Filed 9/7/16 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

ERMILINDO JOSE GARCIA,

Defendant and Appellant.

F069668

(Super. Ct. No. SC065625A)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Michael Bush, 

Judge.

James F. Johnson, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Ryan B. 

McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

 

* Before Kane, Acting P.J., Franson, J., and Smith, J.
2.

Ermilindo Jose Garcia filed a petition seeking to be resentenced pursuant to the 

Three Strikes Reform Act of 2012 (the Act). The trial court denied the petition 

concluding Garcia posed an unreasonable risk of danger to public safety. Garcia argues 

the trial court abused its discretion in denying the petition. We disagree and affirm the 

order.

FACTUAL AND PROCEDURAL SUMMARY

Garcia filed a petition seeking recall of his sentence pursuant to Penal Code 

section 1170.126.1 The prosecution impliedly conceded that Garcia was eligible for 

resentencing, but argued the petition should be denied because Garcia posed an 

unreasonable risk of danger to public safety. The argument was based on Garcia’s prior 

convictions, his behavior in prison, and his psychiatric history. Both Garcia and his sister 

testified at the hearing on the petition. Garcia’s sister, Yvonne Delatorre, testified she 

would help Garcia should he be released, including emotionally and financially. Garcia 

testified about his crimes, the lessons he learned, and his accomplishments while in 

prison. We provide a more comprehensive summary of Garcia’s testimony in the 

discussion portion of this opinion.

In a written ruling, the trial court denied the petition finding Garcia would pose an 

unreasonable risk of danger to public safety. The relevant portion of the ruling stated, 

“The court finds that the People have met their burden that the Petitioner would pose an 

unreasonable risk of danger to the public safety. The court has considered all aspects of 

the information and evidence presented, including but not limited to Petitioner’s overall 

mental health issues and in-custody behavior, all of which support a denial of the petition. 

The court understands the Petitioner has made progress in his mental health issues, but 

believes he still poses an unreasonable risk of danger to the public safety.” 

 

1 All further statutory references are to the Penal Code unless noted otherwise. 
3.

DISCUSSION

Section 1170.126, enacted as part of the Act, defines those eligible for 

resentencing as inmates serving an indeterminate third strike sentence and (1) not serving 

a sentence for a crime that is listed as a serious or violent felony (§§ 667.5, subd. (c) and 

1192.7, subd. (c)); (2) not serving a sentence for a crime committed under the 

circumstances listed in section 667 subdivision (e)(2)(C) clauses (i) through (iii), or 

section 1170.12, subdivision (c)(2)(C), clauses (i) through (iii); and (3) who does not 

have a prior conviction for an offense appearing in section 667, subdivision (e)(2)(C), 

clause (iv), or section 1170.12, subdivision (c)(2)(C), clause (iv). (§ 1170.126, subd. (e).)

If an inmate is eligible under the statute, then he must be resentenced “unless the 

court, in its discretion, determines that resentencing the petitioner would pose an 

unreasonable risk of danger to public safety.” (§ 1170.126, subd. (f).) 

This statute requires the trial court to conduct a two-step analysis. First, the trial 

court must determine if the inmate is eligible for resentencing. If the inmate is eligible 

for resentencing, then the trial court must decide if resentencing the inmate would pose 

an unreasonable risk of danger to public safety. An inmate will be resentenced only if he 

or she is eligible, and the trial court concludes he or she does not pose an unreasonable 

risk of danger to public safety. (People v. Superior Court (Kaulick) (2013) 215 

Cal.App.4th 1279, 1299.) 

Since the parties agree Garcia is eligible for resentencing, the only issue is whether 

the trial court erred when it concluded Garcia posed an unreasonable risk of danger to 

public safety if he were released. Section 1170.126, subdivision (g), provides guidelines 

for the trial court when exercising its discretion on this issue. This subdivision provides 

the trial court may consider “(1) The petitioner’s criminal conviction history, including 

the type of crimes committed, the extent of injury to victims, the length of prior prison 

commitments, and the remoteness of the crimes; ¶ (2) The petitioner’s disciplinary record 

and record of rehabilitation while incarcerated; and ¶ (3) Any other evidence the court, 
4.

within its discretion, determines to be relevant in deciding whether a new sentence would 

result in an unreasonable risk of danger to public safety.”

