Filed 2/7/24 P. v. Garcia CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE,

Plaintiff and Respondent

,

v.

ROBERTO CARL OS GARCIA

,

Defendant and Appellant

. B 3 31662

Los Angeles County Super. Ct. No. T A 135154

APPEAL from an order of the Superior Court of
Los Angeles County, H. Clay Jacke II, Judge

. Affirmed

.
Roberto Carlos Garcia, in pro. per.; and Lenore De Vita

, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent

.

_________________________2 Under People v. Delgadillo (2022) 14 Cal.5 th 216 ( Delgadillo ), we review this appeal of an order denying a petiti on for resentencing under Penal Code section 1172.6. 1
We affirm.
BACKGROUND
In September 2015, a jury convicted Roberto Carlos Garcia of two counts of attempted murder and found true allegations that the attempted murders were willful, deliberate, and

pre meditated . The jury also found true allegations that Garcia personally used and personally and intentionally discharged

a firearm causing great bodily injury to both victims. In addition,

t he jury convicted Garcia of being a felon in possession of a
fire arm, felony resisting, and possession of meth amphetamine. The jury found true gang allegations as to the attempted murder and gun possession counts. The trial court sentenced Garcia to 86 years to life in the state prison. I n August 2018 , we affirmed Gar cia’s conviction
but vacated his sentence and remanded the matter for the

court to consider whether to strike one or both of the firearm
enhancements under then

- recently

- enacted Senate Bill No. 620

. ( People v. Garcia (Aug. 14, 2018, B272 046) [nonpub. opn. ] ( Garcia I

).) Back in the trial court, the court struck one
of the firearm enhancements as well as the prison prior s and

re sentenced Garcia to 59 years to life. We summarize very briefly the facts set forth in Garcia I

, not for their truth but only for t he basis of Garcia’s conviction.

1 References to statutes are to the Penal Code. Garcia filed his petition under former section 1170. 95, now ren umbered section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)3

(See People v. Woodell (1998) 17 Cal.4 th 448, 459

– 460.) Around 10:20 p.m. one night in September 2014, Amber Hay n es was “hanging” with a group of people outside an apartment complex in Compton. She saw Garcia approaching . She looked down

at her phone, then up again to see Garcia holding a black semiautomatic handgun in his gloved hand. Garcia pointed
the gun at Hay n es, then turned and pointed it at a crowd
of people near a staircase. Garcia “twice angrily yelled,
‘Wher e are you from, fool?’ ” ( Garcia I .) Garcia fired a shot and everyone ran. Haynes heard three or four shots and then, seconds later, a second volley of shots. Two people

—

Andrew Duvea and Uzziel Curry

— were hit by gunfire but survived. Swandea Davis was “hanging out” with both victims that night as well. At trial, she testified Garcia
seemed to be aiming at Duvea. ( Garcia I .) The morning after the shooting, Haynes identified Garcia in a photographic lineup. Both Haynes and Davis identified gloves found behind a tree in the area as those Garcia wore during the shooting. ( Garcia I .)
Garcia’s defense at trial was misidentification. Duvea,

a member of a rival gang, denied at trial that Garcia was the person who shot him. Duvea claimed the shooter was s omeone named Jose Sosa, with the moniker “Crayzo.” ( Garcia I .) On appeal, “[t]he fact [Garcia] was the shooter [ was ]

not at issue.” ( Garcia I

. ) On April 1, 2022, Garcia filed a form petition for resentencing. He checked boxes stating (as relevant here)

a n information had been filed against him that allowed the

prose cution to proceed under a theory of “ attempted murder under the natural and probable consequences doctrine,” he was4

convicted of attempted murder following a trial, and he could

not p resently be convicted of attempted murder because of changes made to sections 188 and 189. The trial court appointed
counsel for Garcia and called for briefing. The prosecution filed a response asserting Garcia was not
entitled to relief “because he was the actual shooter in this case and acted with express malice. In addition, the jury was not instructed on the natural and probable consequences doctrine.” Garcia’s counsel filed a reply conceding the jury was not
instructed on the natural and probable consequences doctrine. However, counsel contended the “ kill zone ” instruction the
trial court gave the jury “nullifie[d] ‘intent’ and in essence argue[d] and substitute[d] ‘natural and probable consequences. ’ ” Counsel attached a copy of CALJIC No. 8.66.1 entitled

