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People v. Garcia

California Court of Appeals, Second District, First Division
Sep 15, 2008
No. B197695 (Cal. Ct. App. Sep. 15, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BA261764, Robert J. Perry, Judge.

Lawrence R. Young & Associates and Lawrence R. Young; Mark S. Shapiro for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.


NEIDORF, J.

Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

INTRODUCTION

Defendant Alexis Garcia was retried for the murder of Ricardo Castro (Pen. Code, § 187, subd. (a)) after the jury in his first trial deadlocked by a vote of six to six. During his second trial, the jury found defendant guilty of murder during the commission of which he personally and intentionally discharged a firearm, causing great bodily injury and/or death (id., § 12022.53, subd. (d)). The jury further found that he committed the murder for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)). The trial court sentenced defendant to state prison for a total term of 50 years to life.

On appeal, defendant contends (1) he was denied access to important exculpatory evidence when the trial court denied his Pitchess motion and his Brady request; (2) the defense was improperly restricted when the trial court prevented his trial counsel from arguing that he was not the shooter; and (3) the evidence was insufficient to establish his guilt beyond a reasonable doubt. We reverse with directions.

Pitchess v. Superior Court (1974) 11 Cal.3d 531.

Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10 L.E.2d 215].

FACTS

Prosecution

Around 9:00 p.m. on March 5, 2004, Julieta Flores (Flores) and her friend Maria Figueroa (Figueroa) met Ricardo Castro (Castro), also known as Solo, at Main and Vernon Streets in Los Angeles. The group then proceeded to a liquor store at Wall and Vernon. A green Chevrolet Suburban was parked in front of the store. As she approached the store, Flores saw a man, later identified as Jose Rodriguez (Rodriguez), carrying a case of beer walk out of the liquor store. Figueroa asked this man if she could have a beer; he said no. A second man, whom Flores identified as defendant, then exited the liquor store behind the man with the beer. Defendant whose “whole face” Flores could see, appeared surprised to see Castro and “went straight to [Castro’s] face.” The two men appeared to be talking, but Flores could not understand what was being said. The confrontation between defendant and Castro lasted 15 seconds, after which defendant pulled out a gun from his waistband and started shooting Castro.

Flores heard four shots. After the last shot, Castro grabbed his chest and walked inside the store where he lay down in front of the cashier. Flores went outside to call for an ambulance and saw the green Suburban driving away. Castro was taken to the hospital, where he died from his injuries. Unbeknownst to Flores, at the time of the shooting, Castro was a member of the Playboys Gang. During a car wash held in his honor days after the shooting, Flores saw a picture of Castro in which his gang tattoos were visible.

Following the shooting, Flores spoke with police. She described the shooter as a 20 or 21-year-old Hispanic man, 5 feet, 8 inches to 5 feet, 10 inches tall, weighing 160 to 170 pounds and wearing a blue sweater with hood and dark jeans. Flores described the man carrying the beer as having a mustache, goatee and a “chunky” build. He was wearing a baseball hat with a white T-shirt.

On March 8, 2004, Los Angeles Police Detective Richard Arciniega interviewed Flores at her home. Flores described the shooter as a Hispanic male, 5 feet, 8 inches or 5 feet, 9 inches tall, with a medium build and a light complexion. His gun was a semi-automatic handgun. Flores also described the man carrying the beer as Hispanic, 5 feet, 7 inches to 5 feet, 8 inches tall, with a “chunky” build, light complexion, a mustache and goatee. Flores did not mention seeing a green Suburban leaving the scene.

According to Flores, she described the shooter to Detective Arciniega as a Hispanic man, 5 feet, 8 inches to 5 feet, 10 inches tall, with a light complexion and medium build. She estimated the shooter’s age at 20 or 21 years his weight as 160 to 170 pounds and described his gun as black. Flores described the man carrying the beer as having a “chunky” build, a light complexion, a mustache and goatee. He was 5 feet, 7 or 8 inches tall and wore a baseball cap and a white shirt.

