Opinion
D082902
11-21-2024
THE PEOPLE, Plaintiff and Respondent, v. PHIL CARDWELL GARCIA, Defendant and Appellant.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Seth M. Friedman and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Riverside County, Super. Ct. No. SWF011785 John D. Molloy, Judge. Reversed and remanded with directions.
Ronda G. Norris, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Seth M. Friedman and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
MEMORANDUM OPINION
DO, Acting P. J.
Phil Cardwell Garcia appeals the trial court's order denying with prejudice his petition to vacate his conviction for first degree murder and be resentenced under Penal Code section 1172.6. He contends the court erred because it did not independently review the record of conviction, relied on the prosecutor's oral representations (and his appointed counsel's submission) that he was ineligible for relief, and failed to provide a statement of reasons for denying the petition. The Attorney General asserts any procedural error in the trial court's review of Garcia's petition is harmless because the jury instructions, verdicts, and transcripts of the parties' closing arguments at trial-records never presented to the trial court-demonstrate he is precluded from relief as a matter of law.
All further undesignated statutory references are to the Penal Code.
We conclude the trial court erred by failing to undertake its statutory duties under section 1172.6, subdivision (c). And although we earlier granted the People's unopposed request to judicially notice the underlying record, following this court's recent decision in People v. Gallardo (2024) 105 Cal.App.5th 296 (Gallardo), we decline to review the record of conviction in the first instance for harmless error and essentially conduct wholesale the requisite analysis that is the trial court's obligation. Instead, we accept the Attorney General's alternative position that we should reverse the order denying Garcia's petition with directions to the trial court to conduct a proper prima facie determination under section 1172.6, subdivision (c).
I.
In January 2024, we granted Garcia's unopposed request for judicial notice of this court's 2012 prior opinion in his direct appeal in People v. Garcia (July 6, 2012, D059197) [nonpub. opn.] (Garcia I) and 2019 prior opinion in his appeal from an order denying his first petition for vacatur and resentencing under former section 1170.95 in People v. Garcia (Dec. 4, 2019, D076019) [nonpub. opn.] (Garcia II). In August 2024, we granted the Attorney General's unopposed request for judicial notice of the record on appeal in Garcia I (including the jury instructions, the reporter's transcripts of counsel's closing arguments, and verdicts) and the record of appeal in Garcia II (including Garcia's first petition, the prosecution's response, and the trial court's ruling). Our summary of the procedural background is derived from the judicially noticed records as well as the record on appeal.
At a trial in 2010, a jury convicted Garcia and codefendant Keiron Marquitt Elias of the first degree murder of Anthonie Wendler and found true the murder was willful, deliberate and premeditated. (§§ 187, subd. (a), 189.) The jury also found true the special circumstance the murder was carried out for financial gain but was unable to reach a verdict on the special circumstance as to Elias. (§ 190.2, subd. (a).)
A third defendant, Jonathan Singleton, was charged with Wendler's murder but died before trial.
The trial court sentenced Garcia to a prison term of life without the possibility of parole and Elias to a term of 25 years to life. At the sentencing hearing, Garcia confessed he "did the crime that [he] was convicted for" and only he and Singleton "engaged in this crime together." Garcia further claimed because he and Elias lived together, he had access to Elias's personal effects and was able to plant some of them in and around the victim's truck.
Based on Garcia's unsworn confession, Elias moved for a new trial on the ground of newly discovered evidence. The People opposed the motion on the ground Garcia's confession was not credible. The trial court agreed with the People that Garcia's confession was" 'not credible' in light of both the testimony and physical evidence implicating Elias introduced at trial and Garcia's 'track record, a lifetime of crimes of moral turpitude, and now including murder.' It appeared to the court that by confessing Garcia 'was trying to at least assist his confederate in getting a new trial.'" The court denied Elias's motion for a new trial.
In 2012, this court affirmed the judgments as to Garcia and Elias in their direct appeal. (See Garcia I, supra, D059197.) There we concluded the trial court's failure to instruct the jury to view with caution evidence of incriminating pretrial statements Garcia made to Elias to be harmless. We rejected Elias's contention the trial court erroneously denied his motion for new trial, concluding that "[s]ubstantial evidence supports the trial court's finding that Garcia's confession was not credible." (Ibid.)
