Filed 1/30/23 P. v. Garcia CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT GARCIA, JR.,

Defendant and Appellant.

 D080080

 (Super. Ct. No. INF1700208)

APPEAL from a judgment of the Superior Court of Riverside County, 

Dale R. Wells, Judge. Remanded for resentencing.

Ronda G. Norris, under appointment by the Court of Appeal, for 

Defendant and Appellant.

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

Attorney General, Charles C. Ragland, Assistant Attorney General, Andrew 

Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

Defendant Robert Garcia, Jr. drove two passengers to Palm Springs in 

his sedan after smoking methamphetamine. He made a left turn as the light 

was changing, ignoring his passengers’ pleas to stop. An oncoming vehicle 

crashed into his sedan as he turned, killing his front seat passenger. Garcia 

was unharmed, but his backseat passenger and the occupants of the 

oncoming vehicle sustained injuries. Based on these events, a jury convicted 

Garcia of second degree murder (Pen. Code, § 187, subd. (a)) and driving 

under the influence causing bodily injury.1 Rejecting his request for 

probation, the court sentenced him to concurrent prison terms of seven years 

and 15 years to life.

On appeal Garcia contends the court violated Evidence Code section 

352 in permitting the People to introduce prior act evidence from the 1980s to 

show implied malice. He argues this evidence was remote as well as 

cumulative where a later 2011 conviction and Watson advisement came in. 

Because the evidence of implied malice was overwhelming, we reject this 

claim, finding any evidentiary error harmless. Garcia next asks us to revisit 

the Watson murder doctrine, a request we readily reject in our role as an 

intermediate appellate court. Finally, Garcia raises two challenges 

pertaining to his sentence. We conclude that recent amendments to the 

Determinate Sentencing Law (DSL) (§ 1170, subd. (b)) made by Assembly Bill 

No. 124 (Stats. 2021, ch. 695, § 5.3, effect. Jan. 1, 2022) require remand for 

resentencing so that the trial court can consider whether to impose a 

presumptive lower term on count 2. Garcia can direct his request for a 

1 Implied malice murder involving drunk driving is colloquially “known 

as a Watson murder” (People v. Wolfe (2018) 20 Cal.App.5th 673, 677 (Wolfe)),

based on the Supreme Court’s opinion in People v. Watson (1981) 30 Cal.3d 

290, 301 (Watson).

Further undesignated statutory references are to the Penal Code.
3

diagnostic report under section 1203.03 to the trial court in the first instance. 

Accordingly, we remand for resentencing and in all other respects affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 2017, Garcia stayed up all night smoking 

methamphetamine with his friend T.O. Garcia was a daily

methamphetamine user and the two would regularly smoke together. The 

next morning, Cesar Z. and Keyon P. came to T.O.’s home and asked Garcia if 

he could drive them to Home Depot in Palm Springs to return a garbage 

disposal. The group smoked methamphetamine together and got high. 

Garcia then got behind the wheel of his Ford Taurus sedan, with Keyon in 

the front passenger seat and Cesar in the backseat behind Keyon. T.O. did 

not join the trio but described Garcia as behaving “normal like he always is” 

when he got behind the wheel. 

As Garcia approached Palm Springs on Route 62, he swerved or drifted 

out of his lane two or three times. Cesar asked if he was feeling okay and 

offered to drive. Garcia refused, saying no one else could drive his car. In 

Palm Springs, Garcia got lost trying to locate Home Depot. Ignoring Cesar 

and Keyon’s directions, he missed a turn as he was driving south on North 

Sunrise Way. Approaching the next intersection—East Amado Rd.—Garcia

failed to slow down at a yellow or red light and proceeded at full speed to turn 

left in front of oncoming traffic. Keyon and Cesar yelled at Garcia to stop, 

asking, “What’s wrong with you?” and exclaiming, “[Y]ou’re gonna get hit by 

the car.” Although the light was yellow or red, Garcia “still wasn’t stopping 

. . . [or] even showing signs of slowing down.” 

