P. v. Garcia

 

 

 

 

 

 

 

 

 

 

Filed 10/3/13  P. v. Garcia CA2/8

> 

> 

> 

> 

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   ROGELIO LUIS GARCIA,               Defendant and Appellant.

B242610         (Los Angeles County       Super. Ct. No. KA093956)

 

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Robert M. Martinez, Judge. 
Affirmed.

 

Kimberly Howland Meyer, 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, Assistant Attorney General, Stephanie C. Brenan and Esther P.
Kim, Deputy Attorneys General, for Plaintiff and Respondent.

 

_________________________________

 

            Rogelio
Garcia appeals from a judgment that sentences him to 11 years in state prison
for making criminal threats, inflicting corporal injury on his girlfriend of
six years and committing second degree
robbery.  Garcia contends there was
insufficient evidence to support his conviction for those crimes.  We affirm the judgment.

FACTS

            Garcia was
charged in an information dated July 7, 2011, with making criminal threats in
violation of Penal Code section 422 (count 1),href="#_ftn1" name="_ftnref1" title="">>[1]
inflicting corporal injury to spouse/cohabitant/child’s parent in violation of
section 273.5, subdivision (a) (count 2), kidnapping in violation of section
207, subdivision (a) (count 3) and committing second degree robbery in
violation of section 211 (count 4).  The
information further alleged that as to all counts, Garcia suffered prior
convictions pursuant to sections 667, subdivisions (b) through (i), 667.5,
subdivision (b) and 1170.12, subdivisions (a) through (d).  As to counts 1, 3 and 4, the information alleged
that Garcia had suffered prior convictions of a serious felony pursuant to
section 667, subdivision (a)(1).  A jury
trial commenced on February 22, 2012. 

            At trial,
the prosecution presented evidence that Garcia assaulted and threatened Jane
Doe, with whom he had a six-year relationship. 
Doe was reluctant to testify against Garcia, stating, “I’m afraid
something can happen.  I don’t want
anyone to get in trouble.”  Indeed, Doe
had previously told police that she did not want to prosecute, indicating that
she was frightened that Garcia would hurt her in retaliation for prosecuting
him.  Doe also wrote four or more letters
to the court and police asking the charges against Garcia be dropped.  When she was called to the stand by the
prosecutor, Doe testified that she could not recall anything of the night in
question.  As a result of Doe’s
unwillingness to testify, the prosecution presented evidence of the relevant
events primarily through hearsay statements made by Doe to the police officers
investigating the incident, as set forth below. 


On April 12, 2011, Arcadia
police were dispatched to the corner of Santa Anita and Duarte
at 2:15 a.m.  Officer Brian Long testified that he observed
Garcia sitting on the curb and Doe sitting in her car when he arrived.  Garcia and Doe told him that they had been
arguing but there was no physical altercation and Long did not see any injuries
on Doe.  As a result, he allowed them to
leave; Doe drove off in her car and Garcia walked away on foot. 

            At
approximately 3:49 a.m., Officer Juan
Casados from the El Monte Police Department was flagged down by a woman
standing with Doe at Garvey and Tyler. 
Doe was holding Julia, her daughter with Garcia.  Doe appeared to be “distraught” and she was
bleeding from the right side of her eye. 
Officer Casados called for assistance. 
Officer Benjamin Lowry interviewed Doe in the back seat of his patrol
car.  He noticed the right side of Doe’s
face was swollen and there was a cut on the corner of her right eye, which was
bleeding.  She was crying and appeared
“terrified.”  Doe told Lowry that she
drove home after the encounter with Officer Long in Arcadia.  When she arrived home, she began receiving
phone calls from Garcia.  He told her not
to call the police and threatened, “You better come pick me up or I’m going to
kill you.”  He later called to say, “I’m
a block away and I’m going to kill you.” 
Because she had been assaulted regularly throughout their six-year
relationship, Doe believed he would harm her and she immediately tried to leave
with her daughter.  However, Garcia stood
in her driveway blocking her car as she tried to back out. 

            Doe then
told Officer Lowry that Garcia got into the passenger seat and punched her in
the face and head approximately 10 times. 
He also threw her phone out of the car. 
He ordered her to take him to his mother’s house on Tyler.  When they arrived, Garcia punched her in the
face three more times and took her purse and keys.  Doe fled down the street with her daughter,
abandoning the car.  Officer Lowry later
escorted Doe back to where her car was parked on Tyler
and she retrieved her purse and car keys from inside the car.   

