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P. v. Garay

P. v. Garay


P. v. Garay










Filed 1/23/14  P. v. Garay CA4/3











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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.













      Plaintiff and Respondent,






      Defendant and Appellant.







         (Super. Ct. No. 09ZF0066)


         O P I N I O N


from a judgment of the Superior Court of
Orange County
, Thomas M. Goethals, Judge. 
Affirmed as modified. 

Bookout, under appointment by the Court of Appeal, for Defendant and Appellant.

D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Kristine A. Gutierrez and Lynne G. McGinnis, Deputy Attorneys
General, for Plaintiff and Respondent. 


Garay, Jr., appeals from a judgment sentencing him to 15 years to life in
prison for second degree murder.  He contends
his conviction must be reversed due to instructional error, but we
disagree.  Other than to modify the
amount of appellant’s presentence credits, we affirm the judgment against


events giving rise to this case occurred in the spring of 1996.  At that time, appellant and Kevin Carlson
were in an Anaheim gang called the Devious Hoodlums
(DH).  Appellant’s best friend was Ruben
Calderon.  Calderon was not in DH, but
his girlfriend Christi Parenti was. 
Parenti was also pregnant with Calderon’s child.href="#_ftn1" name="_ftnref1" title="">[1]

Prosecution’s Case

the afternoon of March 5, 1996, appellant and Calderon were at the house
of Calderon’s godmother, Kim Bouzikian.  After
speaking with Carlson on the phone, appellant told Calderon that Carlson was on
his way over.  Appellant also said he and
Carlson were going to go to Fullerton to see if they could “catch somebody
slipping.”  Explaining what that meant to
him, Calderon testified Carlson had been disrespected a couple of weeks earlier
by a member of a gang called the Fullerton Suicidal Gang (FSG).  Calderon surmised Carlson and appellant were
going to Fullerton to see if they could find a FSG member who
was all alone so they could exact revenge for that disrespect.

short while later, Carlson picked up appellant at Bouzikian’s home.  They were gone for about 45 minutes before returning
to the house and speaking with Calderon. 
According to Calderon, appellant “looked like a ghost,” and Carlson, aka
Boxer, was “pumped up” and had blood on his shoes.  When Calderon asked them what happened, Carlson
said, “I beat the shit out of him and Joe (appellant) stuck him.”  Appellant did not say anything in response to
that statement. 

turned out Carlson and appellant had attacked FSG member Troy Gorena near a
crosswalk in Fullerton.  When the
police arrived at the scene, they discovered Gorena had been stabbed twice in
the back.  He also had a bruise on his
forehead and a cut above his right
.  Gravely injured, the only
information Gorena was able to provide was that he had been attacked by two
six-foot, white males in their 20’s with shaved heads.  Paramedics tried to aid Gorena, but he died
on the way to the hospital. 

days of the attack, Calderon learned from news reports that Gorena was only 16
years old.  Having children of his own,
Calderon was upset Carlson and appellant had killed a person who was so
young.  When Calderon confronted appellant
about the stabbing, appellant admitted, “Yeah, I stuck him.”    

Calderon’s girlfriend, was also upset about Gorena’s murder.  Although she was in the DH gang, she knew lots
of FSG members from having grown up in Fullerton.  In
expressing her displeasure to appellant, she accused him of being a “motherfucking
murderer.”  Appellant admitted to Parenti
he had stabbed Gorena, and Carlson had “beat the shit out of him.”    

also spoke with Carlson about the stabbing. 
Referring to a pocketknife Parenti had given him as a gift, Carlson told
her the knife was “put to good use,” but not by him.  He said he gave the knife to appellant before
they confronted Gorena, so appellant would “have his back.”  Then, after he beat up Gorena, appellant
stabbed him with the knife.   

speaking with Carlson and appellant, Parenti told Calderon what they had told
her.  Calderon told Parenti to “keep
[her] mouth shut,” but she told Calderon’s mother Gloria Cueva what she
knew.  Parenti also made it clear to
Cueva that she was afraid to go to the police. 
So Cueva went behind Parenti’s back and arranged for the police to show
up unbeknownst at a café where she and Parenti were having lunch one day.  At the café, Parenti reluctantly told investigators
what she knew.  She also said she did not
want to be a witness in the case and begged the officers to keep her name out
of the investigation. 

on Parenti’s information, appellant and Carlson were arrested for murder.  However, when word got out Parenti had talked
to the police, she and Calderon began receiving threats, and Calderon told her
he was going to leave her if she didn’t “fix” things.  Fearing for her well-being, Parenti
eventually buckled under the stress of the situation and recanted her story.  Since she was the key witness in the case,
the charges against appellant and Carlson were dropped.    

