P. v. Garcia

Filed 10/17/07 P. v. Garcia CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Philip S. Gutierrez, Judge. Affirmed.

Diane E. Berley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Defendant David Garcia appeals from a judgment entered after a jury found him guilty of attempted, willful, deliberate, premeditated murder (Pen. Code, 664/187, subd. (a))[1]and assault with a deadly weapon. ( 245, subd. (a)(1).)

The jury found true the allegations that defendant personally used a deadly and dangerous weapon within the meaning of section 12022, subdivision (b)(1); that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a); and that defendant committed those offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote criminal conduct within the meaning of section 186.22, subdivision (b)(1). The trial court found true the allegation that defendant had suffered a prior conviction of a serious or violent felony pursuant to sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d).

CONTENTIONS

Defendant contends that the trial court deprived him of his federal constitutional right against self-incrimination and erred in admitting evidence pursuant to Evidence Code section 352.

FACTS AND PROCEDURAL HISTORY

On April 28, 2006, at 6:15 p.m., Martin Serna (Serna), who was in his late 30s, was riding his bicycle in Baldwin Park. A gray or brown Nissan cut in front of him as he tried to turn right. Serna got off his bike. Defendant, whom Serna had seen two or three times before, got out of the car holding a knife. When defendant asked Whats up?, Serna replied Nothing, and defendant came at him with the knife. Serna threw his bike at defendant to defend himself and ran across the street. Serna tripped on his shoelace, fell down, and defendant stabbed him six times in the rib area. After he stabbed Serna the last time, defendant said My neighborhood is Northside Bolen, and returned to his car. Serna got up, moved the bike out of the middle of the street, and began walking, even though it was difficult for him to breathe.

Isalia Farias (Farias) witnessed defendants attack on Serna, which was consistent with Sernas account. Farias called 911, and an audiotape of her call was later played to the jury. Teresa Fonseca (Fonseca) was driving home when she saw a car blocking traffic, and a bike in the street. She saw a thug-like Hispanic male with a smirk on his face get into the car, and drive off quickly. She saw Serna walking with bloody stab wounds in his back but he refused her offer of help.

Baldwin Park Police officers found Serna, who described his attacker as Hispanic, male, and with a shaved head. He also told them that defendant had yelled out Northside Bolen. Serna was transported by ambulance and airlifted to a hospital, where he underwent emergency surgery. Serna later identified defendant from a six-pack photo lineup, at the preliminary hearing, and at trial.

Officer Frank Segura and his partner went to a known Northside Bolen gang house where they saw defendant standing near a car. Defendant walked away from the officers, and continued walking after Officer Segura ordered him to stop. Officer Segura noticed that defendant had fresh blood on his forehead.

Defendant was apprehended and Farias identified him 45 minutes after the stabbing as the man who stabbed Serna. Officer Enrique Rodriguez drove defendant to the Baldwin Park Police Department and noticed that defendant had a bleeding laceration on his thumb. During the ride, defendant asked Officer Rodriguez, How is that guy? Officer Rodriguez asked him what he meant, and defendant replied The guy I fought on Clark. Officer Rodriguez asked defendant to clarify what he was talking about, and defendant said I just wanted his bike. When Officer Rodriguez removed defendant from the patrol car and took the bike out of the trunk, defendant snickered and said Thats his bike . . . can I have it?

Officer Segura was present with two other officers at the hospital where defendant was taken for treatment. Defendant looked at Officer Segura and said You are the one that shot Enano. Defendant stated that he had a lot of love and respect for Enano, and that he and the whole neighborhood were proud of Enano because he went out like a hero. He also stated that Enano had told some of the older homeboys that he knew the police were on to him, and that he was going to go out shooting. In the holding area, defendant said to two other Northside Bolen gang members, They caught me, fool. Im fucked. Fuck it, eh. The other gang members greeted him, shook hands, and laughed.

Police Officer Mark Adams worked in the gang activity prevention department for four and a half years. Northside Bolens territory in Baldwin Park includes the area where defendant stabbed Serna, as well as the residence where defendant was apprehended. Northside Bolen has more than 300 members who use common hand signals and have common tattoos. Northside Bolens activities include vandalism, narcotics sales, weapons sales, violent crimes against citizens and rival gang members, witness intimidation, kidnapping, extortion, and murder. Two other Northside Bolen members were convicted of assault with a deadly weapon and murder, and gang allegations against both of them were found to be true. Officer Adams opined that defendant was a member of Northside Bolen and that he committed the crimes for the benefit of the gang.

