Opinion
H050613
05-16-2024
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO CANEDO GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Monterey County Super. Ct. No. CR10366)
LIE, J.
Convicted in 1984 of first degree murder, robbery, and first degree burglary, appellant Eduardo Canedo Garcia petitioned the trial court for resentencing under Penal Code section 1172.6, alleging that he could no longer be convicted of murder due to recent changes to the murder law. Following an evidentiary hearing, the trial court decided it was precluded from considering Garcia an actual killer but denied Garcia's petition on the theory that he was a major participant in the underlying felonies who acted with reckless indifference to human life. We find the trial court erred in both respects. If we assume that Garcia was a major participant but not the actual killer, the prosecution did not present substantial evidence to support the theory that Garcia acted with reckless indifference to human life. But because the trial court incorrectly believed it could not consider whether Garcia could be convicted under current law as an actual killer, we remand the matter so that the trial court may decide in the first instance whether the record supports beyond a reasonable doubt the theory it did not consider.
Unspecified statutory references are to the Penal Code.
I. BACKGROUND
A. Garcia's Convictions
In 1984, Garcia was convicted after a court trial of first degree murder (§ 187), robbery (§ 211), and first degree burglary (§ 459), against a person older than 59 years (§ 1203.09). The trial court, however, acquitted Garcia of rape (§ 261) and rejected three special-circumstance allegations that the murder was in commission of robbery (former § 190.2, subd. (a)(17)(i)), burglary (former § 190.2, subd. (a)(17)(vii)), and rape (former § 190.2, subd. (a)(17)(iii)). The trial court sentenced Garcia to a total term of 25 years to life for murder, consecutive to a six-year upper term for the burglary. As for the robbery, an upper term of six years was imposed but stayed under section 654.
B. The Petition for Resentencing and Theories of Murder
In 2022, Garcia petitioned for resentencing under section 1172.6. Garcia attached no exhibits to his petition and made no specific factual allegations, alleging only that he could no longer be convicted of murder under current law. The prosecutor opposed the petition but acknowledged the record of conviction did not refute Garcia's claims. The trial court issued an order to show cause and set the matter for an evidentiary hearing.
In 2022, the Legislature renumbered section 1170.95 to section 1172.6 without substantive change to the text of the statute. (Stats. 2022, ch. 58, § 10, pp. 2939-2940, eff. June 30, 2022.) Although Garcia's petition references section 1170.95, we refer to the current version of the statute for clarity.
C. The Evidentiary Hearing
The prosecutor did not admit the transcript of the original court trial, representing that "[i]t just doesn't exist anymore." Instead, the prosecution relied on a combination of live testimony and transcripts of preliminary hearing testimony.
David Stein, grandson of victim Ella Stein, testified at the evidentiary hearing that he last saw her the evening before she was killed, at her home in Salinas. The next day, David's father Bernard called him and told him that Stein's house had been broken into. When David arrived, Bernard and the police were there. Stein was usually neat and tidy, but based on photos, David thought the interior of the home looked as if it had been ransacked.
As David and his father Bernard share the same surname as the victim, we refer to them by their first names for clarity.
The day before, according to Bernard's testimony at the preliminary hearing, Bernard had mowed Stein's lawn; at the time, the window on the far left of the house had its screen in place. Bernard went to Stein's house again the next day at around 8:15 a.m. and went inside. The contents of Stein's purse were on the couch, the back kitchen door was wide open, and all of Stein's pill bottles were open with her pills strewn around the kitchen sink. Bernard found Stein dead in her bed with a sheet pulled up over her head. Bernard called the police. At the time, he noticed that a portable color television and a clock radio from Stein's room were missing. Bernard also noticed a baseball cap on the floor of Stein's bedroom that he was unfamiliar with.
