People v. Garcia, G041032 (Cal. App. 2/11/2010)

Decision Date11 February 2010
Docket NumberG041032.
PartiesTHE PEOPLE, Plaintiff and Respondent, v. GREG GARCIA and DAVID ALVIZO, Defendants and Appellants.
CourtCalifornia Court of Appeals

Appeal from a judgment of the Superior Court of Orange County, No. 06WF2818, David A. Hoffer, Judge. Affirmed in part, reversed in part and remanded.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant Greg Garcia.

Eric S. Multhaup, under appointment by the Court of Appeal, for Defendant and Appellant David Alvizo.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

Not to be Published in Official Reports



Appellants Greg Garcia and David Alvizo were convicted of first degree murder and street terrorism, with attendant firearm use and gang enhancements. On appeal, they raise over a dozen claims relating to the trial court's handling of their case. We reject their claims for the most part but will remand for correction of certain sentencing errors and partial resentencing. In all other respects, we affirm.


On the afternoon of October 30, 2006, Jason Gentry heard a "half dozen or so pops" outside his Garden Grove home. When he went outside to see what was going on, he saw "two kids"appellants — in his front yard. Alvizo was tucking an object into his waistband, and when he and Garcia saw Gentry, they both ran. At the time, Garcia was 15 years old, and Alvizo was 2 years his senior. They were both members of the Down Crowd, a Garden Grove gang whose enemies included an outfit called the Wicked Ones.

Gentry chased appellants in his truck, but he eventually lost track of them and returned home to call the police. Upon their arrival at Gentry's house, officers discovered five shell casings and two bullet fragments in the area. However, they found no sign of any victims.

Meanwhile, appellants had made their way to the home of Alvizo's girlfriend, Yesenia Chavez. Speaking with Chavez in her backyard, appellants talked about having shot a "Weenie," a derogatory name for a member of The Wicked Ones. They both seemed scared and nervous, and Alvizo expressed concerned about possible witnesses, saying, "Fuck, they saw me." Appellants implored Chavez to create an alibi for them, and later, when Garcia's brother picked them up, they talked about going to Mexico.

The next day, the gunshot-riddled body of 14-year-old Eric Berrelleza was discovered near a woodpile in Gentry's backyard. Berrelleza, aka "Villain," was a member of the Wicked Ones and no friend of the Down Crowd. Prior to the shooting, he had drawn the wrath of the Down Crowd for defacing, or "plaquing up," its graffiti.

Appellants were arrested for the shooting, and while in jail awaiting trial, Garcia wrote a letter to Veronica Alvarez that was intercepted by the authorities. In the letter, Garcia made derogatory comments about the Wicked Ones and bragged about having "smoked . . . Villain." He crossed out all of the "W's" in the letter.

Before trial, the police found a letter in the home of Down Crowd member Wesley Brown. The letter was addressed to Alvizo at juvenile hall, and like the Garcia letter, every "W" in it was crossed out.

Gang expert Peter Vi explained this orthographic quirk. He said that by crossing out the "W's" in the letters, the authors intended to show their disrespect toward the Wicked Ones. Vi further explained that if a member of the Wicked Ones defaced Down Crowd graffiti, as Berrelleza allegedly had done, that would be a strong incentive for payback. And, if a Down Crowd member were to take retaliatory action against such an interloper, it would enhance his reputation, as well as the reputation of the gang as a whole.

Testifying on his own behalf, Alvizo denied being a gang member or having anything to do with Berrelleza's death. He admitted he was in the area with Garcia when the shooting occurred but said they were merely on their way to a restaurant at the time. He insisted he did not see the shooter or the victim, or make any incriminating statements to Chavez later on. Garcia did not testify.

On rebuttal, Police Detective Elaine Jordan testified that when she interviewed Alvizo following his arrest, he told her that prior to the shooting, he and Garcia waited for Berrelleza on the street corner for about 30 minutes. And after he arrived, they ended up by Gentry's house, where shots were fired. Although Alvizo did not confess to taking part in the shooting, he did admit he and Garcia "had problems" with Berrelleza.

