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Name: People v. Garcia (2023) 93 Cal.App.5th 416
Case #: B317896
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 07/11/2023

Although petitioner’s jury rejected a robbery-murder special circumstance, he was not entitled to the streamlined process of resentencing provided in Penal Code section 1172.6(d)(2) because he could be convicted under another valid theory of murder liability. In 1995, Garcia accompanied gang members to a store and a victim was shot and killed. During the confrontation, Garcia disconnected the telephone and said “kill him, kill him.” Garcia was convicted of second degree murder. The jury rejected a special circumstance allegation that the murder occurred during the course of a robbery. In 2019, Garcia filed a petition for resentencing under section 1170.95 (now 1172.6). Following a (d)(3) hearing, the trial court denied the petition on the grounds that Garcia directly aided and abetted the murder. Garcia appealed, arguing he should have been resentenced without a hearing under section 1172.6(d)(2) based on the jury’s rejection of the felony murder special circumstance allegation. Held: Affirmed. Subdivision (d)(2) states that “[i]f there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.” After reviewing relevant case law, the Court of Appeal concluded that section 1172.6(d)(2) “does not mandate vacatur of a murder conviction and resentencing when there are viable bases for murder liability independent of a rejected special circumstances allegation.” Although Garcia’s jury found the felony murder special circumstance was not true, he did not dispute the trial court’s finding that he directly aided and abetted the murder with malice aforethought, or that this remains a valid basis for his conviction.