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 III….
Defendant has failed to show an abuse of discretion in admitting exhibit 288. He does not contend that exhibit 288 incorrectly summarized the testimony given at trial. Indeed, he does not dispute any fact shown on the exhibit. Rather, his complaint is that the exhibit is one-sided, summarizing only evidence favorable to the People’s case. Nothing in the record, however, indicates defendant was precluded from preparing his own exhibit summarizing, in a timeline, testimony favorable to the defense.
Defendant concedes such a summarizing exhibit may be appropriate in a case involving voluminous documentary evidence, but asserts it is not necessary in this case where witnesses testified only as to everyday types of events. We note, however, the case was long and complex; trial lasted nearly two months and there were almost 100 witnesses. The specific timing of the events testified to was important. The trial court did not abuse its discretion in admitting exhibit 288.
VII.
There Was No Cumulative Evidentiary Error
Defendant contends the cumulative effect of the evidentiary errors warrants reversal because the prosecution needed all the circumstantial evidence to convict defendant. Further, he contends their combined effect violated due process.
We have found only one evidentiary error: using defendant’s invocation of the Fourth and Fifth Amendment rights to show guilt. As discussed above, this error was harmless beyond a reasonable doubt in light of the overwhelming other evidence showing consciousness of guilt. We find no cumulative evidentiary error.
VIII.
CALCRIM No. 220 Was a Proper Instruction
Defendant contends Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM No. 220, which defines reasonable doubt, is an incorrect statement of law, or one that is likely to be applied in an unconstitutional manner.^[1] Defendant contends the instruction is defective because it fails to give proper emphasis to a juror’s individual subjectivity in the reasonable doubt standard, aggravates the ambiguity of the phrase “abiding conviction,” and fails to convey that proof beyond a reasonable doubt requires a subjective certitude of the truth of the charge.
This court recently rejected the same contention in People v. Zepeda (2008) 167 Cal.App.4th 25, 29-32. Indeed, we found, “Defendant’s argument borders on the frivolous.” (Id. at p. 30.) Nothing in defendant’s argument causes us to reconsider the issue.
IX.
The Evidence Supported Giving CALCRIM No. 361
The People requested the court give CALCRIM No. 361 on defendant’s failure to explain or deny incriminating evidence based on defendant’s failure to explain the forensic evidence found in his car and his failure to explain the absence of his injuries on October 4. The defense opposed giving the instruction, arguing defendant did explain his injuries and he was not required to explain all the forensic evidence. When asked about this evidence, defendant testified he did not know how it got in his car. The court found it was within the possible range of evidence for defendant to explain the forensic evidence in his car. The court agreed to the defense suggestion to modify the instruction by adding “If the jury finds” at the beginning.
The court instructed the jury: “If the jury finds that the defendant failed in his testimony to explain or deny evidence against him and if the jury finds he could reasonably be expected to have done so based on what he knew, you may consider his failure to explain or deny in evaluating the evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
In order to give the instruction, the trial court must determine if (1) a question was asked that called for an answer explaining or denying incriminating evidence; (2) defendant knew the facts necessary to answer the question; and (3) in answering, defendant failed to explain or deny the incriminating evidence. (People v. Saddler (1979) 24 Cal.3d 671, 682-683; People v. Marsh (1985) 175 Cal.App.3d 987, 999.)
Defendant contends the trial court erred in giving this instruction. He argues the instruction is improper with respect to Wilson’s hair in his car for three reasons. First, he contends, the instruction is inappropriate when the inference of guilt it permits is not within the potential range of evidence in support of the defense case. “[I]f the defendant does not answer such a question because of some fact which precludes his knowledge of it (like an alibi which removes him from the scene), a denial of guilt is deemed to have been made. [Citation.]” (People v. Mask (1986) 188 Cal.App.3d 450, 455.) Defendant contends that since he denied Wilson was ever in his car, he need not explain or deny the presence of her hair in his car. As the trial court found, defendant’s denial that Wilson was in his car does not preclude his knowing how her hair got in the handle or the trunk, particularly since he admitted he was with her that night and they walked towards his car. Under defendant’s theory, the instruction could never be given if a defendant denied the crime because the inference drawn from the incriminating evidence would always be outside the range of evidence in support of the defense case.
Second, defendant argues he is not required to explain “the highly technical and arcane methods used for DNA analysis.” That may be, but he could still offer an explanation for the presence of the hair.
Third, defendant asserts he was never asked why Wilson’s hair was on or in his car. Defendant is mistaken. The prosecutor asked, “How do you explain her hair in your door handle‌” Defendant replied, “Don’t know. I cannot give you that answer. You tell me.” Later in cross-examination he was asked: “Do you have any explanation for us why what’s identified as being a hair matching a full profile of Christie Wilson[,] why that hair was in the trunk of your vehicle‌” Defendant said, “Don’t know sir.”
