Filed 11/10/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
A163046
v.
MARIO GARCIA, (San Mateo County
Super. Ct. No. 16NF003723A)
Defendant and Appellant.
In 2018, defendant Mario Garcia was sentenced to 24 years in prison
after a jury found him guilty of assault on a peace officer with a
semiautomatic firearm (Pen. Code, § 245, subd. (d)(2))1 and other counts. We
affirmed the judgment in part but remanded to allow for various corrections
to the sentence. (People v. Garcia (Jul. 14, 2020, A154016) [nonpub. opn.]
(Garcia).) In this second appeal, defendant contends he is entitled to
resentencing under section 1170, subdivision (b), as amended by Senate Bill
No. 567 (2020–2021 Reg. Sess.) (Senate Bill 567). He additionally contends
the trial court abused its discretion in denying his request for a continuance
of the sentencing hearing so that he could develop facts to support a motion
* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this
opinion is certified for publication with the exception of part A of the
Discussion.
1 Further unspecified section references are to the Penal Code.
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for discovery under the California Racial Justice Act of 2020 (Stats. 2020,
ch. 317, § 1) (CRJA).
In the published portion of this opinion, we conclude defendant was
entitled to a reasonable continuance to prepare his motion for discovery
under the CRJA. In the unpublished portion of this opinion, we conclude
defendant is also entitled to resentencing under section 1170, subdivision (b).
Accordingly, we will reverse the judgment and remand for further
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was arrested after engaging in a physical altercation at his
home with the partner of his sister, and then firing a semiautomatic handgun
at one of the responding police officers. He was charged by information with
nine felony counts, as follows: assault on a peace officer with a
semiautomatic firearm (§ 245, subd. (d)(2), count one) plus firearm use
enhancements (§§ 12022.53, subd. (b) and 12022.5, subds. (a) and (d));
exhibiting a deadly weapon to a police officer to resist arrest (§ 417.8, count
two); assault with a semiautomatic firearm (§ 245, subd. (b), count three);
assault by means likely to produce great bodily injury (§ 245, subd. (a)(4),
count four); assault with a deadly weapon (§ 245, subd. (a)(1), count five);
criminal threats (§ 422, subd. (a), counts six and nine); resisting an executive
officer (§ 69, count seven); and possession of an assault weapon (§ 30605,
subd. (a), count eight). At trial, on motion of the prosecutor, the court
dismissed count nine. The jury found defendant not guilty of counts two and
seven but found him guilty of count one and found the section 12022.53,
subdivision (b) allegation true. The jury further found defendant guilty of
counts three, four, five, and eight, and guilty of the lesser included offense of
attempted criminal threats (§§ 664/422) for count six.
2
In March 2018, the trial court sentenced defendant to a total of 24
years in prison. Defendant appealed, and in July 2020, we affirmed the
judgment in part, but remanded the matter so that the trial court could stay
the sentence on count four or count five, correct defendant’s custody credits,
and amend the abstract of judgment. (Garcia, supra, A154016.)
In March 2021, defendant filed a motion in pro per under section 1385
to strike the ten-year firearm use enhancement attendant to count one.
Hearings were held in April 2021 to address defendant’s lack of legal
representation, and on May 11, 2021, the trial court appointed Gabriela
Guraiib to represent him. At a hearing on May 12, 2021, Guraiib requested
additional time to prepare, and the trial court granted her until May 14,
2021, to file papers in advance of the sentencing hearing on May 17, 2021.
On May 14, 2021, defendant filed his sentencing brief as well as a
motion to continue the sentencing hearing. In her declaration supporting the
continuance motion, Guraiib stated her intention “to argue additional
matters within the jurisdiction of the court such as a request to strike the
enhancement allegation pursuant to [section] 12022.53 as well as argue
matters under [section] [745] that would be crucial for the court’s analysis
under what is considered in the ‘interest of justice’ for purposes of the
imposition of the enhancement. I am unable to obtain information that
would support those arguments in a two-day timeframe afforded to briefing
the issues.”
