P. v. Garcia
Filed 5/22/13 P. v. Garcia CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
RICARDO GARCIA,
Defendant and Appellant.
B236196
(Los Angeles
County
Super. Ct.
No. BA357126)
APPEAL from a judgment of the Superior Court of
County, Curtis B. Rappe, Judge. Affirmed as modified.
Charlotte E. Costan, 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, Lawrence M. Daniels and Eric E. Reynolds,
Deputy Attorneys General, for Plaintiff and Respondent.
* * * * * *
The People
charged defendant Ricardo Garcia with murder (count 1) and attempted murder
(count 2), with enhancements alleged as to both counts that the offenses were
committed for the benefit of a criminal
street gang and that a principal personally and intentionally discharged a
firearm causing death. (Pen. Code,
§§ 187, subd. (a), 664/187, subd. (a), 186.22, subd. (b), 12022.53, subds.
(d), (e)(1).)
title="">[1] The charged offenses arose from a walk-up
shooting. The prosecution theory was
that Garcia aided and abetted the crimes by acting as a dropoff and getaway
driver for the actual shooter.
name="_ftnref2" title="">[2] A jury acquitted Garcia of first degree
murder, convicted him of second degree murder, and acquitted him of attempted
murder. As to the second degree murder
guilty verdict, the jury found that the offense was committed to benefit a
criminal street gang and that a principal personally and intentionally
discharged a firearm causing death.
The trial
court sentenced Garcia to a total term of 40 years to life in state prison
comprised of a term of 15 years to life on the murder count and 25 years for
the firearm enhancement. The court
ordered Garcia to pay $7,280 in direct victim restitution through the Victim
Compensation Board, and to pay a $5,000 restitution fine and corresponding
$5,000 parole revocation fine (stayed).
(§§ 1202.4, subds. (b), (f), 1202.45.)
Garcia
appeals. We modify the terms of the
restitution fines, and affirm.
1. The Murder
On March 19, 2009, around 5:45 p.m., Jose O. (the murder victim) arrived
home from work to his apartment building on 24th Street, near San Pedro Street.
Jose’s girlfriend, Perla C., was on the front porch of the building with
their baby, her mother, sister, uncle, and her cousin, Juan C. Jose joined his family on the porch. About 10 minutes later, a man wearing a ski
mask approached from the intersection of 24th Street and San Pedro Street.
The man said, “What’s up, man†or “What’s up, homey,†then pulled out a
handgun and started shooting. As family
members ran to get inside the apartment building, the assailant continued
shooting. Jose tried to help Perla
inside with their baby, but he was shot multiple times, fell to the ground, and
died. The fatal wound was from a bullet
that entered around Jose’s right buttock, and traveled through his body,
exiting near the collarbone. A bullet
hit Juan C. in the arm. After the
attack, the shooter walked away on 24th Street toward Stanford Avenue.
The apartment building was in
“territory†claimed by the Primera Flats gang.
There was Primera Flats graffiti on 24th Street.
Gang members were sometimes present near the apartment building. Jose was not a member of the Primera Flats;
he did not have any gang tattoos. Perla
C. and Juan C. were not gang members.
Jose O.’s brother, Jesus O., lived
in the same apartment building. Just
before the shooting, Jesus was at a market on the corner of 24th Street and San
Pedro Street. His wife, E.P., and
daughter were outside in his car when Jesus heard six or seven gunshots. Jesus got into his vehicle and drove on 23rd
Street toward Stanford Avenue. He turned
right onto Stanford Avenue and drove toward 24th Street. As he approached 24th Street, Jesus saw a
black Chevrolet Silverado pickup truck stopped at the intersection of 24th
Street and Stanford Avenue. A man with a
gun in his hand got into the bed of the truck and the truck drove toward Jesus
on Stanford Avenue. As the truck passed,
Jesus noticed that the truck’s taillights were “tinted†black. E.P. saw the driver of the truck as he drove
toward and past Jesus and E.P.
Maria H. lived on 24th Street
between San Pedro Street and Stanford Avenue.
She heard gunshots, and looked out her window. She saw a man wearing a mask and holding a
handgun in front of her house. The man
walked toward Stanford Avenue. She then
saw a black pickup truck turn off 24th Street onto Stanford Avenue. The man with a gun got into the pickup truck.
E.B. also lived on 24th Street. At the time of the shooting, he was in front
of his house talking to a friend. He
heard gunshots and turned to see a man running toward them. The man was wearing a mask and had a
gun. The man stopped, pointed a gun at
them, asked them where they were from, then continued on.
2. The Investigation
Los Angeles Police Department (LAPD)
Detective Tommy Thompson responded to the scene of the crime around
8:00 p.m. Prior to his arrival,
LAPD officers had secured the area around the apartment building. Detective Thompson saw Primera Flats graffiti
at the intersection of 24th Street and San Pedro Street and also in front of
the apartment building. During the
investigation at the scene, officers recovered multiple .40-caliber bullet
casings from in front of the apartment building, and bullets and a bullet
fragment from the building. The casings
at the scene were consistent with a semiautomatic firearm being used.
In canvassing the area, Detective
Thomson learned there was a video surveillance camera outside a store on the
corner of 24th Street and San Pedro Street.
Video footage was obtained from the camera and played for the jury at
trial. The video showed a black
Chevrolet Silverado pickup truck pulling up to the east corner of San Pedro
Street just north of 24th Street at 5:46 p.m. and then stopping. A person walked from the area of the truck
south on San Pedro Street toward 24th Street and then walked east on 24th
Street. The truck then pulled away and
turned onto 23rd Street. The truck had
distinctive markings and a distinctive chrome front bumper.
On a date
uncertain from this testimony, Detective
Thomson observed a black Chevrolet Silverado “SS†truck parked in a driveway at
1232 East 20th Street. The truck
appeared similar to the truck in the video obtained at the time of the shooting
on March 19, 2009. Detective
Thompson ran the license plate and received information that Garcia was the
registered owner of the truck. On May
27, 2009, about two months after the shooting, Detective Thompson saw Garcia
driving the truck. When the brakes were
applied, the brake lights appeared to be tinted as described by Jesus O. Garcia’s truck was impounded and
photographed; it had distinctive markings and a front chrome bumper similar to
the truck in the video taken at the time of shooting.
On May 27, 2009, Detective Thompson
received a telephone call from detectives at the Hollywood police station, who
told him that they had a man in custody who might have information about a
shooting. Detective Thompson went to the
station and interviewed Luis Rosas.
