P. v. Garcia

Filed 11/29/05 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. PETE VALDEZ GARCIA, Defendant and Appellant.

F045886 (Super. Ct. No. F01662862-2) OPINION

APPEAL from a judgment of the Superior Court of Fresno County. R. L. Putnam, Judge.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Jesse Witt, Deputy Attorneys General, for Plaintiff and Respondent.

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Following a jury trial, Pete Valdez Garcia (appellant) was found guilty of count 1, attempted murder (Pen. Code, §§ 664, 187, subd. (a));^[1] count 2, assault with a firearm (§ 245, subd. (a)(2)); count 3, attempted second degree robbery (§§ 664, 211); count 4, attempted carjacking (§§ 664, 215); and count 5, assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)). The jury found true allegations that appellant personally used a firearm (§§ 12022.5, subd. (a)(1),^[2] 12022.53, subd. (b)), that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), that he personally and intentionally discharged a firearm that proximately caused great bodily injury (§ 12022.53, subd. (d)), and that he personally inflicted great bodily injury (§ 12022.7, subd. (a)).

The trial court sentenced appellant to a total term of imprisonment of 34 years to life, consisting of nine years for the attempted murder, plus 25 years to life for the allegation that he personally and intentionally discharged a firearm that proximately caused great bodily injury. The remaining sentence was stayed.

Appellant contends the trial court improperly admitted evidence of his gang affiliation and of a coconspirator’s threats against two witnesses. He claims ineffective assistance of counsel. He also contends numerous sentence enhancements should have been stricken, not stayed. We agree with appellant in part on this last issue. In all other respects, the judgment is affirmed.

FACTS

In the early morning hours of June 14, 2001, appellant and his friend Edward Hawkins were at Sylvia Rodriguez’s residence on North Angus. Ricky Diaz drove to the same address with the intent to sell stolen stereo equipment to Tato Aranas.

When Diaz arrived, appellant walked up to Diaz’s car, opened the door, and told him to get out. Appellant asked Diaz, “What are you doing here” and told Diaz to give him the car keys. Appellant then struck Diaz with a gun. Hawkins pulled out a gun and swung at Diaz, but missed. Hawkins told Diaz to get back into the car. Diaz tried to start the car, but appellant and Hawkins beat him. Hawkins grabbed the stereo equipment. Appellant shot Diaz as he ran away, hitting him in the spine and paralyzing him. Appellant and Hawkins drove away.

Rodriguez was interviewed by the police right after the shooting. Fearing for her safety, Rodriguez lied and told the police she had been asleep at the time of the incident and had not seen appellant or Hawkins that day. Nine months after the incident, Rodriguez again spoke to the police, this time telling them that appellant and Hawkins had attacked Diaz.

Rodriguez testified that, sometime after the incident, Hawkins told her he heard someone was talking about the shooting and he better not find out it was her or he would “fuck [her] up.” Rodriguez was placed into witness protection and was promised relocation after the trial.

At the time of the shooting, Diaz told officers he did not know who shot him. While in the hospital, Diaz was able to give officers a general description of the shooter. Without hesitation, Diaz identified appellant and Hawkins from a photo lineup. Diaz, who was in prison on a theft-related offense at the time of trial, testified that he was worried about retaliation because of his testimony.

An officer spoke to appellant three months after the incident. Appellant denied knowing anything about the shooting, denied knowing Hawkins, and denied being at the apartment complex on North Angus.

Appellant’s wife testified that he was asleep with her in their house at the time of the shooting.

1. Did the trial court properly admit evidence of appellant’s gang affiliation?

A range of gang related evidence was admitted, of which appellant now complains.

First, early in trial, the prosecutor stated he intended to introduce evidence of appellant’s gang affiliation because it was relevant to the question of witness intimidation. Defense counsel agreed, and the parties later stipulated before the jury that “… Tato Aranas, Edward Hawkins, and [appellant] are all self-admitted members of the Eastside Fresno Bulldogs, a criminal street gang.”

Second, on cross-examination of the prosecution’s witness Rodriguez, defense counsel questioned whether she had described appellant as a “hard core gang member willing to do anything for himself or his gang.” Rodriguez responded that he looked more like “someone who don’t take no one’s shit.”

