P. v. Garcia
Filed 9/4/13
P. v. Garcia CA2/7
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opinion has not been certified for publication or ordered published for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 SEVEN
THE
PEOPLE,
Plaintiff and Respondent,
v.
URIEL
GARCIA,
Defendant and Appellant.
B236377
(Los Angeles County
Super. Ct. No. GA080080)
APPEAL from a judgment of the Superior Court of
County. Dorothy L.
Shubin, Judge. Affirmed.
Susan Wolk, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Victoria B. Wilson and Carl N. Henry, Deputy Attorneys
General, for Plaintiff and Respondent.
___________________________________
INTRODUCTION
A jury convicted Uriel Garcia of attempted premeditated
murder, with gang and firearm allegations found true. The trial court sentenced him to state prison
for a term of life with the possibility of parole, with a minimum parole
eligibility period of 15 years, plus a consecutive term of 20 years for the
instructional and sentencing errors. We
affirm.
FACTUAL AND PROCEDURAL SUMMARY
At about 7:00 p.m. on June 5, 2007, Uriel Garcia, a “shot
caller†for the Pee Wee Locos clique of the Monrovia Nuevo Varrio (MNV) gang,
told younger MNV gang member Valentin Valenzuela, “Go[, g]o.â€
a Smart and Final store, Garcia and Valenzuela fired five or more bullets at
Derrick Green who stood near his friend and Duroc Crips gang member D’Andre
Brown, as Green, Brown, Tracey Brooks and others stood on a public street near
Huntington Drive and California Avenue.
Garcia was charged with Green’s attempted premeditated
murder (Pen. Code, §§ 187, subd. (a); 664, subd. (a) (count 2)).
references are to the Penal Code.) It
was further alleged Garcia personally used a firearm within the meaning of
section 12022.53, subdivision (b); Garcia personally and intentionally
discharged a firearm within the meaning of section 12022.53, subdivision (c);
and a principal personally used and intentionally discharged a firearm within
the meaning of subdivisions (b), (c) and (e)(1) of section 12022.53, as it was
also alleged Garcia committed the attempted murder for the benefit of, at the
direction of or in association with a criminal street gang within the meaning
of section 186.22, subdivision (b)(1)(C).
At trial, the People presented evidence of the facts
summarized above. In addition, gang
expert Detective Brian Steinwand testified he was the head of the
Monrovia/Duarte gang task force. This
task force was formed in early 2008 to address the increase in gang violence in
the area between 2006 and 2008. In a
period of about 18 months, there were about 79 shootings between the Duroc
Crips (a black gang) and two Hispanic gangs—MNV and Duarte Eastside. The Crips were “warring back and forth†with
the two Hispanic gangs.
Detective Timothy Brennan also testified to his own gang
expertise and explained how someone becomes a gang member and “puts in workâ€
for the gang, described the territorial nature and hierarchy within a gang,
including the role of the “shot caller,†and told the jury gangs operate on
respect and intimidation. Given a
hypothetical based on the evidence presented as to count 2, Detective Brennan
testified Green’s shooting was committed in association with and for the
benefit of MNV.
Pursuant to court orders, the task force obtained
telephone wiretaps relating to MNV and the Duroc Crips. Between September 2008 and January 2009,
seven or eight subjects, including Garcia, were targeted.
The jury heard evidence that Garcia, his girlfriend at
the time and their son were shot at in 2006, and Garcia suspected Duroc Crips
gang member Brandon Lee was involved.
Smart & Final shooting involved in counts 1 and 2, someone shot Lee.
took credit for that shooting in the wiretap evidence. He claimed he had two guns in the Smart and
Final shooting three days later (June 5, 2007) and did not mention
Valenzuela. On January 29, 2008, Brandon
Lee was shot and killed (count 3), and it remained unknown who had shot
him.
Garcia (who had a Monrovia tattoo across his back) was
supplying guns to the gang and recruiting new members. In some of his telephone calls, he called
meetings to discuss MNV business including the police murder investigation and
said money was needed for guns and “for some of the homies that are locked
up.†He acknowledged having others
commit crimes, including shootings, for the gang. He said, “If I get shot, you ride for
me. If you get shot, I ride for you,â€
meaning he would retaliate for a fellow gang member if the fellow gang member
were shot and expected the same from his fellow gang members for himself. He was referred to as a “shot caller†within
the gang.