At that moment, Michael E. was approaching the intersection traveling 

north on North Sunrise Way. He was driving a GMC Yukon sports utility 
4

vehicle with Michael D. in the front passenger seat. Seeing the light turn 

green, he accelerated toward the intersection. He did not see Garcia’s sedan 

turn left until it was too late. The Yukon smashed into the Taurus’s front 

passenger door, killing Keyon. Cesar’s leg got caught as he tried leaping 

toward the driver’s side of the backseat seconds before the collision. As the 

parties would stipulate at trial, Keyon died of multiple blunt force traumatic 

injuries from the collision, Cesar suffered great bodily injury, and Michael E. 

and Michael D. each suffered bodily injuries. 

Responding officers spoke to Garcia, observed signs of impairment, and 

conducted field sobriety tests. Garcia had droopy eyelids and constricted 

pupils. He performed poorly on the walk-and-turn test and finger-to-nose 

test, leading officers to conclude he was under the influence and could not 

safely operate a vehicle. A more detailed evaluation by a drug recognition 

expert in a controlled setting at the police station confirmed these findings. 

Garcia’s eyelid tremors suggested stimulant use, and he had slow, slurred 

speech. Garcia claimed to have taken Tramadol and smoked marijuana that 

day. He knew he was not supposed to drive after consuming either

substance. As he told Palm Springs Patrol Sergeant Kevin Lu, driving under 

the influence of those substances could affect his senses and response time, 

resulting in possible collision and death. 

A search warrant was issued for a blood sample, which indicated 102 

nanograms per milliliter of methamphetamine and 27 nanograms per 

milliliter of amphetamine, a metabolite, in Garcia’s system. Although 

methamphetamine is a stimulant that causes hyperactivity, during the crash 

phase a user experiences slowness in movement and speech and exhibits

balance and coordination issues. Some stimulant effects of 

methamphetamine such as eyelid tremors may still be present during the 
5

crash phase. Officers initially suspected that Garcia was under the influence 

of a narcotic analgesic, like the Tramadol he claimed to be taking, but lab 

results led them to conclude he was instead experiencing the downside effects 

of methamphetamine use. 

The Riverside County District Attorney charged Garcia by information 

with second degree murder of Keyon (§ 187, subd. (a), count 1) and driving 

under the influence causing bodily injury (Veh. Code, § 23153, subd. (f), 

count 2).2 As to count 2, it was alleged that Garcia personally inflicted great 

bodily injury on Cesar (Pen. Code, §12022.7, subd. (a)) and proximately 

caused bodily injury to Michael E. and Michael D. (Veh. Code, § 23558).3 The

jury convicted Garcia as charged and found all allegations true. The court 

sentenced him to an indeterminate term of 15 years to life on count 1. On 

count 2, it imposed a concurrent determinate sentence of seven years, 

consisting of the two-year middle term for driving under the influence

(§ 1170, subd. (h)), three years for the great bodily injury enhancement, and 

two one-year terms for each bodily injury enhancement. 

2 As Garcia notes on appeal, the information incorrectly cited subdivision 

(e) rather than subdivision (f) of Vehicle Code section 23153. Vehicle Code 

section 23153, subdivision (f) prohibits any person while under the influence 

of any drug to drive negligently, causing bodily injury to any person other 

than the driver.

3 Section 12022.7, subdivision (a) adds a three-year consecutive prison 

term for “[a]ny person who personally inflicts great bodily injury on any 

person other than an accomplice in the commission of a felony or attempted 

felony . . . .” Where properly pleaded and proven, the one-year enhancement 

attaches to a “person who proximately causes bodily injury or death to more 

than one victim in any one instance of driving in violation of Section 23153 of 

[the Vehicle Code].” (Veh. Code, § 23558.) 
6

DISCUSSION

On appeal, Garcia urges us to find evidentiary error and revisit the 

Watson murder doctrine of implied malice. We reject both contentions. But 

we accept his claim that recent amendments to the DSL require remand for 

resentencing, where the effects of his 1993 traumatic brain injury can be 

more fully considered.

A. Any error in admitting remote or cumulative DUI cases from the 1980s 

was harmless.

Garcia challenges as remote and cumulative evidence of past drivingunder-the-influence (DUI) arrests from the 1980s, which the prosecution 

introduced to establish implied malice. As we explain, even assuming the 

court erred in admitting one or more of these prior acts, there is no 

reasonable probability it affected the outcome where evidence of implied 

malice was overwhelming.