Rosas told Detective Thompson that the information he (Rosas) had about
the shooting came from the “guy himself.â€
After talking to Rosas to determine whether he had useful information,
Detective Thompson and his partner, Detective Gersna, taped an interview with
Rosas. The taped interview and a
transcript of the interview were used at trial.
Parts of the interview were not
audible on the tape. At trial, Detective
Thompson testified to clarify the contents of Rosas’s interview. Detective Thompson testified that Rosas
stated that he had a conversation with Francisco Ruiz (see fn. 2,
involved in a shooting. Ruiz told Rosas
that he (Ruiz) walked up to a two-story apartment building wearing a ski mask
and shot a man in a group in the front of the building. Ruiz said he thought the guys were
“Flats.†At two or three points during
the interview, Rosas said that Ruiz said “Rica†dropped him off. Rosas never expressly mentioned Garcia by
name during the interview, but he (Rosas) testified during trial that he knew
Garcia as Rica.
On May 28, 2009, Detective Thompson
showed a six-pack photographic lineup to Jesus O. and E.P. Detective Thompson prepared the six-pack; he
used “a prior booking photo†of Garcia in the six-pack. Jesus was unable to identify anyone. E.P. identified Garcia. Police officers arrested Garcia and Ruiz at
their residences on May 28, 2009.
3. The Criminal Case
In December 2009, the People filed
an information jointly charging Garcia and Ruiz with the murder of Jose O.
(count 1; § 187, subd. (a)) and the attempted murder of Juan C. (count 2;
§§ 664/187, subd. (a)). As to both
counts, the information alleged the crime was committed to benefit a criminal
street gang, and that a principal personally and intentionally discharged a
firearm causing death.
In February and March 2011, the
charges were tried to a single jury. The
testimony of the percipient witnesses established the facts of the murder
summarized above. E.P. identified Garcia
as the driver of the getaway truck.
Detective Thompson testified regarding his investigation, including
E.P.’s pretrial identification of Garcia from the six-pack photograph lineup,
and his interview with Rosas, including Rosas’s statements during that
interview that Ruiz had stated he was the shooter and that “Rica†was the
driver.
The prosecution also called
Rosas. Rosas grew up in the area of the
1200 block of 22nd Street. He knew Ruiz
as “Francisco†or “Cisko.†When they saw
each other in the neighborhood they sometimes had short conversations. Rosas also knew Garcia from the area and had
talked to him a few times.
Rosas denied he ever had a
conversation with Ruiz about a shooting that occurred in March 2009 near San
Pedro Street and 24th Street. He
admitted he spoke to detectives on May 27, 2009, at the Hollywood station
after he had been arrested for possession of methamphetamine and a firearm, but
testified he did not recall telling detectives he had a conversation with Ruiz
or that he was friends with several 22nd Street gang members. Rosas testified he did not recall telling
detectives that Ruiz had said he went up to an apartment building and shot some
guys he thought were Primera Flats gang members. Rosas also did not recall telling detectives
that Ruiz had said that “Rica†dropped Ruiz off at the corner of 24th Street
and San Pedro Street before the shooting.
Rosas also did not recall telling detectives that he was at a recycling
center with Ruiz when Ruiz became nervous because he thought a man there was a
witness to the shooting and had recognized him.
Rosas admitted he did not want to testify, but denied being afraid for
his or his family’s safety. A recording
of Rosas’s interview was played for the jury.
Rosas denied it was his voice on the recording.
LAPD Officer Ronald Berdin testified
as a gang expert for the prosecution.
Officer Berdin testified it was his opinion that Garcia “definitely
associates with members of the 22nd Street gang.†Officer Berdin based his opinion on
statements from Garcia about two weeks before his arrest.
Ruiz was a documented self-admitted member of the 22nd Street gang. In answer to a hypothetical question that
tracked the facts of the shooting on March 19, 2009, Officer Berdin
offered his opinion that the shooting was committed with the intention to, and
for the benefit of, the 22nd Street gang.
Garcia presented a mistaken identity
defense. He testified in his own
defense, denying he participated in the shooting on March 19, 2009. He testified that he lived next door to Ruiz,
and that he knew Ruiz because their children attended school together. He admitted owning a black Silverado truck,
but denied it was his truck on the store video recovered in the case. Garcia denied he was a member of the 22nd
Street gang, denied he associated with gang members, and denied he ever told
police he was a gang member. He did not
have any gang tattoos. Garcia also
presented an expert on the subject of eyewitness identification, Robert Shomer,
Ph.D. Broadly summarized, Dr. Shomer’s
testimony was that stranger identification is “about fifty/fifty under the very
best of circumstances.â€
On March 8, 2011, the jury returned
verdicts finding Garcia not guilty of first degree murder, guilty of second
degree murder, and not guilty of attempted murder.
On August 26, 2011, the trial
court sentenced Garcia to a total aggregate term of 40 years to life, and
ordered him to pay $7,280 for direct victim restitution to the Victims’
Compensation Board, a $5,000 restitution fine, and a $5,000 parole revocation
fine (stayed). (§§ 1202.4, subds.
(b), (f), 1202.45.)
1. Ruiz’s Out-of-Court Statement
Implicating Garcia
Garcia
contends his murder conviction must be reversed because the trial court erred
in admitting evidence of an out-of-court statement made by Ruiz that implicated
Garcia in the crimes on March 19, 2009.
We disagree.
A. Background
As noted
above, the prosecution’s case included evidence showing that Detective Thompson
interviewed Rosas during the murder investigation, and that Rosas said Ruiz
said he (Ruiz) was the shooter. Also
during the interview, Rosas said Ruiz said that “Rica†drove Ruiz to the area
of the shooting. Rosas did not refer to
Garcia by name during the interview, but testified at trial that he knew Garcia
as Rica. The Rosas interview was
recorded; the recording and a transcript of the interview were used at the
first trial involving Garcia and Ruiz.
The jury at the first trial convicted Garcia of
Prior to the first trial, Garcia’s counsel
filed a motion for separate trials, or, in the alternative, for an order
excluding evidence of Ruiz’s out-of-court statements to Rosas insofar as Ruiz’s
statements implicated Garcia. The trial
court conducted a hearing under Evidence Code section 402. The main issue addressed at the hearing was
whether Rosas had actually obtained the murder information directly from Ruiz,
or from someone else, that is, on the street grapevine so-to-speak. The court found the evidence was sufficient
to show that Rosas obtained the murder information directly from Ruiz. The court ruled that the evidence of Ruiz’s
out-of-court hearsay statements to Rosas, which were to be introduced by way of
evidence of Rosas’s interview with Detective Thompson, could be admitted at
trial as statements against penal interest.
