P. v. Garcia
Filed 7/6/12 P.
v. Garcia CA4/1
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
PHILLIP
CARDWELL GARCIA et al.,
Defendants and Appellants.
D059197
(Super. Ct. No. SWF011785)
APPEALS
from judgments of the Superior Court of
F. Paul Dickerson III, Judge. Affirmed.
Phillip
Cardwell Garcia and Keiron Marquitt Elias appeal judgments sentencing them to
prison after a jury found them guilty of the
Wendler. Garcia contends the trial court
erroneously failed to instruct the jury to view with caution evidence of
incriminating statements he made to Elias before trial. Elias contends the trial court erroneously
denied his motion for new trial, which was based on Garcia's confession at his
sentencing hearing that he murdered Wendler and framed Elias. We reject these contentions and affirm both
judgments.
I.
FACTUAL BACKGROUND
A. Wendler's
Murder
After
having been away for several days, Wendler's daughter Skyla and her fiancé
returned one evening to the house they shared with Wendler. Skyla noticed Wendler's truck was missing and
the front door was ajar. Upon entering
the house, she was surprised to find it in filthy disarray, for Wendler was
fastidious about keeping the house clean.
Skyla came upon Wendler's corpse in a hallway and screamed. Her fiancé escorted her out of the house and
telephoned the police.
Police
investigators who responded to the call found Wendler had been hog-tied with a
combination of duct tape, electrical cord and nylon rope. A sock was stuffed into his mouth, and a T‑shirt
was wrapped around his neck. Blood was
found on Wendler's face and throughout the house. A
determined the cause of death was strangulation.
B. Evidence
Implicating Garcia in the Murder
Evidence
established Garcia and Wendler knew each other.
Skyla testified that she met Garcia at Wendler's house one day after
work and that the two men appeared to be friends. A piece of paper with the name
"Phil" and Garcia's telephone number written on it was found in
Wendler's bedroom.
Evidence
also established Garcia and Wendler engaged in illegal activities
together. Robinette Anderson, a
prostitute, testified Garcia arranged for her to provide sexual services to
Wendler. According to Anderson, Garcia
also sold illicit drugs to Wendler.
Forensic
evidence indicated Garcia was in Wendler's house at or near the time of the
murder. Garcia's fingerprint was found
on a table in the living room, near a couch stained with Wendler's blood. DNA matching Garcia's profile was recovered
from the mouth of an open whisky bottle found in the kitchen.
Evidence
also established Garcia had a financial motive for the murder. Three individuals testified that during the
three weeks preceding the murder, Garcia had given them approximately $15,000
worth of checks drawn on Wendler's account with instructions to deposit the
checks, wait for them to clear, and then withdraw the money and give it to
Garcia. About a week before the murder, Anderson overheard
Garcia tell Elias how much money Wendler had.
During the two weeks after Wendler's murder, purchases totaling several
thousand dollars were charged to his credit and debit cards. When police finally arrested Garcia, he had
Wendler's wallet; credit cards; Social Security card; and driver's license, on
which Garcia's photograph had been substituted for Wendler's.
C. Evidence
Implicating Elias in the Murder
Forensic
evidence implicated Elias in Wendler's murder.
A hair from which investigators extracted DNA matching Elias's profile
was found on Wendler's corpse. DNA
extracted from another such hair was a partial match to Elias.
Other
evidence linked Elias to Wendler's truck.
The same day Skyla found Wendler's corpse, a farmer found Wendler's
truck abandoned in a field and reported it to the local sheriff. By the time investigating officers arrived,
the truck had been burned. Inside or
near the truck, officers found nylon rope matching the rope used to bind
Wendler; a credit card belonging to Wendler; a photograph with a note on the
back addressed to Elias; a document bearing Elias's name; and a police
officer's business card bearing the number of a case involving Elias.
There
was also evidence Elias participated in the fraudulent check-cashing
scheme. Two of the individuals to whom
Garcia had given checks drawn on Wendler's account testified that Elias was
involved. One of them decided to keep
the money and subsequently received telephone calls from Elias threatening to
kill him if he did not hand over the money.
II.
