People v. Garcia CA3

Filed 3/29/22 P. v. Garcia CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C093543

Plaintiff and Respondent, (Super. Ct. No. 10F06795)

v.

ELIAS GARCIA,

Defendant and Appellant.

A jury found defendant Elias Garcia guilty of murder and found true a special circumstance enhancement that the murder occurred during the commission of an attempted robbery. Defendant filed a petition for resentencing under Penal Code section 1170.951 alleging he was not the actual killer, did not have the intent to kill, and was not a major participant who acted with reckless indifference to human life. The trial court denied the petition, in part, because of the special circumstance finding. On appeal,

1 Undesignated statutory references are to the Penal Code.

1

defendant contends he can challenge the special circumstance finding through a section 1170.95 petition. We affirm, concluding the special circumstance finding renders defendant ineligible for relief as a matter of law. BACKGROUND During trial, witnesses testified to seeing four men get out of a car and walk towards an apartment, hearing a gunshot, and then seeing the men run back to the car and leave. Two accomplices testified defendant was the “group’s ringleader” and that the group went to the apartment to rob the occupant, Donald Kirby. Defendant struggled with Kirby after he opened the door and the gun fired, striking Kirby in the head, killing him. (People v. Garcia (Mar. 27, 2018, C077082) [nonpub. opn.] (Garcia).)2 On February 24, 2014, the jury found defendant guilty of first degree murder and attempted second degree robbery, and found true the special circumstance defendant was engaged in the attempted commission of robbery during the murder. The jury instructions for the special circumstance finding, under CALCRIM No. 730, required the jury to find defendant committed robbery and that he “did an act that caused the death of another person.” If the jury found defendant “guilty of first degree murder but was not the actual killer,” the jury could still find the special circumstance true, under CALCRIM No. 703, if they also found defendant was a major participant in the crime and “[w]hen the defendant participated in the crime, he acted with reckless indifference to human life.”