Immediately upon the court’s ruling
on the evidence issue, Garcia’s defense counsel renewed his argument for
separate trials of Garcia and Ruiz, arguing that any part of Ruiz’s statements
to Rosas implicating Garcia could not be used against Garcia. The trial court denied severance, once again
noting that the evidence of Ruiz’s out-of-court statements was admissible
because Ruiz’s statements were against Ruiz’s penal interests, and, as such,
were sufficiently trustworthy to be admitted.
In summary, the trial court ruled it
was for the jury to decide the ultimate fact whether Ruiz had, in fact,
admitted to Rosas that he (Ruiz) was the shooter. As to the parts of Ruiz’s statements
mentioning that he was dropped off by “Rica,†the court ruled that separate
trials were not necessary because Ruiz had not been “blame-shifting†when he
said he was dropped off near the scene of the murder.
At trial, Rosas denied having a
conversation with Ruiz about the shooting.
Rosas testified he spoke to detectives on May 27, 2009, at the Hollywood
station, but denied telling the detectives about a conversation with Ruiz. Rosas denied he told the detectives that Ruiz
said he went up to an apartment building and shot a man who he thought was a
Primera Flats gang member. Rosas also
denied he told the detectives that Ruiz said “Rica†dropped him off at 24th
Street and San Pedro Street. When the
prosecution played several parts of the recording of Rosas’s interview, and
asked Rosas about his statements heard on the recording, Rosas denied it was
his voice on the tape. The recorded
interview in its entirety was played for the jury. Although much of the recording was
unintelligible, in what could be heard Rosas said that “Cisco†(Ruiz) had said
he walked up to a two-story apartment building and shot a man who he thought
was a Primera Flats gang member. Rosas
said Ruiz said he (Ruiz) was wearing a ski mask. Rosas also said Ruiz said “Rica†was driving
a truck and dropped him off.
Detective Thompson also testified at
trial about the taped interview with Rosas.
Detective Thompson verified that Rosas was the person on the recording
who was being interviewed by the detectives.
Detective Thompson testified that he and his partner interviewed Rosas
for about 40 minutes, but only recorded the last part of the interview. Detective Thompson listened to the tape as it
was played in court, and filled in some of the unintelligible gaps in the
recording. Detective Thompson testified
that Rosas said he had two separate conversations with Ruiz. In the first conversation, Ruiz said he shot
someone and “Rica†was the driver. The
second conversation occurred when Rosas and Ruiz were at a recycling
center. Ruiz told Rosas that he (Ruiz)
thought he saw a witness to the shooting and was afraid the witness recognized
him.
B. Analysis –– The Confrontation Clause Issue
Garcia
contends his murder conviction must be reversed because the trial court’s
ruling to admit evidence of Ruiz’s out-of-court statements to Rosas ––
specifically, the parts of Ruiz’s statements that implicated Garcia (i.e.,
“Ricaâ€) in the murder –– violated his right of confrontation under the Sixth
Amendment to the United States Constitution (hereafter the confrontation
clause) for the reasons articulated in Bruton
v. United States (1968) 391 U.S. 123 (Bruton),
and, by extension, his right to due process under the Fourteenth Amendment to
the United States Constitution. We find
no confrontation clause violation.
The
confrontation clause reads: “In all
criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against
him . . . .†The
main and essential purpose of the confrontation clause is to secure for a
defendant an opportunity to cross-examine any witness who gives testimony
against the defendant. (See
315.) “[T]he right of confrontation and
cross-examination is an essential and fundamental requirement for the kind of
fair trial which is this country’s constitutional goal.†(Pointer v. Texas
(1965) 380 U.S. 400, 405.)
In Bruton, supra, 391 U.S. 123, the United States Supreme Court
addressed the issue of using one defendant’s out-of-court statements, there a
confession, at a joint trial charging two defendants with armed postal
robbery. Part of one defendant’s
out-of-court statements implicated the second defendant in the crime. The Supreme Court ruled that when a defendant
makes an out-of-court statement implicating a codefendant, and the former does
not testify at trial, admitting evidence of the first defendant’s out-of-court
statement implicating the codefendant at a joint trial violates the
codefendant’s Sixth Amendment right of confrontation, and it is not enough for
a trial court to give a cautionary instruction to the jurors that they are not
to consider the first defendant’s out-of-court statement in determining the
second defendant’s guilt. (
the jury to disregard Evans’ inadmissible hearsay evidence inculpating
petitioner, in the context of a joint trial we cannot accept limiting
instructions as an adequate substitute for petitioner’s constitutional right of
cross-examination.†(
exclude evidence of one defendant’s out-of-court statement implicating a
codefendant unless the trial court redacts the part implicating the
codefendant. (See, e.g.,
451, 455.)
When
evidence of one defendant’s out-of-court statement is erroneously admitted
against a codefendant under Bruton,
the error is examined for prejudice under Chapman
v. California (1967) 386 U.S. 18, 24, because the error involves the
constitutional right of confrontation. (
232.) In short, Bruton error is “not reversible per se.†(Ibid.) Instead, a reviewing court must determine whether
the improperly admitted Bruton
evidence prejudiced the objecting defendant; the error may be found harmless
when the remaining, properly admitted evidence against the defendant is
overwhelming and the evidence of the incriminating out-of-court statement is
largely cumulative of other direct evidence.
(Ibid.) Stated in other words: “To find [Bruton]
error harmless we must find beyond a reasonable doubt that it did not
contribute to the verdict, that it was unimportant in relation to everything
else the jury considered on the issue in question.†(People
v. Song (2004) 124 Cal.App.4th 973, 984, citing Yates v. Evatt (1991) 500 U.S. 391, 403.)
