People v. Garnica

1

THE PEOPLE, Plaintiff and Respondent, v. RUBEN GARNICA, Defendant and Appellant.

F084907

California Court of Appeals, Fifth District

April 17, 2023

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Fresno County No CF78236946. Timothy A. Kams, Judge.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

INTRODUCTION

In 1979, appellant and defendant Ruben Garnica (appellant) was convicted of first degree murder and sentenced to life in prison with the possibility of parole. In People v Garnica (1981) 121 Cal.App.3d 727 (Garnica) this court ordered correction of his custody credits and otherwise affirmed his conviction and sentence on direct appeal.

In 2021, appellant filed a petition for resentencing pursuant to former Penal Code section 1170.95^[1] and asserted he was entitled to relief because he was convicted based on the felony-murder rule and/or the natural and probable consequences doctrine. The prosecution filed opposition supported by the jury instructions given at appellant's trial, and argued he was convicted based on malice and his intent to kill. The trial court denied the petition.

Prior to the decision in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), appellate counsel filed a brief which summarized the facts and procedural history with citations to the record, raised no issues, and asked this court to independently review the record. (People v Wende (1979) 25 Cal.3d 436.) Appellant did not file a supplemental brief on his own behalf. We affirm.

FACTS^[2]

"In 1977 appellant was a lieutenant in the Nuestra Familia, a prison gang which was originally organized to provide security to Mexican-American prisoners but which expanded into various forms of criminal activity outside prison.

"Appellant's affiliation with Nuestra Familia and high rank in that organization were confirmed by Art Beltran, a former member of the family who had at one time occupied the number three position in the entire organization. Beltran gave the following testimony about Nuestra Familia. It is organized along military lines and its soldiers are promoted to higher rank on the basis of their service to the organization. Beltran said the Nuestra Familia maintained several 'hit lists' containing names of the individuals considered enemies. Some of the groups considered inimical to the Nuestra Familia are the Mexican Mafia, the Aryan Brotherhood and the United White People's Party. Every lieutenant in Nuestra Familia was responsible for '[seeing] to it that something was done about the people on the list.' The higher-ups schooled their subordinates as to the identity of the gang's enemies and a lieutenant could, on his own initiative, order his soldiers to execute a known enemy of the Nuestra Familia.

"Guadalupe Ramirez testified he was a member of Nuestra Familia and appellant was his superior in that organization. In March 1977, Ramirez and appellant were together in a store when a minor confrontation occurred with a man named Robert Fuller. Fuller gave appellant and Ramirez some 'hard looks.' Ramirez and appellant suspected that Fuller was a member of one of their rival gangs - the Aryan Brotherhood; appellant said he would check on it. The next thing Ramirez heard on this subject was when appellant told him to go find Fuller and to kill him. Appellant provided Ramirez with a revolver and an assistant, Carlos Gonzalez. Ramirez and Gonzalez went looking for Fuller; when they found him at about 9 p.m. on the evening of March 24, 1977, Ramirez shot Fuller to death. Ramirez then reported to appellant what he had accomplished and the two men watched the T.V. news to learn that Fuller was indeed dead.

"Marla Klemmer testified that she had worked for appellant selling heroin and collecting money from prostitutes. She was also Ramirez's girlfriend. She was with appellant and Ramirez when the minor confrontation with Fuller occurred in the store. After that confrontation, appellant's group returned to appellant's house. Ms. Klemmer overheard appellant tell Ramirez that Fuller was an Aryan Brother and that Ramirez was going to have to 'hit' him. Later Ms. Klemmer heard appellant congratulate Ramirez on the good job he had done." (Garnica, supra, 121 Cal.App.3d at pp. 730-731, fn. omitted.)

PROCEDURAL BACKGROUND

On December 26, 1978, an information was filed in the Superior Court of Fresno County that charged appellant with the murder of Fuller (§ 187) and alleged a prior prison term enhancement (§ 667.5, subd. (b)).

Trial and Instructions

In or about April 1979, appellant's jury trial began.

