Opinion
G043512
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. IVAN GARCIA, Defendant and Appellant.
Roland G. Rubalcava for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 09ZF0060)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Dan McNerney, Judge. Affirmed.
Roland G. Rubalcava for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Garrett Beaumont and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
Ivan Garcia appeals from a judgment after a jury convicted him of attempted murder and street terrorism, and found true numerous enhancements. Garcia argues the trial court erroneously admitted multiple pieces of evidence. As we explain below, Garcia forfeited appellate review of his claims because defense counsel did not object to admission of the evidence, his claims are meritless, and he suffered no prejudice. We affirm the judgment.
FACTS
David Puga went outside to move his work truck from the end of the cul-de-sac to in front of his home. Just before he reached his truck, he felt someone come up from behind and put something to his throat. Puga heard two gunshots, started running, and heard two more gunshots. He staggered to his front door and yelled to his wife to call 911 because someone shot him.
Officer Peter Kunkel responded to the scene and saw Puga lying on the ground in a pool of blood. On a wall near where Puga's truck was parked he saw "Hard Times" gang graffiti that had been crossed out with green spray paint. Also in green spray paint, he saw "V.D.C." and "D.C.," which he knew to mean "Vario Down Crowd" and "Down Crowd" respectively. The green spray paint had been applied in the previous 24 hours.
Puga was shot in the neck and elbow. During one of his surgeries, doctors removed part of his brain. Puga, in his mid-40's at the time of trial, will likely be physically impaired for the rest of his life.
A few weeks later, Officer Luis Ramirez responded to a residence after the homeowner had found a gun on his front lawn and called the police. The homeowner told Ramirez he found a gun and led him to a .38 caliber Smith and Wesson revolver near some bushes. He retrieved the gun and booked it into evidence.
An indictment charged Garcia with attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)) (count 1), and street terrorism (§ 186.22, subd. (a))(count 2). As to count 1, the indictment alleged he committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and was a gang member who vicariously discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)).
All further statutory references are to the Penal Code.
At trial, the prosecutor offered Luis Salinas's testimony. Salinas testified he heard gunshots, went to his front door, saw two men between the ages of 25 and 30, running, and saw one of the men fire again. Salinas later saw the two men standing near a dumpster in a nearby 7-Eleven parking lot.
The prosecutor also offered Luis Jimenez's testimony. Jimenez testified he heard gunshots and saw two men running away. Jimenez saw one of the men throw what sounded like a can into a dumpster. Emmanuel Rodriguez also testified he heard gunshots and saw a man fire a gun. Rodriguez saw the man who fired the gun throw something in the dumpster.
Sabrina Perez testified for the prosecution. Perez testified she saw a man spray painting a wall in an "X" motion near her home. Perez stated she saw two different men shooting. Officer Elaine Noce testified Perez told her that the person who spray painted the wall was the shooter.
Officer Omar Perez testified he recovered a white spray paint can with green paint from the dumpster. Officer Perez stated Jimenez stated it was the can he saw the man throw into the dumpster.
The prosecutor offered the testimony of forensic scientist, Julianne Buckenberger. Buckenberger testified she processed the DNA through local, state, and federal DNA databases. She stated Garcia's DNA was a potential match to the DNA found on the can. She explained she then received a sample of Garcia's DNA and matched it to the DNA found on the spray paint can. She determined Garcia could not be excluded as a major contributor, which meant the statistical probability of another unrelated person having the same DNA was one in one trillion. She admitted Garcia's brother could also not be excluded as a contributor of DNA on the spray paint can.
Finally, the prosecutor offered the testimony of Officer Peter Vi, a gang expert. Vi testified he interviewed Garcia at the police station after he had learned the results of the DNA test. Vi agreed he had been trained on police interview and interrogation techniques, including observing the interviewee's demeanor and body language. After Vi advised Garcia of his Miranda rights, Garcia denied being involved in the shooting and ever touching the gun or the green spray paint can. When Vi asked Garcia about a man named Jaffett Garcia, Garcia stated that he was a friend who was killed in a gang incident. When Vi gave Garcia the details of the offense and told him his DNA was found on a spray paint can found near the scene of the crime, Garcia's demeanor changed, "his eyes were locked on the picture of the spray [paint] can. His hands were together . . . and near his throat area [Vi] could see movement." When the prosecutor asked Vi whether these are things he looked for when conducting an interview, Vi replied, "It shows me I'm heading to [sic] the right direction where I'm focused on the suspect and he's reacting to my questions." Garcia admitted to Vi he knew the offenses occurred in Hard Times claimed gang territory.
Miranda v. Arizona (1966) 384 U.S. 436.
After detailing his background, training, and experience, Vi testified concerning the culture and habits of traditional, turf-oriented Hispanic criminal street gangs, including the significance of claimed territory, the importance of weapons, and how gang members commit violent crimes to instill fear and gain respect in the community. Vi stated it was very common for gang members to enter rival gang territory and spray paint over the rival's gang graffiti. Vi testified he was familiar with Down Crowd. Based on his experience interviewing Down Crowd gang members and investigating their crimes, Vi opined Down Crowd was a criminal street gang at the time of the offenses, and he testified as to facts establishing each of the statutory elements required to establish a criminal street gang. Vi testified the offenses occurred in Hard Times claimed territory and Hard Times was a rival of Down Crowd. As relevant here, Vi stated Down Crowd's primary activities were murder, attempted murder, and firearm possession, its symbols "V.D.C." and "D.C.," and its primary colors are green and black.
