1

Filed 11/10/22

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO GARCIA,

Defendant and Appellant.

 A163046

 (San Mateo County

 Super. Ct. No. 16NF003723A)

In 2018, defendant Mario Garcia was sentenced to 24 years in prison 

after a jury found him guilty of assault on a peace officer with a 

semiautomatic firearm (Pen. Code, § 245, subd. (d)(2))1 and other counts. We 

affirmed the judgment in part but remanded to allow for various corrections 

to the sentence. (People v. Garcia (Jul. 14, 2020, A154016) [nonpub. opn.]

(Garcia).) In this second appeal, defendant contends he is entitled to 

resentencing under section 1170, subdivision (b), as amended by Senate Bill 

No. 567 (2020–2021 Reg. Sess.) (Senate Bill 567). He additionally contends 

the trial court abused its discretion in denying his request for a continuance 

of the sentencing hearing so that he could develop facts to support a motion

* Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this 

opinion is certified for publication with the exception of part A of the 

Discussion.

1 Further unspecified section references are to the Penal Code.
2

for discovery under the California Racial Justice Act of 2020 (Stats. 2020, 

ch. 317, § 1) (CRJA).

In the published portion of this opinion, we conclude defendant was 

entitled to a reasonable continuance to prepare his motion for discovery 

under the CRJA. In the unpublished portion of this opinion, we conclude 

defendant is also entitled to resentencing under section 1170, subdivision (b). 

Accordingly, we will reverse the judgment and remand for further 

proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was arrested after engaging in a physical altercation at his 

home with the partner of his sister, and then firing a semiautomatic handgun 

at one of the responding police officers. He was charged by information with 

nine felony counts, as follows: assault on a peace officer with a 

semiautomatic firearm (§ 245, subd. (d)(2), count one) plus firearm use 

enhancements (§§ 12022.53, subd. (b) and 12022.5, subds. (a) and (d)); 

exhibiting a deadly weapon to a police officer to resist arrest (§ 417.8, count 

two); assault with a semiautomatic firearm (§ 245, subd. (b), count three); 

assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), 

count four); assault with a deadly weapon (§ 245, subd. (a)(1), count five); 

criminal threats (§ 422, subd. (a), counts six and nine); resisting an executive 

officer (§ 69, count seven); and possession of an assault weapon (§ 30605, 

subd. (a), count eight). At trial, on motion of the prosecutor, the court 

dismissed count nine. The jury found defendant not guilty of counts two and 

seven but found him guilty of count one and found the section 12022.53, 

subdivision (b) allegation true. The jury further found defendant guilty of 

counts three, four, five, and eight, and guilty of the lesser included offense of 

attempted criminal threats (§§ 664/422) for count six.
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In March 2018, the trial court sentenced defendant to a total of 24 

years in prison. Defendant appealed, and in July 2020, we affirmed the 

judgment in part, but remanded the matter so that the trial court could stay 

the sentence on count four or count five, correct defendant’s custody credits, 

and amend the abstract of judgment. (Garcia, supra, A154016.)

In March 2021, defendant filed a motion in pro per under section 1385 

to strike the ten-year firearm use enhancement attendant to count one. 

Hearings were held in April 2021 to address defendant’s lack of legal 

representation, and on May 11, 2021, the trial court appointed Gabriela 

Guraiib to represent him. At a hearing on May 12, 2021, Guraiib requested 

additional time to prepare, and the trial court granted her until May 14, 

2021, to file papers in advance of the sentencing hearing on May 17, 2021.

On May 14, 2021, defendant filed his sentencing brief as well as a 

motion to continue the sentencing hearing. In her declaration supporting the 

continuance motion, Guraiib stated her intention “to argue additional 

matters within the jurisdiction of the court such as a request to strike the 

enhancement allegation pursuant to [section] 12022.53 as well as argue 

matters under [section] [745] that would be crucial for the court’s analysis 

under what is considered in the ‘interest of justice’ for purposes of the 

imposition of the enhancement. I am unable to obtain information that 

would support those arguments in a two-day timeframe afforded to briefing 

the issues.”