Nearly 40 years
after Bruton, the United States
Supreme Court in Crawford v. Washington
(2004) 541 U.S. 36 (Crawford)
clarified that a defendant’s right of confrontation only applies to an
out-of-court statement that is “testimonial†in nature. (Id.
at pp. 56-68.) “Where nontestimonial
hearsay is at issue,†the Sixth Amendment affords the states “flexibility in
their development of hearsay law,†and “exempt[s] such statements from
confrontation clause scrutiny altogether.â€
(Id. at p. 68.) The Supreme Court expressly declined to
define when an out-of-court statement should be considered “testimonial†for
purposes of confrontation clause analysis:
“We leave for another day
any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at
a minimum to prior testimony at a preliminary hearing, before a grand jury, or
at a former trial; and to police interrogations.†(Id.
at p. 69, fn. omitted.)
name="_ftnref6" title="">[6]
In two subsequent companion cases,
813, (Davis) and Hammon v. Indiana (2006) 547 U.S. 813 (Hammon), the United States Supreme Court began trying to clarify
when an out-of-court statement will be considered “testimonial†for purposes of
the confrontation clause. In
statement that is testimonial in nature “cause the declarant to be a ‘witness’
within the meaning of the Confrontation Clause. . . . It is the testimonial character of the
statement that separates it from other hearsay that, while subject to
traditional limitations upon hearsay evidence, is not subject to the Confrontation
Clause.†(Id. at p. 821.)
vein, the Court explained that “statements
are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances
objectively indicate that there is no such ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to later
In
Hammon, police responded to a domestic disturbance radio call and found
the defendant’s wife alone on the front porch.
She seemed “‘somewhat frightened’†but said nothing was the matter. There were signs of recent violence at the
residence. Defendant, who was in the
kitchen, said that he and his wife had had an argument but “‘“everything was
fine now.â€â€™â€ In responses to questions
by an officer, the wife related that defendant had assaulted her, breaking
household objects and throwing her on the floor. (Hammon,
pp. 819-820.) At that time, there was neither an ongoing emergency nor an
immediate threat to the wife’s person.
The officer was not seeking to find out what was happening, but
what had happened. While the
interrogation was not as formal as the one in Crawford, it was formal
enough: It was carried on in a separate
room from the room defendant was in, and the officer was asking the wife
questions for use in an “investigation.â€
(Hammon, supra, at pp. 829-830.)
Since Davis and
Hammon, several California cases have
expressly held, or, at a minimum, have intimated, that out-of-court statements made to friends, family members, or others whom the declarant did
not believe to be law enforcement officials, and which the declarant did not
expect would be used to prosecute him or her, were not testimonial, even if the
out-of-court hearsay statements were used as proof of a disputed fact at
trial. (See 3 Witkin, Cal. Evidence (5th
ed. 2012) Presentation at Trial, § 26, p. 72 [and cases cited
therein].) Our court has followed this
rule. (People v. Arceo (2011) 195 Cal.App.4th 556 (Arceo) [confrontation clause did not apply to a defendants’
statements to relatives that included information implicating an objecting
codefendant].) We are not convinced by
Garcia’s arguments here that we should reconsider our examination of when and
in what circumstances the confrontation clause applies to out-of-court
statements. As we stated in
cases “mean what they say†–– examination of the admissibility of an
out-of-court statement under the confrontation clause applies only when the
out-of-court statement is “testimonial.â€
(Arceo, supra, at
p. 575.) We read nothing in the
more recent cases to support the proposition that a different rule applies when
the out-of-court statement in question is a nontestimonial statement by a
codefendant.
C. Analysis –– The Reliability/Hearsay Issue
Garcia next argues that, apart from
the confrontation clause, the trial court erred in admitting evidence of the
part of Ruiz’s out-of-court statements that implicated Garcia because Ruiz’s
information about Garcia was not shown to be reliable. We disagree.
Ruiz’s
arguments on appeal require us to examine two layers for trustworthiness. The first inquiry is whether there is
trustworthy evidence showing that Ruiz actually made the statements to Rosas
that implicated Garcia. If so, the
second inquiry is whether there is evidence showing the trustworthiness of
Ruiz’s statements implicating Garcia. In
other words, are Ruiz’s “accusations†against Garcia, if made, sufficiently
trustworthy to have been submitted to and considered by the jury, without Ruiz
having been subject to cross-examination by Garcia? With this framework in place, we turn to the
trustworthiness examination.
As to the first layer examination, the record shows that Rosas had been
arrested. After being taken to the
Hollywood police station, he said he had knowledge of a crime. Someone (not identified) contacted Detective
Thompson. Detective Thompson, with his
partner, Detective Gersna, interviewed Rosas at the Hollywood police station. The interview lasted about 40 minutes. The detectives only recorded the end part of
the interview. During the Evidence Code
section 402 hearing (402 hearing), Rosas testified he did not remember anything
he told the detectives. He testified he
was under the influence of alcohol, marijuana and methamphetamines when he
talked to the detectives. Rosas
testified he told a defense investigator that he (Rosas) had heard about the
shooting from “some guy†in a conversation, but not from Ruiz himself. Rosas acknowledged he knew Ruiz as “Cisko,â€
and knew Ruiz and Garcia from the streets.
Detective Thompson testified at the
402 hearing that Rosas said he had a direct “conversation†with Ruiz, and that
Ruiz had said he was involved in a shooting on 24th Street near San Pedro
Street. Rosas also said that, on another
occasion, he and Ruiz were at a recycling center when Ruiz saw somebody he
thought might have been from the shooting.
Detective Thompson testified that, from what he heard from Rosas, Garcia
had not admitted to Rosas he was involved in the shooting.
After the testimony at the 402
hearing, Garcia’s counsel argued that there was ambiguity as to whether Ruiz
spoke to Rosas or whether Rosas picked up information on the streets from a
third party. There was nothing in the
interview recording showing that Rosas got his information directly from
Ruiz. If Ruiz did not testify, then
Garcia’s counsel would not be able to cross-examine him about what he allegedly
said to Rosas. Admission of Ruiz’s
statement, untested by cross-examination, through the path of Rosas’s interview
would be unduly prejudicial.
In evaluating the Evidence Code
section 402 evidence, the trial court described Rosas as “cagey,†and
acknowledged there was “evidence pointing both ways. That’s the problem.†In the end, the court found the detective’s
version, that is, what Rosas said to Detective Thompson about what Ruiz had
allegedly said to Rosas about the shooting, was adequate to establish a
“foundation†for the evidence to go to the jury. After more exchanges, the court ruled the
challenged out-of-court statement by Ruiz (through Rosas) would be admitted
against both defendants without redacting because the statement was both
sufficiently trustworthy and against Ruiz’s penal interests.
