Filed 11/20/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JESUS MANUEL GARCIA,

Defendant and Appellant.

F085213

(Super. Ct. No. BF126194A)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Tiffany OrganBowles, Judge.

Kaiya R. Pirolo, 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 Carly 

Orozco, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

*Before Peña, Acting P. J., Meehan, J. and Snauffer, J.
2.

INTRODUCTION

In 2009, Jesus Manuel Garcia (defendant) and Richard Zamarripa were charged 

with multiple felonies, including willful, deliberate, and premeditated murder (Pen. Code, 

§ 187, subd. (a)). (Undesignated statutory references are to the Penal Code.) Pursuant to 

a stipulated plea agreement, defendant pled “no contest” to knowingly buying or 

receiving a stolen vehicle (§ 496d; count 4), voluntary manslaughter (§ 192, subd. (a);

count 6), and he admitted a related gang enhancement (§ 186.22, subd. (b)), and that he 

was a principal in the crime and another person committing the crime was armed with a 

firearm during the commission of the crime (§ 12022, subd. (a)), assault with force likely 

to produce great bodily injury (§ 245, subd. (a); count 7) (a non-strike), and felony 

evading of a police officer (Veh. Code, § 2800.2; count 8).

In 2022, defendant petitioned for relief from his voluntary manslaughter 

conviction under section 1172.6. At the hearing on the petition, the prosecution argued 

the information did not allow for murder liability based solely on participation in a crime, 

whether that was under the natural and probable consequences theory or felony murder. 

The court denied defendant’s petition at the prima facie stage on the grounds “that the 

Information as it was drafted and filed against the defendant did not allow for the natural 

and probable consequences doctrine as to this defendant.” In this appeal, the parties 

agree the court erred in denying defendant’s petition at the prima facie stage.

We, too, agree. We reverse the court’s order and remand the matter for the court 

to issue an order to show cause and to hold further proceedings consistent with this 

opinion.

FACTUAL BACKGROUND

Preliminary Hearing Transcript

Patrol Deputy Patrick Vasquez testified he was dispatched to Community Market 

on January 6, 2009, around 7:30 p.m. When he arrived, he located a man who had been 

shot, Javier Lopez Campa, just inside the doorway of the market and there were several 
3.

people outside. Vasquez interviewed Christopher G., who had been at the store when the 

shooting occurred. According to Christopher, Campa was standing near the driver’s side 

of his car. Christopher was “standing near Campa when a dark colored Chevy extended 

pickup drove northbound on Browning Road and a subject in the passenger side pointed a 

shotgun towards Campa and fired two shots.” The vehicle then sped off. Christopher 

described the shooter as a Hispanic male, and he heard someone say, “How was that 

Norte life” right before the shots were fired. He said there were at least two suspects in 

the truck. Another witness, Victor L., told Vasquez he witnessed the shooting. The 

shooter fired two shots. Victor stated there were two Hispanic males in black hoodies in 

the suspect vehicle and one of them shot Campa with a shotgun. Vasquez reviewed 

surveillance footage from the store in which he saw the suspect vehicle. He believed it 

looked like a dark-colored Chevy or GMC truck with an extended cab.

Deputy Christian Melero was on patrol that night and saw the suspect vehicle 

around 7:41 p.m. with two people inside. He identified Zamarripa as the driver and 

defendant as the passenger. Melero pursued the truck with his emergency lights and siren 

on; the truck did not stop and was going 80 to 85 mph in a 55 mph zone. The truck ran 

through several stop signs and Melero saw items being thrown out of the passenger side 

window. Eventually the truck came to a stop after defendant and Zamarippa jumped out 

of the moving vehicle and fled. The truck continued to travel until it hit a cement wall at 

an apartment complex. Law enforcement checked the truck’s registration and learned it 

had been stolen the day before, January 5, 2009. The truck’s owner did not recognize 

either defendant or Zamarippa, but the owner’s nephew reported seeing Zamarippa walk 

around the truck a day or two before it was stolen.

Law enforcement later searched the area where the items were thrown from the 

truck and recovered two sweatshirts; one of them was wrapped around a shotgun. The 

shotgun barrel had a very strong odor of gunpowder.
4.