In his sentencing brief, defendant argued in relevant part that he had 

recourse under section 745 “to show that a longer or more severe sentence 

was imposed on the defendant than was imposed on other similarly situated 

individuals convicted of the same offense, and longer or more severe 

sentences were more frequently imposed for that offense on people that share 
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the defendant’s race, ethnicity, or national origin than on defendants of other 

races, ethnicities, or national origins in the county where the sentence was 

imposed.” In support, the brief cited and attached various reports, articles, 

and research on racial disparities in the criminal justice system.

2

At the sentencing hearing, the trial court heard arguments from 

counsel, including Guraiib’s remarks that “there’s a new law that just passed 

in January of 2021 that shows that usually Latinos or the Latino population 

that are being sentenced are being sentenced harsher than their 

counterparts. And that also is in front of the Court.” The court began its 

remarks by stating it did not believe it had jurisdiction to strike the firearm 

use enhancement “given the remand by the appellate court directing the 

Court to do three things: fix the 654 issue; award the defendant the proper 

credits; and file an amended abstract showing the Court had done that.” 

However, “in an abundance of caution,” the court elected to reach the merits 

of the section 1385 motion to strike the firearm use enhancement.

Taking “into consideration the new racial animus act,” the trial court

acknowledged that defense counsel did not have “time to really flesh out the 

statistics” bearing out that “people of color are treated more harshly in the 

criminal justice system.” The court also indicated it considered the evidence 

of defendant’s good character while in prison, but found nevertheless that 

defendant’s lack of remorse, his unwillingness to take responsibility for his 

actions, his prior criminal record, and the violent nature of the offense 

2 These materials included a 2009 article entitled “Hispanics and the 

Criminal Justice System,” by the Pew Research Center; a report by the 

American Civil Liberties Union dated October 27, 2014, entitled “Racial 

Disparities in Sentencing,” and a January 2005 report by The Sentencing 

Project entitled “Racial Disparity in Sentencing: A Review of the Literature.”
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warranted the enhancement. Accordingly, the court denied the section 1385 

motion.

As to the issues on remand, the trial court stayed the sentence on count 

five, recalculated defendant’s custody credits, and sentenced defendant to an 

aggregate term of 23 years in prison.

This appeal followed.

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DISCUSSION

A. Resentencing Under Section 1170

Defendant argues, and the People agree, that he should be resentenced 

under section 1170, subdivision (b), as amended by Senate Bill 567.

Under the law in effect at the time defendant was initially sentenced in 

2018, section 1170, subdivision (b), provided that when a judgment of 

imprisonment is to be imposed and the statute specifies three possible terms, 

the trial court has discretion to choose the appropriate term. Senate Bill 567, 

effective January 1, 2022, amended section 1170 to provide: “The court may 

impose a sentence exceeding the middle term only when there are 

circumstances in aggravation of the crime that justify the imposition of a 

term of imprisonment exceeding the middle term, and the facts underlying 

those circumstances have been stipulated to by the defendant, or have been 

found true beyond a reasonable doubt at trial by the jury or by the judge in a 

court trial.” (§ 1170, subd. (b)(2).)

Here, the sentencing court chose the upper term of nine years on count 

one based on the aggravating circumstance that the offense involved a threat 

of great bodily injury to multiple individuals. Defendant argues, and the 

3 In conjunction with this appeal, defendant filed a petition for writ of 

habeas corpus, In re Mario Garcia, A164591. We have denied the petition by 

separate order filed this date.
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People do not dispute, that he never stipulated to this finding, and the People 

concede there was no trial in which the circumstance in aggravation was 

found to be true beyond a reasonable doubt. The parties further agree that 

because Senate Bill 567 is ameliorative, and because there is no indication 

the Legislature intended it to apply prospectively only, the new law applies 

retroactively to defendant. (People v. Flores (2022) 73 Cal.App.5th 1032, 

1039.)

We agree and conclude defendant is entitled to resentencing under 

section 1170, subdivision (b).

B. Denial of Continuance

Defendant argues the trial court abused its discretion in denying his 

motion for a continuance to enable him to develop facts in support of a motion 

for discovery under the CRJA. We agree.

1. Overview of CRJA

Effective January 1, 2021, the CRJA prohibits state criminal 

convictions or sentences “on the basis of race, ethnicity, or national origin.” 

