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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERTO CARLOS GARCIA,

Defendant and Appellant.

B331662

Los Angeles County

Super. Ct. No. TA135154

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.5th 216 

(Delgadillo), we review this appeal of an order denying a 

petition 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 

premeditated. 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, 

the jury convicted Garcia of being a felon in possession of a 

firearm, felony resisting, and possession of methamphetamine. 

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. In August 2018, we affirmed Garcia’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, B272046) [nonpub. opn.] 

(Garcia I).) Back in the trial court, the court struck one 

of the firearm enhancements as well as the prison priors and

resentenced Garcia to 59 years to life.

We summarize very briefly the facts set forth in Garcia I, 

not for their truth but only for the basis of Garcia’s conviction. 

1 References to statutes are to the Penal Code. Garcia filed 

his petition under former section 1170.95, now renumbered 

section 1172.6 with no change in text. (Stats. 2022, ch. 58, § 10.)
3

(See People v. Woodell (1998) 17 Cal.4th 448, 459–460.) Around 

10:20 p.m. one night in September 2014, Amber Haynes 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 Haynes, then turned and pointed it at a crowd

of people near a staircase. Garcia “twice angrily yelled, 

‘Where 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 someone 

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)

an information had been filed against him that allowed the 

prosecution to proceed under a theory of “attempted murder

under the natural and probable consequences doctrine,” he was 
4

convicted of attempted murder following a trial, and he could 

not presently 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 

closing 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 have 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.5th 942, 947 [“mere filing” of § 1172.6 petition 

doesn’t afford petitioner new opportunity to raise 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 acknowledged 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 under 1172.6.”

Garcia appealed and we 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 at

the Los Angeles California Appellate Project has also reviewed 

the record.” Counsel 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 advised 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.5th 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 counsel 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 Cal.5th 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 underlying 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) 46 Cal.App.5th 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 only to attempted murders 

based on the natural and probable consequences doctrine.” 

(People v. Coley (2022) 77 Cal.App.5th 539, 548.)

In Delgadillo, our Supreme Court clarified the procedures 

required in an appeal from the denial of a section 1172.6 petition 
7

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 right 

to file a supplemental brief. (Delgadillo, supra, 14 Cal.5th 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.)

Counsel’s Delgadillo brief notes Garcia’s jury “was 

not instructed on felony murder, or natural and probable 

consequences,” and “the trial court found as a matter of law 

that” Garcia “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 

convicted him on that basis. The record contains no allegation 

of accomplice liability. Accordingly, the record of conviction

establishes Garcia is not entitled to relief as a matter of law. 

(See, e.g., People v. Pickett (2023) 93 Cal.App.5th 982, 987, 

989–990, 994, review granted Oct. 11, 2023, S281643 [affirming 

summary denial of resentencing petition; defendant failed 

to make a prima facie showing that he was eligible for relief; 

preliminary hearing transcript demonstrated defendant acted 

alone in killing the victim; there was no allegation or evidence 

of an accomplice in the killing of the victim]; People v. Harden

(2022) 81 Cal.App.5th 45, 53–54, 56; People v. Myles (2021) 

69 Cal.App.5th 688, 692–694 [affirming denial of resentencing 
8

because defendant, as actual killer was directly—not vicariously

—liable]; People v. Edwards (2020) 48 Cal.App.5th 666, 669, 

671, 674 [affirming summary denial of resentencing petition 

where record of conviction showed petitioner was actual killer]. 

Cf. Delgadillo, supra, 14 Cal.5th at p. 233 [defendant not entitled 

to resentencing because 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 Garcia 

did not show a prima facie case for relief. (See Lewis, supra, 

11 Cal.5th 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.5th at 

pp. 232–233 & fn. 6) and find no arguable issues on appeal. 

We are satisfied Garcia’s counsel has fully complied with her

responsibilities and no arguable issues exist. (People v. Kelly

(2006) 40 Cal.4th 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.