PROCEDURAL BACKGROUND
The
People charged Garcia and Elias with the murder of Wendler. (Pen. Code, § 187, subd. (a);
undesignated statutory references are to this Code.) The People alleged the murder was first
degree because Garcia and Elias committed the murder "willfully,
unlawfully, and with deliberation, premeditation, and malice aforethought." (See § 189.) As a special circumstance, the People alleged
the murder was carried out for financial gain.
(§ 190.2, subd. (a)(1).)
The
jury found Garcia and Elias guilty of first
degree murder. The jury found the
financial gain special circumstance allegation true as to Garcia; but it was
unable to reach a verdict on the allegation as to Elias, and the People
subsequently dismissed the allegation as to him.
The
court sentenced Garcia to life in prison without the possibility of
parole. (§ 190.2, subd. (a)(1).) As discussed in detail below (see pt.
III.B.1., post), at his sentencing
hearing Garcia confessed to murdering Wendler and framing Elias.
Elias
moved for a new trial based on Garcia's confession. (See § 1181, subd. 8.) The court denied the motion and sentenced
Elias to prison for 25 years to life.
(§ 190, subd. (a).)
III.
DISCUSSION
Garcia
and Elias each raise a single claim of error on appeal. Garcia contends the trial court erred by
failing to instruct the jury to view with caution Anderson's testimony relating
Garcia's statements to Elias about how much money Wendler had. Elias contends the trial court erroneously
denied his motion for new trial,
which was based on Garcia's confession at the
Elias. We shall consider these
contentions in turn.
A.
Instruct the Jury to View Garcia's Admissions with Caution Was Harmless
Garcia
complains the trial court failed to instruct the jury, pursuant to CALCRIM
No. 358,
title="">[1]
to view with caution Anderson's testimony that a week before the murder she
heard Garcia talking to Elias about how much money Wendler had. According to Garcia, the "court's
failure to comply with its sua sponte
duty to instruct with CALCRIM No. 358 was prejudicial error that requires
reversal of [his] conviction." We
agree that there was error, but not that it requires reversal.
"It
is well established that the trial court must instruct the jury on its own
motion that evidence of a defendant's unrecorded, out-of-court oral admissions
should be viewed with caution."
(People v. McKinnon (2011) 52
Cal.4th 610, 679 (McKinnon).) In this context, "admission" means
a statement tending to establish the defendant's guilt. (People
v. Slaughter (2002) 27 Cal.4th 1187, 1200.)
Here, Anderson's testimony that a week before the murder she heard
Garcia tell Elias how much money Wendler had was evidence of an unrecorded,
out-of-court statement by Garcia that tended to establish that he and Elias
committed the crime together for financial gain. Thus, as Garcia argues and the People
concede, the trial court had a sua sponte duty to instruct the jury with
CALCRIM No. 358. Its omission of
the instruction was error. (
"The
omission, however, does not constitute reversible error if upon a reweighing of
the evidence it does not appear reasonably probable that a result more favorable
to defendant would have been reached in the absence of the error." (People
v. Beagle (1972) 6 Cal.3d 441, 455; accord, McKinnon, supra, 52
Cal.4th at p. 679.) "Since the
cautionary instruction is intended to help the jury to determine whether the statement
attributed to the defendant was in fact made, courts examining the prejudice in
failing to give the instruction examine the record to see if there was any
conflict in the evidence about the exact words used, their meaning, or whether
the admissions were repeated accurately."
(People v. Pensinger (1991) 52
Cal.3d 1210, 1268.) In assessing
potential prejudice, reviewing courts disregard evidentiary conflicts regarding
"details" of the defendant's admissions "that were
immaterial"; they consider only conflicts concerning the
"critical" content of the admissions.
(People v. Padilla (1995) 11
Cal.4th 891, 922-923 (Padilla),
overruled on unrelated grounds by People
v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) The California Supreme Court has held
"harmless the erroneous omission of the cautionary language when, in the
absence of such conflict, a defendant simply denies that he made the
statements. [Citation.] Further, when the trial court otherwise has
thoroughly instructed the jury on assessing the credibility of witnesses, [the
Supreme Court has] concluded the jury was adequately warned to view their
testimony with caution." (
Here,
Anderson and a police investigator who took a pretrial statement from her were
the only trial witnesses to testify regarding what Anderson heard Garcia tell
Elias about Wendler's money before the murder.