Also on March 8, Detective Arciniega went to Figueroa’s home and discussed the incident with her. Figueroa stated she had spoken to the man carrying the beer. It was the other man who confronted Castro. Figueroa mentioned that she had been at a car wash the previous day and heard people say that members of 41st Street Gang were responsible for the shooting. Based on what Figueroa overheard at the car wash, Detective Arciniega arranged for an array of photographs of members of the 41st Street Gang to be compiled.

On March 8, detectives also interviewed Eduardo Cabrera (Cabrera) who was working in the liquor store on the night Castro was shot. According to Cabrera, the people who bought beer were 41st Street Gang members and had been in the store previously. Cabrera viewed the photographic array comprised of 16 pictures and identified the man in photograph 1 as the person who purchased the beer and the person who accompanied the man with the beer as the person in photograph 16. Cabrera also stated that the individual in photograph 16 was wearing a hood and a sweatshirt.

At trial, Cabrera believed that defendant had been in the store on the night of the shooting, but he was not 100 percent sure.

In the afternoon on March 9, 2004, Figueroa was interviewed further at the police station. After viewing the photograph array, Figueroa identified the man in photograph 1 as the man who purchased the beer. Figueroa identified defendant, who was depicted in photograph 16, as the man who argued with Castro. Figueroa reviewed her statement and signed it.

The man in photograph 1 was Jose Rodriguez (Rodriguez). According to Detective Arciniega, Rodriguez was about 5 feet, 6 inches tall and had “stocky, chunky” build. At the time of the shooting, Rodriguez was 24 or 25 years old.

Later that same day, Flores was brought to the police station and interviewed. Flores, too, selected photograph 1 as the man who bought beer and defendant’s picture, photograph 16, as the man who shot Castro. Flores similarly reviewed her statement and signed it. At trial, both Figueroa and Flores identified defendant as the man who shot Castro.

In an interview held on March 9, Cabrera again identified the person in photograph 1 as the one who purchased the beer. With regard to the man in photograph 16, Cabrera said he was “wearing a hood and sweatshirt and was with the guy who bought beer.” Cabrera described Castro as a regular customer and a young gang member. Cabrera had seen defendant and Rodriguez together in the past.

According to Los Angeles Police Officer Jose Calzadillas, a gang expert, the 41st Street Gang and the Playboys Gang were rivals with “a lot of bad blood” between them. Officer Calzadillas opined that the shooting was committed for the benefit of the 41st Street Gang. The liquor store at which the shooting occurred was “right on the border” between Playboys and 41st Street territory, and each gang considered the liquor store to be part of its territory. Defendant is an admitted member of the 41st Street Gang and displays 41st Street Gang tattoos. The presence of a rival gang member in gang territory would be considered a challenge to the gang.

Officer Calzadillas viewed the photographic array shown to the witnesses. The officer recognized Rodriguez, the man depicted in photograph 1, as “Thumper.” This individual had several large tattoos signifying his membership in the 41st Street Gang.

Defendant was arrested on June 24, 2005. At the time, he was in possession of glasses but was not wearing them. Defendant also was in possession of an identification card and check-cashing card, bearing his picture, but issued in the name of Antonio Alvarez. In neither picture was defendant wearing glasses. Arresting Officer Todd Bracht, who was familiar with defendant as a result of prior contacts, observed that defendant was 20 or 30 pounds heavier than he had been in the past.

Defense

According to Marta Martinez, defendant’s mother, defendant has worn glasses since 1994 or 1995. In March 2004, defendant was living with his girlfriend’s family in Huntington Park. Prior to March 2004, defendant was employed by a fashion company under the name Antonio Alvarez. In school, however, he used the name Alexis Garcia.

For a few months in 2005, defendant worked in a market. Defendant’s boss knew defendant as Antonio Alvarez and testified that defendant always wore glasses at the store.

DISCUSSION

The trial court should have granted defendant’s pretrial Pitchess motion and request for discovery of exculpatory evidence.

