People v. Garcia

Filed 7/11/23

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B317896

Plaintiff and Respondent, (Los Angeles County

Super. Ct. No. BA109070)

v.

RAMIRO MACIAS GARCIA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of

Los Angeles County, George G. Lomeli, Judge. Affirmed.

Jonathan E. Demson, 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, Assistant

Attorney General, Charles E. Lee and Allison H. Chung, Deputy

Attorneys General, for Plaintiff and Respondent.

Pursuant to California Rules of Court, rules 8.1100 and

*

8.1110, this opinion is certified for publication with the exception

of part C.

INTRODUCTION

In 1997, appellant Ramiro Macias Garcia was convicted of

second degree murder; the jury rejected the special circumstance

allegation that the murder occurred during the course of a

robbery. In 2019, Garcia filed a petition for resentencing under

Penal Code section 1172.6.1 Following an evidentiary hearing,

the trial court denied Garcia’s petition on the grounds that

Garcia was ineligible for resentencing because he aided and

abetted the murder and acted with malice. On appeal, Garcia

does not challenge the trial court’s findings, but argues he should

have been resentenced without a hearing under the streamlined

procedure described in section 1172.6, subdivision (d)(2), which

applies when “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.” He asserts that the

jury’s rejection of the special circumstance constitutes such a

finding, regardless of any other viable grounds for his conviction.

We affirm. Section 1172.6, subdivision (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. Section 1172.6,

subdivision (d)(2) provides a mechanism to streamline the process

of resentencing only if it is clear the petitioner is otherwise

eligible for resentencing under section 1172.6.

1 All undesignated statutory references are to the Penal

Code. Effective June 30, 2022, while this case was pending,

section 1170.95 was renumbered section 1172.6, with no change

in text (Stats. 2022, ch. 58, § 10). For clarity, we refer only to

section 1172.6 in this opinion.

2

FACTUAL AND PROCEDURAL BACKGROUND

A. Conviction

The following facts are taken from our previous opinions

and are not disputed by the parties. On November 4, 1995, two

gang members went into a clothing store and got into a verbal

disagreement with the owners, husband R.L. and wife E.P.2

(People v. Garcia (Aug. 18, 2020, B301331 [nonpub. opn.] (Garcia

I); People v. Aparicio (Oct. 7, 1998, B113095 [nonpub. opn.]

(Aparicio).) During the disagreement, one gang member, Richard

Startz, threatened to kill both R.L. and E.P., showing them a gun

in his belt. (Aparicio, supra, B113095.) The two gang members

left the store to get their “home boys,” and later returned with

about 10 additional gang members, including Garcia. (Aparicio,

supra, B113095.)

At one point another gang member, “Sniffer,” hit R.L.,

“causing him to fall back. Sniffer said, ‘This is my Barrio, and

you’re going to respect it, you fucking faggot. You’re going to

respect it.’” (Aparicio, supra, B113095.) When E.P. attempted to

help R.L., other gang members held her back. (Aparicio, supra,

B113095.) “Appellant Garcia moved to the counter and looked

through the drawers behind the counter. [E.P.] saw Garcia

disconnect the telephone. [E.P.] also saw appellant Garcia grab

her purse from under the counter; she testified $700 was missing

from her purse after the incident.” (Aparicio, supra, B113095.)

Sniffer had taken a gun from “Little Mister,” and he

“handed the gun back to Little Mister, telling him, ‘Do what you

have to do.’ Appellant Garcia said, ‘kill him, kill him,’ and . . .

Macias said, ‘pull it, dumb shit.’ . . . Aparicio said, ‘Don’t let the

2 We refer to the victims using initials to protect their

privacy. (See Cal. Rules of Court, rule 8.90(b)(4).)

