Filed 3/3/22 P. v. Garcia CA2/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ISAAC GARCIA,

Defendant and Appellant.

 B304788

 (Los Angeles County

 Super. Ct. No. VA128373)

APPEAL from an order of the Superior Court of Los 

Angeles County, John A. Torribio, Judge. Reversed and 

remanded.

Janet J. Gray, under appointment by the Court of Appeal, 

for Defendant and Appellant.
2

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Charles S. Lee and Nima Razfar, Deputy 

Attorneys General.

* * * * * *

Isaac Garcia (defendant), who was convicted of two counts 

of attempted murder and other crimes in 2015, appeals from the 

denial of his petition for resentencing under Penal Code section 

1170.95.1 In an unpublished opinion issued on March 25, 2021, 

we affirmed that denial solely on the ground that section 1170.95 

did not accord relief to persons convicted of attempted murder. 

(People v. Garcia (Mar. 25, 2021, B304788) (Garcia II).) 

Defendant filed a petition for review by the California Supreme 

Court, which was held along with numerous other similar cases. 

While this case has been pending, our Legislature enacted and 

the Governor signed into law Senate Bill No. 775 (Senate Bill

775). (Stats. 2021, ch. 551.) Senate Bill 775 amended section 

1170.95 to expand eligibility for resentencing to persons convicted 

of attempted murder. On June 9, 2021, the California Supreme 

Court granted review in this case, and, in an order filed January 

26, 2022, transferred the case back to this court with directions 

to vacate our prior decision and reconsider in light of Senate Bill

775. In light of the enactment of Senate Bill 775, we vacate our 

previous opinion and decision in this case (Garcia II) and remand 

the matter to the trial court for a new evidentiary hearing 

pursuant to section 1170.95, subdivision (d)(3).

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

FACTS AND PROCEDURAL BACKGROUND

I. Facts2

A. The underlying crime

In November 2012, defendant and two other members of 

the Bellflower Devils clique of the 18th Street gang, Israel Itehua 

(Itehua) and Jeremy Harris (Harris), chased a putative rival gang 

member into an apartment complex. There, Itehua shot and 

paralyzed one woman and then, as the men fled, Itehua fired four 

shots into a homeless man who had earlier refused to affirm his 

gang affiliation to them.

B. Prosecution, conviction and appeal

The People charged defendant with (1) the attempted 

murder of the woman Itehua shot (§§ 187, subd. (a) & 664), and

(2) the attempted murder of the homeless man (§§ 187, subd. (a) 

& 664).

3 The People further alleged that the attempted murders 

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

association with a criminal street gang (§ 186.22); that both 

attempted murders were committed willfully, deliberately, and 

with premeditation (§ 664, subd. (a)); that a principal discharged 

a firearm in the course of each attempted murder (§ 12022.53, 

subds. (d), (e)(1)); and that defendant personally inflicted great 

bodily injury in the course of each attempted murder (§ 12022.7, 

subd. (b)).

2 We draw these facts from our prior, unpublished appellate 

opinion affirming defendant’s convictions. (People v. Garcia (Nov. 

21, 2016, B266328) (Garcia I).)

3 The People also charged defendant with second degree 

robbery (§ 211), but that charge and the resulting conviction are

not at issue in this appeal.
4

A jury convicted defendant of both attempted murders and 

found all allegations to be true. 

The trial court sentenced defendant to prison for a term of 

68 years and four months to life. As part of this sentence, the 

trial court imposed a 32-year sentence for each attempted murder 

count, compromised of 7 years to life for the attempted murder 

plus 25 years for the discharge of firearm allegation; the court 

ran the two attempted murder sentences consecutively. 

Defendant appealed his conviction and we affirmed in an 

unpublished opinion. (Garcia I, supra, B266328).)

II. Procedural Background

On October 22, 2019, defendant filed a petition seeking 

resentencing under section 1170.95 for his two attempted murder 

convictions. The trial court summarily denied the petition, 

noting that Senate Bill 1437 did not afford relief to persons 

convicted of attempted murder. 

Defendant timely appealed. At that time, the Court of 

Appeal was split on whether section 1170.95 applied to attempted 

murder convictions. We affirmed the order denying the petition 

because we interpreted then-existing section 1170.95 to authorize 

relief for defendants convicted of murder, but not attempted 

murder. (Garcia II, supra, B304788.) Defendant petitioned for 

review in the Supreme Court. The Supreme Court granted 

review; transferred the matter back to this court; and directed us 

to vacate our prior decision and reconsider in light of Senate Bill

775. Following the transfer, the Attorney General and defendant 

submitted supplemental briefs addressing the impact of Senate 

Bill 775 on this case. 
5

DISCUSSION

In his supplemental brief, the Attorney General concedes 

that reversal and remand for an evidentiary hearing is 

appropriate. We agree.

Senate Bill 1437 enacted section 1170.95, which 

“amend[ed] the felony murder rule and the natural and probable 

consequences 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); 

People v. Gentile (2020) 10 Cal.5th 830, 842.)

Prior to the enactment of Senate Bill 775, the Court of 

Appeal was split on whether section 1170.95 applied to attempted 

murder as well as murder, with some courts holding that section 

1170.95 did not apply to attempted murder at all, others holding 

that it applied only prospectively to attempted murder, and still 

others holding that it applied both prospectively and retroactively 

to nonfinal attempted murder convictions. (See Love, supra, 55 

Cal.App.5th at pp. 278-279 [summarizing the split of authority as 

of Oct. 1, 2020].)

Senate Bill 775 resolved this split of authority by amending 

section 1170.95 to explicitly afford relief to persons convicted of 

attempted murder and manslaughter. Senate Bill 775’s 

amendments to section 1170.95 became effective January 1, 2022. 

Defendant’s appeal from the denial of his resentencing petition 

was not final by that date; thus, defendant may avail himself of 

this latest amendment. (People v. Vieira (2005) 35 Cal.4th 264, 

306; People v. Garcia (2018) 28 Cal.App.5th 961, 973.)
6

DISPOSITION

The order denying defendant’s section 1170.95 petition is 

reversed, and the matter remanded for an evidentiary hearing 

pursuant to section 1170.95, subdivision (d)(3), as amended by 

Senate Bill 775.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, Acting P. J.

ASHMANN-GERST

_________________________, J.

CHAVEZ