People v. Garza

THE PEOPLE, Plaintiff and Respondent, v. ANTHONY GARZA, Defendant and Appellant.

E077734

California Court of Appeals, Fourth District, Second Division

January 10, 2023

NOT TO BE PUBLISHED

PUBLIC-REDACTED VERSION OF OPINION

Redacts material from sealed record^[*] (Cal. Rules of Court, rules 8.45, 8.46(f)(1) and (f)(2))

APPEAL from the Superior Court of Riverside County No. INF1601917. Dean Benjamini, Judge. Affirmed in part; reversed in part with directions.

Stephen M. Hinkle, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Steve Oetting and Heather B. Arambarri, Deputy Attorneys General, for Plaintiff and Respondent.

McKINSTER J.

A jury convicted defendant and appellant Anthony Garza of second degree murder (Pen. Code,^[1] § 187, subd. (a)) and found that he discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The trial court sentenced him to 15 years to life, plus 25 years for the firearm enhancement, and imposed various fines and fees. On appeal defendant contends: (1) the court abused its discretion in denying his motion to disqualify a key witness as incompetent; (2) the court abused its discretion in admitting a photograph of the dead victim; and (3) remand for resentencing is required because the court was unaware of its discretion to impose a lesser, uncharged firearm enhancement pursuant to section 12022.53, subdivision (h), and it erred in imposing various fines and fees. We agree the matter must be remanded to allow the trial court to consider whether to impose a lesser, uncharged firearm enhancement; otherwise, we affirm.

I. PROCEDURAL BACKGROUND AND FACTS

A. The Prosecution's Case.

In 2016, C.D.^[2] was living with her mother, her 15-year-old son, her two brothers (J.L. &A.L.), and her aunt in Desert Hot Springs. C.D. slept in the garage, which had been converted into a living area. In December, defendant stayed with her for several days, and both C.D. and A.L. saw him with a gun. The victim, who was known by the nickname "Grande" or "El Grande," visited C.D. every day while defendant was staying with her; the victim stayed in the garage at least one night. Defendant and the victim smoked methamphetamine and drank alcohol with C.D. and A.L. during this period.

On December 19, 2016, two men came to the house and accused the victim of stealing a car.^[3] A.L. asked the victim for the keys, gave them to the men, and they left.

C.D., defendant, and the victim were in the garage. C.D. testified they all fell asleep. At some point, defendant and the victim got into a verbal argument and started fighting with their hands and feet. C.D. saw defendant shoot the victim in his forehead, which pushed him into a chair. However, she also testified that the victim was sitting in the armchair when he was shot. C.D. went into the house to tell her brothers what had happened. She stayed in the house that night while defendant remained in the garage. Defendant later asked A.L. to help him move the victim's body. A.L. did not call the police because he was afraid defendant would shoot him. The two men wrapped the body in blankets and moved it to the alley behind the backyard.

On December 20, 2016, C.D.'s mother and aunt noticed a "dirt road trail . . . like something had been carried heavy through the whole backyard," and followed it; C.D.'s son was with them. They found the victim's body wrapped in the blanket and called the police. C.D.'s son and mother testified that the victim had visited C.D. multiple times prior to his death. Around the same time, defendant was living with C.D.

A crime scene investigator testified there was a gun and numerous blood stains in the garage. He identified gunshot residue on the victim's body, but none on the hands. He did not find any gunshot residue on the defendant and there were no visible injuries to his face or body. The investigator collected four shell casings from the victim's pocket, along with jeans that were stained with blood.

A deputy coroner testified that she found the drag marks leading from the rear of the residence, across the backyard, to the victim's body. She observed three gunshot wounds to the victim's face, one of which was a contact wound due to the imprint of the muzzle to his skin. She identified People's exhibit No. 76, a photograph of the contact wound that was taken at the scene. She opined that the victim had been dead for approximately 24 hours by the time she examined his body.

