People v. Garcia CA2/1

Filed 10/10/22 P. v. Garcia CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B308825

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA318570)
v.

JOSE GARCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Norm Shapiro, Judge. Affirmed.
Gail Harper, 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, Idan Ivri and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________________
 In 2009, a jury found Jose Garcia guilty of first degree
murder and found true a special circumstance allegation that the
murder was intentional and perpetuated by discharging a
firearm from a motor vehicle with the intent to inflict death upon
a person outside the vehicle. The jury also found gang and
firearm enhancement allegations to be true. The prosecution’s
theory at Garcia’s trial was that Garcia was a direct aider and
abettor (the driver) in a gang-related drive-by shooting. In 2012,
we affirmed Garcia’s murder conviction in his direct appeal, in
which he challenged the admission of a gang expert’s testimony,
among other things.
In the present appeal, Garcia challenges the trial court’s
denial of his petition for resentencing under Penal Code section
1172.6 without issuing an order to show cause and holding an
evidentiary hearing.1 He acknowledges the record shows the jury
found he acted with express malice as a direct aider and abettor
in the murder (and there were no jury instructions given on
felony murder or the natural and probable consequences
doctrine). Notwithstanding those circumstances, he contends he
is eligible for vacation of his murder conviction under section
1172.6, a statute which authorizes relief for, among others, a
person convicted of murder under a theory in which malice was
imputed to the person based solely on the person’s participation

1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). Garcia filed his petition prior to this renumbering,
and he therefore referred to the statute as section 1170.95 in his
petition. In this opinion, for the sake of consistency, we refer to
the statute by its current designation, section 1172.6.
Undesignated statutory references are to the Penal Code.

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in the crime. He argues the jury impermissibly imputed malice
to him based on gang membership, due to improperly admitted
gang expert testimony. We affirm the order denying the petition
for resentencing because Garcia’s record of conviction shows as a
matter of law he is ineligible for relief under section 1172.6
because the jury necessarily found he was a direct aider and
abettor in the murder who acted with express malice. His
arguments regarding improperly admitted gang expert testimony
and insufficiency of the evidence of malice are not within the
scope of section 1172.6.
BACKGROUND
I. Trial and Direct Appeal
In 2009, Garcia was tried for one count of murder with
codefendant, Steven Menendez. There were no other offenses
charged in the information. The prosecution’s theory of the case
as presented at trial was that 16-year-old Garcia and 14-year-old
Menendez were gang members who committed a gang-motivated
drive-by shooting, resulting in one fatality. The prosecution
presented evidence that Garcia was the driver and Menendez was
the passenger and shooter. The prosecution’s gang expert opined
that Garcia and Menendez were members of a criminal street
gang, and they committed their crime for the benefit of the gang.
Garcia testified in his defense, acknowledging he drove the car
and Menendez was his passenger during the shooting. Garcia
also testified that a third man, Noel Velasco (deceased at the time
of trial), was in the car, and Velasco fired the fatal shot from
inside the car. Garcia further testified that he had not seen a
gun in the car, and he indicated he did not know Velasco was
going to shoot anyone. Garcia called his own gang expert, who
opined that Velasco committed the shooting for personal reasons

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rather than to benefit the gang. Defense witnesses testified that
a member of a rival gang had impregnated Velasco’s girlfriend.2
Using CALJIC No. 3.01, “Aiding and Abetting—Defined,”
the trial court instructed the jury:
“A person aids and abets the commission or attempted
commission of a crime when he or she:
“(1) With knowledge of the unlawful purpose of the
perpetrator, and
“(2) With the intent or purpose of committing or
encouraging or facilitating the commission of the crime, and
“(3) By act or advice aids, promotes, encourages or
instigates the commission of the crime.
“Mere presence at the scene of a crime which does not itself
assist the commission of the crime does not amount to aiding and
abetting.
“Mere knowledge that a crime is being committed and the
failure to prevent it does not amount to aiding and abetting.”
The trial court also instructed the jury, in pertinent part,
on malice aforethought (CALJIC No. 8.11) and deliberate and

2 This brief overview of the circumstances of the shooting is
taken from our opinion in Garcia’s direct appeal. (People v.
Garcia (Oct. 30, 2012, B221672) [nonpub. opn.], pp. 2-3, 5-8.) We
provide this summary only to give context to Garcia’s contentions
in this appeal. These facts are not material to our legal analysis,
and we do not rely on them as the basis for affirming the trial
court’s order denying Garcia’s section 1172.6 petition. As
discussed below, the jury instructions given at Garcia’s trial and
the jury’s verdict demonstrate Garcia is ineligible for
resentencing under section 1172.6 as a matter of law. We note
that our summary of facts is not inconsistent with the facts
Garcia presented in his briefing in this appeal.