In his sentencing brief, defendant argued in relevant part that he had
recourse under section 745 “to show that a longer or more severe sentence
was imposed on the defendant than was imposed on other similarly situated
individuals convicted of the same offense, and longer or more severe
sentences were more frequently imposed for that offense on people that share
3
the defendant’s race, ethnicity, or national origin than on defendants of other
races, ethnicities, or national origins in the county where the sentence was
imposed.” In support, the brief cited and attached various reports, articles,
and research on racial disparities in the criminal justice system.2
At the sentencing hearing, the trial court heard arguments from
counsel, including Guraiib’s remarks that “there’s a new law that just passed
in January of 2021 that shows that usually Latinos or the Latino population
that are being sentenced are being sentenced harsher than their
counterparts. And that also is in front of the Court.” The court began its
remarks by stating it did not believe it had jurisdiction to strike the firearm
use enhancement “given the remand by the appellate court directing the
Court to do three things: fix the 654 issue; award the defendant the proper
credits; and file an amended abstract showing the Court had done that.”
However, “in an abundance of caution,” the court elected to reach the merits
of the section 1385 motion to strike the firearm use enhancement.
Taking “into consideration the new racial animus act,” the trial court
acknowledged that defense counsel did not have “time to really flesh out the
statistics” bearing out that “people of color are treated more harshly in the
criminal justice system.” The court also indicated it considered the evidence
of defendant’s good character while in prison, but found nevertheless that
defendant’s lack of remorse, his unwillingness to take responsibility for his
actions, his prior criminal record, and the violent nature of the offense
2 These materials included a 2009 article entitled “Hispanics and the
Criminal Justice System,” by the Pew Research Center; a report by the
American Civil Liberties Union dated October 27, 2014, entitled “Racial
Disparities in Sentencing,” and a January 2005 report by The Sentencing
Project entitled “Racial Disparity in Sentencing: A Review of the Literature.”
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warranted the enhancement. Accordingly, the court denied the section 1385
motion.
As to the issues on remand, the trial court stayed the sentence on count
five, recalculated defendant’s custody credits, and sentenced defendant to an
aggregate term of 23 years in prison.
This appeal followed.3
DISCUSSION
A. Resentencing Under Section 1170
Defendant argues, and the People agree, that he should be resentenced
under section 1170, subdivision (b), as amended by Senate Bill 567.
Under the law in effect at the time defendant was initially sentenced in
2018, section 1170, subdivision (b), provided that when a judgment of
imprisonment is to be imposed and the statute specifies three possible terms,
the trial court has discretion to choose the appropriate term. Senate Bill 567,
effective January 1, 2022, amended section 1170 to provide: “The court may
impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(2).)
Here, the sentencing court chose the upper term of nine years on count
one based on the aggravating circumstance that the offense involved a threat
of great bodily injury to multiple individuals. Defendant argues, and the
3 In conjunction with this appeal, defendant filed a petition for writ of
habeas corpus, In re Mario Garcia, A164591. We have denied the petition by
separate order filed this date.
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People do not dispute, that he never stipulated to this finding, and the People
concede there was no trial in which the circumstance in aggravation was
found to be true beyond a reasonable doubt. The parties further agree that
because Senate Bill 567 is ameliorative, and because there is no indication
the Legislature intended it to apply prospectively only, the new law applies
retroactively to defendant. (People v. Flores (2022) 73 Cal.App.5th 1032,
1039.)
We agree and conclude defendant is entitled to resentencing under
section 1170, subdivision (b).
B. Denial of Continuance
Defendant argues the trial court abused its discretion in denying his
motion for a continuance to enable him to develop facts in support of a motion
for discovery under the CRJA. We agree.
1. Overview of CRJA
Effective January 1, 2021, the CRJA prohibits state criminal
convictions or sentences “on the basis of race, ethnicity, or national origin.”
