P. v. Garcia CA2/1
A jury convicted Sergio Garcia of first degree murder and found true the allegation that he had personally used “deadly and dangerous weapon(s), to wit, a knife and a large rock” when he and a codefendant killed Robert Velasquez on the night of July 29, 1990. In July 2021, Garcia filed a petition for resentencing under Penal Code section 1170.95, alleging that he could not now be convicted of first or second degree murder for Velasquez’s death and requesting appointed counsel.
As the trial court explained, the record of conviction establishes that Garcia was tried not as an accomplice, but as Velasquez’s actual killer. Although the trial court erred by not appointing counsel upon Garcia’s filing of a facially sufficient section 1170.95 petition, the record of conviction establishes that Garcia is ineligible for relief under section 1170.95 as a matter of law. The trial court’s error was harmless, and we will affirm.
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