Filed 3/27/23 P. v. Garcia CA2/3
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B299615
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA283054)
v.
MELISSA GARCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Reversed and remanded
with direction.
Allen G. Weinberg, 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, Charles S. Lee and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Melissa Garcia of first degree murder with
true findings on two special circumstances: the victim was killed
to prevent the victim from testifying and the murder was
committed in course of a kidnapping. Years after her conviction,
Garcia petitioned the trial court for vacation of her sentence and
for resentencing under recently-enacted Penal Code1 section
1172.6,2 which limited accomplice liability for murder. The trial
court summarily denied relief, and we affirmed that order on
appeal. (People v. Garcia (Jan. 22, 2021, B299615) [nonpub. opn.]
(Garcia II).) However, our California Supreme Court granted
review and has now transferred the matter back to us with the
direction to vacate our decision and to reconsider the cause in
light of People v. Strong (2022) 13 Cal.5th 698 (Strong) and
People v. Lewis (2021) 11 Cal.5th 952 (Lewis), cases which
clarified the scope of section 1172.6. Doing so, we conclude that
the trial court’s order must be reversed, and the matter must be
remanded for further proceedings.
BACKGROUND
I. The underlying conviction 3
In 2002, Garcia drove two men to a location where Aileen
Alvarez was walking. The men were members of the Mara
Salvatrucha gang. Garcia was either a member of the gang or its
1 All further statutory references are to the Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered to
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
3 The underlying facts are from the opinion affirming the
judgment of conviction, People v. Garcia (July 14, 2010, B212638)
[nonpub. opn.] (Garcia I). We grant the People’s request for
judicial notice of the file from the direct appeal. (Evid. Code,
§ 452, subd. (d).)
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associate. The men believed that Alvarez was going to testify
against a fellow gang member. As Alvarez struggled, the men
forced her at gunpoint into the car, and Garcia drove away.
Later that night, Alvarez’s body was found. She had been shot in
the head and back. Garcia told detectives that she had been
driving with the men when they saw Alvarez. At the men’s
behest, Garcia stopped the car. She had a feeling that something
was going to happen to Alvarez. Once Alvarez was in the car,
Garcia drove to a residential area, where the men made Alvarez
get out of the car. One of the men then shot Alvarez. Garcia
denied knowing of any order to kill Alvarez. Rather, once Alvarez
was forced into the car, Garcia just did what she was told.
A jury found Garcia guilty of first degree murder (§ 187,
subd. (a); count 1) with true findings on two special circumstance
allegations (§ 190.2, subd. (a)(10) [killing a witness] & (17)
[kidnapping]), and kidnapping (§ 207, subd. (a), count 2). On
each count, the jury found true principal-gun use (§ 12022.53,
subds. (b), (c), (d) & (e)) and gang (§ 186.22, subd. (b)(1))
allegations. On September 24, 2008, the trial court sentenced
Garcia to life without the possibility of parole plus 25 years to
life.
II. Postjudgment proceedings
Garcia appealed from her judgment of conviction. In that
appeal, Garcia argued that the instructions erroneously did not
include intent to kill as an element of the witness-killing special
circumstance. A different panel of this Division did not decide
the issue directly and instead found that “in light of the
overwhelming evidence that [Garcia] intended to kill and
harbored more culpable mental states, as well as the jury’s
findings that [Garcia] harbored mental states more culpable than
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intent to kill,” any trial court error in failing to instruct that the
witness-killing special circumstance required proof that Garcia
intended to kill “was harmless under any conceivable standard.”
(Garcia I, supra, B212638.) This Division accordingly affirmed
Garcia’s judgment of conviction. (Garcia I, supra, B212638.)
Thereafter, in 2019, our Legislature passed Senate Bill
No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). In short,
Senate Bill 1437 limited accomplice liability under the felony-
murder rule, eliminated the natural and probable consequences
doctrine as it relates to murder, and eliminated convictions for
murder based on a theory under which malice is imputed to a
person based solely on that person’s participation in a crime.