(§ 745, subd. (a).) To prove a violation of the CRJA, a defendant must show

by a preponderance of the evidence that (1) any of the various individuals 

involved in the case—including a judge, attorney, law enforcement officer, 

expert witness, or juror—“exhibited bias or animus towards the defendant 

because of the defendant’s race, ethnicity, or national origin”; (2) during the 

trial and court proceedings, any of the various individuals “used racially 

discriminatory language about the defendant’s race, ethnicity, or national 

origin, or otherwise exhibited bias or animus towards the defendant because 

of the defendant’s race, ethnicity, or national origin, whether or not 

purposeful”; (3) the defendant was charged or convicted “of a more serious 

offense than defendants of other races, ethnicities, or national origins who 
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commit similar offenses and are similarly situated, and the evidence 

establishes that the prosecution more frequently sought or obtained 

convictions for more serious offenses against people who share the

defendant’s race, ethnicity, or national origin in the county where the 

convictions were sought or obtained”; or (4) “[a] longer or more severe 

sentence was imposed on the defendant than was imposed on other similarly 

situated individuals convicted of the same offense, and longer or more severe 

sentences were more frequently imposed for that offense on people that share 

the defendant’s race, ethnicity, or national origin” or “on defendants in cases 

with victims of one race, ethnicity, or national origin[s],” in the county where 

the sentence was imposed. (§ 745, subd. (a)(1)–(4).)

“A defendant may file a motion in the trial court or, if judgment has 

been imposed, may file a petition for writ of habeas corpus or a motion under 

Section 1473.7 in a court of competent jurisdiction, alleging a violation of 

subdivision (a).” (§ 745, subd. (b).) If a defendant makes a prima facie 

showing of a CRJA violation, the trial court shall hold an evidentiary 

hearing, and the defendant has the burden of proving a violation by a 

preponderance of the evidence. (Id., subd. (c)(1)–(2).) The CRJA sets forth 

various available remedies for successful prejudgment (id., subd. (e)(1)) and 

postjudgment claims (id., subd. (e)(2)), including vacating the conviction and 

sentence and imposing a new sentence not greater than that previously 

imposed (ibid.).

The CRJA also contains the following discovery provision: “A 

defendant may file a motion requesting disclosure to the defense of all 

evidence relevant to a potential violation of subdivision (a) in the possession 

or control of the state. A motion filed under this section shall describe the 

type of records or information the defendant seeks. Upon a showing of good 
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cause, the court shall order the records to be released. Upon a showing of 

good cause, and if the records are not privileged, the court may permit the 

prosecution to redact information prior to disclosure.” (§ 745, subd. (d).)

In Young v. Superior Court (2022) 79 Cal.App.5th 138 (Young), Division 

Four of our appellate district held that the good cause requirement for 

discovery under the CRJA, like the showing required for the disclosure of law 

enforcement records under Pitchess, requires a defendant “only to advance a 

plausible factual foundation, based on specific facts, that a violation of the 

[CJRA] ‘could or might have occurred’ in his case.” (Young, at p. 159.) As 

Young explained, this “plausible justification” standard is “minimal” and 

even more relaxed than the “ ‘relatively relaxed’ ” good cause standard for 

Pitchess discovery, which requires a logical link between the charge and a 

proposed defense. (Young, at pp. 159–160.)

2. Analysis

Although trial courts enjoy broad discretion to determine whether good 

cause exists to grant a continuance of trial, such discretion “ ‘ “may not be 

exercised so as to deprive the defendant or his attorney of a reasonable 

opportunity to prepare.” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 934–

935.) Here, defendant’s counsel had less than a week after she was appointed 

to familiarize herself with the case, prepare the sentencing brief, and 

marshal facts for and prepare a motion for discovery under the CRJA. While 

Guraiib was able to make general arguments under the CRJA and provide 

statistical information in the sentencing brief, that information was dated 

and based mostly on national surveys; it did not address racially disparate 

treatment as to convictions and/or sentences in the county where defendant 

was convicted and sentenced. (See § 745, subd. (a)(1)–(4).) At this juncture

and on this record, there simply is no indication whether and to what extent 
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such county-level information was likely to have been readily available to 

counsel in the short time frame between her appointment and the sentencing 

hearing.