1. Additional Background

Before trial, the People filed a motion in limine to admit evidence that 

Garcia had four prior law enforcement contacts relating to DUIs. Three 

incidents took place in the 1980s, while a fourth happened in 2010. The 

prosecution maintained that this evidence was admissible under Evidence 

Code section 1101, subdivision (b) to prove Garcia had the requisite 

knowledge that the natural consequences of his impaired driving were 

dangerous to human life. 

Defense counsel moved to exclude the 1980s incidents under Evidence 

Code section 352. While Garcia was advised in pleading guilty in 2011 about 

the dangers of impaired driving, counsel maintained there was no 

nonspeculative way to determine what he had learned from decades-old 

incidents (particularly the one resulting in acquittal). To the extent the court 
7

was inclined to admit this evidence, counsel sought to introduce it by 

stipulation to minimize its prejudicial effect. The People agreed to introduce 

this prior act evidence by stipulation. Ultimately the court ruled that the 

prosecution could introduce by stipulation evidence of all four of Garcia’s past 

DUI incidents to show that he possessed the requisite mental state for 

Watson murder. 

Midway through trial, several stipulations were read to the jury. In 

1986, Garcia was acquitted of driving while intoxicated in North Carolina, 

but he received a reprimand from his military commanding officer. In 1987, 

he was again charged but this time convicted of driving while intoxicated in 

North Carolina, reprimanded by his commanding officer, and ordered to 

enroll in drug and alcohol traffic school. Garcia received a second conviction

in 1989, this time arising out of a DUI hit-and-run accident that caused 

injury in Santa Barbara. Finally, Garcia was convicted of a DUI in 2011, 

placed on probation, and ordered to attend a three-month drinking and 

driving education program. He acknowledged in a written statement that 

“ ‘ “being under the influence of alcohol or drugs or both, impairs my ability to 

safely operate a motor vehicle.” ’ ” By initialing, Garcia said he understood

that “ ‘ “it is extremely dangerous to human life to drive while under the 

influence of alcohol or drugs or both” ’ ” and that continuing “ ‘ “to drive while 

under the influence of alcohol or drugs or both” ’ ” could result in murder 

charges if “ ‘ “as a result of that driving someone is killed.” ’ ” 

The prosecutor highlighted the 2011 Watson advisement during her

closing argument, stating Garcia knew in initialing this statement after his 

fourth DUI arrest that driving under the influence was extremely dangerous 

to human life. Nevertheless, he consciously disregarded that risk by staying 

up all night doing methamphetamine and getting behind the wheel. He 
8

further ignored the known risk to human life in refusing Cesar’s offer to drive 

as he swerved and drifted across lanes, and in ignoring pleas from his 

passengers to stop rather than turn left as the traffic light changed color. 

Given Garcia’s past driving history—in particular, the hit-and-run in 1989 

and the Watson advisement he initialed in 2011—the prosecutor argued that 

Garcia knew the consequences of impaired driving. Garcia admitted as much 

to the responding officer, saying he knew well enough not to drive under the 

influence of marijuana and Tramadol, which by extension suggested he knew 

not to drive under the influence of methamphetamine. 

Defense counsel, by contrast, argued to the jury that Garcia did not 

swerve or drive erratically until getting lost in Palm Springs. In the 

defense’s view, Garcia’s mannerisms in speaking with responding law 

enforcement officers did not suggest he was on the downside of a 

methamphetamine high. Looking to the totality of the circumstances, 

counsel suggested there was evidence Garcia suffered a prior traumatic brain 

injury and could not remember what happened back in 2011. Counsel asked: 

“Has the prosecution proven beyond a reasonable doubt that that unfortunate 

left turn on the yellow was due to impairment? Is it reasonable based on the 

state of the evidence that that could have been due to his head injury 

previously in 1993? If you don’t know the answer to that, that’s reasonable 

doubt.” 

