People v. Garcia CA2/1

Filed 5/3/22 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B315178

Plaintiff and (Los Angeles County
Respondent, Super. Ct. No. VA008252)

v.

SERGIO GARCIA,

Defendant and
Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Andrew C. Kim, Judge. Affirmed.
Sergio Garcia, in pro. per.; Lori Nakaoka, under
appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
____________________________
 A jury convicted Sergio Garcia of first degree murder and
found true the allegation that he had personally used “deadly and
dangerous weapon(s), to wit, a knife and a large rock” when he
and a codefendant killed Robert Velasquez on the night of July
29, 1990. In July 2021, Garcia filed a petition for resentencing
under Penal Code section 1170.95, alleging that he could not now
be convicted of first or second degree murder for Velasquez’s
death and requesting appointed counsel.1
As the trial court explained, the record of conviction
establishes that Garcia was tried not as an accomplice, but as
Velasquez’s actual killer. Although the trial court erred by not
appointing counsel upon Garcia’s filing of a facially sufficient
section 1170.95 petition, the record of conviction establishes that
Garcia is ineligible for relief under section 1170.95 as a matter of
law. The trial court’s error was harmless, and we will affirm.

BACKGROUND
Our opinion in Garcia’s direct appeal details that after a
short interaction with Velasquez, Garcia and his codefendant
formulated a plan to kill Velasquez and then carried it out.
“The two planned that [Garcia’s codefendant, Jimmy]
Perez[,] would tell Velasquez that they would share some heroin
with him if he could supply a syringe. They would then stop at
Perez’s [house] to get a knife under the guise of obtaining a
spoon. [Garcia] already had a knife.
“They found Velasquez at a bar and proceeded with their
plan. Velasquez obtained a syringe and, after stopping off at
Perez’s house for the knife and spoon, the three drove to the Pico
Rivera Golf Course in [Garcia’s car] and walked to a river bed

1 Further statutory references are to the Penal Code.

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near the golf course. Perez had hidden a cup of water at the end
of a dirt path and he turned his back and pulled out his knife as
he drew some of the water into the syringe. When Perez turned
around, [Garcia] had already started to stab Velasquez.
Velasquez grabbed onto Perez and the two fell off the
embankment. As Velasquez stood up, [Garcia] grabbed him from
behind and told Perez to stab Velasquez or else share the same
fate. In the process of stabbing Velasquez, Perez accidentally
stabbed [Garcia’s] hand. Perez then dropped his knife and
walked away, followed by [Garcia]. As Perez looked back, he saw
that Velasquez was still moving and told [Garcia] that
[Velasquez] was still alive. [Garcia] went over to Velasquez,
picked up a rock and hit him on the head at least once. On the
way to the car, [Garcia] asked for Perez’s sweatshirt and wrapped
it around his bleeding hand. Perez drove them to his house
where they tried unsuccessfully to treat [Garcia’s] hands.
[Garcia] gave Perez his blood soaked shoes and socks and left.
Perez threw these items and the sweatshirt, along with his own
pants, into the backyard pool. The next day the items were
retrieved and washed.
“On August 8, 1990, Perez took Sheriff’s detectives to the
river bed where Velasquez had been stabbed. They found the
knife Perez had used and Perez later gave them the shoes that
[Garcia] wore at the time. A medical examination of Velasquez’s
body concluded that the cause of death was multiple stab wounds
and that a contributing factor was blunt force trauma to the top
of his head.
“Los Angeles Sheriff’s Department Criminalist Richard
Catalani conducted blood tests on a large heavy rock found two
feet from Velasquez. These tests indicated that the source of

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blood found on the convex side of the rock could come from 0.4
percent of the county population, or roughly 32,000 people, and
that [Garcia] was a member of this group, but that Velasquez and
Perez were not. The blood on the concave side of the rock could
not have come solely from [Garcia], Velasquez[,] or Perez.
However, the sample could have been donated from a
combination of blood from two or more donors. If so, a possible
source was a mixture of [Garcia’s] and Velasquez’s blood.”
(People v. Garcia (Oct. 25, 1993, B070152) at pp. 2-4 [nonpub.
opn.] (Garcia I).)
The People filed an information alleging that Garcia had,
“with malice aforethought,” committed first degree murder
(§ 187, subd. (a)), that he had personally used “deadly and
dangerous weapon[s], to wit, a knife and large rock” in the
commission of the murder, and that he had committed the
murder “for the benefit of, at the direction of, and in association
with a criminal street gang . . . .” The People also alleged that
Garcia had suffered two prior serious felony convictions for
purposes of section 667, subdivision (a).
At trial, Garcia’s defense was that he was not present when
the murder happened. Garcia “testified that on the night in
question he went to visit relatives in Whittier and left the family
gathering between 7 and 7:30 p.m. to drive around his old
neighborhood in Pico Rivera. At approximately 8 p.m., [Garcia]
encountered Velasquez, an old friend, and spoke with him for a
while. A short while later, [Garcia] was introduced to Perez.
[Garcia] knew Perez’s uncle from jail and understood that his
uncle was affiliated with a prison gang. Perez asked [Garcia] for
a ride home because he wanted to get some money to buy heroin.
When Perez returned to [Garcia’s] car, he appeared to be upset.