We agree with the trial court that
the evidence was sufficiently trustworthy to show that Ruiz talked to
Rosas. The evidence was sufficient to
allow the jury to make an overall assessment of the credibility of Ruiz’s
statement as presented through Rosas. We
agree with the trial court that Rosas was a “cagey†witness, but his interview
and his testimony consistently showed he knew Ruiz and was on conversational
terms with Ruiz. The evidence was
trustworthy to the extent it supported a finding that Ruiz would have shared
information with Rosas. And, with regard
to the shooting, Rosas knew information about the shooting that corresponded
with the facts of the shooting as described by the disinterested
witnesses. To the extent Garcia argues
that Rosas could have gotten the information from someone on the street other
than Ruiz, we find no error in the trial court’s ruling that there was
sufficient trustworthy evidence to allow the jury to decide whether or not
Ruiz, in fact, provided the information to Rosas. We are satisfied that, as a foundational
matter, the evidence supports a conclusion that Ruiz spoke with Rosas, and that
Ruiz admitted his involvement in the shooting to Rosas.
This brings us to the evidence of
the actual words from Ruiz’s mouth.
First, as far as Ruiz’s
admission to Rosas that he (Ruiz) was the shooter, Ruiz’s statement plainly was
a declaration against interest and, as such, admissible under Evidence Code
section 1230. It is too well-settled to
question here that a declarant’s out-of-court statement specifically inculpating
the declarant embodies an inherent, particularized element of trustworthiness,
which supports the admissibility of the statement at trial, for use against the
declarant. (See Arceo, supra, 195 Cal.App.4th at p. 576, citing
Cal.App.4th 298, 329.) Ruiz’s statement
inculpating himself was sufficiently trustworthy to be admitted at trial
against Ruiz.
This leaves
Ruiz’s words inculpating Garcia. When
the trustworthiness of a declarant’s statement is “‘“so clear from the
surrounding circumstancesâ€â€™â€ that testing the declarant by cross-examination
“‘“would be of marginal utility,â€â€™â€ the Sixth Amendment does not bar the
admission of the declarant’s statement, even when part of the statement
implicates a codefendant. (
567-577, quoting Lilly v. Virginia
(1999) 527 U.S. 116, 136, 139.) The
number of statements that will be admissible by this path are limited, and the
admissibility determination “‘requires a “fact-intensive inquiry, which would
require careful examination of all the circumstances surrounding the criminal
activity involved . . . .â€â€™â€ (Arcelo,
supra, 195 Cal.App.4th at p. 577, quoting People v. Greenberger, supra, 58 Cal.App.4th at p. 332.)
We assume without
deciding that the trial court erred when it declined to redact Ruiz’s statement
to remove the passages implicating Garcia (i.e., “Ricaâ€) as the driver. At a minimum, a trier of fact who is tasked
with determining credibility and criminal liability may benefit when one defendant
(e.g., Garcia) is given an opportunity to cross-examine a second defendant
(e.g., Ruiz) about a statement implicating the former. (See Bruton, supra, 391 U.S.
123.) We assume without deciding that
this is not one of those limited cases in which a codefendant’s accusation is
admissible.
Having
assumed error, we must decide what to make of the error.
Regardless of whether we examine the issue as a constitutional error
potentially affecting the right to a fair trial or confrontation, or examine
the issue as an ordinary evidentiary error, we find the error harmless even
under the heightened beyond a reasonable doubt standard applied to errors of
constitutional magnitude. (Compare People
v. Davis (2009) 46 Cal.4th 539, 620 [Crawford error in admitting
testimonial evidence is subject to harmless error review under reasonable doubt
standard of Chapman v. California, supra,
386 U.S. at p. 24]; People v. Duarte (2000) 24 Cal.4th 603, 618-619
[erroneous admission of hearsay evidence subject to harmless error review under
reasonable probability standard of People
v. Watson (1956) 46 Cal.2d 818, 836].)
First, there is no true dispute that someone in a truck
drove Ruiz to the area, and picked him up after the shooting. To the extent Ruiz said he was driven to the
area in a truck, his out-of-court statement did not truly add improper evidence
strongly adverse to Garcia. And, in any
event, the information about a driver and truck was admissible as it did not
expressly implicate Garcia as the driver.
The only possible prejudice here is in Ruiz’s identification of “Ricaâ€
as the driver. Does this warrant
reversal? We find it does not.
E.P. identified Garcia as the driver of the truck at
trial. She also identified Garcia in a
six-pack photographic lineup before trial.
At trial, she testified she had been “certain†about her identification
from the six-pack. When interviewed at
the time of the crimes by detectives, E.P. and Jesus O. described the truck
that they saw pick up the shooter.
Garcia was the registered owner of a black Chevrolet Silverado truck
that matched the witnesses’ descriptions, including unique characteristics such
as having tinted brake lights. At trial,
E.P. identified Garcia’s Chevrolet Silverado truck as the one she saw on the
day of the shooting. Garcia’s truck
looked like the truck captured on video from cameras at the liquor store where
he dropped off Ruiz. Garcia lived next
door to Ruiz. In our view, using Ruiz’s
out-of court statement about “Rica†did not contribute to the jury’s decision
to convict Garcia. The jury could not
reach a verdict as to Ruiz at the first trial based on his out-of-court
statement implicating himself, but did convict Garcia, indicating that Ruiz’s
out-of-court statement was not heavily weighed by the jury. As to Garcia, the jury must have found guilt
beyond a reasonable doubt elsewhere. We
contend that, even had the part of Ruiz’s out-of-court statement implicating
Garcia been excluded, the result of Garcia’s trial would have been the same,
even applying the heightened beyond a reasonable doubt standard of review.
2. The Severance Issue
Garcia
contends his murder conviction must be reversed because the trial court erred
in denying his renewed motion to sever his case from Ruiz’s case after the
court ruled that Ruiz’s out-of-court statements to Rosas could be
admitted. We disagree.
Section 1098 prescribes a statutory preference for a
joint trial of jointly charged defendants, meaning joinder is the first rule,
and severance is the exception. (People
v. Cleveland (2004) 32 Cal.4th 704, 726.) A defendant seeking a separate trial of joint
charges bears the burden to establish a substantial danger of prejudice
requiring separate trials. (People v.
Catlin (2001) 26 Cal.4th
81, 110.) A trial court’s denial of a
severance motion is reviewed under the abuse of discretion standard, based on
the record when the motion was heard. (People
v. Coffman and Marlow (2004) 34 Cal.4th 1, 41.) Refusal to sever may be an abuse of
discretion when (1) evidence of the crimes to be jointly tried would not be
cross-admissible in separate trials, (2) charges against one defendant are
likely to inflame the jury against the defendant seeking severance, and (3) a
weak case has been joined with a strong case so that the “‘spillover’†effect
of aggregate evidence on several charges might alter the outcome of some or all
of the charges. (People v. Catlin,
supra, at p. 110.) If a trial
court abuses its discretion in failing to grant severance, reversal is required
“only upon a showing that, to a reasonable probability, the defendant would
have received a more favorable result in a separate trial.†(People v. Coffman and Marlow, supra, at p. 41.)