Salinas Police Department Detective Andrew Enni testified at the evidentiary hearing about his investigation into Stein's murder. Enni recalled that when he arrived at the scene, he saw Stein lying dead on her bead with her body partially covered. Stein appeared to have injuries or blood on her face. Officers found a blue baseball hat with an emblem for Wente Brothers, a winery in Greenfield, on the floor next to Stein's bed. Enni determined that someone had broken into the rear window of the home.
Based on an anonymous tip, Enni and another officer contacted Garcia's parents, who told them that Garcia did not live with them, though he sometimes stayed overnight.Officers found a Wente Brothers baseball cap of a different color in the bedroom where Garcia usually stayed.
Ten months after the killing, Enni received a call from an anonymous citizen who refused to identify himself. The caller said that "he knew who killed the old lady . . . and stated that the person was bragging that he raped and beat the old lady." The caller identified the suspect as "Ernesto Junior" and gave an address. Enni and another officer were later able to locate an arrest card for "Ernesto Enrique Garcia" or "Eduardo Garcia" for that same address. The trial court admitted the caller's statements not for their truth but only to explain the officers' contact with Garcia's parents.
The prosecution also introduced identification technician William Lippert's testimony from the preliminary hearing. According to Lippert, when Stein was found, she had her pajama top on, but it was open in the front with her breasts exposed. Stein had no pajama bottoms on, though Lippert found torn pieces of pajama bottoms in the bed. Lippert examined the rear window believed to be the point of entry to the house and found latent prints on the inside of the window screen and another print on the bottom portion of the frame, which would normally be covered by the window screen had the screen been undisturbed. Lippert determined that the latent prints were Garcia's. Lippert also found pry marks on the rear window consistent with a screwdriver.
Corey Shroeder, an analyst with the California Department of Justice, testified at the evidentiary hearing as an expert in latent print analysis, examination, and comparison. Of two prints from the window screen that he considered "usable," Shroeder found that one matched Garcia while the other required "better quality exemplars" from Garcia to make a reliable comparison. Of the print on the window frame, Shroeder concluded that this also matched Garcia's left thumb.
Finally, the prosecution introduced Dr. Ernest Simard's testimony from the preliminary hearing. Simard performed Stein's autopsy and found that she had extensive bruising on her face and considerable hemorrhaging in her scalp. She also had a puncture wound to her cheek that Simard believed a "somewhat pointed but relatively blunt instrument" could have inflicted. Simard opined that the hemorrhages on Stein's scalp were produced by "moderately severe trauma," and the blows must have been "quite hard" to produce the type of injuries seen. Simard concluded that Stein died from "acute myocardial decompensation" resulting from "shock and the trauma that was inflicted upon her body." Stein also had injuries to her thighs and vaginal area that were consistent with forcible sexual penetration.
Although Garcia in the original trial had presented a defense case, he did not do so at the evidentiary hearing.
D. The Trial Court's Decision and Order
Following the evidentiary hearing, the trial court addressed defense counsel's prehearing motion in limine seeking to preclude the prosecution from arguing that Garcia was the actual killer or that he aided and abetted the murder with the intent to kill because the original trial court had not found true the special circumstances alleged under former section 190.2, subdivision (a)(17). The prosecutor agreed that the original trial court's findings precluded him from arguing that Garcia was the actual killer or that he acted with the intent to kill. (See People v. Cooper (2022) 77 Cal.App.5th 393, 398 (Cooper) [a trial court cannot deny § 1172.6 relief "based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented"].) The trial court acknowledged the parties' agreement, and the prosecutor subsequently proceeded to argue only that the evidence demonstrated beyond a reasonable doubt that Garcia was guilty of murder under the felony-murder rule because he was a major participant in the underlying felonies and acted with reckless indifference to human life.
The trial court also denied the defense's request for judicial notice of a "factual finding" made by the original trial court as to the possibility of a coparticipant in Garcia's commission of the offenses. The defense based its request on the following passage from this court's opinion on Garcia's direct appeal: "He was acquitted of the charge of rape . . . and the court found special circumstances allegations based on the robbery . . ., burglary . . . and rape . . . not to be true, the court entertaining some doubt defendant committed the crimes alone." The trial court noted that it did not believe it could "divine what the [appellate court] meant when it said that one line and/or use it for any kind of factual basis or finding."
