People v. Garcia-Santos CA5

INTRODUCTION

In April 2011, Emmanuel Toscano shot and killed Gerardo Villapudua, Jr. (the victim), a 16-year-old high school student, in Bakersfield. Defendant Fernando Garcia- Santos, Toscano, Hilario Aguero, and Gabriel Gonzales were tried together before a jury and convicted of first degree premeditated murder, with robbery and gang special circumstance findings, and other charges. The trial court sentenced defendant to a term of life in prison without the possibility of parole for murder. In October 2022, defendant filed a petition for resentencing pursuant to Penal Code1 former section 1170.95 (now § 1172.6).2 The superior court dismissed the petition at the prima facie stage, without an evidentiary hearing, after it accepted the parties’ stipulation that defendant did not qualify for relief because the jury’s true finding as to the gang special circumstance established that defendant intended to kill. Defendant argues that he was deprived of effective assistance of counsel by his counsel’s stipulation that he was not eligible for resentencing pursuant to section 1172.6. While this appeal was pending, our Supreme Court determined that a gang special circumstance is…