People v. Garcia

1

THE PEOPLE, Plaintiff and Respondent, v. CARLOS GARCIA, Defendant and Appellant.

B331693

California Court of Appeals, Second District, Seventh Division

November 5, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA428369 David V. Herriford, Judge. Affirmed.

Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General, and Sophia A. Lecky, Deputy Attorney General, for Plaintiff and Respondent.

SEGAL ACTING P. J.

INTRODUCTION

A jury convicted Carlos Garcia of attempted willful, deliberate, and premeditated murder, possession of a firearm by a felon, and assault with a firearm and found true related gang, firearm and great bodily injury allegations. The trial court sentenced Garcia to an aggregate prison term of 60 years to life. We affirmed.

Garcia filed a petition for writ of habeas corpus. The superior court issued an order to show cause on three of Garcia's eight habeas claims: His appellate counsel in his direct appeal was ineffective for failing to argue (1) the evidence the People presented to prove the gang allegation violated the Confrontation Clause of the United States Constitution (2) substantial evidence did not support the true finding on the gang allegation, and (3) Garcia was entitled to resentencing under recent legislation authorizing courts to strike firearm enhancements under Penal Code section 12022.53, subdivision (h).^[1] At the hearing on the petition the People moved to dismiss the gang enhancements and conceded Garcia was entitled to have the superior court exercise its discretion whether to strike the firearm enhancements. The court granted the People's motion to dismiss the gang enhancements and accepted the People's concession. So far, so good.

But Garcia also asked at the hearing for relief he had not requested in his habeas petition. In particular, he asked the court (1) to reverse his attempted murder conviction and require the People to retry the attempted murder charge without presenting any gang evidence and (2) to strike the jury's finding the attempted murder was willful deliberate, and premeditated. The superior denied both requests, struck most of the firearm enhancements, and resentenced Garcia to an aggregate prison term of 18 years to life.

Garcia argues the court abused its discretion in denying the two additional, unpleaded requests for relief. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Early one morning in August 2014, while walking down the street with an associate, Garcia fired two shots at Craig McMullen. McMullen stumbled before collapsing. He was in a coma for several days, but survived.

At trial, McMullen testified he was riding his bicycle when he felt two bullets hit him from behind. McMullen turned and saw Garcia, who was holding a pistol, look at him as he gave the pistol to his companion. The companion put the pistol into his backpack, and both men ran off. McMullen got off his bike, limped down the sidewalk, and collapsed.

The People also presented evidence that signals from Garcia's cellphone at the time of the attack placed the phone near the shooting. A gang expert testified that Garcia was a member of a clique of a criminal street gang, that the gang's primary activities included murder and other felonies, that gang members committed crimes to demonstrate their loyalty to the gang and earned tattoos for such "'work,'" and that Garcia had two "gang-related" tattoos, which he told police officers he earned while incarcerated. (People v. Garcia (Nov. 27, 2017, B275591) [nonpub opn.].)

The jury convicted Garcia of attempted willful, deliberate, and premeditated murder (§§ 187, subd. (a), 664, subd. (a)), possession of a firearm by a felon (§ 29800, subd. (a)(1)), and assault with a firearm (§ 245, subd. (a)(2)). The jury found true allegations Garcia committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further or assist in criminal conduct by gang members, within the meaning of section 186.22, subdivision (b)(1)(C); personally and intentionally discharged a firearm causing great bodily injury or death, within the meaning of section 12022.53, subdivisions (b) through (d)); personally used and discharged a firearm in committing a felony, within the meaning of section 12022.5, subdivision (a); and personally inflicted great bodily injury, within the meaning of section 12022.7, subdivision (a). Garcia admitted that he had two prior serious or violent felony convictions, within the meaning of the three strikes law (§§ 667, subds. (b)-(j); 1170.12, subds. (a)-(d)), and that he served two prior prison terms, within the meaning of former section 667.5, subdivision (b). The trial court sentenced Garcia to an aggregate prison term of 60 years to life.