After considering the argument and evidence, the trial court denied Garcia's petition, determining beyond a reasonable doubt that Garcia was a major participant who acted with reckless indifference to human life and was therefore guilty of murder under current law.
II. DISCUSSION
On appeal, Garcia argues that insufficient evidence supports the resentencing court's determination that he was a major participant in the underlying felonies and acted with reckless indifference to human life. To the extent the court assumed it was precluded from considering Garcia an actual killer, we agree that insufficient evidence supports the court's theory that Garcia's unquantified coparticipation in the underlying robbery and burglary-along with an actual killer-reflected reckless indifference to human life. But we also conclude that the resentencing court erred by finding that it could not consider whether Garcia was the actual killer; we thus remand the matter for the court to reconsider his eligibility for resentencing.
A. Legal Principles and Standard of Review
Subdivision (e) of section 189, as enacted by Senate Bill No. 1437 (2017-2018 Reg. Sess.), specifies that "[a] participant in the perpetration or attempted perpetration of a [robbery or burglary] in which a death occurs is liable for murder only if" certain elements are proven, including that "[t]he person was the actual killer" (id., subd. (e)(1)), was "not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree" (id., subd. (e)(2)), or if "[t]he person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2" (id., subd. (e)(3)). In the felony-murder context, an actual killer is one who "personally committed the homicidal act." (People v. Vang (2022) 82 Cal.App.5th 64, 88.)
Under section 1172.6, defendants convicted of either felony murder or murder based on the natural and probable consequences doctrine can petition for resentencing if they could not be convicted of murder under current law. (People v. Lewis (2021) 11 Cal.5th 952, 957; People v. Gentile (2020) 10 Cal.5th 830, 843, superseded by statute on other grounds as stated in People v. Hola (2022) 77 Cal.App.5th 362, 370, fn. 6.) Upon a petitioner's prima facie showing of entitlement to relief, the prosecution has the burden at an evidentiary hearing to establish, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under a legally valid theory. (§ 1172.6, subd. (d)(3).) At the hearing, in addition to any evidence presented, the trial court "may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed," and "may also consider the procedural history of the case recited in any prior appellate opinion." (Ibid.)
On appeal from a denial of a petition for resentencing, we review the trial court's factual findings for substantial evidence and the court's application of the law to those facts de novo. (People v. Wilson (2023) 90 Cal.App.5th 903, 916.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' " the trier of fact's determination. (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)
We review the evidence "in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence." (Zamudio, supra, 43 Cal.4th at p. 357 .) But our review of the sufficiency of the evidence is necessarily informed by the standard of proof governing the trier of fact's determination. (Cf. Conservatorship of O.B. (2020) 9 Cal.5th 989, 1000.) Accordingly, "[t]o assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt." (Zamudio, at p. 357, citing People v. Maury (2003) 30 Cal.4th 342, 403 (Maury).) "The record must disclose substantial evidence to support the verdict . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Zamudio, at p. 357.) The substantial evidence must be "reasonable, credible, and of solid value." (Ibid.)
B. Felony Murder as a Major Participant who Acted with Reckless Indifference
1. The Clark Factors
Below, the prosecutor proceeded solely on the theory that Garcia was not the actual killer but was a major participant who acted with reckless indifference to human life under the current felony-murder rule. (§ 189, subd. (e)(3).) In People v. Clark (2016) 63 Cal.4th 522 (Clark), the California Supreme Court acknowledged "the interrelationship" between major participation in an underlying felony and reckless indifference to human life. (Id. at p. 614.) The two requirements significantly overlap, " 'for the greater the defendant's participation in the felony murder, the more likely that he acted with reckless indifference to human life.' " (Id. at p. 615.) But these two elements still require individual consideration. (See id. at p. 616.)
