People v. Garcia CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCD221708
- Trial judge
- Lisa R. Rodriguez
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Joan K. Irion, Michele M. Castillo
Analysis
The trial court denied Garcia's petition for resentencing under Penal Code section 1172.6, finding he was ineligible as a matter of law because the record of conviction established he was the actual killer and not prosecuted under felony murder or natural and probable consequences. The Court of Appeal affirmed the denial after an independent review of the record pursuant to People v. Wende, finding no potentially meritorious issues for reversal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“The petition is ineligible for relief as a matter of law for the following reasons: The record of convictions establishes by the petitioner’s own admission that he personally shot and killed the victim.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Lopez (2022) 78 Cal.App.5th 1 — If the record indicates the defendant was the direct perpetrator and there is no evidence of felony murder or natural and probable consequences, the defendant is ineligible for relief under section 1172.6.
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Appellate counsel may file a brief indicating no meritorious issues exist and ask the court to independently review the record.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate courts have a duty to independently review the record for error when counsel files a Wende brief.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Delgadillo framework for independent review. It relies on the trial court's factual findings regarding the record of conviction to affirm the denial of the petition.
How this analysis was made · dispute it
unusual dispositionThe trial court denied Jesse Garcia's Penal Code section 1172.6 resentencing petition at the prima facie stage without issuing an order to show cause, finding from the record of conviction that Garcia admitted personally shooting and killing the victim and so was the actual killer, ineligible for relief as a matter of law. On appeal, appointed counsel filed a Delgadillo brief, Garcia filed a supplemental brief that did not address the actual-killer finding, 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 1172.6 petition at the prima facie stage, without an order to show cause or evidentiary hearing, on the ground that the record of conviction shows Garcia admitted being the actual killer and was not prosecuted on a felony-murder, natural and probable consequences, or aiding-and-abetting theory.“The record of convictions establishes by the petitioner’s own admission that he personally shot and killed the victim.” | unclear | correct | agree with court A petitioner who admits in the record of conviction that he personally shot and killed the victim is the actual killer and remains liable for murder under current law, so he is ineligible for section 1172.6 relief as a matter of law; the trial court was entitled to rely on such admissions in the record of conviction at the prima facie stage without impermissible factfinding. Garcia's supplemental brief did not contest the actual-killer finding, and the appellate court's independent review found no arguable issue. The opinion does not articulate the governing prima facie standard (People v. Lewis) or explain what documents in the record of conviction contained the admission, but the result is consistent with the applicable law. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — In an appeal from the denial of a section 1172.6 petition where appointed counsel finds no arguable issues, Wende review is not constitutionally required, but the Court of Appeal must notify the defendant of the right to file a supplemental brief and may exercise its discretion to independently review the record.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Procedure for independent appellate review of the record when appointed counsel finds no arguable issues on appeal.
- relied: People v. Lopez (2022) 78 Cal.App.5th 1 — Relied on by the trial court for the proposition that where the record of conviction shows the petitioner was the direct perpetrator of the homicide and the People did not proceed on felony murder or natural and probable consequences, the petitioner is ineligible for section 1172.6 relief.
- missed: People v. Lewis (2021) 11 Cal.4th 952 — At the prima facie stage of a section 1172.6 petition the court may consider the record of conviction but must accept the petitioner's allegations as true and may deny only where the record establishes ineligibility as a matter of law without engaging in factfinding or weighing evidence; the opinion did not cite or apply this controlling standard.
The appellate opinion: sound with gaps — The court followed the Delgadillo procedure correctly, gave Garcia the opportunity to file a supplemental brief, and reasonably concluded that his admission to personally shooting and killing the victim rendered him ineligible as the actual killer. The opinion, however, does not state the governing prima facie standard from People v. Lewis, does not identify which documents in the record of conviction contain the admission, and contains a typographical error referring to 'section 1176.2'.
Opinion
Filed 7/3/24 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, D082924
Plaintiff and Respondent, v. (Super. Ct. No. SCD221708)
JESSE GARCIA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Jesse Garcia, in pro. per.; and Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2010, Jesse Garcia entered into a plea agreement with a stipulated sentence. He pleaded guilty to voluntary manslaughter (Pen. Code, § 192, subd. (a)), assault with a semi-automatic firearm (§ 245, subd. (b)), and dissuading a witness by force or threat (§ 136, subd. (c)(1)). Garcia also pleaded guilty to several other firearm and drug related offenses. The parties stipulated to a sentence of 35 years in prison. A murder charge was dismissed. Garcia also admitted a prison prior (§ 667.5, subd. (b)). The court imposed a determinate term of 35 years in prison. In 2023, Garcia successfully petitioned for resentencing under section 1172.75. The court struck the prison prior and reduced Garcia’s sentence to 34 years. In 2023, Garcia filed a petition for resentencing under section 1172.6. The court appointed counsel, received briefing, and held a prima facie hearing on Garcia’s petition. After reviewing the record of conviction, the court denied the petition without issuing an order to show cause or conducting an evidentiary hearing, finding Garcia was not eligible for resentencing as a matter of law. The court stated: “By his own admission in the court record, Petitioner was the actual killer. Petitioner was convicted by plea on June 23[ ], 2010, along with eight other charges, of a violation of Penal Code section 192[, subdivision] (a), and admitted that he personally used a firearm, pursuant to Penal Code section 12022.5[, subdivision] (a).
“The petition is ineligible for relief as a matter of law for the following reasons: The record of convictions establishes by the petitioner’s own admission that he personally shot and killed the victim. He admits that it was not in self- defense and that he shot him several times with a 9- millimeter pistol in close range. Based upon his conduct, he believed he would be convicted of first degree or second degree murder and entered into this plea to avoid an indeterminate term. That is part of the court record.
“The record of conviction also demonstrates that Petitioner was the actual killer in the homicide, and this was not a case upon which the People were prosecuting the defendant on either felony murder or natural and probable [consequences] doctrine or aiding and abetting as to the petitioner.
2 “Pursuant to the case of People v. Lopez [(] 2022 [)] 78 Cal.App.5th 1, upon review of the pleadings, if the record indicates that the defendant was the direct perpetrator of the homicide and there is nothing in the record of conviction that demonstrate the People presented an argument for felony murder or natural and probable consequences, then the defendant is ineligible for the relief requested. Accordingly, this petition is denied.”
Garcia filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise our discretion to independently review the record for error pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We notified Garcia he could file his own brief on appeal. Garcia responded with a brief submission discussing the original prosecution. He does not seriously address the court’s finding the record establishes he was the actual killer. Garcia focuses on the drug and weapon possession related offense, and the police activity involved in his trial. Garcia has not identified any potentially meritorious issues for reversal of the court’s order under section 1172.6 regarding the homicide offense. The petition for resentencing did not apply to the non-homicide offenses. Garcia has not stated a prima facie case for relief under section 1176.2. DISCUSSION As we have noted, appellate counsel has filed a brief under Delgadillo and asks the court to independently review the record for error. We have exercised our discretion and independently reviewed the record for error in the same way we would proceed in a case controlled by Wende.
3 Our review of the record has not identified any potentially arguable issues for reversal on appeal. Competent counsel has represented Garcia on this appeal. DISPOSITION The order denying Garcia’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
CASTILLO, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19
- People v. Wende Crim. 20851 · 1979-10-12