We find no
abuse of discretion. First, Garcia and
Ruiz were charged with the same crimes and we see no possibility that the charges
against Ruiz could have inflamed the jury against Garcia. Second, there is nothing in the record to
suggest that a problem with the “spillover effect†of evidence adversely
affected Garcia. The evidence against
Ruiz was not so overwhelming as to taint Garcia by association.
Finally, as
we discussed above, assuming there was error in declining to redact Ruiz’s
statement to the extent it implicated Garcia, we find the error to have been
harmless. We decline to find the error
compels reversal in the context of examining severance. Assuming Garcia should have been separately
tried, we decline to reverse Garcia’s conviction because we are not persuaded to a reasonable probability,
that Garcia would have received a more favorable result in a separate trial. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.) The use of Ruiz’s statement that he was
driven to and from the scene of the shooting by “Rica†did not, in our view,
contribute to the jury’s decision to convict Garcia. It was the remaining evidence that tipped the
jury to return its guilty verdict.
3. The Identification Issue
Garcia
contends his murder conviction must be reversed because the trial court erred
in denying his objection to the pretrial, six-pack identification by witness E.P.,
and also erred in allowing E.P. to identify Garcia at trial. We disagree.
A pretrial photographic lineup violates
due process when it is so impermissibly suggestive that it creates a “very
substantial likelihood of irreparable misidentification.†(People v. Contreras (1993) 17 Cal.App.4th 813, 819.) The defendant bears the burden of proving
suggestiveness “as a ‘demonstrable reality,’ not just speculation.†(Ibid.) The threshold test is whether the pretrial
identification procedure was unduly suggestive and unnecessary. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) If the test is met, the question becomes
whether a subsequent identification at trial was nevertheless reliable under
the totality of the circumstances, taking into account such factors as the
witness’s opportunity to view the offender at the time of the crime, the
witness’s attentiveness, the accuracy of the witness’s prior description, the
level of certainty displayed at the identification, and the time elapsed
between the crime and the identification.
(People
v. Ochoa (1998) 19
Cal.4th 353, 412; People
v. Wash (1993) 6
Cal.4th 215, 244.)
There is no requirement that a
defendant in a lineup be surrounded by others “‘nearly identical’†in
appearance. (People v. Wimberly (1992) 5 Cal.App.4th 773, 790.) Distinguishing clothing do not necessarily
cause a photographic lineup to cross into the realm of unconstitutional
suggestiveness. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) Lineups have been upheld when the defendant was
the only person in jail clothing (People v. Johnson (1992) 3 Cal.4th 1183, 1215-1218) and when the defendant was
the only person in a red shirt (People v. DeSantis, supra, 2 Cal.4th at p. 1222). And minor differences in facial hair also do
not necessarily render a lineup unconstitutionally suggestive. (See People v. Holt (1972) 28 Cal.App.3d 343, 350, disapproved on other grounds
in Evans v. Superior Court (1974) 11
Cal.3d 617, 625, fn. 6.) Likewise,
differences in background color and image size among the various photographs
also do not necessarily render a lineup unconstitutionally suggestive. (Id.
at pp. 349-350.) The test basically
comes down to this: whether the lineup
as a whole would cause a witness to focus on a particular photograph, namely,
the defendant’s photograph. (
312, 367.)
On appeal, a de novo standard
applies to both prongs of the identification analysis. (People v. Kennedy (2005) 36 Cal.4th 595, 608-609, disapproved on other grounds
by People
v. Williams (2010) 49
Cal.4th 405, 459.)
We have
reviewed the photograph lineup from which E.P. identified Garcia, and are not
persuaded that it is unconstitutionally suggestive. The lineup depicts six males who are
sufficiently similar to support the reliability of E.P.’s identification. All six of the individuals appear to be
Hispanic, all appear to be about the same age, all have closely coiffed
hair. There are no distinctive markings
in the background, or foreground or on their clothing to make one stand out in
particular. Garcia’s photograph does not
particularly stand out.
Moreover, assuming the initial threshold showing
of suggestiveness had been established, Garcia’s claim fails because the
record, in our view, shows that E.P.’s in-court identification at trial was
clothed with ample indications of reliability to allow her to make the
identification; it was for the jury to determine whether her in-court
identification was accurate or tainted by the pretrial lineup. E.P. saw the face of the driver of the truck
as it was driving directly toward her.
She provided a description to the police at that time, describing the
driver as dark-skinned and bald. When
she was shown the lineup, she did not express any uncertainty about her
identification. Her identification in
court was not tentative or equivocal.
4. The Expert Testimony Issue
Garcia
contends his murder conviction must be reversed because the trial court erred
by “severely restricting†the testimony of a defense expert on the subject of eyewitness
identifications. We disagree.
A. The Setting
Before the
first trial, the
prosecution filed a motion pursuant to Evidence Code section 352 to exclude or
limit the testimony of the defense eyewitness identification expert,
Dr. Shomer. The court denied the
motion to exclude the testimony in its entirety, but did order the following
limitation: “Obviously, it’s not the
place of an eyewitness identification expert to comment on the validity or
invalidity or weight of any particular witness’ identification in this
case. [¶] So [defense counsel is]
ordered . . . not to elicit that or ask questions that would
tend to elicit it without first asking to approach sidebar and convincing me
that that restriction is wrong in the particular facts of this case.â€
During the direct examination of Dr.
Shomer, Garcia’s counsel requested to show the six-pack to the witness and ask
if, in his opinion, there was anything suggestive about it. The court ruled that counsel could ask general
questions on how a six-pack should be compiled, but could not ask specific
questions about the six-pack used in this case.
In essence, the court ruled that it was for the jury to decide, based on
factors described by Dr. Shomer, whether the six-pack was problematic.
B. Analysis
A defendant has a right to present
subject to the condition that “a state court’s application of ordinary rules of
evidence ‑‑ including the rule stated in Evidence Code section 352 ‑‑
generally does not infringe upon this right.â€
(People
v. Cornwell (2005) 37
Cal.4th 50, 82, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Due process does not require that a court
allow an accused to present evidence in the exact form, manner and quantum the
defense desires, and may properly preclude its use pursuant to Evidence Code
section 352. (See People v. Babbitt (1988) 45 Cal.3d 660, 684.)