In closing argument, the prosecutor acknowledged the evidence was not conclusive as to whether it was Garcia or Alvizo who actually shot Berrelleza. However, she argued it didn't matter in terms of their culpability because they were backing each other up and helping each other out during the shooting. Relying on aiding and abetting principles, she told the jury that regardless of who pulled the trigger, appellants were both guilty of murdering Berrelleza.

The jury convicted appellants of murder and street terrorism and found they acted for the benefit of a criminal street gang and vicariously discharged a firearm. It also found true a special circumstances allegation that Alvizo intentionally committed the murder while he was an active participant in, and to further the activities of, a criminal street gang. The court sentenced Alvizo to life in prison without the possibility of parole, and Garcia to 50 years to life.

I Right to Counsel

Alvizo contends the court erred in denying his request to discharge his retained attorneys.1 Having come on the day trial was scheduled to begin, we find the request was properly denied as untimely.

Alvizo was originally represented by a deputy public defender, but in March 2007, just before his preliminary hearing, he retained Dale Elsberry and Michael Foster to be his attorneys. They represented Alvizo as the case proceeded to trial, which was set to begin on June 13, 2008. On that day, Alvizo was present in court, and both the prosecution and the defense answered ready for trial. However, the trial date was moved to June 16, and then after that, the case was trailed to June 19.

On the 19th, the case was called for trial and both sides were ready to proceed. But before things could get under way, attorney Elsberry informed the court Alvizo wanted to make a statement regarding a "counsel issue" that, to Elsberry's knowledge, had just come up. The court asked Alvizo what was on his mind, and he bluntly announced, "I would like to fire my attorneys." Unsure what to do, the court invited input from counsel. Invoking the state's right to a speedy trial, the prosecutor said Alvizo had "one of two options. He can represent himself or he can have counsel that are prepared and ready to proceed, represent him." Garcia's attorney concurred with this assessment. Like the prosecutor, he did not want to further delay the proceedings.

The court recognized that since Alvizo was seeking to discharge retained counsel, as opposed to appointed counsel, he was not required to show good cause. (See People v. Marsden (1970) 2 Cal.3d 118, 123 [a defendant seeking to discharge appointed counsel must demonstrate his attorney is providing inadequate representation or he and counsel are embroiled in an irreconcilable conflict].) Still, the court wanted to know the basis for Alvizo's request, and therefore it had the prosecutor leave the courtroom and inquired of Alvizo as to why he wanted to fire his lawyers.

Alvizo alleged they weren't doing anything for him or "fighting" on his behalf. When the court asked him what specifically he wanted his attorneys to do, Alvizo replied, "Like go visit me at the jail, go over with me, my case. I don't know nothing about my case. I seen days go, holidays, see the defendant, I try and call my attorneys. They don't answer the phone. Like stuff like that. You know what I mean?" Alvizo said the only time he got to see his attorneys was when he was in court. And even then, he did not get a chance to talk to them about anything of substance. He said, "The only thing they'll tell me is they're coming back on this date. And I was downstairs, all sad. I don't know nothing about my case. What do they say against my case?"

The trial court invited attorney Elsberry to respond, and he said he and Foster had spoken to Alvizo numerous times throughout the case. As an example of this, he cited the recent court hearing on June 13. Elsberry said on that day, he discussed the case with Alvizo "for a half hour or more" while they were waiting for his file to arrive from another courtroom. During this conference, Alvizo told Elsberry he needed to talk to him. But when Elsberry asked him what he wanted, Alvizo "wouldn't articulate anything."

After hearing Elsberry's side of the story, the court asked Alvizo how he wished to proceed. Alvizo said he wanted to go with "state-appointed" counsel, but the court denied his request. Explaining his decision, the judge said, "I think that if the court were to appoint court-appointed counsel, at this point there would need to be another lengthy continuance. . . . [¶] . . . [S]tate counsel would not be ready to proceed. It would necessitate a really long continuance. There doesn't seem to be any reason to do that here." The court described Alvizo's attorneys as "two extremely experienced lawyers who [were] prepared and . . . ready to go." It also noted, "[I]t's not a situation of a complete breakdown in communication that would hamper or impair the defendant's defense." Alvizo "can still talk to counsel. His problem is that counsel don't talk to him enough. Not that he can't speak to them when he tries to."

Upon denying Alvizo's motion, the court began discussing pretrial matters...

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