Clark explained the mental state of "reckless indifference to human life," holding that it comprises both subjective and objective components. (Clark, supra, 63 Cal.4th at p. 617.) Recklessness depends on both "[a] defendant's conscious disregard of [known] risks" and "what 'a law-abiding person would observe in the actor's situation.' " (Ibid.) Factors to be considered include: (1) a defendant's knowledge of weapons, use of weapons, and number of weapons; (2) a defendant's physical presence at the crime and opportunities to restrain the crime and/or aid the victim; (3) the duration of the crime; (4) a defendant's knowledge of his or her cohort's likelihood of killing; and (5) a defendant's efforts to minimize the risks of violence during the felony. (Clark, at pp. 618-622; In re Scoggins (2020) 9 Cal.5th 667, 677 [applying Clark factors].) " '[N]o one of these considerations is necessary, nor is any one of them necessarily sufficient.' " (Clark, at p. 618; see also People v. Banks (2015) 61 Cal.4th 788, 803 (Banks) [discussing elements of major participation].)
2. Sufficiency of the Evidence that Garcia Acted with Reckless Indifference
Applying the factors set forth in Clark and viewing the evidence in the light most favorable to the prosecution, substantial evidence does not support the trial court's determination that Garcia, as a participant in the underlying felonies but not an actual killer, acted with reckless indifference to human life. (See Clark, supra, 63 Cal.4th at pp. 618-622.)
Although we discuss post that the trial court erroneously operated under the assumption that it could not consider Garcia to be the actual killer, we "cannot look to legal theories not before the jury in seeking to reconcile a [trier of fact's] verdict with the substantial evidence rule." (People v. Kunkin (1973) 9 Cal.3d 245, 251; see also People v. James (2014) 230 Cal.App.4th 1256, 1262-1263 [reviewing only the sole theory of liability as presented in jury instructions for substantial evidence to support the verdict].) We thus presume in review of the court's actual findings that Garcia was not the actual killer but merely liable as a coparticipant in the robbery.
The trial court here expressly proceeded under the theory that Garcia was solely a participant in the felonies and that he was not the actual killer. And assuming a coparticipant was the actual killer, there is no evidence that Garcia was aware of the presence of a deadly weapon, that he had any opportunity to restrain the slayer, or that he knew of the likelihood that his putative coparticipant would kill. Nor is there evidence from which we might infer Garcia's failure to minimize the risk of violence during the commission of the underlying felonies. The location of the Wente Brothers hat in Stein's bedroom-which had an emblem similar to a hat found in the home of Garcia's parents- suggests that Garcia may have been inside Stein's room at some undefined time, but it is unclear whether Garcia was aware of any assumed actual killer's assault on Stein. "Awareness of no more than the foreseeable risk of death inherent in any armed crime is insufficient; only knowingly creating a 'grave risk of death' satisfies the constitutional minimum." (Banks, supra, 61 Cal.4th at p. 808.) And here, there is nothing from which we can reasonably infer that Garcia was aware of anything more than the foreseeable risk of death inherent in a burglary or robbery.
We must presume on appeal "the existence of every fact the trier of fact could reasonably deduce from the evidence, whether direct or circumstantial." (Clark, supra, 63 Cal.4th at p. 610.) But " '[a] reasonable inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork; a finding of fact must be an inference drawn from evidence rather than a mere speculation as to probabilities without evidence.' " (People v. Grant (2020) 57 Cal.App.5th 323, 330.) The Attorney General argues that Garcia must have pried open Stein's window using a screwdriver, suggesting that he took on a larger role in the underlying offenses. Although we agree the evidence would support an inference that it was Garcia who pried open the window, his use of a tool sheds no light on the relative division of labor or planning between Garcia and a putative coparticipant, or the extent to which the burglary and robbery were planned and not opportunistic.
Simard during the preliminary hearing did not associate the "somewhat pointed but relatively blunt instrument" he believed could have caused Stein's puncture wound with a screwdriver.