Prior to his retrial, defendant filed a Pitchess motion, seeking to examine the personnel records of Detective Arciniega and Detective Johnny Villa for “evidence of misconduct” in the form of accusations that they “engaged in acts of excessive force, bias, dishonesty, coercive conduct or acts constituting a violation of the statutory or constitutional rights of others.” In support of the motion, defendant’s trial counsel submitted a declaration in which he stated that at trial there was evidence that the eyewitnesses’ identifications had been “tainted by collusion with other witnesses and by Police suggestion and intimidation.” The motion further asserted that there was “evidence that officers had manipulated witness statements and withheld evidence from the defense.”

After considering the declaration of defendant’s trial counsel, the court denied defendant’s Pitchess motion. The court concluded that defendant “fail[ed] to set forth the requisite factors laid out in [the] Evidence Code . . . and the prevailing cases.”

In Warrick v. Superior Court (2005) 35 Cal.4th 1011 at pages 1018 to 1019, the California Supreme Court observed: “This court’s 1974 decision in Pitchess, supra, 11 Cal.3d at pages 536 to 537, established that a criminal defendant could ‘compel discovery’ of certain relevant information in the personnel files of police officers by making ‘general allegations which establish some cause for discovery’ of that information and by showing how it would support a defense to the charge against him.

“In 1978, the California Legislature codified the holding of Pitchess by enacting Penal Code sections 832.7 and 832.8, as well as Evidence Code sections 1043 through 1045. [Citations.] To initiate discovery, the defendant must file a motion supported by affidavits showing ‘good cause for the discovery,’ first by demonstrating the materiality of the information to the pending litigation, and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue. (§ 1043, subd. (b)(3).) This two-part showing of good cause is a ‘relatively low threshold for discovery.’ [Citation.]”

At issue in Warrick was “the showing of good cause required for Pitchess discovery.” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1019.) The court concluded that in order to establish “good cause as required by section 1043, defense counsel’s declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses. These requirements ensure that only information ‘potentially relevant’ to the defense need be brought by the custodian of the officer’s records to the court for its examination in chambers. [Citations.] (Id. at p. 1024.)

The affidavit provided by counsel “must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1024-1025.) “In other cases, the trial court hearing a Pitchess motion will have before it defense counsel’s affidavit, and in addition a police report, witness statements, or other pertinent documents. The court then determines whether defendant’s averments, ‘[v]iewed in conjunction with the police reports’ and any other documents, suffice to ‘establish a plausible factual foundation’ for the alleged officer misconduct and to ‘articulate a valid theory as to how the information sought might be admissible’ at trial. [Citation.] Although a Pitchess motion is obviously strengthened by a witness account corroborating the occurrence of officer misconduct, such corroboration is not required. What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citations.]” (Id. at p. 1025.) No motive need be provided. (Ibid.)

In Warrick, the court further concluded that “a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. A defendant must also show how the information sought could lead to or be evidence potentially admissible at trial. Such a showing ‘put[s] the court on notice’ that the specified officer misconduct ‘will likely be an issue at trial.’ [Citation.] Once that burden is met, the defendant has shown materiality under section 1043.” (Warrick v. Superior Court, supra, 35 Cal.4th at p. 1026.)

“To determine whether the defendant has established good cause for in-chambers review of an officer’s personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsel’s affidavit in support of the Pitchess motion adequately responds to these questions, and states ‘upon reasonable belief that the governmental agency identified has the records or information from the records’ ([Evid. Code,] § 1043, subd. (b)(3)), then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant.” (Warrick v. Superior Court, supra, 35 Cal.4th at pp. 1026-1027.)

Having reviewed defendant’s Pitchess motion, although it is a close call, we conclude defendant made a sufficient showing of good cause under Warrick to warrant the trial court’s in-camera review of Detective Arciniega’s and Detective Villa’s police personnel records. We therefore reverse the judgment conditionally and remand with directions for the trial court to conduct an in camera hearing.

In his Pitchess motion, defendant also sought discovery of Brady material. In support of defendant’s Brady request, defense counsel declared that police detectives interviewed Rodriguez on April 2, 2004. Only the last 40 minutes of his several hour interview was tape recorded, however. According to counsel, although the detectives claimed that Rodriguez voluntarily cooperated, they “have withheld the means they used to get Jose Rodriguez to cooperate in this case and give a statement against an alleged fellow gang member and friend.”

