P. v. Garcia

Filed 11/29/05 P. v. Garcia CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, Plaintiff and Respondent, v. ALEX RAUL GARCIA, Defendant and Appellant.

2d Crim. No. B180464 (Super. Ct. No. 2004000264) (Ventura County)

Alex Raul Garcia appeals his convictions on two counts of assault with a deadly weapon or by means likely to cause great bodily injury. (Pen. Code, § 245, subd. (a)(1).)^[1] The jury found true allegations that, in the commission of both offenses, Garcia personally inflicted great bodily injury (§ 12022.7) and personally used a deadly weapon (§ 12022, subd. (b)(1)). Garcia claims instructional error, prosecutorial misconduct, and violation of his constitutional rights to confrontation and to present a defense.

FACTS AND PROCEDURAL HISTORY

Garcia attended a New Year's Eve party at the home of victim David Vance. When Vance heard Garcia making derogatory remarks about white people, Vance ordered Garcia out of his house. Vance and Garcia yelled at each other, and Vance threw a chair at a wall. Vance was intoxicated and Garcia was under the influence of methamphetamine.

The two men began fighting in the kitchen of Vance's home. Witnesses testified, and Garcia admitted, that Garcia was armed with a knife that was not concealed from view. Vance's nephew, Josh Zavaleta, saw Garcia pull his knife out and try to stab Vance during their fistfight. The fight temporarily ended when Garcia threw a glass bottle or mug at Vance, cutting Vance on the chin. Garcia left the Vance house but returned with two acquaintances. Garcia and his acquaintances stood outside the house calling for Vance to come out. Garcia had his knife in his hand. Vance came out of his house yelling at Garcia.

A man other than Garcia hit Vance a few times. Garcia ran towards Vance and "jumped" him. They fell to the ground and fought with arms flailing. Garcia got on top of Vance, Vance bit Garcia on the tip of a finger, and Garcia stabbed Vance several times in the back and on the arms. Vance's fiancée pulled Garcia off of Vance, saw blood streaming down his arm, and called 911. Vance suffered serious injury from the stab wounds.

Garcia testified at trial that Vance was intoxicated and aggressive when the two were in the Vance house prior to the first fight. Garcia admitted that he left the house intending to resume the fight, and that he jumped on Vance and engaged in "street fighting" when he returned with reinforcements. Garcia testified that, when Vance bit his finger, Garcia was worried about the tip of his finger being bitten off, and stabbed Vance about five times while Vance's teeth were clenched on his finger. When Vance let go of the finger, Garcia grabbed Vance in a headlock and the two men continued fighting for a while. Garcia then ran away, telling his companions that "we got that fool." Garcia testified that he sought medical treatment the next day but that the finger did not require stitches, and its tip had not been bitten off by Vance. There was no evidence other than Garcia's testimony that he had been bitten.

Garcia was charged with two counts of assault with a deadly weapon or by means likely to cause great bodily injury. Count one concerned the fight in Vance's kitchen during which Garcia threw a glass container that cut Vance on the chin. Count two concerned the fight outside the house during which Garcia repeatedly stabbed Vance.

After the jury verdict, Garcia admitted a prior conviction for a serious and violent felony under the three strikes law. (§§ 667, subd. (e)(1), 1170.12, subd. (a)(1).) He was sentenced to 12 years in state prison. The count one sentence was the three-year midterm doubled to six years as a second strike, plus three years for the great bodily injury enhancement. The count two sentence was one-third of the midterm doubled to two years as a second strike, plus one year for the great bodily injury enhancement.