When a defendant on appeal
challenges a trial court’s evidentiary rulings in the context presented by
Garcia here, a reviewing court applies well-settled standards of review: “[T]he decision to admit or exclude expert
testimony on psychological factors affecting eyewitness identification remains
primarily a matter within the trial court’s discretion.†(People v. McDonald (1984) 37 Cal.3d 351, 377 (McDonald), overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914.) Accordingly, a trial court may allow expert
testimony that “informs the jury of certain factors that may affect such an
identification in a typical case,†while at the same time limiting such “to
explaining the potential effects of those circumstances on the powers of
observation and recollection of a typical eyewitness.†(McDonald, supra,
at pp. 370-371.) In other words, a trial
court may properly exclude expert testimony that potentially takes over the
jury’s task of judging credibility by telling the “jury that any particular
witness is or is not truthful or accurate in his identification of the
defendant.†(Id. at p. 370.)
We see no
more in Garcia’s current case than a proper application of McDonald-like parameters on an expert’s testimony. The court did not “severely restrictâ€
Garcia’s expert witness. The court did
no more than preclude Garcia’s expert from directly telling the jurors how they
were supposed to view the six-pack.
There was no error. (McDonald, supra,
37 Cal.3d at pp. 370-371.)
5. The Failure to Disclose
Evidence Issue
Garcia
contends his murder conviction must be reversed for a Brady violation. (See Brady v. Maryland (1963) 373 U.S. 83 (
More specifically, Garcia argues his conviction must be reversed because
the prosecution failed to disclose the existence of hours of jailhouse
recordings until the end of its case-in-chief.
We disagree.
A. The Setting
Toward the end of the prosecution’s
case-in-chief, the prosecutor alerted the trial court and defense counsel that
the prosecution just became aware of two tape recordings in the possession of
Detective Thompson. One was a recording
of a 48-hour period when Garcia and Ruiz were in the same jail cell after their
arrest. The other was a telephone
conversation between Garcia and his wife.
The prosecutor stated that he did not have the tapes in his possession
and that he did not plan on using them at trial. He also indicated that he did not know the
substance of the conversations on the tapes.
The trial court ordered the
prosecutor to call Detective Thompson and have him make copies of the recordings
for the defense immediately. A short
time thereafter, the prosecutor informed the court that he had spoken with
Detective Thompson and that the detective had provided the following
information: During the telephone call
between Garcia and his wife, Garcia told her “to get rid of the rims.â€
Later, during the cross-examination
of Garcia, the prosecutor requested permission to question him about the
telephone conversation he had with his wife.
The court stated that defense counsel had not had the opportunity to
listen to the tape of the conversation, and disallowed the prosecutor’s line of
questioning.
B. Analysis
Under Brady, supra, 373 U.S. 83, the prosecution violates a
defendant’s right to due process when it suppresses evidence that is favorable
to the defendant, and the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution. (Id. at p. 87; see also People v. Verdugo (2010) 50 Cal.4th 263, 279-280; In re Sassounian (1995) 9 Cal.4th 535, 543.) Evidence is material when there is a
reasonable probability that, had the evidence been disclosed to the defense,
the result of the defendant’s criminal proceeding would have been different. A reasonable probability means a probability
sufficient to undermine confidence in the outcome. (United States v. Bagley (1985) 473 U.S. 667, 682.) Brady
applies whether the evidence being examined is exculpatory or for impeachment
purposes. (Giglio v. United States (1972) 405 U.S. 150, 154.) The constitutionally based
evidence before trial as articulated in Brady
does not apply to inculpatory evidence; Brady
only applies to exculpatory evidence. (Brady, supra, at pp. 86-87; People v. Burgener (2003) 29 Cal.4th 833, 875.)
Based on the record before us on
appeal, we will not reverse Garcia’s murder conviction for Brady error because we do not see anything in the record to show
that the prosecution suppressed exculpatory
evidence. The prosecutor’s explanation
as to his understanding of the content of the tapes did not show they contained
any exculpatory evidence. The evidence
was ordered to be provided to the defense during the trial, and the court gave
the defense the opportunity to listen to the tapes to determine if there was
anything on them helpful to the defense.
When Garcia filed his motion for new trial, he did not raise a Brady claim
related to the recordings or as to any other evidence. We see nothing in the record to indicate that
the tapes contained any exculpatory evidence.
Even on appeal, Garcia does not specifically identify what part of the
tapes could have been used by him as exculpatory evidence. Accordingly, we see no Brady issue.
C. Analysis ––
Statutory Disclosure
Alternatively, Garcia contends the
prosecution’s failure to disclose the jailhouse tapes to the defense until
midtrial violated discovery under section 1054.1, justifying reversal of his
murder conviction. We disagree.
Assuming the prosecution should have
disclosed the existence of the jailhouse tapes before trial pursuant to section
1054.1, we disagree with Garcia that reversal is the justified remedy. Reversal of a conviction is not an available
valid remedy for a violation of statutory discovery rights, except in
extraordinary circumstances. Where a
party fails to comply with its statutory discovery obligations, a court “may
make any order†needed to enforce discovery, “including, but not limited to,
immediate disclosure, contempt proceedings, delaying or prohibiting the
testimony of a witness or the presentation of real evidence, continuance of the
matter, or any other lawful order.
Further, the court may advise the jury of any failure or refusal to
disclose and of any untimely disclosure.â€
(§ 1054.5, subd. (b).) But,
the court “shall not dismiss a charge . . . unless required to
do so by the Constitution of the United States.†(§ 1054.5, subd. (c).)
We find the trial court properly
addressed the situation by offering the defense either a continuance to
investigate the recordings, or exclusion of the evidence. The court did not abuse its discretion in
remedying the situation as it did. The
trial court believed the prosecutor’s representation about when and how he
discovered the recordings and found no intentional discovery violation. To the extent Garcia claims the trial court
imposed no sanction for the prosecution’s late disclosure, in effect declining
to enforce discovery obligations, we disagree.
When the prosecutor tried to use the incriminating evidence on the
recordings, the trial court excluded the evidence. The prosecutor was not allowed to
cross-examine Garcia with the statement that he made to his wife about getting
rid of his truck’s rims.