 

            Investigators
hired by defense counsel interviewed Doe on January 31, 2012. 
She told the investigators that she had been drinking heavily that
night and denied Garcia threatened her or took her purse or money.  She explained that she was drunk that day and
hit her head in the shower around 8:00 p.m.
that evening.  She then drove to meet
Garcia at his residential drug program in Sylmar.  When she arrived, he was with another woman,
Angelica Maria.  Doe became angry and
drove home.  She denied that he hurt her
or threatened her.  She explained that
she accused Garcia of threatening her and hurting her because she was “mad and
jealous that he cheated and he gave me an STD.” 


            Transcripts
of recorded phone calls between Garcia and Doe while he was in jail were also
admitted into evidence.  In one, Doe told
Garcia that her jaw still hurt.  She
complained that “the right side of my head is still swelling and I’m gonna have
a scar on my face.  [¶]  I’ve done nothing but help you and be
supportive and all you ever did was attack and hurt me.”  Garcia replied, “You’re
right . . . I know that . . .”  In another call, Doe said, “I think you’re
gonna kill me for sure next time.  You
have it in you . . .” 
Julia then spoke with Garcia and told him, “Daddy, you hit me.”  In a separate call, Doe told Garcia, “I
honestly can’t, can’t see a future with you cause I’m afraid for my life.  I think you would hurt me and you have no
reason to.”  Garcia acknowledged his
mistakes, saying, “I know I deserve where I’m at . . . I
crossed the fucking line. I crossed the line; this time.”  Garcia also admitted he was trying to scare
and intimidate Doe. 

            In another
transcript, the following conversation occurred between Doe and Garcia:

            “[Doe]:  Every time you hit
me . . .  [¶] 
And I still feel the pain of it. 

            “[Garcia]:  That part I did.  That’s what I’m telling you.  I know I crossed the line.

            “[Doe]:  “It’s not the first time.  Don’t act like it’s the first time.  You’ve abused                                 me many, many times in the past.  Every time you get around your friends,                                     you, either
your sister, you[r] friends, whoever, you always act like a                                complete stranger
to me.”   

            Doe also
asked Garcia, “What happened with my money that you took from my wallet?”  Garcia admitted it was in his room or “should
be in my locker.” 

            Doe, Garcia
and Angelica Maria, his ex-girlfriend, testified for the defense.  Garcia explained that he, his sister,
Carmela, and Maria were drinking in Maria’s car on April 12.  Doe became upset when she arrived with
Julia.  Garcia tried to calm her down
without success.  He then drove off with
Maria and his sister to go to his mother’s house.  Doe followed them, trying to cut them off on
the 210 freeway.  When Garcia noticed
that Julia was out of her car seat while they were driving on the freeway, he
told Maria to exit so he could get into Doe’s car.  Doe and Garcia then argued about mutual
previous infidelity and he demanded she stop so he could get out of the
car.  It was at this point that Arcadia
police arrived and interviewed them. 
When Doe and the police left, Garcia began to walk towards Doe’s
house.  He admitted he called her while
he was upset, but only to ask her to pick him up. 

            When he
neared her home, she picked him up to drive him to his mother’s house two miles
away.  They continued to argue and when
they arrived at his mother’s home, Doe told him that Julia was not his
biological child.  He slapped her and
pulled her hair.  Doe became hysterical,
grabbed Julia and abandoned the car. 
Garcia then walked to his cousin’s house, three doors down, and spent
the night there.  Garcia explained that
the $20 referenced in the jailhouse call was about money he owed her, not money
he had taken from her purse that night. 

            Maria
testified that she drove Garcia to his mother’s house where Doe discovered
them.  Doe began to argue with Garcia and
then left on foot with Julia.  Garcia
then went to his cousin’s house with Maria. 
Maria denied Garcia hit Doe. 
Garcia acknowledged that Maria’s testimony differed from his and stated
that parts of it were untrue. 

            Doe was
called by the defense to confirm she asked the district attorney’s office not
to prosecute the case.  On cross-examination
by the prosecutor, however, Doe admitted that Garcia hit her and threw her
phone.  She also testified that she took
him to his mother’s house and when they got there, he hit her again with closed
fists and then took her purse, her wallet, and her car keys. 

            The jury
found Garcia guilty for making criminal threats, inflicting corporal injury and
committing second degree robbery.  The trial court found all special allegations
to be true.  Garcia was sentenced to the
mid-term of three years, doubled under section 1170.12, subdivisions (a)
through (d), plus five years under section 667, subdivision (a)(1) for the
corporal injury count.  He was also
sentenced to a concurrent term of two years, doubled under section 1170.12,
subdivisions (a) through (d), on the criminal threats count and a concurrent
term of three years, doubled pursuant to section 1170.12, subdivisions (a)
through (d) on the second degree robbery count. 
The court ordered the one-year prior conviction allegations under
section 667.5, subdivision (b) to be stricken. 
Garcia was sentenced to a total of 11 years in href="http://www.mcmillanlaw.com/">state prison.  He timely appealed. 

