People v. Garcia CA2/7

INTRODUCTION

A jury convicted Carlos Garcia of attempted willful, deliberate, and premeditated murder, possession of a firearm by a felon, and assault with a firearm and found true related gang, firearm, and great bodily injury allegations. The trial court sentenced Garcia to an aggregate prison term of 60 years to life. We affirmed. Garcia filed a petition for writ of habeas corpus. The superior court issued an order to show cause on three of Garcia’s eight habeas claims: His appellate counsel in his direct appeal was ineffective for failing to argue (1) the evidence the People presented to prove the gang allegation violated the Confrontation Clause of the United States Constitution, (2) substantial evidence did not support the true finding on the gang allegation, and (3) Garcia was entitled to resentencing under recent legislation authorizing courts to strike firearm enhancements under Penal Code section 12022.53, subdivision (h).1 At the hearing on the petition the People moved to dismiss the gang enhancements and conceded Garcia was entitled to have the superior court exercise its discretion whether to strike the firearm enhancements. The court granted the People’s motion to…