, “Attempted Murder

— Concurrent Intent.” The instruction stated, “A person who primarily intends to kill one person, may also concurrently intend to kill other persons within a particular zone
of risk.” Counsel also attached one page from the prosecutor’s

c losing argument in which he noted that, according to Davis’s testimony, Garcia “was aiming at Duvea.” The prosecutor continued, “But there’s an instruction that the judge read.
It’s reasonable to infer the perpetrator intended to kill the primary victim by killing everyone in that victim’s vicinity.” 2

2 Garcia’s counsel also argued there was insufficient evidence to support the gang enhancement because “the requirement of two predicate offenses was objectionable and should hav e been excluded.” However, a section 1172.6 petition is not a vehicle
to relitigate alleged trial court errors. (See, e.g., People v. Farfan (2021) 71 Cal.App.5 th 942, 947 [“mere filing” of § 1172.6 petition doesn’t afford petitioner new opportunity to r aise trial court error claims or attack sufficiency of evidence to support jury’s findings ];5 On July 10, 2023 the court held a hearing. Garcia’s
counsel acknowledge d his argument about the gang allegation
was “more of a habeas” “rather than an 1172.6.” Counsel
mentioned “the kill zone instruction being not modified” and
then concluded, “I would submit it.” The court stated, “[A]s to the 1172.6, the court finds as a matter of law that there is nothing

— no malice that could be imputed to Mr. Garcia. [¶] You don’t have a felony murder, you don’t have a natural and probable consequences theory . He is
the actual shooter . . . by virtue of the jury instructions. [¶] So I don’t think there is anything elsewhere [by which] malice could
be imputed to him, so as a matter of law
he is ineligible for relief und er 1172.6.” Garcia appealed and w e appointed counsel to represent him on appeal

. On November 14 , 2023, counsel filed a brief stating
she had “reviewed the entire record and found no arguable
issues to raise on appeal.” Counsel stated “[a]n attorney a t
th e Los Angeles California Appellate Project has also reviewed
the record.” C ounsel asked us to “exercise [our] discretion to conduct an independent review of the record. ” Counsel stated
she had sent the record and a copy of her brief to Garcia , and
had ad vised him he could file a supplemental brief

. On December 1 , 2023, Garcia filed a supplemental brief. Garcia states, “ I’m in fact innocent of this alleged crime!” Garcia
attached several pages of what appears to be trial testimony:

People v. DeHuff (2021) 63 Cal.App.5 th 428, 438 [§ 1172.6 is not

a direct appeal ].)6

a witness (presumably Duvea) saying he didn’t see the shooter
“here in court” and a witness (presumably a forensic scientist) saying there were “at least three contributors” of DNA on a gun.
Garcia claims his attorney in his direct appeal “failed [him]”

as , he says, did his c ounsel in this appeal.
DISCUSSION
Senate Bill No. 1437 (2017

– 2018 Reg. Sess.) (SB 1437) eliminated the natural and probable consequences doctrine

as a basis for murder liability and limited the scope of the felony murder rule. ( People v. Lewis (2021) 11 C al.5 th 952, 957 ( Lewis ).) Petitions for resentencing carry out the intent of SB 1437:
“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 und erlying felony who acted
with reckless indifference to human life .” (Stats. 2018, ch. 1015, § 1, subd. (f); Lewis , at p. 967.) SB 1437 changed the elements
of murder by limiting the circumstances in which malice can
be implied. ( People v. Solis (2020) 4 6 Cal.App.5 th 762, 779.) Petitions under section 1172.6, then, address convictions where

a defendant was not the killer, but was held vicariously liable

on one of several theories of liability identified in the statute.
Senate Bill No. 775 (2021