The jury was instructed on first and second degree murder, express and implied malice; and conspiracy to commit murder. It was not instructed on any other felony offenses. The jury was instructed on principals and aiding and abetting; the pattern instruction included language about natural and probable consequences, but this language was crossed out by interlineation.

The jury was not instructed on the felony-murder rule or any theory of imputed malice. A felony-murder instruction was requested, and it was marked as withdrawn. Verdict and Sentence

On April 17, 1979, appellant was convicted of first degree murder. Appellant admitted the prior prison term allegation.

On May 15, 1979, the trial court sentenced appellant to life in prison with the possibility of parole.

Direct Appeal

In 1981, this court affirmed appellant's conviction in his direct appeal. (Garnica, supra, 121 Cal.App.3d 727.) This court rejected his argument that the trial court should have suppressed Ms. Klemmer's testimony under People v. Hitch (1974) 12 Cal.3d 641, based on the failure of police to preserve a tape recording of the first interview with her. We also rejected appellant's argument that the trial court erroneously admitted evidence of the uncharged offense of attempted murder, and the claim that the prosecutor committed prejudicial error in closing argument by commenting on appellant's failure to testify in violation of Griffin v. California (1965) 380 U.S. 609. We ordered recalculation of his credits and otherwise affirmed. (Garnica, supra, 121 Cal.App.3d at p. 730.)

Parole Hearing

On March 3, 2016, appellant appeared before the Board of Parole hearings, and testified under oath that he had been a "supervisor" in Nuestra Familia, he gave the order to kill Fuller, he "[o]rdered the hit - ordered the killing" because Fuller was a member of the Aryan Brotherhood and an enemy of Nuestra Familia, Ramirez was also a member of Nuestra Familia, and Ramirez committed the murder. (CT 68, 73, 76-82)

APPELLANT'S PETITION

On June 14, 2021, appellant filed, in pro. per., a petition in the trial court for resentencing of his first degree murder conviction pursuant to former section 1170.95, and requested appointment of counsel.

Appellant's supporting declaration consisted of a preprinted form where he checked boxes that stated (1) he was eligible for resentencing because a complaint, information, or indictment was filed that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine (2) at trial, he was convicted of first or second degree murder pursuant to the felonymurder rule or the natural and probable consequences doctrine; (3) he could not be convicted of first or second degree murder because of changes made to section 188 and 189, effective January 1, 2019; and (4) he could not be convicted of first degree murder because of the changes made to section 189 because he was not the actual killer; he did not, with the intent to kill, act, abet, counsel, command, induce, solicit, request, or assist the actual killer in the commission of first degree murder; he was not a major participant in the felony or did not act with reckless indifference to human life during the course of the crime or felony; and the victim was not a peace officer.

The People's Opposition

On July 21, 2021, the district attorney filed opposition and asserted appellant was not convicted under the felony-murder rule or the natural and probable consequences doctrine, and he was the principal who acted with malice aforethought.

In support of the opposition, the district attorney filed this court's published opinion that affirmed appellant's conviction, a transcript of his 2016 parole hearing, and the jury instructions that were given at his trial, and those that were withdrawn or refused.

Appointment of Counsel and Further Briefing

On April 11, 2022, the court appointed counsel to represent appellant in the petition.

On May 9, 2022, appellant filed, in pro. per., a reply to the opposition, and restated the issues rejected in his direct appeal. Appellant also argued he was factually innocent, the trial court was biased in favor of the prosecution, the court drafted the instructions to ensure his conviction in violation of due process, and he was eligible for resentencing because he was improperly convicted as an aider and abettor.

On May 20, 2022, the court appointed another attorney to represent appellant because of a conflict.

On August 4, 2022, appellant's counsel filed a hearing brief, and argued the court could not consider the opinion that affirmed appellant's conviction in his direct appeal, or appellant's statements at the parole board hearing, and the petition stated a prima facie case for relief.

The Court's Hearing on the Petition

On August 22, 2022, the court held a hearing on the petition. The district attorney argued appellant failed to make a prima facie case for relief because he was convicted of...