People v. Mariscal CA2/6

Filed 11/15/21 P. v. Mariscal CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS Calif ornia Rules of Court, rule 8.1115(a), prohibits courts and parties f rom citing or relying on opinions not certif ied f or publication or ordered published, except as specif ied by rule 8.1115(b). This opinion has not been certif ied f or publication or ordered published f or purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B311259 (Super. Ct. No. 2010028681) Plaintiff and Respondent, (Ventura County)

v.

GERARDO GARCIA MARISCAL,

Defendant and Appellant.

Gerardo Garcia Mariscal appeals from the trial court’s denial of his petition for resentencing (Pen. Code, § 1170.95).1 He contends there was insufficient evidence he acted with reckless indifference to human life. We affirm. FACTUAL AND PROCEDURAL HISTORY Murder of Uriel Bucio Uriel Bucio worked at a used car dealership. He was often accompanied there by his 10-year-old son, Uriel, Jr.

1 Subsequent statutory references are to the Penal Code.

Mariscal frequently “hung around” the dealership. In December 2008, Mariscal believed that Bucio would possess $30,000 to $50,000 in cash to buy cars for the dealership. Mariscal recruited Miguel Gonzalez Pena to rob Bucio at the dealership. Mariscal provided Pena with a loaded handgun. Pena told Mariscal, “[I]f he tries to get away, he dies.” Mariscal and Pena exchanged calls minutes before the murder from locations near the dealership. Mariscal went with Pena and waited while Pena “did the job.” Pena wore a piece of cloth over his face, glasses, and gloves. He pointed the handgun at Bucio and ordered him and his son to lie on the ground. Pena searched Bucio’s truck for the money. Bucio told Pena, “I know who you are.” Pena then shot Bucio in front of Uriel, Jr. Pena ran away with $5,000 he took from Bucio. When a policeman and a fireman went by, Mariscal gave Pena “the heads up to go to [Pena’s] truck.” Meanwhile, Uriel, Jr. climbed through a window of the dealership and phoned his mother. After police and family members arrived, Bucio was taken to the hospital and underwent surgery. He died of a single gunshot wound. Pena did not know he killed Bucio until Mariscal told him the next day. Pena gave the gun back to Mariscal, who traded it to a “dude . . . from . . . Colonia” in exchange for some rims for his car. Mariscal and Pena each discussed the crime with an informant in separate recorded conversations. Mariscal said he told Pena not to kill Bucio. Pena said that after Bucio recognized him, he “didn’t have any choice” but to shoot him.