In 2019, Garcia filed a petition to vacate his murder conviction and be resentenced under former section 1170.95. The People filed a response, asserting the resentencing statute was unconstitutional and that the trial court should summarily deny the petition because "a review of readily available records contained in the court's judicial access database, including the Court of Appeal opinion affirming the judgment, demonstrates the jury found a financial gain special circumstance true that required the jury to find defendant intended to kill, and during sentencing, [Garcia] confessed to killing the victim." At a brief hearing, the prosecutor told the court, "this was a financial gain special circumstance that requires intent to kill" and "Garcia actually confessed at sentencing to being the killer pursuant to the [Garcia I] appellate opinion." Garcia's appointed counsel "[o]bject[ed] for the record." The trial court "summarily denied" the petition. The record does not indicate the court reviewed any documents from Garcia's record of conviction.
The reporter's transcript of the hearing consisted of a total of 21 lines.
Garcia appealed the denial of his first petition and appellate counsel filed a Wende brief indicating she was not able to identify any arguable issues for reversal on appeal. This court reviewed the record for error as mandated by Wende and affirmed. In doing so, the panel stated: "Suffice to note Garcia and another man were convicted of first degree murder and Garcia was found to have committed the murder for financial gain, a special circumstance which requires proof of intention to kill." (See Garcia II, supra, D076019.)
People v. Wende (1979) 25 Cal.3d 436.
In 2023, Garcia filed a second petition to vacate his murder conviction and be resentenced under section 1172.6. In the form petition, Garcia checked the boxes stating an information was filed against him that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory of imputed malice; he was convicted of murder following a trial; and he could not presently be convicted of murder because of changes made to sections 188 and 189 effective January 1, 2019. He also requested appointment of counsel.
The trial court appointed Garcia counsel and set a "Status Conference." The People did not file a response and did not submit any record of conviction for the trial court to review. At the status conference, the People simply made this oral representation:
"I sent materials regarding this case to [appointed counsel] earlier this week. The defendant was previously denied a petition that he filed in 2019 based upon the fact that he was the actual killer and the jury so found. The Court of Appeal upheld that. The defendant filed another petition identical to the original petition on July the 19th, 2023. There's no difference between the old petition and the new petition. The law of the case would apply. We'd ask the [c]ourt to deny the petition with prejudice." (Italics added.)
As we shall explain, the prosecutor's statements were not correct.
Garcia was not present at the status conference but his appointed counsel responded: "I have confirmed that. I will submit." The trial court denied the petition, with prejudice and without any statement of reason. The record indicates the court, again, did not review any documents from Garcia's record of conviction. Garcia then filed this appeal.
II.
Discussion
Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437)" 'to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.' (Stats. 2018, ch. 1015, § 1, subd. (f).)" (People v. Lewis (2021) 11 Cal.5th 952, 959 (Lewis).) Senate Bill 1437 also created a procedure that allows persons convicted under the former murder laws to petition for retroactive relief. (Stats. 2018, ch. 1015, § 4; People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).)
The section 1172.6 petition process "begins with the filing of a petition containing a declaration that all requirements for eligibility are met [citation], including that '[t]he petitioner could not presently be convicted of murder or attempted murder because of changes'" to the Penal Code made by Senate Bill 1437. (Strong, supra, 13 Cal.5th at p. 708; § 1172.6, subd. (a)(1)-(3).) When the trial court receives a petition satisfying the pleading requirements in section 1172.6, subdivision (a)(1)-(3), the court must appoint counsel upon request. (Id., subd. (b)(3).) Then, within 60 days of service of the petition, the prosecution "shall file and serve a response." (Id., subd. (c), italics added.) The petitioner may file a reply, and the court "shall hold a hearing to determine whether the petitioner has made a prima facie case for relief," and issue an order to show cause if the petitioner has done so. (Ibid., italics added; see Strong, at p. 708.)