The Attorney General argues that Garcia would have known that Stein was vulnerable and elderly, increasing the risk of danger, and would have become increasingly aware of the risk of death to Stein during the "drawn-out" crime. We agree that it is reasonable to infer that robbery and assault on Stein took time-Stein was struck multiple times on her face and scalp; she also had a puncture wound to her cheek. And Simard found that these injuries were produced by "moderately severe trauma" that were caused by "quite hard" blows. But if one presumes Garcia was not Stein's killer, it would be sheer speculation to infer that Garcia remained in the home during the actual killer's deadly assault on Stein.
Accordingly, there is no substantial evidence-that is, no evidence that is reasonable, credible, and of solid value-to support the trial court's conclusion that, though not the killer, Garcia's participation in the underlying felonies involved reckless indifference to human life. (See Maury, supra, 30 Cal.4th at p. 403.) And as we conclude that there was insufficient evidence that Garcia acted with reckless indifference, we need not decide whether there was sufficient evidence that he was a major participant. (See Clark, supra, 63 Cal.4th at p. 611.)
3. Actual Killer
Ordinarily, upon determining that the available theories of liability are unsupported by substantial evidence, we would reverse the order denying the petition and direct the trial court to grant the petition, vacate the murder conviction, and resentence Garcia under section 1172.6, subdivision (e). (See People v. Keel (2022) 84 Cal.App.5th 546, 565 [reversing order denying petition for resentencing with directions to grant petition and vacate murder conviction].) But here, the resentencing court was persuaded it could consider only the theory that Garcia was not the actual killer but a major participant in a robbery and burglary who acted with reckless indifference to human life. We thus address whether the trial court was correct in so limiting its fact finding. And considering the original trial court's verdict as well as the evidence presented at the resentencing hearing, we conclude that the court erred in constraining the available theories.
The felony-murder rule, as well as the requirements for a conviction of felony murder, distinguishes between actual killers and those who are not the actual killer. (Compare § 189, subd. (e)(1) [actual killer] with subd. (e)(3) [major participant who acted with reckless indifference to human life].) The requirement that participants in qualifying felonies that result in death be liable for murder only if they are major participants who acted with reckless indifference is meant to place on a spectrum those felony-murderers, in line with the constitutional limitations of the Eighth Amendment, those whose "involvement is substantial and [who] demonstrate a reckless indifference to the grave risk of death created by their actions." (Banks, supra, 61 Cal.4th 788, 794; see also Clark, supra, 63 Cal.4th at pp. 614-615.) But one who personally kills and is the actual killer need not have the specific mens rea of reckless indifference to be found guilty of murder under section 189, subdivision (e)(1).
As Garcia was tried before the court, there are no jury instructions for us to consider. And given the passage of time, the record of the original trial is lost. What we do know is that the original trial court convicted Garcia of first degree murder, robbery, and first degree burglary. We also know that the original trial court found Garcia not guilty of rape and further found three special-circumstance allegations based on robbery (former § 190.2, subd. (a)(17)(i)), burglary (former § 190.2, subd. (a)(17)(vii)), and rape (former § 190.2, subd. (a)(17)(iii)) not to be true.
The record in Garcia's original appeal was destroyed on February 14, 2007, pursuant to the California Rules of Court, rule 10.1028(c).
We considered whether the trier of fact's not guilty verdict on the charge of rape implies it found there to have been an actual killer other than Garcia and whether it would preclude Garcia's liability as an actual killer under Cooper, supra, 77 Cal.App.5th 393. It does not.
In Cooper, the First District held that a trial court cannot deny a section 1172.6 petition "based on findings that are inconsistent with a previous acquittal when no evidence other than that introduced at trial is presented." (Cooper, supra, 77 Cal.App.5th at p. 398; see also People v. Arnold (2023) 93 Cal.App.5th 376, 385-387 (Arnold).) But unlike Cooper-where the defendant stipulated to being a felon but was acquitted of being a felon in possession of a firearm (Cooper, at p. 399)-the record here does not permit us to identify the basis for Garcia's rape acquittal. The acquittal of a firearms possession offense in Cooper logically meant a reasonable doubt was raised as to whether Cooper possessed a firearm, the only disputed element of that offense; denying the resentencing petition by negating that reasonable doubt thus flouted the prior jury verdict. (See id. at p. 398 [observing that the trial court had denied § 1172.6 relief "based in part on its belief that Cooper possessed and fired a gun"].)