Third, during trial, the prosecution sought to introduce evidence of a notebook found on appellant at the time of his arrest which contained the words: “Mind of a hustler. Heart of a gangster. Tongue of a pimp. Thug lord from Eastside. Fresno ‘killa.’ Call all dogs. Are no Dogs unless they Bulldogs” and “I’m so proud.” The trial court overruled defense counsel’s objection made on grounds of relevance, and the notebook’s words were read to the jury. Then, outside the presence of the jury, the prosecutor explained that the notebook was relevant on the issue of gang intimidation, witness demeanor, and appellant’s motive. Defense counsel objected on grounds that the evidence was more prejudicial than probative. The court stated it thought the evidence was “pretty limited in usefulness,” but “[u]nfortunately, it’s already in.” Defense counsel made no request to strike the evidence or to have the jury admonished to ignore it.

Fourth, a police officer testified that appellant had described himself as a gang member three months after the shooting, and a police gang expert tied appellant to the Bulldog gang. Defense counsel did not object.

Appellant also complains of defense counsel’s inconsistency: in closing, defense counsel conceded that the prosecution’s witnesses initially denied knowing about the shooting because “let’s face it, it’s some sort of a gang-related case.” But in examining appellant’s wife and mother, counsel had elicited testimony that appellant was no longer an active gang member.

Appellant’s contention is that the trial court erred in admitting “any evidence of appellant’s alleged gang affiliation,” because his alleged crimes were not gang related, and the evidence was offered to insinuate guilt based on a gang member’s propensity for violent behavior. Generally, questions regarding the admissibility of evidence will not be reviewed on appeal unless a timely objection was made. (People v. Tuilaepa (1992) 4 Cal.4th 569, 588; People v. Fosselman (1983) 33 Cal.3d 572, 581.) Therefore, we address only the admission of the notebook writing, as appellant has waived his remaining claim on appeal by failing to object at trial. (People v. Ochoa (1998) 19 Cal.4th 353, 453.)

We review any ruling by a trial court on the admissibility of evidence for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) This standard is applicable both to a trial court’s determination of the relevance of evidence as well as its determination under Evidence Code section 352 whether the evidence’s probative value is substantially outweighed by its prejudicial effect. (See, e.g., People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)

“The issue of the relevance of evidence is left to the sound discretion of the trial court, and the exercise of that discretion will not be reversed absent a showing of abuse. [Citations.] That discretion is only abused where there is a clear showing the trial court exceeded the bounds of reason, all of the circumstances being considered. [Citations.]” (Ibid.; People v. Cudjo (1993) 6 Cal.4th 585, 609.)

The abuse of discretion standard applies equally when the issue is the admission of gang evidence. (People v. Champion (1995) 9 Cal.4th 879, 922; People v. Sandoval (1992) 4 Cal.4th 155, 175.)

Evidence of gang affiliation is not admissible to show a defendant’s character or criminal disposition, but is admissible to establish material facts in the case such as intent, motive, and premeditation, and to impeach witnesses and refute defenses. (Evid. Code, § 1101, subd. (a); People v. Carter (2003) 30 Cal.4th 1166, 1194.) We agree with appellant that there was no evidence that the motive for the attack on Diaz was gang related. But gang evidence is admissible when it is logically relevant to some material issue in the particular prosecution. (People v. Ruiz (1998) 62 Cal.App.4th 234, 240.)

“[E]vidence that a witness is afraid to testify is relevant to the credibility of that witness and therefore admissible.” (People v. Warren (1988) 45 Cal.3d 471, 481; Evid. Code, § 780.) Testimony that a witness is fearful of retaliation similarly relates to that witness’s credibility and is also admissible. (People v. Malone (1988) 47 Cal.3d 1, 30.) It is not necessary to show threats against the witness were made by the defendant personally, or the witness’s fear of retaliation is directly linked to the defendant, for the evidence to be admissible. (People v. Green (1980) 27 Cal.3d 1, 19-20 [testimony witness was afraid to go to jail because defendant had friends there was relevant to witness’s credibility].)

Here, the prosecution offered the gang evidence to prove witness intimidation and explain discrepancies in the percipient witnesses’ testimonies. Witness Rodriguez testified that she initially lied to police because she feared for her safety because Hawkins and appellant were gang members and “mostly were dangerous.” Rodriguez testified that Hawkins later threatened her.

Jaime Salas, who lived at the residence with Rodriguez, testified that he heard “Bulldog” voices coming from Rodriguez’s room on the night in question, but did not witness the incident. He denied several statements he had made earlier to the police. Salas did not recall identifying appellant or Hawkins. Salas stated he would not want to testify against someone who committed a crime and he did not want to be a “snitch” because he did not want to die. Salas described the Bulldog gang members as “cool” and “real nice guys,” but admitted they would not be nice if he testified against them in court.

