Opinion
G062397
11-14-2023
THE PEOPLE, Plaintiff and Respondent, v. IVAN GARCIA, Defendant and Appellant.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 09ZF0060 Robert A. Knox, Judge. Affirmed.
David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
We appointed counsel to represent Ivan Garcia on appeal. Counsel filed a brief that set forth the facts of the case. Counsel did not argue against his client but advised the court he found no issues to argue on his behalf.
Counsel advised the court the applicable law in this case is People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and the procedures set forth in People v. Wende (1979) 25 Cal.3d 436, and Anders v. California (1967) 386 U.S. 738 (Anders), do not apply to this case. (Delgadillo, supra, 14 Cal.5th at pp. 227, 231.) Thus, when appointed appellate counsel finds no viable issues, counsel should file a brief informing the court that counsel has found no arguable issues and including a concise recitation of facts relating to the denial of the petition. (Id. at p. 231.) The reviewing court should send the brief to the defendant with notice that the defendant has the right to file a supplemental brief or letter within 30 days, and if no brief or letter is filed, the appeal may be dismissed. (Id. at pp. 231-232.) If the defendant fails to file a supplemental letter or brief, the court retains discretion to conduct an independent review of the record in any particular Penal Code section 1172.6 appeal. (Delgadillo, supra, 14 Cal.5th at p. 232.)
Effective June 30, 2022, the Legislature renumbered Penal Code section 1170.95 to section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) For purposes of clarity, we refer to the statute as section 1172.6 throughout the opinion. All further statutory references are to the Penal Code, unless otherwise indicated.
On April 28, 2023, counsel was directed to send the record of this appeal and a copy of appellant's brief to Garcia immediately. Garcia was granted 30 days to file any supplemental brief deemed necessary. Garcia was advised if no such supplemental brief is filed, the court may dismiss the appeal as abandoned. (Delgadillo, supra, 14 Cal.5th at p. 232.) Garcia has not filed a supplemental brief or letter. We exercise our discretion to review the record.
Counsel did not cite any issues to assist the court in conducting a discretionary independent review of the record. (Anders, supra, 386 U.S. at pp. 744, 745.) We have independently reviewed the record. We found no arguable issues on appeal. We affirm the postjudgment order.
FACTS
A complete recitation of the facts can be found in our prior nonpublished opinion People v. Garcia (Nov. 2, 2011, G043512). The sole issue in this appeal is whether the trial court erred when it found Garcia ineligible for resentencing pursuant to section 1172.6. We include here only the facts relevant to the limited issue on appeal.
A jury convicted Garcia of attempted murder and found that the offense was committed willfully, deliberately, and with premeditation. The trial court sentenced Garcia to a total of 40 years to life.
The trial court provided the jury a set of standard instructions, which included CALCRIM Nos. 600 (attempted murder) and 601 (attempted murder: deliberation and premeditation). Under those instructions, the jury was required to find that Garcia had acted with the intent to kill both to convict him of attempted murder and to make the deliberation and premeditation finding. The court did not instruct the jury on the natural and probable consequences doctrine.
In February 2022, Garcia filed a petition for resentencing pursuant to section 1172.6. The prosecution filed a response. The trial court appointed the public defender who filed a brief in support of Garcia's petition. The court conducted a prima facie hearing at which the parties argued their respective positions. Following the hearing, the court denied the petition, finding Garcia had not established a prima facie case of eligibility. It noted that "the jury was not instructed on a 'natural and probable consequence' theory of liability and . . . the jury could not have relied upon that theory to convict [Garcia]." Garcia appealed.
DISCUSSION
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) (Stats. 2018, ch. 1015) amended sections 188 and 189, effective January 1, 2019, to eliminate natural and probable consequences liability for murder and to limit the scope of the felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957, 959 (Lewis).) Under sections 188 and 189, as amended, murder liability can no longer be "imposed on a person who [was] not the actual killer, did not act with the intent to kill," and "was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § 1, subd. (f); Lewis, supra, 11 Cal.5th at p. 959.) SB 1437 also added section 1172.6 which, as originally enacted, set forth a procedure whereby a "person convicted of felony murder or murder under a natural and probable consequences theory" could petition for resentencing relief. (Stats. 2018, ch. 1015, § 4.)
Senate Bill No. 775 (2021-2022 Reg. Sess.) (SB 775), effective January 1, 2022, amended section 1172.6, subdivision (a), to expand the individuals entitled to petition for resentencing. (Stats. 2021, ch. 551, § 1, subd. (a).) Subdivision (a) of section 1172.6 now expressly permits individuals convicted of attempted murder or manslaughter under a natural and probable consequences theory to file a petition for resentencing relief. A section 1172.6 petition is required to make "'a prima facie showing' for relief. [Citation.]" (Lewis, supra, 11 Cal.5th at p. 960.) In Lewis, our Supreme Court held, "The record of conviction will necessarily inform the trial court's prima facie inquiry under section [1172.6], allowing the court to distinguish petitions with potential merit from those that are clearly meritless." (Id. at p. 971.) To be eligible for relief under section 1172.6, the petitioner must make a prima facie showing that he or she "could not presently be convicted of murder or attempted murder because of changes to [s]ection 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a)(3).)
Here, the trial court correctly denied Garcia's petition because the record revealed he was convicted on a theory of attempted murder that remains valid notwithstanding SB 1437's amendments to sections 188 and 189. Specifically, the jury instructions given at trial established that the jury found Garcia had acted with the intent to kill. He could not have been convicted under the natural and probable consequences doctrine for the simple reason that the jury was not instructed on that theory. We find no error.
DISPOSITION
The postjudgment order is affirmed.
WE CONCUR: BEDSWORTH, J., DELANEY, J.