3

neighborhood down.’” (Aparicio, supra, B113095.) “[R.L.’s]

brother, [J.H.], came in through the doorway at the back of the

store which adjoined the larger and smaller stores. Little Mister

raised his gun and pointed it at [R.L.]. [R.L.] thought Little

Mister was going to kill him. Little Mister instead pointed the

gun at [J.H.] and shot him three or four times. [J.H.] was

transported to the hospital; he died from gunshot wounds to his

hip and leg.”

“The [gang members] ran out of the store, with Little

Mister and Sniffer being the last to leave. At the sidewalk, Little

Mister handed the gun back to Sniffer. Sniffer shot a man named

[S.D.], who had been standing outside watching the incident.

[S.D.], who was 69 years old, died at the scene as a result of a

single gunshot wound to the chest.” (Aparicio, supra, B113095.)

“[Garcia] and others were charged with two counts of

murder (§ 187, subd. (a)), with alleged special circumstances of

robbery-murder (§ 190.2, subd. (a)(17)) and multiple murder (§

190.2, subd. (a)(3)).[3] Trial proceeded against at least four

defendants. We stated in Aparicio that at trial, ‘During closing

argument the prosecutor relied on three theories of liability as to

appellants: (1) for aiding and abetting murder,[4] (2) for felony

murder, and (3) for murder as a natural and probable

consequence of conspiracy to assault or make terrorist threats.

The jury rejected the finding of first degree murder and also

3 “[Garcia] and others were also charged with two counts of

second degree robbery (§ 211), and one count of conspiracy to

commit murder (§§ 182, 187, subd. (a).) These charges were

dismissed during trial.”

4 “The prosecutor argued to the jury that appellants should

be found guilty of aiding and abetting first degree murder, but

the jury found all appellants guilty of second degree murder.”

4

rejected the special circumstance of murder during robbery, so

clearly the jury relied on either the first or third theory of

liability.’ The jury found [Garcia], Aparicio, and Macias guilty of

two counts of second degree murder, and found true an allegation

that a principal was armed with a firearm during the commission

of the murders. The jury also found the special circumstances not

true. [Garcia] was sentenced to a total term of 32 years to life,

consisting of consecutive terms of 15 years to life for each count,

plus one year for each firearm enhancement.” (Garcia I, supra,

B301331.)

On direct appeal, this court rejected Garcia’s contention

that there was insufficient evidence to support his conviction for

the murder of J.H.: “[T]he evidence shows that Garcia intended

to encourage a killing. He accompanied [the gang members] to

contribute to their strength of numbers, said ‘kill him, kill him,’

and disconnected the telephone. Little Mister effectuated a

killing, the very act encouraged by Garcia. Although Garcia

apparently encouraged Little Mister to kill [R.L.] rather than

[J.H.], he had the intent to encourage the criminal conduct that

transpired. ‘[N]o specific intent is required for liability as an

aider and abettor other than the intent to aid, encourage,

facilitate or promote a criminal act.’ (People v. Olguin (1994) 31

Cal.App.4th 1355, 1380.)” (Aparicio, supra, B113095.)

B. Petition for resentencing

On June 19, 2019, Garcia filed a petition for resentencing

under section 1172.6. For purposes of this appeal we focus on the

facts relevant to Garcia’s contentions, which involve the murder

5

of J.H. and the procedures set out in section 1172.6, subdivision

(d)(2) (subdivision (d)(2)).5

Section 1172.6 “provides a procedure for convicted

murderers who could not be convicted under the law as amended

to retroactively seek relief.” (People v. Lewis (2021) 11 Cal.5th

952, 959.) In most cases where the petitioner has made a prima

facie case for relief, the trial court must issue an order to show

cause and hold a hearing to determine whether the petitioner is

entitled to resentencing.6 (People v. Flint (2022) 75 Cal.App.5th

607, 613 (Flint); § 1172.6, subd. (d)(1).) However, subdivision

(d)(2) sets out two scenarios in which a hearing is not necessary:

first, where the parties “waive a resentencing hearing and

stipulate that the petitioner is eligible” for resentencing, or

second, if “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.” (§ 1172.6, subd.

