People v. Garcia

• Decision Date: 27 June 2013
• Docket Number: F062834
• Parties: THE PEOPLE, Plaintiff and Respondent, v. RICHARD MIGUEL GARCIA, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

THE PEOPLE, Plaintiff and Respondent,

v.RICHARD MIGUEL GARCIA, Defendant and Appellant.

F062834

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

June 27, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Tulare Super. Ct. No.

VCF226445C)

OPINION

APPEAL from a judgment of the Superior Court of Tulare County. Patrick O'Hara, Judge. (Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Appellant/defendant Richard Miguel Garcia, a member of the Norteno gang, was a passenger in a vehicle with three friends who were also Norteno gang members. They had spent several hours at a cemetery, drinking beer and mourning the death of a relative who had been killed by a rival Sureno gang member. As they drove through Orosi, they saw two men walking on the street who were wearing blue, the color claimed by the rival gang. One of the vehicle's passengers shot and killed one of the men; defendant was not the gunman. At trial, the prosecution's gang expert testified the homicide was part of the deadly turf battle between the two gangs in the Cutler-Orosi area.

Defendant was charged and convicted of count I, conspiracy to commit murder (Pen. Code,¹ §§ 182, subd. (a)(1), 187, subd. (a)). In count II, he was found not guilty of the charged offense of first degree murder, and convicted of the lesser included offense of second degree murder as an aider and abettor. The jury also found the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)), and that a principal personally and intentionally discharged a firearm which proximately caused death (§ 12022.53, subds. (d) & (e)(1)). Defendant was sentenced to 50 years to life.

On appeal, defendant raises several instructional issues and contends the jury was incorrectly instructed on conspiracy to commit murder under an implied malice theory; the jury should have been instructed on voluntary and involuntary manslaughter as lesser included offenses of count II; the aiding and abetting language in CALCRIM No. 400 was erroneous; and the gang enhancement instructions were erroneous. Defendant also challenges the evidence in support of his convictions for conspiracy and second degree murder.

We find that the instructions for conspiracy were incorrect and prejudicial, and reverse that count. We affirm defendant's conviction for second degree murder and the special allegations therein, and correct defendant's sentence.

FACTS

On the evening of August 28, 2009, two men wearing blue were walking along Avenue 416 in Orosi. There were three other people on the street who were not involved in the shooting, but witnessed the following events.

As the two men in blue walked on the street, a green Honda Accord appeared and pulled up to where the two men were walking. There were four men in the Honda. Someone in the car yelled the word " 'SuRat' " at the two men in blue.

One witness [J.R.] testified that the Honda's driver and the man who was sitting in the front passenger seat got out of the car. They threw cans at the two men in blue.² This same witness testified that the man sitting in the Honda's back seat, behind the driver, got out of the car and was holding a gun. The gunman initially aimed the gun at the witness, but then realized the witness was not with the two men in blue. The gunman then turned the weapon at the two men in blue, and fired five or six shots. One of the men fell down. The other man appeared to be hit in the leg, but he was able to escape.

Another witness [G.C.] testified that the gunman got out of the Honda's back seat, and the other three men did not get out of the car or open their doors. The gunman fired five or six shots, one man fell down, and the second man ran away. After firing the shots, the gunman got back into the car, and the Honda left the area at a high rate of speed.The initial investigation

Around 7:50 p.m., deputies from the Tulare County Sheriff's Department received a dispatch about a gunshot victim on Avenue 416. The deputies found Arturo Bello lying on the road. Bello was dead, and his head was in a pool of blood. He had been wearing a blue tank top, a blue baseball cap, and white tennis shoes with a blue emblem. There were no weapons near him. There was a beer bottle found on the street in the victim's general vicinity.

Apprehension of suspects

Shortly after the shooting, the deputies received the report that a dark colored Honda was involved. Just after finding the victim's body, the deputies saw a vehicle matching the Honda's description. It was traveling in excess of 75 miles per hour. The Honda passed two deputies traveling in an unmarked patrol unit. The deputies immediately activated the signal lights and siren to conduct a traffic stop. The Honda slowed down and finally stopped.