We find it unnecessary to decide whether the trial court erred in admitting evidence of the gang wording in the notebook. Having assessed this evidence in light of the whole record, including the other gang evidence introduced by the prosecutor without objection, as well as that stipulated to and elicited by defense counsel, we are satisfied that appellant was not prejudiced by the additional admission of the notebook wording.

Appellant contends that admission of the gang evidence violated his constitutional right of due process, and that the proper test of prejudice is whether it was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. We disagree. Evidentiary error may violate due process if there is no permissible inference a jury may draw from the evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1246.) Here, the notebook evidence was marginally relevant as to witness intimidation, so there was no due process violation. Instead, we analyze whether the error was harmless under the test of People v. Watson (1956) 46 Cal.2d 818; that is, whether it is reasonably probable a result more favorable to appellant would have occurred in the absence of the claimed error in the admission of the contested gang evidence. (People v. Champion, supra, 9 Cal.4th at p. 923; People v. Maestas (1993) 20 Cal.App.4th 1482, 1498.) Although the gang evidence may have put appellant in a bad light, there is nonetheless ample direct evidence of his guilt. Appellant was identified as the assailant by both the victim Diaz and percipient witness Rodriguez.

2. In the alternative, did appellant receive ineffective assistance of counsel?

Appellant contends further that he received ineffective assistance of counsel at trial. He objects to defense counsel’s (1) stipulation about appellant’s gang membership; (2) elicitation of a “damning statement” from the prosecution witness Rodriguez about appellant’s gang membership; (3) incomplete objection to the gang words found in the notebook; (4) inconsistency in presenting testimony from appellant’s wife, and from his mother, that appellant was no longer a gang member; (5) failure to object to the gang expert’s testimony; and (6) concession in closing argument that the case was “gang-related.” Appellant argues that counsel should have consistently opposed “every aspect” of the gang evidence.

“To show ineffective assistance of counsel, defendant has the burden of proving that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different.” (People v. Kelly (1992) 1 Cal.4th 495, 519-520; Strickland v. Washington (1984) 466 U.S. 668, 687-688, 693-694.)

As we noted earlier, “[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.” (People v. Burgener (2003) 29 Cal.4th 833, 869.) In light of the inconsistency between the testimony of Rodriguez and her pretrial statement, and in light of the equivocal testimony of Salas, evidence of appellant’s gang membership was admissible. Defense counsel has no obligation to object to relevant evidence. (People v. Price (1991) 1 Cal.4th 324, 387.) Furthermore, “failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight.” (People v. Kelly, supra, 1 Cal.4th at p. 520.)

We recognize appellant’s concern is more than just the admission of gang membership evidence, per se. He contends, for instance, that the wording in the notebook, while perhaps relevant, was nevertheless more prejudicial than probative, and that defense counsel failed to ask that the evidence be stricken or a limiting instruction be given. He also objects to counsel’s questioning tactics and performance in closing.

“‘In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]’” (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Here, we cannot say there could be no conceivable reason for counsel’s actions. Defense counsel’s argument at trial was that Aranas and Hawkins, both active gang members, were responsible for the crimes. Evidence of gang intimidation and violence bolstered the argument that Aranas and Hawkins were violent and capable of shooting Diaz and threatening the witnesses into falsely implicating appellant. Defense counsel used evidence of gang membership to argue Rodriguez’s testimony was suspect, claiming her allegiance as one associated with the gang was to Aranas and Hawkins, both active gang members, allowing her to finger appellant, a former gang member. On this record, appellant has not met his burden of establishing that he was denied his right to effective assistance of counsel.

3. Did the trial court properly admit evidence of third party witness intimidation and protection offered to witnesses? In the alternative, did appellant receive ineffective assistance of counsel?

Appellant contends the trial court erred in admitting evidence of witness intimidation and protection offered to a witness. Specifically, the prosecution presented evidence that Hawkins had threatened Rodriguez. In response to this threat, Rodriguez was placed in a witness protection program. A district attorney investigator testified how the witness protection program worked. In addition, Victoria Ybarra, the mother of Hawkins’s children, testified that a male called her the night before trial to tell her not to testify. Ybarra did not recognize the man’s voice. Appellant claims the threats were not made by him, but the testimony inferentially attributed the threats to him and was prejudicial. Respondent contends appellant has waived this argument by failing to object at trial. We agree with respondent.

At the start of trial, the prosecutor asked to admit evidence of gang membership to show witness intimidation. Defense counsel agreed that gang membership was relevant “to show that the gang member has enough influence to have witnesses change their testimony.”