Tracey Brooks testified that prior to the Smart &
Final shooting, Garcia and Valenzuela told her they were MNV gang members and
asked if she was a gang member. Then,
just before the shooting, she heard arguing between the African Americans and
the Hispanics. She testified Garcia came
out of the bushes. She saw both Garcia
and Valenzuela holding guns, focused on the African American men to the right
of her on the street; she heard shots from more than one gun as she turned and
ran. According to Green, Garcia appeared
to be the initiator and appeared to be showing the other shooter what to do
during the Smart & Final shooting.
Green’s cousin (Jimmie Dixon) also testified he saw “[t]wo male
Hispanics shooting†their handguns at Green; after that, he said, the “two guys
jump[ed] in a car and le[ft].â€
Police recovered 12 expended bullet casings from two
different types of guns at the scene of the Smart & Final shooting.
Garcia, known as “Krazy Eyes†within the gang, told
police he got around without any trouble resulting from his eyesight.
In his defense, Garcia presented evidence he was legally
blind as of November 2008.
The jury convicted Garcia as charged and found all
related special allegations true. For
the attempted premeditated murder of Green, the trial court sentenced Garcia to
state prison for a term of life with the possibility of parole (and a minimum
parole eligibility period of 15 years) plus a consecutive 20-year term on the
firearm enhancement for personal and intentional discharge of a firearm (§
12022.53, subd. (c)).
Garcia
appeals.
DISCUSSION
Garcia Has Failed to Demonstrate Prejudicial Error
in the Absence of CALCRIM No. 375 Among the Jury’s Instructions.
Although the trial court instructed the jury with CALCRIM
No. 1403 (limited purpose of evidence of gang activity) because of the evidence
of Garcia’s MNV conduct, Garcia says the court had a sua sponte duty to
instruct the jury with CALCRIM No. 375 (evidence of uncharged offenses to prove
identity, intent, common plan, etc.) as well because the prosecution presented
evidence of Garcia’s uncharged attempted murder of Brandon Lee.
According to the record, Garcia did not request CALCRIM
No. 375. Pursuant to CALCRIM No. 1403,
the trial court instructed the jury:
“You may consider evidence of gang activity only for the limited
purpose of deciding whether the defendant acted with the intent, purpose,
and knowledge that are required to prove the gang-related enhancement
charged or the defendant had a motive to commit the crimes
charged.
“You may also consider this evidence when you evaluate
the credibility or believability of a witness and when you consider the facts
and information relied on by an expert witness in reaching his or her
opinion.
“You may not consider this evidence for any other
purpose. You may not conclude from
this evidence that the defendant is a person of bad character or that he has a
disposition to commit crime.†(Italics
added.)
As
our Supreme Court explained in People v. Milner (1988) 45 Cal.3d 227,
251,
“We rejected a similar argument in the context of prior criminal offenses in People
v. Collie[ (1981)] 30 Cal.3d 43, 64:
‘Neither precedent nor policy favors a rule that would saddle the trial
court with the duty either to interrupt the testimony
to admonish the jury whenever a witness implicates the defendant in another
offense, or to review the entire record at trial’s end in search of such
testimony. There may be an occasional
extraordinary case in which unprotested evidence of past offenses is a dominant
part of the evidence against the accused, and is both highly prejudicial and
minimally relevant to any legitimate purpose. . . . But we hold that in this case, and in
general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past
criminal conduct.’
“We
believe that the holding in Collie, supra,
30 Cal.3d 43, is equally applicable to this case which concerns past bad acts
as opposed to prior criminal offenses.â€
(People v. Milner, supra, 45
Cal.3d at pp. 252-252.)
“Gang
evidence is relevant and admissible when the very reason for the underlying
crime, that is the motive, is gang related.
[Citations.] “‘[B]ecause a
motive is ordinarily the incentive for criminal behavior, its probative value
generally exceeds its prejudicial effect, and wide latitude is permitted in
admitting evidence of its existence.†[Citations.]’†(People v. Valdez
(2012) 55 Cal.4th 82, 138, further citations omitted.) Moreover, CALCRIM No. 1403, is neither
contrary to law nor misleading. (Ibid.) “It states in no uncertain terms that gang
evidence is not admissible to show that the defendant is a bad person or has a
criminal propensity. It allows such
evidence to be considered only on the issues germane to the gang enhancement,
the motive for the crime and the credibility of witnesses.†(Ibid.) In this case, gang evidence was essential to
establishing the motive for the charged crimes and Garcia’s role in them, the
central importance of respect in gang culture, and gang members’ motivation to
seek retribution. Although Garcia was
not charged with the June 2, 2007, shooting of Brandon Lee, he was charged in
count 3 with Lee’s murder. According to
the wiretap evidence, Garcia believed Lee was involved in the 2006 incident in
which shots were fired at Garcia, his then girlfriend and his baby and wanted
to “hit†Lee before Lee and the Crips retaliated against Garcia and MNV. Because gang evidence was central to this
case involving gang members committing gang shootings for gang motives in the
context of the “warring back and forth†between MNV and the Duroc Crips, broad
admissibility of gang evidence was appropriate.
