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Filed 10/26/20 P. v. Garcia CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

PEDRO GARCIA,

Defendant and Appellant.

E074961

(Super.Ct.No. RIF125592)

OPINION

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. 

Affirmed.

Pedro Garcia, in pro. per.; and David P. Lampkin, under appointment by the Court 

of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Pedro Garcia appeals the trial court’s denial of his third petition for resentencing 

under Proposition 36. His attorney filed a brief under the authority of People v. Wende

(1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S 738 (Anders) 
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saying they were unable to identify any errors and asking us to perform an independent 

review of the record. Garcia filed a personal supplemental brief arguing the trial court 

erred when it resentenced him in 2016 because it didn’t reconsider the entire sentence. 

Based on our independent review of the record, we find no error and affirm.

I. FACTS

In 2005, Garcia was involved in a fight with police which included him physically 

assaulting an officer and throwing a ceramic pot at him.1

The Riverside County District Attorney charged Garcia with assault with a deadly 

weapon on a peace officer (Pen. Code, § 245, subd. (c), unlabeled statutory citations refer 

to this code) (count 1), two counts of battery on a peace officer (§ 243, subd. (c)(2)) 

(counts 2 & 3), and two counts of resisting a peace officer by force (§ 69) (counts 4 & 5). 

They also alleged Garcia had one prior prison offense (§ 667.5, subd. (b)), one prior 

serious felony (§ 667, subd. (a)) and four prior strikes (§§ 667 subds. (c), (e)(2)(A) &

1170.12, subd. (c)(2)(A)). At some point, count 3 was dismissed at the court’s discretion 

under section 1385.

Garcia was tried by jury and convicted on all remaining counts (counts 1, 2, 4, &

5). Garcia admitted to all the alleged prior offenses. (Garcia I, supra, E040647.)

The court sentenced Garcia to 25 years to life for count 1, concurrent 25-to-life 

terms for each of the other counts, and a consecutive five-year term for the prior serious 

1 Because the facts underlying Garcia’s initial conviction are not relevant to 

resolving the limited sentencing issue presented here, we summarize the facts as stated in 

our nonpublished decision affirming Garcia’s judgment of conviction, People v. Garcia 

(Mar. 17, 2008, E040647) 2008 Cal.App.Unpub. Lexis 2287 [nonpub. opn.] (Garcia I).
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felony enhancement. The court struck the one-year prior prison offense enhancement, for 

a total aggregate term of 30 years to life.

Garcia appealed his conviction. On appeal, this court stayed the sentences for 

counts 2 and 4 under section 654, but otherwise affirmed the judgment. (Garcia I, supra,

E040647.)

In 2016, Garcia petitioned the trial court for resentencing under section 1170.126, 

which was enacted by Proposition 36. The petition was heard by the original sentencing 

judge. The trial court dismissed one of the admitted strikes under section 1385 because

the parties stipulated that the conviction forming the basis of that strike was overturned 

on appeal.2 The trial court granted Garcia’s petition as to counts 2, 4, and 5 because they 

were not serious or violent felonies. It resentenced Garcia to four-year terms for each, to 

be served concurrently with the sentence for count 1. In doing so, it noted “this is not a 

general recall of sentence that’s authorized under Penal Code Section 1170, 

Subdivision (d), where a court can recall a case . . . and resentence the person 

completely.”

Garcia appealed, arguing that the previously stayed terms should remain stayed. 

We agreed and ordered the trial court to re-impose the section 654 stays as to counts 2 

2 Garcia’s supplemental brief also attaches a purported opposition to his petition 

for resentencing. In that opposition, the People apparently concede that another of 

Garcia’s strikes should not be considered for resentencing purposes. For reasons we 

explain below, even accepting this representation as true does not change our ultimate 

conclusion.
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and 4. (People v. Garcia (Oct. 11, 2017, E066919) 2017 Cal.App.Unpub. Lexis 6951

[nonpub. opn.].)

At this point, Garcia’s total aggregate term remained 30 years to life—that is, 25 

years to life for count 1, plus the five-year prior serious felony enhancement. The fouryear term for count 5 was to run concurrent, and the sentences for counts 2 and 4 were 

stayed.

In 2019, Garcia filed a petition on his own behalf to recall his sentence under 

sections 1170.126, 1170, subd. (d), and 1385. The trial court denied the petition on the 

same day on the ground that Garcia “is not a person authorized to make an 1170[, 

subdivision (d),] request on his/her own behalf.” Garcia did not appeal that order. Instead, 

he filed another, essentially identical petition a few weeks later, and it appears the trial 

court did not rule on it. 

Then, in early 2020, Garcia filed a third substantially identical petition. This time 

he sought relief under section 1170.126 and People v. Buycks (2018) 5 Cal.5th 857

(Buycks). The court issued a minute order denying the petition.

Garcia timely appealed the order denying his 2020 petition.

II. ANALYSIS

We appointed counsel to represent Garcia on appeal, and counsel has filed a

Wende/Anders brief, setting forth a statement of the case, a summary of the facts and 

potential arguable issues, and asking us to conduct an independent review of the record.
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Defense counsel’s brief raised one potential issue for our consideration: whether the trial 

court erred in denying Garcia’s 2020 petition.

We offered Garcia an opportunity to file a personal supplemental brief, and he did 

so, arguing that cases decided after his 2016 resentencing establish that resentencing 

under Proposition 36 allows a trial court to reconsider the entire sentencing scheme, and 

the court is not limited to resentencing only on the affected counts. In particular, Garcia 

cites Buycks, supra, 5 Cal.5th 857, People v. Hubbard (2018) 27 Cal.App.5th 9, and 

People v. Garner (2016) 244 Cal.App.4th 1113. He also argues that at least two of his 

prior strike convictions were invalid.

Garcia is correct in arguing that, in general, when an error affects part of a 

sentence, we must remand for a full resentencing on all counts and allegations. But this 

presumption does not apply where the court already imposed the maximum allowable 

term. (Buycks, supra, 5 Cal.5th at pp. 893, 896, fn. 15.) This is because when the trial 

court imposes the maximum allowable sentence, it fully exercises its discretionary 

authority, and cannot be expected to exercise it otherwise—that is, to lower the original 

sentence—even if given the opportunity. 

Such is the case here. Count 1, assault with a deadly weapon on a peace officer, is 

a serious felony. (§ 1192.7, subd. (c)(11).) Garcia admitted to four prior strikes, meaning, 

even if two of those strikes were invalid or if the trial court struck them in the interests of 

justice, count 1 would still be eligible for sentencing as a third strike. Under section 667, 

subdivision (e)(2)(A)(ii), the sentence for the offense in count 1 was 25 years to life. 
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While the original sentencing court could have exercised its discretion to strike Garcia’s 

prior strikes or the five-year enhancement, its decision not to do so is tantamount to 

imposing the maximum possible sentence on all remaining charges. In other words, 

Garcia is already receiving the maximum—indeed, only—possible sentence under the 

law, and remand would therefore be futile.

We have independently reviewed the entire record for potential error as required 

by People v. Kelly (2006) 40 Cal.4th 106 and find no arguable error that would result in a 

disposition more favorable to Garcia.

III. DISPOSITION

We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

MILLER

J.