                        However, in 2008 the case
gained new life when a jailhouse informant came forward with new
information.  Jacob Mata told authorities
that when he was housed in county jail with appellant in 1996, appellant told
him he was locked up for stabbing a guy in Fullerton.  At
trial, Mata testified that, in confiding in him about the stabbing, appellant said
“we did it.”  However, Detective David
Rondou testified that when he interviewed Mata in jail, Mata said appellant had
told him that he had personally committed the stabbing.  Rondou also testified that when a gang member
is disrespected, they are expected to retaliate with violence in order to save

break in the case came when Calderon came forward to the police and told them
what he knew about the stabbing. 
Although Calderon had previously pressured Parenti to “keep [her] mouth
shut,” he eventually cooperated with authorities because he felt bad for
Gorena’s family and the
case was “eating him up.”  At trial, he testified
Carlson was the one who beat up Gorena, and appellant was the one who stabbed
him.  However, during his grand jury
testimony, Calderon testified appellant was the beater, and Carlson was the


was the main witness for the defense.  Like
appellant, he was charged with murdering Gorena, but pursuant to a plea
bargain, he pleaded guilty to aggravated assault and was given credit for time
served in exchange for testifying truthfully at appellant’s trial.  As part of his plea bargain, he was also granted
use immunity for his testimony. 

testified that in the weeks leading up to Gorena’s murder, he had a run-in with
an FSG member known as “Boo-boo.”  During
that incident, Boo-boo’s companion pushed Carlson into a planter, and Carlson felt
like he “got punked.”  He didn’t do
anything about it at the time, but on the morning of the murder, he saw Boo-boo
while he was driving in Fullerton, and his mind turned toward revenge.

that day, Carlson was driving with his cousin Michael Heatley and Heatley’s
friend Jon Mainberger.  They saw
appellant walking alone and decided to pick him up, too.  Then they drove to Fullerton to look for Boo-boo.  Although they didn’t find him, they did spot
Gorena walking by himself, which prompted Carlson to pull over. 

At trial, Carlson testified he didn’t know
Gorena.  He said he intended to “hit him
up”—find out what gang he was in — and if it turned out Gorena was in FSG, he
was going to beat him up.  According to
Carlson, he was seeking revenge on his own behalf; the incident did not have
anything to do with appellant.  However, before
leaving his car, he gave appellant a knife and told appellant to back him
up.  Carlson also had a knife.  As he and appellant set out to confront
Gorena, Heatley and Mainberger stayed behind in Carlson’s car. 

fight was a mismatch.  When Gorena told Carlson
he belonged to FSG, Carlson swiftly took him down with a flurry of punches
without any help from appellant.  While Gorena
was lying on the sidewalk, Carlson told him to “tell his homeboys a white boy
kicked his ass.”  Carlson and appellant
then ran back to Carlson’s car.  At that
point, appellant told Carlson he had stabbed Gorena.  Carlson was surprised.  In fact, he did not see appellant anywhere
near Gorena during the encounter.  While
they were driving away, appellant wanted to throw his bloody knife out the
window, but Carlson took the weapon and disposed of it a few days later.  At that time, appellant told Carlson the
knife went into Gorena “like butter.” 


closing argument, the prosecution told the jurors they could find appellant
guilty of first degree murder under any one of three theories:  1) as an actual perpetrator; 2) as an aider and
abettor; or 3) as part of an uncharged conspiracy.  The defense argued appellant was an innocent
bystander who was not guilty of any crime. 
In the end, the jury convicted
appellant of second degree murder.  He
was sentenced to 15 years to life in prison for the crime.


contends the trial court erred in failing to give a unanimity instruction with
regard to the prosecution’s theories of culpability.  We disagree. 