Although Garcia correctly points out that at trial Anderson denied or
could not remember some of the details she previously had told the investigator
(e.g., the amount of the money Wendler had or whether the money was buried in
his basement), the evidence was not conflicting as to the essence of what
Garcia had told Elias before the murder:
that Wendler had a substantial amount of money.
supra, 11 Cal.4th at
pp. 922-923.) Thus, there was no
material dispute "concerning the precise words used, their meaning or
context, or whether the oral admissions were remembered and repeated
accurately." (People v. Bunyard (1988) 45 Cal.3d 1189, 1224 (Bunyard).) Rather, by
pleading not guilty and arguing to the jury there was no evidence of an
agreement with Elias to murder Wendler, Garcia simply "denied making the
statements attributed to him, and the question for the jury was whether
[Anderson was a] credible witness[] or had fabricated [her] testimony
concerning his admissions to [her]."
(People v. Dickey (2005) 35
Cal.4th 884, 906 (Dickey).)
On
the matter of judging the credibility of witnesses, the trial court gave the
jury thorough instructions, though it did neglect to give a cautionary
instruction patterned after CALCRIM No. 358. The court gave a general instruction that
advised the jury to consider, among other factors, a witness's prior consistent
or inconsistent statements; conviction of a felony or involvement in other
conduct that reflected on credibility; and partially false testimony. (CALCRIM No. 226.) Other, more specific instructions advised the
jury to consider the fact a witness had committed a crime or other misconduct
in evaluating the credibility of the witness's testimony (CALCRIM
No. 316), and to consider evidence of statements a witness made before
trial to evaluate whether the witness's testimony in court was credible
(CALCRIM No. 318). The court also
instructed the jury that although the testimony of only one witness can prove
any fact, "[b]efore [it] conclude[s] that the testimony of one witness
proves a fact, [it] should carefully review all the evidence." (CALCRIM No. 301.)
Several
aspects of Anderson's trial testimony triggered application of these
instructions. For example, Anderson
admitted she was a prostitute and had been convicted of three felonies. She also acknowledged she did not testify
truthfully at Garcia's preliminary hearing when she denied knowing Elias and
denied having heard Garcia tell Elias before the murder that Wendler had a
substantial amount of money. Further,
Anderson was the only witness to testify she actually heard the admissions
attributed to Garcia. Given the trial
court's comprehensive instructions on judging witness credibility "and
given the extensive impeachment of [Anderson] raising credibility issues to
which the instructions were pertinent, the jury was unquestionably aware [her]
testimony should be viewed with caution."
(Dickey, supra, 35 Cal.4th at pp. 906-907, fn. omitted.)
In
sum, there was no evidentiary conflict about the material content of Garcia's
admissions, and the jury was adequately instructed on how to judge Anderson's
credibility. The error in failing to
provide an additional cautionary instruction patterned after CALCRIM
No. 358 was therefore harmless.
(E.g., McKinnon,
B.
by Denying Elias's Motion for New Trial
Elias
contends the trial court erroneously denied his motion for new trial, which was
based on Garcia's confession at his sentencing
hearing that he murdered Wendler and planted evidence to implicate
Elias. According to Elias, Garcia's
confession, "if overlaid on the case, made a different result reasonably
probable," so that "it was an unmistakable abuse of discretion for
the trial court" to deny the new trial motion. After setting forth additional background
information, we shall explain why Elias's contention has no merit.
1.
At his
sentencing hearing, Garcia admitted he murdered Wendler and said he was willing
to accept responsibility for the murder:
"But now
remorse done set in, and now I feel guilty for what I did. And now that I'm expressing it to you, it's
like it's being lifted up off my shoulders. . . . I'm wrong, and I'm admitting to you that I
did the crime that I was convicted for.
And I just want to come clean with that so that I can have a clean
slate. And whatever the consequences is
that I have to deal with, I'm ready to deal with them. You know, you have a job to do. So, you know, I'm ready to accept
responsibility on that half."