Zamarippa was apprehended by the police; he was hiding in a water heater closet 

near an upstairs apartment. Defendant was also apprehended and he and Zamarippa were 

interviewed by police. Zamarippa initially reported he was in Delano all night and he 

denied ever being in McFarland. However, he later changed his story and admitted “he 

was in fact driving a vehicle that had been stolen in the Delano area.” Zamarippa stated 

“two subjects picked him up in that vehicle at his residence and ... they went to 

McFarland to look for girls.” While they were driving around, “a passenger in the 

vehicle ... started tripping on this guy.” He reported “the passenger fired two rounds 

from a shotgun at some subjects that were standing in the parking lot of the Community 

Market.” Zamarippa stated the person shooting was someone other than defendant. He 

did not provide the shooter’s identity but did provide a description.

A gang expert also testified regarding the gang-related nature of the offenses, 

predicate offenses, and gang affiliations.

PROCEDURAL HISTORY

In 2009, defendant and Richard Zamarripa were charged with multiple felonies: 

conspiracy to commit the crimes of murder, assault with a firearm, and discharge of a 

firearm from a vehicle (§ 182, subd. (a)(1); count 1); willful, unlawful, deliberate, 

premeditated and with malice aforethought murder (§ 187, subd. (a); count 2); discharge 

of a firearm from a motor vehicle (former § 12034, subd. (c); count 3), and knowingly 

buying or receiving a stolen vehicle (§ 496d; count 4). As to counts 1, 2, 3, and 4 it was 

alleged the offenses were committed for the benefit of, at the direction of, or in 

association with a criminal street gang with the intent to promote, further, or assist in 

criminal conduct by gang members (§ 186.22, subd. (b)) and they were 16 years old or 

older during the commission of the offense. Defendant and Zamarippa were also alleged 

to have personally and intentionally discharged a firearm that proximately caused great 

bodily injury or death to another person, not an accomplice (§ 12022.53, subd. (d)) during 

the commission of counts 1, 2, and 3. As to both defendants, it was also alleged the 
5.

murder (count 2) was done with deliberation and premeditation (§ 189); it was intentional 

and perpetrated by means of discharging a firearm from a motor vehicle at another person 

with the intent to inflict death (§ 190.2, subd. (a)(21); and it was intentional and 

committed while the defendants were active participants in a criminal street gang 

(§ 190.2, subd. (a)(22)). Zamarripa was also charged with unlawful evasion of a pursuing 

police officer (Veh. Code § 2800.2; count 5) with allegations the offense was committed 

for the benefit of, at the direction of, or in association with a criminal street gang with the 

intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. 

(b)) and he was 16 years old or older during the commission of the offense.

Before defendant changed his plea, the information was orally amended to charge 

him with voluntary manslaughter (§ 192; subd. (a), count 6) with a section 186.22, 

subdivision (b) gang enhancement and a section 12022, subdivision (a) “principal armed”

allegation, assault with force likely to produce great bodily injury (§ 245, subd. (a)(1);

count 7) (a non-strike), and felony evading of a police officer (Veh. Code § 2800.2, count 

8).

Thereafter, defendant pled “no contest” to knowingly buying or receiving a stolen 

vehicle (§ 496d; count 4), voluntary manslaughter (§ 192, subd. (a); count 6), assault with 

force likely to produce great bodily injury (§ 245, subd. (a); count 7) (a non-strike), and 

felony evading of a police officer (Veh. Code § 2800.2; count 8) and, in relation to count 

6, he admitted a gang enhancement (§ 186.22, subd. (b)) and that he was a principal in 

the crime and that another person committing the crime was armed with a firearm during 

the commission of the crime (§ 12022, subd. (a)) in exchange for a sentence of 23 years 4

months. The parties stipulated there was a factual basis for the plea. The court sentenced 

defendant to the upper term of 11 years on count 6, plus 10 years for the section 186.22, 

subdivision (b) gang enhancement, an additional year for the section 12022, subdivision 

(a) enhancement, and two, consecutive eight-month terms on counts 4 and 8 (one third of 
6.

the midterm). The court also sentenced defendant to the upper term of four years on 

count 7, stayed pursuant to section 654.

