People v. Garcia CA4/1

Filed 3/26/21 P. v. Garcia CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078052

Plaintiff and Respondent,

v. (Super. Ct. No. SCD131821)

HUGO GARCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Charles G. Rogers, Judge. Affirmed. Hugo Garcia, in pro. per.; and David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 1998, a jury convicted Hugo Garcia of one count of first degree

murder (Pen. Code,1 § 187, subd. (a)) and one count of premeditated attempted murder (§§ 187, subd. (a) and 664). The jury also found true that Garcia personally used a firearm in the commission of the offense (§ 12022.5,

1 All further statutory references are to the Penal Code.

subd. (a)). Garcia was sentenced to 25 years to life for murder, 15 years to life for attempted murder plus, 14 years for two firearm enhancements. Garcia appealed his conviction. This court affirmed his conviction in a published opinion, (People v. Garcia (2000) 78 Cal.App.4th 1422). In 2019, Garcia filed a petition for resentencing under section 1170.95. The trial court appointed counsel, obtained briefing from the parties, reviewed the record of conviction as well as this court’s prior opinion. The trial court determined the record showed Garcia was the actual killer of the victim. The court found Garcia had failed to state a prima facie case for relief under section 1170.95 and therefore denied the petition for resentencing. Garcia filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Garcia the opportunity to file his own brief on appeal. He has responded, filing a supplemental brief. We will discuss his submission below. STATEMENT OF FACTS The facts of the offense are set forth in our prior opinion. Appellate counsel has included a verbatim copy of the statement of fact in the opening brief. We will incorporate that statement of facts here for convenience. At trial, the prosecution witnesses established that on September 29, 1997, Garcia shot and killed Armando Chiquete and critically wounded his cousin, Jose Peraza. Garcia owed Chiquete money relating to an earlier marijuana transaction, and before the day of the murder, Peraza had twice driven Chiquete to Garcia’s apartment complex, where Chiquete and Garcia