Filed 3/3/22 P. v. Garcia CA2/6
Opinion following transfer 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B300163
(Super. Ct. No. F000270432002)
Plaintiff and Respondent, (San Luis Obispo County)
v.
OPINION ON REMAND
OSCAR ARMANDO
GARCIA,
Defendant and Appellant.
In 1998 appellant was convicted of second degree murder
after a jury trial. We affirmed the judgment of conviction in an
unpublished opinion. (People v. Garcia et al. (July 23, 2001,
B126854) (Garcia I).) In 2019 appellant filed a petition to vacate
his murder conviction pursuant to a new statute, Penal Code
section 1170.95.1
1 All statutory references are to the Penal Code.
The trial court denied the petition, and appellant appealed.
We affirmed the trial court’s order in a published opinion that
was subsequently ordered depublished by the California Supreme
Court. (People v. Garcia (2020) 271 Cal.Rptr.3d 206, previously
published at 57 Cal.App.5th 100 (Garcia II).) We concluded that
appellant was not entitled to section 1170.95 relief because
substantial evidence in the record of conviction shows that, under
current law, he could be convicted of murder based on theories of
implied malice and direct aiding and abetting.
The California Supreme Court granted review (S265692).
On December 29, 2021, the Supreme Court transferred the cause
back to us “with directions to vacate [our Garcia II] decision and
reconsider the cause in light of People v. Lewis (2021) 11 Cal.5th
952, 971-972 [Lewis], and Senate Bill No. 775 (Stats. 2021, ch.
551).”
We vacate our Garcia II decision and reverse the trial
court’s order denying appellant’s petition. We remand the matter
to the trial court with directions to issue an order to show cause
and conduct a hearing as required by section 1170.95.
Facts
The facts are taken from the statement of facts at pages 2-5
of our unpublished Garcia I opinion, which was attached as
“Exhibit A” to appellant’s petition:
“Paso Robles 13 (Paso 13) is a criminal street gang.
Mosqueda, whose moniker is ‘dreamer,’ was a past associate of
Paso 13. Mosqueda was friendly with the members of Nameless
Crew Style (NCS), a rival gang that was engaged in ‘warfare’
with Paso 13. . . . Paso 13 put out a ‘green light’ on Mosqueda,
which meant that he was ‘free game’ to kill. [David] Rey and
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[appellant] were members of Paso 13, and [Sergio] Ortiz
associated with the gang.
“ [¶] [¶]
“During the evening of April 12, 1998, Reginald Calhoun
went to the trailer park residence of Ortiz and [Monte]
Weatherington. [Appellant and other persons were present]
there. Mosqueda became the subject of conversation, and
everyone was saying, ‘Hey, we want to kick dreamer’s ass.’
“Calhoun was paged by [Gregory] Vived[, Jr.]. Calhoun
telephoned Vived, who said that Mosqueda was going to be at a
party in Paso Robles. . . .
“Calhoun, [Manuel] Preciado, and [other persons, including
appellant,] drove to the Paso Robles party in three cars. Rey was
the sole passenger in a car driven by [appellant]. Rey was armed
with a knife that he displayed to [appellant] inside the car. Rey
put the knife in his pocket. At the trailer park, Rey had not
displayed the knife or mentioned that he possessed it.
“After parking their cars in Paso Robles, Calhoun,
Preciado, and [other persons, including appellant,] walked to the
apartment where the party was occurring. Weatherington
knocked on the front door. A female opened the door, and
Weatherington asked to speak to ‘dreamer.’ Mosqueda came to
the door and said, ‘What do you guys want?’ Weatherington told
him to come outside. Mosqueda said, ‘We don’t want no problems
here.’ Mosqueda closed the door, and another person locked it.
Calhoun picked up a potted plant and threw it through a plate-
glass window. Rey and Weatherington kicked the front door
open. Calhoun, Preciado, and [other persons, including
appellant,] ran through the doorway into the apartment. They
were saying, ‘Get your beating like a man,’ and ‘You know what
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time it is. You know it’s up.’ Everyone inside ‘just started
scattering.’ Mosqueda retreated into a bathroom and tried to
close the door. Calhoun testified that he and Rey pulled
Mosqueda out into the hallway, but other witnesses testified that
Weatherington did the pulling. Calhoun and [other persons,
including appellant,] punched Mosqueda in the hallway. There
was ‘a big commotion of bodies’ and people were screaming.