(§ 1172.6, subd. (a) [added by Sen. Bill 1437]; Lewis, supra, 11
Cal.5th at pp. 957, 959; People v. Gentile (2020) 10 Cal.5th 830,
842–843.) Based on the new law, a person convicted of murder
under a felony-murder or natural and probable consequences
theory may petition to vacate the conviction and resentencing, if
certain conditions are met. (§ 1172.6.)
Garcia petitioned for resentencing under Senate Bill 1437.
Without appointing counsel for Garcia, the trial court denied her
petition, finding that the special circumstances findings rendered
Garcia ineligible for relief as a matter of law.
A different panel of this Division affirmed the order
denying Garcia’s petition. (Garcia II, supra, B299615.) The
court concluded that the law of the case doctrine made it
unnecessary to resolve the issues in depth. That is, to be eligible
for relief, Garcia needed to show she could not be convicted of
first or second degree murder because of changes to sections 188
or 189. However, she could not make that showing because in
affirming her conviction on direct appeal, Garcia I had concluded
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she could still be convicted of murder because of “overwhelming
evidence” of her intent to kill.
Garcia petitioned for review in the California Supreme
Court, and the court granted review and transferred the matter
back to our court with directions to vacate our decision and
reconsider the case in light of Strong, supra, 13 Cal.5th 698 and
Lewis, supra, 11 Cal.5th 952.
DISCUSSION
Senate Bill 1437 took effect on January 1, 2019, and, as we
have said, limited accomplice liability under the felony-murder
rule and eliminated the natural and probable consequences
doctrine as it relates to murder. (People v. Gentile, supra, 10
Cal.5th at pp. 842–843). As relevant here, Senate Bill 1437
amended the felony-murder rule by adding section 189,
subdivision (e), which provides that a participant in the
perpetration of qualifying felonies is liable for felony murder only
if the person (1) was the actual killer; (2) was not the actual
killer, but with the intent to kill, acted as a direct aider and
abettor; or (3) the person was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in section 190.2, subdivision (d). (Gentile, at
p. 842.)
Senate Bill 1437 also created a new procedure whereby
persons convicted of murder under now-invalid theory of murder
may petition to vacate their convictions and obtain resentencing.
A defendant is eligible for relief under section 1172.6 if the
defendant meets three conditions: (1) the defendant was charged
with murder under a theory of felony-murder; (2) the defendant
was convicted of first or second degree murder; and (3) the
defendant could no longer be convicted of first or second degree
murder because of changes to sections 188 and 189 made by
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Senate Bill 1437. (§ 1172.6, subd. (a).) If the petitioner makes a
prima facie showing of entitlement to relief, the trial court is
required to issue an order to show cause and to hold an
evidentiary hearing at which the prosecution bears the burden of
proving beyond a reasonable doubt that the petitioner is guilty of
murder, under the law, as amended by Senate Bill 1437.
(§ 1172.6, subd. (d)(3).)
When the trial court here denied Garcia’s petition, two
issues concerning section 1172.6 had split Courts of Appeal.
First, when in the petitioning process are petitioners entitled to
counsel? Second, is an aider and abettor defendant who was not
the actual killer and whose jury was instructed before our
California Supreme Court issued People v. Banks (2015) 61
Cal.4th 788 (Banks) and People v. Clark (2016) 63 Cal.4th 522
(Clark) eligible for section 1172.6 relief? Banks and Clark
substantially narrowed and clarified the class of aider and
abettor defendants who are major participants who act with
reckless indifference to human life during a felony and, as such,
are guilty of first degree murder and eligible for the death
penalty or life without the possibility of parole.
Our California Supreme Court resolved the two issues in
Lewis, supra, 11 Cal.5th 952 and Strong, supra,13 Cal.5th 698.