Furthermore, although the plausible justification standard is 

“minimal,” it must still be “based on specific facts.” (Young, supra, 79 

Cal.App.5th at p. 159.) Thus, preparing a discovery motion under the CRJA 

necessarily entails a fairly thorough review of the trial record for any 

remarks or conduct by the trial judge, attorneys, experts, jurors, and law 

enforcement officers that may plausibly support the conclusion that a CRJA 

violation “ ‘could or might have occurred’ in [the] case.” (Young, at pp. 158–

159.) For these reasons, we conclude defendant should have been given a 

reasonable opportunity to review the trial record and gather relevant 

information to prepare a motion for discovery under the CRJA. The error 

was not harmless under any standard because, as indicated, nothing in the 

record indicates either way whether defendant’s counsel could have 

discovered facts plausibly supporting a motion for CRJA discovery had she 

been given a reasonable opportunity to do so.

The People contend the trial court reasonably denied the continuance 

request because defense counsel was ready to proceed on the issues properly

before the court, and the court’s jurisdiction was strictly limited to the 

instructions given by this court on remand from the prior appeal. (See People 

v. Ramirez (2019) 35 Cal.App.5th 55, 64 [order of reviewing court contained 

in remittitur defines scope of jurisdiction of court to which matter is 

returned.) But the People cite no case applying this general rule where new 

legislation becomes effective in the period between the remittitur and the 

proceedings on remand. “[I]t is well settled that when a case is remanded for 

resentencing after an appeal, the defendant is entitled to ‘all the normal 
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rights and procedures available at his original sentencing’ [citations], 

including consideration of any pertinent circumstances which have arisen 

since the prior sentence was imposed.” (Dix v. Superior Court (1991) 53 

Cal.3d 442, 460.) Here, the CRJA’s January 1, 2021, effective date was a 

pertinent circumstance that arose after the remittitur and before the 

resentencing hearing. The trial court was not barred from considering it.

The People next argue that denial of the continuance motion was not 

an abuse of discretion because the CRJA does not retroactively apply to 

defendant. Notably, the CRJA expressly states it applies prospectively only 

to judgments not entered before January 1, 2021 (§§ 745, subd. (j); 1473, 

subd. (f)), and Penal Code provisions generally are not applied retroactively 

in the absence of express language conferring retroactive application (People 

v. Brown (2012) 54 Cal.4th 314, 319–320).

In criminal cases, however, “judgment is synonymous with the 

imposition of sentence.” (People v. Perez (1979) 23 Cal.3d 545, 549, fn. 2.) 

Here, in July 2020, the judgment was partially reversed and remanded, and 

defendant was not resentenced until May 17, 2021. Moreover, the People 

concede in this appeal that defendant is entitled to resentencing yet again 

under Senate Bill 567, and thus, a judgment has yet to be entered. Because 

judgment was not entered at the time the CRJA became effective on January 

1, 2021, defendant is not barred from seeking relief under the new law.4

For these reasons, we will reverse the trial court’s denial of defendant’s 

request for a continuance and remand with directions to grant a reasonable 

continuance for defendant to prepare a motion for discovery under the CRJA.

4 For the same reason, we reject the People’s contention that defendant 

can seek only postjudgment relief under the CRJA through a habeas petition.
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DISPOSITION

The judgment is reversed and remanded for resentencing under section 

1170, subdivision (b). Prior to the resentencing hearing, defendant shall be 

granted a reasonable opportunity to prepare a motion for discovery under the 

CRJA. 

FUJISAKI, ACTING P.J. 

WE CONCUR: 

PETROU, J. 

RODRÍGUEZ, J.

People v. Garcia (A163046)
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Trial Court: San Mateo County Superior Court

Trial Judge: Hon. Elizabeth K. Lee

Counsel: Law Offices of John F. Schuck, John F. Schuck, under 

appointment by the First District Appellate Project, for 

Defendant and Appellant

Rob Bonta, Attorney General of California, Lance E. 

Winter, Chief Assistant Attorney General, Jeffrey M. 

Laurence, Senior Assistant Attorney General, René A. 

Chacón, Supervising Deputy Attorney General, and 

David M. Baskind, Deputy Attorney General, for

Plaintiff and Respondent