(§ 745, subd. (a).) To prove a violation of the CRJA, a defendant must show
by a preponderance of the evidence that (1) any of the various individuals
involved in the case—including a judge, attorney, law enforcement officer,
expert witness, or juror—“exhibited bias or animus towards the defendant
because of the defendant’s race, ethnicity, or national origin”; (2) during the
trial and court proceedings, any of the various individuals “used racially
discriminatory language about the defendant’s race, ethnicity, or national
origin, or otherwise exhibited bias or animus towards the defendant because
of the defendant’s race, ethnicity, or national origin, whether or not
purposeful”; (3) the defendant was charged or convicted “of a more serious
offense than defendants of other races, ethnicities, or national origins who
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commit similar offenses and are similarly situated, and the evidence
establishes that the prosecution more frequently sought or obtained
convictions for more serious offenses against people who share the
defendant’s race, ethnicity, or national origin in the county where the
convictions were sought or obtained”; or (4) “[a] longer or more severe
sentence was imposed on the defendant than was imposed on other similarly
situated individuals convicted of the same offense, and longer or more severe
sentences were more frequently imposed for that offense on people that share
the defendant’s race, ethnicity, or national origin” or “on defendants in cases
with victims of one race, ethnicity, or national origin[s],” in the county where
the sentence was imposed. (§ 745, subd. (a)(1)–(4).)
“A defendant may file a motion in the trial court or, if judgment has
been imposed, may file a petition for writ of habeas corpus or a motion under
Section 1473.7 in a court of competent jurisdiction, alleging a violation of
subdivision (a).” (§ 745, subd. (b).) If a defendant makes a prima facie
showing of a CRJA violation, the trial court shall hold an evidentiary
hearing, and the defendant has the burden of proving a violation by a
preponderance of the evidence. (Id., subd. (c)(1)–(2).) The CRJA sets forth
various available remedies for successful prejudgment (id., subd. (e)(1)) and
postjudgment claims (id., subd. (e)(2)), including vacating the conviction and
sentence and imposing a new sentence not greater than that previously
imposed (ibid.).
The CRJA also contains the following discovery provision: “A
defendant may file a motion requesting disclosure to the defense of all
evidence relevant to a potential violation of subdivision (a) in the possession
or control of the state. A motion filed under this section shall describe the
type of records or information the defendant seeks. Upon a showing of good
7
cause, the court shall order the records to be released. Upon a showing of
good cause, and if the records are not privileged, the court may permit the
prosecution to redact information prior to disclosure.” (§ 745, subd. (d).)
In Young v. Superior Court (2022) 79 Cal.App.5th 138 (Young), Division
Four of our appellate district held that the good cause requirement for
discovery under the CRJA, like the showing required for the disclosure of law
enforcement records under Pitchess, requires a defendant “only to advance a
plausible factual foundation, based on specific facts, that a violation of the
[CJRA] ‘could or might have occurred’ in his case.” (Young, at p. 159.) As
Young explained, this “plausible justification” standard is “minimal” and
even more relaxed than the “ ‘relatively relaxed’ ” good cause standard for
Pitchess discovery, which requires a logical link between the charge and a
proposed defense. (Young, at pp. 159–160.)
2. Analysis
Although trial courts enjoy broad discretion to determine whether good
cause exists to grant a continuance of trial, such discretion “ ‘ “may not be
exercised so as to deprive the defendant or his attorney of a reasonable
opportunity to prepare.” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 934–
935.) Here, defendant’s counsel had less than a week after she was appointed
to familiarize herself with the case, prepare the sentencing brief, and
marshal facts for and prepare a motion for discovery under the CRJA. While
Guraiib was able to make general arguments under the CRJA and provide
statistical information in the sentencing brief, that information was dated
and based mostly on national surveys; it did not address racially disparate
treatment as to convictions and/or sentences in the county where defendant
was convicted and sentenced. (See § 745, subd. (a)(1)–(4).) At this juncture
and on this record, there simply is no indication whether and to what extent
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such county-level information was likely to have been readily available to
counsel in the short time frame between her appointment and the sentencing
hearing.