Lewis held that a defendant is entitled to counsel, if requested,
upon the filing of a facially sufficient petition, that is, one that
makes the necessary averments, without regard to the
defendant’s eligibility for relief. (Lewis, at p. 957.) If the trial
court determines that the petitioner has made such a prima facie
showing, it must appoint counsel, issue an order to show cause,
and then “hold a hearing ‘to determine whether to vacate the
murder conviction and to recall the sentence and resentence the
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petitioner on any remaining counts in the same manner as if the
petitioner had not . . . previously been sentenced, provided that
the new sentence, if any, is not greater than the initial
sentence.’ ” (Id. at p. 960.)
Strong, supra, 13 Cal.5th 698, resolved the second issue
that had divided courts. The court held that a pre-Banks and
Clark finding that the defendant was a major participant who
acted with reckless indifference to human life during a felony
does not preclude that defendant from making a prima facie case
for relief under section 1172.6, even if the trial evidence was
sufficient to support the findings under Banks and Clark.
(Strong, at pp. 719–720.)
Here, there is no dispute that Garcia filed a facially
sufficient petition and that it was therefore error not to appoint
counsel for her. Such error, however, is subject to harmless error
review under People v. Watson (1956) 46 Cal.2d 818. (Lewis,
supra, 11 Cal.5th at p. 974.) Under Watson, a petitioner must
demonstrate there is a reasonable probability that, in the absence
of the error, the petitioner would have obtained a more favorable
result. More specifically, a petitioner whose petition is denied
before issuance of an order to show cause has the burden to show
it is reasonably probable that if they had been afforded the
assistance of counsel, the petition would not have been
summarily denied without an evidentiary hearing. (Lewis, at p.
974.)
The Attorney General argues that Garcia cannot make that
showing because to find the witness-killing special circumstance
true, the jury necessarily found that Garcia had the intent to kill
Alvarez. In making this argument, the Attorney General relies
primarily on three instructions: CALJIC Nos. 3.01 (aiding and
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abetting), 8.80.1 (special circumstances generally), and 8.81.10
(witness killing).
CALJIC No. 3.01 instructed, in pertinent part, that a
person aids and abets a crime when she (1) with knowledge of the
perpetrator’s unlawful purpose; (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 crime’s commission.
CALJIC No. 8.80.1 instructed: “If you find the defendant in
this case guilty of murder of the first degree, you must then
determine if one or more of the following special circumstances is
true or not true: murder of a witness to a crime, within the
meaning of Penal Code 190.2(a)(10), and murder while engaged
in the crime of kidnapping, within the meaning of Penal Code
190.2(a)(17).
“The People have the burden of proving the truth of a
special circumstance, and if you have a reasonable doubt as to
whether a special circumstance is true, you must find it to be not
true.
“Unless an intent to kill is an element of a special
circumstance, if you’re satisfied beyond a reasonable doubt that
the defendant actually killed a human being, you need not find
that the defendant intended to kill in order to find the special
circumstance to be true.
“If you find that the defendant was not the actual killer of a
human being or if you’re unable to decide whether the defendant
was the actual killer or an aider and abettor, you cannot find the
special circumstance to be true as to that defendant unless you
are satisfied beyond a reasonable doubt that such defendant,
with the intent to kill, aided, abetted, or assisted any actor in the
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commission of the murder in the first degree or with reckless
indifference to human life and as a major participant, aided,
abetted, or assisted in the commission of the crime of kidnapping,
which resulted in the death of a human being.” (Italics added.)
CALJIC No. 8.81.10 instructed: “To find that the special
circumstance referred to in these instructions as murder of a
witness to a crime is true, each of the following three facts must
be proved:
“1. The person killed was a witness to a crime which
occurred prior to, and separate from, the killing;
“2. The killing was intentional; and
“3. The purpose of the killing was to prevent the witness
from giving testimony in a criminal proceeding.”
