People v. Garrison

• Decision Date: 17 December 2021
• Docket Number: B308319
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DAVID GARRISON, Defendant and Appellant.

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DAVID GARRISON, Defendant and Appellant.

B308319

California Court of Appeals, Second District, First Division

December 17, 2021

Certified for publication 1/10/22

APPEAL from an order of the Superior Court of Los Angeles County No. VA020287 Roger T. Ito, Judge.

Patricia S. Lai, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

BENDIX, J.

In 1994, Anthony David Garrison pleaded guilty to murder and admitted that he personally used a firearm. It is undisputed that the murder occurred in the course of a robbery. On appeal, Garrison challenges the trial court's denial of his Penal Code section 1170.95 resentencing petition.^[1] We affirm the trial court's order denying Garrison's resentencing petition.

We conclude the trial court properly denied Garrison's resentencing petition because the evidence at the section 1170.95, subdivision (d)(3) hearing, including Garrison's plea to personally using a firearm, supported only the conclusion that Garrison was the actual killer. Although Garrison and the People argue the trial court applied the incorrect standard of proof at the latter hearing, Garrison fails to demonstrate that the error was prejudicial, and we reject his argument that any such error was structural. Finally, we conclude, notwithstanding Garrison's argument to the contrary, substantial evidence supported the trial court's conclusion that Garrison was the actual killer. Because we conclude the trial court did not err in denying Garrison's petition, that denial did not violate his right to due process.

BACKGROUND

In his appellate briefing, Garrison describes the facts as follows "On December 11, 1993, Otto Hill and his wife Verna Hill were sleeping when they heard someone pounding on their front door. When Otto opened the door, appellant and his companion, both wearing ski masks, pushed their way inside the house, brandishing a BB gun. They were struggling with Otto when Otto told his wife to 'get the gun.' Verna grabbed a .38 caliber revolver from the drawer of the bedside table and went into the hallway. One of the two men then went into the bedroom and took the gun from Verna. The man pushed Verna and she fell to the ground. The man then left the room.

"Immediately after the man left the room, Verna heard shots fired. When Verna left the bedroom, she found her husband lying on the floor and wounded in the chest. Her husband was subsequently pronounced dead." (Citations & fn. omitted.)

The trial court found at the section 1170.95, subdivision (d)(3) hearing that Garrison and another man entered the Hills' residence on December 11, 1993. On appeal, Garrison argues substantial evidence shows that "Patrick Rowe, appellant's brother, was the actual killer, and not appellant." In contrast, the Attorney General argues the record of conviction demonstrates that Garrison was the actual killer.^[2]

1. Information

In April 1994, the People charged Garrison in count 1 with the murder of Otto Hill. The prosecution alleged robbery murder and burglary murder special circumstances (§ 190.2, subd. (a)(17)), the personal use of a handgun (§§ 12022.5 & 1203.06, subd. (a)(1)), and the personal use of a deadly weapon (a BB gun) (§ 12022, subd. (b)). Garrison also was charged with two counts of first degree residential robbery and residential burglary. The People alleged additional enhancements and prior offenses not relevant to the current appeal.

2. Preliminary hearing testimony

At the March 25, 1994 preliminary hearing, Verna Hill, and Robert B. testified for the prosecution. The parties stipulated for purposes of the preliminary hearing that Otto died of a gunshot wound to the chest.

Verna testified that on December 11, 1993, she lived in an apartment complex in Whittier. At that time, Verna was the apartment complex manager and Otto maintained the apartment complex. Verna collected the rent on December 10, 1993 and gave it to the owner. At about 3 a.m. on December 11, 1993, Verna heard very loud knocking as if someone were trying to "knock the door down." Otto opened the door and said, "What are you doing here?" Verna heard scuffling, and Otto asked her for their gun.

As Verna started to enter the living room with the gun a masked man stopped her. The masked man demanded "the money" and Verna told him she had already given the money to the owner.

The masked man grabbed the gun and pushed Verna causing her to break her arm. Verna heard Otto fighting with someone in the living room at the same time the masked man grabbed the gun from her hands. About 30 seconds later, Verna heard two shots fired in close succession. Verna testified the shots were "[r]ight together, just pow, pow."

