People v. Garcia

• Decision Date: 16 March 2000
• Docket Number: No. D032261.,D032261.
• Citation: 78 Cal.App.4th 1422,93 Cal.Rptr.2d 796
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Hugo Sandoval GARCIA, Defendant and Appellant.

93 Cal.Rptr.2d 796

78 Cal.App.4th 1422

The PEOPLE, Plaintiff and Respondent, v. Hugo Sandoval GARCIA, Defendant and Appellant.

No. D032261.

Court of Appeal, Fourth District, Division 1.

March 16, 2000.

Certified for Partial Publication.^*

Review Denied July 12, 2000.

David M. McKinney, under appointment by the Court of Appeal, Waco, TX, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Frederick B. Clark, Deputy Attorney General, for Plaintiff and Respondent.

McINTYRE, J.

After a trial in which he elected to represent himself, a jury convicted Hugo Sandoval Garcia of first degree murder (count 1) and willful, deliberate and premeditated attempted murder (count 2), and found he had personally used a firearm in committing both offenses and had inflicted great bodily injury on the surviving victim. Garcia was sentenced to a total of 54 years in prison, consisting of 25 years to life for first degree murder, a consecutive term of 15 years to life for premeditated attempted murder, plus a 4-year firearm enhancement on count 1 and a 10-year firearm enhancement on count 2.

Garcia appeals, contending (1) there is insufficient evidence of premeditation and deliberation to sustain his conviction of first degree murder; (2) the trial court committed reversible error in failing to appoint advisory counsel to assist him; (3) the prosecutor committed misconduct (a) when he told the jury to show Garcia as much mercy as he showed his victim, (b) in commenting on Garcia's failure to testify, and (c) by misrepresenting the legal principles of premeditation and deliberation; (4) the trial court committed reversible error in failing to instruct the jury with CALJIC No. 8.31 on implied malice second degree murder; and (5) the trial court wrongly imposed a sentence of 15 years to life for premeditated attempted murder, because the correct sentence for this offense is life with the possibility of parole.

In the published portion of this opinion we determine that there is sufficient evidence to sustain Garcia's conviction of first degree murder and that the trial court did not err in failing to appoint advisory counsel. In the unpublished portion, we reject Garcia's third and fourth contentions, but agree with his fifth. Accordingly, we modify the judgment such that Garcia's sentence on count 2 is life with the possibility of parole plus the 10-year firearm enhancement. The judgment is affirmed in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

Garcia was born and raised in Mexico, where he completed ninth grade. He is able to read and write in Spanish, but does not speak or write English. Prior to his trial, Garcia moved to substitute his appointed counsel. When this motion was denied, Garcia indicated that he wished to represent himself, with an interpreter. The trial court thoroughly explained the risks involved in such an endeavor and Garcia stated he understood the risks and wished to represent himself; he also requested an investigator to assist him. The court again explained the risks as well as the responsibilities of self-representation, and Garcia confirmed that he wanted to "be the attorney by [himself]." The court then granted Garcia's request to waive his right to counsel and represent himself, and appointed him an investigator.

At trial, the prosecution witnesses established that on September 29, 1997, Garcia shot and killed Armando Chiquete and critically wounded his cousin Jose Peraza. Garcia owed Chiquete money relating to an earlier marijuana transaction, and before the day of the murder, Peraza had twice driven Chiquete to Garcia's apartment complex, where Chiquete and Garcia discussed the debt. Chiquete and Garcia did not argue during these encounters, nor did Chiquete bring any weapons or threaten Garcia.

Garcia's debt remained unpaid, and on September 29, 1997, Peraza drove Chiquete over to Garcia's apartment complex so that Chiquete could talk to Garcia again. It was a hot day, so Chiquete had taken off his shirt and slung it over his shoulder, leaving him bare-chested. He was not carrying any weapons. Chiquete got out of the car, and he and Garcia started talking to each other; there was no indication that they were arguing or that either one was agitated or upset. Chiquete had his hands down at his side and Peraza saw him make a quick side step. Garcia then brought his hand up toward Chiquete's head and Peraza saw Chiquete fall immediately to the ground. In addition, a passerby heard a "pop," saw the shooter holding a handgun straight out in front of his body, and the victim drop to the ground. After he shot Chiquete, Garcia started running toward Peraza, who ran across the street in the opposite direction. Garcia chased Peraza and shot him in the back, seriously wounding him.