Defense counsel further declared that on January 27, 2005, Rodriguez and his girlfriend, Rosa Ramos, who was an alleged percipient witness to the shooting on March 5, 2004, were arrested on an unrelated matter at the Mexican border as they attempted to re-enter the United States. The murder book log reveals that either Rodriguez or a border patrol officer contacted detectives, after which, on February 1, 2005, detectives interviewed Ramos for the first time regarding this case. Within one week from the date of Ramos’s interview, Rodriguez was released from custody, and no parole violation proceedings were instituted.

Defense counsel maintained that the police held back information pertaining to agreements made with witnesses Ramos and Rodriguez, which led to their release from custody. The defense asserted “this agreement was made in exchange for Ramos’s agreement to be a witness and make a statement against [defendant]. Furthermore, the Detectives have withheld promises they took from Rodriguez in regards to his statement and testimony.”

In Brady v. Maryland, supra, 373 U.S. 83, our nation’s high court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (Id. at p. 87.) Here, defendant made a showing sufficient to justify the discovery of the Brady material he sought.

The People argue any alleged coercion of Rodriguez could not have prejudiced defendant in any way, in that Rodriguez did not testify at trial and no evidence regarding Rodriguez was presented. We do not agree. Inasmuch as it is exculpatory evidence that defendant sought, it is irrelevant that Rodriguez and Ramos did not testify at the second trial. What defendant sought was evidence regarding any coercion that may have affected the statements Rodriguez and Ramos made to the police or while testifying at the first trial. Defendant was entitled to discover this material if it existed.

On remand, the court is to grant defendant’s request and defendant is to be given the opportunity to demonstrate that he was prejudiced as a result of the prosecution’s failure to provide him with any Brady material that may have existed.

Defendant has waived his contention that the trial court improperly restricted his trial counsel’s closing argument.

Defendant contends that during closing argument, the trial court improperly prevented his trial counsel from suggesting that Rodriguez, the man carrying the beer out of the liquor store, could have been the shooter. Inasmuch as defendant has failed to cite to the portion of the record where this purported error occurred, we deem his contention to be waived. (Luckett v. Keylee (2007) 147 Cal.App.4th 919, 927, fn. 11.)

In any event, our review of closing argument readily discloses the lack of merit in defendant’s argument. At no time did the trial court prohibit defense counsel from arguing that Rodriguez could have been the shooter.

While addressing the jury, defense counsel suggested that the man carrying the beer (Rodriguez) struggled with Castro, during which the man’s baseball cap fell off. The prosecutor objected, stating “there is no evidence of this.” The court stated, “Hat falling off. Yeah. I don’t know — .” When defense counsel interjected, “I can make reasonable inferences, your Honor,” the court noted, “I’m not sure that that is a reasonable inference. Please proceed.” Thus contrary to defendant’s assertion, the trial court did not preclude his trial counsel from arguing that Rodriguez was the shooter. It only precluded counsel from arguing that Rodriguez’s baseball cap fell off.

Substantial evidence supports defendant’s murder conviction.

Defendant contends that his murder conviction must be reversed because Flores and Figueroa were not credible witnesses. We reject this challenge to the sufficiency of the evidence supporting his murder conviction.

As the court in In re Daniel G. (2004) 120 Cal.App.4th 824 at page 830 so aptly noted: “The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.]” Stated otherwise, it is the exclusive province of the jury to determine the credibility of witness and the truth or falsity of facts upon which the jury’s verdict depends, and we may not and will not substitute our assessment of a witness’s credibility for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

Here, the jury heard all the evidence, including the numerous inconsistencies between Flores’s and Figueroa’s trial testimony, preliminary hearing testimony and pretrial statements. Despite these inconsistencies, the jury believed Flores’s and Figueroa’s testimony identifying defendant as the person who shot Castro. We have no basis for disturbing the jury’s credibility determination. (People v. Ochoa, supra, 6 Cal.4th at p. 1206; In re Daniel G., supra, 120 Cal.App.4th at p. 830.)