The trial court did not err in instructing with CALCRIM No. 361.
X.
No Evidence Supported an Instruction on Third Party Culpability
Defendant contends the trial court erred in denying his request for an instruction on third party culpability.^[2] He contends there was substantial evidence implicating Burlando, Wilson’s boyfriend, sufficient to raise a reasonable doubt as to defendant’s guilt.
Upon proper request, a defendant has a right to an instruction pinpointing his defense of third party culpability when there is sufficient evidence linking any particular third person to the actual perpetration of the crime. (People v. Kegler (1987) 197 Cal.App.3d 72, 80.) The test for sufficient evidence of third party culpability is set forth in People v. Hall (1986) 41 Cal.3d 826, 833: “To be admissible, the third-party evidence need not show ‘substantial proof of a probability’ that the third person committed the act; it need only be capable of raising a reasonable doubt of defendant’s guilt. At the same time, we do not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. As this court observed in [People v.] Mendez [(1924) 193 Cal. 39], evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Accord, People v. Cunningham (2001) 25 Cal.4th 926, 996; People v. Bradford (1997) 15 Cal.4th 1229, 1325 [Evidence of the culpability of a third party must link the third person either directly or circumstantially to the actual perpetration of the crime].)
In this case there was no direct or circumstantial evidence linking Burlando to the crime. There was no evidence he was at Thunder Valley Casino the night Wilson disappeared. There was no forensic evidence linking him to her disappearance. Burlando had no injuries after that night and no erratic behavior; instead, he reported Wilson as missing and cooperated fully in the police investigation.
Defendant admits the evidence linking Burlando to the crime is evidence of only motive and opportunity. Burlando and Wilson had a tumultuous relationship, punctuated by violence. They had both cheated on the other. Burlando had previously hidden from Wilson at the casino, so she would not know he was there. He had no alibi after 11:00 p.m. on October 4. He failed to contact the police until the 6th, and refused an offer from friends to go to the casino to look for Wilson the night of the 5th. There was also a dispute about when and how often he called her the night she disappeared. Burlando had a stun gun in his car.
Defendant argues, however, this evidence is not “mere motive and opportunity,” such that it is insufficient to raise a reasonable doubt. (People v. Hall, supra, 41 Cal.3d at p. 833.) He argues the strong evidence of motive and opportunity was sufficient to provide a direct link between Burlando and the crime. He contends this sort of motive and opportunity evidence was found sufficient in People v. Martinez (2002) 103 Cal.App.4th 1071, 1082.
In Martinez, defendant, who worked in a criminal defense attorney’s office, was convicted of embezzling money a client provided for bail. (People v. Martinez, supra, 103 Cal.App.4th at pp. 1074-1075.) On appeal, he contended the prosecution withheld material evidence: pending criminal charges against the office manager. The Attorney General countered such evidence would not have raised a reasonable doubt as to defendant’s guilt. (Id. at p. 1082.) The appellate court disagreed, agreeing with defendant that impeaching the office manager with such evidence would have shifted the tenor of the trial and made the office manager a more plausible suspect. Defendant claimed the office manager had told him to secrete the money in a cabinet, the money was not reported missing until the office manager returned from vacation, and there was testimony from others concerning money problems in dealing with the office manager. (Ibid.)
We find Martinez distinguishable. While the evidence against the office manager went to motive and opportunity to commit the embezzlement, the evidence also tied him directly to the missing money, as he allegedly gave the instructions on what to do with it and it was missing only after he returned. That link is missing here; there is no evidence tying Burlando to Wilson’s disappearance.
XI.
There Was No Cumulative Instructional Error
Defendant contends the combined effect of the instructional errors was prejudicial under any standard of review. Since we find no error in the instructions, we reject this contention.
XII.
There Was Sufficient Evidence of First Degree Murder
Defendant contends there is insufficient evidence of first degree murder.^[3] He contends there is no evidence to establish either premeditation and deliberation or a kidnapping and a conviction cannot be based on speculation and conjecture.
The jury was instructed on two theories of first degree murder: premeditation and deliberation and felony murder based on kidnapping. While the prosecutor mentioned both in closing argument, he submitted that felony murder was the stronger theory. We thus first consider if there is substantial evidence of felony murder predicated on kidnapping.
“In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt.” (People v. Mincey (1992) 2 Cal.4th 408, 432.)
“Substantial evidence is ‘“evidence which is reasonable, credible, and of solid value.”’ [Citation.] Although ‘mere speculation cannot support a conviction’ [citation], the trier of fact is entitled to draw reasonable inferences from the evidence and we will ‘“‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’”’ [Citations.]” (People v. Bohana (2000) 84 Cal.App.4th 360, 368.)
The standard of review remains the same in a case based upon circumstantial evidence. (People v. Proctor (1992) 4 Cal.4th 499, 528-529.) We must decide whether the circumstances reasonably justify the jury’s findings, but “our opinion that the circumstances also might reasonably be reconciled with a contrary finding would not warrant reversal of the judgment. [Citation.]” (Id. at p. 529.)
