Filed 9/21/22 P. v. Garcia CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RAUL ROJO GARCIA,

Defendant and Appellant.

 D079178

 (Super. Ct. No. SCN186475)

APPEAL from an order of the Superior Court of San Diego County, 

Pamela M. Parker, Timothy M. Casserly, Judges. Reversed and remanded

with directions. 

Cliff Gardner, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, A. 

Natasha Cortina, Lynn G. McGinnis and Alan L. Amann, Deputy Attorneys 

General, for Plaintiff and Respondent. 

Raul Rojo Garcia appeals an order denying a motion for reconsideration 

of his petition for relief from his second degree murder conviction under 
2

Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015; Senate 

Bill 1437), which amended Penal Code section 188 and former Penal Code 

section 1170.95 (now §1172.6).1 Garcia contends the trial court erred by 

denying his petition and his reconsideration motion without appointing 

counsel and setting the matter for hearing on the prima facie issue of 

whether he is entitled to relief. The People agree that the court erred by 

failing to appoint counsel but contend the error was harmless because Garcia, 

who was the actual killer, is not eligible for relief as a matter of law. On the 

record available to us, we cannot conclude the error in failing to appoint 

counsel was harmless. Therefore, we reverse and remand the matter for 

further proceedings. 

BACKGROUND

A. Underlying Facts and Procedural History2

On the afternoon of November 1, 2004, Garcia and his girlfriend, M.A., 

argued about their roommate’s use of M.A.’s computer. The roommate 

testified she passed Garcia in the hallway as she was leaving the residence. 

She saw that he had retrieved a gun and was walking briskly toward the 

bedroom where M.A. was using the computer. (Garcia I.)

1 Undesignated statutory references are to the Penal Code. Effective 

June 30, 2022, section 1170.95 was recodified without substantive change in 

section 1172.6, pursuant to Assembly Bill No. 200 (2021–2022 Reg. Sess.) 

(Assembly Bill No. 200). (See Stats. 2022, ch. 58, § 10.) We refer to the 

current codification throughout this opinion, unless otherwise indicated. 

2 To provide context for the parties’ arguments issues on appeal, we draw 

the facts from our unpublished opinion in People v. Garcia (Feb. 20, 2008, 

D047564) (Garcia I). However, neither we nor the trial court may engage in 

factfinding based on the appellate opinion at the prima facie stage. (People v.

Lewis (2021) 11 Cal.5th 952, 972 (Lewis); 1172.6, subd. (d)(3).) 
3

A next door neighbor heard what sounded like a rock being thrown 

against a window and a cry for help. The neighbor rushed outside and saw 

Garcia inside his apartment banging his bloodied hands on the bedroom 

window. After calling 911, the neighbor went to Garcia’s apartment and 

found him hunched over M.A. in the master bedroom. The neighbor 

discovered a bullet hole in M.A.’s neck and helped Garcia get a towel to stop 

the blood flow. Garcia was “very disturbed, excited” and “shaken up.” 

(Garcia I.) M.A. later died from her injuries from the gunshot wound. (Ibid.) 

Garcia told the police that he became irritated during an argument and 

“the gun went off.” He then noticed M.A. was hit in the neck. (Garcia I.) 

Garcia wrote a letter to M.A. in which he asked for her forgiveness and said 

he did not intend to hurt her. The letter stated, “ ‘I can barely remember the 

whole incident, all I can remember is the pop of the gun, then the look on 

your face. Your words will always haunt me. “I am dying.” It was the only 

thing you said that I understood. As I tried to stop the bleeding, all I could 

think of is that I am going to lose one of the best friends and someone I love 

with all my heart. No matter what the scenario was, it will always be my 

own stupid ass fault. I can’t believe I allowed my anger to overrule my better 

judgment.’ ” The letter continued, “ ‘I want to tell you what I remember 

happening, and see if you can tell me where I might have perceived it 

wrong. . . . As we argued you started to pick up and move the item on the 

desk. One of the items being the pistol that had been sitting there all 

morning. As you picked it up, I grabbed it as well, that’s when I am unsure 

what happened, somehow I accidentally put my finger on the trigger and the 

gun went off . . . . I pray to the Lord you are okay and have a swift 

recovery.’ ” (Garcia I.) 
4

According to the roommate, Garcia always carried a gun with him and 

he tried to control every aspect of M.A.’s life. The roommate testified about

prior incidents where Garcia pointed a gun either at M.A. or at the roommate

in anger during arguments. (Garcia I.) 