In rebuttal, the prosecutor remarked that this case was not about 

“ ‘[a]n unfortunate left turn’ ” but rather about “a man who was arrested for 

driving under the influence for the fifth time after he was explicitly told not 

to do this.” Despite Garcia’s history of being in a collision while under the 

influence and receiving an explicit Watson advisement, she maintained that 

Garcia refused to take responsibility for what he knew in getting behind the 
9

wheel. She reminded jurors to not “forget this is his [fifth] time he’s been 

arrested for DUI.” “The defendant has been told over and over again that he

can’t do this. But he still chooses to drive while under the influence. He 

knows the risks. He told Sergeant Lu all about them.” “He’d been in a 

collision while driving under the influence before he’d spent time in jail. 

Taken at least three DUI education courses and then we’ve got that written 

admonishment. He knew what he was doing. He knew the risk he was 

creating, and he just didn’t care.” Indeed Garcia “chose to stay behind the 

wheel when someone else offered to drive.” As to Garcia’s 1993 head injury, 

the prosecutor noted that the injury did not stop him from being convicted in 

2011 of another DUI. 

The jury was given a limiting instruction that it could consider the 

prior DUIs if proven by a preponderance of the evidence solely to decide 

whether Garcia “knew that driving under the influence of drugs or alcohol or 

both is dangerous to human life” or to conclude that his “alleged actions were 

not the result of mistake or accident.” (CALCRIM No. 375.) The court 

directed the jury not to consider the prior act evidence for any other purpose. 

(Ibid.)

2. Applicable Legal Principles

As a rule, prior act evidence is admissible where it is relevant to prove 

some fact other than propensity, “such as motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake or accident.” 

(Evid. Code, § 1101, subds. (a)−(b).) Garcia was charged with Watson 

murder, which rests on a theory of implied malice. (Watson, supra, 30 Cal.3d 

at pp. 300−301; Pen. Code, §§ 187, 188; see CALCRIM No. 520.) “ ‘Malice is 

implied when an unlawful killing results from a willful act, the natural and 

probable consequences of which are dangerous to human life, performed with 
10

conscious disregard for that danger.’ ” (Wolfe, supra, 20 Cal.App.5th at 

p. 681.) Unlike gross negligence, implied malice “depends upon a 

determination that the defendant actually appreciated the risk involved, i.e., 

a subjective standard.” (Watson, at pp. 296−297.) As one court put it, “the 

state of mind of a person who acts with conscious disregard for life [i.e., 

implied malice] is, ‘I know my conduct is dangerous to others, but I don’t care 

if someone is hurt or killed.’ The state of mind of the person who acts with 

conscious indifferences to the consequences [i.e., gross negligence] is simply, 

‘I don’t care what happens.’ ” (People v. Olivas (1985) 172 Cal.App.3d 984, 

987−988 (Olivas).)

Although implied malice requires actual awareness of the risk created, 

it does not require proof “by an admission or other direct evidence of the 

defendant’s mental state.” (People v. Superior Court (Costa) (2010) 183 

Cal.App.4th 690, 697.) “[L]ike all other elements of a crime, implied malice 

may be proven by circumstantial evidence.” (Ibid.) Past DUI convictions, 

courses, and advisements have been admitted for this purpose. (See Wolfe, 

supra, 20 Cal.App.5th at pp. 677, 683 [20-year-old prior conviction for DUI 

followed by impaired driving class, as well as five-year-old attestation during 

license renewal].) Circumstantial evidence of implied malice may also be 

found from the nature of the incident itself. (Id. at pp. 683−684 [inability to 

stay in her lane, flight from the scene, and circumstances of the collision]; 

Olivas, supra, 172 Cal.App.3d at pp. 987−988 [speeding, collision with one car 

and near misses with two others, and deliberate avoidance of pursuing 

officers]; Watson, supra, 30 Cal.3d at p. 301 [speeding, running a red light, 

and near miss with another vehicle before colliding with the victim’s car].)

“Regardless of its probative value, evidence relating to other crimes 

always creates a risk of serious prejudice.” (People v. Brogna (1988) 202 
11

Cal.App.3d 700, 709.) Under Evidence Code section 352, the court may 

exclude prior act evidence if its prejudicial effect substantially outweighs the 

probative value. (Ibid.) Prior act evidence is unduly prejudicial where it 

uniquely tends to evoke an emotional bias against the defendant or causes

the jury to prejudge the defendant on extraneous factors. (People v. Foster 

(2010) 50 Cal.4th 1301, 1331.) We review a trial court’s evidentiary rulings

under Evidence Code sections 1101 and 352 for abuse of discretion. (Id. at 

p. 1328.) Any error is harmless if there is no reasonable likelihood that it 

affected the outcome. (See People v. Thomas (2011) 52 Cal.4th 336, 356, 

fn. 20 (Thomas) [applying the harmless error standard of People v. Watson

(1956) 46 Cal.2d 818, 836 to rulings under Evidence Code section 1101].)

