P. v. Garcia

















Filed 1/16/13 P. v. Garcia
CA2/3











NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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




>

THE PEOPLE, Plaintiff and Respondent, v. JUAN JOSE GARCIA, Defendant and Appellant.

B234348 (Los Angeles County Super. Ct. No. VA055858)

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

Robert J. Higa, Judge.
Affirmed.

Richard D. Miggins,
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, Linda C. Johnson and Carl N. Henry, Deputy
Attorneys General, for Plaintiff and Respondent.



_________________________



Appellant Juan Jose Garcia appeals
from the judgment entered following his conviction by jury on count 1 – lewd
act upon a child (Pen. Code, § 288, subd. (a)).
The court sentenced appellant to prison for six years. We affirm the judgment.

>FACTUAL SUMMARY

Viewed in accordance with the usual
rules on appeal (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is
undisputed, established that on August
15, 1999, 12-year-old Cynthia V. (Cynthia) lived in
Artesia with her parents, relatives, and appellant. On that morning, she was cleaning a
restroom. Appellant invited her into his
bedroom. She entered and he shut the
door. Cynthia testified appellant
smelled like beer and looked like he was drunk.
Appellant grabbed her arms and tried to kiss her while she
resisted. Appellant was loudly playing
music. Cynthia’s brother looked into the
bedroom through an opening and her uncle banged on the bedroom door. Cynthia jumped out a window.

Cynthia’s aunt saw Cynthia jump out
the window and asked her what had happened.
Cynthia denied anything had happened.
She was afraid of her father because she was not supposed to be in
appellant’s bedroom. Cynthia’s uncle
told appellant to leave. Maria,
Cynthia’s mother, arrived home.
Appellant left. Cynthia denied to
Maria that anything had happened.
However, Maria called the police.
Perhaps an hour after the incident, Cynthia spoke to a sheriff’s deputy
at the house.

Cynthia
testified at trial that she did not want to testify and did not want her
boyfriend or co-workers to learn about what had happened. Cynthia was embarrassed about appearing in
court and felt responsible for what had happened. She did not remember telling police that
appellant pushed her onto the bed, removed his shorts and underwear, put his
penis on her vagina as she struggled, and rubbed his penis on her vagina. She testified she probably had lied to police
because Maria had been saying appellant raped Cynthia, and Cynthia’s aunt had
told Maria to call the police.

Los Angeles County Sheriff’s
Lieutenant Arthur Scott testified that on August 20, 1999, he
interviewed Cynthia by herself at the house and she told him the
following. Cynthia was cleaning a
restroom when appellant invited her into his bedroom. She refused to enter. About an hour later, he again asked her to
enter his bedroom. Thinking he was going
to ask a question, she entered.
Appellant asked Cynthia to close the bedroom door but she refused. Appellant closed the bedroom door, sat on the
bed, and asked her to approach him.
Appellant took her by her hand and pulled her to him. Cynthia began screaming but his music was
playing loudly and no one could hear her.

Appellant pushed Cynthia onto his
bed and then removed his pants. He tried
to remove her skirt but Cynthia turned away and she pulled her skirt back
up. Appellant pulled her skirt above her
vaginal area and removed her underwear.
While she resisted, appellant lied on top of her and his erect penis was
on top of her vagina.

In August 1999, appellant had been
employed at a construction company. He
quit his job without giving notice to his employer and apparently moved from
California.

In December 2010, appellant was
arrested for an alcohol-related incident.
The present case was assigned to Los Angeles County Sheriff’s Deputy
Marlene Vega who, the day after appellant’s above arrest, interviewed him
concerning the present case. The
interview was recorded on a CD. During
the interview, appellant initially told Vega that he did not do anything to
Cynthia and nothing happened. Vega said
she knew appellant had tried to have sex with Cynthia even though he did not
have sex with her. Appellant then told
Vega the following. Appellant grabbed
Cynthia by her hand, closed the door, pulled down her pants, and brushed his
penis over her vagina. He also kissed
Cynthia’s lips. He was “kind of
drunk.” After someone knocked on the
door, he told Cynthia to exit through a window.


Vega
asked appellant why he did not insert his penis into Cynthia’s vagina. Appellant replied as follows. Appellant had been unable to put his penis
into Cynthia’s vagina. Cynthia had
agreed to have sex, but once someone knocked on the door, she was afraid and
there had not been enough time.

The CD and a transcript thereof were
admitted into evidence. (References
herein to the transcript are to copies thereof.) Appellant presented no defense evidence.

