Filed 6/13/22 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT ANTHONY GARCIA,

Defendant and Appellant.

F082732

(Super. Ct. No. F11902827)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Fresno County. Houry A. 

Sanderson, Judge.

Victor J. Morse, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. 

White, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

* Before Hill, P. J., Poochigian, J. and Franson, J.
2.

Appellant Robert Anthony Garcia appeals following the denial of his petition for 

resentencing under the then applicable statute, Penal Code1former section 1170.95 

(Stats. 2018, ch. 1015, § 4). The parties agree that the trial court erred in making certain 

factual findings and thus should not have denied appellant’s petition at the prima facie

stage of the statutory proceedings. Upon review of the record and arguments, we agree 

and therefore vacate the trial court’s order and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

On November 29, 2011, an information was filed alleging appellant and Brandon 

Michael Patterson murdered Leonard Charles Vivian. Following a 2013 jury trial, 

appellant was convicted of first degree murder. The facts, as detailed in our 

nonpublished opinion following appellant’s direct appeal of his conviction (People v. 

Patterson (Dec. 8, 2015, F067972)), suggest that appellant and another individual killed 

Vivian in the course of a robbery. Notably, our opinion also states that “[t]he only theory 

of murder presented to the jury was felony murder, with the alleged underlying felony 

being attempted robbery.”

On January 31, 2019, appellant filed a petition for resentencing pursuant to former 

section 1170.95. Appellant argued he and Patterson had both been convicted of felony 

murder and that the evidence showed Patterson was the actual killer. Initially, the People 

filed an opposition alleging former section 1170.95 was unconstitutional. This eventually 

led to counsel being appointed for appellant and substantial additional briefing on 

constitutionality issues.

The trial court, however, determined it would not rule on constitutional issues until 

a prima facie showing of eligibility was made. Thus, appellant’s counsel filed a separate 

brief which relied on the opinion from appellant’s direct appeal and argued appellant had 

made a prima facie showing of eligibility for relief and was thus entitled to an evidentiary 

1 All future statutory references are to the Penal Code.
3.

hearing under the statutory scheme. In conjunction with this briefing, appellant 

submitted a declaration stating he “was not the actual killer,” he “did not, with intent to 

kill, aid, abet ... or assist the actual killer,” he “was not a major participant in the felony 

or ... act with reckless indifference to human life,” that Vivian was not a police officer, 

and that he could not now be convicted of murder due to the changes to section 188.

The People again opposed. This time, reciting the facts adduced at trial and 

contained in the opinion from appellant’s direct appeal, the People argued appellant could 

not make a prima facie showing that he was entitled to relief under the two-prong 

structure then existing under People v. Lewis (2020) 43 Cal.App.5th 1128, 1140, 

overruled by People v. Lewis (2021) 11 Cal.5th 952, 975, because the evidence 

demonstrated beyond a reasonable doubt that he was either the actual killer or had acted 

with reckless indifference to human life. In his reply brief, appellant argued the People’s 

arguments were not proper at the prima facie stage and should be resolved at a future 

show cause hearing.

At the hearing on appellant’s petition, the trial court analyzed the case under the 

then-existing rubric. The court first determined that the petition was generally adequate, 

and concluded the next step was to determine whether appellant had “made a prima facie 

showing that [he] falls within the provisions of [former] section 1170.95[, 

subdivision ](c).” After reviewing the evidence submitted to the court, including the 

opinion on appellant’s direct appeal, the court denied appellant’s petition because “given 

the information the Court has,” appellant “would be eligible for a conviction under the 

changes within [sections ]188 and 189 of the Penal Code based on the information that is 

available.” The court explained that it considered the process to be a multi-tiered system 

such that a petitioner could not simply file a petition then go to another hearing where 

one could present evidence on whether or not they should be resentenced.

This appeal timely followed.
4.