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Perez told [Garcia] he was unable to get any money and asked for
a ride to the Pico Rivera Golf Course so that he could show
[Garcia] something. After they walked for a while, Perez pulled
out a knife and accused [Garcia] of seeing his girlfriend. Perez
lunged at [Garcia] and cut his hand.
“[Garcia] ran to his car and drove to his sister’s house.
[Garcia] arrived between 9:30 and 10 p.m., and, after [Garcia’s]
sister was unable to stop the bleeding, [Garcia’s] brother-in-law
drove him to a hospital. They arrived at approximately 11 p.m.
because there was a lot of traffic on the way and they got lost
while driving. [Garcia] denied stabbing Velasquez.” (Garcia I,
supra, B070152 at p. 5.)
After trial, a jury found Garcia guilty of first degree murder
and found true the allegation that he had personally used a knife
and large rock to murder Velasquez. The record also indicates
that the allegations that Garcia had suffered two prior serious
felony convictions for purposes of section 667, subdivision (a)
were also found to be true. The trial court sentenced Garcia to a
total of 36 years to life in prison.
On July 20, 2021, Garcia filed a petition for resentencing
under section 1170.95. In the petition, Garcia alleged that he
was convicted of first or second degree murder under the felony
murder rule or the natural and probable consequences doctrine,
that he could not now be convicted of first or second degree
murder because of changes made to sections 188 and 189 effective
January 1, 2019, and that he was not the actual killer, did not,
with the intent to kill, aid and abet the actual killer, was not a
major participant in the felony and did not act with reckless
indifference to human life during the course of the crime. Garcia
also requested that the trial court appoint counsel.

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 The trial court summarily denied Garcia’s petition the
following day. The order, in its entirety, states: “The court has
read and considered the Petition for Resentencing pursuant to
Penal Code section 1170.95 received on July 20, 2021. The court
has also considered the documents contained in its file in People
v. Sergio Garcia (case number VA008252), including the felony
complaint, information, probation officer’s report, minute orders
detailing the trial proceedings, and abstract of judgment. A jury
convicted petitioner of first-degree murder on the theory that he
was a direct perpetrator of the killing and found true the special
allegation that he personally used two weapons (a ‘knife and
large rock’) in the commission of the crime. Petitioner is
ineligible for relief as a matter of law since the prosecution case
was not based upon either the felony murder rule or the natural
and probable consequences doctrine. Therefore, the petition is
DENIED.”
Garcia filed a timely notice of appeal. This court appointed
counsel for Garcia. Appellate counsel filed a brief raising no
issues and requesting that we independently review the record
pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Counsel notified Garcia that she would be filing the brief and
that Garcia could file a supplemental brief with this court.
Garcia submitted a supplemental brief, in which he
contends that the trial court erred when it summarily denied his
section 1170.95 petition without first appointing counsel and
affording him an evidentiary hearing. He also contends that the
jury was given conflicting jury instructions because they were
instructed on both first and second degree murder as well as
aiding and abetting liability. Based on these purportedly
conflicting jury instructions, Garcia argues, he should be able to

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argue in the trial court that the blood evidence introduced in the
trial court was inadmissible, and that he should be able to
introduce evidence to “dispute facts of [the] case such as . . . blood
stains, weapon DNA and other evidence used against appellant.”

DISCUSSION
Because Garcia’s appeal is not from his conviction, he is not
entitled to our independent review of the record pursuant to
Wende or its federal constitutional counterpart, Anders v.
California (1967) 386 U.S. 738. (See People v. Kelly (2006) 40
Cal.4th 106, 119; People v. Serrano (2012) 211 Cal.App.4th 496,
503 (Serrano); Pennsylvania v. Finley (1987) 481 U.S. 551, 559.)2
He is entitled, however, to file a supplemental brief and, if he
files such a brief, to our review of his contentions. (See Serrano,
at p. 503.) We therefore consider the contentions raised in
Garcia’s supplemental brief.
Five days after the trial court summarily denied his
petition, our Supreme Court issued its opinion in People v. Lewis
(2021) 11 Cal.5th 952. In that opinion, the court concluded that
“petitioners are entitled to the appointment of counsel upon the
filing of a facially sufficient petition [citation] and that only after
the appointment of counsel and the opportunity for briefing may
the superior court consider the record of conviction to determine

2 Under Serrano, in a criminal appeal in which Wende does
not apply, counsel who finds no arguable issues is still required to
(1) inform the court that counsel has found no arguable issues to
be pursued on appeal; (2) file a brief setting out the applicable
facts and law; (3) provide a copy of the brief to appellant; and (4)
inform the appellant of the right to file a supplemental brief.
(Serrano, supra, 211 Cal.App.4th at p. 503, citing
Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544.)