Section 1170.126, subdivision (f) provides the trial court with discretion in 

determining whether an inmate petitioning for relief poses an unreasonable risk of danger 

to public safety. We will reverse the trial court’s findings only if it abused that 

discretion. “‘Abuse of discretion’ has been defined as follows: ‘“The discretion intended 

... is not a capricious or arbitrary discretion, but an impartial discretion, guided and 

controlled in its exercise by fixed legal principles. It is not mental discretion, to be 

exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of 

the law and in a manner to subserve and not to impede or defeat the ends of substantial 

justice.”’ [Citations.]” (People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 

403, 413.) In other words, an abuse of discretion occurs when the trial court “exercised 

its discretion in an arbitrary, capricious or patently absurd manner that resulted in a 

manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316.) A trial 

court abuses its discretion if the factual findings critical to its decision are not supported 

by the evidence. (People v. Cluff (2001) 87 Cal.App.4th 991, 998.) It is appellant’s 

burden to establish the trial court abused its discretion. (Steele v. Jensen Instrument Co.

(1997) 59 Cal.App.4th 326, 331.) 

Garcia asserts at various points in his argument the trial court abused its discretion 

because there is not substantial evidence to support the trial court’s conclusion that 

Garcia posed an unreasonable risk of danger to public safety. Neither party identified 

any factual dispute in these proceedings, and the trial court did not suggest it disbelieved 

any of the testimony. The question is, therefore, do the undisputed facts establish that 

Garcia posed an unreasonable risk of danger to public safety?

Each party relies on those facts they feel support their contention. We, on the 

other hand, review the entire record to determine if there are facts to support the trial 

court’s exercise of its discretion. The trial court had before it various records including 
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probation reports prepared for hearings on other crimes, records from Garcia’s 

incarceration, Garcia’s testimony, and other documentation provided by Garcia. We will 

summarize the information under the categories identified in section 1170.126, 

subdivision (g), recognizing the trial court only referred to Garcia’s mental health issues 

and his conduct in prison in denying the petition.

Criminal History

In 1985 Garcia was convicted of grand theft from another person (§ 487, former 

subd. (2)) and placed on three years’ felony probation, including one year in jail. This 

offense is referenced in two different probation reports, but neither provide any 

information about the circumstances surrounding the offense. Garcia testified that he 

took money from a liquor store. 

In 1986 he was convicted of unlawful taking of a vehicle (Veh. Code, § 10851), 

and was placed on two years’ felony probation including one year in jail. 

In 1987 he was convicted of attempted robbery (§§ 664, 211) and felony witness 

intimidation (§ 136.1, subd. (c)(1)).2 Garcia testified he was drunk and attempted to rob 

an acquaintance to obtain beer and money. The witness intimidation occurred when he 

told his friend not to tell anyone about the incident. Garcia may have used a knife in the 

attempted robbery, although his memory was unclear. He was sentenced to three years in 

prison. This conviction resulted in a finding of probation violation in the above two 

cases. He was paroled in 1988, and incurred nine parole violations. Garcia testified the 

parole violations were the result of “[d]irty tests.” 

Also in 1987 he was convicted of battery on a police officer (§ 243, subd. (b)) and 

sentenced to 30 days in jail. Garcia testified he was charged with battery on a police 

officer, but pled to disturbing the peace. 

 

2 The dates are approximate as some of the records were inconsistent. 
6.

In 1989, he was convicted of resisting arrest (§ 148), and possession of drug 

paraphernalia (Health & Saf. Code, § 11364), and was sentenced to 60 days in jail. 

In 1989, he was convicted of misdemeanor possession of a controlled substance 

(Health & Saf. Code, § 11550) and sentenced to one year in jail. 