In 2022, defendant filed a petition for resentencing pursuant to section 1172.6 

(former § 1170.95).1 He averred a charging document had been filed against him 

allowing the prosecution to proceed under a felony-murder theory, murder under the 

natural and probable consequences doctrine, or other theory under which malice was 

imputed based solely on participation in the crime; at trial, he was convicted of murder, 

attempted murder, or manslaughter or accepted a plea offer in lieu of a trial at which he 

could have been convicted of murder or attempted murder; and he could not now be 

convicted of murder or attempted murder in light of changes made to sections 188 and 

189, effective January 1, 2019 (pursuant to Sen. Bill No. 1437 (2017–2018 Reg. Sess.)). 

He also requested the appointment of counsel.

The court appointed defendant counsel and set a hearing. In their response to the 

petition, the People argued “because the felony information would not have allowed the 

prosecution to proceed under a theory of felony murder, murder under the natural and 

probable consequences theory, or another theory where malice is imputed to the 

defendant based solely on his participation in a crime, [defendant] is not eligible for relief 

as a matter of law.

On November 2, 2022, the trial court held a hearing on defendant’s petition. 

Defense counsel argued defendant and Zamarripa pled to voluntary manslaughter and did 

not admit to personally using or possessing a deadly weapon. Rather, defendant pled to 

an allegation that “a principal[] was armed during the course of the crime.” She further 

asserted, the admissible preliminary hearing evidence—the observations of the police 

1Effective June 30, 2022, the Legislature renumbered then effective section 1170.95 to 

section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no substantive changes to the statute at 

that time, although prior changes had been implemented effective January 1, 2022. There is no 

dispute in this case that turns on any of these changes. For purposes of clarity, we refer to the 

statute as section 1172.6.
7.

officers that testified—did not establish the identity of who was driving the vehicle or 

fired the shots.

The prosecutor asserted the court could not typically consider the preliminary 

hearing transcript during the prima facie stage unless someone pleads guilty or no contest 

and stipulates that the preliminary hearing transcript forms the factual basis for the plea. 

He argued the transcript gives the court “a sense of what the theory of liability was.” The 

court asked if it was the People’s position the information was not filed under the natural 

and probable consequences doctrine. The prosecutor responded, the allegations in the 

information did “not allow for murder liability based solely on participation in a crime, 

whether that’s under natural and probable consequences or felony murder.” In support, 

he relied upon the allegations in the charging document that defendant committed the 

murder with premeditation and deliberation and the enhancement allegation that it was by 

means of intentional discharge of a firearm from a motor vehicle.

The court then asked if it was the People’s position that “what the defendant pled 

to by extension of the original filing cannot be under the natural and probable cause [sic] 

doctrine.” The prosecutor responded that what defendant “was charged with didn’t allow 

for prosecution under one of those theories.” Put differently, “the way it was initially 

charged ... prohibits resentencing because of how it was charged.” The prosecutor 

further affirmed it was the People’s position the information in this case was “pled 

specifically” and did not “fit into that rubric.”

Defense counsel disagreed the charging document was sufficient to disqualify 

defendant from relief. Rather, the court should consider what defendant pled to and what 

was established in the case by the preliminary hearing transcript. She noted defendant 

did not plead to anything dealing with personal use of a deadly weapon, nor was he found 

guilty of first degree murder with premeditation and deliberation. She noted, even if that 

was the charge, it was not what he pled to.
8.

The court held defendant was ineligible for relief under section 1172.6, 

subdivision (a) because “the Information as it was drafted and filed against the defendant 

did not allow for the natural and probable consequences doctrine as to this defendant.” 

The court found it “telling” that, though defendant pled to felony evasion of a police 

officer, originally only Zamarripa was charged with that count. Accordingly, the court 

denied the petition.

