Opinion
B223214
10-04-2011
THE PEOPLE, Plaintiff and Respondent, v. MELESIO GARCIA, Defendant and Appellant.
Law Offices of Wayne P. Higgins and Wayne P. Higgins for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA063528)
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Law Offices of Wayne P. Higgins and Wayne P. Higgins for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Melesio Garcia appeals from a judgment of conviction for stalking and shooting at his estranged wife and her boyfriend. He contends the trial court erred in excluding hearsay evidence related to a self-defense claim. He also contends that the prosecutor committed misconduct, and that his trial counsel was ineffective. Finding no prejudicial error, we affirm.
STATEMENT OF THE CASE
An information charged Garcia with two counts of premeditated attempted murder (counts 1 & 2; Pen. Code, §§ 664, 187, subd. (a)), two counts of assault with a firearm (counts 3 & 4; § 245, subd. (a)(2)), two counts of stalking (counts 5 & 7; § 646.9, subd. (a)), possession of cocaine (count 6; Health & Saf. Code, § 11350, subd. (a)), and unlawful firearm activity (count 8; § 12021, subd. (g)(2)). As to counts 1 and 2, it was further alleged that Garcia personally discharged and used a handgun (§ 12022.53, subds. (b) & (c)). As to counts 3 and 4, it was alleged that Garcia personally used a handgun (§ 12022.5, subd. (a)). Garcia pleaded not guilty and denied the allegations.
All further statutory citations are to the Penal Code, unless otherwise stated.
A jury found Garcia guilty on all counts as charged, and found the gun-use enhancements to be true. Garcia was sentenced to state prison for two consecutive life terms, plus 44 years and four months. He timely filed an appeal from the judgment of conviction.
STATEMENT OF THE FACTS
In September 2008, Garcia and his wife, Teresa, separated after 13 years of marriage. Teresa and their children moved in with her parents. In October 2008, Teresa obtained a restraining order against Garcia because he was harassing her by repeatedly telephoning her, sending text messages, and showing up at her workplace and her home. The restraining order prohibited Garcia from coming within 100 yards of Teresa or contacting her. Garcia, who worked as an armed security officer and owned several firearms, also was ordered to sell or turn in his guns.
By the time of trial, Teresa had divorced Garcia. Because they shared a surname, and in order to avoid confusion, we refer to Garcia's former wife by her first name.
In November 2008, Teresa, who worked at a hospital, began dating a co-worker, German Beltran. Garcia was very upset about this relationship. He sent Teresa a text message stating, "Don't you get it. Save this text as evidence like you do all the rest. You will never live in peace with another man, divorced or not." By mid-November, Garcia had sent more than 90 text messages to Teresa about her relationship with Beltran. For example, on November 15, Teresa received several threatening text messages from Garcia, including: "You're gone, bitch"; "You are dead to me, bitch"; "You have left me no choice"; and "Watch your surroundings, gloves off."
On November 16, Garcia went to Teresa's parents' house. According to Teresa's father, Garcia was very "excited." He told Teresa's father that a "hit" had been ordered on Beltran, and that if Teresa happened to be with Beltran at the time, she would get hurt too. Teresa's father also testified that after he asked Garcia to stop the hit, Garcia began crying and stated he could not stop it. Teresa's father advised Garcia to "go on with his life" and "do his best to forget about [Teresa] and start his life." After Garcia left, Teresa's father called her and told her about his conversation with Garcia. He also told her not to go home, but instead to stop at a police station and file a report regarding the threat.
Teresa testified that she did not take the threat seriously, but she filed a police report to give her father "peace of mind." That same day, Teresa received a text message from Garcia stating, "Somebody is going to die." The next day, Teresa received a text message from Garcia stating, "We already have his info. German is dead."
On November 22, Teresa filed another police report after Garcia came to her workplace on two occasions, prompting her to call security. As part of a followup investigation, Los Angeles County Deputy Sheriff Roland de la Maza testified that he talked with Garcia. Garcia stated that he had gone to Teresa's workplace to talk about child custody issues when he saw her walking into the hospital with Beltran. He went to her workplace and started yelling at her because he wanted her to know that he had seen her with another man. Garcia admitted knowing there was a restraining order against him that prohibited him from coming within 100 yards of Teresa. He stated he understood that what he did was "very stupid," and said he would not do it again.
On December 1, Teresa filed another police report after Garcia followed her in his SUV for about 15 miles. On December 13, Garcia pulled his SUV behind Teresa's truck and blocked her from driving home from work. He left when she began calling 911. Later that day, he sent her a text message stating, "I just wanted to show you that I can get to you if I wanted to."