In the end, Garcia has not persuaded
us that late disclosure of the nonexculpatory jailhouse recordings of
conversations resulted in a fundamentally unfair trial violating his right to
due process. Absent such a showing, we
decline to reverse his conviction for the alleged discovery violation. (People v. Ochoa (1998) 19 Cal.4th
353, 473-474.)
6. The Instructional Issue
Garcia
contends his murder conviction must be reversed because the trial court erred
in allowing the prosecutor “to change his theory of the case†after the jury
informed the court that it could not reach a verdict. Although Garcia’s arguments raise concerns
with the practice of instructing jurors on a new and different theory of
criminal liability after deliberations have already started, we find reversal
of his murder conviction is not warranted in light of the over-all
circumstances of his trial.
A. The Setting
As noted
above, the prosecution’s theory against Garcia was that he aided and abetted
the murder by acting as the dropoff and getaway driver for Ruiz. As the prosecutor put it: “The driver is as guilty as the shooter.
[¶] . . . [¶] The driver aids, promotes or encourages
him. Without him this crime is not
committed. He drives there. He drops the shooter off. He pulls around the corner. He picks the shooter up. Without him this will never happen.†The trial court instructed the jury on aiding
and abetting as follows: “To prove that
a defendant is guilty of a crime based on aiding and abetting that crime, the
People must prove that: [¶] 1. The
perpetrator committed the crime; [¶] 2.
intended to commit the crime;
[¶] 3. Before or during the commission of the crime,
the defendant intended to aid and abet the perpetrator in committing the crime; [¶]
AND [¶] 4. The
defendant’s words or conduct did in fact aid and abet the perpetrator’s
commission of the crime.†(Italics
added.)
On its
third day of deliberations,
the jury sent a note to trial court that read:
“We are
unable to reach a decision on the aiding and abetting charge against Ricardo
Garcia. The issue is instruction 401,
between 1st & 2nd degree murder as applies to Garcia (does the charge need
to be the same as what the jury finds for Ruiz e.g. 1st degree/1st degree or
2nd degree/2nd degree).
serious crime is committed, how does that [a]ffect element 2 of aiding &
abetting?†(Italics added.)
Fairly construed, the jury’s note is comprised of three
parts. The first part advised the trial
court that the jurors were unable to reach a decision on whether Garcia
charged murder. In other words, they
were unable to decide whether Garcia had been an aider and abettor of the
charged murder. The second part of
jury’s note asked: Do we have to convict
Garcia and Ruiz of the same degree of murder?
Third, the jury asked: How is the
element of aiding and abetting affected if, during the commission of a crime, a more serious crime is
committed?
At a hearing to address the jury’s
note, the prosecutor asked the court to instruct the jury on the natural and
probable consequences theory of aider and abettor liability, which was what the
jury was “asking for.†The target
offense would be identified as assault with a firearm. Garcia’s counsel objected, arguing the People
did not include the natural and probable consequences instruction in their
proposed instructions and did not rely on the theory in closing argument. Garcia’s counsel argued the law of natural
and probable consequences “did not fit into my theory or strategy for a
defense.†Counsel asked that, if the
court intended to give the additional instruction, the defense be permitted to
consult with its gang expert to see if the prosecution’s gang expert should be
recalled and asked additional questions in light of the new theory. Garcia’s counsel also requested additional
argument on the new theory.
In an ensuing exchange, the trial court noted that
Garcia’s theory at trial was that he did not participate in the shooting, that
the case against him was a case of mistaken identity. The court commented that it did not see how
the defense would have proceeded differently during the trial had the
prosecution requested instructions on the natural and probable consequences theory
from the outset. The court directed
Garcia’s counsel to have the defense gang expert ready the next morning if the
defense wished to present additional testimony; the court also told the
prosecutor to have his gang expert available.
At the end of the exchange, the court ruled that it would permit both
sides to give additional argument limited to the natural and probable
consequences instruction.
The next morning, Garcia’s counsel informed the court
that he did not wish to call any additional witnesses and did not need to
further question the People’s gang expert.
Instead, counsel moved for a mistrial based on the jury’s note that it
was unable to reach a decision as to Garcia based on the instructions given. He argued the prosecution’s theory at trial
was that Garcia aided and abetted a murder, not an assault with a firearm.
The court denied the motion
for mistrial. In making its ruling,
the court noted that the jury raised the issue with their question, and that
the court had to provide a response. The
court found giving the natural and probable consequences instruction was an
appropriate response to the jury’s question.
The court found that the instruction was supported by the evidence at
trial.
The court then instructed the jury on the natural and
probable consequences theory of aiding and abetting. The parties then gave additional argument on
the instruction. The jury retired to
resume deliberations at 9:36 a.m.
At 10:00 a.m., the jury sent out a note advising the court that
they had reached a verdict as to Garcia.
B. Analysis
In a criminal case, the
trial court generally must decide upon and inform counsel what jury
instructions it will give before closing argument; however, the trial court may
depart from the usual order of trial, and may instruct the jury on the
applicable law at any time during the trial, particularly when the court learns
the jury is confused by the original instructions. (See §§ 1093, subd. (f), 1093.5; and see
People v. Ardoin (2011)
196 Cal.App.4th 102, 127 (Ardoin).) In <
| Description | The People charged defendant Ricardo Garcia with murder (count 1) and attempted murder (count 2), with enhancements alleged as to both counts that the offenses were committed for the benefit of a criminal street gang and that a principal personally and intentionally discharged a firearm causing death. (Pen. Code, §§ 187, subd. (a), 664/187, subd. (a), 186.22, subd. (b), 12022.53, subds. (d), (e)(1).)[1] The charged offenses arose from a walk-up shooting. The prosecution theory was that Garcia aided and abetted the crimes by acting as a dropoff and getaway driver for the actual shooter.[2] A jury acquitted Garcia of first degree murder, convicted him of second degree murder, and acquitted him of attempted murder. As to the second degree murder guilty verdict, the jury found that the offense was committed to benefit a criminal street gang and that a principal personally and intentionally discharged a firearm causing death. The trial court sentenced Garcia to a total term of 40 years to life in state prison comprised of a term of 15 years to life on the murder count and 25 years for the firearm enhancement. The court ordered Garcia to pay $7,280 in direct victim restitution through the Victim Compensation Board, and to pay a $5,000 restitution fine and corresponding $5,000 parole revocation fine (stayed). (§§ 1202.4, subds. (b), (f), 1202.45.) Garcia appeals. We modify the terms of the restitution fines, and affirm. |
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