P. v. Garcia
Filed 7/3/12 P.
v. Garcia CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
NICHOLAS
GARCIA,
Defendant and Appellant.
B232933
(Los Angeles County
Super. Ct. No.
GA079522)
APPEAL from a
judgment of the Superior Court of
County. Dorothy L.
Shubin, Judge. Affirmed.
Jennifer
Hansen, 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, Eric E. Reynolds and Allison H.
Chung, Deputy Attorneys General, for Plaintiff and Respondent.
* *
* * * *
Appellant Nicholas Garcia, appeals
from a judgment of conviction entered
after a jury found him guilty of assault with a deadly weapon (Pen. Code, §
245, subd. (a)(1)).
name="_ftnref1" title="">[1] The jury also found true the
allegation that appellant personally inflicted great bodily injury upon the
victim (§ 12022.7, subd. (a)). Appellant
admitted that he had suffered a prior felony conviction of
meaning of section 667, subdivision (a)(1) and the “Three Strikes†law (§§
1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
After denying appellant’s Romero
court sentenced appellant to nine years in state prison, consisting of the low
term of two years on the assault charge doubled pursuant to the Three Strikes
law to four years, plus a five-year serious felony enhancement (§ 667, subd.
(a)(1)). The court struck the punishment
for the great bodily injury enhancement (§ 12022.7, subd. (a)).
Appellant
contends he received ineffective assistance of counsel when his attorney failed
to request a jury instruction on the defense of accident. Appellant also contends that the trial court
abused its discretion in refusing to strike his prior felony strike. We reject these contentions and affirm the
judgment.
FACTS
Prosecution
Case
On the
evening of February
17, 2010, Stephen Soto, Daniel Ying, Kevin
Chu, and Taylor Reicheun were drinking beer at Al’s Bar in San Gabriel. Around midnight, they walked across the
street to Sharky’s Sports Bar to play pool and entered Sharky’s through a parking
lot at the rear of the building. Steven
Sanchez, who was familiar with Stephen Soto, was smoking a cigarette in the
parking lot when the group arrived. Soto
and Ying appeared to be intoxicated. Chu
was driving that night and only had one or two beers. Sanchez had consumed only about half a beer
in Sharky’s before coming outside to the parking lot.
Appellant
came out of the rear door of Sharky’s drinking from a glass pitcher containing
beer. He appeared to be intoxicated and
approached Soto and the others in the parking lot. Someone in Soto’s group told appellant that
it was illegal to drink on the street and that he should take the pitcher back
inside. Appellant angrily responded “Oh,
I’m not small. What are you trying to
say? I’ve done time. I can take care of myself.†Appellant then stated that he was going to
“slap each and every one†in Soto’s group.
Soto approached appellant and told him he would not be slapping
anyone. Soto, Ying, Chu and Reicheun
walked into Sharky’s and appellant remained in the parking lot and continued to
drink from the pitcher. Sanchez also
remained in the parking lot to finish his cigarette and tried to ignore
appellant who was hostile towards him.
A
couple of minutes later, Sanchez saw Ying come out of the bar to the parking
lot. Ying and appellant approached one
another and engaged in a verbal confrontation.
The confrontation escalated and Ying and appellant began wrestling. Sanchez attempted to break up the fight. Soto, who arrived in the parking lot as appellant
and Ying were rising from the ground, approached appellant and yelled at
him. A few seconds later, appellant’s
friend whom Sanchez had observed coming out of the bar closely behind Soto,
punched Soto in the face. Soto responded
by punching appellant’s friend in the face.
As Soto and appellant’s friend were engaged in this physical
confrontation, appellant approached Soto from behind and struck him on the head
with the glass beer pitcher, causing it to shatter into pieces. Soto touched the back of his head and found
that it was bleeding. Appellant and his
friend who had punched Soto in the face left together in the same car.
San
Gabriel Police Officer Vy Van responded to a call regarding a fight at Sharky’s
Bar in the early hours of February 18, 2010.
Officer Van noticed that Soto had a three-inch laceration on the top of
his head and blood was
coming down the left side and back of his head.