Garcia’s defense at trial was that he did not intend to murder M.A., but 

that during a struggle for the gun, it went off, and accidentally killed her. 

(Garcia I.) The jury acquitted Garcia of first degree murder, but convicted 

him of murder in the second degree (§ 187, subd. (a)). The jury found true 

allegations that he personally used a firearm (§ 12022.53, subd. (b)) and that 

he intentionally and personally discharged a firearm that caused great bodily 

injury and death to M.A. (§ 12022.53, subds. (c) and (d).) The trial court 

sentenced him in November 2005 to a term of 40 years to life in prison based 

on 15 years to life for murder and 25 years to life for the section 12022.53, 

subdivision (d) enhancement. 

B. Petition for Relief

On January 29, 2021, Garcia filed a petition to vacate his conviction 

and resentence him under former section 1170.95 on the basis that under the 

Senate Bill 1437 amendments to section 188, subdivision (a)(3), malice for 

purposes of murder can no longer be imputed to a person based solely on his 

or her participation in a crime. 

Garcia cited authorities regarding the second degree murder rule and 

the malice required under amended section 188. He identified several jury 

instructions given in his case, including instructions regarding murder, the 

definition of malice aforethought (including when malice may be implied), 

second degree murder, a portion of the involuntary manslaughter instruction 

regarding exhibiting a firearm, and the definition of “without due caution and 

circumspection.” He also cited passages from the prosecutor’s closing 
5

arguments. He contended that the prosecutor’s arguments invoked the 

second degree felony murder rule to imply malice for second degree murder 

based on negligence or accident. As a result, he believed his conviction 

should be vacated.

Garcia stated in his supporting declaration that he was convicted of 

second degree murder with a true finding on a firearm enhancement and his 

conviction should be vacated under the statutory amendments. He requested 

appointment of counsel to assist him with his petition. 

On February 23, 2021, the trial court summarily denied Garcia’s 

petition for resentencing and his request for counsel. The court stated Garcia 

was ineligible for relief under former section 1170.95 because Garcia was the 

actual killer who shot his girlfriend in the neck. From Garcia’s petition and 

declaration alone, the court determined that the prosecution did not proceed 

under a theory of felony murder or murder under the natural and probable 

consequences doctrine. Therefore, the court concluded the changes in the law 

did not apply to Garcia. 

C. The People’s Response

About a month later, on March 19, 2021, the People submitted an 

initial response to Garcia’s petition. The People took the position that Garcia 

was guilty of murder even with the changes made by Senate Bill 1437. 

However, it conceded “based upon the jury instructions given in this case, it 

appears that [Garcia] may be entitled to a hearing to determine whether he is 

entitled to relief.” 

D. Motion for Reconsideration

Thereafter, Garcia filed a motion to reconsider the order denying his 

petition under former section 1170.95 in light of the People’s response. 

Garcia also cited a recent case which held, for purposes of a prima facie 
6

review, a true finding that a defendant personally discharged a firearm for 

purposes of section 12022.53, subdivision (d) did not establish the defendant 

acted with malice aforethought as a matter of law. (People v. Offley (2020) 48 

Cal.App.5th 588, 592, 597 (Offley).)