(d)(2).) “In the latter case, the court must bypass a hearing under

section 1172.6, subdivision (d)(3) and proceed directly to vacatur

and resentencing.” (People v. Guillory (2022) 82 Cal.App.5th 326,

332 (Guillory).)

Here, Garcia’s written briefing included an argument that

“[t]he murder conviction [regarding J.H.] should be vacated and

5 The parties agreed Garcia was eligible for resentencing

as to the murder of S.D., and the court granted Garcia’s petition

as to that conviction.

6 Here, the trial court initially denied Garcia’s petition

without appointing counsel, allowing briefing, or holding a

hearing. Garcia appealed, and the People conceded that Garcia

had made a sufficient prima facie showing and was entitled to

further proceedings. We remanded the case for further

proceedings under section 1172.6. (Garcia I, supra, B301331.)

6

set aside on grounds that the jury found the felony murder

special circumstance not true, which means there has been a

factual finding that Garcia was not a major participant who acted

with reckless indifference during an underlying robbery, which in

turn pursuant to [subdivision] (d)(2) requires a vacating of the

conviction. . . . There is no surviving theory of liability which

would meet the requirements of [section 1172.6].” Garcia further

argued he “was not the actual killer, and the jury’s ‘not true’

finding as to the felony murder special circumstance means there

has been a factual finding that Garcia was not a major

participant who acted with reckless indifference to human life

during an underlying felony, here, robbery. The express

language of [subdivision (d)(2)] is 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.’”

Garcia continued, “[T]he only way Garcia’s conviction is

sustainable under [section 1172.6] is if Garcia were a direct aider

and abettor of a . . . murder.” Garcia argued the “transferred

intent doctrine if applicable might support liability on a direct

aider and abettor theory, but here, it is not applicable.” He

argued that R.L.—not J.H.—was the intended victim of Little

Mister’s intent to kill and the others’ encouragement to kill, and

Little Mister shot J.H. “without any encouragement or assistance

from codefendants.”

The People opposed Garcia’s petition. They asserted that

Garcia was ineligible for resentencing because he aided and

abetted J.H.’s murder with malice aforethought. The People

argued that Garcia “harbored express malice when he yelled to a

7

man with a loaded gun pointed at a human being and said, ‘Kill

him, kill him.’ He did so while restraining witnesses and

preventing them from calling for help. His mental state is far

more culpable tha[n] conscious disregard for human life, the least

culpable mental state required for a second degree murder

conviction.” The People also asserted that the doctrine of

transferred intent was irrelevant to whether Garcia personally

harbored malice aforethought, because the law “requires an

unlawful intent to kill a person, not the same person the

defendant intended to be killed.” The People concluded, “Malice

is not imputed to an aider and abettor when the intended crime is

murder.”

At the evidentiary hearing on the petition, the parties

relied on the court record and did not present any additional

evidence. Garcia’s counsel repeated the arguments made in his

briefing, including noting that the jury rejected the felony murder

theory, and that because the transferred intent doctrine did not

apply, an aiding and abetting theory would not apply. The

People argued that the transferred intent doctrine was not

applicable, but direct aiding and abetting murder remained a

valid basis for the conviction.

The court denied Garcia’s petition as to the murder of J.H.

The court stated, “The overall record of conviction establishes

that [Garcia] directly aided and abetted the murder with malice

aforethought.” The court stated that Garcia “encouraged the

killing” of one victim, and even though the shooter killed a

different victim, Garcia “had knowledge that the shooter had a

firearm, [and] he encouraged the shooting of an individual, with

the actual shooter electing to shoot the 19-year-old relative.” The

court stated that Garcia’s “other conduct, including

8

accompanying the other members of his gang to the store location

in order to contribute to their strength in numbers; that once

there he disconnected the telephone at the store location, which

purportedly made it more difficult for the victims to summon for

help; and that he rifled through the purse of [E.P.], who later

reported that $700 was taken. [¶] Additionally, [Garcia] failed to

render aid to victim [J.H.] once he had been shot. [¶] Thus, in

the court’s eyes, from the overall evidence as reflected in the

record of conviction . . . [Garcia] harbored malice by his overall

conduct, whether it’s implied or otherwise.”7

Garcia timely appealed.