After Rodriguez testified, the prosecution asked that the coordinator of the witness protection program be allowed to testify about how the program works—that witnesses in the program do not receive benefits in exchange for their testimony. Defense counsel initially objected on grounds of relevance and “352 grounds.” Following some discussion, defense counsel stated he did not have any objection to the investigator “testifying what they do as far as the program goes.” Defense counsel agreed that the investigator’s testimony should be limited to “talking about the program” and how the program relates to the witness.

Thereafter, Investigator Jerry Haroldsen testified that he was the coordinator of the witness protection program, which assisted victims and witnesses to crime to “give them the opportunity to come forward to testify in court without intimidation.” Investigator Haroldsen explained the screening process for the program, including assessing a person’s credibility. Haroldsen testified that benefits in the program were provided to Rodriguez, and that she was told the benefits of the program were not an entitlement. Haroldsen further testified that the program was not used to influence Rodriguez’s testimony. Defense counsel offered no objection to this testimony and chose not to question the investigator on cross-examination.

Victoria Ybarra testified for the prosecution. Ybarra testified that she had received a telephone call “the night before.” The male caller, whom she did not recognize, told her not to appear in court. Defense counsel made no objection.

Acquiescence in the admission of evidence or failure to object to evidence in the trial court waives any objection on appeal. (Evid. Code, § 353.) Appellant has waived any claim of error involving the admission of this evidence. (People v. Garceau (1993) 6 Cal.4th 140, 179.)

In his reply brief, appellant makes a further argument that he was denied effective assistance of counsel, because “counsel could have had no strategic reason for failing to object to the allegations that Rodriguez and Ybarra were threatened.” Again, as noted earlier, where trial tactics or strategy is challenged, “‘we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions.’” (People v. Jones, supra, 29 Cal.4th at p. 1254.) Rodriguez’s testimony that Hawkins threatened her was in line with defense counsel’s argument that it was Hawkins who committed the crime.

Defense counsel’s failure to object to Ybarra’s testimony that she was threatened is more troublesome. Although Ybarra did not identify who threatened her, she is the mother of Hawkins’s children and it could reasonably be inferred that he would not make such a threat to her or that she would have recognized his voice.

An error or omission by counsel which causes his or her representation to fall below prevailing standards of professional competence is prejudicial if it is reasonably probable that the outcome would have been more favorable to the appellant in the absence of the error or omission. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218; Strickland v. Washington, supra, 466 U.S. at pp. 693-694.) But, a reviewing court need not reach the question whether counsel’s performance was deficient if the record demonstrates that it is not reasonably probable that the outcome would have been more favorable in the absence of the alleged deficiency. (Strickland v. Washington, supra, at p. 696.)

For purposes of argument, we will assume that there is no reasonable explanation for defense counsel’s failure to object to Ybarra’s testimony that she received a threatening phone call. Thus, we focus our discussion on whether the outcome would have been different but for counsel’s deficient performance.

We disagree with appellant’s contention that the error was prejudicial. Ybarra was not a credible witness. Despite Ybarra’s testimony that she and Hawkins had been together nine years, she claimed not to know for sure if Hawkins was still a member of the Bulldog street gang or if his friends were gang members. And, despite testimony that she and Hawkins were asked to be godparent’s to appellant’s newborn child, Ybarra claimed never to have met appellant. Furthermore, direct evidence in the record supports the jury’s verdict on all five counts. Two eyewitnesses identified appellant: the victim and Rodriguez.

Appellant has not demonstrated that there is a reasonable probability of a more favorable result but for defense counsel’s failure to object to evidence. We therefore reject appellant’s ineffective assistance of counsel argument.

4. Should the trial court have stricken rather than stayed the lesser enhancements?

In his opening brief, appellant contends the trial court imposed only one sentence enhancement pursuant to section 12022.53, subdivision (d), an additional 25 years on the attempted murder conviction, but that the abstract of judgment incorrectly shows the court imposed but stayed enhancements on the other counts, creating a conflict with the oral pronouncement of sentence. Respondent contends the court subsequently corrected the error of which appellant complains. In his reply brief, appellant acknowledges misreading the record and agrees that the abstract does conform with the reporter’s transcript. But appellant makes an additional argument that, while the trial court was authorized to impose the 12022.53, subdivision (d) enhancement on counts 1, 3 and 4, all remaining lesser enhancements imposed should have been stricken, not stayed. We agree with appellant only in part.

