People v. Garcia
| Decision Date | 11 June 2013 |
| Docket Number | B237195 |
| Parties | THE PEOPLE, Plaintiff and Respondent, v. EDWIN OMAR 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
It is ordered that the opinion filed herein on May 21, 2013, be modified by adding the following.
The trial court did not abuse its discretion. The declaration of defense counsel in support of the Pitchess motion only refers to Office Bojorquez making false statements—not to Sergeant Maretti. At no time before or during the hearing did defense counsel specify why the motion should be granted as to Sergeant Maretti. 5 Officer Bojorquez drafted the police report.
4. Add the following to page 18, line 2, after the close of the citation: Whether an error is prejudicial because a defendant made a showing of good cause in support of his Pitchess request under Warrick, supra, 35 Cal.4th 1011, is determined under the standard of People v. Watson (1956) 46 Cal.2d 818, 836 (People v. Samuels (2005) 36 Cal.4th 96, 110.) Defendant has not shown the prosecutor failed to disclose exculpatory evidence known to it in violation of Brady v. Maryland (1963) 373 U.S. 83 and that there is a reasonable probability of a different result if the government's suppression of evidence "'undermines confidence in the outcome of the trial.'" (Kyles v. Whitley (1995) 514 U.S. 419, 434; In re Williams (1994) 7 Cal.4th 572, 611.) It should be noted that the Pitchess procedure "is the only avenue by which citizen complaints may be discovered." (People v. Gutierrez, supra, 112 Cal.App.4th at p. 1475.) Because under Alford v. Superior Court (2003) 29 Cal.4th 1033, the prosecutor does not generally have the right to possess and does not have access to confidential peace officer files, the prosecutor has no duty to review the files of all police officer witnesses for purposes of Brady. (See Gutierrez, supra, 112 Cal.App.4th at p. 1475.)
5. On page 33, lines 6-7, delete People v. Watson (1956) 46 Cal.2d 818, 836 and add People v. Watson, supra, 46 Cal.2d at p. 836.
Petition for Rehearing is denied. There is no change in judgment.
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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.
THE PEOPLE, Plaintiff and Respondent,
v.
EDWIN OMAR GARCIA, Defendant and Appellant.
(Los Angeles County
APPEAL from a judgment of the Superior Court of the County of Los Angeles, Roger Ito and Lori Ann Fournier, Judges. Affirmed as modified and remanded.
Tamara Zivot, 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, Senior Assistant Attorney General, Marc A. Kohm and Steven E. Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Edwin Omar Garcia (defendant) was convicted of carrying a concealed dirk or dagger. (Pen. Code, former § 12020, subd. (a)(4)1). On appeal, defendant contends that the trial court erred by denying his motion to suppress evidence, failing to instruct the jury on intent to conceal, ordering that he be restrained during trial, imposing a prior prison term enhancement pursuant to section 667.5, subdivision (b), failing to instruct the jury about lawful, transitory or momentary possession of the dirk or dagger, admitting into evidence defendant's three prior convictions for impeachment purposes, and instructing the jury under CALCRIM 226, as modified. Defendant also contends that there is insufficient evidence to support the jury's finding that the knife recovered on his person was a dirk or dagger, the prosecutor engaged in prejudicial misconduct by presenting false and misleading information and argument, and he is entitled to additional days of custody credit. In addition, defendant contends that the trial court erred in denying his Pitchess motion as to one law enforcement officer, and requests that we conduct an independent review of the in camera hearing regarding a second law enforcement officer to determine whether it discloses error by the trial court.
We order that defendant's abstract of judgment be corrected to provide that he is entitled to additional custody credits. We otherwise affirm the judgment.
Huntington Park Police Department Officer Mario Bojorquez testified that on June 9, 2011, he responded to a 911 call concerning a domestic dispute at a residence in Huntington Park. Officer Bojorquez was the first officer to arrive at the scene. Huntington Park Police Department Sergeant Richard Maretti testified that he also responded to the 911 call, and arrived at the scene after Officer Bojorquez arrived there.
Officer Bojorquez testified that he saw defendant, who fit the description of a man described in the 911 call, outside the door of the apartment, talking to a woman—later determined to be defendant's ex-girlfriend—on the other side of the apartment door.
Officer Bojorquez testified that he asked defendant whether he had any weapons or anything illegal in his possession. Officer Bojorquez asked defendant permission to search him. Sergeant Maretti testified that upon his arrival at the scene he heard Officer Bojorquez ask defendant if defendant had any weapons on his person and ask for permission to search him. Neither officer drew his weapon. Sergeant Maretti saw Officer Bojorquez search defendant.
Officer Bojorquez and Sergeant Maretti testified that Officer Bojorquez found a fixed-blade knife on defendant's person and handed it to Sergeant Maretti. Officer Bojorquez testified that he located the knife in the left front pocket of defendant's pants. Before Officer Bojorquez searched defendant and found the knife in defendant's pocket, he could not see any part of the knife sticking out of defendant's pocket, and he could not otherwise see that defendant had a knife in his pocket.
Sergeant Maretti testified that the total length of the knife found on defendant's person was about five inches long, and Officer Bojorquez testified that it was about five and one half inches long. Officer Bojorquez and Sergeant Maretti testified that the knife had a two and one-half inch fixed blade and was capable of being used as a stabbingweapon. Sergeant Maretti testified that the knife had a pointed tip, a hand guard, and was sharp enough to penetrate flesh. Two photographs of the knife in question were introduced into evidence, and one of the pictures included the knife next to a ruler.
Defendant admitted that in 2007 and 2008 he was convicted of three felony convictions for crimes of moral turpitude. On June 9, 2011, defendant went to the apartment of Ayissa Navarro, his then girlfriend, in Huntington Park. When he went inside the apartment, she started screaming at him, stating "Get the fuck out," and Navarro pushed defendant out of the apartment and they continued to argue. Navarro said to defendant that she knows he had been cheating on her and that the relationship was over, and she went back inside the apartment. Defendant told her he would not leave until they spoke. When defendant tried to go inside the apartment, Navarro came back outside with a knife in her hand. When asked to describe the knife, defendant testified, "it was a dirk and dagger." Navarro jabbed the knife toward defendant, and told defendant, "Get the fuck out of here."
Defendant was worried at first, but then became "pissed off." He testified that, "I grabbed her hand and end up snatching the knife away from her." Defendant used his right hand to reach for the knife and put the knife in his pocket. He did not throw it on the ground because Navarro could have picked it up and used it against him. Defendant told Navarro, "we need to talk," and began to follow Navarro back into the apartment in an effort to talk with her.
At that time, Officer Bojorquez "grabs" defendant by the arm and tells him, "Come over here . . . and put your hands behind your head." Officer Bojorquez searched defendant. Officer Bojorquez did not ask defendant if he had anything on his person, and did not ask for permission to search him. Officer Bojorquez searched defendant and found the knife. As Officer Bojorquez found the knife, defendant repeatedly said, "I just took it away from my crazy-ass girlfriend." Officer Bojorquez said, "Be quiet, dude."Defendant sat down and noticed that he was bleeding from a small cut on his hand, and said to Officer Bojorquez, "Look, I can prove to you I just took the knife away from my girlfriend," but Officer Bojorquez was on his walkie-talkie and "pretty much" ignored defendant. Defendant was placed in a patrol car, asked Officer Bojorquez why he was being arrested, and told the officer to look at his hand. Defendant introduced into evidence a...
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