But here, we lack the trial record that would permit us to discern the specific basis for the rape acquittal and treat the rape acquittal as a finding that Garcia had a coparticipant or could otherwise be excluded as a perpetrator of the "shock and the trauma" that caused Stein's heart failure and death. We can infer from the verdict that the trier of fact harbored reasonable doubt as to one or more elements of rape as charged against Garcia. (In re Coley (2012) 55 Cal.4th 524, 554.) But we may not speculate as to the particular defect motivating that doubt, even if a different panel of this court on direct appeal believed it had adequate basis to do so. What led our predecessors to conclude that the trial court "entertain[ed] some doubt [whether Garcia] committed the crimes alone" is not in our limited record, nor have we a basis to treat this snippet of the appellate opinion as a recitation of procedural history within the meaning of section 1172.6, subdivision (d)(3).
Furthermore, Garcia himself concedes that the original trial court's not-true findings are not necessarily inconsistent with a finding that Garcia was the actual killer. At the time of Garcia's trial, former section 190.2, subdivision (a)(17) provided an enhanced punishment if "[t]he murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission [of,] or the immediate flight after committing, or attempting to commit" certain felonies such as robbery, rape, or burglary. (See also Carlos v. Superior Court (1983) 35 Cal.3d 131, 135, fn. 2.) Carlos, later overruled by People v. Anderson (1987) 43 Cal.3d 1104, was operative law at the time of Garcia's trial. In Carlos, the California Supreme Court determined that the former section 190.2, subdivisions (a)(17) and (b) require an intent to kill or aid in a killing for principals and accomplices alike. (Carlos, at pp. 153-154.) Absent a record of the original trial, it is unclear whether the original fact finder acquitted Garcia based on doubts about his conduct (whether he was the actual killer) or about his mental state (whether, even if the actual killer, he lacked the intent to kill).
The resentencing court's conclusion at the evidentiary hearing that it was constrained to considering only that Garcia was a major participant who acted with reckless indifference to human life was therefore erroneous. Remand is thus required for the court to consider the evidence under the correct legal framework. In Arnold, supra, 93 Cal.App.5th 376, for example, the defendant argued that the trial court erred by finding the defendant to be the actual killer who stabbed the victim, contravening the jury's finding that the defendant had not personally used a knife; the Second District agreed. (Id. at pp. 385-391.) Rather than direct the trial court to grant the section 1172.6 petition, the Second District concluded that it was appropriate to remand the matter so that the resentencing court could, in the first instance, determine whether the prosecution had proved the defendant's guilt under a permissible theory. (Arnold, at p. 391.) This was because there was evidence in the record to support a finding that even if the defendant had not stabbed the victim, he nonetheless had either express or implied malice and was guilty as a major participant who acted with reckless indifference to human life under section 189, subdivision (e)(3). (Arnold, at pp. 390-391.) Although Arnold involved a different species of error-the trial court there made findings inconsistent with the original jury findings-it is instructive here, where the resentencing court likewise operated under a misperception of what theories of murder it could consider. (See also Cooper, supra, 77 Cal.App.5th at p. 418-419; People v. Henley (2022) 85 Cal.App.5th 1003, 1021.)
The Attorney General argues otherwise, claiming that this court can affirm the trial court's denial of the resentencing petition if we were to find substantial evidence of Garcia's guilt on any theory, including a theory that Garcia was the actual killer. But section 1172.6, subdivision (d)(3) expressly contemplates that the trial court determine beyond a reasonable doubt whether the prosecution has met its burden of proving guilt under a valid theory of murder. It is not our role as the reviewing court to determine whether the prosecution has met its burden in the trial court on a theory the prosecution did not advance and the trial court did not consider.
