Filed 1/19/22 P. v. Garcia CA2/8
Opinion on remand from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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 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 with
directions.
Eric R. Larson, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta and Xavier Becerra, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Michael C. Keller, Idan Ivri and
Wyatt E. Bloomfield, Deputy Attorneys General, for Plaintiff and
Respondent.
**********
In 2009, defendant and appellant Ricardo Garcia 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In an unpublished decision, we affirmed defendant’s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
changes effected by Senate Bill 1437 and became effective
January 1, 2019. (Stats. 2018, ch. 1015, § 4.)
2
Thereafter, defendant filed in propria persona a form
petition for resentencing pursuant to Penal Code section 1170.95.
The court appointed counsel for defendant and received briefing
from the parties. At the hearing on defendant’s petition, no new
evidence was presented. The court entertained argument from the
parties on the briefing alone and denied defendant’s 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. In our original decision, we reversed
and remanded for the trial court to conduct an evidentiary hearing
pursuant to Penal Code section 1170.95, subdivision (d)(3). We
directed the superior court, at the evidentiary hearing, to act as an
independent fact finder and apply the beyond a reasonable doubt
standard of proof in assessing defendant’s liability for murder
under current law. (People v. Garcia, supra, B236196.)
Respondent filed a petition for review asking the Supreme
Court to grant review and defer briefing because this case raised
the same issue pending before the Court in People v. Duke (2020)
55 Cal.App.5th 113, review granted January 13, 2021, S265309,
that is, whether the trial court, during an evidentiary hearing
under Penal Code section 1170.95, acts as an independent
factfinder or reviews the record for substantial evidence. On
July 14, 2021, the Supreme Court granted respondent’s petition.
In October 2021, while this case was pending in the Supreme
Court, the Legislature passed Senate Bill 775 (2021–2022 Reg.
3
Sess.) which, among other things, amended the language of Penal
Code section 1170.95, subdivision (d)(3). (Stats. 2021, ch. 551, § 2.)
On December 22, 2021, the Supreme Court transferred this
case to us with directions to vacate our decision and reconsider the
matter in light of the passage of Senate Bill 775. Having vacated
our original decision and reconsidered the issues presented in light
of the new legislation, we again reverse and remand with
directions to the superior court to conduct an evidentiary hearing
in accordance with Penal Code section 1170.95, subdivision (d)(3),
as amended.
DISCUSSION
In amending the law regarding vicarious murder liability,
Senate Bill 1437 created a specific procedure “for retroactive
application of its ameliorative provisions. [Penal Code]
[s]ection 1170.95 lays out a process for a person convicted of felony
murder or murder under a natural and probable consequences
theory to seek vacatur of his or her conviction and resentencing.”
(People v. Gentile (2020) 10 Cal.5th 830, 853 (Gentile).)
There is no dispute here that defendant’s murder conviction
falls within the purview of Penal Code section 1170.95. In its
supplemental postremand brief, respondent concedes this case
should be remanded to the superior court for an evidentiary
hearing pursuant to section 1170.95, subdivision (d)(3).
We agree. Because the record of conviction here does not
establish as a matter of law that defendant is ineligible for relief,
an evidentiary hearing should be conducted. (Pen. Code,
§ 1170.95, subd. (c).)
Furthermore, Senate Bill 775 amended and clarified the
procedures governing an evidentiary hearing conducted pursuant
to Penal Code section 1170.95, subdivision (d)(3). “[T]he burden of
4
proof shall be on the prosecution to prove, beyond a reasonable
doubt, that the petitioner is guilty of murder or attempted murder
under California law as amended by the changes to Section 188 or
189 made effective January 1, 2019.” (§ 1170.95, subd. (d)(3).) The
new text provides that a prior “finding that there is substantial
evidence to support a conviction for murder, attempted murder, or
manslaughter is insufficient to prove, beyond a reasonable doubt,
that the petitioner is ineligible for resentencing.” (Ibid.)
The amendments also expand on the consideration of
evidence at the hearing, during which both sides may “offer new or
additional evidence to meet their respective burdens.” (Pen. Code,
§ 1170.95, subd. (d)(3).) The amended statute provides, in relevant
part, that “[t]he admission of evidence in the hearing shall be
governed by the Evidence Code, except that the court may consider
evidence previously admitted at any prior hearing or trial that is
admissible under current law, including witness testimony,
stipulated evidence, and matters judicially noticed. The court may
also consider the procedural history of the case recited in any prior
appellate opinion.” (Ibid.)
Accordingly, on remand, the trial court shall conduct an
evidentiary hearing pursuant to Penal Code section 1170.95,
subdivision (d)(3), as amended by Senate Bill 775. At the
evidentiary hearing, the trial court shall act as an independent fact
finder and apply the beyond a reasonable doubt standard of proof.
(See also Gentile, supra, 10 Cal.5th at p. 855 [“section 1170.95
requires the superior court to determine on an individualized
basis, after considering any new or additional evidence offered by
the parties, whether the defendant is entitled to relief”].)
5
DISPOSITION
The order denying defendant’s resentencing petition is
reversed and the case remanded to the superior court to conduct an
evidentiary hearing pursuant to Penal Code section 1170.95,
subdivision (d)(3), as amended.
GRIMES, Acting P. J.
WE CONCUR:
STRATTON, J.
WILEY, J.
6