DISCUSSION

Garcia does not dispute the trial court’s finding that the

record supports his conviction on a valid theory of aiding and

abetting. Rather, he contends the trial court was compelled by

subdivision (d)(2) to bypass a hearing altogether, vacate his

conviction, and resentence him based on the jury’s finding that

the robbery special circumstance was not true. Because Garcia

presents a question of statutory interpretation, we review the

7 Garcia’s counsel asked the court if it was relying on

felony murder or a direct aiding and abetting theory. The court

said that although there was evidence to support either theory,

the court relied on “the direct aiding and abetting with an

implied malice.” “[N]otwithstanding Senate Bill 1437’s

elimination of natural and probable consequences liability for

second degree murder, an aider and abettor who does not

expressly intend to aid a killing can still be convicted of second

degree murder if the person knows that his or her conduct

endangers the life of another and acts with conscious disregard

for life.” (People v. Gentile (2020) 10 Cal.5th 830, 850.)

9

issue de novo. (People v. Barboza (2021) 68 Cal.App.5th 955,

962.)

A. Section 1172.6 background

Section 1172.6 expressly states that its resentencing

provisions apply only where the “petitioner could not presently be

convicted of murder or attempted murder because of changes to

Section 188 or 189.” (§ 1172.6, subd. (a)(3).) A petition must

include a “declaration by the petitioner that the petitioner is

eligible for relief under this section, based on all the

requirements of subdivision (a).” (Id., subd. (b)(1)(A).) If the

petition “meets the requirements set forth in subdivision (b), the

prosecutor shall file and serve a response. . . . After the parties

have had an opportunity to submit briefings, the court shall hold

a hearing to determine whether the petitioner has made a prima

facie case for relief. If the petitioner makes a prima facie showing

that the petitioner is entitled to relief, the court shall issue an

order to show cause.” (Id., subd. (c).) “Within 60 days after the

order to show cause has issued, the court shall hold a hearing to

determine whether to vacate the murder, attempted murder, or

manslaughter conviction and to recall the sentence. . . .” (Id.,

subd. (d)(1).) At the hearing, “the burden of proof shall be on the

prosecution to prove, 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.” (Id., subd. (d)(3).)

As noted above, subdivision (d)(2) allows the court to

resentence the petitioner without a hearing in limited

circumstances: “The parties may waive a resentencing hearing

and stipulate that the petitioner is eligible to have the murder,

attempted murder, or manslaughter conviction vacated and to be

10

resentenced. If 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.”

(§ 1172.6, subd. (d)(2).) Thus, subdivision (d)(2) is intended “to

‘streamline the process’ (People v. Ramirez (2019) 41 Cal.App.5th

923, 932, 254 Cal.Rptr.3d 670 (Ramirez)) for petitioners who are

clearly eligible for resentencing.” (Flint, supra, 75 Cal.App.5th at

p. 610.)

B. Analysis

Garcia’s argument on appeal is broader than it was below.

