PEOPLE v. GARCIA










Filed 2/25/09; Certified for Partial Pub. 3/11/09 (order attached)








IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----

THE PEOPLE, Plaintiff and Respondent, v. MARIO FLAVIO GARCIA, Defendant and Appellant.

C054729 (Super. Ct. No. 62055517)

STORY CONTINUE FROM PART I….


On Monday, defendant worked half the day and took the other half off. He also made a return visit to the eye doctor. He told the doctor he felt much better and the abrasions on his arms were due to poison oak. Defendant sent an e-mail to work explaining he had poison oak. That night defendant did several Google searches on the computer for the term forensics.
Tuesday defendant e-mailed a request to work remotely, claiming he had personal issues that prevented him from coming to the office. At 5:17 p.m., he went to his supervisor. She noticed welts on his forearm covered with a white lotion and that he was growing a beard. That night defendant searched the computer regarding Penal Code section 1524 on warrants.
On Wednesday defendant telecommuted to work, participating in a morning conference call. He e-mailed his supervisor explaining he had problems due to being in the wrong place at the wrong time and had retained an attorney. Defendant’s telecommuting was formally approved. He returned to the medical clinic, complaining of poison oak. That day he performed several Google searches, using the term “TOXICOLOGY + VALLEY.” He visited a Web page, for 23 seconds, which discussed rave/date drug screens. The Web page listed a number of rave/date drugs and indicated that urine was the preferred matrix for this toxicology panel.
Defendant worked at the data center on Thursday. The next day, Friday, he took a sick day, claiming he had medical problems and went to the hospital with chest pains. His supervisor sent an e-mail requesting that he return a work laptop computer. He responded by voice mail, saying he would. Defendant was arrested that day. When defendant was booked, he told the officer he had poison oak; he had gotten it on Sunday. As the officer prepared to note the date, defendant said he got it two weeks ago.
Search of Defendant’s Car
The car defendant drove to the casino October 4 was a 2004 Toyota Camry which was sold with a trunk mat and carpet. Enterprise Rent a Car had purchased the car used in January 2005; it was involved in an accident shortly thereafter. Enterprise sold the car to B. N., who repaired it and sold it to defendant in the summer of 2005. It was sold with a carpet in the trunk; the carpet was missing when the police searched the car. One of defendant’s coworkers had seen the carpet in the trunk before.
Defendant left the car with the sheriff’s department, in a secured area, the day of his interview. It was searched two days later. The car was clean and the back seat appeared to have been cleaned and vacuumed. Nonetheless, trace evidence was found implicating defendant.
A detective found a collapsible night stick inside the trunk. This weapon was the basis of defendant’s arrest for possession of a deadly weapon.
An evidence technician found a hair, identified as 1 TH, wedged in the exterior front passenger door handle. There was testimony the hair was in the catagen stage, transitioning from growing to dead, and required some force to extract from the head. DNA testing revealed the hair matched Wilson’s at 15 markers. The statistical probability of a match was 1 in 3.2 sextillion African-Americans, 1 in 720 quintillion Caucasians, and 1 in 6.2 sextillion Hispanics.
A second search of the car was performed on October 17. A human hair consistent with Wilson’s, identified as 19 TH, was found in a tape lift from the trunk area. This hair was in the anagen or active growing stage and would require force to extract from the head. The hair also had an unusual diameter variation and dramatic color change, as did the comparison hair from Wilson’s hairbrush. DNA analysis matched the hair to Wilson’s profile, a profile occurring once in every 720 quintillion Caucasians, 3.2 sextillion African-Americans, and 6.2 sextillion Hispanics.
Another human hair was found in a tape lift from the rear passenger floorboard. It fell within the standards of Wilson’s hair. Mitochondrial DNA testing could not exclude Wilson as the source. A similar profile was found in 1 of 384 African-Americans and Caucasians and 1 in 256 Hispanics. In performing the mitochondrial testing, there were two instances where the analyst’s DNA ended up in the evidence.
The car was turned over to the Department of Justice for further examination. Stains on the rear seat tested presumptively positive for blood. There were five small blood stains. After conducting an experiment, a criminalist determined the stains were consistent with a splatter and could be caused by scratching. The splatter occurred at medium to high velocity when the car door was open. It was consistent with a single event. DNA testing revealed a mixture of two people; defendant matched at 15 loci and Wilson at 8. The DNA profile of the minor contributor occurred once in every 3,200 African-Americans, 5,800 Caucasians, and 7,900 Hispanics.
DNA testing of another cutting from the rear seat was also consistent with a mixture. Defendant’s DNA profile was consistent with a major contributor, found once in 29 billion African-Americans, 300 million Caucasians, and 100 million Hispanics. Wilson could not be excluded as a minor contributor; the DNA profile occurred once in 40,000 African-Americans, 31,000 Caucasians, and 260,000 Hispanics.