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premeditated murder (CALJIC No. 8.20), the only theory of first
degree murder presented to the jury. The court further
instructed the jury on two special circumstances: intentional
discharge of a firearm from a motor vehicle (§ 190.2, subd.
(a)(21)) and intentional killing by an active street gang member
(§ 190.2, subd. (a)(22)). The court did not instruct the jury on
felony murder or murder under a natural and probable
consequences theory.
The jury found Garcia and Menendez guilty of first degree
murder and found true the special circumstance allegation that
“the murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at
another person and persons outside the vehicle with the intent to
inflict death pursuant to [section] 190.2[, subd.] (a)(21).” The jury
also found true the special enhancement allegations that the
murder was committed for the benefit of, at the direction of, or is
in association with a criminal street gang within the meaning of
section 186.22, subdivision (b)(1)(C), and a principal personally
and intentionally discharged a firearm in the commission of the
murder within the meaning of section 12022.53, subdivisions (b)-
(e). As to both Garcia and Menendez, the jury was unable to
agree on the special circumstance allegation that “the defendant
intentionally killed [the victim] while the defendant was an
active participant in a criminal street gang and the murder was
carried out to further the activities of the criminal street gang
pursuant to [section] 190.2[, subd.] (a)(22).” The jury also made
no findings on the allegations that Menendez had personally and
intentionally used and discharged a firearm.
The trial court granted Garcia’s motion to set aside the
special circumstance allegation, which would have required the

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court to sentence him to life without the possibility of parole
under section 190.5, subdivision (b). The court sentenced Garcia
to 50 years to life in prison: 25 years to life for the first degree
murder plus 25 years to life for the firearm enhancement under
section 12022.53, subdivision (d). The court also sentenced
Menendez to 50 years to life.
Garcia and Menendez appealed their convictions, raising
numerous claims of trial and sentencing error. One of the
contentions they asserted in the direct appeal, which Garcia
again raises in the present appeal, is that the trial court erred in
admitting the prosecution’s gang expert’s testimony. Citing
People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew),
disapproved on other grounds in People v. Vang (2011) 52 Cal.4th
1038, which Garcia also relies on in the present appeal, Garcia
and Menendez argued in their direct appeal that the
prosecution’s gang expert’s testimony was improper because,
among other things, the expert testified directly to the
defendants’ motives and mental states at the time of the
shooting. (People v. Garcia, supra, B221672, pp. 31-35.) In
accordance with People v. Vang, we rejected Garcia and
Menendez’s challenge to the prosecution’s gang expert’s
testimony, concluding the expert “was properly permitted to
express an opinion, based on hypothetical questions that tracked
the evidence, that the shooting (if the jury found it had in fact
occurred as the prosecution’s evidence indicated) would have been
for a gang purpose.” (Garcia, at p. 35.) We also rejected Garcia
and Menendez’s other claims of error and affirmed the judgment.
II. Garcia’s Section 1172.6 Petition
In 2018, the Legislature enacted Senate Bill No. 1437 “to
amend the felony murder rule and the natural and probable

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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.” (Sen. Bill No. 1437 (2017-2018 Reg.
Sess.) Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) &
189, subd. (e).) Senate Bill No. 1437 amended sections 188
(defining malice) and 189 (felony murder) and added section
1170.95, now renumbered section 1172.6, which established a
procedure for vacating murder convictions and resentencing
defendants who could no longer be convicted of murder in light of
the amendments to sections 188 and 189. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)
On March 15, 2019, Garcia filed a form petition for
resentencing under former section 1170.95, now section 1172.6.
In the petition, he checked boxes stating, in pertinent part, that
he was convicted of first degree murder pursuant to the felony
murder rule or the natural and probable consequences doctrine,
and he could not now be convicted of that crime because of
changes to sections 188 and 189, effective January 1, 2019. He
also checked the box requesting the trial court appoint counsel to
represent him in connection with his petition.
The trial court appointed counsel to represent Garcia, and
the district attorney filed a response to Garcia’s petition. The
district attorney pointed out Garcia “was prosecuted as a direct
aider and abettor to the murder[, who] participated in a drive-by
murder of the victim with the intent to kill.” His jury was not
instructed on felony murder or murder under a natural and
probable consequences theory. Therefore, the district attorney
argued, Garcia was ineligible for relief under the statute. The

