People v. Garcia

1

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

B311562

California Court of Appeals, Second District, Third Division

November 17, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA442346, Kathleen Kennedy, Judge. Affirmed in part reversed in part, and remanded with directions.

Sharon Fleming, 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, Assistant Attorney General, Scott A. Taryle and Lindsay Boyd, Deputy Attorneys General, for Plaintiff and Respondent.

LAVIN J.

INTRODUCTION

A jury convicted Josue Garcia of one count of first degree murder (Pen. Code,^[1] § 187, subd. (a); count 1), four counts of willful, deliberate and premeditated attempted murder (§ 664/187; counts 2-5), one count of criminal threats (§ 422, subd. (a); count 6), and one count of shooting at an occupied vehicle (§ 246; count 7). The jury also found true gang and gang-related firearm allegations. (§ 186.22, subd. (b)(1); § 12022.53 subd. (e).)

We reverse the gang and gang-related firearm allegations and vacate Garcia's sentence. On remand, the People may retry the allegations under the amendments to section 186.22. We otherwise affirm the judgment.

PROCEDURAL BACKGROUND

Garcia and his codefendant Luis Ramos were charged by an amended information dated August 19, 2019. In count 1, the amended information charged Garcia and Ramos with the murder of Edwin Jurado (§ 187, subd. (a)). In counts 2 through 5, the amended information charged Garcia and Ramos with the attempted premeditated murder of Jose Delgado, Pablo Delgado Sr., Pablo Delgado, Jr., and Christian Diaz (§ 664/187, subd. (a)). As to these five counts, the amended information included a gang/gun special allegation (§ 12022.53, subds. (d), (e)(1)). In count 6, the amended information charged Garcia with making criminal threats (§ 422, subd. (a)) against Alexious Buck. In count 7, Garcia was charged with shooting at an occupied vehicle (§246) with additional special gun use allegations, including one pursuant to section 12022.53, subdivision (d) that Garcia personally discharged a firearm into an occupied vehicle causing great bodily injury.

The amended information further alleged that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C) as to counts 1-5 and 7; § 186.22, subd. (b)(1)(B) as to count 6). For count 7, it was also alleged that the gang activity was carried out with the intent to promote, further, and assist in criminal conduct by a gang (§ 186.22, subd. (b)(4)).

The jury returned verdicts convicting Garcia of all counts and finding true all alleged enhancements.

On count 1, Garcia was sentenced to 50 years to life, comprising 25 years to life for first degree murder plus 25 years to life for principal firearm use with a gang allegation (§ 12022.53, subds. (d) &(e)(1)). On counts 2 through 5, Garcia was sentenced to 40 years to life for each count, comprising 15 years to life for the attempted premeditated murder plus 25 years to life for personal/principal firearm use with gang allegation (§ 12022.53, subds. (d) &(e)(1)). The court ordered the term for counts 3 through 5 to run concurrent to each other, and consecutive to count 2. On count 6, Garcia was sentenced to seven years, consisting of two years calculated as the mid-term for the section 422 offense plus five years for the gang enhancement. Finally, on count 7, the court imposed a 25 years to life sentence and stayed the sentence pursuant to section 654. Garcia was given 1,927 days of actual credit.

Garcia timely appealed.^[2]

FACTUAL BACKGROUND

1. The Murder and Attempted Murder Counts

In the early morning hours of September 28, 2013, Edwin Jurado was at a nightclub in Los Angeles, El Cafetal. Jurado was drunk and became involved in a dispute with approximately six members of the Park View clique of the MS-13^[3] gang. After Jurado struck one of the female gang members, a security guard detained Jurado and walked the gang members out of the club. As they left the club, one of the gang members said that they planned "to pop the guy out." Jurado was a member of the rival 18th Street gang.

The MS-13 gang members headed from the club to a nearby apartment or "trap house" where they sold drugs, kept guns, and socialized. There, they discussed the incident at the club and decided to "go give a lesson to somebody that had disrespected them." Among those at the apartment were Garcia (also called Hyper); Ramos, a senior member of the Park View clique; Ramos' girlfriend, Dina Padilla; and Carlos Gonzalez (also called Husky), another member of the Park View clique. Garcia, Ramos, and Gonzalez each took a gun from a stash spot in the bathroom of the apartment before leaving. Garcia took a .38 revolver, Ramos took a semi-automatic gun, and Gonzalez took a small handgun. Shortly after 2:00 a.m., they and other MS-13 members drove to the area of the nightclub. They parked in an area without surveillance cameras and waited for Jurado to approach.