a criminal case, a jury verdict must be unanimous.  . . .  Additionally,
the jury must agree unanimously the defendant is guilty of a specific
crime.  [Citation.]  Therefore, cases have long held that when the
evidence suggests more than one discrete crime, either the prosecution must
elect among the crimes or the court must require the jury to agree on the same
criminal act.  [Citations.]”  (People
v. Russo
(2001) 25 Cal.4th 1124, 1132.) 
On the other hand, when “the evidence shows only a single discrete crime
but leaves room for disagreement as to exactly how that crime was committed or
what the defendant’s precise role was, the jury need not unanimously agree on
the basis or, as the cases often put it, the ‘theory’ whereby the defendant is
guilty.”  (Ibid.) 

concedes the jury was not required to unanimously agree on whether he was
liable for murder as the direct perpetrator or an aider and abettor.  However, he maintains a unanimity instruction
was required in light of the uncharged conspiracy theory because that theory essentially
posited a separate offense that was not necessarily based on the same operative
facts as the murder.  For instance, under
that theory, the jury could have convicted appellant of murder if it found:  1) Appellant and Carlson agreed to commit aggravated
assault; 2) they committed an overt act in furtherance of the conspiracy, such
as driving into FSG territory; and 3) murder was a natural and probable
consequence of their agreement.

fails to cite any authority that requires a unanimity instruction to be given
under the circumstances presented in this case. 
And, in fact, the California Supreme Court has ruled that when, as here,
conspiracy is not charged as a separate crime, but is merely offered “as an alternative
theory of liability for the charged, substantive crime of murder” the jury is
not required to agree on the theory of guilt. 
(People v. >Valdez (2012) 55 Cal.4th 82, 154.)  Even though the prosecution relied on the
natural and probable consequences doctrine in this case, there was still only
one distinct crime, and that is the key to deciding whether a unanimity
instruction must be given.  (>People v. Russo, supra, 25 Cal.4th at
pp. 1134-1135.) 

                        While “it would be
unacceptable if some jurors believed the defendant guilty of one crime and
other jurors believed [him] guilty of another[,] . . . unanimity as to exactly
how the crime was committed is not required.  Thus, the unanimity instruction is appropriate
‘when conviction on a single count could be based on two or more discrete
criminal events,’ but not ‘where multiple theories or acts may form the basis
of a guilty verdict on one discrete criminal event.’  [Citation.]” 
(People v. Russo, supra, 25
Cal.4th at pp. 1134-1135.) 

there was but one discrete criminal event: 
Gorena’s murder.  Therefore, despite
the fact the prosecution presented multiple theories and acts under which
appellant was potentially liable for that crime, the jury was not required to
unanimously agree on which theory or acts supported its verdict.  No instructional error has been shown.


also contends the court’s instructions on aiding and abetting were flawed.  Although the instructions included some
unwarranted verbiage, we do not believe they violated appellant’s rights in any

reviewing appellant’s claim, we must keep in mind that jury instructions
“‘should be interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation.’  [Citation.]”  (People
v. Martin
(2000) 78 Cal.App.4th 1107, 1111-1112.)  We “‘“assume that the jurors are intelligent
persons and capable of understanding and correlating all jury instructions
which are given.  [Citation.]”’ [Citation.]”
at p. 1111.)  In determining whether name="SR;1406">instructional error has occurred, we must consider the
record as a whole, including the specific language challenged, other name="SR;1424">instructions given, and the arguments
of counsel.  (>People v. Cain (1995) 10 Cal.4th 1,
36-37; People v. McPeters (1992) 2
Cal.4th 1148, 1191.)  Unless there is a name="SR;1456">reasonable likelihood the jury
misunderstood the challenged instruction in a manner that
violated defendant’s rights, we must uphold the court’s charge to the jury.  (Ibid.)

