People v. Garza CA4/3

Filed 12/2/21 P. v. Garza CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G060383

v. (Super. Ct. No. C1356498)

LOUIE GARZA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Santa Clara County, Julia L. Alloggiamento, Judge. Affirmed in part, reversed in part, and remanded with directions. Mark David Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and Katie L. Stowe, Deputy Attorneys General. * * *

Appellant was convicted of killing his cousin and sentenced to 84 years to life in prison. He contends his murder conviction must be reversed because of two instructional errors, and that pursuant to several newly enacted Senate Bills, his sentence must be vacated and the matter remanded for a new sentencing hearing. We conclude there were no reversible errors, but agree appellant is entitled to a new sentencing hearing. We affirm the conviction and remand for further proceedings. I FACTUAL AND PROCEDURAL BACKGROUND A. Prosecution Case-in-Chief 1. Testimony of the Victim’s Wife In May 2013, Ralph Gomez and his wife Vicky were living at her brother’s house in San Jose. On the morning of May 8, appellant, who is Gomez’s cousin, and his wife Carmen came over to visit. While the group conversed in the kitchen, appellant, Carmen and Gomez drank beer and shared a phencyclidine (PCP) cigarette. Appellant paid Gomez $30 for another PCP cigarette. When Vicky noticed Carmen had stopped talking and was propping her head up with her hands, Vicky twice asked Carmen what was wrong, but received no response. Appellant then pulled out a gun, pointed it at Gomez, and said, “‘What? What? What? I don’t give a fuck. I’m going to kill everybody in this fucking house.’” Gomez remained seated, “hunched over with his hands over his head and his elbows down by his knees.” When appellant said, “‘What about that girl?’” Gomez responded, “‘What girl?’” Vicky slowly backed out of the kitchen and went to a bedroom to find a cell phone, but was unsuccessful. She decided to get help, and as she began climbing out through the window, she heard Gomez say, “‘If you’re going to fucking . . .’” which she took to mean, “If you’re going to do it, just do it.” Then she heard a gunshot. Vicky was afraid appellant would shoot her next. She ran to the next-door neighbor’s house and