DISCUSSION

No Instructional Error

Garcia contends that the trial court gave incomplete jury instructions on his right of self-defense against the count two assault. Garcia concedes he was the aggressor and, as a general rule, an aggressor may not claim self-defense unless the victim continues to fight after the aggressor attempts to withdraw and makes the victim aware that he or she is withdrawing from the fight. (People v. Quach (2004) 116 Cal.App.4th 294, 301.) Consistent with this rule, the trial court instructed the jury with the version of CALJIC No. 5.54 in effect at the time of trial.[2]

There is, however, an exception to the general rule requiring an initial aggressor to withdraw before gaining the right to self-defense. "[W]hen the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense." (People v. Gleghorn (1987) 193 Cal.App.3d 196, 201, cited in People v. Quach, supra, 116 Cal.App.4th at pp. 302-303.)[3]

Although not requested, Garcia contends that the trial court had a sua sponte duty to instruct the jury that withdrawal is not required when there is a sudden counterassault with deadly or other excessive force that is so perilous as to prevent withdrawal. Garcia argues that, by biting his finger, Vance responded to Garcia's initiation of a "scuffle" with a sudden and deadly counterassault or at least a sudden counterassault by means likely to cause great bodily injury, and that such a counterassault permitted Garcia to use deadly force against Vance in self-defense. We disagree.

A trial court has a sua sponte duty to instruct on all general principles of law that are consistent with the defendant's theory of the case when there is substantial evidence to support giving the instruction. (People v. Crew (2003) 31 Cal.4th 822, 835.) "Substantial evidence is evidence of reasonable, credible value." (Ibid.)

Here, there was no substantial evidence to warrant the sudden and deadly counterassault instruction. First, the evidence establishes that Garcia initiated an aggravated assault involving use of "a deadly weapon . . . or [other] means . . . likely to produce great bodily injury" (§ 245), and not a "simple assault" involving an attempt "to commit a violent injury on the person of another" coupled with a "present ability" to carry out the attempt. During a party in Vance's house, Garcia threw a bottle or mug at Vance cutting him on the chin. Armed with a knife, Garcia initiated a second fight by attacking the unarmed Vance outside Vance's house. During the fight, Garcia repeatedly stabbed Vance in the back and arms. Nothing in the record indicates that Garcia initiated a minor "scuffle" or took any action to limit the fight to a "scuffle."

Second, although Vance fought back, there is no substantial evidence that Vance responded with a sudden counterassault involving deadly force or other excessive force. Garcia testified: "We were basically what you call street fighting [and he] started gouging at my eyes. And so I started gouging at his eyes. He grabbed my hand and he bit my finger . . . . And I pulled out my pocket knife and I stabbed him. . . . [A]fter he let go of my finger I dropped my pocket knife and I grabbed him in a headlock and we both went down to the ground. . . . I was just holding him down so he wouldn't get back up."

Even if Garcia's testimony is credited, it does not support the conclusion that Vance bit Garcia's finger in a sudden counterassault, or that the biting involved the use of deadly or otherwise excessive force. Although the bite may have been painful, Garcia did not testify that he feared for his life or feared disfigurement, and health care professionals concluded that he did not require stitches or other medical treatment for the bite. The only reasonable interpretation of Garcia's testimony is that Vance's bite involved a level of violence roughly equal to that initiated by Garcia. It was Garcia who suddenly escalated the level of violence by stabbing Vance in response to the biting. In sum, Garcia started the fight and was met by Vance's similarly combative behavior. Punching, gouging and biting formed part of this street brawl started by Garcia. The knife attack, on the other hand, was the application of deadly force which the law will not justify. Garcia was not entitled to an instruction giving legal sanction to it.

No Prejudicial Error in Excluding Evidence

During cross-examination, defense counsel asked witness Zavaleta whether Vance has "a short fuse" when intoxicated, "has been known to drink excessively," and has "a reputation in the family for becoming aggressive when he's intoxicated." Garcia contends that, by sustaining objections to these questions, the trial court excluded evidence of Vance's propensity for violence when intoxicated in violation of his constitutional right to present a defense. (See Evid. Code, § 1103, subd. (a).) We disagree.[4]

In a prosecution for assault where self-defense is raised, evidence of the victim's violent character shown through past conduct is admissible to show the victim was more likely the aggressor. (Evid. Code, § 1103, subd. (a); People v. Wright (1985) 39 Cal.3d 576, 587; People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447.) The admission or exclusion of evidence, however, is within the discretion of the trial court which may impose reasonable limits on cross-examination to prevent prejudice, confusion of the issues, and interrogation that is repetitive or only marginally relevant. (People v. Cooper (1991) 53 Cal.3d 771, 817; Wright, supra, at p. 587.) We review a trial court's rulings on the admission or exclusion of evidence for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.)

