People v. Garcia CA5

Filed 6/13/22 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F082732 Plaintiff and Respondent, (Super. Ct. No. F11902827) v.

ROBERT ANTHONY GARCIA, OPINION Defendant and Appellant.

THE COURT * APPEAL from an order of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Victor J. Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P. J., Poochigian, J. and Franson, J.

Appellant Robert Anthony Garcia appeals following the denial of his petition for resentencing under the then applicable statute, Penal Code1 former section 1170.95 (Stats. 2018, ch. 1015, § 4). The parties agree that the trial court erred in making certain factual findings and thus should not have denied appellant’s petition at the prima facie stage of the statutory proceedings. Upon review of the record and arguments, we agree and therefore vacate the trial court’s order and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND On November 29, 2011, an information was filed alleging appellant and Brandon Michael Patterson murdered Leonard Charles Vivian. Following a 2013 jury trial, appellant was convicted of first degree murder. The facts, as detailed in our nonpublished opinion following appellant’s direct appeal of his conviction (People v. Patterson (Dec. 8, 2015, F067972)), suggest that appellant and another individual killed Vivian in the course of a robbery. Notably, our opinion also states that “[t]he only theory of murder presented to the jury was felony murder, with the alleged underlying felony being attempted robbery.” On January 31, 2019, appellant filed a petition for resentencing pursuant to former section 1170.95. Appellant argued he and Patterson had both been convicted of felony murder and that the evidence showed Patterson was the actual killer. Initially, the People filed an opposition alleging former section 1170.95 was unconstitutional. This eventually led to counsel being appointed for appellant and substantial additional briefing on constitutionality issues. The trial court, however, determined it would not rule on constitutional issues until a prima facie showing of eligibility was made. Thus, appellant’s counsel filed a separate brief which relied on the opinion from appellant’s direct appeal and argued appellant had made a prima facie showing of eligibility for relief and was thus entitled to an evidentiary