Garcia also sent many text messages to Teresa threatening Beltran. For example, Garcia wrote to Teresa, "Too bad he will not see the new year. I promise." Later, he wrote, "I don't even sleep anymore. Just thinking how to kill him." In total, Garcia sent more than 300 text messages to Teresa after she obtained the restraining order in October 2008.
In addition to sending text messages to Teresa, Garcia also called Beltran and left threatening voicemail messages. Beltran testified that he started receiving dropped calls and hangups. Then, Garcia called him and left voice messages that went from "I need to talk to you" to "I want to harm you." On December 30, Garcia left Beltran a voicemail message stating, "I'm going to kill you, you're a dead man." On January 1, 2009, Garcia left a message indicating that he knew Beltran's address. Later, Garcia left a message stating, "You should always check your surroundings. You're a dead man. Your days are counted." Garcia also left threatening messages for Beltran on January 5 and 6.
At around 8:00 a.m. on January 7, 2009, Garcia left a message on Beltran's phone stating, "Next time you see her I'm going to be there, and don't think it's going to be a fight because I'm going to shoot your ass, and as soon as I catch you, you're a dead motherfucker."
That evening, Teresa drove to Beltran's house and stayed for several hours. While at Beltran's house, Teresa indicated to Beltran that she had a feeling that Garcia was outside. Beltran and Teresa agreed that if there was a confrontation with Garcia, Teresa would run to her car and drive away to a safe location.
At around 9:00 p.m., Beltran walked Teresa toward her car. Beltran was carrying only a flashlight which was turned off. They heard a door slam and saw Garcia walking quickly toward them. Garcia began screaming at Beltran, "You stupid motherfucker. You didn't think I'd get you." Beltran turned toward Garcia in order to defend himself "or [to] expect the worse." Beltran heard Teresa scream. Garcia then stopped, backed up, and from about seven or eight feet away, fired at Beltran and Teresa four times. Neither Beltran nor Teresa was hit.
When Garcia began shooting, both Beltran and Teresa fled. Beltran ran toward his house, jumped over the fence into his yard, and called 911. Teresa ran toward the street and hid behind some parked cars.
After Garcia stopped shooting, Teresa stood up and exchanged words with him. Garcia told Teresa, "You fucking bitch. I can't believe you did this. Look at what you did." Teresa told him to leave. Teresa saw Garcia get into his SUV. He appeared to be looking for something in the front seat or center console. Teresa pulled out her cell phone, and Garcia told her not to call the police. She called 911 anyway. By the time the police arrived, Garcia had fled on foot.
Paul Maldonado was across the street when he heard four or five gunshots. He turned toward the direction from which he heard the shots and saw a man running toward an alley. He saw a second man arguing with a woman, asking for the keys to a vehicle. The woman started running toward the alley when the man yelled at her. She then began calling someone on her cell phone. The man put something into the vehicle and ran away.
Garcia sent several text messages to Teresa just after the shooting. In one, he called her a "rat." In another, he wrote, "Fucking slut. Now everyone knows. Thanks." Teresa received other messages from Garcia indicating he knew where she was or her driving routes.
The following day, January 8, Los Angeles Police Detective John Fleming searched Garcia's residence. He found a loaded .357-caliber handgun, along with ammunition for the handgun and for a 9-mm firearm. Garcia had three guns registered to him: a .357-caliber handgun, a .22-caliber handgun, and a 9-mm handgun. Detective Fleming did not find the other two guns in Garcia's house.
Los Angeles Police Officer Jason Hardaker and his partner arrested Garcia on January 22. During the booking process, Officer Hardaker found a small plastic baggie containing cocaine in Garcia's left rear pocket. Garcia's SUV was impounded.
Los Angeles Police Department Detective Gretchen Schultz was the investigating officer on the case. She testified that she checked a gun registry database used by the police, and found no guns registered to Beltran. She also testified that on January 23, she searched Garcia's SUV and found, among other things, a pair of binoculars in a gym bag. Detective Schultz also collected evidence from Teresa's and Beltran's phones. She photographed the text messages from Teresa's phone, and she recorded the voicemail messages from Beltran's phone. During cross-examination, Detective Schultz admitted that no bullet casings were found at the scene of the shooting and that there was no physical evidence linking the .357-caliber handgun seized at Garcia's house to the shooting.
The defense sought to present a theory of self-defense or a theory that Garcia did not intend to murder the victims, based on the fact that no one was injured. William Fichman, the president of the security firm that employed Garcia, testified that his employees were required to take firearm qualifying tests every three months. Garcia was an average to above average shooter. Gary Jeffrey, the vice-president of the company, testified that it was not unusual for an employee like Garcia to have a pair of binoculars. He also testified that Garcia was a very proficient shooter.