Verna later saw a BB gun in her apartment that did not belong to her or Otto. Verna also noticed that money was missing from the apartment.

Verna knew Garrison. Verna also knew Rowe. Rowe would pay the rent for the apartment his mother occupied in the same complex Verna managed. Rowe and Verna frequently conversed when Rowe paid his mother's rent. Although Verna had never seen Garrison inside her apartment before, she did see him at around 7:30 on the night of the shooting when Garrison knocked on the door to borrow money from Otto, who then lent Garrison $10.

Verna told police officers that Rowe was the masked man who entered her bedroom. Verna thought it was Rowe based on his voice. Verna identified Rowe and Garrison as brothers. According to Verna, Rowe would have known where Verna's bedroom was; Garrison would not have known.

At the preliminary hearing, Verna testified that the man who took the gun from her was very thin. She further testified Rowe was "[n]ot too thin."

At the time of Otto's murder, Robert lived in the same apartment complex as the Hills. Just after 3:00 a.m. on December 11, 1993, two individuals approached Robert and asked him for a ride. The two individuals were Garrison and Mr. Rardin. Robert testified that he previously identified Mr. Rardin even though he did not know his name. Robert knew Garrison because Garrison's mother lived in the same apartment complex as Robert. Garrison asked Robert for a ride and Robert said "no" but later changed his mind when he saw Garrison's gun. Robert observed Garrison counting money as Robert drove Garrison to the requested location. Garrison was "almost pumped up" and the other man appeared nervous to Robert.

3. Plea and sentence

Garrison signed a form indicating he had waived his right to a jury trial and to confront witnesses against him. The form did not identify the factual basis for the plea. The trial court's minute order shows that Garrison pleaded guilty to murder and admitted the section 12022.5, subdivision (a) allegation. As noted above, the section 12022.5, subdivision (a) allegation was that Garrison personally used a handgun in the commission of the murder. The transcript of the plea hearing is not in the record and according to an affidavit from the clerk's officer, could not be produced at the time of the section 1170.95, subdivision (d)(3) hearing.

The court sentenced Garrison to 30 years to life. At the sentencing hearing, the trial court stated that Verna identified the person other than "the co-defendant" as the shooter and "by process of elimination it was you." The prosecutor corrected the court, indicating that the codefendant testified that Garrison was the gunman, but Verna did not.

4. Petition for resentencing

On March 26, 2019, Garrison filed a section 1170.95 petition for resentencing. Garrison alleged that he could not now be convicted of first or second degree murder because of changes to section 189 effective January 1, 2019. Garrison checked a box stating that he was not the actual killer.^[3]

On August 26, 2019, the People filed an opposition to Garrison's resentencing petition. Among other things, the People argued that Garrison was a major participant who acted with reckless indifference to human life. The People attached as exhibits the preliminary hearing transcript, the minute order indicating Garrison pleaded guilty to murder and admitted the section 12022.5, subdivision (a) enhancement, and the transcript of Garrison's original sentencing hearing.

The resentencing trial court appointed counsel for Garrison. Counsel filed a brief arguing that Garrison established a prima facie case of eligibility for relief. According to Garrison's counsel, Garrison "need only raise an inference that he was not a major participant who acted with reckless indifference to human life" and he met that standard.

The resentencing trial court found a prima facie case that Garrison was eligible for resentencing relief. The resentencing trial court issued an order to show cause why relief should not be granted. The People filed a supplemental brief arguing that Garrison was ineligible for resentencing because he was the actual killer.

At a subsequent hearing, no party presented additional evidence. The prosecutor again argued defendant was the actual killer and not entitled to relief under section 1170.95. The resentencing trial court responded, "[T]hat's my reading of the transcript of the plea as well." Defense counsel countered that the evidence was weak and "if there was a trial held today under this law, it's hard to see how the district attorney can show beyond a reasonable doubt that Mr. Garrison could be convicted."

The resentencing trial court concluded, "[B]oth on the preliminary hearing transcript but ultimately through the plea...