DISCUSSION

I. The trial court did not err in admitting defendants statements regarding Enano

1. The statement was not obtained in violation of defendants rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)

Defendant asserts that the trial court erred in denying his motion to suppress defendants statements regarding Enano because the statement was taken in violation of his right against self-incrimination. We disagree.

If a person is questioned by the police while in custody, he or she must be warned that he or she has the right to remain silent, that any statement may be used as evidence against him or her, and that he or she has the right to an attorney. (Miranda, supra, 384 U.S. at p. 444.) The trial court must suppress any statement given during an interrogation without a knowing or intelligent waiver of those rights. (Ibid.) The appellate court independently determines whether, from the facts as found by the trial court, the challenged statement was illegally obtained. (People v. Whitson (1998) 17 Cal.4th 229, 248.) But, the appellate court accepts the trial courts resolution of disputed facts and inferences supported by substantial evidence, especially credibility. (Ibid.) The term interrogation refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response. (Rhode Island v. Innis (1980) 446 U.S. 291, 301.) But, statements given freely and voluntarily, without compelling influences, are admissible in evidence. (Miranda, supra, at p. 478.)

Defendant claims that the statements he made regarding Enano while at the hospital were not spontaneous pursuant to Evidence Code section 1240, because he was not under stress or excitement. He asserts they were not voluntary because he was in a hospital bed, and not free to leave. He urges that the officers should have Mirandized him before he said anything incriminating.

Our review of the transcript of the Evidence Code section 402 hearing leads us to conclude that defendants statements were voluntary and made without being questioned or prodded by the officers, verbally or physically. The evidence shows that defendant looked at Officer Segura, and stated Youre the one that shot Enano, right? Officer Segura did not respond to defendants question and defendant continued on to express his admiration and love for Enano. None of the three officers present, by word or action, elicited incriminating responses. Rather, the statements by defendant were voluntary and admissible, and were made while he was in a jovial mood. We conclude that the trial court did not err in admitting them.

2. The trial court did not abuse its discretion in admitting the evidence

Defendant complains that his statement about Enano should not have been admitted pursuant to Evidence Code section 352 because its prejudicial effect outweighed its probative value. We disagree.

To preserve a claim that a trial court abused its discretion in not excluding evidence under Evidence Code section 352, a party must make a timely and specific objection when the evidence is offered. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1014-1015.) Defendant did not object and has waived that claim on appeal. Nevertheless, we conclude that the trial court did not abuse its discretion in admitting the evidence.

Pursuant to Evidence Code section 352, the trial court has the discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

The challenged evidence was probative that defendant committed the charged offenses for the benefit of a criminal street gang, which was an allegation pled by the People. Thus, defendants statements showed his respect and devotion to members of the Northside Bolen gang. That he made the statements immediately after being apprehended for crimes committed against Serna, while in a jovial mood, tends to show that he committed those crimes for the benefit of the gang. Nor was the probative value of the evidence outweighed by any prejudice invoked by the portrayal of defendant as a hard-core gang member with an attitude, as defendant claims. Rather, the statements were not extremely inflammatory such that the admission of the evidence would have been an arbitrary or capricious act or exceeded the bounds of reason. (People v.Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v.Funes (1994) 23 Cal.App.4th 1506, 1519.)

Even if the trial court had erred in admitting the evidence, any error was harmless beyond a reasonable doubt. (Chapmanv. California (1967) 386 U.S. 18, 24.) The evidence was overwhelming that defendant stabbed Serna and that he committed the offense for the benefit of a gang. He was identified by Serna and Farias as the assailant. He declared to Serna that he belonged to Northside Bolen. When he was transported to the station he made incriminating statements that he fought Serna for his bike.

The trial court did not abuse its discretion in admitting the challenged statements.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, J.

ASHMANN-GERST

We concur:

__________________, P. J.

BOREN

__________________, J.

CHAVEZ

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