People v. Garcia

• Decision Date: 16 April 1985
• Citation: 212 Cal.Rptr. 822,166 Cal.App.3d 1056
• Parties: The PEOPLE, Plaintiff and Respondent, v. Daniel Ybarra GARCIA, Defendant and Appellant. Crim. 44566.
• Court: California Court of Appeals Court of Appeals

Page 822

212 Cal.Rptr. 822

166 Cal.App.3d 1056

The PEOPLE, Plaintiff and Respondent, v. Daniel Ybarra GARCIA, Defendant and Appellant.

Crim. 44566.

Court of Appeal, Second District, Division 6, California.

April 16, 1985.

As Modified May 6 and May 15, 1985.

Review Denied July 17, 1985.

[166 Cal.App.3d 1062] Alejandro Gonzalez, Oxnard, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Mark Alan Hart and Alice E. Altoon, Deputy Attys. Gen., for plaintiff and respondent.

STEVENS, Associate Justice. ^*

Defendant was convicted of attempted rape (Pen.Code, §§ 664, 261, subd. (2)), forcible child molestation (Pen.Code, § 288, subd. (b)) and two counts of furnishing marijuana to a minor (Health & Saf.Code, § 11361). In addition, enhancements alleging substantial sexual conduct (Pen.Code, § 1203.066, subd. (b)) and special trust (Pen.Code, § 1203.066, subd. (a)(9)) were found to be true. Defendant was sentenced to a total of 12 years in prison. He appeals these convictions seeking reversal because of a variety of errors alleged to have occurred before and during his trial. We reverse defendant's conviction of attempted rape and affirm the judgment in all other respects.

FACTS

At the time these incidents occurred defendant Daniel Garcia was sharing his home with Pete Belaustegui and the Zepeda family. The Zepeda family consisted of Joe Zepeda, Joe's wife Trisha, their 2 1/2 year-old child Maricella and Trisha's 17-year-old sister Annette Carrillo.

On the evening of September 25, 1982, Trisha prepared dinner for herself, Maricella, Annette and Pete. They sat around the kitchen table to eat the meal. Just as they finished the defendant came home. He produced a plastic bag containing marijuana which he handed to Trisha saying "you guys can have this." Trisha placed part of While they were smoking the marijuana from the Coca Cola can 17-year-old Frank Antimo came into the house. He had a discussion with defendant and the others about the marijuana and offered to return to his home to get a bong. ¹ Frank left and returned within three or four minutes with the bong. The bong was filled with marijuana and was smoked. It was refilled on three or four occasions with either Trisha or Annette placing marijuana from the supply into the device. The bong was passed back and forth among defendant, Trisha, Annette and Frank while they sat around the kitchen table. Defendant passed the smoking bong to both Annette and Frank.

the marijuana in an empty Coca Cola can which was utilized as a device for smoking. Defendant, Trisha, Annette and Pete sat around the kitchen table and smoked marijuana from the can. The can was passed among them and was refilled two or three times by Trisha and Annette. Both Trisha and Annette testified that they were familiar with marijuana prior to September 25, 1982. Each had smoked it quite a few times and each had smelled and tasted it. In the opinion of both Trisha and Annette the substance which they smoked was marijuana.

When they finished smoking, Frank Antimo left the house. The other people went into the living room where they watched television. The child Maricella was playing on the living room floor. Trisha fell asleep on the couch. At approximately 8 p.m. after she had been sleeping for 20 minutes Trisha awakened and did not see Maricella. She called for Maricella but heard no answer.

Trisha, Annette and Pete began looking for the child. They looked in the bedroom and saw no one there. They observed that the bathroom door was closed. Trisha knocked on the door and called out. The door was opened to reveal Maricella and defendant standing in the bathroom. Maricella was nude. Her hands were placed over her genital area. Her eyes were red and watery as if she had been crying. Defendant had no shirt on, his belt was unbuckled and hanging down.

Trisha took the child out of the bathroom and asked her what happened. Maricella said "Danny hurt me." Trisha asked Maricella where she had been hurt and the child placed her hands on her genital area. Maricella was taken to the hospital where she was examined by the doctor on duty. Later she was also examined by Doctor Woodling at the request of the district attorney. The doctor found scratches, swelling and bruises in the genital area. The swelling and bruising could have been caused by a forcible attempt to penetrate the child's vaginal area by an adult male penis. The scratches could have been made by a fingernail. He also found a bruise on the arm that could have been made by a grasping adult hand.