The trial court summarily denied Garcia’s motion for reconsideration 

on May 21, 2021.3 The order stated Garcia’s original petition and supporting 

exhibits “established that he was the actual and sole killer and was not an 

aider and abettor or conspirator in this case” and that he was not convicted 

under a felony murder or natural and probable consequence theory of 

liability. The court discussed the Offley case noting that the jury in that case 

also received an instruction “regarding the natural and probable 

consequences doctrine in cases of conspiracy.” The trial court distinguished 

Garcia’s case from Offley saying the jury here was not instructed on the 

theory of natural and probable consequences in the context of a conspiracy or 

aiding and abetting, but received proper instruction on second degree 

murder, which included a malice requirement. 

The court commented that the People’s initial response did not identify 

“any specific jury instruction(s) given in this case that they believe ‘may’ 

entitle [Garcia] to relief under [former] section 1170.95.” The court 

acknowledged that the phrase “natural and probable consequences of the act” 

in jury instructions for implied malice and second degree murder was similar 

to the natural and probable consequences doctrine. However, the court 

believed the concepts are distinct and that the amendments under Senate 

Bill 1437 addressing the natural and probable consequences doctrine only 

referred to theories of vicarious liability. 

3 A different judge ruled on the motion to reconsider after the retirement 

of the judge who denied Garcia’s petition for resentencing.
7

Based on the face of the petition, the jury instructions given, and the 

verdict, the court determined that Garcia could not state a prima facie 

entitlement to relief because he was the sole and actual perpetrator and the 

jury found he committed murder with the required malice. Garcia appealed. 

DISCUSSION

“[Senate Bill 1437] eliminated natural and probable consequences 

liability for murder as it applies to aiding and abetting, and limited the scope 

of the felony-murder rule. ([ ]§§ 188, subd. (a)(3), 189, subd. (e), as amended 

by Stats. 2018, ch. 1015, § 2, 3.)” ( Lewis, supra, 11 Cal.5th at p. 957.) Under 

the amendments to section 188, a principal in the crime of murder “shall act 

with malice aforethought” and “[m]alice shall not be imputed to a person 

based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) 

“Senate Bill 1437 also added [former] section 1170.95 . . . , which 

create[d] a procedure for convicted murderers who could not be convicted 

under the law as amended to retroactively seek relief.” (Lewis, supra, 11 

Cal.5th at p. 957.) In Lewis, the Supreme Court analyzed the procedure 

required by former section 1170.95. Based upon the statutory language and 

legislative intent, the Supreme Court explained that petitioners who request 

counsel “are entitled to the appointment of counsel upon the filing of a 

facially sufficient petition . . . and that only after the appointment of counsel 

and the opportunity for briefing may the superior court consider the record of 

conviction to determine whether ‘the petitioner makes a prima facie

showing’ ” of entitlement to relief. (Id. at pp. 957, 966.) 

Effective January 1, 2022, Senate Bill No. 775 amended former section 

1170.95, subdivision (a) to expand its coverage to individuals convicted of 

felony murder or murder “under the natural and probable consequences 

doctrine or other theory under which malice is imputed to a person based 
8

solely on that person’s participated in a crime,” as well as to those convicted 

of “attempted murder under the natural and probable consequences doctrine, 

or manslaughter.” (Former § 1170.95, subd. (a), as amended by Stats. 2021, 

ch. 551, § 2.) As subsequently renumbered by Assembly Bill No. 200, all the 

provisions of former section 1170.95 were carried forward without change in 

section 1172.6. The People do not dispute that these amendments apply 

retroactively. 

The parties agree that Garcia filed a facially sufficient petition in this 

case with a supporting declaration in which he requested counsel. 

Accordingly, he was entitled to appointment of counsel before the trial court 

considered whether his petition made a prima facie case. (Lewis, supra, 11 

Cal.5th at p. 957; § 1172.6, subd. (b)(3).) “[P]etitioners who file a complying 

petition requesting counsel are to receive counsel upon the filing of a 

compliant petition.” (Lewis, at p. 963.) 