As a result of the attack, Soto suffered a concussion and was treated at
the hospital where he received 14 staples to close the head wound. Soto suffered memory loss and had headaches
for four to five months after the attack.
San
Gabriel Police Officer Andy Texeira also responded to the scene. As part of his investigation he went to the
San Gabriel Valley Medical Center which was located directly across the street
from Sharky’s Bar. Officer Texeira met
with appellant who was “extremely agitated, uncooperative,†and “under the
influence of alcohol.†Officer Texeira
observed that appellant’s right hand was “bleeding profusely.†All four fingers were sliced open and blood
was seeping through a towel that appellant had wrapped around his hand.
On
February 23, 2010, Detective Allen Sam of the San Gabriel Police Department met
with Soto and showed him a photographic six-pack. Soto identified appellant as the person he
saw holding the glass pitcher. Chu was
shown a photographic lineup and circled appellant’s picture and identified him
as “the person that hit my friend with the glass pitcher.†Sanchez identified appellant as the person
who “hit Stephen [Soto] over the head with a pitcher.â€
Defense
Case
Appellant
testified on his own behalf. He drank
three or four beers at home and then walked to Sharky’s Bar to play pool. While there he drank a few more beers and
bought a pitcher of beer for a friend from high school. When his friend left he took the pitcher with
the remaining beer and went outside to smoke a cigarette. A group of four or five men approached him in
the parking lot. An argument started but
he cannot remember how it was initiated because he was intoxicated.
Appellant
remembered that the group of men left and then returned a few moments
later. He was drinking from the pitcher
and smoking a cigarette as the group of men approached him. At least three people were close to him and
one grabbed his shirt as he was being pushed towards the street. Appellant remembered being hit a few times as
he was pushed around and struggled to keep his balance. As he tried to get away from the men he swung
his right hand holding the pitcher. He
felt a sharp pain in his right hand and saw that there was blood coming from
it. At that point he testified that he
“really wasn’t that concerned†whether the pitcher had hit someone because he
was in shock and wanted to move towards the bar to get away from the group of
men.
Appellant
recognized someone that he had seen playing pool earlier and asked for
help. That person gave appellant a shirt
to wrap his bloody hand and drove him to the hospital. At the hospital, he told Officer Texeira he
had been at a bar earlier but did not tell him that he sustained the injury
when he had been surrounded by a group of men and accidentally swung and broke
a glass pitcher.
A
week later Officer Texeira interviewed appellant regarding the incident and
appellant said he got into an argument with some men. They pushed and attacked him. In trying to get away from them, he felt a
pain in his hand and realized he had broken the glass pitcher. Appellant testified that he did not use the
pitcher as a weapon or in self-defense and that contact with a member of the
group “just sort of happened.â€
Rebuttal
Officer
Texeira testified that when he contacted appellant at the hospital and inquired
as to how he sustained the hand injury, appellant told him that he had been at
a bar and felt a sharp pain in his hand.
Appellant saw that his hand was bleeding and believed he got it caught
in a door. When Officer Texeira followed
up on this explanation, appellant responded “I already told you my hand got
slammed in the door.â€
DISCUSSSION
I. The Failure to Request a Jury
Instruction on Accident Did Not Violate Appellant’s Right to Effective
Assistance of Counsel
Appellant contends that trial counsel provided ineffective
representation in failing to request a jury instruction on the defense of
accident in accordance with Judicial Council of California Criminal Jury
Instructions, CALCRIM No. 3404.
instruction on the accident defense was required because he relied on the
defense at trial and there was substantial evidence supporting it.
To
prevail on a claim of ineffective assistance of counsel, first, appellant must
establish that “‘counsel’s representation fell below an objective standard of
reasonableness . . . under prevailing
(People v. Ledesma (1987) 43
Cal.3d 171, 216 quoting Strickland v.
Washington (1984) 466 U.S. 668, 688.)
Second,
appellant must show prejudice.
Specifically, appellant must show “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.†(Strickland v. Washington, supra, 466 U.S. at p. 694;
450–451.)
Finally,
we note that we “need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by [appellant] as a
result of the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed.†(Strickland
v. Washington, supra, 466 U.S. at p. 697.)
