P. v. Garcia

Filed 9/14/06 P. v. Garcia CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Ruth A. Kwan, Judge. Affirmed.

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

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Dawn S. Mortazavi, Deputy Attorneys General, for Plaintiff and Respondent.

_________________

A jury convicted appellant Carlos Garcia of one count of second degree murder in violation of Penal Code section 187, subdivision (a).[1] The jury found true the allegation that appellant personally and intentionally discharged a firearm, causing death within the meaning of section 12022.53, subdivision (d). The trial court sentenced appellant to 40 years to life in prison, consisting of 15 years for the murder and 25 years for the firearm-use enhancement.

Appellant appeals on the ground that he was deprived of his constitutional right to effective assistance of counsel when counsel failed to request instructions advising the jury that evidence of the victim's antecedent acts of violence was justification for appellant to react more quickly and harshly.

FACTS

I. Prosecution Evidence

At approximately 7:30 p.m. on the afternoon of June 14, 2001, 18-year-old Omar Rivera (Omar) returned home and parked his car in the street. His mother, Esther Rivera (Esther), saw him arrive and watched him through a window as he sat and listened to music in his car.[2] Esther then saw Omar exit his car and close the driver's side door. Omar approached the rear driver's side door of his car when a small white car slowly drove out of an alley across the street and stopped beside Omar and his car. The voice of a young male called out Omar's name. Omar turned halfway around and four or five shots were fired. Omar fell against his car and then fell forward. The white car drove towards the alley. Omar got up and tried to run down the street but he fell to the ground. Esther ran outside and saw a young, light-skinned Hispanic male with short hair at the wheel of the white car. As she and her husband ran toward Omar, she heard Omar call out to her. Omar then fell to the ground and did not speak again.

The Riveras' next-door neighbor, Ramona Martinez (Martinez), was watering plants near the sidewalk when she saw a white car coming down the street very slowly. The car approached Omar's car and stopped. Martinez heard four shots and looked up to see Omar standing outside his car. The white car drove into the alley. Before the shots, Martinez had heard someone call out Omar's name. The firing of shots occurred immediately afterwards. Martinez saw that the driver of the white car wore a baseball cap with the letter â€