Filed 6/22/21 P. v. Garza CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F080195
Plaintiff and Respondent,
(Super. Ct. No. CF92464473)
v.
RICHARD ANTHONY GARZA, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.
Elizabeth Campbell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Lisa Smittcamp, Fresno County District Attorney, and Kelsey C. Peterson, Deputy
District Attorney, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P.J., Levy, J. and Meehan, J.
Defendant Richard Anthony Garza was convicted of second degree murder and
sentenced to 15 years to life in state prison.1 He filed a petition for resentencing,
pursuant to Penal Code section 1170.95,2 based upon the changes to the felony-murder
rule and the natural and probable consequences doctrine of aider and abettor liability
effectuated by Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437). The trial
court dismissed his petition, concluding that Senate Bill 1437 was unconstitutional. On
appeal, defendant contends the trial court’s decision was error. The People disagree. We
agree with defendant. Accordingly, we reverse the order and remand this matter for
further proceedings pursuant to section 1170.95.
PROCEDURAL SUMMARY
On July 8, 1992, the Fresno County District Attorney filed an information
charging defendant and two codefendants with the murder of Eric Delgado (§ 187;
count 1). Defendant was also charged with three counts of assault with a deadly weapon
(§ 245, subd. (a)(1); counts 2, 3 & 4). The information further alleged: as to count 1,
defendant personally used a deadly weapon (former § 12022, subd. (b)), and as to all
counts, defendant committed the offenses for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)).
On December 8, 1992, defendant pled guilty to the lesser offense of second degree
murder on count 1. Defendant also admitted the personal use of a deadly weapon
allegation. Counts 3 and 4 and the gang allegations were dismissed on the People’s
motion.
1 Defendant was also convicted of robbery in a separate case. He was sentenced to
a determinate term of two years on the robbery on the same date that the sentence was
imposed in this case.
2 All further statutory references are to the Penal Code.
2.
On January 12, 1993, the trial court sentenced defendant to 15 years to life on
count 1, plus a one-year weapon enhancement (§ 12022, subd. (b)).3
On January 15, 2019, defendant filed a petition for resentencing pursuant to
section 1170.95. On March 8, 2019, the People filed a motion to dismiss defendant’s
petition, arguing that section 1170.95 and other portions of Senate Bill 1437 are
unconstitutional. The People also opposed defendant’s petition on its merits. The trial
court appointed counsel for defendant, who filed responses to the People’s motion to
dismiss and opposition on the merits.
On October 16, 2019, the trial court granted the People’s motion and dismissed
defendant’s petition. The trial court expressly declined to address the merits of the
petition.
On October 28, 2019, defendant filed a notice of appeal.
DISCUSSION4
Statutory Background
Effective January 1, 2019, Senate Bill 1437 limited accomplice liability under the
felony-murder rule5 and the natural and probable consequences doctrine.6 (§§ 188, 189,
3 The trial court also sentenced defendant to a concurrent term of imprisonment on
the same day in an unrelated offense.
4 Because defendant raises only legal issues and the trial court did not consider the
merits of his petition, the facts underlying the offenses are not relevant and are omitted
from this opinion.
5 Prior to Senate Bill 1437’s enactment, “ ‘[t]he felony-murder rule impute[d] the
requisite malice for a murder conviction to those who commit[ted] a homicide during the
perpetration of a felony inherently dangerous to human life.’ ” (People v. Friend (2009)
47 Cal.4th 1, 76.) Prior to Senate Bill 1437’s enactment, specifically with respect to
felony murder with robbery as the underlying felony, section 189, subdivision (a) stated,
“All murder … which is committed in the perpetration of, or attempt to perpetrate, …
robbery … is murder of the first degree.”
6 Prior to Senate Bill 1437’s enactment, “ ‘ “[a] person who knowingly aid[ed] and
abet[ed] criminal conduct [was] guilty of not only the intended crime [target offense] but
also of any other crime the perpetrator actually commit[ted] [nontarget offense] that
3.
as amended by Stats. 2018, ch. 1015, §§ 2–3; People v. Cruz (2020) 46 Cal.App.5th 740,
755; Lamoureux, supra, 42 Cal.App.5th at p. 246.) The Legislature’s purpose was “ ‘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 of the underlying felony who
acted with reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)
Senate Bill 1437 achieves these goals by amending section 188 to require that a principal
act with express or implied malice and by amending section 189 to state that a person can
only be liable for felony murder if (1) the ‘person was the actual killer’; (2) the person
was an aider or abettor in the commission of murder in the first degree; or (3) the ‘person
was a major participant in the underl[y]ing felony and acted with reckless indifference to
human life.’ ” (People v. Cornelius (2020) 44 Cal.App.5th 54, 57, review granted
Mar. 18, 2020, S260410.)