Garcia appealed, arguing that the prosecutor committed misconduct by withholding evidence McMullen had previously identified the person who was with Garcia at the shooting, that the gang expert's testimony about Garcia's tattoos violated Evidence Code section 1101, subdivision (a), and that Garcia's trial counsel provided ineffective assistance in failing to move for a mistrial based on prosecutorial misconduct and failing to object to the gang expert's testimony. We affirmed the judgment. (People v. Garcia, supra, B275591.)

While Garcia's direct appeal was pending, the Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which held an expert may not "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." (Id. at p. 686.) Appellate counsel for Garcia never raised any issues based on Sanchez.

In June 2018 Garcia filed a petition for writ of habeas corpus, asserting eight grounds for relief. They were: (1) Garcia's appellate counsel was ineffective for not arguing there was "newly discovered evidence" the defense did not learn about until McMullen testified at trial he had previously identified Garcia's companion; (2) appellate counsel was ineffective for not arguing the trial court erred in imposing and staying execution of the one-year prior prison term enhancement under former section 667.5, subdivision (b); (3) appellate counsel was ineffective for not arguing the trial court erred in imposing and staying execution of sentences on the firearm enhancements under section 12022.53, subdivisions (b) and (c), and on the great bodily injury enhancement under section 12022.7, subdivision (a); (4) appellate counsel was ineffective for not arguing substantial evidence did not support the jury's finding on the "specific intent element for first degree attempted murder"; (5) appellate counsel was ineffective for not arguing that the gang expert's opinion Garcia was a member of a criminal street gang "was based on inadmissible testimonial hearsay"; (6) appellate counsel was ineffective for not arguing substantial evidence did not support the true finding on the gang allegation under section 186.22, subdivision (b)(1); (7) Garcia's trial counsel was ineffective for not objecting under Evidence Code section 1101, subdivision (a), to the evidence Garcia earned his tattoos by committing crimes for his gang; and (8) appellate counsel was ineffective for not arguing Senate Bill No. 620, which gave trial courts discretion to strike certain firearm enhancements, applied retroactively to Garcia.^[2]

The superior court issued an order to show cause on three of Garcia's habeas claims: whether (1) the court should resentence Garcia under Senate Bill No. 620 (claim 8) and whether appellate counsel was ineffective for not arguing (2) the trial court erred in allowing the People to introduce hearsay evidence now inadmissible under Sanchez, supra, 63 Cal.4th 665 and (3) "inadmissible hearsay evidence was used to support the section 186.22 gang allegation" (claims 5 and 6).^[3] The court ordered the parties to brief "the admissibility of the expert testimony regarding the predicate offenses to support the gang allegation" and denied all remaining claims on the merits.

In January 2022 counsel for Garcia filed a memorandum of points and authorities on the admissibility of the gang expert's testimony about the predicate offenses to prove the gang allegation. Counsel argued that in People v. Valencia (2021) 11 Cal.5th 818 the Supreme Court held that Sanchez applied to testimony about predicate offenses and that the prosecution had proven the predicate offenses with inadmissible hearsay evidence. Counsel for Garcia also argued for the first time that Assembly Bill No. 333^[4] applied to Garcia and that "the trial should be set aside" for the gang allegations to be tried separately from the underlying offense. Counsel for Garcia filed a supplemental memorandum of points and authorities arguing that, because Assembly Bill No. 333 redefined the requirements to prove the gang allegation, the superior court should strike the gang enhancement.

The People filed a return and argued Garcia had not shown ineffective assistance of trial or appellate counsel based on the "state of the law at the time of representation." The People stated, however, that "given the sweeping changes in the law regarding enhancements under . . . section 186.22," the People were moving to dismiss, in the interest of justice, the gang allegations. The People conceded Garcia was entitled to resentencing to allow the superior court to exercise its discretion whether to...