Robert Buck testified that he saw the shooting that night. While walking his dog, he noticed a man standing on the grass next to the sidewalk. A car pulled up, stopped, and a man exited the passenger side of the car. Suddenly, the man who exited the car fired at least three shots at the other man. Buck ran toward his house, which was about half a block away. He called 911 when he got home. Buck testified that the car carrying the shooter was not an SUV.
DISCUSSION
On appeal, Garcia contends: (1) that the trial court erred by excluding hearsay evidence that would support a self-defense claim; (2) that the prosecutor committed misconduct by "distort[ing]" the reasonable doubt standard in closing argument; and (3) that he received ineffective assistance of counsel when his trial counsel failed to call two witnesses. We address each contention in turn. A. Self-Defense Claim
During trial, defense counsel sought to present a self-defense theory that Beltran and Garcia had engaged in a shootout. Defense counsel sought to question Detective Schultz about a conversation she had had with Fichman on January 16, 2009.
During the conversation, Fichman informed Detective Schultz that Garcia had told him that Beltran had shot at Garcia and Garcia had run away on foot. After being informed of the charges against Garcia, Fichman then asked, "[W]as there an actual gun fight or [was] it one sided"? Detective Schultz responded, "yeah." Fichman then stated, "There was a gun fight." Detective Schultz responded, "yeah."
When defense counsel sought to present this evidence by questioning Detective Schultz, the trial court sustained the prosecution's objections. The trial court ruled that the statements were hearsay, and that Detective Schultz's views and theories about the shooting were not relevant because it was up to the jury to determine culpability. The court stated that defense counsel could elicit testimony from Detective Schultz about her investigation and whether she determined if any gun had been fired and in which direction. Defense counsel did so. After a series of questions about the investigation, Detective Schultz testified that, "[o]nce [she] started interviewing additional witnesses and the victims and by contradictory testimony from the defendant, [she] just determined that there was no evidence that any of the victims had firearms that evening."
On appeal, Garcia contends the trial court's rulings denied him his constitutional right against self-incrimination because he was unable to present a theory of self-defense without taking the witness stand. He also contends the trial court's rulings denied him his constitutional right to fully cross-examine Detective Schultz. We disagree.
First, there is no constitutional right to present a defense through another person's hearsay testimony. (See, e.g., People v. Edwards (1991) 54 Cal.3d 787, 821 ["Defendant was fully allowed to present a defense. He could have testified had he so chosen. [Citation.] Defendant has no right to effectively 'address the jury without subjecting himself to cross-examination.' [Citation.]"].) Indeed, a trial court may exclude evidence under the ordinary rules of evidence even if it is purportedly relevant to a defense. (People v. Hall (1986) 41 Cal.3d 826, 834 ["As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense"]; see, e.g., People v. Jones (1998) 17 Cal.4th 279, 305 [No error in excluding hearsay evidence purporting to show a third party was the shooter: "[D]efendant was not precluded from attempting to prove [the third party] was the actual triggerman. Instead, he merely was precluded from proving it with time-consuming hearsay and character evidence that was not particularly probative on the question"]; People v. Babbitt (1988) 45 Cal.3d 660, 683-684 [trial court did not violate defendant's due process right to present defense evidence when it excluded speculative evidence under Evid. Code, § 352].) Malloy v. Hogan (1964) 378 U.S. 1 (Malloy), cited by Garcia in support of his argument, does not hold to the contrary. Malloy does not discuss whether a defendant may introduce a defense through another person's hearsay testimony; it merely holds that the constitutional right against self-incrimination applies in state civil and criminal proceedings. (Id. at pp. 6-11.)
Second, there was no denial of Garcia's right to confront and cross-examine Detective Schultz. Defense counsel was able to question Detective Schultz about her investigation and what evidence led to her conclusion that the victims were not armed. The attempt to elicit hearsay evidence, which at most related to an early impression of the case, did not fall within the scope of permissible cross-examination, as the evidence was irrelevant or of marginal probative value. (People v. Love (1977) 75 Cal.App.3d 928, 939 ["A trial court, as a matter of law, does not abuse its discretion [just] because the evidence rejected under Evidence Code section 352 consists of testimony about a prior inconsistent statement of a third party" exculpating the defendant].)