Chiquete died from a single .9 millimeter gunshot wound to the chest. The bullet severed his pulmonary artery and destroyed his aorta—the main blood vessel coming from his heart; the bullet then went through Chiquete's backbone and severed his spine. The gun powder stippling on Chiquete's chest indicated that he was shot from within two- to four-feet away—most likely from within two feet.

Garcia fled to Mexico after the shootings. On September 30, 1997, he called his former mother-in-law and told her he had killed one man and shot another. Garcia gave a variety of reasons for killing Chiquete—that it was because his ex-wife did not pay enough attention to him, that it was over drugs and money and it was "either his life or theirs," and because Chiquete had killed one of his cousins.

During the trial, Garcia conducted very limited cross-examination of witnesses. Although he took the stand in his defense, he did not give any testimony or present evidence. Rather, he attempted to argue against the evidence that had been presented by the prosecution, as follows:

"Well, I would like to say where are the witnesses that showed up. They were saying that this shot was on the side like this. If one shoots in the front like this, like they are saying, that shot can get you on the side like this and come out on this side."

The court explained to Garcia that this was his opportunity to testify to anything within his personal knowledge, and that he would have the opportunity to argue to the jury later in the trial. Garcia then indicated that he wished only to argue. The court further explained the difference between the two concepts, and Garcia confirmed that he did not want to give testimony, but wanted to argue. Garcia did not call any additional witnesses. In his closing statement, Garcia argued that the proof against him was "[j]ust a shell," that many of the witnesses did not identify him, and that he was not the person they had seen at the murder scene.

DISCUSSION

I GARCIA'S CONVICTION OF FIRST DEGREE MURDER IS SUPPORTED BY SUBSTANTIAL EVIDENCE

Garcia contends the record does not contain sufficient evidence of premeditation and deliberation to sustain a verdict of first degree murder. We disagree.

In reviewing the sufficiency of the evidence of premeditation and deliberation, we assess whether the evidence supports an inference that the killing occurred as the result of preexisting reflection, as opposed to an unconsidered or rash impulse. (People v. Pride (1992) 3 Cal.4th 195, 247, 10 Cal.Rptr.2d 636, 833 P.2d 643.) We do not substitute our judgment for that of the jury. Rather, we must draw all inferences in support of the verdict that can reasonably be deduced and must affirm the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational jury could find premeditation and deliberation beyond a reasonable doubt. (Ibid.; see also People v. Perez (1992) 2 Cal.4th 1117, 1124, 9 Cal.Rptr.2d 577, 831 P.2d 1159.)

Pertinent categories of evidence bearing on premeditation and deliberation are (1) planning activity; (2) motive; and (3) manner of killing. (See People v. Anderson (1968) 70 Cal.2d 15, 27, 73 Cal. Rptr. 550, 447 P.2d 942.) However, these factors need not all be present, or in any special combination; nor must they be accorded a particular weight. (People v. Pride, supra, 3 Cal.4th at p. 247, 10 Cal. Rptr.2d 636, 833 P.2d 643.) Rather, the Anderson factors serve as an aid to reviewing courts in assessing whether the killing was the result of preexisting reflection. (People v. Perez, supra, 2 Cal.4th at p. 1127, 9 Cal.Rptr.2d 577, 831 P.2d 1159.) Finally, it is important to keep in mind that deliberation and premeditation can occur in a brief period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly...." (People v. Thomas (1945) 25 Cal.2d 880, 900, 156 P.2d 7.)

Here, there is substantial evidence that Garcia's murder of Chiquete was deliberate and premeditated, rather than the result of an unconsidered or rash impulse. First, there is ample evidence of motive. Garcia owed Chiquete money relating to a marijuana deal, and Chiquete had spoken to him twice about it, but Garcia had not paid. When Chiquete spoke to him about the debt a third time, Garcia killed him. The manner and circumstances of the killing also indicate that it was the result of preexisting reflection. There was no history of threats or violence by Chiquete, nor was he armed on any of the previous occasions he had spoken to Garcia about repaying the money owed. When Chiquete went to speak with Garcia on the day he was killed, he again was unarmed and wearing only a pair of pants—making it impossible to carry or conceal a weapon in his waistband, under his shirt, in a jacket, etc. Chiquete and Garcia did not argue or raise their voices. Yet, while Chiquete was standing with his hands down at his sides, Garcia pulled out a loaded, .9...