It is firmly established that “[t]he testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions.” (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) Only if a witness’s testimony is physically impossible or inherently improbable may it be discounted by the reviewing court. (People Scott (1978) 21 Cal.3d 284, 296; California Sportfishing Protection Alliance v. State Water Resources Control Bd. (2008) 160 Cal.App.4th 1625, 1640; People v. Mejia (2007) 155 Cal.App.4th 86, 93.) Defendant has failed to demonstrate that the inconsistencies in Flores’s and Figueroa’s testimony render their identification of defendant as the shooter physically impossible or inherently improbable.

Defendant’s assertion that the police directed Flores to select his picture when asked to view the photographic array of 16 members of 41st Street Gang and to identify the individual who shot Castro is without merit.

During direction examination, Flores testified that upon viewing the photographic display, she identified Rodriguez, who was depicted in photograph 1, as the person carrying the beer and defendant, who was depicted in photograph 16, as the man who confronted and shot Castro. During cross-examination, defense counsel attempted unsuccessfully to shed doubt on Flores’s identification of defendant.

Defendant takes the same approach on appeal, pointing out that Flores testified, “Okay, they just told me who was the person that shot Solo and I pointed to number 16.” This testimony cannot be viewed in a vacuum, however.

During cross-examination, defense counsel asked questions designed to establish that the police pointed to defendant’s picture after which Flores asked, “This one”? When Flores responded, “I don’t know what you are trying to say,” the court attempted to clarify matters by asking Flores if the officers pointed to photograph 16 and if she then asked them the question, “This one?” The following colloquy then transpired:

“[FLORES]: Okay, they just told me who was the person that shot Solo and I pointed to number 16.

“THE COURT: And they asked you if that was the guy.

“[FLORES]: They just — just told me to circle it if it was right, to circle it and just put my name, the date and the time.

“THE COURT: All right.

“[DEFENSE COUNSEL]: Let me repeat my question, which was, isn’t it true that the officers had to direct you to number 16 and that your response to being — isn’t it true that the officers pointed at number 16 and that your response to that was ‘this one’?

“[FLORES]: No, they didn’t.

“[DEFENSE COUNSEL]: That never happened?

“[FLORES]: No.

“[DEFENSE COUNSEL]: Are you sure about that.

“[FLORES]: Yes.”

When the select statement on which defendant relies to support his assertion that the police told Flores who to identify is viewed in context, it is clear that the police asked Flores to make an identification, after which she independently selected defendant’s picture from the photographic display.

More fundamentally, the jury heard all of the evidence, including Flores’s testimony, her tape-recorded interview with police detectives and the testimony of Detective Arciniega. After doing so, the jury convicted defendant thus signifying its acceptance as true of Flores’s and Figueroa’s testimony that defendant was the person who shot Castro. We have no basis for disturbing the jury’s credibility determination and therefore conclude that substantial evidence supports defendant’s murder conviction. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court for the limited purpose of (1) conducting an in-camera inspection of Detective Arciniega’s and Detective Villa’s police personnel records and ordering the disclosure of relevant information, if any, and (2) granting defendant’s Brady request and giving defendant an opportunity to establish prejudice resulting from the prosecution’s withholding of any potentially exculpable evidence. If the trial court concludes that the detectives’ personnel files contain discoverable Pitchess information and defendant establishes that he was prejudiced by the denial of its discovery or defendant establishes he was prejudiced as a result of the prosecutions’ failure to disclose the Brady material, then the trial court is directed to order a new trial. If there is no discoverable Pitchess information in the detectives’ personnel files or if defendant is unable to establish he was prejudiced at trial as a result of the improper denial of his Pitchess’ motion or Brady request, then the trial court is ordered to reinstate the judgment and the judgment is affirmed.

We concur: MALLANO, P. J., ROTHSCHILD, J.


Summaries of

People v. Garcia

California Court of Appeals, Second District, First Division
Sep 15, 2008
No. B197695 (Cal. Ct. App. Sep. 15, 2008)
Case details for

People v. Garcia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ALEXIS GARCIA, Defendant and…

Court:California Court of Appeals, Second District, First Division

Date published: Sep 15, 2008

Citations

No. B197695 (Cal. Ct. App. Sep. 15, 2008)

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