1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JAIME B. GARCIA, ) Case No. CV 14-1319-VBF (JPR) 11 ) Petitioner, ) 12 ) ORDER ACCEPTING FINDINGS AND v. ) RECOMMENDATIONS OF U.S. 13 ) MAGISTRATE JUDGE

CHRISTIAN PFEIFFER, )

14 Warden, ) ) 15 Respondent. ) 16 The Court has reviewed the First Amended Petition, records 17 on file, and Report and Recommendation of U.S. Magistrate Judge, 18 which recommends that judgment be entered denying the FAP and 19 dismissing this action with prejudice. See 28 U.S.C. 20 § 636(b)(1). Petitioner filed objections to the R. & R. on 21 August 6, 2020; Respondent did not reply. Having reviewed de 22 novo those portions of the R. & R. to which Petitioner objects, 23 see 28 U.S.C. § 636(b)(1)(C), the Court accepts the findings and 24 recommendations of the Magistrate Judge. 25 Petitioner argues that the Magistrate Judge incorrectly 26 concluded that the state courts were not objectively unreasonable 27 in finding that any error in instructing the jury on an invalid 28 natural-and-probable-consequences theory of aider-and-abettor 1 guilt for first-degree murder was harmless beyond a reasonable 2 doubt because the prosecutor “conceded” at sentencing that it was 3 impossible to determine under which theory the jury found 4 Petitioner and his codefendants guilty of first-degree murder. 5 (Objs. at 3-4.) 6 During sentencing, the prosecutor recognized that if 7 Petitioner and his codefendants received separate sentences for 8 first-degree murder and kidnapping, that might run afoul of 9 California Penal Code section 654, which prohibits imposition of 10 multiple punishments for the same act or omission. Specifically, 11 she explained that because the jury was not asked to make any 12 special findings in reaching its verdict on first-degree murder, 13 the parties didn’t “know which of the theories or if more than 14 one theory was used as a basis for [its] verdict.” (Suppl. 15 Lodged Doc. 2, 14 Rep.’s Tr. at 3920.) Thus, the jury might have 16 convicted Petitioner and the others solely on a felony-murder 17 theory, and imposing a separate sentence for the underlying 18 kidnapping conviction would violate section 654. (See id. at 19 3920-21 (citing People v. Mulqueen, 9 Cal. App. 3d 532 (1970) 20 (holding that when defendant was convicted of first-degree murder 21 under felony-murder theory with robbery as underlying felony, he 22 was improperly sentenced for both first-degree murder and 23 robbery)).) To avoid “difficulties later on,” she asked the 24 court to stay execution of the sentence for kidnapping, which the 25 court agreed to do. (See Suppl. Lodged Doc. 2, 14 Rep.’s Tr. at 26 3921-22.) 27 28 2 1 Initially, this Court is not bound by the prosecutor’s 2 purported “concession.” Beyond that, her acknowledgment that it 3 was not absolutely certain on which of several first-degree- 4 murder theories the jury convicted was not an admission that it 5 was unclear whether Petitioner in particular was convicted under 6 a natural-and-probable-consequences theory of aiding-and-abetting 7 guilt. For all of the reasons discussed in the R. & R. — 8 including several statements made by the prosecutor during trial 9 — the record makes plain that Petitioner was not convicted under 10 that theory. (See R. & R. at 42-47.) Further, the prosecutor’s 11 section 654 argument was based on the likelihood that Petitioner 12 and the others were sentenced under a felony-murder theory with 13 kidnapping as the underlying felony, which the Magistrate Judge 14 correctly concluded was one of the two theories, both valid, most 15 likely credited by the jury. (See id. at 42-43.) Indeed, 16 Petitioner’s own attorney acknowledged that the natural-and- 17 probable-consequences theory likely did not apply to Petitioner. 18 (See id. at 44-45.) Finally, as the Magistrate Judge rightly 19 recognized, the prosecutor never “conceded she did not know who 20 the shooter was.” (Objs. at 4.) Rather, she expressly argued in 21 closing that it was Petitioner who fired the gun, and the 22 evidence supported that contention. (See R. & R. at 26-27, 45- 23 46.) Thus, no “grave doubt” exists that Petitioner was convicted 24 under a valid theory of first-degree murder. Davis v. Ayala, 576 25 U.S. 257, 268 (2015). 26 Having reviewed de novo those portions of the R. & R. to 27 which Petitioner objects, the Court agrees with and accepts the 28 findings and recommendations of the Magistrate Judge. IT 3 ] | THEREFORE IS ORDERED that judgment be entered denying the FAP and 2 || dismissing this action with prejudice. 3 : DATED: September 30, 2020 lbleie biker favedothe 6 U.S. DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28