                        The trial court
instructed the jurors they could find appellant guilty of murder if he directly
committed that offense, or aided and abetted Carlson in doing so.  The court also instructed on the natural and
probable consequences doctrine with respect to the theories of aiding and
abetting and conspiracy.  Under those
instructions, the jurors were told they could convict appellant of murder if he
aided and abetted an assault with force likely to produce great bodily injury,
or if he agreed with Carlson to commit that offense and murder was a natural
and probable consequence of that crime or their agreement to commit it.    

court’s instructions also included this sentence:  “Before you may decide whether the defendant
is guilty of murder you must decide
whether he is guilty of assault with force likely to produce great bodily
injury.”  (Italics added.)  Read in isolation, that instruction was
incorrect because appellant’s commission of assault with force likely to
produce great bodily injury was not a necessary condition for a murder conviction
under the uncharged conspiracy theory. 

viewed in context, it is evident the court was not setting forth a necessary
condition for convicting appellant of murder. 
Instead, the court was simply explaining the requirements for a
particular theory of murder.  The subject
language was included in the instructions on aiding and abetting.  Specifically, the language was included to
explain the prosecution’s natural and probable consequences theory.  Because assault with force likely to produce
great bodily injury was alleged as the target offense under that theory, the
jury would have had to find appellant committed that offense in order to
convict him of murder under that theory. 
Therefore, the challenged language made sense in the context in which it
was given. 

                        Viewing the instructions
as a whole, it is not reasonably likely the jury construed the language in a
manner that violated appellant’s rights. 
If anything, the subject language could only have benefitted appellant
by requiring the jury to find he committed the target offense when, in fact,
his commission of that offense was not a prerequisite for a murder
conviction.  All things considered, the
prosecution had greater cause to complain about the subject language than

his instructional claim one step further, appellant argues his conviction must
be reversed because there is insufficient evidence he committed assault with
force likely to produce great bodily injury so as to support the prosecution’s
natural and probable consequences theory. 
Assuming the jury based its verdict solely on that theory, the evidence nevertheless
shows appellant committed that offense. 
Indeed, at one point or another, Calderon, Parenti, Mata and Carlson all
implicated appellant as the person who stabbed Gorena.  Accordingly, any error in the court’s aiding
and abetting instructions was harmless.    


appellant claims the trial court prejudicially erred in failing to instruct the
jury to consider Carlson’s testimony with caution because he was an accomplice
to the murder.  The claim is not well

                        “‘An accomplice is
. . . one who is liable to prosecution for the identical offense charged
against the defendant on trial in the cause in which the testimony of the
accomplice is given.’  [Citation.]  If sufficient evidence is presented at trial
to justify the conclusion that a witness is an accomplice, the trial court must
so instruct the jury, even in the absence of a request.  [Citation.] 
Of course, an accomplice has a natural incentive to minimize his own
guilt before the jury and to enlarge that of his cohorts; accordingly, the law
requires an accomplice’s testimony be viewed with caution to the extent it
incriminates others.  [Citations.]  Moreover, an accomplice’s testimony must be
corroborated before a jury may consider it. 
[Citation.]”  (People v. Brown
(2003) 31 Cal.4th 518, 555.)

                        The trial court’s duty to instruct on
these principles arises only when there is substantial evidence to support the
conclusion that one of the government’s witnesses is an accomplice.  (People v. Lewis (2001) 26 Cal.4th
334, 369.)  It is not enough that the
witness knew about the subject crime, was present during its commission and
failed to prevent it from occurring.  (People
v. Stankewitz
(1990) 51 Cal.3d 72, 90-91.) 
To be considered an accomplice, the witness must have “‘act[ed] with
knowledge of the criminal purpose of the perpetrator and with an intent
or purpose either of committing, or of encouraging or facilitating commission
of, the offense.’  [Citations.]”  (Ibid.) 

                        Assuming there was substantial evidence from
which the jury could infer Carlson was an accomplice, the failure to instruct
the jury to view his testimony with caution could not have been prejudicial to
appellant.  Much of Carlson’s testimony
was actually favorable to appellant, his testimony was amply corroborated by
other witnesses, and the jury knew he made a deal with the state in order to
avoid prosecution on the
murder charge.  Under these the
circumstances, little would have been added by instructing the jury to view Carlson’s
testimony cautiously on the basis he was an accomplice.  Accordingly, the absence of such an
instruction does not warrant reversal.  (>People v. Lewis, supra, 26 Cal.4th at pp.


further argues the court erred by failing to instruct the jury on the
foundational requirements for an adoptive admission.  This claim also fails.

