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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