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whether ‘the petitioner makes a prima facie showing that he or
she is entitled to relief.’ ” (Id. at p. 957.) The trial court’s failure
to appoint counsel, however, was subject to a harmless error
analysis under People v. Watson (1956) 46 Cal.2d 818. (Lewis, at
pp. 957-958.)
The trial court erred by summarily denying Garcia’s
petition without first appointing counsel and allowing briefing.
(Lewis, supra, 11 Cal.5th at p. 957.) But as we explore below, the
record of conviction in this matter establishes that Garcia is
ineligible for relief under section 1170.95 as a matter of law. The
trial court’s error was harmless. (See Watson, supra, 46 Cal.2d at
p. 836.)
Upon receipt of a facially sufficient petition that also
requests appointment of counsel, section 1170.95 requires the
trial court to appoint counsel to represent the petitioner.
(§ 1170.95, subd. (b)(3).) Within 60 days, the prosecutor must file
and serve a response to the petition, and the petitioner may file
and serve a reply within 30 days thereafter. (§ 1170.95, subd.
(c).) “After the parties have had an opportunity to submit
briefings, the 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. If the court
declines to make an order to show cause, it shall provide a
statement fully setting forth its reasons for doing so.” (Ibid.) If
the trial court issues an order to show cause, the trial court must
hold a second hearing—this one to determine whether to vacate
the petitioner’s conviction. (§ 1170.95, subd. (d)(1).) Evidence
may be introduced at the second hearing. (§ 1170.95, subd.
(d)(3).)

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 Here, the trial court should have appointed counsel,
allowed the parties to brief the matter, and conducted the
hearing required by section 1170.95, subdivision (c) “to determine
whether the petitioner has made a prima facie case for relief.”
It is evident from the record of conviction, however, that
Garcia has not made a prima facie case for relief under section
1170.95.
Relief under section 1170.95 is limited to persons
“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, attempted murder under the natural
and probable consequences doctrine, or manslaughter.”
(§ 1170.95, subd. (a).) The petition must allege that “[a]
complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder, 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, or attempted murder under the natural and probable
consequences doctrine.” (§ 1170.95, subd. (a)(1).) It must also
allege that the petitioner “could not presently be convicted of
murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a)(3).)
The record of conviction here establishes that Garcia was
prosecuted as Velasquez’s actual killer. The information alleges
malice murder and Garcia’s personal use of two deadly weapons
to kill Velasquez. The jury clearly and soundly rejected Garcia’s
trial testimony and chose to believe that Garcia was at least an
actual killer—even if not the only actual killer—of Velasquez.

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 The result is that Garcia is ineligible for relief as a matter
of law for at least two reasons. First, he is not “[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 . . . .” (See § 1170.95, subd. (a).) Rather,
he was convicted of first degree malice murder.
Second, Garcia could still be convicted of murder after the
changes to sections 188 and 189 effective January 1, 2019. (See
§ 1170.95, subd. (a)(3).) Under section 189 as it currently exists,
one who murders is still liable for murder if they were the actual
killer. (§ 189, subd. (e)(1).)
The record of conviction therefore establishes that Garcia is
ineligible for relief as a matter of law. The trial court’s error was
harmless. (Lewis, supra, 11 Cal.5th at pp. 957-958; Watson,
supra, 46 Cal.2d at p. 836.)
We need not reach Garcia’s contention that he would have
been entitled at an evidentiary hearing to retry questions of fact
that a jury necessarily decided against him at his trial because
Garcia never established that he was entitled to an evidentiary
hearing under section 1170.95, subdivision (d)(3) in the first
instance. The proceedings in this matter would necessarily have
concluded with an order declining to issue an order to show cause
and stating the reasons why. (§ 1170.95, subd. (c).)
Although Garcia is not entitled to Wende review on this
appeal, we have examined the entire record and are satisfied that
Garcia’s counsel has fully complied with her responsibilities
under Wende and Serrano. (See Wende, supra, 25 Cal.3d at p.
441; Serrano, supra, 211 Cal.App.4th at p. 503.) No arguable
issues exist.

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 DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. 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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