In deciding whether a petitioner has made a prima facie showing for relief under section 1172.6, the "court must accept as true a petitioner's allegation that he or she could not currently be convicted of a homicide offense because of changes to section 188 or 189 made effective January 1, 2019, unless the allegation is refuted by the record. [Citation.] And this allegation is not refuted by the record unless the record conclusively establishes every element of the offense. If only one element of the offense is established by the record, the petitioner could still be correct that he or she could not currently be convicted of the relevant offense based on the absence of other elements." (People v. Curiel (2023) 15 Cal.5th 433, 463, first italics added (Curiel); see also Lewis, supra, 11 Cal.5th at p. 971; § 1172.6, subd. (c).)" '[A] court should not reject the petitioner's factual allegations on credibility grounds without first conducting an evidentiary hearing.'" (Lewis, at p. 971.)
At this preliminary stage, the court may consider the record of conviction to assess the petitioner's eligibility for relief, but it may not engage in factfinding, weigh the evidence, or assess credibility. (Lewis, supra, 11 Cal.5th at pp. 971-972.) The record of conviction includes documents from the petitioner's jury trial like the jury instructions and verdict forms. (People v. Harden (2022) 81 Cal.App.5th 45, 50 [jury instructions and verdicts on which they were based supported denial of § 1172.6 petition].) The court may deny a petition at the prima facie stage only if "the petition and record in the case establish conclusively that the defendant is ineligible for relief" as a matter of law. (Strong, supra, 13 Cal.5th at p. 708, italics added.) "If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." (§ 1172.6, subd. (c), italics added.)
If the court issues an order to show cause, within 60 days it must then hold an evidentiary hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and resentence the petitioner on any remaining counts. (§ 1172.6, subds. (c), (d)(1).) At this evidentiary hearing, either party may present new evidence and the prosecution bears the burden of proving the petitioner could still be convicted beyond a reasonable doubt. (Id., subd. (d)(3).)
We conclude the trial court's perfunctory proceedings at the status conference do not satisfy the procedural requirements of section 1172.6. Garcia's form petition contained the necessary information to trigger the prosecutor's obligation to file and serve a response (§ 1172.6, subd. (c)), and the court's statutory duty to hold a hearing to determine whether Garcia made a prima facie case for relief (ibid.). The court did not receive or review any briefing by the parties, nor did it independently review and consider any record of conviction. Instead, it relied on the prosecutor's conclusory statements about the record-which were not a substitute for reviewing the record and were also wrong.
Contrary to the prosecutor's statements, the jury did not make a finding that Garcia "was the actual killer." As the Attorney General acknowledges in his respondent's brief, "[t]he prosecutor argued Elias killed the victim with Garcia's help." (Italics added.) The jury was instructed on principles of aiding and abetting; uncharged conspiracy to commit murder and/or robbery; and that "[a] member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is a natural and probable consequence of the common plan or design of the conspiracy." In addition to the presence of codefendant Elias, the jury was also instructed the evidence showed Singleton "may have been involved in the commission of the crimes charged" against Garcia and Elias, but that he died before trial. Thus although convicted of first degree premeditated murder with the financial gain special circumstance, the jury's verdict (without more) cannot be interpreted as a finding that Garcia was the actual killer.
As the Attorney General concedes, since the jury never heard Garcia's unsworn confession at the sentencing hearing, "it did not form a basis for the jury's verdict" and is thus not a part of the record of conviction. To the extent it may be considered, the prosecution must introduce evidence of it at an evidentiary hearing under subdivision (d)(3) of section 1172.6.
Also contrary to the prosecutor's statements, the defendant's 2019 petition was not denied on the basis the jury found he was the actual killer, and no appellate court so affirmed. As stated in this court's 2019 Wende opinion, the court concluded Garcia's first petition was properly denied because the jury's special circumstance finding required "proof of intention to kill," which foreclosed his eligibility. (See Garcia II, supra, D076019.) But as the Attorney General correctly recognizes, the second petition is not barred by law of the case because Curiel has since clarified that a jury finding of intent to kill, either as to murder or a special circumstance, does not by itself render a petitioner ineligible for resentencing relief as a matter of law. (Curiel, supra, 15 Cal.5th at p. 470.)
