People v. Garza CA4/2

Opinion

Filed 1/16/24 P. v. Garza CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E082166

v. (Super.Ct.No. INF1601917)

ANTHONY GARZA, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Dean Benjamini, Judge.

Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and

Appellant.

No appearance for Plaintiff and Respondent.

A jury found defendant and appellant Anthony Garza guilty of second degree

murder (Pen. Code, § 187, subd. (a), count 1)1 and found true an allegation that he

1 All further statutory references are to the Penal Code unless otherwise indicated.

1 discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)).2 The

trial court sentenced him to 15 years to life, plus 25 years for the firearm enhancement.

(Garza, supra, E077734.)

On appeal from the judgment, we remanded the matter for resentencing for the

court to consider whether to impose a lesser, uncharged firearm enhancement in lieu of

the charged allegation. (Garza, supra, E077734.) On remand, the court declined to do

so.

After defendant filed a notice of appeal, this court appointed counsel to represent

defendant. Counsel has filed a brief under the authority of People v. Wende (1979) 25

Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of

facts, a statement of the case, and requesting that we independently review the record.

Defendant was offered the opportunity to file a personal supplemental brief, which he has

not done. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

After smoking methamphetamine and drinking alcohol in the garage in which

defendant was staying, defendant and the victim became embroiled in a verbal and

physical altercation. Defendant then shot the victim in the forehead. Defendant and an

associate wrapped the victim’s body in a blanket and moved it to the alley behind the

2 We take judicial notice of our prior opinion in defendant’s appeal from the judgment. (People v. Garza (Jan. 10, 2023, E077734) [nonpub. opn.]; Evid. Code, §§ 452, 459.) 2 home’s backyard. The body was discovered at least a day later. (Garza, supra,

E077734.)

Defendant requested the court strike his firearm enhancement. At sentencing, the

trial court stated: “In this particular case, I cannot fathom how it would be in the interest

of justice to strike that particular gun allegation. The killing was done in a cruel manner.

It was done in a vicious manner. It was done in a senseless manner. It was done

callously. The treatment of the decedent afterwards was as equally cruel, vicious, and

callous, simply dragging someone out and leaving them in the desert, as [the victim’s]

family so bluntly put it, like an animal. [¶] Most people wouldn’t even treat their pets

that way. And if their pet died, they would make sure they had a proper burial and not

just thrown out and dragged out and left to rot in the desert. [¶] [Defendant’s] actions

demonstrate someone who has absolutely no regard whatsoever for humanity, no regard

for anyone else. And someone who is not meritorious of the Court exercising its

discretion under 1385 to strike that allegation. So, therefore, the request to strike the

allegation is denied at this time.” (Garza, supra, E077734.)

On appeal from the judgment, defendant contended resentencing was required

because the court was unaware of its discretion to impose a lesser, uncharged firearm

enhancement. We noted that at the time of defendant’s sentencing, the California

Supreme Court had not yet issued its decision in People v. Tirado (2022) 12 Cal.5th 688,

which held that subdivision (h) of section 12022.53 authorizes trial courts to strike a

greater, charged section 12022.53 enhancement and impose a lesser, uncharged section

12022.53 enhancement. Thus, we held that the matter should be remanded for

3 resentencing for the trial court to consider all sentencing options under section 12022.53.

On remand, the court stated: “The comments which I made at the time of

sentencing regarding the cruel, callous, vicious nature of the attack do not change,

obviously. There’s nothing to change those. The facts have not changed as to what

happened at the underlying offense, and I stand by those statements as they were stated at

the original sentencing, and I’m incorporating all my comments that I made at the

original sentencing . . . .” The court declined to exercise its discretion to impose a lesser

enhancement.

II. DISCUSSION

Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have

independently reviewed the record for potential error and find no arguable issues.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER J. We concur:

RAMIREZ P. J.

CODRINGTON J. 4