Garcia
also told the court "there's another twist":
"[W]hen I
went back and I burnt that vehicle a second time, I put Mr. Elias's
wallet, a picture of his three girls, his — whatever that was, a W‑2,
a check stub, I think it was, and you know, the card from the police department
pointing at him. Because if something
happened, I didn't want to be the one that got caught up.
"But I
thought I was going to beat this case.
But seeing that I didn't, and now that I know that I destroyed this
young man and he wasn't nowhere involved in this case with
me . . . ; Mr. Elias didn't have anything to do with
this — I'm just here to let you know that I'm going to accept the
responsibility for what I did."
Garcia
further explained that because he and Elias lived together, he had access to
Elias's personal effects and was able to plant some of them in and around
Wendler's truck. Garcia, however, could
not fully explain how Elias's hair got onto Wendler's corpse: "Now his hair — with that jersey on
I had of his, I don't know. I don't know
how that got there. That was unexpected. I didn't know about that until trial."
Based
on Garcia's confession, Elias moved for a new trial on the ground of newly discovered
evidence. (See § 1181,
subd. 8.) In support of the motion,
Elias submitted a declaration from Garcia in which Garcia stated that his
confession at the sentencing hearing that he framed Elias was true and correct,
and that if placed under oath he would make the same confession. The People opposed the motion on the ground
Garcia's confession was not credible.
At
the hearing on the new trial motion, the court found Garcia's confession that
he framed Elias was "not credible" in light of both the testimony and
physical
evidence implicating Elias introduced at trial and Garcia's "track
record, a lifetime of crimes of moral turpitude, and now including
murder." It appeared to the court
that by confessing Garcia "was trying to at least assist his confederate
in getting a new trial." The trial
court also found a different result on retrial was not reasonably probable were
Garcia to testify at a new trial that he framed Elias, because such testimony
"would be rejected out of hand."
The court therefore denied the motion.
2.
As
noted, Elias moved for a new trial on the ground that "new evidence [was]
discovered material to [him], and which he could not, with reasonable
diligence, have discovered and produced at the trial." (§ 1181, subd. 8.) To justify a new trial on this ground, the
newly discovered evidence " 'must make a different result
probable on retrial.' "
(People v. Verdugo (2010) 50
Cal.4th 263, 308 (Verdugo).) To determine whether a different result is
likely on retrial, the trial court must consider "all the evidence, old
and new" (People v. Clauson (1969)
275 Cal.App.2d 699, 706 (Clauson)),
and "may consider the credibility as well as materiality of the [new]
evidence" (People v. Beyea (1974)
38 Cal.App.3d 176, 202 (Beyea),
disapproved on other grounds by People v.
Blacksher (2011) 52 Cal.4th 769, 808; accord, People v. Delgado (1993) 5 Cal.4th 312, 329). Here, as noted, the trial court denied Elias's
new trial motion because it found Garcia's confession was not credible and
therefore a different result was not likely on retrial were Garcia to testify
that he framed Elias.
On
appeal from an order denying a motion for
new trial, we apply the deferential abuse of discretion standard. (E.g., Verdugo,
supra, 50 Cal.4th at p. 308;
890 (Earp).) " '[W]e
accept the trial court's credibility determinations and findings on questions
of historical fact if supported by substantial evidence.' " (Verdugo, at p. 308.) In
addition, "we justifiably accord considerable deference to the trial judge
'because of "his observation of the witnesses, [and] his superior
opportunity to get 'the feel of the case.' " ' " (People v. Hayes (1985) 172 Cal.App.3d 517, 524-525 (
Substantial
evidence supports the trial court's finding that Garcia's confession was not
credible. The court did not, as Elias
complains, make a "perfunctory assignation of incredulity to the
evidence" presented at Garcia's sentencing, or subject that evidence to
"ready dismissal." Rather, the
court presided over a trial at which Garcia was found guilty of murdering
Wendler for financial gain and at which evidence was introduced that Garcia had
masterminded a fraudulent check-cashing scheme and had stolen Wendler's
identity. The court read and considered
the probation officer's report, which detailed Garcia's extensive criminal
history dating back to 1989 and including convictions of, among other crimes,
theft, burglary, false impersonation and possession of stolen mail. The court also heard Garcia admit at his
sentencing hearing: "Everything I
did was about fraud. From my previous
record you can see, from the federal case, everything is checks fraud, credit
cards. That's what I'm about." The trial court thus accurately described
Garcia's "track record" as "a lifetime of crimes of moral
turpitude, and now including murder."