Vi opined Garcia was an active participant in Down Crowd at the time of the offenses based on Garcia's admission he began associating with Down Crowd in 1999 and his moniker was "Solo," Garcia's extensive knowledge about Down Crowd and criminal street gang culture and habits, Garcia's eight Street Terrorism Enforcement and Prevention Act (STEP) notices, and Vi's review of police reports and indicia of gang membership found during the execution of search warrants at Garcia's home. Based on a hypothetical mirroring the facts of this case, Vi opined the offenses were committed to promote, further, or assist criminal conduct of gang members and for the benefit of and in association with criminal street gang members.
Hernandez explained a STEP notice is a document a police officer uses to record a contact with a possible gang member. The STEP notice includes the details of the contact and the person's physical characteristics. The STEP document also notifies the person that the gang the person is affiliating with is a criminal street gang and notifies the recipient the gang commits certain crimes.
On cross-examination, Vi admitted he could not tell if someone was lying by the way the person moved his hands. Vi stated he knew of no scientific evidence that established a person could tell if someone was lying by hand movement.
The jury convicted Garcia of both counts and found all the allegations to be true. The trial court sentenced Garcia to 15 years to life on count 1 and a consecutive term of 25 years to life for personally discharging a firearm causing great bodily injury.
DISCUSSION
Garcia argues the trial court erroneously admitted four pieces of evidence because they were either an improper opinion or hearsay: (1) Vi testified Garcia's body language signified Vi was "heading [in] the right direction" with his questions; (2) Ramirez testified a homeowner told him he found a gun on his front lawn near some bushes and Ramirez indicated on a diagram where he found the gun; (3) Buckenberger testified another government DNA database revealed Garcia's DNA was a potential match the DNA recovered from the spray paint can; and (4) Vi testified he was familiar with the Jarrett homicide and believed a Hard Times gang member killed him although the case was unsolved.
Garcia admits he did not object to any of the complained of evidentiary errors. By failing to object to any of the complained of evidentiary errors, Garcia has forfeited his claims. (People v. Alexander (2010) 49 Cal.4th 846, 905; Evid. Code, § 353, subd. (a).) Even were we to address his contentions, they are meritless.
Garcia does state he objected to Vi's testimony on relevancy grounds. He did not, and he cites to the incorrect page of the reporter's transcript where this testimony occurred.
We also note Garcia did not provide record references to the reporter's transcript of the other alleged instances of evidentiary error. We remind appellate counsel the California Rules of Court requires record references to support his argument. (Cal. Rules of Court, rule 8.204(a)(1)(c).)
First, Vi did not testify concerning Garcia's guilt but only stated Garcia's demeanor led Vi to believe his questions were eliciting useful information and the interview was proceeding in a positive direction. Second, the gun found at a nearby home was not connected to Garcia or the shooting and thus any harm to Garcia was minimal. Third, Buckenberger's testimony regarding a possible DNA match on other government databases was not offered to establish Garcia's DNA was found on the spray paint can but to explain why she requested Garcia's DNA to perform a second DNA test. It was this second test Buckenberger relied on in forming her opinion Garcia could not be excluded as a major contributor to the DNA found on the spray paint can. Finally, "a gang expert may rely upon conversations with gang members, his or her personal investigations of gang-related crimes, and information obtained from colleagues and other law enforcement agencies. [Citations.]" (People v. Duran (2002) 97 Cal.App.4th 1448, 1463-1464.)
Although we have addressed Garcia's claims, because he asserts his defense counsel was ineffective for failing to object to the complained of evidence, we briefly address his claim of ineffective assistance of counsel. "If defendant fails to show that he was prejudiced by counsel's performance, we may reject his ineffective assistance claim without determining whether counsel's performance was inadequate. [Citation.]" (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, there is no reasonable probability the result of the proceeding would have been different had defense counsel objected to the complained of evidence. The jury heard evidence it was statistically probable Garcia possessed the green spray paint can. There was also evidence from multiple witnesses the two men seen running from the shooting were later seen near the dumpster. Additionally, two witnesses testified they saw one of the men throw something into the dumpster, and one of the witnesses testified he saw the shooter throw something into the dumpster. Finally, there was testimony a witness identified the person who spray painted the wall as the shooter. This was certainly sufficient evidence for the jury to reasonably conclude Garcia fired the gun that left Puga physically impaired for life. And based on our review of the entire record, there was overwhelming evidence supporting the gang charges. Thus, Garcia's federal and state constitutional rights were not violated by the admission of the complained of evidence. (People v. Hawthorne (1992) 4 Cal.4th 43, 58 [ordinary rules of evidence do not impermissibly infringe on accused's right to present defense].)
DISPOSITION
The judgment is affirmed.
O'LEARY, J. WE CONCUR: RYLAARSDAM, ACTING P. J. BEDSWORTH, J.