Before leaving the apartment, Ramos had instructed Padilla to remain behind with two other women, including a Park View clique member called La Morena. However, La Morena persuaded Padilla to drive her back to El Cafetal. They found Jurado walking nearby and La Morena jumped out of the car and struck Jurado, knocking him to the ground. Ramos instructed the driver of their car to drop them off a block away and Garcia, Ramos, and Gonzalez ran to where La Morena and Jurado were. Garcia, Ramos, and other MS-13 gang members started to hit and kick Jurado. Jurado was also shot three times.

Pablo Delgado, Jr. was driving his father, Jose Delgado, his uncle, Pablo Delgado, Sr., and his uncle's friend, Christian Diaz, home after a Dodgers game when they witnessed the attack and saw that the victim was not defending himself. They decided to help the victim and stopped their car nearby. Diaz jumped out of the car and immediately saw an armed man approaching. Jose Delgado, who was sitting in the front passenger seat, attempted to get out as well but Garcia kicked the door closed. Garcia then fired into the car from the passenger side of the vehicle. Delgado, Jr. and Gonzalez heard two or three shots. Padilla heard more than five but less than 10 shots before she fled the scene. One bullet went through the open front passenger-side window of Delgado, Jr.'s car and shattered the driver's side window, while another struck the frame of the front passenger side door. Another bullet struck Diaz in the arm. Delgado, Jr. sped away before realizing that Diaz was no longer in the car. Diaz ran to a nearby metro station and was assisted by the security guards there.

Garcia, Ramos, and Gonzalez then ran back to their car. They drove past Jurado's body to confirm that he was dead before returning to the apartment. Jurado's cause of death was multiple gunshot wounds to the abdomen and chest. The two bullets recovered from Jurado's body were .38 or .357 caliber and were fired from the same weapon as another .38 or .357 caliber bullet recovered from the scene.

2. The Criminal Threats Count

On July 3, 2014, Alexious Buck noticed Garcia and another Hispanic man entering the gate to her sister's apartment complex. When Buck asked if they needed anything, the men swore at her and grew belligerent. The men left but returned five minutes later with a gun. Garcia put the gun to Buck's head and the other man asked if she was ready to die. After Buck told them, "Do what you have to do," the men called her a racial slur and walked away. Buck called the police and reported where she observed the two men heading. She also informed them that she had seen the two men throw hand signs that made her believe they were part of a gang. Police apprehended Garcia inside a nearby apartment building.

DISCUSSION

Garcia contends that his attempted murder convictions must be overturned on two grounds. First, Garcia argues that the evidence is insufficient to support four convictions of willful, deliberate, and premeditated attempted murder. He asserts that the evidence supports that he fired only three bullets at the car driven by Delgado, Jr. and, therefore there is insufficient evidence to support a determination that he intended to kill all four passengers. Garcia also argues that the attack on the car was a "rash impulse hastily executed" and that the evidence does not support that his actions were premeditated and deliberate. Second, Garcia contends that the prosecutor misstated the law or made appeals to the passion and prejudice of the jury on five separate occasions during closing argument, and that, independently or cumulatively, these arguments resulted in prejudice, requiring reversal of the attempted murder convictions.

We conclude that the evidence was sufficient to support four convictions for attempted murder and that the attempted murders were willful, deliberate, and premeditated. We further hold that any prosecutorial errors, together or singly, were not prejudicial and do not require the reversal of the attempted murder convictions.

Garcia also contends, and the Attorney General agrees, that the amendments made to section 186.22 pursuant to Assembly Bill No. 333 (AB 333) are retroactive and that the proof of the gang allegations offered at trial does not satisfy the requirements of section 186.22 as amended. The Attorney General also concedes that the gang-related firearm allegations found true must be vacated for insufficient evidence. We accept these concessions and reverse these true findings. They may be retried on remand.

Finally,...