“ [¶]
“Mosqueda fell to the floor and was lying on his side
against a wall. [Appellant] said to Rey, ‘You got a knife. You got
a knife. Stick him. Stick him.’ Rey stabbed Mosqueda four times
in the chest. Mosqueda crawled out of the hallway ‘like a baby’
on his hands and knees with blood on his face, chest, and
stomach. Rey, Vived, [appellant], Ortiz, and Calhoun were
‘around him’ and were punching and kicking him. People in the
background were saying, ‘Leave him alone. He’s knocked out.[’]
Mosqueda fell to his side. Rey, Vived, [appellant], Ortiz, and
Calhoun continued to hit and kick him. [Appellant] said, ‘Now
what’s up dreamer? . . . Now you ain’t talking. You’re not saying
nothing now, are you?’ . . .
“Later that night, Preciado, Ortiz, and Weatherington met
[appellant] in a parking lot. [Appellant] told them that Rey had
stabbed Mosqueda ‘penitentiary style, real quick,’ and that
anyone who said ‘anything to the cops’ would ‘get bumped off’ in
prison. [Appellant] said that Rey ‘had got his stripes.’ This
meant that Rey had earned respect from other gang members
and ‘was up at the top with the big boys . . . .’
“ [¶]
“An expert on criminal street gangs testified that the
killing of Mosqueda had benefited Paso 13 because it had ‘slowed
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down’ the escalation in violence between Paso 13 and NCS and
had ‘put [Paso 13] back on top.’”
Senate Bills 1437 and 775
Section 1170.95 was added to the Penal Code by Senate Bill
No. 1437 (2017-2018 Reg. Sess.) (S.B. 1437), which became
effective on January 1, 2019. (See Stats. 2018, ch. 1015, § 4.) In
S.B. 1437 the Legislature declared, “It is necessary to amend the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, to ensure that murder liability is
not imposed on a person who is not the actual killer, did not act
with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human
life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To achieve this goal,
S.B. 1437 amended section 189 insofar as it pertains to the
felony-murder rule. (Stats. 2018, ch. 1015, § 3.) It also amended
section 188 to add subdivision (a)(3), which “eliminates natural
and probable consequences liability for first and second degree
murder.” (People v. Gentile (2020) 10 Cal.5th 830, 849.)
Section 1170.95, added by S.B. 1437, gives retroactive effect
to the changes in sections 188 and 189. Effective January 1,
2022, section 1170.95 was amended by Senate Bill No. 775 (2021-
2022 Reg. Sess.) (S.B. 775). (Stats. 2021, ch. 551.) As amended,
section 1170.95 provides in relevant part, “A person convicted of
felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime, . . . may file a petition with the court that sentenced the
petitioner to have the petitioner’s murder . . . conviction vacated
and to be resentenced on any remaining counts when” certain
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conditions apply. (Id., subd. (a).) One of the conditions is that
“[t]he petitioner could not presently be convicted of murder or
attempted murder because of changes to Section 188 or 189 made
effective January 1, 2019.” (Id., subd. (a)(3).) The petition must
include a declaration by the petitioner showing that he is eligible
for the relief afforded by section 1170.95. (Id., subd. (b)(1)(A).)
“[T]he court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner
makes a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause.” (§ 1170.95,
subd. (c).) “Within 60 days after the order to show cause has
issued, the court shall hold a hearing to determine whether to
vacate the murder . . . conviction and to recall the sentence and
resentence the petitioner on any remaining counts in the same
manner as if the petitioner had not previously been
sentenced . . . .” (Id., subd. (d)(1).) “At the hearing to determine
whether the petitioner is entitled to relief, the burden of proof
shall be on the prosecution to prove, beyond a reasonable doubt,
that the petitioner is guilty of murder . . . under California law as
amended by the changes to Section 188 or 189 made effective
January 1, 2019.” (Id., subd. (d)(3).)
People v. Lewis
In Lewis, supra, 11 Cal.5th at pp. 971-972, our Supreme
Court gave guidance to trial courts on how they should proceed in
determining whether the petitioner has made a prima facie case
for relief. The Supreme Court stated: “While the trial court may
look at the record of conviction . . . to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited. Like the
analogous prima facie inquiry in habeas corpus proceedings, ‘“the
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court takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would
be entitled to relief if his or her factual allegations were proved.
If so, the court must issue an order to show cause.”’ [Citation.]
