People v. Garcia

Decision Date05 June 2018
Docket NumberD073825
Citation233 Cal.Rptr.3d 902,24 Cal.App.5th 314
CourtCalifornia Court of Appeals Court of Appeals
Parties The PEOPLE, Plaintiff and Respondent, v. Jose Epifanio GARCIA, Defendant and Appellant.

24 Cal.App.5th 314
233 Cal.Rptr.3d 902

The PEOPLE, Plaintiff and Respondent,
v.
Jose Epifanio GARCIA, Defendant and Appellant.

D073825

Court of Appeal, Fourth District, Division 1, California.

Filed June 5, 2018


Brendon William Marshall, Office of the Attorney General, 600 West Broadway, Suite 1800, PO Box 85266, San Diego, CA 92186, for Plaintiff and Respondent

Patricia J. Ulibarri, P.O. Box 19905, San Diego, CA 92159-0905, for Defendant and Appellant

ORDER STRIKING WENDE/ANDERS BRIEF FILED BY COUNSEL FOR APPELLANT

THE COURT:*

24 Cal.App.5th 316

A jury convicted Jose Epifanio Garcia1 of attempted voluntary manslaughter and assault with a semiautomatic firearm ( Pen. Code, §§ 664, 192, subd. (a), 245, subd. (b) ),2 and Jose filed an appeal. For reasons we discuss, the Wende / Anders3 brief filed by Jose's appointed appellate counsel is stricken. Counsel is ordered to file a new brief in conformity with Wende, supra , 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071, or file a merits brief.

FACTUAL AND PROCEDURAL BACKGROUND

Jose is Salvador's older brother. Salvador insulted the sister of victim Gerardo M., causing animosity between Salvador and Gerardo. A few months later, when Salvador and Gerardo next saw each other, the unresolved animosity between them led to a physical fight between two groups of men in the parking lot of Gerardo's apartment complex. One group included Jose, Salvador, and two of their friends. The other group included Gerardo, his cousin, and friend, Erik R. Armed with guns, Jose and Salvador approached Gerardo's unarmed group. Erik, who was a former gang member, suggested that Jose's group put their guns away and fight "one on one." Members of Jose's group then began fist fighting with members of Gerardo's group.

During the fight, Salvador pointed a gun at Erik's head. Out of concern for Erik's life, Gerardo threw a beer bottle at Salvador's head, but missed. The fighting continued, Gerardo got shot in the torso, and fell to the ground. While Gerardo was down on his back, Salvador and his friend punched him. Next, Salvador pulled out a gun from his waistband area and shot Gerardo in the face. At that point, Gerardo's father stopped the fight. Salvador pointed his gun at several of Gerardo's family members while threatening to shoot. Jose and Salvador fled the area together.

233 Cal.Rptr.3d 904

Gerardo, who survived his gunshot wounds, and his sister identified Salvador as the shooter. Gerardo identified Jose as a person who had been holding a gun during the fight.

Jose and Salvador were charged with attempted murder ( §§ 664, 187, subd. (a) ) and assault with a semiautomatic firearm ( § 245, subd. (b) ). During

24 Cal.App.5th 317

their joint trial, the People's theory, with respect to attempted murder, was that (1) Salvador shot Gerardo; and (2) Jose intended to aid and abet Salvador with committing assault with a semiautomatic firearm, a natural and probable consequence of which was attempted murder. The court instructed the jury accordingly. The court also instructed the jury on the lesser included offense of attempted voluntary manslaughter based on heat of passion/sudden quarrel and imperfect self-defense.

After deliberating, the jury convicted Jose of attempted voluntary manslaughter and assault with a semiautomatic firearm. ( §§ 664, 192, subd. (a), 245, subd. (b).) The court sentenced him to a prison term of nine years for assault with a semiautomatic firearm.4 Jose filed a timely appeal.5

APPELLATE PROCEEDINGS

Jose's appointed appellate counsel submitted a brief on Jose's behalf "pursuant to the procedures outlined in [ Wende, supra ,] 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] and Anders [, supra ,] 386 U.S. 738 [87 S.Ct. 1396]."

The discussion section of the brief states as follows:

"When counsel files a brief which sets forth a summary of the proceedings and facts with citations to the transcript, but raises no specific issues, the Court of Appeal must conduct a review of the entire record to determine whether the record reveals any issues which would, if resolved favorably to the appellant, result in reversal or modification of the judgment. ( [ Wende, supra ,] 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] ; People v. Feggans (1967) 67 Cal.2d 444 [62 Cal.Rptr. 419, 432 P.2d 21] ; Anders [, supra ,] 386 U.S 738 [87 S.Ct. 1396]...; see also People v. Johnson (1981) 123 Cal.App.3d 106, 109-112 [176 Cal.Rptr. 390].)"

"This brief, with the attached declaration of appellate counsel, is filed in accordance with the procedures outlined in [ Wende, supra ,] 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071], and People v. Feggans, supra , 67 Cal.2d 444 [62 Cal.Rptr. 419, 432 P.2d 21], as interpreted by the court in People v. Johnson, supra , 123 Cal.App.3d 106 [176 Cal.Rptr. 390]. The following information about claims appearing in the record is provided pursuant to Anders [, supra ,] 386 U.S 738 [87 S.Ct. 1396], to assist the court in conducting its independent review of the record." (Boldface added.)