Asking a family member whether Vance had a "short fuse" and a reputation for aggressiveness when intoxicated would arguably elicit admissible evidence of the victim's violent character when under the influence of alcohol. (Evid. Code, § 1103, subd. (a).) But, we conclude that there was no prejudicial error in excluding the evidence.

Evidence is relevant to establish a "disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210, italics added.) Evidence of Vance's propensity for violence had only marginal relevance to Garcia's defense. This was not a credibility contest between Garcia and Vance where Garcia was compelled to rely solely on his own testimony without admission of the character evidence.

Other witnesses at the party testified to Vance's consumption of alcohol and his level of hostility and recklessness before the count one assault and the count two assault as well as his active participation in both fights. Although minimizing its effect, Vance himself admitted that he had been drinking heavily. Based on virtually undisputed evidence that Vance was intoxicated, hostile and exhibited a "short fuse" at his party, evidence of prior occasions when Vance behaved in a similar manner when intoxicated was, at best, cumulative.

Also, contrary to Garcia's assertion, the evidence had minimal significance as impeachment of Vance's testimony minimizing the effect that alcohol had on him. Vance testified that he had a "high tolerance" for alcohol because he was a heavy drinker and was only "buzzed" on the night of the party. But, it was highly unlikely that the jury construed Vance's admission that he was a heavy drinker who got "buzzed" at his party as indicating he was not intoxicated.

Accordingly, there was no violation of Garcia's constitutional rights. The excluded evidence was not highly probative of Garcia's innocence and did not prevent him from presenting his defense. (See People v. Smithey (1999) 20 Cal.4th 936, 996; People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.) If the trial court erred, the error was harmless under either the "reasonable probability" standard of People v. Watson (1956) 46 Cal.2d 818, 836, or the "beyond a reasonable doubt" standard of Chapman v. California (1967) 386 U.S. 18, 24, applicable to federal constitutional violations.

No Prejudicial Misconduct by Prosecutor

Garcia contends that the prosecutor improperly referred to the existence of facts outside the record during argument and during Garcia's cross-examination. During argument, the prosecutor stated that Garcia's use of methamphetamine made him aggressive and hostile. During cross-examination, the prosecutor implied that Garcia had made an admission to the police inconsistent with his testimony. He argues that these actions constituted prosecutorial misconduct, and also made the prosecutor an "unsworn witness" in violation of his constitutional right to confrontation. We disagree.

Garcia waived these claims by failing to object to either the cross-examination or argument in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 1001; People v. Gionis (1995) 9 Cal.4th 1196, 1215.) There is no basis in the record to conclude that any harm to Garcia from the challenged statements could not have been cured by an admonition. (People v. Cleveland (2004) 32 Cal.4th 704, 764.)

In any event, we reject Garcia's contentions on their merits. It is misconduct for a prosecutor to use deceptive or reprehensible methods to attempt to persuade the jury. (People v. Cunningham, supra, 25 Cal.4th at p. 1000.) In particular, a prosecutor may not make an argument based on facts not in evidence. (Id., at p. 1026.) And, a prosecutor may not ask a witness a question that implies a fact harmful to a defendant unless the prosecutor reasonably believes the witness will confirm the implied fact or the fact can be proved by other evidence. (People v. Mooc (2001) 26 Cal.4th 1216, 1233-1234; People v. Price (1991) 1 Cal.4th 324, 481.)

During argument, the prosecutor stated that "[Garcia] is under the influence of methamphetamine. It makes you aggressive. It makes you hostile. And it makes you ready." Later, the prosecutor repeated this theme by stating that "[h]e's got methamphetamine pumping through him and he's aggressive and hostile is what he's got going on."

