People v. Garcia

• Decision Date: 02 October 1990
• Docket Number: No. E006835,E006835
• Citation: 224 Cal.App.3d 297,273 Cal.Rptr. 666
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Andres Alvares GARCIA, Defendant and Appellant.

Page 666

273 Cal.Rptr. 666

224 Cal.App.3d 297

PEOPLE of the State of California, Plaintiff and Respondent, v. Andres Alvares GARCIA, Defendant and Appellant.

No. E006835.

Court of Appeal, Fourth District, Division 2, California.

Oct. 2, 1990.

Review Denied Dec. 13, 1990.

[224 Cal.App.3d 299] Appellate Defenders, Inc. and Howard C. Cohen, San Diego, for defendant and appellant.

John K. Van de Kamp, Atty. General, Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Robert M. Foster, Supervising Deputy Atty. Gen., and Carl H. Horst, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

HOLLENHORST, Acting Presiding Justice.

A jury convicted Andres Garcia of four counts of grand theft (Pen.Code, § 487), six counts of filing a false document with the court (Pen.Code, § 115), and one count of conspiracy (Pen.Code, § 182). He was sentenced to prison and appeals, claiming his cross-examination of a key prosecution witness was improperly curtailed, there was insufficient evidence to support the false filing counts, and his conviction of four counts of grand theft should be reduced to one. We reject his contentions and affirm.

FACTS

Garcia worked as a bail bondsman for Jiminez Bail Bonds in Indio. Jiminez was owned by Tony Jiminez, who also owned Capital Bond and Insurance Company, the surety for Jiminez Bail Bonds. Tony's brother, Tom, who died some time before this trial, ran Jiminez Bail Bonds. Tom and Garcia together wrote bonds that had not been originally issued by Capital, as they should have been. They failed to report the bonds to Capital and did not forward to the surety a percentage of the premiums they collected for issuing the bonds. When the bonds began "going bad," Tony was notified by the court and he had the district attorney's office begin an investigation which culminated in these charges. During the time Tom and Garcia were writing the bonds, Tom leased a Cadillac for Garcia.

1. Limitation of Cross-Examination

Garcia claims his cross-examination of a prosecution witness was improperly curtailed by the court. The witness testified on direct that she had worked for Garcia for about two months during the end of 1985. She drove his car, a Cadillac, for him at night when he was posting bonds because he had problems with night blindness. In exchange for this, he paid her rent and all her bills, and gave her money whenever she needed it. She said he always carried large sums of money. She once saw him change the amount of a bond by using white-out. She claimed that on one occasion, he sent her to retrieve a bond out of the trunk of his car and she saw a one-inch-thick stack of bonds inside, some of which were for amounts of $100,000. She testified that when bonds filed in Orange County for $100,000 in the names of Coe and Tepper came back, Garcia told her they were "bogus." Three or four months later, Tom questioned her about the bonds Garcia had written.

On cross-examination by the defense, she testified that Garcia had attempted to take over her life and was jealous of people who visited her at her home. She said she ended her relationship with Garcia because he was very violent and mean and he struck her son. She claimed that Tom once told her that Garcia had spoken to a man who had raped her several years before and had instructed him to contact her and scare her, and because of this, she disliked Garcia. She also said she was afraid of Garcia because he was big. She admitted receiving welfare assistance while she was working for Garcia. She testified she did not think what Garcia was doing with the bonds was illegal. She reported that while she was living with her mother, people would call her and try to locate Garcia, saying the bonds he issued for them were not good. She said once the Coe twins came to her house and said the bond Garcia issued for them was not good. Garcia then met them there and altered the bond by using white-out. (Presumably, this was the one white-out incident she referred to in her direct testimony.) During this portion of her testimony, she denied knowing anyone by the name of Susan Maxwell. Later, when asked, "Did you ever demand money from Mr. Garcia to keep you from taking action against him?" she responded, "No." To the follow-up question, "Did you ever tell anyone that unless Mr. Garcia gave you a certain amount of money, you would get him in trouble?" she said, "No."

On redirect, she testified that sometimes Garcia wrote receipts for the bonds he issued and sometimes he did not. Upon recross, she stated that Garcia made money in addition to his salary as a bail bondsman by doing skip tracing.

During the defense case, Susan Maxwell took the stand and testified as follows about the aforementioned prosecution's witness:

"A. ... She came to my door [with a man] and identified herself.

"Q. And under what circumstances?

"A. She was looking for Mr. Garcia. And she wanted to know if he was there, and I told her no. And she was extremely upset. And she said, 'Well, I have a message for him.' And she said, 'Just a minute. I have someone else who is going to help me deliver it.'