A swab from the rear interior driver’s side door handle was consistent with Wilson as the major contributor and defendant as the minor contributor. The probability of a random individual being the major contributor was 1 in 280 million African-Americans, 1 in 3.6 million Caucasians, and 1 in 5.6 million Hispanics. A swab from an interior door was consistent with Wilson as the major contributor. The DNA profile occurred once in 710,000 African-Americans, 240,000 Caucasians, and 30,000 Hispanics.^[1]
Search of Defendant’s Residence
When the police searched defendant’s residence, they asked defendant about the clothes he wore to the casino. He said his wife probably took them to the cleaners. When the police asked defendant’s wife, she pointed out some clothes draped over exercise equipment in the bedroom. The last visit to the cleaners was a drop off on October 3 and a pick up on October 6.
On the kitchen table were printouts of Evidence Code sections 911 through 919, concerning privileges, and State Bar master rules and Penal Code section 1524 through 1524.4, concerning warrants. There were chips from Thunder Valley Casino in a dresser drawer.
Expert Testimony
An arborist testified there was a broken willow branch on defendant’s property. He believed it had fallen due to wind and rain. On his first trip he found no poison oak; on a second trip he found poison oak near some oak trees, but no broken branch from which one could have fallen.
Dr. Connie Mitchell, an emergency room physician, testified about defendant’s injuries and disputed that they were the result of falling from a tree. She found the injuries consistent with a struggle and scratching in close quarters. A corneal abrasion was more common in an assaultive encounter than an accident. She believed the parallel pattern of abrasions was more likely caused by fingernails than a tree branch. Defendant’s injuries were consistent with blunt force trauma and grabbing of soft tissue. He had a classic claw injury. Bruises on his arm were suggestive of a bite mark, not falling from a tree. The lack of injuries to defendant’s back and the few on his legs were more consistent with a fight than falling.
A dermatologist testified poison oak is an allergic dermatitis, characterized by red lesions with blistering. It generally appears 18 to 48 hours after exposure. If defendant was exposed Sunday, October 2, he should have had symptoms and itching by Wednesday, October 5, but the medical records from that date did not suggest poison oak. The doctor believed the abrasions on defendant’s face were not poison oak; it is not associated with bruising.
Over defense objection, Detective Don Murchison testified that based on the witnesses’ description of Wilson at the casino, Wilson exhibited symptoms consistent with consuming the date rape drug. Those symptoms were slow or slurred speech, upset stomach, diarrhea, amnesia, impaired motor skills and a sleepy appearance. The drug was usually put in a fruity drink, such as wine, to mask its taste. The videotape did not show anyone drop anything in Wilson’s drink.
The Defense
Defendant testified he did not kill, murder, rape or kidnap Wilson. He maintained he had nothing to do with her disappearance. He denied fighting with Wilson. Defendant was certain she was never in his car and he could not explain the presence of her hair or DNA in his car. It was part of his normal routine to wash his car and go to the dump. He claimed there was never a carpet or rug in his trunk and the baton was part of his son’s martial arts gear. His injuries were due to a fall from a willow tree.
William Pence was in Folsom on October 5 and saw a woman. She asked if he knew where Thunder Valley Casino was. She explained she had had too much to drink the night before and left her car in the parking lot. She was trying to get back. When he told her the casino was 20 to 30 miles away, she said she would walk. When the police showed Pence a photographic lineup, he could not identify Wilson as the woman he saw. He thought she was wearing a sundress and perhaps sandals. After he heard about Wilson’s disappearance on the radio, he saw a picture of her on the internet and was 70 to 75 percent sure she was the woman he saw.
DISCUSSION
I.
Motion to Suppress
Defendant Consented to the Seizure of his Car
Defendant contends the trial court erred in denying his motion to suppress evidence obtained from his car, a white Toyota Camry. Rather than challenging the search, which was conducted pursuant to a warrant, he challenges the initial seizure. He contends the warrantless seizure of his car was illegal because he did not consent; rather, he only submitted to the false claim of lawful authority. He further contends the police lacked probable cause to seize his car.
Defendant’s motion to suppress was based, in part, on Sergeant McDonald’s testimony at the preliminary hearing. McDonald testified that when he asked which car defendant drove to the casino, he said something to the effect that identifying the car would save the trouble of taking all of defendant’s cars. Defendant argued he consented to the taking of his car only in face of McDonald’s threat to take all his cars.
A seizure or search conducted without a warrant is presumptively unreasonable under the Fourth Amendment unless it falls within a well-defined exception. (Katz v. United States (1967) 389 U.S. 347, 357 [19 L.Ed.2d 576, 585]; People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1196.) Valid consent to seize and search an item is an exception to the warrant requirement. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [36 L.Ed.2d 854, 858]; United States v. Buckner (4th Cir. 2007) 473 F.3d 551, 554.)