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1170.)
Further,
notwithstanding the admission of this evidence suggesting Garcia’s involvement
in the uncharged prior shooting at Lee, he was nevertheless acquitted of Lee’s
subsequent murder while considerable evidence supports his conviction on count
2—including his own admissions recorded on the telephone wiretaps in addition
to the testimony of Green who knew Garcia prior to the June 5, 2007 Smart &
Final shooting; he cannot establish prejudice in the absence of CALCRIM No. 375
in any event. (People v. Breverman (1998)
19 Cal.4th 142, 178.)
Garcia Has Failed to Demonstrate Prejudicial Error
in the Trial Court’s Admission of Gang Evidence.
Citing our decision in People v. Albarran (2007)
149 Cal.App.4th 214, Garcia says the erroneous admission of a “tsunami†of
marginally relevant but highly prejudicial gang evidence rendered his trial
fundamentally unfair and violated his federal due process rights. We disagree.
First, as he concedes, Garcia only objected to testimony
characterizing him as a “shot caller†in the trial court. Otherwise, he made no objection on the
grounds of Evidence Code section 352 and did not raise any constitutional
objection in the trial court.
Consequently, he has forfeited this claim.
Further, “California courts have long recognized the
potential prejudicial effect of gang evidence.
As a result, our Supreme Court has condemned the introduction of such
evidence ‘if only tangentially relevant, given its highly inflammatory
impact.’ (People v. Cox (1991) 53
Cal.3d 618, 660 [280 Cal. Rptr. 692, 809 P.2d 351], disapproved on other
grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.
Rptr. 3d 209, 198 P.3d 11].) Because
gang evidence creates a risk that the jury will infer that the defendant has a
criminal disposition and is therefore guilty of the charged offense, ‘trial
courts should carefully scrutinize such evidence before admitting it.’ (People v. Williams (1997) 16 Cal.4th
153, 193 [66 Cal. Rptr. 2d 123, 940 P.2d 710].)
“Nonetheless, evidence related to gang membership is not
insulated from the general rule that all relevant evidence is admissible if it
is relevant to a material issue in the case other than character, is not more
prejudicial than probative, and is not cumulative. (People v. Avitia (2005) 127
Cal.App.4th 185, 192 [24 Cal. Rptr. 3d 887]; see also People v. Hernandez
(2004) 33 Cal.4th 1040, 1049 [16 Cal. Rptr. 3d 880, 94 P.3d 1080]; Evid. Code,
§§ 210, 351.)†(People v. Samaniego,
supra, 172 Cal.App.4th at pp. 1167-1168.)
As we noted in addressing Garcia’s first argument, “Gang
evidence is relevant and admissible when the very reason for the underlying
crime, that is the motive, is gang related,†and “‘[b]ecause a motive is
ordinarily the incentive for criminal behavior, its probative value generally
exceeds its prejudicial effect, and wide latitude is permitted in admitting
evidence of its existence.’ [Citations.]â€
(People v. Samaniego, supra, 172 Cal.App.4th at p. 1168.) For the reasons addressed in connection with
Garcia’s first argument, gang evidence was properly admitted, the jury received
CALCRIM No. 1403, and Garcia has failed to demonstrate prejudicial error in the
trial court’s admission of gang evidence.
(People v. Breverman, supra, 19 Cal.4th at p. 178; People v.
Gray (2005) 37 Cal.4th 168, 231.)
The Trial Court’s Denial of Lesser-Related Crime
Instructions Did Not Constitute an Abuse of Discretion.
According to Garcia, the trial court’s refusal to
instruct the jury as to the crimes of assault with a deadly weapon under
section 245 (CALCRIM No. 875) and/or the negligent discharge of a firearm
pursuant to section 246.3 (CALCRIM No. 970) violated his rights to due process,
to a fair trial, to present a defense, to the effective assistance of counsel
and to a reliable verdict and sentence.
Again, we disagree.
