People v. Garcia CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD131821
- Trial judge
- Charles G. Rogers
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Patricia D. Benke, Truc T. Do
Analysis
The trial court denied Garcia's petition for resentencing under Penal Code section 1170.95, determining that the record of conviction established he was the actual killer and thus he failed to state a prima facie case for relief. The Court of Appeal affirmed the denial after conducting an independent review of the record pursuant to People v. Wende and finding no arguable issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1170.95“The court found Garcia had failed to state a prima facie case for relief under section 1170.95 and therefore denied the petition for resentencing.” | de novo | correct | agree with court The appellate court affirmed the trial court's denial, concluding that the record of conviction, including the prior published opinion, clearly established that Garcia was the actual killer. Under the framework for section 1170.95 petitions, a defendant who is the actual killer is not eligible for resentencing, and the trial court correctly determined that Garcia failed to state a prima facie case for relief based on this disqualifying fact. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to conduct an independent review of the record for error when no arguable issues are identified, and for the court to perform its own independent review.
- relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potentially arguable issues and request the court to review the record for error.
- relied: People v. Garcia (2000) 78 Cal.App.4th 1422 — The prior published opinion from this court affirming Garcia's conviction, which contained the factual findings that Garcia was the actual killer.
The appellate opinion: sound — The opinion is procedurally sound in its application of the Wende/Anders framework, correctly identifying that the record of conviction establishes Garcia as the actual killer, which is a disqualifying factor for relief under section 1170.95. The court properly conducted an independent review of the record and found no arguable issues for reversal, leading to an affirmance of the trial court's order.
How this analysis was made · dispute it
unusual dispositionThe San Diego Superior Court denied Hugo Garcia's Penal Code section 1170.95 resentencing petition at the prima facie stage after appointing counsel and reviewing the record of conviction, finding the record showed he was the actual killer. On appeal, appointed counsel filed a Wende brief, Garcia filed a supplemental brief raising matters outside the record, and the Court of Appeal independently reviewed the record, found no arguable issues, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1170.95 petition for failure to state a prima facie case because the record of conviction showed Garcia was the actual killer“The trial court determined the record showed Garcia was the actual killer of the victim.” | unclear | correct | agree with court Section 1170.95 relief is unavailable to a defendant who was the actual killer; the recited facts show Garcia personally shot both victims with no accomplice, and the jury found personal firearm use. The trial court appointed counsel and received briefing before consulting the record of conviction, including the prior appellate opinion, which was consistent with then-governing Court of Appeal authority. The opinion does not state the theories on which the jury was instructed, but on these facts no felony-murder or natural-and-probable-consequences theory was plausible. |
Whether Wende/Anders independent review applies to an appeal from denial of a section 1170.95 petition“It should be obvious from our opinion that we have applied the Wende/Anders independent review protections in this case.” | unclear | not reached | agree with court The court declined to decide whether Wende applies to postconviction resentencing appeals and simply conducted the independent review, which rendered the question academic and could not prejudice the appellant. This was a defensible course given the then-existing split among Courts of Appeal, though the court cited none of that authority. |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the reviewing court must independently review the entire record for error.
- relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal frivolous must file a brief identifying anything in the record that might arguably support the appeal.
- relied: People v. Garcia (2000) 78 Cal.App.4th 1422 — Prior published opinion affirming Garcia's murder and attempted murder convictions; part of the record of conviction relied on to find he was the actual killer.
- missed: People v. Serrano (2012) 211 Cal.App.4th 496 — Wende independent review is not constitutionally required in appeals other than a defendant's first appeal of right from a conviction; the court may dismiss if the defendant files no supplemental brief raising issues.
The appellate opinion: sound with gaps — The result is clearly correct because an actual killer is ineligible for section 1170.95 relief and the trial court followed the appointment-and-briefing procedure before consulting the record of conviction. The opinion, however, flags the then-unsettled question whether Wende review applies to such appeals and resolves it by fiat in a footnote without citing the existing contrary or supporting Court of Appeal authority, and it does not describe the jury instructions underlying the actual-killer finding.