‘[A] court should not reject the petitioner’s factual allegations on
credibility grounds without first conducting an evidentiary
hearing.’ [Citation.] . . . [¶] . . . In reviewing any part of the
record of conviction at this preliminary juncture, a trial court
should not engage in ‘factfinding involving the weighing of
evidence or the exercise of discretion.’ . . . [T]he ‘prima facie bar
was intentionally and correctly set very low.’” (Ibid.)
In section 1(b) of S.B. 775, the legislature declared that the
legislation “[c]odifies the holdings of People v. Lewis (2021) 11
Cal.5th 952, 961-970, regarding . . . the standard for determining
the existence of a prima facie case.”
Trial Court’s Ruling
The trial court ruled before Lewis was decided and S.B. 775
was enacted. It concluded that appellant was ineligible for relief
because he had failed to make a prima facie showing that he
could not presently be convicted of second degree murder because
of S.B. 1437’s changes to the Penal Code. The court said, “I’m
taking into consideration that [appellant] was aware of the knife
that was used by Mr. Rey in perpetration of the . . . stabbing;
[and] that [appellant] purportedly said, ‘stick him, stick him’
during the stabbing or prior to the stabbing . . . .”
We Accept the People’s Concession that the Order
Denying Appellant’s Petition Must Be Reversed
In support of his section 1170.95 petition, appellant
declared: “I was convicted of second degree murder pursuant to
the natural and probable consequences doctrine . . . .” “I could
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not now be convicted of . . . second degree murder because of
changes made [t]o Penal Code section 188 . . . .” “I did not, with
the intent to kill, aid, abet, counsel, command, induce, solicit,
request, or assist the actual killer in the commission of
murder . . . .” Nor did I act with “reckless indifference to human
[life].”
In reply to the People’s opposition to the petition,
appellant’s counsel presented a factual scenario contrary to the
statement of facts in the Garcia I opinion: “During the assault,
one of the attackers, Mr. Rey, stabbed the victim with a knife,
causing death. [Appellant] had no knowledge that Mr. Rey was
carrying a knife before the attack. At no point did [appellant]
encourage Mr. Rey to ‘stick’ or ‘stab’ the victim. [Appellant] did
not intend that the victim be killed.”
The People argue that “[t]he evidence does not appear to
support appellant’s . . . contention . . . that he could not be
convicted of murder under . . . amended section 188. The People
explain: “[T]he evidence supports finding that appellant was an
aider and abettor to murder with actual malice. This is not a
situation where an aider and abettor had no idea of the criminal
scheme he joined, nor was it a criminal enterprise where violence
and death were unexpected. . . . The stabbing [of Mosqueda] . . .
was not spontaneous or accidental, but occurred only after
appellant’s encouragement and instigation and during a seven-to-
one beating of the victim. Based on this evidence, it is clear
appellant was a direct aider and abettor who acted either with
express malice, or at least with implied malice, i.e., he intended
to perform an act he knew presented a danger to the life of
another but acted in conscious disregard of that danger.”
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Nevertheless, the People concede that “such observations
about the evidence in the record are insufficient to show that
appellant is absolutely ineligible for section 1170.95 relief as a
matter of law. Appellant’s jury was instructed on the natural
and probable consequences theory with respect to the murder,
with the target crime of assault. [Record citation.] Neither the
jury instructions nor the verdicts indicate that appellant was
necessarily convicted of murder based on a theory of actual malice
as required by . . . amended section 188 for a direct aider and
abettor. The record thus shows that appellant presented a prima
facie case for relief. The trial court’s weighing of the evidence
should have been reserved for an evidentiary hearing in
accordance with section 1170.95, subdivision (d)(3).”
Based on Lewis and S.B. 775, we accept the People’s
concession. The record on appeal in Garcia I does not
“‘conclusively refute [appellant’s assertions in the petition] as a
matter of law.’” (People v. Davenport (2021) 71 Cal.App.5th 476,
481.)
Disposition
Our decision in Garcia II is vacated. On reconsideration of
the cause in light of Lewis, supra, 11 Cal.5th at pp. 971-972, and
S.B. 775, we reverse the order denying appellant’s section
1170.95 petition. The cause is remanded to the trial court with
directions to issue an order to show cause and conduct a hearing
as required by section 1170.95.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
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GILBERT, P. J. PERREN, J.
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Jacquelyn H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Vanessa Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Rob Bonta, Attorneys General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Idan Ivri, Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.