DISCUSSION

As it currently stands and relevant to this case, section 1170.95, subdivision (a) 

provides:

“(a) A person convicted of felony murder or murder under the natural and 

probable consequences doctrine or other theory under which malice is imputed to a 

person based solely on that person’s participation in a crime, attempted murder under the 

natural and probable consequences doctrine, or manslaughter may file a petition with the 

court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or 

manslaughter conviction vacated and to be resentenced on any remaining counts when all 

of the following conditions apply:

“(1) A complaint, information, or indictment was filed against the petitioner that 

allowed the prosecution to proceed under a theory of felony murder, murder under the 

natural and probable consequences doctrine or other theory under which malice is 

imputed to a person based solely on that person’s participation in a crime, or attempted 

murder under the natural and probable consequences doctrine.

“(2) The petitioner was convicted of murder, attempted murder, or manslaughter 

following a trial or accepted a plea offer in lieu of a trial at which the petitioner could 

have been convicted of murder or attempted murder.

“(3) The petitioner could not presently be convicted of murder or attempted 

murder because of changes to Section 188 or 189 made effective January 1, 2019.”

Section 1170.95, subdivision (c) explains, “After the parties have had an 

opportunity to submit briefings, the court shall hold a hearing to determine whether the 

petitioner has made a prima facie case for relief. If the petitioner makes a prima facie 

showing that the petitioner is entitled to relief, the court shall issue an order to show 

cause ....” (Stats. 2021, ch. 551, § 2.)

The dispute in this case arises in the context of section 1170.95, subdivision (c) 

and its requirement that the court determine whether appellant “is entitled to relief.” The 
5.

process for making this determination is similar to habeas corpus proceedings. (People v. 

Lewis, supra, 11 Cal.5th at p. 971.) Thus, “when assessing the prima facie showing, the 

trial court should assume all facts stated in the section 1170.95 petition are true. 

[Citation.] The trial court should not evaluate the credibility of the petition’s assertions, 

but it need not credit factual assertions that are untrue as a matter of law—for example, a 

petitioner’s assertion that a particular conviction is eligible for relief where the crime is 

not listed in subdivision (a) of section 1170.95 as eligible for resentencing. Just as in 

habeas corpus, if the record ‘contain[s] facts refuting the allegations made in the petition 

... the court is justified in making a credibility determination adverse to the petitioner.’ 

[Citation.] However, this authority to make determinations without conducting an 

evidentiary hearing pursuant to section 1170.95, subd[ivision] (d) is limited to readily 

ascertainable facts from the record (such as the crime of conviction), rather than 

factfinding involving the weighing of evidence or the exercise of discretion (such as 

determining whether the petitioner showed reckless indifference to human life in the 

commission of the crime).” (People v. Drayton (2020) 47 Cal.App.5th 965, 980, second 

bracketed insertion in original, abrogated on another ground in Lewis, at p. 963.)

In this case, the parties agree the trial court erred in determining appellant had not 

made a prima facie showing of eligibility. Upon review, this court accepts the parties’ 

position. The record of conviction in this case demonstrates that appellant was charged 

and convicted under a felony-murder theory. Appellant’s averments in his petition are in 

line with this conclusion and demonstrate prima facie eligibility.

This court notes that the record contains substantial factual evidence regarding 

appellant’s role in the underlying crime that could preclude appellant’s resentencing. 

However, as the People concede, the record shows that the jury was instructed on a 

felony-murder theory, which is eligible for resentencing, and does not demonstrate as a 

matter of law that resentencing is improper. At the prima facie stage, the court could not 

properly resolve the resulting conflict between the facts indicating eligibility and those 
6.

indicating appellant’s conviction did not warrant resentencing and thus could not 

conclude appellant is, in fact, ineligible for resentencing. (People v. Drayton, supra, 

47 Cal.App.5th at p. 980.) Appellant is therefore entitled to a show cause hearing under 

section 1170.95, subdivision (d)(3).

DISPOSITION

The court grants appellant’s November 8, 2021 request for judicial notice.

The April 29, 2021 order denying appellant’s petition for resentencing is vacated. 

The matter is remanded to the superior court with directions to issue an order to show 

cause and to conduct a hearing on the petition to determine whether to vacate appellant’s

murder conviction, recall his sentence, and resentence him consistent with Penal Code 

section 1170.95, as amended effective January 1, 2022 (Stats. 2021, ch. 551, § 2).