An
assault is “an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.â€
(§ 240.) Assault is a general
intent crime that does not require a specific intent to injure the victim or a
subjective awareness of the risk that an injury might occur. (People
v. Williams (2001) 26 Cal.4th 779, 788, 790.)
“Penal
Code section 26 states the statutory defense [of accident]: ‘All persons are capable of committing crimes
except those belonging to the following classes: [¶] . . . [¶] Five–Persons who committed the act or made
the omission charged through misfortune or by accident, when it appears that
there was no evil design, intention, or culpable negligence.’†(People
v. Anderson (2011) 51 Cal.4th 989, 996.)
In
this case, appellant’s claim fails for a lack of prejudice. Appellant’s version of events was that he was
attacked by several men and in the process of trying to get away, the pitcher
in his hand accidentally broke and he sustained injuries to his hand. Witnesses Sanchez and Chu testified that he
swung the pitcher and hit Soto in the head with it. The primary dispute was whether appellant
acted intentionally or accidentally, and the resolution of this dispute was
based on credibility, a determination for the jury to make.
The
jury was instructed pursuant to CALCRIM No. 875 on the elements of the charged
offense. To find appellant guilty of
assault with a deadly weapon, the People were required to prove beyond a
reasonable doubt that: “1. [Appellant]
did an act with a deadly weapon other than a firearm that by its nature would
directly and probably result in the application of force to a person; [¶] 2.
[Appellant] did that act willfully;
[¶] 3. When [appellant]
acted, he was aware of facts that would lead a reasonable person to realize
that his act by its nature would directly and probably result in the
application of force to someone;
[¶] AND [¶] 4.
When [appellant] acted, he had the present ability to apply force with a deadly
weapon other than a firearm to a person.â€
The
jury was also instructed: “Someone
commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to
break the law, hurt someone else, or gain any advantage. [¶]
The terms application of force and apply force mean to touch in a
harmful or offensive manner. The
slightest touching can be enough if it is done in a rude or angry way. Making contact with another person, including
through his or her clothing, is enough.
The touching does not have to cause pain or injury of any kind. [¶]
The touching can be done indirectly by causing an object to touch the
other person. [¶] The People are not required to prove that
[appellant] actually touched someone.
[¶] The People are not required
to prove that [appellant] actually intended to use force against someone when
he acted. [¶] No one needs to actually have been injured by
[appellant’s] act. But if someone was
injured, you may consider that fact, along with all the other evidence, in
deciding whether [appellant] committed an assault, and if so, what kind of
assault it was. [¶] Voluntary intoxication is not a defense to
assault.â€
Pursuant
to CALCRIM No. 250, the jury was instructed that the crimes charged required
“proof of the union, or joint operation, of act and wrongful intent†and that
“to find a person guilty of the crime of assault with a deadly weapon
. . . that person must not only commit the prohibited act, but
must do so with wrongful intent. A
person acts with wrongful intent when he or she intentionally does a prohibited
act; however, it is not required that he or she intend to break the law.†The jury was also instructed pursuant to
CALCRIM No. 200 to consider all of the instructions together.
Based
on the instructions given, had the jury believed appellant’s version of events,
it could not have found him guilty of assault with a deadly weapon. The jury rejected appellant’s version of
events and necessarily found that he acted willfully. Because the factual question posed by the
omitted “accident†instruction was resolved adversely to appellant under other
proper instructions, the failure to give the instruction was harmless. (People
v. Sedeno (1974) 10 Cal.3d 703, 721.)
It is not reasonably probable that the result would have been any
different had the instruction been given (People
v. Watson (1956) 46 Cal.2d 818, 836).
We are also satisfied that the failure to give the accident instruction
did not contribute to the verdict (Chapman
v. California (1967) 386 U.S. 18, 24.)
As
no prejudice resulted from appellant’s trial counsel’s failure to request a
jury instruction on the defense of accident, we need not address whether
counsel’s performance fell below the standard of reasonable effective
assistance. (Strickland v. Washington,
supra, 466 U.S. at p. 697.)
II. The
Trial Court Properly Exercised Its Discretion in Denying Appellant’s Motion to
Dismiss His Prior Strike
Appellant contends that the trial court abused its discretion by
refusing to dismiss his prior strike because it was not a crime of violence and
it fell outside the spirit of the Three Strikes law.