The court reasoned, 

“In review of the statute, particularly 1172.6(a)(1) ... the language is such 

that all of the following conditions have to apply in order that they would 

be considered for the resentencing. And I think it is telling that in Section 1 

it says, quoting, ‘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.’ [¶] In this instance, as I 

review the original Information, not what the defendant pled to, because 

Prong One has to be satisfied in order to get to Prong Two. But what I see 

in the original Information ... is the ... conspiracy to commit murder with 

enhancements. [¶] Count 2 was the actual charge of murder with

enhancements. [¶] Count 3— and what I’m citing as to this defendant, was 

the charge of a 12034(c), which was the discharge of a firearm. I don’t 

know if that’s still considered that code section, but that’s what it was at the 

time, with enhancements. And ... I don’t disagree that theories are charged 

as to two separate individuals at the time. [¶] Count 4, as to this defendant 

and the associated defendant, was ... possession ... of stolen property with 

enhancements. [¶] Count 5, and I think this one’s very telling. Although I 

know the defendant did plead to an amended count of it is the 2800.2 as to 

Zamperini [sic] only, not charging this defendant with that.”

DISCUSSION

I. Senate Bill No. 1437 and Senate Bill No. 775

On September 30, 2018, the Governor signed Senate Bill No. 1437 (2017–2018 

Reg. Sess.) (Senate Bill 1437), which became effective on January 1, 2019. Senate Bill 

1437 “amend[s] the felony murder rule and the natural and probable consequences 
9.

doctrine, as it relates to murder, 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 in the underlying felony who acted with reckless indifference to human life.” 

(Stats. 2018, ch. 1015, § 1, subd. (f).) It amends section 188, which defines malice, and 

section 189, which defines the degrees of murder to address felony-murder liability. 

(Stats. 2018, ch. 1015, §§ 2–3.)

Accordingly, section 188 now provides that, “[e]xcept as stated in subdivision (e) 

of Section 189, in order to be convicted of murder, a principal in a crime shall act with 

malice aforethought. Malice shall not be imputed to a person based solely on his or her 

participation in a crime.” (§ 188, subd. (a)(3), italics added.) The change reflects the 

Legislature’s intent that “[a] person’s culpability for murder must be premised upon that 

person’s own actions and subjective mens rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)

Additionally, section 189 previously stated, “All murder ... which is committed in 

the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, 

mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 

288a, or 289, or any murder which is perpetrated by means of discharging a firearm from 

a motor vehicle, intentionally at another person outside of the vehicle with the intent to 

inflict death, is murder of the first degree.” Senate Bill 1437 amended section 189, in 

part, by adding subdivision (e) which provides:

“A participant in the perpetration or attempted perpetration of a felony 

listed in subdivision (a) in which a death occurs is liable for murder only if 

one of the following is proven: [¶] (1) The person was the actual killer. 

[¶] (2) The person was not the actual killer, but, with the intent to kill, 

aided, abetted, counseled, commanded, induced, solicited, requested, or 

assisted the actual killer in the commission of murder in the first degree. 

[¶] (3) The person was a major participant in the underlying felony and 

acted with reckless indifference to human life, as described in subdivision 

(d) of Section 190.2.”
10.

The legislation also added section 1172.6 (former § 1170.95), which provides a 

procedure by which defendants whose cases are final can seek retroactive relief if the 

changes in the law would affect their previously sustained convictions. (Stats. 2018, ch. 

1015, § 4.) Initially, this section permitted those “convicted of felony murder or murder 

under a natural and probable consequences theory [to] file a petition with the court that 

sentenced the petitioner to have the petitioner’s murder conviction vacated and to be 

resentenced on any remaining counts ....” (Stats. 2018, ch. 1015, § 4, subd. (a).) In 

Senate Bill No. 775 (2021–2022 Reg. Sess.), effective January 1, 2022, the Legislature 

amended the language of section 1172.6 to expand the scope of the petitioning procedure 

to defendants convicted of attempted murder or manslaughter under a now prohibited 

theory. The legislation also clarified some of the procedural requirements in the statute.