And, from that "track record" the court reasonably concluded
Garcia's confession to framing Elias was not credible and would not produce a
different result for Elias if admitted at a new trial. (See Beyea,
supra, 38 Cal.App.3d at p. 202
[trial court may consider credibility in assessing probability of different
result on retrial]; see also Evid. Code, § 788 [prior felony convictions
may be used to attack credibility of witness]; People v. Harris (2005) 37 Cal.4th 310, 337 [prior conduct involving
moral turpitude bears on veracity of witness].)
The
trial court also reasonably concluded Garcia's confession was not credible
because it was motivated by a desire to help Elias obtain a new trial. Courts have noted that it is not uncommon for
a witness to come forward after trial to attempt to absolve a confederate who
has been convicted. (See, e.g.,
475, 488; People v. Hernandez (1971)
19 Cal.App.3d 411, 417; People v.
Gompertz (1951) 103 Cal.App.2d 153, 163; People v. Sullivan (1906) 3 Cal.App. 502, 512-513.) Under such circumstances, "[t]he trial
court was not bound to accept the statement of [Garcia] as true. [Citation.]
It was entitled to regard it with distrust and disfavor." (Gompertz,
at p. 163.)
Furthermore,
in determining whether Garcia's confession was credible and whether its
introduction at a new trial would likely result in a different outcome for
Elias, the trial court correctly considered "all the evidence, old and
new." (Clauson, supra,
Elias in the murder, including "the physical evidence that was found where
Mr. Elias was located" (by which the court apparently meant the
documents found in or near Wendler's truck and the hairs found on Wendler's
corpse), for much of which Garcia's confession did not account. The court concluded that when "you put
all of that together, there is absolutely no way that the verdict would have
been . . . anything other than what it was, which was guilty of first
degree murder." Because the trial
court was able to " ' "get
'the feel of the case' " ' " by observing the witnesses when they testified at trial and
Garcia when he confessed at the sentencing hearing, whereas we have only a cold
appellate record, we must "accord considerable deference" to the
trial court's determination that introduction of Garcia's confession at a new
trial likely would not produce a different result for Elias. (Hayes,
supra, 172 Cal.App.3d at
pp. 524-525.)
In
sum, the trial court did not commit " ' " 'a manifest and unmistakable abuse of
discretion' " ' " by denying Elias's
new trial motion. (Earp, supra, 20 Cal.4th
at p. 890 [affirming denial of new trial motion based on new evidence that
trial court found " 'inherently untrustworthy
. . . and not worthy of belief ' "].)
DISPOSITION
The judgments are affirmed.
IRION, J.
WE CONCUR:
McINTYRE, Acting P. J.
O'ROURKE,
J.
name="_ftn1" title="">[1] CALCRIM No. 358
states: "You have heard evidence
that the defendant made [an] oral or written statement[s] (before the
trial/while the court was not in session).
You must decide whether the defendant made any (such/of these)
statement[s], in whole or in part. If
you decide that the defendant made such [a] statement[s], consider the
statement[s], along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance
to give to the statement[s].
"
(the/a) defendant tending to show (his or her) guilt unless the statement was
written or otherwise recorded.]"
(Italics added.)
name="_ftn2" title="">[2] To be sure, Anderson
was not always consistent about whether she heard Garcia tell Elias about
Wendler's money. At trial, she admitted
that at Garcia's preliminary hearing she had denied hearing Garcia tell Elias
about Wendler's money. Anderson
explained, however, that Garcia had threatened her before the preliminary
hearing; but between Garcia's preliminary hearing and the trial, she had moved
to a different neighborhood and no longer feared being labeled a
"snitch."