A police detective who investigated the scene testified that he found an unwashed, long-sleeve black shirt, with blood stains, in the washing machine. The detective also located a loaded .22-caliber revolver on the bed in between blankets. Another detective found a pair of jeans in the home's hallway bathroom, behind the door. He stated that the jeans were significant because defendant was taken into custody while coming out of that bathroom wearing boxers and a towel. The jeans had blood on the pant leg and a bag of live, .22-caliber ammunition inside a pocket. Detective Castillo, a third detective, stated that defendant had shoes with a similar tread pattern to the impressions left in the sand where the body was found.

On December 20, 2016, Detective Castillo interviewed defendant, and a recording of the interview was played to the jury. Defendant stated that he had known C.D. for approximately a week and had been staying with her in the garage for a few days. He denied having any sexual relationship with her, denied any knowledge of a relationship between C.D. and the victim, and stated that the victim had not been in the garage with him. Defendant further denied having a gun, knowing the victim, or getting into an altercation with him. He identified the white shoes in his cell as his, but did not know why impressions from his shoes were found near the victim's body.

Also on December 20, 2016, Detective Castillo and another detective interviewed C.D., who acknowledged that defendant and the victim had been staying with her for a few days, and two men had come to the house looking for the victim, who had stolen their car. C.D.'s brother, A.L., obtained the car keys from the victim, gave them to the men, and they left. C.D. then fell asleep; she woke up to two men (a white guy and a black guy) beating the victim; the black man shot the victim in the face, and they left. She did not know if defendant was awake or not. A day later, defendant and her brother wrapped the victim's body in a sheet and dragged it through the backyard to the point where it was found.

When the detectives pressed C.D. to tell the truth, she identified defendant as the shooter. She explained that she had lied because she did not want to accept that defendant had shot her friend. She stated that after the men recovered the car and left, the three of them (C.D., defendant, and the victim) went to sleep. She woke up, saw the two fighting and, when the victim tried to get up from the sofa, defendant took the gun from his pants and shot the victim. She disclosed that she was drunk, and "half awake and half asleep" when she heard a boom. She was afraid and went inside the house where she smoked "some meth" with her brothers. Defendant stayed in the garage for a little bit and then joined them. He wanted to bury the body in the backyard.

A criminalist confirmed the stains on the pair of jeans recovered from the hall bathroom were blood, and blood was also on the .22-caliber revolver. Another criminalist testified that the victim's DNA was found on the jeans and the revolver. A third criminalist opined that the cartridge casings recovered from the victim's pocket were fired from the .22-caliber revolver found in the bed.

A forensic pathologist testified that the victim had four gunshot wounds on his face, as well as contusions and abrasion that were separate injuries, but the ultimate cause of his death was the multiple gunshot wounds. She stated that the gun had been fired from no more than six inches from the victim's head.

B. The Defense.

C.D. admitted that defendant, the victim, and A.L. used methamphetamine around the time of the victim's death. She testified that when the two men who accused the victim of stealing a car showed up, he seemed afraid, and hid in her brother's room. After the men left, the victim kept talking about the two men. According to C.D., when defendant and the victim were fighting, it looked like defendant was defending himself; however, the victim did not have a weapon. She saw defendant pull the gun from the waistband of his jeans and shoot the victim, causing him to fall back into a chair.

Portions of C.D.'s testimony at the July 8, 2018 preliminary hearing were read into the record. She stated that defendant hit the victim in the face, pushed him down on the sofa, and then shot him. She observed a "little bit" of the fight, but did not know what caused it. She "kind of saw" the shooting because she was "kind of awake." But she also testified that she was asleep, and that the shot woke her up. She did not recall seeing any fighting over the gun. As far as she "saw, [the victim] did not fight back."

II. DISCUSSION

A. C.D.'s Competency to Testify.

Defendant contends the trial court erred in denying his pretrial motion to disqualify C.D. as an incompetent witness. We disagree.

1. Applicable law.

"When a witness's competency to testify . . . is questioned, we start from the general rule that '[e]xcept as otherwise provided by statute, every person, irrespective of age, is qualified to be a witness and no person is disqualified to testify to any matter.' [Citation.] A person...