In 1992, he was convicted of resisting arrest (§ 148) and sentenced to 30 days in 

jail. Also in 1992, he was convicted of misdemeanor petty theft with a prior and 

sentenced to 240 days in jail. 

In 1994, he was convicted of robbery (§ 211) and petty theft with a prior (§ 666). 

According to the probation report, in two separate incidents Garcia stole a car stereo from 

the victim, and four bottles of ibuprofen from a grocery store. In the first incident, Garcia 

allegedly threatened the victim with pruning shears he found in the vehicle, pressing the 

pruning shears against the side of the victim. He was sentenced to eight years in prison. 

Garcia testified that he had just gotten out of prison. The victim had agreed to perform 

some work on his mother’s car, but did not do so. When he saw the victim, he asked for 

a ride, but the victim refused. Eventually Garcia ended up in the vehicle with the victim, 

and took his stereo because the victim failed to complete the work on Garcia’s mother’s 

car. Garcia admitted picking up the pruning shears, and admitted threatening the victim 

while holding the pruning shears, but denied holding the pruning shears against the 

victim’s ribs. He admitted his actions were wrong. 

The crime which resulted in his life sentence occurred in 1995, while he was 

serving his sentence for the above robbery conviction. He was convicted of possession of 

narcotics while in prison. (§ 4573.6.) The probation report indicates Garcia’s wife 

smuggled in three balloons, which were apparently swallowed by Garcia during a 

weekend visit. The balloons contained .32 grams of methamphetamine, 1.59 grams of 

heroin, and 1.79 grams of marijuana. Two prior convictions that constituted strikes were 

also found true (§ 667, subds. (b)-(i)), as were two prior prison term enhancements 

(§ 667.5, subd. (b)). He was sentenced to a term of 25 years to life, imposed 
7.

consecutively to the term he was serving for the robbery conviction. Garcia admitted that 

at the time he was using and selling drugs. He also admitted his wife smuggled the drugs 

into the prison for him. 

Prison Record

In 1995, Garcia was found to be under the influence of (inmate manufactured) 

alcohol and was disciplined with loss of behavioral credit as well as extra work. He was 

also written up for disruptive behavior on a separate occasion and lost 31 days of 

behavior credits. 

In 1996, Garcia and a second inmate attacked a third inmate. Garcia was charged 

with a serious rules violation for battery on an inmate with no serious bodily injury. 

On three occasions in 1997, Garcia lost his law library privileges for a period of 

time for talking while in the library in violation of law library polices. 

In 1998, inmate manufactured alcohol was found in Garcia’s cell. It also appears 

Garcia and his cellmate engaged in a horseplay/altercation incident. It appears the only 

punishment imposed was increasing Garcia’s confinement in the secured housing unit by 

three months. Also in 1998, Garcia was counseled for talking while in the law library, 

and was written up for disruptive behavior on two occasions. 

In 2000, Garcia received counseling because his appearance did not comply with 

prison requirements, specifically his mustache extended beyond the corner of his mouth. 

In 2005, Garcia was in an altercation with another prisoner. During the altercation 

Garcia was stabbed with a writing pen. He was found guilty of participating in mutual 

combat. The altercation resulted in a temporary loss of some privileges. Garcia 

explained how the altercation occurred. Garcia was a porter collecting sheets to be 

washed when he observed another inmate stealing sheets from his cart. An argument 

ensued, and the two went into the inmate’s cell and engaged in mutual combat. Garcia 

explained, “I didn’t go to the CO, because at that time I was still in my ways of not 
8.

thinking right, I would say. I should have just went to the CO and told him, but I took it 

upon myself and let him know he shouldn’t be doing that.” 

Also in 2005, inmate manufactured alcohol was found in Garcia’s cell. Garcia 

was disciplined by a temporary loss of some privileges as a result of this infraction. 

In 2007, Garcia was counseled on two occasions for failing to report for his work 

assignment, or for reporting to work late. 