These statements did not rise to the level of prosecutorial misconduct or violate Garcia's right to confrontation. Although there was no evidence that the use of methamphetamine causes aggression or hostility, a prosecutor has wide latitude to argue reasonable inferences from the evidence, and may state matters that are common knowledge even if not contained in the evidence. (People v. Cunningham, supra, 25 Cal.4th at p. 1026.) The effect of drugs, while remaining a proper subject of expert testimony, has become a subject of common knowledge among laypersons. (See People v. Yeoman (2003) 31 Cal.4th 93, 162; People v. Fauber (1992) 2 Cal.4th 792, 838-839.) Although the precise effects of methamphetamine may not be common knowledge, we are satisfied that it is commonly known that methamphetamine heightens mental processes and makes a user agitated.

In any event, even if prosecutorial misconduct occurred, reversal is not required because Garcia cannot show that he was prejudiced. (People v. Arias (1996) 13 Cal.4th 92, 161.) The jury was instructed that statements of attorneys were not evidence, and that it must decide the facts solely based on the evidence at trial. (CALJIC Nos. 1.00, 1.02.) Also, the evidence overwhelmingly shows that Garcia was hostile and aggressive at the time of the assaults. Accordingly, the misconduct was harmless under either the Chapman or Watson standards. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)

There was also no prosecutorial misconduct during Garcia's cross-examination. When Garcia denied telling an acquaintance he wanted to "stick" Vance before the count two assault, the prosecutor asked whether Garcia had "read the police reports" in the case. Garcia answered no. Garcia argues that asking whether he had read police reports inferred that the police reports included an admission that Garcia had made the statement. The prosecution never introduced evidence of any such admission to the police.

It is not misconduct to ask a question of a defense witness suggesting the existence of facts harmful to the defendant if the prosecutor has a good faith belief the question will be answered in the affirmative or that facts can and will be proved if their existence is denied. Here, the record provides no basis to conclude that the prosecutor lacked a good faith belief that Garcia would confirm knowledge of the content of the police reports, or that she could otherwise prove that Garcia or one of his acquaintances told the police that Garcia said he wanted to stab Vance. (People v. Mooc, supra, 26 Cal.4th at pp. 1233-1234; People v. Price, supra, 1 Cal.4th at p. 481.)

In addition, Garcia fails to show a reasonable likelihood the jury understood the prosecutor's question as he claims. We will not assume the jury drew the most damaging inference, especially from the very brief reference to the police reports made by the prosecutor. (See People v. Howard (1992) 1 Cal.4th 1132, 1192.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Donald D. Coleman, Judge

Superior Court County of Ventura

______________________________

Richard E. Holly, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc E. Turchin, Lance E. Winters, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Courtesy of California Legal Resource Directory, a source for providers and consumers of legal resources. Because we know legal.

San Diego Lawyers are available and standing by to help you.

[1] All statutory references are to the Penal Code unless otherwise stated.

[2] At the time of trial, CALJIC No. 5.54 provided in its entirety: "The right of self-defense is only available to a person who initiated an assault, if . . . [h]e has done all the following: [¶] A. He has actually tried, in good faith, to refuse to continue fighting; [¶] B. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he wants to stop fighting; and [¶] C. He has by words or conduct caused his opponent to be aware, as a reasonable person, that he has stopped fighting. [¶] After he has done these three things, he has the right to self-defense if his opponent continues to fight."

[3] The Quach case involved the similar CALJIC No. 5.56 instruction applicable to "mutual combat." CALJIC No. 5.54 was revised in response to Quach to include an additional instruction that: "If the victim of simple assault responds in a sudden and deadly counterassault, the original aggressor need not attempt to withdraw and may use reasonably necessary force in self-defense."

[4] We reject respondent's contention that Garcia waived these claims by failing to make an offer of proof. In relevant part, Evidence Code section 354 prohibits the reversal of a judgment due to the erroneous exclusion of evidence unless the "substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means" or "[t]he evidence was sought by questions asked during cross-examination or recross-examination." The disputed evidence was sought during cross-examination and no offer of proof was required.