People v. Garcia CA1/3

Filed 6/28/22 P. v. Garcia CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A162765 v. (Contra Costa County ALBERTO JOSEPH GARCIA, Super. Ct. No. 50803163)

Defendant and Appellant.

In 2009, a jury found Alberto Joseph Garcia guilty of the first degree murder of a victim who died from four close-range shotgun blasts. (People v. Garcia (Aug. 31, 2012, A126353) [nonpub. opn.]; Pen. Code, § 187, subd. (a); undesignated statutory references are to the Penal Code.) But the jury found not true an allegation Garcia had personally used or intentionally discharged a firearm. (§ 12022.53, subd. (d).) In 2019, Garcia petitioned for resentencing under section 1170.95, which the trial court denied after finding he acted with implied malice by shooting the victim, or alternatively, he aided and abetted the actual shooter with an intent to kill. On appeal, Garcia argues the jury’s verdict on the firearm enhancement precluded the trial court from finding he was the actual shooter, and there was insufficient evidence to support the alternative finding that he aided and abetted the murder with an intent to kill. We affirm. 1

BACKGROUND The victim and Barbara Washburn lived in an apartment in the East Bay. Washburn became acquainted with Garcia through her son, Joaquin Agredano. Garcia and Agredano were both friends with the victim. On July 20, 2007, Washburn and Agredano picked up Garcia to drive to San Francisco. On the way, Garcia stopped to collect a bag containing a shotgun from an acquaintance’s home. During the drive and while at a San Francisco bar, Washburn complained about the victim’s treatment of her. Garcia noted he did not like the victim and expressed the need to confront him. When the three drove back to the East Bay, Garcia demanded to be taken to the victim’s house. That night, a neighbor heard people walking up the stairs to the victim’s apartment, rapid knocking on the door, and a female voice stating, “Open the door.” The neighbor then heard the female walk down the stairs and state, “this is a bunch of [shit].” Later, two people walked up the stairs again. They said, “open the door.” There was a sound of a door being kicked in and then gunshots. Washburn saw Garcia run back down the stairs to the car, and he was laughing. The victim was found with close-range shotgun wounds to his chest, hip, heel, and forearm, and he died from the loss of blood from the shotgun wounds to his lungs and blood vessels. Garcia, Washburn, and Agredano fled to Reno, where Garcia’s mother lived. Garcia took the shotgun with him and said, “I have to go hide this from my mother.” Garcia remained in Reno while Washburn and Agredano drove back to San Francisco. Garcia was ultimately charged with unlawfully and willfully with malice aforethought murdering the victim. (§ 187, subd. (a).) The complaint further alleged Garcia intentionally and personally discharged a firearm