In 2009, Garcia was found in possession of an inmate manufactured tattoo gun. 

He pled guilty to the offense, which resulted in the loss of some privileges. Garcia 

explained that at the time he enjoyed the program in which he participated. He became 

eligible for a different facility (or a different yard at that facility), and he did not want to 

be transferred. So he put together a rudimentary tattoo gun and asked to be written up so 

that he would not be transferred. “I mean, it was foolish, because now that I think back 

about it, you know, I know I shouldn’t have did it because now here we are, I’m having 

to explain 115s that shouldn’t have happened.” 

In 2011, correctional officers located an inmate manufactured tattoo gun in 

Garcia’s cell. Garcia pled guilty to a serious rules violation and as a result lost various 

privileges for 30 days. Garcia explained he once again was caught on purpose so he 

could remain in the facility of his choosing. Also in 2011, Garcia was counseled for 

reporting to work late. 

Other Evidence

Garcia admitted he was an alcoholic, and that when he drinks he loses control. He 

began drinking at a very young age. His mother was a drug user, and he spent his 

childhood with various relatives and foster families. He began smoking marijuana in 

high school. He escalated to heroin when he was about 16 years old and became 

addicted. He last used heroin approximately 10 years before the hearing. 

Garcia dropped out of high school in the 10th grade. His mother used and sold 

drugs, so he did not have any supervision, basically doing what he wanted. Most of the 
9.

crimes he committed were to obtain money to buy drugs. He admitted he was selfish, 

and did not care about the consequences for his actions. In his younger days, Garcia 

would run from the police because he did not want to be arrested. 

Garcia has worked as a porter in the prison for a number of years, a job he enjoys 

because it involves cleaning. He hoped to get a job in the same field when he was 

released. He also hoped to attend community college when released. 

Garcia explained his current medical condition. He stated he has bad circulation 

because of an issue with his heart, which appears to be related to a heart valve defect.3 

He also has rheumatoid arthritis in his spine, iritis in his eyes, liver damage from his drug 

and alcohol abuse, damage to his lungs, and a lack of ligaments in his hip. 

Garcia admitted he experienced obsessive compulsive disorder (OCD) before he 

went to prison, but prison exacerbated the condition. His OCD becomes worse when he 

has a lot of stress. He has difficulties when he has a cellmate who does not clean after 

himself. His OCD has caused arguments, and he has been struck as a result, but he did 

not respond. In 2012 he broke his hand when he hit the wall. Garcia explained, “I was 

going through a lot of these [cellmates because of his OCD] and I just didn’t want to do 

anything. I was frustrated. So when the person left the cell, I just was upset. I just hit 

the wall. You know, I just – I didn’t think about it. I just did it. And I shouldn’t have 

did it. I think my ways now of coping with things, it’s a lot better me cleaning then 

hitting walls.” 

Annual reviews by the classification committee for the years 2007, 2008, 2009, 

2010, 2011, and 2012 were included in the record. Most of the reviews were positive 

reflecting Garcia’s good behavior while incarcerated, but primarily addressed Garcia’s 

need/request for single cell status. 

 

3 We surmise Garcia has a heart valve defect from his testimony, which was 

unclear. 
10.

Although the reason for the request is deleted from the record, his testimony at the 

hearing and his psychiatric records suggest the reason was because of his OCD. This 

disorder made it difficult for Garcia to coexist with any cellmate. Most of the reports 

stated that Garcia’s level of dangerousness was low, and he gave no indication of 

imminent harm to self or others. 

In 2011, Garcia told his psychologist that he was not doing well, he was ready to 

do something stupid, and he was afraid he would hurt someone. Garcia explained he was 

spending a lot of time thinking about his childhood and the difficulties he lived through. 

He explained that going to the psychiatrist regularly helped him with those issues. Garcia 

admitted it took him a while to completely open up to the psychiatrist, but now he no 

longer fixated on the events of his childhood. “The psychiatrist that I have now helped 

me a lot. I think me talking about it has made me better, and not being ashamed of the 

things that happened.” 