For all these reasons, we will not construe defense counsel's confirmation of the prosecutor's incorrect statements to be a stipulation that Garcia had not presented a prima facie claim for relief or that he was ineligible as a matter of law, including because law of the case barred his second petition. Not only was the purported stipulation improvident since it agreed to a position that was legally incorrect and detrimental to Garcia, but Garcia was also not present at the status conference and there is nothing in the record to suggest his appointed counsel was authorized to enter such a stipulation on his behalf. We thus reject the People's forfeiture claim.
As noted, the trial court may deny a petition at the prima facie stage only if "the petition and record in the case establish conclusively that the defendant is ineligible for relief" as a matter of law. (Strong, supra, 13 Cal.5th at p. 708, italics added.) But because the trial court did not independently review any aspect of the trial record, there was nothing to refute the factual allegations of Garcia's petitions and the court erred by denying the petition. (See Curiel, supra, 15 Cal.5th at p. 463; Lewis, supra, 11 Cal.5th at pp. 971-972.) "In other words, the court could not have determined that the record of conviction conclusively established [Garcia] was ineligible for [section 1172.6] relief as a matter of law because it does not appear the court reviewed any aspect of the trial record." (Gallardo, supra, 105 Cal.App.5th at p. 302.) The court further erred by failing to provide a statement fully setting forth its reasons for declining to make an order to show cause. (§ 1172.6, subd. (c).)
Effectively conceding there was procedural error, the Attorney General asks this court to take judicial notice of the record from Garcia's direct appeal and conclude that any error in the trial court's evaluation of Garcia's section 1172.6 petition was harmless. The Attorney General contends the jury instructions and verdict forms from Garcia's trial demonstrate he was not convicted under the only theory of liability that would afford him relief-the natural and probable consequences doctrine-and therefore he is ineligible for relief as a matter of law.
We recognize courts have applied the harmless error standard of People v. Watson (1956) 46 Cal.2d 818 to particular failures in the statutory procedure at the outset of the section 1172.6 petitioning process. (See People v. Beaudreaux (2024) 100 Cal.App.5th 1227, 1239 [failing to appoint counsel and by relying on substantive facts stated in court's prior opinion]; People v. Vance (2023) 94 Cal.App.5th 706, 714 [court improperly considered prior appellate opinion]; People v. Hurtado (2023) 89 Cal.App.5th 887, 891-893 [failure to appoint counsel, set a briefing schedule, or hold a hearing before deciding the defendant did not make a prima facie showing for resentencing]; People v. Farfan (2021) 71 Cal.App.5th 942, 953 [failure to accept briefing from the parties, as well as appoint counsel].) But the Attorney General is in effect asking that we in the first instance review the record to determine Garcia's eligibility for relief and conduct wholesale the requisite analysis that is the trial court's obligation.
We recently rejected an identical request from the Attorney General in Gallardo. There, as here, the trial court denied a section 1172.6 petition at the prima facie stage based on counsel's oral characterizations of the record and without "reviewing any part of the record of conviction." (Gallardo, supra, 105 Cal.App.5th at p. 302.) The Attorney General asked us to review the record from the defendant's direct appeal and conclude any procedural error was harmless. We declined to do so, explaining this task is the statutorily mandated duty of the trial court and "it is a canon of appellate review that we, as the reviewing court, are 'neither authorized nor inclined to substitute our judgment for the judgment of the trial court.'" (Id. at pp. 302303.) Thus, although we granted the People's unopposed request for judicial notice in this case, we conclude the appropriate remedy is to reverse the order denying the petition with directions to the court to perform its functions under section 1172.6, subdivision (c). We take no position on how the court should ultimately determine whether Garcia has made a prima facie claim for relief.
III.
Disposition
The order is reversed. The matter is remanded for the trial court to conduct proceedings consistent with section 1172.6, subdivision (c).
WE CONCUR: KELETY, J. CASTILLO, J.