In the trial court, Garcia asserted that his jury found the felony

murder special circumstance not true, and there was “no

surviving theory of liability” that could meet the requirements of

section 1172.6. Garcia argued that he therefore was required to

be resentenced under the abbreviated procedure outlined in

subdivision (d)(2). On appeal, by contrast, Garcia has abandoned

the second prong of his argument; he does not challenge the

court’s ruling that he is not eligible for resentencing under

section 1172.6 based on a valid aiding and abetting theory. He

asserts only the first portion of the argument he made below: that

the jury’s not true finding compelled the court to resentence him

without a hearing. He states, “[Garcia’s] jury unanimously

acquitted him of the felony murder special circumstance

allegation. That was all that was needed to trigger the

mandatory resentencing provision in section 1172.6, subdivision

(d)(2).”8

8 Garcia’s briefing offers almost no reasoning or analysis

on the issue; he does not discuss the various theories asserted at

his trial, the jury instructions, or how the jury’s special

11

Garcia’s interpretation of subdivision (d)(2) is

unpersuasive. A negative finding on a special circumstance

allegation does not entitle a petitioner to resentencing where the

petitioner “could be convicted under other, still valid theories of

murder.” (Guillory, supra, 82 Cal.App.5th at p. 333.) Guillory is

instructive. There, Guillory was convicted of murder, robbery,

kidnapping and other crimes; the jury returned a not-true finding

on a special circumstance allegation that Guillory committed the

murder during the course of the kidnapping. (Id. at p. 331.)

When Guillory filed a petition for resentencing under section

1172.6, she argued the not-true finding on the kidnapping special

circumstance entitled her to resentencing as a matter of law

under subdivision (d)(2). (Id. at p. 332.) The Court of Appeal

rejected this argument. It noted that, as the trial court found in

denying Guillory’s petition, “Guillory remains directly liable as

an aider and abettor under the amended law.” (Id. at p. 333.) In

addition, “neither the jury’s rejection of the kidnapping allegation

nor its deadlock on the remaining special circumstance

allegations would preclude a subsequent court or jury from

finding her guilty of felony murder based on her participation in

the robbery and carjacking.” (Ibid.) The court concluded, “In

short, Guillory could be convicted of murder under current law,

and she therefore falls outside the class of defendants that may

benefit from the Legislature’s decision to narrow liability for

murder in other circumstances.” (Ibid.)

The Guillory court rejected Guillory’s contention that

“where a jury finds one or more special circumstances allegations

circumstances finding qualifies as a finding that he “did not act

with reckless indifference to human life or was not a major

participant in the felony” under the circumstances of the case.

12

to be not true but deadlocks on others, section 1172.6, subdivision

(d)(2) mandates vacatur and resentencing even if the jury could

also have found beyond a reasonable doubt that the petitioner

was the actual killer (§ 189, subd. (e)(1)); aided and abetted the

murder with the intent to kill (§ 189, subd. (e)(2)); or was a major

participant who acted with reckless indifference in committing a

felony underlying a special circumstances allegation on which the

jury deadlocked. (§ 189, subd. (e)(3).)” (Guillory, supra, 82

Cal.App.5th at pp. 333-334.) The court stated, “Guillory’s theory

contravenes the Legislature’s decision to limit relief to offenders

who could not be convicted of murder under current law

(§ 1172.6, subd. (a)(3)), contradicts in some cases the

Legislature’s decision to retain some forms of felony murder

liability under section 189, subdivision (e), and turns on its head

the Legislature’s intention to better align the punishment for

murderers with their individual culpability.” (Id. at p. 334.)

The Guillory court stated that section subdivision (d)(2) is

“more reasonably understood” to require automatic vacatur and

resentencing only “where a special circumstances allegation

found to be not true . . . provides the only viable ground for a

murder conviction. . . . [C]onsistent with legislative intent, the

subdivision affords relief to offenders who could not currently be

convicted of murder under any still-valid theory that could have

been proven at their trial.” (Guillory, supra, 82 Cal.App.5th at p.

334 (emphasis added).) Here, Garcia does 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.

Garcia argues that we should instead follow Ramirez,

supra, 41 Cal.App.5th 923, in which the defendant was convicted

13

in 2003 of first degree felony murder, and the jury found true the

special circumstance that the defendant was an aider and abettor

of the associated robbery, and acted as a major participant with

reckless indifference to human life. The Court of Appeal affirmed

the conviction in 2004. Following a petition for habeas corpus,

the Court of Appeal in 2017 struck the special circumstances

findings based on the Supreme Court’s clarification of the special

circumstances standards in People v. Banks (2015) 61 Cal.4th 788

and People v. Clark (2016) 63 Cal.4th 522. (Ramirez, supra, 41

Cal.App.5th at p. 926.) In 2019 the defendant filed a petition for

resentencing under section 1172.6. The trial court denied the

petition without a hearing, relying on the 2004 appellate opinion

affirming the conviction. (Id. at p. 928.)

