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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F082008 Plaintiff and Respondent, (Super. Ct. No. BF133232B) v.

ALBERTO FARAGIA GARCIA, OPINION Defendant and Appellant.

THE COURT * APPEAL from an order of the Superior Court of Kern County. John R. Brownlee, Judge. Diana E. Berley, 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 Robert Gezi, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Detjen, Acting P. J., Franson, J. and Smith, J.

Appellant Alberto Faragia 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 reverse the trial court’s order and remand for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND On March 30, 2016, an amended information was filed charging appellant and Carla Mariela Garcia Torres with the premediated murder of appellant’s niece, whom the two had been fostering. The information included additional charges related to child abuse and endangerment, along with an enhancement for personally inflicting great bodily injury. After a jury trial, appellant and Torres were found guilty of a lesser included murder offense and the child abuse charges. Appellant eventually received an indeterminate term of 15 years to life, plus a consecutive, determinate term of four years. On March 9, 2020, appellant petitioned for resentencing under former section 1170.95 by submitting a preprinted form. By checking various boxes, appellant alleged he had been charged with an offense that allowed the prosecution to proceed under a natural and probable consequences theory, that he was convicted of second degree murder under that doctrine, and that he could no longer be convicted of second degree murder because of changes made to sections 188 and 189. Appellant requested appointment of counsel and checked another box stating he had been convicted of second degree murder under the natural and probable consequences doctrine and could not now be convicted of murder.