3. Analysis

Garcia argues that the decades-old DUI incidents from the 1980s 

should have been excluded under Evidence Code section 352. (See People v. 

Harris (1998) 60 Cal.App.4th 727, 739 [remoteness of 23-year-old prior 

conviction weighed toward exclusion].) While acknowledging that there is no 

clear time cutoff for remoteness (see ibid.), he notes that prior act evidence 

admissible to show propensity under Evidence Code section 1109 must be less 

than 10 years old. (Evid. Code, § 1109, subd. (e).) While a high degree of 

similarity between incidents may balance out remoteness concerns (see 

People v. Hernandez (2011) 200 Cal.App.4th 953, 968), Garcia notes that his 

prior DUIs all involved alcohol, not methamphetamine. The People respond 

that remoteness of prior act evidence generally affects weight, not 

admissibility. (People v. Caitlin (2001) 26 Cal.4th 81, 127.) They further 

suggest that a remoteness argument in introducing decades-old convictions is 

undermined by Garcia’s failure to lead a blameless life thereafter given his 

conviction in 2011. (See Harris, at p. 739.) 
12

Beyond remoteness, Garcia deems the 1980s evidence cumulative given 

ample other evidence demonstrating his knowledge that impaired driving 

was dangerous to life. Defense counsel conceded that the 2011 DUI 

conviction and Watson advisement was relevant and admissible to prove 

Garcia’s mental state. The jury additionally heard Garcia’s statements to 

officers after his arrest. The People by contrast suggest that the admission of 

other evidence tending to show Garcia’s mental state did not alone render the 

1980s evidence cumulative. Moreover, where the evidence was presented to 

the jury in the form of a stipulation, it “did not consume much time and was 

no more inflammatory than the other evidence presented at trial.” 

Garcia questions how a 1986 acquittal of driving under the influence

was probative of his mental state decades later. To this, the People cite 

People v. Garcia (1995) 41 Cal.App.4th 1832, which at page 1849 found no 

abuse of discretion in admitting evidence of three prior DUI arrests where 

only one led to conviction. 

As we explain, we need not decide whether admitting evidence of 

Garcia’s three prior DUI arrests from the 1980s was an abuse of discretion

under Evidence Code section 352. Assuming the court erred in failing to 

exclude one or more of these prior acts, the error was harmless. 

The main question at trial was whether Garcia possessed the requisite 

knowledge that driving under the influence of drugs was dangerous to human 

life as he got behind the wheel, and if he consciously disregarded that risk. 

Blood tests revealed methamphetamine in Garcia’s system, and trial 

testimony confirmed that Garcia was a daily user who had smoked the 

morning of the collision and the night before. The defense did not challenge 

the admission of his 2011 DUI conviction, or the Watson advisement that 

spoke directly to his knowledge that driving under the influence of drugs or 
13

alcohol was extremely dangerous to human life. As Garcia approached Palm 

Springs on Route 62, he drifted out of his lane two or three times, causing 

Cesar to offer to drive. Ignoring his passengers’ pleas to stop, Garcia 

ploughed through a yellow or red light without breaking to turn left. After 

the crash, Garcia told responding law enforcement that he knew driving 

under the influence of marijuana or Tramadol could affect his senses and 

response time and result in a collision or death. 

Simply put, the strongest evidence of malice came from the 2011 

Watson advisement, his driving behavior and postaccident admissions that 

day, and his response to Cesar and Keyon’s pleas—evidence to which no 

admissibility challenge is raised. Prior act evidence was offered by 

stipulation to minimize its prejudicial effect. Although the prosecutor 

repeatedly highlighted Garcia’s multiple DUI priors during her closing 

argument, she tied this evidence to the question of whether he acted with 

implied malice, and the jury was given an appropriate limiting instruction. 