B. Relevant Authority
the California Supreme Court held that a trial court may strike an
allegation under the Three Strikes law that a defendant has
previously been convicted of a serious or violent felony ‘“in furtherance of
justice’†under section 1385, subdivision (a). (People
v. Williams (1998) 17 Cal.4th 148, 159 (Williams).) The term “‘“‘in furtherance of justice,’
requires consideration both of the constitutional rights of the defendant, and the
interests of society represented by the People, in determining whether there
should be a dismissal.
[Citations.]â€â€™â€ (
conviction, “the court in question must consider whether, in light of the
nature and circumstances of his present felonies and prior
serious and/or violent felony convictions, and the particulars of his
background, character, and prospects, the defendant may be deemed outside the
scheme’s spirit, in whole or in part, and hence should be treated as though he
had not previously been convicted of one or more serious and/or violent
felonies.†(Williams, supra, at p. 161.)
“[A] trial court’s refusal or
failure to dismiss or strike a prior
conviction allegation under section 1385 is subject to review for
abuse of discretion.†(
375 (Carmony).) “[A] trial court will only abuse its
discretion in failing to strike a prior felony
conviction allegation in limited circumstances.
For example, an abuse of discretion occurs where the trial court was not
‘aware of its discretion’ to dismiss [citation], or where the court considered
impermissible factors in deciding to dismiss [citation]. Moreover, ‘the sentencing norms [established
by the Three Strikes law may, as a matter of law,] produce[] an
“arbitrary, capricious or patently absurd†result’ under the specific facts of
a particular case. [Citation.]†(Id.
at p. 378.)
“In reviewing for abuse of
discretion, we are guided by two fundamental precepts. First, ‘“[t]he burden is on the party
attacking the sentence to clearly show that the sentencing decision was
In the absence of such a showing, the trial court is presumed to have
acted to achieve the legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set aside on
review.â€â€™ [Citations.] Second, a ‘“decision will not be reversed
merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial
judge.Չۉ۪ [Citations.] Taken together, these precepts establish that
a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with it.†(Carmony,
supra, 33 Cal.4th at pp. 376–377.)
is no showing that the trial court was either unaware of its discretion or
considered impermissible factors. We
cannot say that its ruling was irrational or arbitrary. The record shows that the trial court
considered counsels’ arguments, as well as appellant’s criminal history.
Appellant’s prior strike conviction
in 2004 was for burglary, for which he received a sentence of one year. Appellant contends that the key fact which
convinced the court to refuse to strike the strike was the court’s
misunderstanding that the prior burglary was a violent felony. But that oversimplifies and misstates the
analysis conducted by the trial court.
Although counsel downplays the seriousness of appellant’s prior
burglary, the court suspected that it involved “more than just going into a
neighbor’s house†and noted that appellant took a firearm from the residence. Furthermore, it appears from the record that
the nature of appellant’s current offense influenced the court’s
reasoning. The court stated that it
would have been more inclined to consider striking the prior “had the current
case been something different like some sort of petty theft or something that’s
not a crime of violence.â€
The specific facts of the prior
burglary are not clear from the record here but we do not have to determine
whether or not it was a violent felony.
The trial court’s characterization of the prior felony strike is not
dispositive. “[T]he Three Strikes law
does not require multiple violent
felony offenses to come within the statutory scheme. Williams[,
supra, 17 Cal.4th 148] and its
progeny do not hold that a defendant’s criminal career must consist entirely or
principally of violent or serious
felonies to bring a defendant within the spirit of the Three Strikes law.†(People
v. Strong (2001) 87 Cal.App.4th 328, 340, second italics added.)
Based on the violent nature of the
present conviction and the fact that appellant’s prior burglary constituted a
strike, it was far from irrational for the court to refuse to treat appellant
as if he had not previously suffered a strike.
Accordingly, we find no abuse of discretion in the trial court’s
determination.
DISPOSITION
The judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
DOI TODD
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
CHAVEZ
unless otherwise stated.
name="_ftn2" title="">[2] People v. Superior
Court (Romero)