Various psychiatric reports were included in the record. These reports indicate 

that much of Garcia’s anxiety is directly related to having a cellmate. When Garcia has a 

cellmate his OCD makes it very difficult for him because they are not as organized and 

clean as Garcia. When allowed to occupy a cell by himself Garcia appears to be able to 

manage his OCD with little difficulty. He was medicated for his condition, which 

provided some help. On May 30, 2014, a staff psychiatrist stated that in his opinion 

Garcia was not a danger to society and could be a contributing member of society.4 

Garcia stated he had attended Alcoholics Anonymous (AA) and Narcotic 

Anonymous (NA) meetings for the last year. These meetings helped him to become a 

 

4 The full note states “To Whom It May Concern: [¶] Mr. Garcia was seen under 

my care at MCSP CCCMS program for the last 3 1⁄2 years. Mr. Garcia attends 

appointments on time, has been compliant with medication, works hard in therapy and 

has been a strong advocate for himself. My recommendations for post parole plans 

include continue medication compliance and follow-up supportive therapy. I believe Mr. 

Garcia is not a danger and can be a contributing member of society.” 
11.

better person. He last used narcotics in prison in about 2004, and last used alcohol in 

about 2005. He no longer has the urge to drink or use narcotics. He also attends CGA 

meetings (Criminals and Gang Members Anonymous). Garcia explained the meetings 

were similar to AA and NA meetings. He learned in these meetings to stay “away from 

people who are in negative situations. People who would drink or [use] drugs, I know 

not to associate myself with them. Anybody who’s even an ex-gang member and who’s 

still drinking or using drugs, I’ll stay away from them. If I feel like I’m gonna have some 

type of relapse, call on my support group, my family.” Garcia admitted he began to 

attend the meetings because the law changed and he had a hope of being released. As he 

participated in the meetings, however, he began to enjoy and benefit from them. 

Garcia and his sister had attempted to arrange for him to continue receiving mental 

health counseling when he was released, but most agencies stated that they could not 

make a commitment until they interviewed Garcia. If released, Garcia testified he would 

immediately seek mental health counseling, and find NA and AA meetings that he could 

attend. He would also stay away from anyone who was a negative influence. 

When the prosecutor asked why Garcia believed he would not drink or use drugs, 

and remain crime free, Garcia explained, “I can say that as long as I stay away from 

everybody that has a negative way of thinking, if they’re caught up in drugs, as long as I 

stay away from them kind of people, pretty much I can – and stay in the programs that 

I’ve been going through in prison, I know that with my sister’s help, family, and the time 

that I’ve spent here in prison already, I don’t want to come back no more. I’m tired. I 

have – I want to be able to enjoy my grandkids.” 

Garcia included in his reply papers various documents which he believed 

supported his petition. These documents, as well as Garcia’s testimony at the hearing, 

establish that when he began his prison sentence he was an associate of the Northern 

Structure prison gang. By the year 2000, Garcia had dropped out of the gang, and was 

participating in the prison debriefing process. Garcia apparently completed the 
12.

debriefing process and was considered a “drop-out” by prison officials. He completed 

the transitional housing unit education and work programs. Reports prepared by Garcia’s 

work supervisors were generally positive, and indicate his performance was either 

satisfactory or above average. 

Garcia testified he was not involved in gangs until he was in prison. He admitted 

he and another gang member assaulted another prisoner when instructed to do so by a 

gang member. He was eventually transferred to Pelican Bay State Prison and housed in 

the secured housing unit. Motivated by a visit from his wife and daughter, Garcia told a 

correctional officer he wanted to drop out of the gang. He was debriefed by correctional 

officers, placed in different housing, and completed various programs and classes. These 

classes helped him cope with his emotions better. One of the primary methods of coping 

is to clean his cell, which helps him calm down. 