testified that less than an hour after the stabbing, Carlson told him he had
“beat the shit out of” Gorena and appellant had “stuck him.”  Because appellant was present but didn’t say
anything in response to Carlson’s statement, the prosecutor argued appellant adopted
the statement as true by virtue of his silence. 
Although it was not requested to do so, appellant contends the trial
court should have instructed the jury on the foundational
requirements for an adoptive
admission.href="#_ftn2" name="_ftnref2" title="">[2]

claim is contrary to People v. Carter
(2003) 30 Cal.4th 1166, 1198 (Carter),
in which our Supreme Court ruled that trial courts do not have a sua sponte
duty to give CALCRIM No. 357.  Nevertheless,
appellant argues the trial court should have given the instruction in his case
because Carter was decided several
years after this case arose, the bench notes to CALCRIM No. 357 do not
acknowledge Carter’s holding, and
much of the evidence presented against him consisted of hearsay. 

irrespective of the holding in Carter,
the Evidence Code makes clear the decision to instruct on the foundational
requirements for certain evidentiary facts, such as those pertaining to
adoptive admission, is a discretionary matter. 
 (Evid. Code, § 403, subd.
(c)(1).)  While trial courts are
empowered to instruct on those requirements, the Evidence Code does not require
them to do so in the absence of a request from counsel.  (Ibid.)

in any event, any error in failing to give CALCRIM No. 357 was surely
harmless.  As Carter explained, “The instruction is
largely a matter of common sense —silence in the face of an accusation is
meaningful, and hence may be considered, only when the defendant has heard and
understood the accusation and had an opportunity to reply.”  (Carter,
, 30 Cal.4th at p. 1198.)  So “[g]iving
the instruction might cause the jury to place undue significance on bits of
testimony that the defendant would prefer it not examine so closely.”  (Ibid.)  Given the circumstances surrounding the
statement in question and the strength of the evidence against appellant, it is
virtually inconceivable he would have obtained a better result had CALCRIM No.
357 been given.  Its absence from the court’s
instructions is not therefore cause for reversal.         name="SR;6733">                  


argues the cumulative effect of the trial court’s errors compels reversal.  However, for the reasons explained above, we
do not believe there was any error which, either alone or in combination of
others, rendered appellant’s trial unfair. 
Alas, this argument fails, too.   


sentencing, the trial court failed to award appellant any presentence conduct
credits.  The parties agree, as do we,
that appellant is entitled to conduct credit amounting to 15 percent of his
actual time in custody.  (Pen. Code, § 2933.1,
subd. (a); People v. Ly (2001) 89
Cal.App.4th 44, 47.)  We will modify the
judgment accordingly.       


judgment is modified to award appellant 226 days of presentence conduct credit,
which combined with his 1,509 days of custody, amounts to a total presentence
credit award of 1,735 days.  The clerk of
the trial court is directed to prepare

an amended abstract of judgment reflecting this modification
and send a certified copy to the Department of Corrections and
Rehabilitation.  In all other respects,
the judgment is affirmed.   



















name="_ftn1" title="">            [1]           Parenti and
Calderon were married by the time of trial in 2012.


name="_ftn2" title="">            [2]           Those requirements are set forth in CALCRIM No. name="SR;3794">357, which states: 
“If you conclude that someone made a statement outside of court that . .
. tended to connect the defendant with the commission of the crime . . . and
the defendant did not deny it, you must decide whether each of the following is
true:  [¶] 1. The statement was made to
the defendant or made in (his/her) presence; [¶] 2. The defendant heard and
understood the statement; [¶] 3. The defendant would, under all the circumstances,
naturally have denied the statement if (he/she) thought it was not true; [¶]
AND [¶] 4. The defendant could have denied it but did not.  [¶] If you decide that all these requirements
have been met, you may conclude that the defendant admitted the statement was
true.  [¶] If you decide that any of
these requirements have not been met, you must not consider either the
statement or the defendant’s response for any purpose.”

Description Joe Garay, Jr., appeals from a judgment sentencing him to 15 years to life in prison for second degree murder. He contends his conviction must be reversed due to instructional error, but we disagree. Other than to modify the amount of appellant’s presentence credits, we affirm the judgment against him.
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