People v. Garcia
| Decision Date | 22 May 2013 |
| Docket Number | B236196 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. RICARDO GARCIA, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA357126)
APPEAL from a judgment of the Superior Court of Los Angeles 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).)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.
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.4 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 atthe 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.
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 andthen 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." 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, ante) and that Ruiz had said he was 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.
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...
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People v. Garcia
...family member and killing another. Defendant was charged and prosecuted as the dropoff and getaway driver for Ruiz. (People v. Garcia (May 22, 2013, B236196) [nonpub. opn.].) During deliberations, the jury indicated an inability to reach a decision on defendant's liability as a direct aider......