Several work supervisor’s reports for the period of 2008-2011 indicate Garcia 

performed exceptionally or above average. Several program review reports for the years 

2007, 2008, 2009, 2010, 2011 indicate Garcia did not have any problematic behavior. 

These reports appear to have been prepared for the primary purpose of reviewing 

Garcia’s single occupant cell status. 

Garcia also provided documentation that he attended AA and NA meetings during 

2012 and 2013. He presented a “Certificate of Achievement” for his participation in AA. 

He also presented a “Certificate of Achievement” as a result of his participation in 

“Criminals & Gang Members Anonymous.” The staff sponsor for AA and NA confirmed 

that Garcia actively participated in meetings for both groups for a period of several years. 

She wrote that Garcia “always contributes great insight and shares his personal life trials 

and tribulations with the group and his peers in the group seem to listen when he speaks. 

He is consistently an active participant in the group and is willing to share just to try and 

help someone else see they are not alone in their recovery. He has always been respectful 

towards myself and his peers. I have seen great growth in Mr. Garcia’s character in the 
13.

time I have known him. Mr. Garcia has shown great dedication to his recovery by 

attending and participating in AA, NA, and CGA for so many years and I commend him 

on his efforts.” A second staff sponsor prepared a document that was similarly laudatory 

of Garcia. 

Garcia provided a certificate indicating that in 2000, he had successfully 

completed a course in “Creative Conflict Resolutions.” He also completed classes in 

substance abuse and emotional health, stress and anger management, creative writing, 

parenting, stress management. The anger management and stress management classes 

were taught by psychologists. In 2004, Garcia successfully completed a workshop on 

recovery from addictive behaviors and the dangers of relapse. 

Garcia also included “Lauditory Chronos” from 10 correctional officers and one 

teaching assistant, dated from December 2012 through May 2014. These testimonials 

chronicled Garcia’s work ethic and his ability to work with others, including staff and 

inmates. All but one opined Garcia was a good candidate for parole, and if released 

would likely become a productive member of society. The exception made no comment 

on this issue. 

Discussion

This comprehensive review of the record establishes that Garcia had a troubled 

childhood, and chose the path of substance abuse to medicate himself. To support his 

chosen path, he turned to crime. His crimes were numerous, although there is no 

evidence any victim was ever injured. While in prison, he initially chose to join a prison 

gang, and committed an act of violence (attacking another inmate in 1996) at the 

direction of the gang. In 1995, he incurred his third strike by possessing drugs in prison, 

which he admitted were both for sale and for personal use. By 2000, however, Garcia 

had dropped out of the gang, and eventually completed the prison drop out program. 

Since that time, any documented behavior problems were minor, with the possible 
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exception of the 2005 mutual combat with another inmate who Garcia caught stealing 

sheets. 

While this record makes a strong statement on Garcia’s behalf, it does not 

establish the trial court abused its discretion in denying the petition. The trial court 

focused on Garcia’s in-custody behavior and mental health issues. When initially 

imprisoned, Garcia had numerous rule violations including several fights with other 

inmates. The psychiatric reports suggest having to share a cell with another inmate 

causes Garcia anxiety thereby aggravating his obsessive compulsive disorder. While it is 

true Garcia’s behavior has improved over the years, the trial court may have been 

concerned the improved behavior is directly related to the special treatment he has 

received resulting in his single cell status. 

We also note that Garcia only recently began to take his AA and NA meetings

seriously because he thought they would lead to an early release. While Garcia’s honesty 

is to be commended, the trial court may have been concerned that the recent commitment 

would be quickly forgotten if Garcia was released, leading him to a return to alcohol and 

drug abuse. Since Garcia attributed his criminal behavior to his history of drug and 

alcohol abuse, if he failed to remain sober once released it is likely he would return to the 

same lifestyle. This lifestyle would pose an unreasonable risk to public safety. 

Accordingly, the trial court did not abuse its discretion in denying the petition.

DISPOSITION

The order denying Garcia’s petition pursuant to Penal Code section 1170.126 is 

affirmed.