A report was made to the police who obtained a search warrant. Officers went to the defendant's home where they found him asleep in bed. He was arrested and taken into custody.

I

Defendant initially asserts that the trial judge erred when he refused to grant the defendant's motion to continue the trial. Defendant was arrested on September 25, 1982. Shortly thereafter, he retained counsel who represented him at the preliminary hearing and at his superior court arraignment when trial was set for December 13, 1982. On the morning of December 13, 1982, defendant moved to continue the trial so that new counsel could be substituted. The case was continued from time to time until January 20, 1983, when Attorney Alejandro Gonzalez was substituted in. Mr. Gonzalez had been retained prior to the 20th. He assured the court that he would be ready for trial within 10 days. The case was assigned to start trial on February 3, 1983. On the morning of February 3, 1983, Mr. Gonzalez appeared with the defendant and asked for further continuance to enable him to arrange for the defendant to be Defendant was allowed to substitute counsel only after the court was given assurances that the new attorney would be ready in 10 days. A motion for continuance will be granted only upon a showing of good cause. (Pen.Code, § 1050.) A denial of a motion for continuance will not be disturbed in the absence of clear showing of abuse of discretion. (People v. Caldwell (1980) 102 Cal.App.3d 461, 162 Cal.Rptr. 397.) Under the circumstances presented here the court's refusal to further delay the proceeding was within its discretion.

examined by a psychiatrist and a urologist. The motion was denied.

II

Defendant next contends that the trial court abused its discretion in denying his motion to sever. Section 954 of the Penal Code permits the charging of two or more different offenses in the same accusatory pleading if the offenses are "connected together in their commission." If there is a common element of substantial importance joinder is proper. (Walker v. Superior Court (1974) 37 Cal.App.3d 938, 112 Cal.Rptr. 767; People v. De Angelis (1979) 97 Cal.App.3d 837, 159 Cal.Rptr. 111.) Here we have the common elements of time and place. The offenses occurred in the same small house within a space of approximately three hours. The same persons were present or in close proximity during the commission of each of the offenses. Joinder of the sexual misconduct charges with the marijuana charges was clearly proper.

Prejudice will not be assumed and must be clearly established by the defendant. The prejudice claimed by the defendant was the fact that he would have employed different trial tactics if the charges were tried separately. Specifically, he would not have testified in the marijuana trial. The fact that one count is stronger or weaker than another; or that defendant might elect to use different trial tactics where counts are joined, does not deny the trial court discretion to refuse severance. Such a showing does not amount to substantial prejudice and does not require reversal of the trial judge's decision. (People v. Brock (1967) 66 Cal.2d 645, 58 Cal.Rptr. 321, 426 P.2d 889; People v. Matson (1974) 13 Cal.3d 35, 117 Cal.Rptr. 664, 528 P.2d 752.)

III

Defendant also complains that his motion to set aside the information pursuant to Penal Code section 995 should have been granted. He says there was insufficient evidence to support the magistrate's finding that there was reasonable and probable cause to believe him guilty of the charged offenses. He contends that there is no evidence of force which is a necessary element of the offenses charged in Counts I and II. He also contends that a violation of section 11361 of the Health and Safety Code cannot be supported because there is insufficient evidence that the substance was in fact marijuana. He also claims that there is no evidence establishing that it was the defendant who furnished the marijuana to the minors.

We should begin this discussion by reiterating the standards to be applied by the reviewing court on a motion brought pursuant to section 995 of the Penal Code. The principles are so well known as to make it unnecessary to cite the numerous cases in which they have been developed. A good summary of the applicable principles is found in the following language from the oft-quoted case of Rideout v. Superior Court (1967) 67 Cal.2d 471, 62 Cal.Rptr. 581, 432 P.2d 197: "Evidence that will justify a prosecution need not be sufficient to support a conviction. [Citations.] 'Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.' An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. [Citations.] [p] A reviewing court may not Applying the above standards to the case before us we find that there was sufficient evidence presented at the preliminary hearing to hold the defendant to answer the charge. With respect to the charges of forcible rape and forcible child molestation we see evidence that the child was found standing naked in the bathroom with the defendant beside her. She appeared to have been crying. Her hands...