The Attorney General also argues that because the trial court was not required to make specific findings or select between particular theories when denying the petition (see § 1172.6, subd. (d)(3)), any statements the court chose to make could not later be used to impeach its decision. We agree that generally, we adhere to the well-established principle that we review the legal correctness of a ruling, not the court's rationale. (People v. Zapien (1993) 4 Cal.4th 929, 976.) But as the Attorney General acknowledges, "we may nonetheless consider a judge's statement when, taken as a whole, the judge's statement discloses an incorrect rather than a correct concept of the relevant law, 'embodied not merely in "secondary remarks" but in [the judge's] basic ruling.' " (People v. Tessman (2014) 223 Cal.App.4th 1293, 1302 (Tessman).) "This limitation on the general rule applies only where 'the court's comments unambiguously disclose that its basic ruling embodied or was based on a misunderstanding of the relevant law.' " (People v. Dawson (2021) 69 Cal.App.5th 583, 592 (Dawson).)
In this case, defense counsel moved in limine to preclude the prosecutor from arguing Garcia to be the actual killer, the prosecutor joined in that invitation by conceding that he could not argue that Garcia was the actual killer, and the trial court accepted the prosecutor's concession as "[taking] care of" the defense's motion in limine. Later, during the prosecutor's closing argument, the resentencing court asked whether there was evidence of an accomplice, and the prosecutor at first correctly noted that the charged special circumstances "require[d] a specific intent to kill or an intent to-or to aid and abet with [an] intent to kill" but then reiterated that because of the original trial court's not-true findings on the special-circumstance allegations, the prosecutor was "arguing a major participant in [the] crime" and that "arguably, whether or not there was one or two people in that house, the defendant is still guilty of murder based on him being a major participant with the mens rea of reckless indifference for human life." And when denying the petition for resentencing, the resentencing court stated on the record that it found "beyond a reasonable doubt that, one, the defendant was a major participant; and two, that he acted with reckless indifference to human life; and three, that he is guilty of murder under the current state of the law."
The record thus "unambiguously disclose[s]" the resentencing court considered only whether Garcia was liable for murder solely under a theory of felony murder where he was a major participant in the underlying felonies who acted with reckless indifference to human life. (See Dawson, supra, 69 Cal.App.5th at p. 592, italics omitted.) The resentencing court thus denied the petition only on the unsupported theory. (See Tessman, supra, 223 Cal.App.4th 1302; see, e.g., People v. Guiton (1993) 4 Cal.4th 1116, 1130 [observing that affirmance is unwarranted if "review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on [an] unsupported theory"]; see also id. at p. 1130 [applying harmless error standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836].)
Although the evidence presented at the evidentiary hearing was circumstantial, it pointed to only one perpetrator, Garcia; no evidence was presented that would tend to exclude Garcia as to any of the violence against Stein or implicate anyone else as the contributor of forensic evidence at the scene. And the defense, having moved to preclude reliance on an actual-killer theory, did not present evidence suggesting any coparticipant in the offense. We express no opinion on the sufficiency of the evidence supporting liability as the actual killer. Rather, the trial court must in the first instance determine whether the evidence persuades it beyond a reasonable doubt that Garcia is guilty as an actual killer after holding a new hearing under section 1172.6, subdivision (d).
III. DISPOSITION
The order denying Garcia's Penal Code section 1172.6 petition is reversed. The trial court is directed to hold a new hearing under section 1172.6, subdivision (d), to determine whether the prosecution has met its burden beyond a reasonable doubt that Garcia was convicted of murder under a theory that he was the actual killer, and if the prosecution has not met its burden, the court is directed to grant the petition and resentence Garcia under the procedures set forth under section 1172.6.
WE CONCUR: GREENWOOD, P. J., GROVER, J.