice aforethought. The prosecution
cannot ‘impute[ ] [malice] to a person based solely on his or her
participation in a [target] crime.’ [Citation.]” (Ibid., third
bracketed insertion added.)
“Senate Bill 1437 does not eliminate direct aiding and
abetting liability for murder because a direct aider and abettor to
murder must possess malice aforethought.” (Gentile, supra,
10 Cal.5th at p. 848.) “[N]otwithstanding Senate Bill 1437’s
elimination of natural and probable consequences liability for
second degree murder, an aider and abettor who does not
expressly intend to aid a killing can still be convicted of second
degree murder if the person knows that his or her conduct
endangers the life of another and acts with conscious disregard
for life.” (Id. at p. 850.)
In addition to modifying the law to bar a conviction based
on the natural and probable consequences theory, Senate Bill

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No. 1437 also established a procedure for a person convicted of
felony murder or murder under the natural and probable
consequences doctrine to petition the sentencing court to vacate
the conviction and be resentenced based on any remaining
counts.2 (Gentile, supra, 10 Cal.5th at p. 853.) A petition under
section 1170.95, subdivision (a), must include the following:
“(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed
under a theory of felony murder or murder under the natural and
probable consequences doctrine.
“(2) The petitioner was convicted of first degree or second
degree murder following a trial or accepted a plea offer in lieu of
a trial at which the petitioner could be convicted for first degree
or second degree murder.
“(3) The petitioner could not be convicted of first or second
degree murder because of changes to Section 188 or 189 made
effective January 1, 2019.”
In evaluating a petitioner’s prima facie case under section
1170.95, after the appointment of counsel, the court may consider
the record of conviction. (People v. Lewis (2021) 11 Cal.5th 952,
971.) “ ‘[A] court should not reject the petitioner’s factual
allegations on credibility grounds without first conducting an
evidentiary hearing.’ [Citation.] ‘However, if the record,
including the court’s own documents, “contain[s] facts refuting
the allegations made in the petition,” then “the court is justified
in making a credibility determination adverse to the petitioner.” ’
[Citation.]” (Ibid.) In reviewing any part of the record of

2 Garcia does not argue that he was convicted based on the
felony murder doctrine, and the record would not support such an
argument.

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conviction at this preliminary juncture, a trial court should not
engage in “ ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ [Citation.]” (Id. at p. 972.)

B. Section 1170.95 Does Not Apply Here Because Garcia
Aided and Abetted the Second Degree Murder
Garcia does not dispute the principle that “[a] person is not
eligible for relief under section 1170.95 if he or she was convicted
under a theory of direct aider and abettor liability.” (People v.
Barboza (2021) 68 Cal.App.5th 955, 961 (Barboza).) Instead he
argues he “had made a prima facie showing that he likely was
convicted of second degree murder not as the killer or as a direct
aider and abettor but under a vicarious, natural and probability
theory of vicarious liability . . . .” To the same effect, Garcia
states, “The [sentencing] trial court may have believed Garcia
acted without intending to kill Galeana or consciously
disregarding that risk and concluded that Galeana’s death was
the natural and probable consequence of Garcia’s intending to
commit an assault but without finding that he acted with malice
aforethought.” Garcia, however, does not cite to the record for
these assertions. (See Cal. Rules of Court, rule 8.204(a)(1)(C)
[requiring each brief support any reference to matter in the
record by a citation].)
The record of conviction, moreover, refutes Garcia’s naked
argument that he was convicted based on the natural and
probable consequences doctrine. First, the trial court relied on
Garcia’s pretrial confession, which indicated that Garcia aided
and abetted a killing, not an assault. Garcia admitted he “ ‘did a
drive by[;]’ ” drove Morales to pick up a gun; drove Morales back
to the scene where a rival gang member lived; and drove Morales
away after Morales shot Galeana four times. Garcia did not

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confess that he intended for Morales only to assault Galeana.
Garcia did not testify at trial he lacked the intent to commit a
second degree murder or that he did not act with malice
aforethought. He just testified that he was not even at the scene
of the killing, contrary to his confession. We note that defendant
does not rely on this alibi defense on appeal.
No one referenced the natural and probable consequences
doctrine at trial either. The prosecutor did not argue Garcia
intended to aid and abet an assault, the natural and probable
consequences of which was a murder. Defense counsel did not
mention the natural and probable consequences doctrine during
his closing argument. The trial court did not refer to the natural
and probable consequences doctrine when it found Garcia guilty.
In addition to the absence of any reference to the natural and
probable consequence theory, there also was no reference to
target and nontarget offenses.
Garcia’s unsupported arguments are unpersuasive for an
additional reason: Courts reviewing Garcia’s conviction describe
him as aiding and abetting a killing, not aiding and abetting an
assault. Our high court stated, “Following a court trial,
defendant was convicted of second degree murder [citation], for
aiding and abetting in the killing of Galeana.” (People v. Garcia,
supra, 28 Cal.4th at p. 1170.) The federal district court also
described Garcia as aiding and abetting a second degree murder.
Garcia does not contest the federal court’s description, but argues
that “[t]he high court’s description of Garcia’s conviction could
have referred to his vicarious liability under a conspiracy and/or
natural and probable consequences doctrine and not necessarily
to his having directly aided and abetted the killing itself.”
Garcia’s statement conflicts with our high court’s opinion which

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expressly stated that Garcia aided and abetted the killing—not
that he aided and abetted a target offense which resulted in a
killing. (Garcia, at p. 1170.)
In sum, the record of conviction establishes as a matter of
law that Garcia was not convicted of second degree murder based
on a natural and probable consequences theory, Garcia’s
allegation to the contrary notwithstanding. Instead, the record
supports only the conclusion that Garcia aided and abetted a
murder and acted with at least knowledge that his conduct
endangered the life of another with conscious disregard for life.
Because Garcia aided and abetted a murder, he is ineligible as a
matter of law for resentencing under section 1170.95. (Barboza,
supra, 68 Cal.App.5th at p. 961.) The trial court did not err in
summarily denying Garcia’s resentencing petition.3

3 Garcia argues that assuming the trial court held a
section 1170.95, subdivision (d) hearing, it applied the wrong
standard of proof. The trial court did not hold a section 1170.95,
subdivision (d) hearing. It summarily denied the petition
because Garcia was ineligible for resentencing as a matter of law.

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 DISPOSITION
The order denying the Penal Code section 1170.95 petition
is affirmed.
NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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