The People reason that these instructions show that to find
the witness-killing special circumstance true, the jury had to find
Garcia had the intent to kill. Not so. By itself, the witness-
killing instruction, CALJIC No. 8.81.10, does not require the
aider and abettor to intend to kill. Rather, it merely states that
the killing of the witness was intentional, not that the aider and
abettor intended to kill the witness. (See People v. Pearson
(2012) 53 Cal.4th 306, 323 [“instruction on the torture-murder
special circumstance (CALJIC No. 8.81.18) required the jury to
find ‘[t]he murder was intentional,’ but not necessarily to find
defendant personally harbored the intent to kill”] (Pearson).)
Pearson also cautioned that CALJIC No. 3.01 does not
supply the missing intent-to-kill element. That standard
instruction expressly concerns “ ‘the commission of a crime,’ not
the truth of a special circumstance allegation;” so a jury is “not
likely to read it as displacing the instruction that expressly
defined the required mental state for aiding and abetting acts
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constituting a special circumstance (CALJIC No. 8.80.1).”
(Pearson, supra, 53 Cal.4th at p. 323.)
We agree it is unlikely the jury here would have relied on
CALJIC No. 3.01 to displace the more specific instruction on
special circumstances, CALJIC No. 8.80.1. CALJIC No. 8.80.1
gave the jury two paths to finding the special circumstances true.
It stated that to find a special circumstance true, the jury had to
find that the defendant “with the intent to kill” aided in
committing the murder “or with reckless indifference to human
life and as a major participant, aided” the kidnapping, which
resulted in the death of a human being. (Italics added.) Because
of the disjunctive “or” in that sentence, the jury could have
believed that to find a special circumstance true it could either
find (1) Garcia with the intent to kill aided and abetted the
murder or (2) that she was a major participant in the kidnapping
who acted with reckless indifference to human life. (See People v.
Covarrubias (2016) 1 Cal.5th 838, 927 [jurors would reasonably
have understood that unless they found defendant was actual
killer, they had to find intent to kill or reckless indifference];
accord, People v. Mora and Rangel (2018) 5 Cal.5th 442, 495
[“CALJIC No. 8.80.1 also contained instructional error because it
improperly permitted the jury to find the multiple-murder special
circumstance true if it found defendants acted with reckless
indifference to human life as major participants in an attempted
robbery—in the alternative to concluding defendants intended to
or actually killed one of the victims”]; Pearson, supra, 53 Cal.4th
at p. 323 [CALJIC No. 8.80.1 told jury that the torture-murder
special circumstance, like the felony-murder special
circumstances, could be found true even if defendant acted only
with reckless indifference to human life].)
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While Garcia’s jury certainly could have followed the
intent-to-kill path to find true the witness-killing special
circumstance, the jury also could have followed the reckless-
indifference path. Indeed, the prosecutor in closing argument did
not discuss the instructions and instead focused on Garcia’s
knowledge about what was going to happen to Alvarez and on
what Garcia did to assist her accomplices. The prosecutor did not
then explain to the jury how that evidence connected to the
various theories before it. Therefore, the prosecutor’s argument
is not helpful to determine how the jury would have understood
the instructions.
Because we cannot find that the error in failing to appoint
counsel for Garcia was harmless, remand is necessary.4
4 The Attorney General does not argue that any error was
harmless because there was overwhelming evidence of Garcia’s
intent to kill, as Garcia I found. Once a prima facie case is made
and the matter proceeds to an evidentiary hearing, the petitioner
may introduce additional and new evidence, which, presumably
would show she lacked the intent to kill and/or did not act with
reckless indifference to human life. Thus, barring undisputed
evidence Garcia was the actual killer—of which there is none—an
evidence-based harmless error analysis would be unavailing.
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DISPOSITION
The order denying Melissa Garcia’s Penal Code section
1172.6 petition is reversed and the matter is remanded with the
direction to the trial court to appoint counsel for Garcia, to issue
an order to show cause, and to conduct an evidentiary hearing in
accordance with Penal Code section 1172.6, subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
BENKE, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Retired Justice of the Court of Appeal, Fourth District,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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