On appeal, the defendant and the People agreed the trial

court erred by relying on the 2004 appellate opinion to summarily

deny the section 1172.6 petition. (Ramirez, supra, 41

Cal.App.5th at p. 930.) The parties disagreed, however, about

which procedure should be followed on remand. The defendant

argued no hearing was necessary under subdivision (d)(2), and

the People argued the court should proceed with an order to show

cause and a hearing. (Ibid.) The Court of Appeal held that no

hearing was required: “It is beyond dispute that this court found

that the defendant was not shown to have been a major

participant in the underlying felony, or to have acted with

reckless indifference to human life. [Citation.] Under these

circumstances, the trial court was required by section 1170.95,

subdivision (d)(2) to vacate the conviction and resentence

defendant on the remaining counts.” (Id. at p. 933.)

The same panel that decided Ramirez decided People v.

Clayton (2021) 66 Cal.App.5th 145 two years later. There, a jury

14

had convicted Clayton of one count of first degree murder and two

counts of robbery, and found not true a special-circumstance

allegation that the murder was committed during a robbery. (Id.

at p. 150.) Clayton filed a petition for resentencing under section

1172.6, which the court denied on the grounds that Clayton had

been a major participant who acted with reckless indifference to

human life. (Ibid.) As in Ramirez, the parties agreed the court

erred by denying the petition at the prima facie stage, but

disagreed as to whether, upon remand, a hearing was warranted

or the streamlined procedure of subdivision (d)(2) should apply.

(Id. at pp. 154-155.) The majority of the Court of Appeal held

that “the jury’s unanimous rejection of the special-circumstance

allegation establishes the petitioner’s entitlement to relief under

section 1170.95 as a matter of law.” (Id. at p. 149.) The majority

noted, “[A]ppellant’s jury was instructed that, if it found

appellant was not the actual killer, it could not find the special-

circumstance allegation true as to appellant unless it

unanimously found, beyond a reasonable doubt, that appellant

was an aider and abettor with intent to kill or a major participant

in the underlying felony who acted with reckless indifference to

human life. [ ] Appellant’s jury unanimously found the

prosecution had failed to prove the truth of the special

circumstance beyond a reasonable doubt.” (Id. at p. 156.) The

majority stated that it would be inappropriate to remand to allow

the prosecution to attempt to prove “the very facts the jury

already unanimously and beyond a reasonable doubt rejected.”

(Id. at p. 157.)

In Clayton, Justice Chavez, the author of the Ramirez

opinion, dissented. She reasoned that in light of the specific jury

instructions given at trial, “the ‘not true’ finding by the jury as to

15

the special circumstance does not prove, as a matter of law, that

a court or jury affirmatively found appellant was not a major

participant who acted with reckless indifference.” (Clayton,

supra, 66 Cal.App.5th at p. 159.) Justice Chavez stated that

there were “at least two ways the jury could have come to its

verdicts without affirmatively rejecting the theory that appellant

was a major participant who acted with reckless indifference.”

(Ibid.) In light of those possibilities, the “‘not true’ finding on the

special circumstance in that scenario is simply not the same as

the affirmative finding required by section 1170.95, subdivision

(d)(2), that the petitioner was not a major participant who acted

with reckless indifference to human life.” (Id. at p. 162.)