>ISSUES

Appellant
claims (1) the trial court erroneously permitted the playing of the CD to the
jury and (2) he was denied effective assistance of counsel by his trial
counsel’s failure to request an instruction indicating that href="http://www.mcmillanlaw.com/">voluntary intoxication could negate the
requisite criminal intent.

>DISCUSSION

1. The
Trial Court Did Not Err by Permitting the Playing of the CD.

a. Pertinent Facts.

Vega
conducted the interview of appellant in Spanish. On May 9, 2011,
appellant filed a motion in limine regarding the interview. The transcript was attached to the
motion. The transcript reflects a state
certified court interpreter did the transcription in Spanish and the translation
in English. The transcription and
translation are side by side in the transcript.


The transcript reflects laughter occurred after appellant provided
his name to Vega. The transcript also
reflects laughter occurred when appellant explained to Vega that appellant (1)
had rubbed his penis against Cynthia’s vagina, and the Spanish word appellant
used during that explanation meant “to rub, like this,” (2) had not put his
penis inside Cynthia because he had been unable to do so, and (3) had tried to put
his penis inside her but “couldn’t get in.”

On May 11, 2011,
the jury was sworn.href="#_ftn1" name="_ftnref1"
title="">[1] On that date, and outside the presence of the jury, the prosecutor indicated he
intended to call Vega as a witness and to play the CD to the jury. Appellant objected, arguing that the
translation by jurors who understood Spanish and the translation in the
transcript might differ.

Appellant
suggested that the jury rely on the transcript.
The court asked if appellant was saying it was okay for the jury to have
the transcript. Appellant’s counsel
said, “Well, I can’t stop it. I know
that they’re going to have it because that’s what the People have and I know
the court would allow it in.”

The prosecutor argued that at points during interview,
appellant was joking and laughing about his inability to insert his penis into
Cynthia, it was necessary to play the CD so the jury could hear his tone and
demeanor during the interview, and his tone and the detail of his statements
proved his statements were voluntary and not fabricated.

The court overruled appellant’s objection to the playing of the CD and
stated transcripts would be distributed to the jury. The court later stated, “Just reading the
transcripts, some of that what he’s talking that flavor comes through. So, I think they should hear that.” (Sic.)

During Vega’s later testimony, a transcript was
distributed to each juror, then the CD was played. After the CD was played, the transcripts were
collected. The
prosecutor later commented, concerning Vega’s demeanor during the recorded
interview, that Vega was “kind of . . . joking” with appellant, and the
prosecutor asked if Vega had been trained regarding interviewing suspects. Vega indicated she had received training and
that the joking or establishing rapport with appellant was designed to make him
feel comfortable.

On May 12, 2011,
the CD (People’s exhibit No. 4A) and a transcript (People’s exhibit No.
4B) were admitted into evidence without further objection. People’s exhibit No. 4B is the same as the
transcript attached to appellant’s motion in limine, except only the latter
transcript contains a page reflecting a state certified court interpreter did
the transcription and translation.href="#_ftn2"
name="_ftnref2" title="">[2]

b. Analysis.

Appellant
claims the trial court abused its discretion and denied his rights to due
process and a fair trial by permitting the playing of the CD, because the
Spanish-speaking jurors provided their own translation of the CD and
disregarded the transcript with the result they based their verdict on
“different evidence” (AOB/15) than the non-Spanish-speaking jurors. We disagree.

First, “ ‘[e]vidence’ means testimony, writings, material objects,
or other things presented to the senses
that are offered to prove the existence or nonexistence of a fact.” (Evid. Code, § 140, italics added.) The only thing the playing of the CD
presented to the senses of the jury was a conversation in Spanish. Any translation of that conversation by a
juror was not “[e]vidence” within the meaning of Evidence Code section
140. All jurors heard the same
“[e]vidence,” i.e., the Spanish conversation, when the CD was played.

The playing of the CD, i.e., the Spanish conversation, provided evidence
of (1) what appellant said in Spanish, and (2) what occurred while
appellant was speaking. As for what occurred
while appellant was speaking, the court, during its final charge to the jury,
gave CALJIC No. 2.70 on the definition of confessions and admissions. That instruction (the validity of which is
undisputed) told the jury that they were the exclusive judges of whether a
confession or admission by appellant was credible, i.e., whether it was “true
in whole or in part.”

