Opinion
B308824
12-30-2022
THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO GARCIA, Defendant and Appellant.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Irvi and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BA110432. Robert C. Vanderet, Judge.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Irvi and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION ON REMAND
LUI, P. J.
Francisco Garcia appealed the summary denial of his petition for resentencing under Penal Code section 1172.6. In an unpublished decision filed February 4, 2022, we affirmed, holding that the superior court may summarily deny a section 1172.6 petition at the initial prima facie review on the ground that a defendant convicted of murder with a felony-murder special-circumstance finding (§ 190.2, subd. (a)(17)) is not, as a matter of law, eligible for resentencing under section 1172.6. (People v. Garcia (Feb. 4, 2022, B308824) (Garcia).) The majority further held that a section 1172.6 petition is not a vehicle for challenging, under our Supreme Court's decisions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, a murder conviction by attacking the jury's prior factual finding that the defendant was a major participant who acted with reckless indifference to human life. (Garcia, supra, B308824.)
Undesignated statutory references are to the Penal Code.
Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
The California Supreme Court granted review and deferred further action pending consideration and disposition of related issues in People v. Strong, S266606. On November 22, 2022, the California Supreme Court transferred the case back to this court with directions to vacate our prior decision and reconsider in light of People v. Strong (2022) 13 Cal.5th 698 (Strong).
DISCUSSION
The Attorney General acknowledges that respondent's previous arguments in Garcia were the same arguments presented to, and rejected by, the high court in Strong. For this reason, respondent concedes the matter should be remanded for the trial court to issue an order to show cause and conduct an evidentiary hearing wherein relief should be denied if the prosecution proves "beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (d)(3).)
We agree. Upon reconsideration of the cause in light of Strong, supra, 13 Cal.5th 698, we conclude that the superior court erred in denying appellant's petition under section 1172.6. We therefore remand the matter for the issuance of an order to show cause and further proceedings in accordance with section 1172.6, subdivision (d).
DISPOSITION
It is ordered that the previous opinion and decision filed in this case on February 4, 2022, is vacated. The matter is remanded for reappointment of counsel, the issuance of an order to show cause, and further proceedings in accordance with Penal Code section 1172.6, subdivision (d).
We concur: ASHMANN-GERST, J. CHAVEZ, J.