Moreover, even had we found error, we would deem it harmless. Detective Schultz's statement had no probative value, as it was either an early impression about the case or part of an attempt to elicit further statements from Fichman. In no way did it suggest Garcia acted in self-defense. Both Teresa and Beltran testified that they did not threaten or shoot at Garcia. Beltran testified he was carrying only a flashlight, and the gun registry database showed no guns registered to him. In short, there was no evidence whatsoever that Beltran owned, possessed, or fired a gun on the night in question, much less that Garcia acted in self-defense. Thus, there was no reasonable probability that Garcia would have received a more favorable result had the jurors been allowed to hear Detective Schultz's statement to Fichman. (People v. Garcia (1984) 160 Cal.App.3d 82, 93, fn. 12 [evidentiary errors are tested under harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836].) Accordingly, we reject Garcia's claim of error. B. Prosecutorial Misconduct
Next, Garcia contends the prosecutor committed misconduct during closing argument when she described the concept of reasonable doubt using a jigsaw puzzle analogy. The prosecutor told the jury:
"When people, when they are putting a jigsaw puzzle together, start from the outside and do all of the border pieces to give it the frame work, and then they start to do the puzzle pieces, and fitting them in there. At some point there are enough puzzle pieces there to tell you what's the puzzle a picture of. . . . And that is the concept of reasonable doubt. When you have enough evidence for you to [say], I have an abiding conviction I think that this crime was committed beyond a reasonable doubt."
Garcia contends the use of a jigsaw puzzle analogy distorted the concept of reasonable doubt in the same manner or to the same effect as the use of a jigsaw puzzle analogy in People v. Katzenberger (2009) 178 Cal.App.4th 1260 (Katzenberger). We disagree.
"'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] . . . When a claim of misconduct is based on the prosecutor's comments before the jury, "'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" [Citation.]'" (People v. Friend (2009) 47 Cal.4th 1, 29.)
In Katzenberger, the appellate court held that the use of a jigsaw puzzle analogy presented by means of a visual presentation showing the Statue of Liberty being put together from eight pieces constituted misconduct, because the "use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt." (Katzenberger, supra, 178 Cal.App.4th at pp. 1264, 1268.) According to the court, the image of the Statue of Liberty could be recognized after the first or second piece of the puzzle was shown. (Id. at p. 1267.) Here, in contrast, the prosecutor did not suggest "a quantitative measure of reasonable doubt." Moreover, there is no reasonable likelihood that the jurors would have construed the prosecutor's jigsaw puzzle analogy to mean that they could convict on less than beyond a reasonable doubt. Accordingly, there was no misconduct. C. Ineffective assistance of counsel
Finally, Garcia contends he received ineffective assistance of counsel because his trial counsel failed to call two witnesses: (1) a firearms expert who would have testified that given the locations of the victims based upon their testimony, Garcia would have had to fire the gun above the victims' heads in order to miss the wall behind them; and (2) a witness who did not see the shooting, but would have testified that he heard two sets of two gunshots allegedly supporting a theory of self-defense.
In his reply brief, appellate counsel for Garcia purports to attach a declaration from trial counsel explaining the basis for his decisions. The declaration was not part of the record below and is not properly before us on appeal. (People v. Sanders (1990) 221 Cal.App.3d 350, 362 ["Appellant's contention of ineffective representation by his trial counsel . . . is based upon matters outside the record on appeal and which, therefore, we may not consider"]; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267 [where record sheds no light on trial counsel's actions, "[a] claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding"].) Nevertheless to avoid the necessity of additional proceedings that would not alter the outcome, we briefly address the contents of the declaration.
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As to the firearms expert, trial counsel stated in a declaration that he did not call the expert because he could not establish the foundation for the expert's testimony that there had been a gun battle. As to the eyewitness, trial counsel stated the witness declined to testify based upon advice from the witness's own counsel.
In order to prevail on a claim of ineffective assistance of counsel, Garcia must show (1) that his trial counsel's representation fell below an objective standard for reasonableness under prevailing professional norms; and (2) that there was a reasonable probability that but for counsel's unprofessional errors, the result would have been more favorable to the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Gray (2005) 37 Cal.4th 168, 206-207; People v. Kelly (1992) 1 Cal.4th 495, 519-520.)
Here, Garcia cannot show that his counsel was ineffective or that he suffered prejudice as a result of his counsel's actions. As to the firearms expert, the proposed testimony was not beyond the common experience of the jury. (Evid. Code, § 801 [expert opinion limited to "subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact"].) Thus, trial counsel was not ineffective for failing to call an expert whose testimony was unnecessary. In any event, there was no prejudice. In closing argument, defense counsel argued that it was not possible for Garcia, who was a trained marksman, to shoot at Teresa and Beltran "four to five times from point blank range and not even hit the wall behind them." The jury thus heard argument that was identical to the proposed opinion of the firearms expert. On this record there was no reasonable probability that the jury would have reached a more favorable verdict if the expert had been called to testify.
As for the remaining witness, trial counsel was not ineffective for failing to call a witness who declined to testify on the basis of advice from counsel. Nor was there prejudice, as the proposed testimony indicated only that four shots were fired in two sets of gunshots. Such testimony would not have shown that Beltran shot at Garcia, or that the shots came from any gun other than Garcia's. In light of the other evidence showing that Beltran was unarmed, there is no reasonable probability that the jury would have reached a more favorable verdict. Accordingly, we reject Garcia's claims of ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.