DISCUSSION

            On appeal,
Garcia challenges his conviction for inflicting corporal injury on a
spouse/cohabitant/child’s parent and for second degree robbery on lack of
sufficient evidence.  He does not
challenge his conviction for making criminal threats.  We find substantial evidence supports the
convictions. 

            In
determining whether substantial evidence supports a conviction, a reviewing
court examines the evidence in a light most favorable to the jury’s verdict and
presumes the existence of every fact the jury could reasonably deduce from the
evidence.  (People v. Crittenden (1994) 9 Cal.4th 83, 139.)  The same standard is applied here where the
prosecution’s case primarily relied on circumstantial
evidence or admissible hearsay evidence. 
(People v. Maury (2003) 30 Cal.4th
342, 396; People v. Green (1971) 3
Cal.3d 981, 985.)  A reviewing court may
not upset a jury’s verdict based on a claim that it is not supported by
substantial evidence unless it appears that upon no hypothesis  is there sufficient evidence to support the
conviction.  (People v. Bolin (1998) 18 Cal.4th 297, 331.)  A reviewing court may not reweigh the
evidence nor re-assess the credibility of the witnesses.  (People
v. D’Arcy (2010) 48 Cal.4th 257, 293.) 


I.          Corporal
Injury

            Section
273.5, subdivision (a) prohibits any person from “willfully inflict[ing] upon a
person who is his or her spouse, former spouse, cohabitant, former cohabitant,
or the mother or father of his or her child, corporal injury resulting in a
traumatic condition . . .” 
Garcia argues that the evidence was insufficient to establish that he is
a cohabitant or former cohabitant with Doe or that he is the father of her
child. 

            We find
substantial evidence supports the conclusion that Garcia is the father of Doe’s
daughter.  Section 273.5, subdivision (d)
defines “father” as someone who is a presumed father under sections 7611 and
7612 of the Family Code.  Among other
things, Family Code section 7611, subdivision (d) provides that a man is presumed
to be the natural father of a child if “[h]e receives the child into his home
and openly holds out the child as his natural child.”href="#_ftn2" name="_ftnref2" title="">>[2] 

            Garcia
contends that the paternity requirement cannot be met because Doe admitted he
was not Julia’s biological father.  For
purposes of section 273.5 and Family Code section 7611, that is
irrelevant.  Subdivision (d) of section
273.5 applies to a biological father as well as “to a presumed father, that is,
a man who has entered into a family relationship with the mother and child,
regardless of whether he is the biological father.”  (People
v. Vega (1995) 33 Cal.App.4th 706, 711.) 
There was substantial evidence that Garcia openly held the child as his
natural child and received the child into his home.  Garcia testified at trial that “ no
matter what to me Julia’s still my daughter . . .”  He continuously referred to her as “my
daughter” during his testimony and Julia called Garcia “daddy.”  Garcia also told Doe he loved her and that
she and Julia are his life.  He also told
Doe that she and Julia “are the ones I wanna live for.”  That is substantial evidence of Garcia’s
status as Julia’s father.

II.        Second
Degree Robbery

            Robbery is
the felonious taking of personal property in the possession of another from his
person or immediate presence and against his will, accomplished by force or
fear.  (§ 211; People v. Nichols (1967) 255 Cal.App.2d 217.)  At trial, the prosecution argued that Garcia
committed robbery by throwing Doe’s cell phone out of the car window near her
house and by taking her purse and her car keys away from her during their fight
in front of his mother’s house.  Garcia
argues the evidence was insufficient to establish he committed a robbery
because there was no evidence that he had the intent to deprive Doe of her
property or that Doe resisted. 
We disagree.

            Substantial
evidence supports a finding that Garcia committed second degree robbery when he
threw Doe’s mobile phone out of the car and took her purse and keys.  Doe testified that Garcia had just arrived at
Doe’s home after threatening to kill her and telling her not to call the
police.  When he grabbed her phone and
threw it out of the window, he asked if she had called the police already.  He then punched her in the head approximately
10 times.  Doe also told Officer Lowry
that she had her purse on her shoulder and the keys were in the ignition when
Garcia took them.  He said, “Let me
show you what it’s like to be helpless and stranded.”  He also punched her in the face.  The record supports a finding that Garcia had
the requisite intent to deprive Doe of her property and that he did so against
her will and through force.  That Doe may
have retrieved her purse and keys after Officer Lowry escorted her back to her
car is irrelevant.  (People v. Pruitt (1969) 269 Cal.App.2d 501 [forcible taking of a
wallet from the person of a victim against his will constituted a robbery even
though it was promptly handed back].)

DISPOSITION

            The
judgment is affirmed.

 

                                                                                                BIGELOW,
P. J.

We concur:

 

                        FLIER,
J.       

 

 

                        GRIMES,
J.