Here, Garcia offers no case-specific analysis and does not

make any argument as to why the reasoning of Ramirez and

Clayton better fits this case than that of Guillory, except to say in

a footnote in his reply brief that Guillory involved three

underlying felonies and therefore “addressed an issue not present

here.” We disagree that the reasoning of Ramirez and the

Clayton majority applies here, because the felony murder special

circumstance Garcia’s jury rejected was not the only basis for

Garcia’s conviction. Rather, as the trial court found, his

conviction may rest on the still-valid theory of aiding and

abetting. Garcia’s interpretation of subdivision (d)(2) as

requiring resentencing despite his ineligibility for resentencing

under the standards of subdivision (a) “would make . . . ,

subdivision (d)(2) into a backdoor to guarantee resentencing for

certain defendants who are not eligible, rather than a mechanism

to ‘streamline the process’ of resentencing (Ramirez, supra, 41

Cal.App.5th at p. 932) in cases where it is clear that the

16

defendant is eligible.” (Flint, supra, 75 Cal.App.5th at p. 618.)9

The court in Flint stated, “[I]t would be absurd to infer that the

Legislature intended [subdivision (d)(2)] to guarantee

resentencing for defendants who could still be convicted of

murder under current law.” (Flint, supra, 75 Cal.App.5th at pp.

610-611.) We agree.

C. Redesignating the vacated murder conviction

The People also argue that the case should be remanded for

resentencing on the conviction for the murder of S.D. Section

1172.6, subdivision (d)(3) states that following a hearing, “[i]f the

prosecution fails to sustain its burden of proof, the prior

conviction, and any allegations and enhancements attached to

the conviction, shall be vacated and the petitioner shall be

resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).)

Subdivision (e) states, “The petitioner’s conviction shall be

redesignated as the target offense or underlying felony for

resentencing purposes if the petitioner is entitled to relief

pursuant to this section, murder or attempted murder was

charged generically, and the target offense was not charged.”

9 The People contend subdivision (d)(2) applies only to

those convicted of felony murder, and therefore does not apply

here because Garcia’s jury rejected the felony murder theory.

The People do not explain the reasoning behind interpreting

subdivision (d)(2) this way; presumably it is because language

used in the subdivision—including “reckless indifference” and

“major participant in the felony”— is typically associated with

felony murder convictions. Given that Garcia is ineligible for

resentencing and subdivision (d)(2) does not apply to him for that

reason, we need not reach this issue.

17

(§ 1172.6, subd. (e).) Here, when the trial court vacated the

sentence for the murder of S.D., the court ordered the sentence

“stricken, and the charge dismissed in the furtherance of justice.”

The People contend the court erred by striking the

sentence, because under section 1172.6, subdivision (e), “the court

was required to redesignate the vacated conviction as the ‘target

offense or underlying felony.” The People request that we

remand the case “to allow the trial court to exercise its

considerable discretion and redesignate the vacated murder

conviction as [the] ‘target offense or underlying felony.’”

Garcia contends this issue has been forfeited by the

People’s failure to object below, and because the People failed to

challenge it with a cross-appeal. We agree.

The People may challenge an “unlawful sentence” by

appealing. (§ 1238, subd. (a)(1).) In addition, a legally

unauthorized sentence may be challenged at any time, even when

not raised below, and even in the absence of a cross-appeal by the

People. (See People v. Price (2004) 120 Cal.App.4th 224, 241 fn.

25.) However, in their briefing on appeal, the People do not

contend the trial court’s actions were legally unauthorized.

Rather, they contend the court had “considerable discretion” in

resentencing Garcia after granting his section 1172.6 petition.

“[C]omplaints about the manner in which the trial court exercises

its sentencing discretion and articulates its supporting reasons

cannot be raised for the first time on appeal.” (People v. Scott

(1994) 9 Cal.4th 331, 356.)

During oral argument, the People asserted for the first time

that the trial court’s actions were legally unauthorized. We do not

consider arguments asserted for the first time at oral argument.

(See People v. Renteria (2022) 13 Cal.5th 951, 970 fn. 10.) The

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People have therefore forfeited any contentions regarding

sentencing relating to the murder of S.D.

DISPOSITION

The court’s January 20, 2022 order on Garcia’s petition for

resentencing is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION

COLLINS, ACTING P. J.

We concur:

MORI, J.

ZUKIN, J.

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