There were four people in the Honda. Josh Hernandez (Josh) was the driver. Defendant was sitting in the front passenger seat. Santos Hernandez (Santos), Josh's brother, and Rodney "Lance" Zayas were in the back seat.³

Josh was wearing a black baseball cap with a red letter "C," and had a red bandana hanging out of his back pocket. Josh had a tattoo on his arm in red ink which said "Hernandez de Catela."

Zayas had a .22-caliber live bullet in his pocket. Zayas also had "X4" and "TC" tattoos, which were gang-related. Santos had a "C" tattoo on his arm, which stood for Catela. Defendant did not have any visible tattoos and was not wearing any red or gang-related attire when he was arrested.

At an in-field showup, one of the witnesses identified Zayas as the gunman, and said the three other suspects had been in the Honda.

Search of the car

A Taurus nine-shot .22-caliber revolver was found on the floorboard of the Honda's backseat. It contained one .22-caliber live round but no expended shells. A plastic case was also in the backseat, and it contained a single .22-caliber live round and a cylinder lock. The live rounds which were found in Zayas's pocket, the revolver, and the plastic case were the same brand.

There were two CD cases in the car marked with the words "NorCal" and other northern gang-related words. There were beer bottles in the car.

Searches of the suspects' residences

The deputies searched defendant's bedroom in his mother's house and found a Blackberry cell phone with gang photographs; a school group photo which depicted one person throwing a "four" sign and had derogatory phrases about the southern gang written on it; and other papers with gang letters on them. Defendant shared the bedroom with his brother, and the cell phone belonged to his brother.

When the deputies searched Josh's house in Bakersfield, they found a coffee mug with a drawing of the Huelga bird, the words "Catela, BPC," drawings of the "smile now, cry later" masks, and it said: " 'F*** those who oppose.' " There was a photograph of Josh "throwing up" a "four" sign with a red rag, signifying the Norteno gang.

Detective Crystal Derington testified that "Brown Pride Catela" was a northern gang in Cutler, and the words on the mug were "basically calling out their rival saying that they'll take care of business and do what it takes to stand their ground and take control of their territory ...."

Zayas's house in Orosi was searched, and the deputies found a .12-gauge Mossberg semiautomatic shotgun under the dresser in Zayas's bedroom. It containedfive shotgun shells. There was red clothing in Zayas's bedroom closet. The deputies also found three letters from jail inmates and a page of gang-rap lyrics.

The fatal gunshot wound

The victim suffered two gunshot wounds. The fatal wound entered his upper lip, just below his nose. The bullet traveled front to back, slightly downward, and slightly right to left. It fractured the victim's teeth⁴ on his upper jaw, continued through the airway in the back of the mouth, severed the brain stem from the spinal cord, and went through the base of the skull. There was a fragment exit wound on the back of his scalp. A small caliber bullet fragment with rifling marks was recovered from his neck. This bullet wound was "immediately" fatal.

The victim had a second gunshot wound which entered the right side of his back. The bullet's trajectory was at an angle - slightly back to front, upward, and slightly left to right. The bullet hit the liver, entered the right chest cavity, and hit a rib. There was no exit wound. A deformed, small caliber bullet with rifling marks, and bullet fragments were recovered from the victim's body.

There were multiple abrasions on the victim's face and body. The victim's blood-alcohol level was 0.18 percent, and there was evidence that he had ingested marijuana.

Defendant's first statement

At 7:32 a.m. on August 29, 2009, Detective Zaragoza conducted a videotaped interview with defendant. He advised defendant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and defendant agreed to answer questions about the homicide.⁵ Defendant, who was 23 years old, said Josh picked him up the previousday, and Zayas and Santos were in the car. Josh drove them to a cemetery, where they visited the grave of Josh's brother. They stayed there for about two hours and drank beer. Defendant said they left the cemetery in Josh's car. They were driving through Orosi when defendant fell asleep. Defendant said when he woke up, the...