At trial, defense counsel argued: “[J]ust to make the record clear, electing to
charge is not the issue. The due process
part of the lesser related issues is really what the issue is,†noting the
shooting “hit nobody or nothing.†In his
opening brief, Garcia concedes:
“[A]ccording to current case authority, he does not have a state or
federal constitutional right to a verdict on a lesser related offense.†Furthermore, citing People v. Kraft (2000)
23 Cal.4th 978, 1064, he acknowledges he is “aware that case authority exists
stating that a defendant has no right to jury instructions upon lesser related
offenses, even if the instruction is supported by substantial evidence and
defense counsel requests such instruction.â€
He says, however, Kraft “improperly†relied on People v. Birks
(1998) 19 Cal.4th 108 (Birks), but also necessarily concedes our
Supreme Court determined Birks did not violate the federal constitution
in People v. Rundle (2008) 43 Cal.4th 76. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450.)
In any event, where, as here, there is no evidence the
offense was less than that charged, such an instruction is not warranted. (People v. Moye (2009) 47 Cal.4th 537,
548.) As already described, the record
does not support Garcia’s argument in this regard. To the contrary, the jury heard evidence
Garcia came out of the bushes and, along with a fellow gang member he urged to
“Go, go,†shot repeatedly at a group associated with a rival gang, including
Green (who had attended high school with Garcia in the small, tight knit
community of Monrovia, where “[e]verybody knows everybodyâ€), during a “gang
war†between the Hispanic and African American gangs in the area. Consequently, it is not reasonably probable
Garcia would have received a more favorable verdict if the jury had been
instructed on assault with a deadly weapon and negligent discharge of a firearm
with respect to count 2 (Green’s attempted premeditated murder). (People v. Watson (1956) 46 Cal.2d
818.)
To
the extent Garcia makes passing reference to a denial of his right to effective
assistance of counsel, he fails to substantiate it, identifying neither
deficient performance nor resulting prejudice.
“In order to establish a claim of ineffective
assistance of counsel, defendant bears the burden of demonstrating, first, that
counsel’s performance was deficient because it ‘fell below an objective
standard of reasonableness [¶] . . . under prevailing professional
norms.’†(People v. Ledesma (2006) 39 Cal.4th 641, 745-746, citations
omitted.) “If the record ‘sheds no light
on why counsel acted or failed to act in the manner challenged,’ an appellate
claim of ineffective assistance of counsel must be rejected ‘unless counsel was
asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation.’
[Citations.] If a defendant meets
the burden of establishing that counsel’s performance was deficient, he or she
also must show that counsel’s deficiencies resulted in prejudice, that is, a
‘reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’†(Id.
at p. 746, citations omitted.) Garcia
has failed to demonstrate prejudicial error.
The Trial Court Did Not Abuse its Discretion in
Admitting Evidence of Garcia’s Status as an MNV Shot Caller.
Garcia says the trial court’s denial of his motion to
exclude evidence he was a “shot caller†violated his constitutional rights to
due process, a fair trial and a reliable verdict and sentence. At trial, however, Garcia objected to such
evidence solely on the basis of Evidence Code section 352, and, citing People
v. Carter (2003) 30 Cal.4th 1166, 1194, acknowledges admission of this type
of evidence is reviewed for an abuse of discretion. He says the applicable law is addressed in
his argument relating to the “glut†of gang evidence; because the term “shot
caller†is a pejorative and threatening term which permeated the trial, he says
he was prejudiced by the admission of this evidence. For the same reasons addressed in connection
with Garcia’s first and second challenges to the admission of gang evidence, we
find no abuse of discretion.
Garcia Has Not Demonstrated Prejudicial Error in
the Admission of Evidence of his own Pre-Trial Comments as to the Possible
Length of his Imprisonment.
In wiretap evidence, Garcia indicated he believed a gang
enhancement for “[b]eing a gang leader†would “hit me with triple the time I’m
going to get anyways.†Citing People
v. Holt (1984) 37 Cal.3d 436, 458, he says he was prejudiced as a result
because a jury’s possible punishment is not a proper matter for jury
consideration.
Again, Garcia failed to object to the admission of this
evidence and therefore forfeited this objection. (People v. Dykes (2009) 46 Cal.4th
731, 756.) Moreover, unlike the
circumstances in People v. Holt, supra, 37 Cal.3d 436, this case does
not present a circumstance in which the prosecutor improperly referred to
punishment during argument but rather the defendant’s own speculation as to his
punishment, and in this case (but not in Holt) jurors were
instructed: “You must reach your verdict
without consideration of punishment.†We
presume jurors understand and follow the trial court’s instructions. (People v. Gray, supra, 37 Cal.4th at
p. 231.) Accordingly, we find no
error. In any case, in light of the
evidence of Garcia’s guilt as to count 2, it is not reasonably probably he
would have received a more favorable verdict absent the admission of this
evidence. (People v. Holt, supra, 37
Cal.3d at p. 458; People v. Watson, supra, 46 Cal.2d 818.)