As indicated, the playing of the CD revealed laughter at various points,
including in contexts in which appellant discussed rubbing his penis against
Cynthia’s vagina and being unable to insert his penis in her vagina. The prosecutor argued appellant joked and
laughed about his inability to insert his penis into Cynthia, it was necessary
to play the CD so the jury could hear his tone and demeanor while making his
statements, and his tone and the detail of his statements indicated, inter
alia, they were not fabricated. The
court suggested it agreed with the prosecutor when the court stated, “[j]ust reading
the transcripts, some of that what he’s talking that flavor comes
through.” (Sic.)

An appellate
court applies an abuse of discretion standard of review to any trial court
ruling on the admissibility of evidence, including a ruling concerning
relevance. (People v. Waidla (2000) 22 Cal.4th 690, 717.) To the extent the playing of the CD provided
evidence of what occurred while
appellant spoke in Spanish, that evidence was relevant to appellant’s tone and
demeanor as conveyed by the conversation, facts that, in turn, were relevant to
whether appellant’s statements were credible.
This is true whether or not any juror translated the words that
appellant said.

The playing of the CD also provided evidence of what appellant said in
Spanish, which implicates appellant’s claim that jurors improperly translated
what he said. However, first, the burden
is
on appellant to demonstrate error from the record; error will not be
presumed. (In re Kathy P. (1979) 25 Cal.3d 91, 102; >People v. Garcia (1987)
195 Cal.App.3d 191, 198.) Appellant
has failed to demonstrate there were any jurors who understood Spanish. Second, appellant has failed to demonstrate that any juror(s) who understood
Spanish translated the conversation into English. The record permits the inference the jury was
reading the transcripts when the CD was playing.

Third, the record fails to demonstrate that any juror(s) communicated any
such translation to another juror(s).
Any such translation was simply an uncommunicated mental process of a
juror who understood Spanish. Evidence
Code section 1150, subdivision (a) provides that “[u]pon an inquiry as to the
validity of a verdict, . . . [n]o evidence is admissible . . . concerning the
mental processes by which [the verdict] was determined.” On this record, even if a juror translated
the conversation into English, section 1150 bars consideration of that fact.

Fourth, even if
we could consider a juror’s uncommunicated translation, appellant has failed to
demonstrate that any such translation was erroneous or differed from the
transcript. Fifth, the record fails to
demonstrate any juror disregarded the transcript, or adopted any translation by
the juror over the translation in the transcript.

The record
demonstrates a state certified court interpreter made the transcript. Appellant does not suggest the transcript was
erroneous. Appellant suggested to the
trial court that the jury rely on the transcript. Appellant did not object to the admission of
the transcript into evidence and there is no dispute the court properly
admitted it. The trial court did not
abuse its discretion or violate appellant’s right to due process or right to a
fair trial by permitting the playing of the CD.href="#_ftn3" name="_ftnref3" title="">[3]

2. >Appellant Was Not Denied Effective
Assistance of Counsel by His Trial Counsel’s Failure to Request a Voluntary
Intoxication Instruction.

The court
instructed on the elements of the present offense using CALJIC
No. 10.41. That instruction stated
an element of the present offense was “the touching was done with the specific
intent to arouse, appeal to, or gratify the lust, passions, or sexual desires
of that person or the child.” Appellant
did not request that the court give, and the court did not give, an instruction
indicating voluntary intoxication could negate said specific intent.

Appellant claims
his trial counsel’s failure to request such an instruction constituted
ineffective assistance of counsel. We
reject the claim. The record sheds no
light on why appellant’s trial counsel failed to request such an instruction,
counsel was not asked for an explanation, and we cannot say there simply could
not have been a satisfactory explanation.


Indeed, on this
record, appellant’s trial counsel reasonably could have concluded the trial
court properly would have denied any such request. Even if there was substantial evidence that
appellant had become voluntarily intoxicated, his trial counsel reasonably
could have concluded that appellant’s detailed account to Vega of what
appellant did with Cynthia in his bedroom reflected such a clear memory of
events that there was no substantial evidence appellant became intoxicated to
the point he failed to formulate the requisite href="http://www.fearnotlaw.com/">criminal intent. (Cf. People
v. Marshall (1996) 13 Cal.4th 799, 848; People
v. Ivans (1992) 2 Cal.App.4th 1654, 1661-1662.) No ineffective assistance of counsel
occurred. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1219.)

>DISPOSITION

The judgment is affirmed.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS









KITCHING,
J.



We concur:









KLEIN,
P. J.









ALDRICH, J.