– 2022 Reg . Sess.), effective as of January 1, 2022, extended resentencing eligibility to individuals convicted of attempted murder under the natural and probable consequences doctrine. (Stats. 2021, ch. 551, § 1, subd. (a).)
Section 1172.6 “applies by its terms o nly to attempted murders based on the natural and probable consequences doctrine.” ( People v. Coley (2022) 77 Cal.App.5 th 539, 548.)
In Delgadillo , our Supreme Court clarified the procedures required in an appeal from the denial of a section 1172.6 petiti on7

where counsel finds no arguable issues : (1) “ counsel should
file a brief informing the court of that determination, including

a concise recitation of the facts bearing on the denial of the petition ” ; and (2) the defendant should be notified of his righ t

to file a supplemental brief . ( Delgadillo

, supra , 14 Cal.5 th at

pp. 231

– 232.) If the defendant then files a supplemental brief, “the Court of Appeal is required to evaluate the specific arguments presented in that brief and to issue a written opinion. The filing of a supplemental brief or letter does not compel an independent review of the entire record to identify unraised
issues.” ( Id . at p. 232.)
C ounsel’s Delgadillo brief notes Garcia’s jury “ was
not instructed on felony murder , or natural and pro bable

consequences, ” and “the trial court found as a matter of law
that” G arcia “ was the actual shooter.” Nothing in the record
of conviction suggests there were two perpetrators . The People charged Garcia as the sole and actual shooter, and the jury

con victed him on that basis. The record contains no allegation
of accomplice liability. A ccordingly, the record of conviction
establishes Garcia is not entitled to relief as a matter of law. (See, e.g., People v. Picket t (2023) 93 Cal.App.5 th 982, 987,
98 9

– 990 , 994
, review granted Oct. 11, 2023, S281643 [affirming summary denial of resentencing petition ; def endant failed

to make a prima facie showing that he was eligible for relief; preliminary hearing transcript demonstrated defendant acted
alone in killi ng the victim; there was no allegation or evidence
of an accomplice in the killing of the victim]; People v. Harden (2022) 81 Cal.App.5 th 45, 53

– 5 4, 56 ; People v. Myles (2021)
69 Cal.App.5th 688, 692

– 694 [affirming denial of resentencing8

because defendan t, as actual killer was directly

— not vicariously

— liable]; People v. Edwards (2020) 48 Cal.App.5 th 666, 669, 671, 674 [affirming summary denial of resentencing petition where record of conviction showed petitioner was actual killer].
Cf. Delgadillo

, supra , 14 Cal.5 th at p. 233 [defendant not entitled to resentencing becau se he “was the actual killer and the only participant in the killing”]. ) For these reasons, we conclude the issue Garcia raises lacks arguable merit. The trial court correctly ruled Garci a did not show a prima facie case for relief. (See Lewis

, supra , 11 Cal.5 th at pp. 970

– 971.) As for Garcia’s claims that counsel “failed” him, he did not file a motion to have his attorney in
his direct appeal removed, and the record in this resentencing proceeding contains no evidence to support any assertion of incompetence.
We have exercised our discretion to review the entire record independently ( Delgadillo

, supra , 14 Cal.5 th at

pp. 232

– 233 & fn. 6) and find no arguable issues on appeal.
We are sat isfied Garcia’s counsel has fully complied with her responsibilities and no arguable issues exist. ( People v. Kelly (2006) 40 Cal.4 th 106, 109

– 110; People v. Wende ( 1979) 25
Cal.3d 436, 441.)9 DISPOSITION
We affirm the order denying Roberto Carlos Garcia’s petition for resentencing.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON , J.

We concur:

EDMON, P. J.

ADAMS , J.