Substantial Evidence Supports the Jury’s Conclusion
Garcia’s Attempted Murder of Green Was Premeditated.
We reject Garcia’s assertion insufficient evidence of
premeditation supports the jury’s determination on count 2. Garcia ignores the record as well as the
standard of review.
“‘The proper test for determining a claim of
insufficiency of evidence in a criminal case is whether, on the entire record,
a rational trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.] On appeal, we must view the evidence in the
light most favorable to the People and must presume in support of the judgment
the existence of every fact the trier could reasonably deduce from the
evidence. [Citation.]
“‘Although we must ensure the evidence is reasonable,
credible, and of solid value, nonetheless it is the exclusive province of the
trial judge or jury to determine the credibility of a witness and the truth or
falsity of the facts on which that determination depends. [Citation.]
Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of
a witness’s credibility for that of the fact finder. [Citations.]’ (People v. Jones (1990) 51 Cal.3d 294,
314 [270 Cal.Rptr.611, 792 P.2d 643].)â€
(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Reversal is unwarranted unless it appears that “upon no
hypothesis whatsoever is there sufficient substantial evidence to support the conviction.†(People v. Bolin (1998) 18 Cal.4th
297, 331, citation omitted.)
Garcia simply argues an alternative interpretation of the
facts. For example, noting none of the
bullets hit Green or anyone else, he speculates Green did not feel his safety was
in jeopardy or he and Brown would have left the area and entered his
grandparents’ residence.
As Green testified, however, he had lived in Monrovia, a
very tight knit community where “[e]verybody knows everybody,†his entire life;
he and Garcia attended high school together.
Because he found it “abnormal†for Garcia and those with him to be in a
“Black neighborhood†during the “gang war†between the Hispanic and African
American gangs, he had a “gut feeling†he should look over the wall and felt he
had “caught [Valenzuela and Garcia] off guard.â€
According to the record, Garcia and Valenzuela then came out of the
bushes, Garcia called out, “Go, go,†and the shooting started. We find no error. (People v. Bolin, supra, 18 Cal.4th at
p. 331.)
Garcia’s Sentence Does Not Constitute Cruel and/or
Unusual Punishment.
According to Garcia (age 22 at the time of his crime),
his sentence of life with the possibility of parole, with a minimum parole
eligibility of 15 years, plus a consecutive 20 years, is cruel and/or unusual
in violation of our state and federal constitutions. He also says the degree of disparity is
demonstrated by the disparity between his sentence and Valenzuela’s. Three days before Garcia’s trial, Valenzuela
pled guilty to count 2 (with the remaining counts dismissed), but he received a
15-year determinate sentence (the low term of five years for the attempted
willful, deliberate and premeditated murder plus ten years for the gun use
pursuant to section 12022.53, subdivision (b)).
As the Attorney General observes, the determination of
whether a sentence is cruel and/or unusual does not involve the mere comparison
of his sentence following trial to his fellow gang member’s sentence following
entry of a plea. Garcia ignores the fact
he was convicted of committing an attempted premeditated murder. He fails to demonstrate that his resulting
sentence is so grossly disproportionate as to constitute the “extreme†case
meeting the necessary federal standard (Lockyer v. Andrade (2003) 538
U.S. 63, 72; Harmelin v. Michigan (1991) 501 U.S. 957) or so
disproportionate that it shocks the conscience and offends
under our Supreme Court’s authorities (In re Lynch (1972) 8 Cal.3d 410,
424; People v. Dillon (1983) 34 Cal.3d 441, 478). Garcia’s cursory claim is meritless.
DISPOSITION
The judgment is
affirmed.
WOODS,
J.
We concur:
PERLUSS, P. J ZELON,
J.
name="_ftn1" title="">[1] A “shot caller†is
someone who directs both midlevel and younger gang members what to do for that
gang, such as dealing narcotics, stealing cars, and committing robberies and
drive-by shootings, known as “putting in work†for the gang.
name="_ftn2" title="">[2] Both
Garcia and Valenzuela were charged with Green’s (count 2) as well as Brooks’s
(count 1) attempted premeditated murders; in addition, Garcia was charged with
the January 29, 2008 murder of Brandon Lee (count 3), with gang and firearm
allegations as to all counts. However,
on June 6, 2011, Valenzuela pled no contest to Green’s attempted murder (count
2) and was sentenced to state prison for a term of 15 years, and Garcia was
acquitted on Brooks’s attempted murder (count 1) as well as Lee’s murder (count
3).