On this record, we are persuaded that despite the remoteness or 

cumulativeness concerns raised by Garcia, there is no reasonable likelihood 

he would have obtained a more favorable outcome had the 1980s DUI 

evidence been excluded from trial.

B. We Cannot Reconsider Watson.

Maintaining we are “ ‘bound but not gagged’ ” by California Supreme 

Court precedent, Garcia urges us to reconsider the Watson murder doctrine of 

implied malice, suggesting that impaired drivers should instead face 

punishment for gross vehicular manslaughter while intoxicated. As an 

intermediate appellate court, we need not dwell on this argument. The 

Supreme Court’s 1981 ruling in Watson remains binding precedent, and 
14

Garcia offers no reasoned basis to depart from it. (Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455.)

C. Resentencing Is Required

Evidence at trial and sentencing suggested Garcia suffered a traumatic 

brain injury in 1993 that may have contributed to the collision. When he was 

sentenced in November 2021, the court had no basis to take this evidence into 

account when it imposed the middle term on count 2. Because recent 

amendments to the DSL enacted as part of Assembly Bill No. 124 may make 

lower term sentencing presumptive on our record, resentencing is required.

1. Additional Background

A central issue at trial was whether Garcia acted with implied malice 

when he drove a vehicle while he was under the influence of a controlled 

substance. Soon after the collision, Garcia told responding officers that he 

suffered a brain injury in 1993. He said his brain injury made it challenging

to process information. Cesar felt that on the day of the accident, Garcia was 

acting like a “space cadet”—he seemed to listen one moment but not be 

present in the next. Relying on this evidence, defense counsel asserted in 

closing that Garcia was “a space cadet” who, because of his brain injury, 

could not recall the 2011 Watson advisement. He suggested the brain injury 

created reasonable doubt whether Garcia failed to stop due to his 1993 head 

injury rather than the influence of methamphetamine. In her rebuttal, the 

prosecutor claimed law enforcement ruled out the possibility that a head 

injury affected the results of Garcia’s sobriety tests. She added that Garcia 

got his license back after the head injury, continued driving for 20 years, and 

was convicted of a DUI in the interim in 2011. 

After the jury convicted him, Garcia requested formal probation in his 

sentencing brief. He reported experiencing a traumatic brain injury in 1993 
15

after a car accident. (Garcia was the unbelted passenger in a pickup truck 

being driven by his father on a dirt road; his father lost control and crashed 

into a tree.) Doctors had to perform an emergency craniotomy, and Garcia

lost significant cognitive functioning. Medical records from 1993 and 2007 

confirmed residual cognitive effects. The People opposed Garcia’s request for 

probation, claiming he was not a suitable candidate notwithstanding a 28-

year-old injury. To the extent Garcia still experienced cognitive deficits from 

the 1993 collision, the People argued that the incident enhanced rather than 

negated his dangerousness because he should not have been driving at all. 

At the start of the sentencing hearing, the court indicated its tentative 

decision to deny probation and impose a determinate prison term of seven 

years on the DUI count to be served concurrently with an indeterminate 15-

years-to-life term on the murder count. Invited to comment, defense counsel 

reiterated his request for probation in light of Garcia’s brain injury. If 

probation were denied, counsel urged the court to impose only the

determinate term on count 2 and stay the sentence on count 1 based on 

amendments due to take effect.4 He further asked the court for a 90-day 

4 Effective January 1, 2022, Assembly Bill No. 518 amended section 654 

to permit the court to stay execution of either term, whereas before the 

statute required the court to stay the shorter sentence. (See generally, People 

v. Jones (2022) 79 Cal.App.5th 37, 45.) Garcia was sentenced two months 

before the amendments took effect. The court concluded that section 654 did 

not apply, imposed sentences on both counts, and ran the terms on counts 1 

and 2 concurrently. Garcia does not challenge that ruling on appeal.
16

diagnostic pursuant to section 1203.03 that could be considered in recalling 

the sentence.5

Garcia’s sister Elida S. then spoke. She indicated that Garcia’s 

traumatic brain injury left him “with the functioning capability of a sevenyear-old,” a fact not considered during trial. Nor, in her view, “was his 

mental status taken into consideration.” She asked for probation so that the 

family could help Garcia receive mental health therapy and assured the court 

that he would not be permitted to drive. 