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district attorney attached to the response the jury instructions
given at Garcia’s trial and our opinion in Garcia’s direct appeal,
among other exhibits.
Garcia, through his appointed counsel, filed a reply brief in
support of his petition for resentencing. He conceded he was not
convicted of felony murder or murder under a natural and
probable consequences theory. He summarized evidence
presented at trial, citing the reporter’s transcripts of the trial.
He argued there was no substantial evidence he acted with
malice. He asserted malice was imputed to him “as the natural
and probable consequence of driving in a car with a fellow gang
member” into “a rival’s territory,” based on the prosecution’s gang
expert’s “impermissible” testimony that Garcia “knew a
passenger had a gun and he intended to facilitate murder.”
On October 7, 2020, after hearing oral argument from the
parties, the trial court denied Garcia’s petition without issuing an
order to show cause and holding an evidentiary hearing. As the
court explained at the hearing, it concluded Garcia “failed to
bring this case within the parameters of [section] 1170.95[,
subdivision] (a),” now renumbered as section 1172.6.
DISCUSSION
I. Garcia Is Ineligible for Relief Under Section 1172.6
as a Matter of Law
A. Section 1172.6 and Other Applicable Law
Under section 1172.6, subdivision (a), “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, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with

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the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) 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. [¶] (2) The
petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
or attempted murder. [¶] (3) 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.”
Senate Bill No. 1437 added the following provision to
section 188: “Except as stated in subdivision (e) of Section 189, in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) The effect of this amendment was to
“eliminate[ ] natural and probable consequences liability for first
and second degree murder.” (People v. Gentile (2020) 10 Cal.5th
830, 849 (Gentile).) Senate Bill No. 1437 also added subdivision
(e) to section 189, limiting felony murder liability to a person who
was the actual killer, acted with the intent to kill, or was a major
participant in the underlying felony and acted with reckless
indifference to human life. (Gentile, supra, at p. 842.)

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 When a defendant files a facially sufficient petition under
section 1172.6, the trial court must appoint counsel to represent
the petitioner, allow briefing from both sides, and hold a hearing
to determine whether the petitioner has made a prima facie
showing for relief. (§ 1172.6, subds. (b)-(c).) As our Supreme
Court explained: “While the trial court may look at the record of
conviction after the appointment of counsel to determine whether
a petitioner has made a prima facie case for section [1172.6]
relief, the prima facie inquiry under subdivision (c) is limited.
Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the 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.” ’ [Citations.] ‘[A] court should not reject the
petitioner’s factual allegations on credibility grounds without
first conducting an evidentiary hearing.’ [Citations.] ‘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.” ’ ” (People v. Lewis (2021) 11 Cal.5th 952, 971.)
If the trial court issues an order to show cause, the final
step in the process is a hearing to determine if the petitioner is
entitled to relief, where the trial court must vacate the
petitioner’s murder (or attempted murder or manslaughter)
conviction and resentence him or her on any remaining counts
unless the prosecution can “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.” (§ 1172.6, subd. (d)(3).)

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 B. Inapplicability of Section 1172.6 to Garcia’s
Case
Garcia and Menendez were charged with one count of
murder. Based on the jury instructions given at trial and the
jury’s verdict, as summarized above, it is clear Garcia was
prosecuted as a direct aider and abettor to murder, and the jury
found he intended to aid and abet a first degree, deliberate and
premeditated murder.3 Garcia concedes the only theory of his
liability presented at trial was as a direct aider and abettor to
murder, and the jury necessarily found he acted with express
malice.
Garcia could be prosecuted for murder under the same
direct aiding and abetting theory today. “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.) The

3 Garcia contends we must reverse the order denying his
section 1172.6 petition because the trial court impermissibly
relied on the factual summary in this court’s opinion in his direct
appeal. We reject this contention. The specific evidence
presented at trial regarding the facts and circumstances of the
shooting is immaterial to the analysis of whether Garcia made a
prima facie case for relief under section 1172.6. The jury
instructions and verdict demonstrate Garcia is ineligible for relief
under section 1172.6 as a matter of law because he was
prosecuted as a direct aider and abettor to murder, and the jury
found he intended to aid and abet a first degree, deliberate and
premeditated murder. For the same reason, we decline to strike
the Attorney General’s brief, as Garcia asks us to do because the
Attorney General provides a factual account taken from the
appellate opinion. As in this opinion, the facts are provided for
context and are not material to the legal analysis.