"Q. Did she make demand herself with the assistance of this gentleman for some funds from Mr. Garcia?

"A. Yes. I think his presence was to probably intimidate me more than anything else. He did tell me that he was sure I understood what he was there for. She told me that unless [Garcia]--

"[THE PROSECUTOR]: Objection.

"THE WITNESS: --brought her $60,000.

"THE COURT: Sustained.

"Q. BY [DEFENSE COUNSEL]: [The prosecution witness] told you something about $60,000?

"[THE PROSECUTOR]: Objection, your Honor. Calls for hearsay."

In response to the prosecutor's objection, defense counsel argued the testimony was a prior inconsistent statement of the prosecution witness. ¹ The trial court sustained the People's objection. ² The testimony then resumed as follows:

"Q. ... Do you know if [the prosecution witness] had a rift with Mr. Garcia?

"A. She said she did.

"...

"Q. Do you know if [the prosecution witness] was biased against Mr. Garcia in any way?

"THE WITNESS: Yes.

"...

"Q. ... Do you know whether [the prosecution witness] had a reason for wanting to get even with Mr. Garcia?

"...

"THE WITNESS: Yes." ³

Evidence Code section 770 provides for the admission of a prior inconsistent statement of a witness where "[t]he witness was so examined while testifying as to give him an opportunity to explain or deny the statement...." ⁴ Unfortunately, there has not been an overabundance of cases construing the meaning of "an opportunity to explain or deny the statement" and those that have leave a good deal of room for us to decide the current matter.

The most recent pronouncement on the subject is in Bossi v. State of California (1981) 119 Cal.App.3d 313, 174 Cal.Rptr. 93, and while we recognize that this is a civil case, still, it attempts to give meaning to the somewhat vague phrasing of Evidence Code section 770. In Bossi, the court concluded that handing a witness the 60-page transcript of a deposition taken of him 18 months earlier and asking him " 'Now, at that time and place, were all of these questions asked and all of these answers given?' " was an insufficient foundational question for admission of statements contained in the deposition transcript because it did not afford the witness "a realistic opportunity to explain or deny any specific statement contained therein." (People v. Bossi, supra, 119 Cal.App.3d at p. 325, 174 Cal.Rptr. 93.)

In People v. Morgan (1978) 87 Cal.App.3d 59, 150 Cal.Rptr. 712, disapproved on other grounds in People v. Kimble (1988) 44 Cal.3d 480, 498, 244 Cal.Rptr. 148, 749 P.2d 803, and in People v. Kane (1984) 150 Cal.App.3d 523, 533, 198 Cal.Rptr. 73, the witness made statements inconsistent with her trial testimony during an interview in the prosecutor's office, which she immediately repeated in a taped interview at the police department a few days before she took the stand. The court concluded a sufficient foundation had been established under Evidence Code section 770 when "the prosecutor asked [the witness] if she had not made specific statements in an earlier conversation in the prosecutor's office ... [and] whether she had such a conversation in the police station.... Having been questioned in detail about the first conversation, and having been asked whether the second, tape-recorded conversation, was the same as the first, the witness ... was given adequate opportunity to explain or deny making the tape-recorded statements within the meaning of Evidence Code section 770...." (Id., 87 Cal.App.3d at pp. 71-72, 150 Cal.Rptr. 712.)

In People v. Strickland (1974) 11 Cal.3d 946, 114 Cal.Rptr. 632, 523 P.2d 672, the witness's trial testimony that the victim was already dead when he and the defendant entered the home in which the victim was present was contradicted by his earlier tape-recorded statement to the police that the defendant raised his voice to the victim when the former entered the house and the witness smelled fresh gun powder when he first went inside. The Supreme Court found a sufficient foundation for admission of the prior inconsistent statement occurred when "the prosecution, in its direct examination of [the witness] ... ma[de] direct reference to [the witness's] earlier, and tape-recorded, statements to the police. On the stand, responding to such references, [the witness] denied telling the police that ... upon re-entering the house, he could smell the aroma from a freshly fired gun, and further denied that defendant had suggested he ... claim, if questioned, that [the victim's] death had preceded the[ir entry into the house.]" (People v. Strickland, supra, 11 Cal.3d at p. 954, 114 Cal.Rptr. 632, 523 P.2d 672.)

Finally, in People v. Aeschlimann (1972) 28 Cal.App.3d 460, 104 Cal.Rptr. 689, the defendant was interviewed by police immediately after bringing his battered infant into the...