P. v. Garcia
Filed 4/22/13 P. v. Garcia CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
FIDEL GARCIA,
Defendant and
Appellant.
2d Crim. No.
B238859
(Super. Ct. No.
1355715)
(Santa
Barbara County)
Fidel Garcia appeals a
judgment following conviction of first
degree robbery, dissuading a witness from reporting a crime (two counts),
and making criminal threats (two
counts), with a finding that he acted in concert with others in committing
422, 213, subd. (a)(1)(A).)
name="_ftnref1" title="">[1] We order the trial court to correct the
abstract of judgment to reflect Garcia's conviction of first degree robbery,
but otherwise affirm.
FACTS
AND PROCEDURAL HISTORY
In the evening of April 11, 2011, Jose and Maria Bernal
were at home in Santa Maria.
on the telephone, she heard a loud knock on the front door. Jose opened the door and saw Garcia's
mother. He asked her purpose, and she
stated, "[N]o, they're coming.
They're upset."
Garcia, his mother, and
Adam Byrd "pushed" Jose aside and entered the home. Garcia wore sunglasses and a bandana over his
face; Byrd carried an aluminum baseball bat and assumed a "swinging"
position with the bat. Maria was
acquainted with Garcia and his mother because her daughter C. was friendly with
Garcia.
Garcia approached Jose,
pointed a knife at Jose's neck, and demanded that C. pay a $200 debt. Jose responded that C. was confined at
juvenile hall. When Maria stated that
she was calling for police emergency assistance, Garcia's mother took Maria's
cellular telephone and bent it backwards.
Garcia then demanded to
inspect C.'s bedroom. Jose accompanied
him to C.'s bedroom where Garcia looked in the closet and stabbed the bedding
with his knife because he believed that C. was hiding. When Garcia and Jose returned to the living
room, Garcia pointed the knife near Jose's eye and stated: "If you don't pay me what your daughter
owes, or if you speak about this to the police, you're dead, you and your
family." Jose and Maria were
frightened by Garcia's threats, and Maria was sobbing.
Jose and Byrd walked
into Jose's bedroom where Jose obtained $200 in currency and gave it to
Byrd. Garcia warned the Bernals that if
they informed the police, he "was going to kill [Jose]" and later
"kill [C.]" in their presence.
Garcia also warned that he was associated with the "Black
Hand."
In response to Isela's
call requesting a check upon her parents' welfare, a Santa
Maria police officer went to their residence and found
the Bernals upset and "shaken up."
About a block away, Police Officer Cassandra Stowasser saw Byrd running
with a baseball bat. She detained and
arrested him.
The jury convicted
Garcia of first degree robbery, two counts of dissuading a witness from
reporting a crime, and two counts of making criminal threats, and found that he
acted in concert with others in committing the residential robbery. (§§ 211, 136.1, subd. (b)(1), 422, 213,
subd. (a)(1)(A).) The trial court
sentenced Garcia to a 10-year prison term pursuant to section 1170.15,
consisting of six years for first degree robbery and two years for each count
of dissuading a witness. The court stayed sentence on the two counts
of making criminal threats pursuant to section 654, imposed a $3,600
restitution fine, a $3,600 parole revocation restitution fine (stayed), a $200
court security fee, and a $150 criminal conviction assessment, and awarded
Garcia 250 days of presentence custody and conduct credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8,
subd. (a); Gov. Code, § 70373.)
Garcia appeals and
contends that the trial court did not properly instruct regarding the elements
of dissuading a witness and making criminal threats because it chose to
"save some time" with "mix and match" instructions.
DISCUSSION
I.
Garcia asserts that the
trial court instructed that the jury could convict him of intimidating a
witness and making criminal threats if it found that either Jose or Maria had
been intimidated or threatened, i.e., that the victims were
interchangeable. He argues that the use
of the word "or" allowed the jury to convict him without deciding
whether he intimidated or threatened each victim. Garcia adds that the jury received written
instructions (CALCRIM Nos. 1300 and 2622) containing the word "or"
instead of "and." He contends
that the error denied his federal and state constitutional
trial by jury, and is not harmless beyond a reasonable doubt. (People
v. Flood (1998) 18 Cal.4th 470, 479-480 [instructional error relieving the
prosecution of proving each element of an offense beyond a reasonable doubt
violates a defendant's federal and state constitutional rights].)
The trial court
instructed regarding the elements of intimidating a witness and stated that
Garcia must have discouraged Jose or
Maria from reporting the crime or seeking his arrest, and that Jose
or victims. The court also instructed
concerning the elements of making a criminal threat and stated that the threat
to Jose or Maria must be immediate
and unequivocal, the threat must have caused Jose or Maria to be in sustained fear for their own safety or that of a
family member, and that Jose's or
Maria's fear was reasonable under the circumstances.
In reviewing claims of
the defendant has shown a reasonable likelihood that the jury, considering the
challenged instruction in the context of the instructions as a whole,
understood that instruction in a manner that violated his
v. Tate (2010) 49 Cal.4th 635, 696; People
v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
We also presume that jurors generally understand and follow
instructions. (People v. Myles (2012) 53 Cal.4th 1181, 1212.)
There is no reasonable
likelihood that the jury misunderstood the instructions to permit them to
convict Garcia without a unanimous agreement as to the particular victim
dissuaded or threatened for each count.
Viewed in context, the trial court's use of "or" in the
instructions simply reflected that there was a count for each victim.
Moreover, the trial
court instructed with CALCRIM No. 3515, regarding consideration of each count
separately and a return of a separate verdict for each count. It also instructed with CALCRIM No. 3501,
regarding unanimous agreement upon the particular acts constituting each
offense. The verdict forms for counts 2,
3, 4, and 5 stated the name of the corresponding victim; counts 2 and 4 expressly
concerned Jose, and counts 3 and 5 expressly concerned Maria, i.e., "We,
the jury . . . , hereby find the Defendant . . .
GUILTY of the crime of CRIMINAL THREATS, against Jose Bernal." (Count 4.)
During summation, the prosecutor also stated that "Count[s] 2 and 3
are for each person, Jose and Maria Bernal respectively being intimidated or
being threatened."
In addition, a jury note
submitted to the trial court during deliberation questioned whether Garcia
"ha[d] to directly address Maria in order to fulfill count #5." The jury also asked that Maria's testimony be
reread and withdrew an earlier question regarding an explanation of criminal
threats and "the choices between the family members." The jury notes reflect that it considered
each victim separately for each charged count.
In sum, it is clear
beyond a reasonable doubt that a rational jury would have found Garcia guilty
beyond a reasonable doubt absent the asserted error in employing the word
"or." (People v. Gonzalez (2012) 54 Cal.4th 643, 663 [standard of
review].)
The
Attorney General points out that the abstract of judgment erroneously recites
that Garcia was convicted of second degree robbery in count 1, not first degree
robbery. The Attorney General is
correct. (People v. Andra (2007) 156 Cal.App.4th 638, 642-643.)
The trial court shall
amend the abstract of judgment to reflect a conviction in count 1 of first
degree robbery, and then forward the certified amended abstract of judgment to
the Department of Corrections and
Rehabilitation. The judgment is
otherwise affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Kay
Kuns, Judge
Superior
Court County
of Santa Barbara
______________________________
Susan Morrow Maxwell,
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, Senior Assistant Attorney General, Linda C. Johnson, Supervising
Deputy Attorney General, Gary A. Lieberman, Deputy Attorney General, for
Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references
are to the Penal Code unless stated otherwise.
name="_ftn2" title="">[2] We shall refer to the
Bernals by their first names, not from disrespect, but to ease the reader's
task.