The brief then identifies general and specific "claims" appearing in the record. Under the claim headings are citations to the clerk's transcripts and/or

24 Cal.App.5th 318

reporter's transcripts, and each claim is accompanied by string citations listed in no particular order, as follows:

"A. ERROR FOR FAILURE TO SEVER APPELLANT'S CASE FROM THAT OF HIS BROTHER SALVADOR?
233 Cal.Rptr.3d 905
"(CT 1:209, 215-216, RT 1:114-116, RT 16:1260; Pen. Code, § 1098 ; Zafiro v. United States (1993) 506 U.S. 534, 544 [113 S.Ct. 933, 122 L.Ed.2d 317] ; People v. Thompson (2016) 1 Cal.5th 1043, 1081 [210 Cal.Rptr.3d 667, 384 P.3d 693] ; People v. Homick (2012) 55 Cal.4th 816, 850 [150 Cal.Rptr.3d 1, 289 P.3d 791] ; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41 [17 Cal.Rptr.3d 710, 96 P.3d 30] ; People v. Burney (2009) 47 Cal.4th 203, 236-237 [97 Cal.Rptr.3d 348, 212 P.3d 639] ; Williams v. Superior Court (1984) 36 Cal.3d 441, 447-448 [204 Cal.Rptr. 700, 683 P.2d 699] ; People v. Massie (1967) 66 Cal.2d 899, 917 [59 Cal.Rptr. 733, 428 P.2d 869] ; People v. Cummings (1993) 4 Cal.4th 1233, 1287 [18 Cal.Rptr.2d 796, 850 P.2d 1] ; United States v. Tootick (9th Cir. 1991) 952 F.2d 1078, 1082 ; United States v. Romanello (5th Cir. 1984) 726 F.2d 173, 174 People v. Boyde (1988) 46 Cal.3d 212, 231 [250 Cal.Rptr. 83, 758 P.2d 25] ; People v. Jackson (1996) 13 Cal.4th 1164, 1208-1209 [56 Cal.Rptr.2d 49, 920 P.2d 1254] ; People v. Souza (2012) 54 Cal.4th 90, 110-111 [141 Cal.Rptr.3d 419, 277 P.3d 118] ; People v . Greenberger (1997) 58 Cal.App.4th 298, 343 [68 Cal.Rptr.2d 61] ; People v. Garcia (2008) 168 Cal.App.4th 261, 280 [85 Cal.Rptr.3d 393] ; People v. Hardy (1992) 2 Cal.4th 86, 168 [5 Cal.Rptr.2d 796, 825 P.2d 781] ; United States v. Sherlock (9th Cir. 1989) 962 F.2d 1349, 1362 ; United States v. Buena–Lopez (9th Cir. 1993) 987 F.2d 657, 661.)

"B. SUFFICIENCY OF EVIDENCE RE AIDING AND ABETTING?

"( Juan H. v. Allen (9th Cir.2005) 408 F.3d 1262, 1277-1278 ; People v. Nguyen (1993) 21 Cal.App.4th 518, 531 [26 Cal.Rptr.2d 323] ; People v. Covarrubias (2016) 1 Cal.5th 838, 903 [207 Cal.Rptr.3d 228, 378 P.3d 615] ; People v. Garcia (2008) 168 Cal.App.4th 261, 272-273 [85 Cal.Rptr.3d 393] ; People v. Campbell (1994) 25 Cal.App.4th 402, 30 Cal.Rptr.2d 525, 529 ); People v. Hickles (1997) 56 Cal.App.4th 1183, 1194 [66 Cal.Rptr.2d 86] ; People v. Laster (1997) 52 Cal.App.4th 1450, 1463-1466 [61 Cal.Rptr.2d 680] ; People v. Joiner (2000) 84 Cal.App.4th 946, 967 [101 Cal.Rptr.2d 270] ; People v. Hill (1946) 77 Cal.App.2d 287, 293-294 [175 P.2d 45] ; People v. Olguin (1994) 31 Cal.App.4th 1355, 1376 [37 Cal.Rptr.2d 596] ; People v. Godinez (1992) 2 Cal.App.4th 492, 499 [3 Cal.Rptr.2d 325] ; People v. Favor (2012) 54 Cal.4th 868, 879-880 [143 Cal.Rptr.3d 659, 279 P.3d 1131].)

"C. DID APPELLANT SUFFER PREJUDICE AS A RESULT OF AN IMPEACHMENT GANG PRIOR AS TO CODEFENDANT SALVADOR?
24 Cal.App.5th 319
"(RT 9:808-812, CALCRIM No. 316 [evidence limited], Evid. Code, § 352 ; People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7 [14 Cal.Rptr.2d 418, 841 P.2d 938] ; People v. Heckathorne (1988) 202 Cal.App.3d 458, 462-463 [248 Cal.Rptr. 399] ; People v. McClellan (1969) 71 Cal.2d 793, 809 [80 Cal.Rptr. 31, 457 P.2d 871] ; People v. Castro (1985) 38 Cal.3d 301, 316 [211 Cal.Rptr. 719, 696 P.2d 111] ; In re Wing Y. (1977) 67 Cal.App.3d 69, 76-79 [136 Cal.Rptr. 390] ; People v. Tassell (1984) 36 Cal.3d 77, 88 [201 Cal.Rptr. 567, 679 P.2d 1] ; People v. Williams (1997) 16 Cal.4th 153, 193 [66 Cal.Rptr.2d 123, 940 P.2d 710] ; People v. Maestas (1993) 20 Cal.App.4th 1482, 1495 [25 Cal.Rptr.2d 644] ; People v. Perez (1981) 114 Cal.App.3d 470, 479 [170 Cal.Rptr. 619] ; People v. Champion (1995) 9 Cal.4th at 879, 922 [39 Cal.Rptr.2d 547, 891 P.2d 93] ; McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, 1381 and fn. 2 ; Henry v. Estelle (9th Cir. 1993) 993 F.2d 1423, 1427-1428.)
233 Cal.Rptr.3d 906
"D. ERROR NOT TO GIVE DEFENSE-REQUESTED CALCRIM NOS. 224 AND 225?

"(RT
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