Filed 3/3/22 P. v. Garcia CA2/2
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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. Reversed and
remanded.
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), who was convicted of two counts
of attempted murder and other crimes in 2015, appeals from the
denial of his petition for resentencing under Penal Code section
1170.95.1 In an unpublished opinion issued on March 25, 2021,
we affirmed that denial solely on the ground that section 1170.95
did not accord relief to persons convicted of attempted murder.
(People v. Garcia (Mar. 25, 2021, B304788) (Garcia II).)
Defendant filed a petition for review by the California Supreme
Court, which was held along with numerous other similar cases.
While this case has been pending, our Legislature enacted and
the Governor signed into law Senate Bill No. 775 (Senate Bill
775). (Stats. 2021, ch. 551.) Senate Bill 775 amended section
1170.95 to expand eligibility for resentencing to persons convicted
of attempted murder. On June 9, 2021, the California Supreme
Court granted review in this case, and, in an order filed January
26, 2022, transferred the case back to this court with directions
to vacate our prior decision and reconsider in light of Senate Bill
775. In light of the enactment of Senate Bill 775, we vacate our
previous opinion and decision in this case (Garcia II) and remand
the matter to the trial court for a new evidentiary hearing
pursuant to section 1170.95, subdivision (d)(3).
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
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 into 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)
& 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); 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,
subds. (d), (e)(1)); and that defendant personally inflicted great
bodily injury in the course of each attempted murder (§ 12022.7,
subd. (b)).
2 We draw these facts from our prior, unpublished appellate
opinion affirming defendant’s convictions. (People v. Garcia (Nov.
21, 2016, B266328) (Garcia I).)
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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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, compromised of 7 years to life for the attempted murder
plus 25 years for the discharge of firearm allegation; the court
ran the two attempted murder sentences consecutively.
Defendant appealed his conviction and we affirmed in an
unpublished opinion. (Garcia I, supra, B266328).)
II. Procedural Background
On October 22, 2019, defendant filed a petition seeking
resentencing under section 1170.95 for his two attempted murder
convictions. The trial court summarily denied the petition,
noting that Senate Bill 1437 did not afford relief to persons
convicted of attempted murder.
Defendant timely appealed. At that time, the Court of
Appeal was split on whether section 1170.95 applied to attempted
murder convictions. We affirmed the order denying the petition
because we interpreted then-existing section 1170.95 to authorize
relief for defendants convicted of murder, but not attempted
murder. (Garcia II, supra, B304788.) Defendant petitioned for
review in the Supreme Court. The Supreme Court granted
review; transferred the matter back to this court; and directed us
to vacate our prior decision and reconsider in light of Senate Bill
775. Following the transfer, the Attorney General and defendant
submitted supplemental briefs addressing the impact of Senate
Bill 775 on this case.
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DISCUSSION
In his supplemental brief, the Attorney General concedes
that reversal and remand for an evidentiary hearing is
appropriate. We agree.
Senate Bill 1437 enacted section 1170.95, which
“amend[ed] 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);
People v. Gentile (2020) 10 Cal.5th 830, 842.)
Prior to the enactment of Senate Bill 775, the Court of
Appeal was split on whether section 1170.95 applied to attempted
murder as well as murder, with some courts holding that section
1170.95 did not apply to attempted murder at all, others holding
that it applied only prospectively to attempted murder, and still
others holding that it applied both prospectively and retroactively
to nonfinal attempted murder convictions. (See Love, supra, 55
Cal.App.5th at pp. 278-279 [summarizing the split of authority as
of Oct. 1, 2020].)
Senate Bill 775 resolved this split of authority by amending
section 1170.95 to explicitly afford relief to persons convicted of
attempted murder and manslaughter. Senate Bill 775’s
amendments to section 1170.95 became effective January 1, 2022.
Defendant’s appeal from the denial of his resentencing petition
was not final by that date; thus, defendant may avail himself of
this latest amendment. (People v. Vieira (2005) 35 Cal.4th 264,
306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed, and the matter remanded for an evidentiary hearing
pursuant to section 1170.95, subdivision (d)(3), as amended by
Senate Bill 775.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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