“Where, as here, the prosecution relies on consent to justify a warrantless search or seizure, it bears the ‘burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.]’ [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 341.) “To ascertain if the prosecution has met its burden of establishing the consent exception to the warrant requirement, the trial court determines whether an officer’s belief that he or she had consent to search is objectively reasonable under the circumstances. [Citation.]” (People v. Lazalde (2004) 120 Cal.App.4th 858, 865.)
“[T]he question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” (Schneckloth v. Bustamonte, supra, 412 U.S. at p. 227 [36 L.Ed.2d at pp. 862-863].) “The question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, ‘The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court’s findings--whether express or implied--must be upheld if supported by substantial evidence.’ [Citations.]” (People v. James (1977) 19 Cal.3d 99, 107.)
At the hearing on the suppression motion, McDonald testified to his two contacts with defendant on October 9. At the first meeting, defendant claimed Wilson left him in the parking lot to find her cell phone, so McDonald returned to the casino to check out this story. After reviewing an hour of the tapes, security reported Wilson was not seen returning to or entering the casino. McDonald then returned to defendant’s and told him he needed a detailed statement. Defendant asked to call his friend, Pat Little, who is an attorney. Defendant called Little and they waited for him to arrive. McDonald told defendant they wanted to search his car. Defendant asked why and questioned what else the police had done to find Wilson.
In the meantime, McDonald had requested Detective Donald Pollock meet him at defendant’s. Pollock arrived while they were waiting for Little. He stayed in his car.
When Little arrived, he spoke with defendant. Little announced that defendant wanted to cooperate fully and had nothing to hide. He asked what car they wanted to search and McDonald answered the car defendant drove the night Wilson disappeared. In relation to Little confirming which car defendant drove, McDonald said it beats taking them all in. McDonald believed he had probable cause at that time to seize all of defendant’s cars. He was unsure whether his statement about taking all the cars was before or after Little verified with defendant which car he had driven. Little came forward as the spokesperson with no resistance by defendant. Little gave consent to search the car.
Little testified he was a friend of defendant. He described the conversation about the car differently. In Little’s version, McDonald was interested in taking the car defendant drove to the casino. McDonald said it was easier for defendant to give it to him, otherwise he would have to come back and take all the cars. Defendant then pointed to the Camry. Little denied he said defendant would cooperate, but admitted he said defendant had nothing to hide.
The trial court found inconsistencies and misstatements in McDonald’s testimony, but found the People met the burden of proving the seizure of the car was based on defendant’s voluntary action. The motion to suppress was denied.
The trial court decided the conflicting evidence on the issue of whether defendant consented to the seizure of his car in favor of the People. (People v. Escobedo (1973) 35 Cal.App.3d 32, 42 [conflicting evidence on consent resolved against defendant].) The court’s finding that defendant’s consent to the seizure was voluntary is supported by substantial evidence. McDonald testified that once Little arrived, defendant was willing to cooperate. Although he could not recall the exact timing or words of his remark about taking all the cars, McDonald was certain it was an off-hand remark, not a threat. Little agreed that defendant had nothing to hide and Little did not object to any actions taken by the sheriff’s department. Further, defendant went to the sheriff’s office and gave a statement. His actions were consistent with voluntary consent to seize the car.
Defendant seizes upon the court’s statement, “The court does consider that in this case, certain inconsistencies and misstatements on the part of the investigator have been demonstrated.” Defendant contends this statement indicates the trial court did not entirely accept McDonald’s testimony, nor entirely reject Little’s. Therefore, defendant asserts, the court found consent regardless of the exact nature of the exchange between McDonald and Little. Defendant contends a finding of consent cannot be upheld if the consent was given only in the face of the threat to take all of defendant’s cars. He argues McDonald’s statement was a coercive representation that he had authority to seize all of defendant’s cars. Its coercive nature was similar to the officer’s announcement, when defendant’s grandmother opened the door, that he had a search warrant in Bumper v. North Carolina (1968) 391 U.S. 543 [20 L.Ed.2d 797]. The grandmother’s reply, “Go ahead,” was found not to be consent, but the result of coercion. (Id. at p. 550 [20 L.Ed.2d at p. 803].)
We disagree with defendant’s characterization of the court’s comments. We view the court’s statements in a light most favorable to support the ruling. (People v. Jenkins (2000) 22 Cal.4th 900, 969.) The court was simply acknowledging that McDonald’s testimony had some inconsistencies as to the order of what happened and exactly what was said. Nonetheless, the court determined the facts established that defendant consented to the seizure of his car. Since we find there was voluntary consent, we need not address whether the officers had authority to seize all of defendant’s cars.
II.

