People v. Garcia CA6

Filed 12/8/23 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H050749 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 149923)

v.

ANGEL ZETINA GARCIA,

Defendant and Appellant.

THE COURT1 Angel Zetina Garcia appeals from an order denying his petition for resentencing under Penal Code section 1172.6.2 Counsel filed a brief pursuant to People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), and Garcia subsequently filed a supplemental brief on his own behalf. For the reasons set forth below, we affirm the order. I. FACTUAL AND PROCEDURAL BACKGROUND3 In 1993, a jury convicted Garcia of first degree murder. (§ 187.) The jury found true the allegation that Garcia personally used a firearm during the commission of the offense. (§ 12022.5, subd. (a).) The jury further found true the special circumstance that

1 Before Greenwood, P. J., Grover, J., and Lie, J. 2 All statutory references are to the Penal Code, unless otherwise stated. Garcia filed his petition under former section 1170.95. Effective June 30, 2022, section 1170.95 was renumbered section 1172.6 with no substantive change. (Stats. 2022, ch. 58, § 10.) For clarity, we will cite to current section 1172.6 throughout this opinion. 3 The underlying facts are not relevant to the issue raised on appeal.

Garcia committed the murder while lying in wait. (§ 190.2, subd. (a)(15).) The trial court found true the allegations that Garcia had previously been convicted of a serious felony and a prior felony for which he served a term of imprisonment, and sentenced him to a term of seven years, consecutive to life imprisonment without possibility of parole. (§§ 667, 667.5, subd. (b), 1192.7.) We affirmed the conviction in People v. Garcia (Apr. 28, 1995, H011822 [nonpub. opn.]). In 2022, Garcia filed a petition pursuant to section 1172.6, stating that he was entitled to resentencing under the ameliorative changes set forth in Senate Bill No. 1437.4 The trial court appointed counsel to represent Garcia, and both sides submitted written responses. The prosecution opposed the petition, contending that Garcia was not eligible for relief under section 1172.6, for two reasons. First, the jury found that Garcia committed the murder intentionally while lying in wait, and a person convicted of intentional murder is not eligible for relief. Second, the testimony at trial strongly suggested that Garcia was the actual killer, thus precluding him from relief under the statute. In his reply, Garcia objected to the trial court engaging in any factfinding at the prima facie stage. Relying on People v. Lewis (2011) 11 Cal.5th 952 (Lewis), Garcia pointed to portions of the prosecution’s opposition that “analyze[] various [trial] transcripts and seems to invite the Court to engage in such factfinding.” He argued that such factfinding “is not a proper legal basis to find a failure to establish a prima facie showing.” Garcia otherwise submitted on his original petition.