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amendments to sections 188 and 189 are not relevant to Garcia’s
case. Thus, he cannot show he “could not presently be convicted
of murder . . . because of changes to Section 188 or 189 made
effective January 1, 2019,” a statutorily mandated prerequisite
for a section 1172.6 petition. (§ 1172.6, subd. (a).) He is
ineligible for relief under section 1172.6 as a matter of law.
Garcia asserts his case falls within the scope of section
1172.6 because he was prosecuted on a “theory under which
malice is imputed to a person based solely on that person’s
participation in a crime,” and changes to the law now preclude
such a prosecution. (§ 1172.6, subd. (a); § 188, subd. (a)(3).)4
Garcia was not prosecuted under such a theory (e.g., the natural
and probable consequences doctrine). No statute, caselaw, or jury
instruction allowed the jury to impute malice to Garcia. To find
Garcia guilty of the first degree, special circumstance murder as
it did, the jury was required to find Garcia acted with intent to
kill.
Garcia contends he was prosecuted under a theory
“analogous to the natural and probable consequences doctrine.”
He asserts the trial court erred in admitting testimony from the
prosecution’s gang expert and this testimony, coupled with
prosecutor’s arguments regarding the testimony, “improperly
supplied the element of malice upon which Garcia’s conviction as

4 Garcia initially raised an equal protection argument in
this appeal, but he abandoned it, arguing section 1172.6, as
amended by Senate Bill No. 775 (Stats. 2021, ch. 551, § 2 (2021-
2022 Reg. Sess.)), expressly applies to theories of murder other
than felony murder and murder under the natural and probable
consequences doctrine. For the reasons explained in this opinion,
however, section 1172.6 does not apply to Garcia’s case.

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an aider and abettor was based.” He maintains: “The mental
state of gang members was the foundation of the prosecutor’s
theory that Garcia knew Menendez was planning to kill someone,
and that Garcia knowingly and intentionally aided Menendez
with intent to kill.” Garcia claims he was prosecuted “on the
theory that [he] acted with the intent of a gang member,” and
“because the gang expert’s testimony was improperly used in this
case to ‘prove’ Garcia’s ‘intent to kill’ [the victim] to obtain a
murder conviction on an aiding and abetting theory, Garcia must
be found to be eligible for resentencing under section [1172.6].”
He also argues in the present appeal that there was “a failure of
proof of intent to kill in this case.”
We need not summarize herein the prosecution’s gang
expert’s testimony on which Garcia bases these claims of
evidentiary error in the admission of the expert’s testimony and
insufficiency of the evidence of malice. Suffice it to say Garcia
characterizes the gist of the purported problematic testimony as
follows: “[W]hen one gang member in a car possesses a gun,
every other gang member in the car knows of the gun.” Garcia’s
claims of evidentiary error and insufficiency of the evidence are
not within the scope of section 1172.6; they are claims for a direct
appeal. Indeed, Garcia and Menendez challenged the admission
of the prosecution’s gang expert’s testimony in their direct
appeal, relying on the same case Garcia discusses in the present
appeal, Killebrew, supra, 103 Cal.App.4th 644. Garcia argued in
his opening brief in his direct appeal, more than a decade ago,
that the trial court erred under Killebrew in admitting the gang
expert’s testimony because “ ‘an expert witness may not offer an
opinion on what a particular defendant is thinking.’ ” (People v.
Garcia, supra, B221672, p. 32.) Section 1172.6 does not allow

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Garcia to challenge the admission of the gang expert’s testimony
or the sufficiency of the evidence of malice. He was prosecuted on
a theory of murder liability that is still valid today. The changes
to sections 188 and 189 are inapplicable to his case. His time to
raise claims of trial error has long since passed.
Because the jury instructions and verdict demonstrate
Garcia is ineligible for relief under section 1172.6 as a matter of
law, the trial court did not err in denying Garcia’s section 1172.6
petition at the prima facie stage.
II. Assembly Bill No. 333 Does Not Apply to Garcia’s
Case
Garcia filed supplemental briefing in this appeal regarding
Assembly Bill No. 333. (Stats. 2021, ch. 699, § 3 (2021-2022 Reg.
Sess.).) Assembly Bill No. 333 “amended section 186.22 to impose
new substantive and procedural requirements for gang
allegations.” (People v. Sek (2022) 74 Cal.App.5th 657, 665.)
Assembly Bill No. 333 applies retroactively “to acts committed
before its passage provided the judgment convicting the
defendant of the act is not final.” (Sek, at pp. 666, 667.) Garcia’s
judgment of conviction was final in 2013, when the remittitur
issued in his direct appeal. Thus, Assembly Bill No. 333 affords
Garcia no relief.
In his supplemental reply brief, Garcia contends: “Even if
Garcia’s judgment was final at the time he filed his petition for
resentencing, AB [Assem. Bill No.] 333 would require reversal of
any gang enhancements if Garcia prevails at his section 1172.6,
subdivision (d) hearing and the judge vacates his murder
conviction. Once the conviction is vacated, there is no longer a
judgment and current law applies to the resentencing.” We need
not address the merits of this contention because Garcia is

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ineligible for relief under section 1172.6 as a matter of law for the
reasons set forth above.
DISPOSITION
The October 7, 2020 order denying the section 1172.6
petition is affirmed.
NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENKE, J.*

*Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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