Furthermore, although the plausible justification standard is
“minimal,” it must still be “based on specific facts.” (Young, supra, 79
Cal.App.5th at p. 159.) Thus, preparing a discovery motion under the CRJA
necessarily entails a fairly thorough review of the trial record for any
remarks or conduct by the trial judge, attorneys, experts, jurors, and law
enforcement officers that may plausibly support the conclusion that a CRJA
violation “ ‘could or might have occurred’ in [the] case.” (Young, at pp. 158–
159.) For these reasons, we conclude defendant should have been given a
reasonable opportunity to review the trial record and gather relevant
information to prepare a motion for discovery under the CRJA. The error
was not harmless under any standard because, as indicated, nothing in the
record indicates either way whether defendant’s counsel could have
discovered facts plausibly supporting a motion for CRJA discovery had she
been given a reasonable opportunity to do so.
The People contend the trial court reasonably denied the continuance
request because defense counsel was ready to proceed on the issues properly
before the court, and the court’s jurisdiction was strictly limited to the
instructions given by this court on remand from the prior appeal. (See People
v. Ramirez (2019) 35 Cal.App.5th 55, 64 [order of reviewing court contained
in remittitur defines scope of jurisdiction of court to which matter is
returned.) But the People cite no case applying this general rule where new
legislation becomes effective in the period between the remittitur and the
proceedings on remand. “[I]t is well settled that when a case is remanded for
resentencing after an appeal, the defendant is entitled to ‘all the normal
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rights and procedures available at his original sentencing’ [citations],
including consideration of any pertinent circumstances which have arisen
since the prior sentence was imposed.” (Dix v. Superior Court (1991) 53
Cal.3d 442, 460.) Here, the CRJA’s January 1, 2021, effective date was a
pertinent circumstance that arose after the remittitur and before the
resentencing hearing. The trial court was not barred from considering it.
The People next argue that denial of the continuance motion was not
an abuse of discretion because the CRJA does not retroactively apply to
defendant. Notably, the CRJA expressly states it applies prospectively only
to judgments not entered before January 1, 2021 (§§ 745, subd. (j); 1473,
subd. (f)), and Penal Code provisions generally are not applied retroactively
in the absence of express language conferring retroactive application (People
v. Brown (2012) 54 Cal.4th 314, 319–320).
In criminal cases, however, “judgment is synonymous with the
imposition of sentence.” (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2.)
Here, in July 2020, the judgment was partially reversed and remanded, and
defendant was not resentenced until May 17, 2021. Moreover, the People
concede in this appeal that defendant is entitled to resentencing yet again
under Senate Bill 567, and thus, a judgment has yet to be entered. Because
judgment was not entered at the time the CRJA became effective on January
1, 2021, defendant is not barred from seeking relief under the new law.4
For these reasons, we will reverse the trial court’s denial of defendant’s
request for a continuance and remand with directions to grant a reasonable
continuance for defendant to prepare a motion for discovery under the CRJA.
4 For the same reason, we reject the People’s contention that defendant
can seek only postjudgment relief under the CRJA through a habeas petition.
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DISPOSITION
The judgment is reversed and remanded for resentencing under section
1170, subdivision (b). Prior to the resentencing hearing, defendant shall be
granted a reasonable opportunity to prepare a motion for discovery under the
CRJA.
FUJISAKI, ACTING P.J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
People v. Garcia (A163046)
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Trial Court: San Mateo County Superior Court
Trial Judge: Hon. Elizabeth K. Lee
Counsel: Law Offices of John F. Schuck, John F. Schuck, under
appointment by the First District Appellate Project, for
Defendant and Appellant
Rob Bonta, Attorney General of California, Lance E.
Winter, Chief Assistant Attorney General, Jeffrey M.
Laurence, Senior Assistant Attorney General, René A.
Chacón, Supervising Deputy Attorney General, and
David M. Baskind, Deputy Attorney General, for
Plaintiff and Respondent
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