Opinion
Filed 3/26/21 P. v. Garcia CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078052
Plaintiff and Respondent, v. (Super. Ct. No. SCD131821)
HUGO GARCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Hugo Garcia, in pro. per.; and David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 1998, a jury convicted Hugo Garcia of one count of first degree murder (Pen. Code,1 § 187, subd. (a)) and one count of premeditated attempted murder (§§ 187, subd. (a) and 664). The jury also found true that Garcia personally used a firearm in the commission of the offense (§ 12022.5, 1 All further statutory references are to the Penal Code. subd. (a)). Garcia was sentenced to 25 years to life for murder, 15 years to life for attempted murder plus, 14 years for two firearm enhancements. Garcia appealed his conviction. This court affirmed his conviction in a published opinion, (People v. Garcia (2000) 78 Cal.App.4th 1422). In 2019, Garcia filed a petition for resentencing under section 1170.95. The trial court appointed counsel, obtained briefing from the parties, reviewed the record of conviction as well as this court’s prior opinion. The trial court determined the record showed Garcia was the actual killer of the victim. The court found Garcia had failed to state a prima facie case for relief under section 1170.95 and therefore denied the petition for resentencing. Garcia filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Garcia the opportunity to file his own brief on appeal. He has responded, filing a supplemental brief. We will discuss his submission below. STATEMENT OF FACTS The facts of the offense are set forth in our prior opinion. Appellate counsel has included a verbatim copy of the statement of fact in the opening brief. We will incorporate that statement of facts here for convenience. At trial, the prosecution witnesses established that on September 29, 1997, Garcia shot and killed Armando Chiquete and critically wounded his cousin, Jose Peraza. Garcia owed Chiquete money relating to an earlier marijuana transaction, and before the day of the murder, Peraza had twice driven Chiquete to Garcia’s apartment complex, where Chiquete and Garcia 2 discussed the debt. Chiquete and Garcia did not argue during these encounters, nor did Chiquete bring any weapons or threaten Garcia. Garcia’s debt remained unpaid, and on September 29, 1997, Peraza drove Chiquete to Garcia’s apartment complex so that Chiquete could talk to Garcia again. It was a hot day, so Chiquete had taken off his shirt and slung it over his shoulder, leaving him bare-chested. He was not carrying any weapons. Chiquete got out of the car, and he and Garcia started talking to each other; there was no indication they were arguing or that either one was agitated or upset. Chiquete had his hands down at his side and Peraza saw him make a quick side step. Garcia then brought his hand up toward Chiquete’s head and Peraza saw Chiquete fall to the ground. In addition, a passerby heard a “pop,” saw the shooter holding a handgun straight out in front of his body, and the victim drop to the ground. After he shot Chiquete, Garcia started running toward Peraza, who ran across the street in the opposite direction. Garcia chased Peraza and shot him in the back, seriously wounding him. Chiquete died from a single .9 millimeter gunshot wound to the chest. The bullet severed his pulmonary artery and destroyed his aorta—the main blood vessel coming from his heart; the bullet then went through Chiquete’s backbone and severed his spine. The gun powder stippling on Chiquete’s chest indicated that he was shot from within two to four feet away—most likely from within two feet. Garcia fled to Mexico after the shootings. On September 30, 1997, he called his former mother-in-law and told her he had killed one man and shot another. Garcia gave a variety of reasons for killing Chiquete—that it was because his ex-wife did not pay enough attention to him, that it was over 3 drugs and money and it was “either his life or theirs,” and because Chiquete had killed one of his cousins. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal. 1. Whether the trial court prejudicially erred by summarily denying Garcia’s petition resentencing for failing to set forth a prima facie case for relief. 2. Whether the procedural protections under Anders and Wende apply to an appeal from a trial court’s order denying a defendant’s petition under section 1170.95. 3. Even if the protection of Anders/Wende do not apply, should the court conduct an independent review of the record in the interests of justice?2 Garcia’s supplemental brief is based entirely on matters outside the record in this appeal from the denial of his petition for resentencing. Garcia asks the court to permit him to confront a number of persons, including an FBI agent. The supplemental brief has nothing to do with the current appeal and does not raise any arguable issues for reversal on appeal. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Garcia on this appeal.
2 It should be obvious from our opinion that we have applied the Wende/Anders independent review protections in this case. 4 DISPOSITION The order denying Garcia’s petition for resentencing under section 1170.95 is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
DO, J.
Cites, in this corpus
- People v. Garcia D032261 · 2000-03-16
- People v. Wende Crim. 20851 · 1979-10-12