The prosecutor urged the court to find Garcia unsuitable for probation. 

She highlighted his failure to take responsibility or show remorse for his 

actions. She further noted that Garcia had served past probationary terms 

and completed education components but nevertheless drove while impaired 

and killed someone. As to the request for a diagnostic evaluation, the 

prosecutor remarked that this should have been requested before sentencing. 

While a diagnostic report would offer additional information on Garcia’s 

cognitive functioning, the prosecutor did not feel it would be material. The 

court already had extensive information about Garcia’s cognitive deficiencies 

following the 1993 accident. To the extent the court credited the family’s 

5 Where a defendant faces confinement in state prison and a court 

concludes “that a just disposition of the case” requires diagnosis and 

treatment services, the court “may order that defendant be placed 

temporarily in such facility for a period not to exceed 90 days” for the 

Department of Corrections diagnose his mental state and submit 

recommendations in a written report. (§ 1203.03, subds. (a)−(b).) Time 

spent in a diagnostic facility is credited against the defendant’s sentence. 

(Id., subd. (g).) If during the diagnostic period defendant is found “to be 

suffering from a remediable condition relevant to his criminal conduct, the 

department may, with the permission of defendant, administer treatment for 

such condition.” (Id., subd. (h).)
17

account of lasting repercussions, she felt that made his conduct more 

egregious, not less, in driving while under the influence. 

Defense counsel responded that Garcia’s apparent failure to show 

remorse or accept responsibility should be construed in light of his 

immaturity, which was caused by his brain injury. Garcia was not a callous 

person who sought to inflict pain, and his actions and statements were “a 

result of his injury.” 

Judge Wells ruled that while there was no bar to granting probation, he

did not believe Garcia was a suitable candidate. He wished he had “more 

current information about his mental state,” noting the 2007 

neuropsychological report was 14 years old. Given its age, he could not rely 

on the report to determine Garcia’s probation-eligibility. The court accepted 

defense counsel’s reason for Garcia’s “apparently callous remarks.” 

Nevertheless, past opportunities to learn about impaired driving did not 

prevent him from killing someone. As sympathetic as the court was to the 

family, it did not believe probation would be responsible or proper. 

The court then listed reasons for and against probation. Garcia did not 

have an extensive criminal record and had performed satisfactorily on 

probation or parole in the past. He was not currently on probation or parole 

and had the ability and willingness to comply with reasonable conditions of 

probation. The adverse collateral consequences of a prison term would be 

serious. On the other hand, the court considered the serious nature of the 

offense and circumstances of the crime. The victim was vulnerable, and 

Garcia abused his position of trust or confidence, ignoring his passengers’ 

pleas to stop. On balance, even if Garcia was technically eligible for 

probation, the court did not believe he was a suitable candidate for it. 
18

In selecting a prison term, the court imposed a 15-years-to-life 

indeterminate term on count 1. Count 2 was punishable by 16 months, two 

years, or three years. (§ 1170, subd. (h).) Based on the aggravating and 

mitigating factors, the court imposed a two-year middle term. To this, it

added a three-year great bodily injury enhancement as to Cesar and two oneyear bodily injury enhancements as to Michael E. and Michael D. The court 

commented that it was showing leniency by running the terms on counts 1 

and 2 concurrently rather than consecutively. Turning to Garcia’s request for 

a 90-day diagnostic, Judge Wells expressed that section 1203.03 envisioned 

any diagnostic study being completed before sentencing and denied Garcia’s 

request.6

2. Assembly Bill No. 124

Assembly Bill No. 124 amended the DSL to make lower term 

sentencing presumptive under certain circumstances. (Stats. 2021, ch. 695, 

6 Section 1203.03 indeed envisions any diagnostic study to be completed 

before sentencing. (See § 1170, subd. (b)(4) [listing “reports received 

pursuant to Section 1203.03” among the materials a court may consider 

during sentencing].) Even so, Garcia argues that nothing prohibited a 

request being made at the sentencing hearing, with the court free to postpone 

the hearing or recall the sentence after his evaluation. Claiming the trial 

court abused its discretion in denying his request, he seeks remand with 

directions that the trial court order a diagnostic study before resentencing. 