A killing committed in the perpetration of certain felonies, including kidnapping, is first degree murder under the felony-murder rule. (Pen. Code, § 189; People v. Seaton (2001) 26 Cal.4th 598, 664.) The People did not charge defendant with kidnapping, but such a charge is not necessary for a prosecutor relying on the felony-murder rule, so long as the elements of that offense are proved. (People v. Scott (1991) 229 Cal.App.3d 707, 716.) “Generally, to prove the crime of kidnapping, the prosecution must prove three elements: (1) a person was unlawfully moved by the use of physical force or fear; (2) the movement was without the person’s consent; and (3) the movement of the person was for a substantial distance. (§ 207, subd. (a).)” (People v. Jones (2003) 108 Cal.App.4th 455, 462, fn. omitted.)
Defendant contends there is no evidence of a kidnapping in the parking lot because there is no evidence of movement by force or fear and without consent. The videotape of defendant and Wilson leaving the casino does not show any force or struggle. No altercation was reported in the parking lot at the time defendant and Wilson left the casino. Defendant argues that even if the presence of Wilson’s DNA and hair in the car indicates she was in his car, there is still no evidence of force. Defendant contends her absence from the video when the car left could have meant she was lying down as a result of her intoxication.
We find sufficient evidence of kidnapping. The evidence indicated defendant wanted to leave the casino with Wilson. He flirted with her, bought her drinks, lent her money, listened sympathetically to her problems and offered to help. He tried several times unsuccessfully to get her to leave. When she was ready to leave, or about to be ejected, he left with her without cashing in his chips.
The surveillance videotape shows defendant and Wilson leaving; there is ample time for defendant to subdue her before the car leaves the parking lot. As they leave the casino, defendant takes Wilson’s arm and steers her towards his car; she pulls away. Walking into the parking lot, defendant puts his arm around Wilson and she again moves away. There are several flashes, indicating the car doors are unlocked, but there is a gap of over three minutes until the car lights are turned on and the car leaves. That defendant forced Wilson into the car during this time period is corroborated by her hair found wedged in the passenger exterior door handle. It required force to dislodge the hair from her head and force to embed it in the exterior door handle. Wilson is not visible in the car when it leaves the parking lot, indicating she is not likely a willing or conscious passenger. Since the videotape does not indicate she is so drunk that she staggers, it is unlikely she is simply lying down on her own. As such, she is an improbable companion looking forward to further evening activities with defendant.
Wilson was never seen again. Her car remained in the casino parking lot. Defendant’s injuries and the DNA and blood in the car indicate there was a violent struggle later with the door open. Wilson, a kick boxer taught to defend herself by her stepfather, fought defendant off to no avail. During the fight defendant killed Wilson. He then disposed of her body in an unknown location. There is sufficient evidence of felony murder predicated on kidnapping.
Defendant contends that even if there is sufficient evidence of felony murder, the first degree murder conviction must be reversed because there is insufficient evidence of deliberate and premeditated murder. Relying on People v. Guiton (1993) 4 Cal.4th 1116, defendant asserts that because the general jury verdict makes it impossible to determine on which theory the jury relied, the conviction must be reversed. We need not determine if there is sufficient evidence of deliberate and premeditated murder because defendant misreads Guiton. Where the prosecution presents the jury with both a factually sufficient and a factually insufficient ground for conviction, and it cannot be determined on which ground the jury relied, we affirm the conviction unless there is an affirmative indication that the jury relied on the invalid ground. (People v. Guiton, supra, at pp. 1128–1129.) Here there is no indication the jury relied on deliberate and premeditated murder. Since the prosecutor argued the evidence “is strongest on this theory” of felony murder, it is likely the jury based its decision on felony murder, for which the evidence is ample.
Because we find sufficient evidence to support a first degree murder conviction, we need not address defendant’s remaining contentions regarding the proper degree of homicide.
DISPOSITION
The judgment is affirmed.


CANTIL-SAKAUYE , J.


We concur:


BLEASE , Acting P. J.


ROBIE , J.

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

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) ORDER CERTIFYING OPINION FOR PARTIAL PUBLICATION AND DENYING REHEARING

APPEAL from a judgment of the Superior Court of Placer County, Larry D. Gaddis, Judge. Affirmed.

Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Robert Gezi, Deputy Attorney General, for Plaintiff and Respondent.

THE COURT:

The opinion in the above-entitled matter filed on February 25, 2009, was not certified for publication in the Official Reports. For good cause it now appears that the opinion should be published with the exception of parts I and III through XII in the Official Reports and it is so ordered.

Appellant’s petition for rehearing is denied.


BY THE COURT:



BLEASE , Acting P.J.



ROBIE , J.



CANTIL-SAKAUYE , J.



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