Filed 9/21/22 P. v. Garcia CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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 Responde nt. Raul Rojo Garcia appeals an order denying a motion for reconsideration of his petition for relief from his second degree murder conviction under2

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 elig ible for relief as a matter of law

. On the record available to us, w e 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 Procedur al History 2 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 retri eved 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, n either 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 o ff.” 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 coul d 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 let ter 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 sit ting 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. ’ ” ( Ga rcia 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 argu ments

. ( Garcia I .) Garcia’s defense at trial was that he did not intend to murder M.A., but that during a struggle for the g u n, it went off , and accidentally kill ed 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 b odily 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,
subd ivision (d) en hancement.
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 fo r 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 malic e required under amended section 188. He identified several jur y 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 fire arm , and the definition of “without due caution and circumspection.” He also cited passages from the prosecutor’s closing5

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. A s 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 fir earm 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. F rom Garcia’s petition and
declaration alone, the court determined that the pro secution 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 Mar ch 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 lig ht of the People’s response

. Garcia also cited a recent case which held , for purposes of a prim a facie6

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

o n 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 di stinguished 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 acknowledge d 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 doctrin e . 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 ] el iminated 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 117 0

. 95. B ased 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 based8

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 prim a 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 p etition.” ( 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 a ppeal, 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 conten ds 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 secon d 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 ordinaril y 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
th reatening 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 o ther words, appointed counsel may have been able to argue that the jurors could have impute d
malice for second degree murder from a violation of section 417 committed
without “ ‘due caution and circumspection.’ ” Second, Garcia’s appellate counsel argue s that appointed counsel may
have brief

ed 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 cou rt’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 r elief 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 Pe ople’s statutory interpretation and points to the plain language of sections 188 and 1172 .6. Section 188, subdivision (a)(3) provide s that malice “shall not b e imputed to a person solely on his or her participation in a crime

. ” Section 1172.6, subdivisio n (a) provides that a person convicted of murder under a “theory under which malice is imputed to a person based so l ely 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 brie f 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 tri al 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.