Pursuant to amended section 1172.6, upon receiving a petition, if the petitioner has 

requested counsel, the court must appoint counsel to represent the petitioner. (§ 1172.6, 

subd. (b)(3).) “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.” (§ 1172.6, subd. (c).) If the petitioner has made such a showing that the 

petitioner is entitled to relief, the court “shall issue an order to show cause.” (Ibid.) “If 

the court declines to make an order to show cause, it shall provide a statement fully 

setting forth its reasons for doing so.” (Ibid.)

The trial court may look at the record of conviction to determine whether a 

petitioner has made a prima facie case for section 1172.6 relief, but the prima facie 

inquiry under subdivision (c) is limited. (People v. Lewis (2021) 11 Cal.5th 952, 971.) 

“‘[A] court should not reject the petitioner’s factual allegations on credibility grounds 

without first conducting an evidentiary hearing.’ [Citation.]” (Ibid.) “In reviewing any 

part of the record of conviction at this preliminary juncture, a trial court should not 

engage in ‘factfinding involving the weighing of evidence or the exercise of discretion.’

[Citation.]” (Id. at p. 972.) “‘[A] court should not reject the petitioner’s factual 
11.

allegations on credibility grounds without first conducting an evidentiary hearing.’

[Citation.]” (Id. at p. 971.) “‘However, if the record, including the court’s own 

documents, “contain[s] facts refuting the allegations made in the petition,” then “the court 

is justified in making a credibility determination adverse to the petitioner.”’ [Citations.]”

(Ibid.)

II. Analysis

Defendant contends, and the People agree, the court erred by denying his petition 

for resentencing at the prima facie stage. The parties agree the record before the court did 

not establish defendant was ineligible for relief as a matter of law. We agree.

Defendant made a prima facie showing for relief under section 1172.6. He alleged 

in his petition that a charging document was filed against him allowing the prosecution to 

proceed under a theory of felony murder, murder based on the natural and probable 

consequences doctrine, or other theory under which malice was imputed to a person 

based solely on that person’s participation in a crime; he accepted a plea offer in lieu of a 

trial at which he could have been convicted of murder; and that he could not presently be 

convicted of murder because of the changes to sections 188 and 189. (See § 1172.6, 

subd. (a)(1)–(3).) The court was required to accept those allegations as true unless the 

facts in the record of conviction refuted them. (See People v. Lewis, supra, 11 Cal.5th at 

p. 971.) And here, the trial court had a limited record before it, none of which 

conclusively established defendant was ineligible for relief.

The superior court relied on the manner in which defendant was charged—the 

initial failure to charge him with evading law enforcement—to conclude he was ineligible 

for relief as a matter of law. But, contrary to the court’s conclusion and the People’s 

argument below, the manner in which the murder was charged did not limit the 

prosecution to any particular theory. Rather, it generically charged defendant with 

murder. (See People v. Flores (2022) 76 Cal.App.5th 974, 987 [“the first amended 
12.

information charged petitioner generically with murder, and did not specify or exclude 

any particular theory of murder”]; see also People v. Rivera (2021) 62 Cal.App.5th 217, 

233 [“The generic manner in which murder was charged here did not limit the People to 

prosecuting Rivera on any particular theories”].) And, even assuming without deciding 

the court could properly consider the preliminary hearing testimony at this stage, it did 

not establish as a matter of law that defendant could not have been prosecuted under a 

now invalid theory. (See generally Flores, at p. 989 [“Courts of Appeal are split on the 

import of the preliminary hearing transcript in determining whether a petitioner has made 

a prima facie case for resentencing under section [1172.6]”].) Notably, Zamarippa 

provided the only identification of the shooter and stated it was a third party; he denied it 

was him or defendant. And the prosecutor conceded, “[W]e don’t know who particularly 

fired the gun from the truck.”

Accordingly, the order denying the petition must be reversed and the matter 

remanded with directions for the trial court to issue an order to show cause and, to the 

extent necessary, to conduct an evidentiary hearing under subdivision (d) of section 

1172.6. We express no opinion on the ultimate resolution of the petition.

DISPOSITION

The order denying defendant’s petition for resentencing is reversed and the matter 

is remanded with directions for the trial court to issue an order to show cause and, to the 

extent necessary, hold an evidentiary hearing pursuant to section 1172.6, subdivision (d).