To clarify, the court imposed the following enhancements: on count 1, section 12022.53, subdivision (d), plus imposed and stayed enhancements pursuant to sections 12022.5, subdivision (a)(1), 12022.53, subdivisions (b) and (c), and 12022.7, subdivision (a); on count 2, imposed and stayed enhancements pursuant to sections 12022.5, subdivision (a)(1), and 12022.7, subdivision (a); on count 3, imposed and stayed enhancements pursuant to sections 12022.5, subdivision (a)(1), 12022.53, subdivisions (b), (c), and (d), and 12022.7, subdivision (a); on count 4, imposed and stayed enhancements pursuant to sections 12022.5, subdivision (a)(1), 12022.53, subdivisions (b), (c) and (d), and 12022.7, subdivision (a); and on count 5, imposed and stayed enhancements pursuant to section 12022.5, subdivision (a)(1) and 12022.7, subdivision (a).^[3]

Section 12022.53, subdivision (f) provides in relevant part:

“Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.”

But subdivision (h) of section 12022.53 states: “Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section.”

In People v. Bracamonte (2003) 106 Cal.App.4th 704, the court held that harmonizing the seemingly conflicting subdivisions within section 12022.53 requires

“the trial court to add the applicable enhancement for each firearm discharge and use allegation under that section found true and then to stay the execution of all such enhancements except for the one which provides the longest imprisonment term.” (Bracamonte, at p. 713.)

Following this reasoning here, the stayed enhancements pursuant to section 12022.53, subdivisions (b) and (c) in counts 1, 3, and 4 are therefore correct.

The Bracamonte court reached a different conclusion with respect to a firearm use enhancement under section 12022.5:

“Section 12022.5 must be construed in conjunction with section 12022.53 where, as here, personal firearm use under section 12022.53 is also alleged. [¶] The court strikes a section 12022.5 enhancement under subdivision (f) of section 12022.53, which provides that ‘An enhancement involving a firearm specified in Section … 12022.5 … shall not be imposed on a person in addition to an enhancement imposed pursuant to this section.’ (Italics added.) Such directive is mandatory. No discretion is involved. (See also People v. Jenkins (1980) 28 Cal.3d 494, 505 …; People v. Tanner (1979) 24 Cal.3d 514, 521 ….)” (People v. Bracamonte, supra, 106 Cal.App.4th at p. 712, fn. 5.)

Following this reasoning, we strike the enhancements pursuant to section 12022.5, subdivision (a)(1) on the counts in which an enhancement pursuant to section 12022.53, subdivision (b), (c) or (d) was also imposed, namely counts 1, 3, and 4.

Section 12022.53, subdivision (f) also states, “An enhancement for great bodily injury as defined in Section 12022.7 … shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d).” We therefore also strike the enhancements pursuant to section 12022.7, subdivision (a) on counts 1, 3, and 4.

Unauthorized sentences may be corrected on appeal if the erroneous sentencing decision did not involve an exercise of judicial discretion. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)

DISPOSITION

The sections 12022.5, subdivision (a)(1), and 12022.7, subdivision (a) enhancements connected to counts 1, 3, and 4 are stricken. The superior court is directed to prepare an amended abstract of judgment reflecting these modifications and to forward a copy to the Department of Corrections. In all other respects, the judgment is affirmed.

DAWSON, J.

WE CONCUR:

_______________________________

LEVY, Acting P.J.

_______________________________

CORNELL, J.

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

^[2]Appellant was originally charged in 2001 and tried and sentenced in 2002. At that time, section 12022.5 included a subdivision (a)(1) as reflected in the record. Effective January 1, 2003, subdivision (a)(1) was redesignated subdivision (a) without substantive change as pertinent here. (See Stats. 2002, ch. 26, § 3.) We will refer to the former designation.

^[3]Section 12022.5, subdivision (a)(1), personal use of a firearm in the commission of any felony or attempted felony, provides for an additional consecutive three-, four-, or 10-year sentence; section 12022.53, subdivision (b), personal use of a firearm in the commission of enumerated felonies, provides for an additional consecutive 10-year sentence; section 12022.53, subdivision (c), personal and intentional discharge of a firearm in the commission of enumerated felonies, provides for an additional consecutive 20-year sentence; 12022.53, subdivision (d), personal and intentional discharge of a firearm in the commission of enumerated felonies, causing great bodily injury or death, provides for an additional consecutive 25 years to life sentence; and section 12022.7, subdivision (a), personal infliction of great bodily injury in the commission of any felony or attempted felony, provides for an additional consecutive three-year sentence.