Because we conclude remand for a full resentencing hearing is necessary 

based on recent amendments to the DSL, we need not address this issue. We 

presume a request for a diagnostic study under section 1203.03 will be made 

well before resentencing, and any remaining argument about the propriety of 

such a study can be directed to the trial court.
19

§ 5.3.)7 As relevant here, lower term sentencing is presumptively 

appropriate where a defendant “has experienced psychological, physical, or 

childhood trauma” and that trauma “was a contributing factor in the 

commission of the offense.” (§ 1170, subd. (b)(6)(A); see Cal. Rules of Court, 

rule 4.420(e)(1).) Where the presumption applies, the court must apply the 

lower term unless it “finds that the aggravating circumstances outweigh the 

mitigating circumstances that imposition of the lower term would be contrary 

to the interests of justice.” (§ 1170, subd. (b)(6).)

As the People appropriately concede, this amendment applies 

retroactively to Garcia. (In re Estrada (1965) 63 Cal.2d 740, 745; see People 

v. Gerson (2022) 80 Cal.App.5th 1067, 1095 (Gerson).) Nevertheless, they 

suggest that remand for resentencing is unnecessary because the court’s 

statements at sentencing demonstrate it would have found a lower term on 

count 2 “contrary to the interests of justice.” The People support this claim 

by pointing to the aggravating and mitigating factors justifying a denial of 

probation. Separately, the People suggest that the court was aware of 

Garcia’s 1993 brain injury, but was not presented with sufficient evidence 

that the trauma “was a contributing factor in the commission of the offense.” 

(§ 1170, subd. (b)(6).) 

7 The Legislature passed two bills amending the DSL in the same 

session. Garcia mistakenly refers to Senate Bill No. 567 (Stats. 2021, ch. 731, 

§ 1.3), but that bill amended the DSL by making the middle term in a 

sentencing triad the presumptive choice unless aggravating circumstances 

stipulated to by the defendant or found true beyond a reasonable doubt by 

the jury “justify” imposition of a higher term. (§ 1170, subd. (b)(1)−(b)(3).) 

Garcia instead relies on the changes made by Assembly Bill No. 124, which 

added subdivision (b)(6) to the statute to make the lower term presumptive 

where certain conditions are met.
20

Contrary to the People’s argument, there is no indication—much less a 

clear one—that the court would have imposed the same middle term on count 

2 had Assembly Bill No. 124 been in effect at sentencing. (See Gerson, supra, 

80 Cal.App.5th at p. 1096.) In requesting probation, Garcia submitted 

medical records from 1993 and 2007 pertaining to his traumatic brain injury. 

The probation report indicated that Garcia’s 1993 accident left him in a coma 

for 21 days with severe brain damage; “it took him about 5 years to recover, 

but he was never able to fully recover” and felt lingering physical and mental 

effects. Garcia’s sister suggested the brain injury contributed to the current 

offense. 

Before Assembly Bill No. 124, Garcia had no reason to seek, and the 

court had no reason to make, a finding that past trauma contributed to his 

offense—there was no statutory basis to apply a lower term based on such a 

finding. (Gerson, supra, 80 Cal.App.5th at p. 1096.) Judge Wells’s wish for 

“more current information about [Garcia’s] mental state” and his desire to 

show “leniency” by running the two counts concurrently suggest that a 

remand for resentencing would not necessarily result in the same outcome. 

(See People v. McDaniels (2018) 22 Cal.App.5th 420, 425.)

Accordingly, we vacate Garcia’s sentence and remand the matter for a 

full resentencing hearing. (People v. Buycks (2018) 5 Cal.5th 857, 893; 

Gerson, supra, 80 Cal.App.5th at p. 1096.) Any request for a diagnostic study 

pursuant to section 1203.03 may be directed to the trial court in the first 

instance.
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DISPOSITION

This matter is remanded for resentencing consistent with Penal Code 

section 1170, subdivision (b) as amended. Following resentencing, the court 

is directed to prepare an amended abstract of judgment and forward a 

certified copy to the Department of Corrections and Rehabilitation. In all 

other respects the judgment is affirmed.

DATO, J.

WE CONCUR:

McCONNELL, P. J.

BUCHANAN, J.