“Senate Bill 1437 also [added section 1170.95, which] established a procedure
permitting certain qualifying persons who were previously convicted of felony murder or
murder under the natural and probable consequences doctrine to petition the courts that
sentenced them to vacate their murder convictions and obtain resentencing on any
remaining counts.” (Lamoureux, supra, 42 Cal.App.5th at p. 246; § 1170.95, added by
Stats. 2018, ch. 1015, § 4.) Under that procedure, a convicted person is eligible for relief
if the following conditions are met: “(1) A complaint, information, or indictment was
filed against the [defendant] that allowed the prosecution to proceed under a theory of
felony murder or murder under the natural and probable consequences doctrine. [¶]
(2) The [defendant] was convicted of first degree or second degree murder following a
[was] a natural and probable consequence of the intended crime.” ’ ” (People v. Chiu
(2014) 59 Cal.4th 155, 161.) “ ‘ “[B]ecause the nontarget offense [was] unintended, the
mens rea of the aider and abettor with respect to that offense [was] irrelevant and
culpability [was] imposed simply because a reasonable person could have foreseen the
commission of the nontarget crime.” ’ ” (People v. Lamoureux (2019) 42 Cal.App.5th
241, 248 (Lamoureux).)
4.
trial or accepted a plea offer in lieu of a trial at which the [defendant] could be convicted
for first degree or second degree murder. [¶] (3) The [defendant] could not be convicted
of first or second degree murder because of [the] changes to [s]ection 188 or 189 made
effective January 1, 2019.” (§ 1170.95, subd. (a)(1)–(3).)
Analysis
The People argue that Senate Bill 1437 is unconstitutional because it improperly
amended Proposition 7 (the Briggs Initiative) and Proposition 115 (the Crime Victims
Justice Reform Act). They further argue that retroactive application of the substantive
provisions of Senate Bill 1437, by adding section 1170.95, violated the separation of
powers doctrine and improperly amended Proposition 9 (the Victims’ Bill of Rights Act
of 2008 (Marsy’s Law)).
Our Supreme Court has not addressed the constitutionality of Senate Bill 1437.
However, this court considered and rejected the People’s arguments on similar briefing.
(People v. Nash (2020) 52 Cal.App.5th 1041, 1053 [collecting cases].)7, 8 We agree with
7 In Nash, one justice dissented from the majority’s conclusion with regard to
Proposition 7, but otherwise concurred. (People v. Nash, supra, 52 Cal.App.5th at
p. 1084 (conc. & dis. opn. of Poochigian, A.P.J.).)
8 Courts of appeal have consistently rejected arguments nearly identical to those the
People present here. (People v. Marquez (2020) 56 Cal.App.5th 40, 44, 46–51 [Prop. 9,
separation of powers]; People v. Lombardo (2020) 54 Cal.App.5th 553, 555, 559–565
[Props. 7, 9, 115]; People v. Superior Court (Ferraro) (2020) 51 Cal.App.5th 896, 902
[Props. 7, 115]; People v. Lopez (2020) 51 Cal.App.5th 589, 594 [same]; People v.
Alaybue (2020) 51 Cal.App.5th 207, 211 [Props. 7, 115; separation of powers]; People v.
Johns (2020) 50 Cal.App.5th 46, 54–55 [Props. 7, 9, 115; separation of powers]; People
v. Prado (2020) 49 Cal.App.5th 480, 492 [Props. 7, 115]; People v. Smith (2020) 49
Cal.App.5th 85, 91–92 [Prop. 7], review granted July 22, 2020, S262835; People v. Bucio
(2020) 48 Cal.App.5th 300, 306 [Props. 7, 115]; People v. Solis (2020) 46 Cal.App.5th
762, 784 [same]; People v. Cruz, supra, 46 Cal.App.5th at p. 747 [same]; People v.
Superior Court (Gooden) (2019) 42 Cal.App.5th 270, 275, 289 [same]; Lamoureux,
supra, 42 Cal.App.5th at p. 246 [Props. 7, 9, 115; separation of powers].)
5.
the analysis of Nash and come to the same conclusion. The trial court erred in
concluding Senate Bill 1437 is unconstitutional.
We express no opinion on the merits of defendant’s petition.
DISPOSITION
The trial court’s order dismissing defendant’s section 1170.95 petition is reversed
and the matter is remanded to the trial court for disposition on the merits.
6.