A trial court’s erroneous failure to appoint counsel for a section 1172.6 

petitioner is subject to harmless error analysis under People v. Watson (1956) 

46 Cal.2d 818, 836. (Lewis, supra, 11 Cal.5th at pp. 972–974.) On appeal, 

the petitioner has the burden of showing it is reasonably probable that if he 

or she had been afforded assistance of counsel, his or her petition would not 

have been summarily denied without an evidentiary hearing. (Id. at p. 974.) 

Garcia contends that the court’s error in reviewing portions of the 

record of conviction without appointing counsel was not harmless. Garcia’s 

counsel posits that appointed counsel could have advanced at least two 

arguments that the jury instructions given allowed the jury to impute malice 

to Garcia based on his participation in a crime rather than finding the malice 

required for murder in the second degree. 
9

First, in addition to receiving instructions regarding the requirements 

for murder, including first and second degree, the jury was given an 

instruction regarding involuntary manslaughter, which told the jury that 

“commission of an unlawful act, without due caution and circumspection 

would necessarily be an act that was dangerous to human life in its 

commission.” (§ 192, subd. (b); CALJIC No. 8.45.) The term “without due 

caution and circumspection,” was defined as referring to “negligent acts 

which are aggravated, reckless and flagrant and which are such a departure 

from what would be the conduct of an ordinarily prudent, careful person 

under the same circumstances as to be in disregard for human life, or an 

indifference to the consequences of such acts.” (CALJIC No. 8.46.) The jury 

was also given instructions regarding the crime of exhibiting a firearm in a 

threatening manner. (§ 417; CALJIC No. 16.290.) Garcia’s appellate counsel 

argues that appointed counsel could have briefed the issue of whether the 

instructions as a whole permitted the jury to find implied malice for purposes 

of second degree murder by simply finding that Garcia committed an 

unlawful act (exhibiting a firearm) that was “dangerous to human life” so 

long as the act was “ ‘deliberately performed with knowledge of the danger to, 

and with conscious disregard for human life.’ ” In other words, appointed 

counsel may have been able to argue that the jurors could have imputed

malice for second degree murder from a violation of section 417 committed 

without “ ‘due caution and circumspection.’ ” 

Second, Garcia’s appellate counsel argues that appointed counsel may 

have briefed the issue of whether the jury instructions allowed the jurors to 

impute or infer malice for purposes of second degree murder based on 

evidence of prior acts of domestic violence. 
10

The People contend the trial court’s error was harmless because Garcia 

was the actual killer and the jury was not instructed on aiding and abetting, 

felony murder, or any other form of vicarious liability. The People contend 

that as the actual killer he is categorically ineligible for relief under section 

1172.6. In the People’s view, Senate Bills 1437 and 775 were not intended to 

extend relief to situations where “liability was not derived from another 

person’s actions or mens rea, but based on his own.” 

Garcia disagrees with the People’s statutory interpretation and points 

to the plain language of sections 188 and 1172.6. Section 188, subdivision

(a)(3) provides that malice “shall not be imputed to a person solely on his or 

her participation in a crime.” Section 1172.6, subdivision (a) provides that a 

person convicted of murder under a “theory under which malice is imputed to 

a person based solely on that person’s participation in a crime” may petition 

for relief. Garcia contends these statutes do not necessarily apply only to 

non-killers based on vicarious liability.

We need not and should not resolve these issues on the limited record 

before us. Nor do we express any view about the merits of Garcia’s 

arguments in support of his petition. However, we conclude Garcia has met 

his burden of establishing that it is reasonably probable his petition would 

not have been summarily denied without a hearing if he had been afforded 

the assistance of counsel. He should have the opportunity for appointed 

counsel to consider and brief any issues for relief supported by the record of 

conviction. 
11

DISPOSITION

The order denying Garcia’s motion for reconsideration of his petition for 

relief under former section 1170.95 is reversed. The matter is remanded with 

directions for the trial court to grant the motion for reconsideration, vacate 

the order summarily denying Garcia’s petition for relief, appoint counsel as 

requested, and proceed with consideration of his petition as required by 

statute. 

HUFFMAN, Acting P. J.

WE CONCUR:

DO, J.

BUCHANAN, J.