It was Error to Use Defendant’s Assertion of Fourth and Fifth Amendment Rights as Evidence of Guilt, but the Error Was Harmless Beyond a Reasonable Doubt
During his interview of defendant on October 9, Sergeant McDonald asked defendant to walk him through the point where he left Wilson. Defendant asked why that was important and McDonald responded it was very important. McDonald reminded defendant they had his car and admonished defendant to tell him everything because the police were going to search his car for trace evidence. Defendant told his friend Little he needed a criminal attorney because there were too many questions and “this is going far too deep.” McDonald said he could not ask any more questions, but wanted to take a picture of defendant. Defendant refused, got up and left the interview.
The prosecution used this evidence as consciousness of guilt. In closing argument, the prosecutor focused on the interview and argued defendant was suppressing evidence. The prosecutor argued defendant buttoned up his shirt at the beginning of the interview; “what is he covering up‌” The argument continued: “Holding his hands in front of the camera. Is this cooperation‌ If he had nothing to hide, why not just let him take some pictures‌ And then he leaves. Are these the actions of an innocent man‌”
Defendant contends the trial court erred in admitting into evidence his refusal to permit Sergeant McDonald to take his picture and his leaving the interview room. This evidence came in through McDonald’s testimony, a redacted videotape of the interview, and several stills from the videotape showing defendant putting his hands out to block the taking of a picture.
Defendant contends the admission of this evidence violated both his Fourth and Fifth Amendment rights. He contends his refusal to be photographed was an assertion of his Fourth Amendment right not to be seized or detained for the picture taking. Defendant contends that although he was not in custody, and thus had no rights under Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] (Miranda), the context makes clear he was relying on his Fifth Amendment rights in terminating the interview. Recognizing that his trial counsel objected only on Fifth Amendment grounds, he contends he has not forfeited the Fourth Amendment contention. He notes the prosecution initially framed the issue in terms of the Fifth and Sixth Amendment, and contends the defense simply followed the prosecution’s lead. He asserts the issue is the same whether raised under the Fourth, Fifth or Sixth Amendments -- whether a defendant’s assertion of rights can be used against him. Finally, if this court finds forfeiture due to failure to raise the contention expressly in the trial court, defendant contends he was denied effective assistance of counsel. Defendant argues this evidence of consciousness of guilt played an important role in the circumstantial evidence case, so its erroneous admission was not harmless.

TO BE CONTINUED AS PART III….

Publication courtesy of California pro bono lawyer directory.
Analysis and review provided by Chula Vista Property line attorney.
San Diego Case Information provided by www.fearnotlaw.com

---