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People v. Garcia

California Court of Appeals, Fourth District, Third Division
Jul 28, 2008
No. G038469 (Cal. Ct. App. Jul. 28, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 06CF1135, Carla M. Singer, Judge.

Gregory Marshall, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Scott C. Taylor and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

SILLS, P. J.

Gilbert Garcia was charged by information with the December 2004 murder of William “Billy” Pascoe. He was convicted by a jury of voluntary manslaughter, a lesser included offense of murder, and was sentenced by the court to a six-year prison term.

On appeal, Garcia contends the trial court committed reversible instructional error by failing to sua sponte instruct the jury on the offense of involuntary manslaughter due to voluntary intoxication to the point of unconsciousness. In the alternative, he claims trial counsel rendered ineffective assistance by failing to request this instruction. Garcia also argues the court erred by refusing defense counsel’s request for CALCRIM No. 511, a standard instruction on excusable homicide when there is evidence the defendant accidentally killed someone in the heat of passion. We affirm the judgment.

All subsequent references to numbered jury instructions are to the Judicial Council of California Criminal Jury Instructions (CALCRIM) unless otherwise stated.

I FACTS

On the morning of December 6, 2004, peace officers from the Orange County Sheriff’s Department, Huntington Beach Police Department, and the Huntington Beach Fire Department responded to an area underneath the Hamilton Avenue Bridge in Huntington Beach. The officers discovered William Pascoe’s body in a man-made alcove approximately eight feet wide, seven feet high, and 30 feet long in the bridge’s concrete support structure. In an area within 200 yards of the body and encompassing portions of a bike path that runs along the western bank of the Santa Ana River, investigators discovered several items of interest, including a mattress, a cabinet, a gray jacket, several empty beer cans, one full bottle of beer, a glass pipe of a type generally used to ingest narcotics, glass shards from a broken bottle, three empty packages of cigarettes, a cigarette lighter, and a chain. Crime scene investigators collected blood-stains and blood-splatter evidence from several items, including the cabinet, a piece of concrete wall behind the body, several beer bottles, and the glass pipe.

Pascoe’s body had obvious facial lacerations, particularly around his right eye. His left eye was closed, and there was a great deal of blood all over his face. A subsequent autopsy revealed that the laceration on Pascoe’s face was four inches long and ran from his nose to his right cheek. He had an “abrasion contusion” that extended from his right temple to his right cheek, which followed the angle of his mouth. There were contusions around both of his eyes and left temple, and a small “abrasion contusion” on his left cheek. The forensic pathologist also discovered an abrasion on the top of Pascoe’s left ear, a contusion in the middle of his upper lip, a contusion on the right side of his mouth, and several self-inflicted bite wounds on his tongue. Both eyes showed evidence of internal bleeding, referred to as bilateral conjunctive hemorrhage. Pascoe suffered multiple broken bones, including the right orbital bone and mandible, and he had a broken nose.

Once Pascoe’s scalp was removed, the forensic pathologist saw contusions to the top and back of Pascoe’s head. He had both subdural and subarachnoid hematomas and hemorrhaging in his brain, which the pathologist testified were the cause of his death. Although the pathologist believed the lethal injuries had been caused by blunt force trauma, she could not identify the instrument that had been used to inflict these injuries. With the exception of one small contusion on the back of Pascoe’s right hand, his hands appeared normal. At the time of his death, Pascoe stood 5 feet 5 inches tall, weighed 138 pounds, and had several tattoos on his upper torso. Blood tests revealed that Pascoe had a blood alcohol level of .25 percent at the time of his death, but there was no evidence of drug use.

The pathologist subjected various blood-stained items to DNA testing. As a result, she was able to match DNA found on one of the beer bottles and the glass pipe with DNA samples taken from Pascoe and Garcia.

Investigators interviewed Michael Crockett and Michael Siringo in the early morning hours of December 6, 2004. At the time, both men were homeless and living along the Santa Ana River in Huntington Beach. Crockett lived under the Hamilton Avenue Bridge where Pascoe’s body was found. Siringo lived nearby, along the river in the area of the intersection of Brookhurst and Atlanta Avenues, which was approximately one mile from Crockett’s camp. Both men initially lied to the investigators about their whereabouts the night before and denied knowing anything about Pascoe’s death.

Crockett subsequently told the investigators that Pascoe, who was also homeless, appeared at his camp under the Hamilton Avenue Bridge in the early morning hours of December 5. Because it had been raining and Pascoe was soaking wet, Crockett decided to allow him to stay under the bridge. They drank beer, vodka, and some other “foreign alcoholic beverage.” Crockett said Pascoe periodically left camp during the day to get more alcohol. Eventually, there were several homeless men congregated at Crockett’s camp, including Garcia, Siringo, and Don Koster, and they were all drinking alcohol.

Garcia, Siringo and Koster took a taxi to Long Beach at one point during the day to buy and ingest rock cocaine. When they rejoined the group at Crockett’s camp around sunset, Siringo and Garcia twice slipped away from camp to smoke more cocaine. Around 8:00 p.m., Crockett became so intoxicated that he decided to lie down on his mattress. While he was lying down, he heard Garcia and Pascoe start to argue about religion. The argument included references to differences between Christ and the Antichrist. Garcia told Pascoe that he was the Antichrist, and he said that Pascoe was “pretty and beautiful” like a woman. Pascoe took offense at this statement and said, “Hey, man, do not talk to me like that. Do not talk to me. You need to watch who you talk to like that because I’ll fuck you up. I’ll fuck you up. I got tattoos.”

Garcia, who was 5 feet 11 inches tall and weighted approximately 210 pounds, continued to harass Pascoe and pointed out that he had a definite size advantage. Eventually the argument devolved into claims of “who can beat who.” Crockett heard Garcia say, “You want to fight? You want to fight? Okay, we’ll fight. We’ll fight right here.” Crockett thought he heard Garcia and Pascoe moving around and thought they had stood up and walked away. However, when Crockett lifted his head to look, he saw both men on the ground. Garcia was sitting on Pascoe’s head and repeatedly punching Pascoe in the face with both fists. Pascoe did not hit Garcia. In fact, Crockett told the investigators that Pascoe had been “defenseless.”

Crockett told Garcia to stop hitting Pascoe because he, Crockett, did not need any problems. Garcia replied, “Hey, this is my beef. This is my stuff. Mind your own business. This is not yours.” Garcia hit Pascoe a few more times before he stood up and started after Crockett. Garcia grabbed Crockett by the shoulder, picked him up off the mattress, and threw him out from under the bridge. Crockett’s attempts to calm Garcia actually made him “more aggressive, more hostile.” Garcia grabbed a bottle and threw it at Crockett. When the bottle broke on the ground, Crockett took off on his bicycle. He returned to the campsite approximately 30 minutes later and called Pascoe’s name, but he got no response. Fearful of running into Garcia, Crockett left a second time and did not return again until the following morning. He estimated that Garcia hit and punched Pascoe 20 times.

A few days after the murder, Siringo admitted to investigators that he had been drinking alcohol with Crockett, Garcia, Pascoe, and Koster on the night of Pascoe’s death. However, he said that he left the campsite when Garcia and Pascoe started arguing. He heard Garcia threaten Pascoe as he was walking away. He also heard someone scream, but he could not identify the voice. Garcia caught up to Siringo approximately 20 minutes later. He told Siringo, “I think I just killed somebody,” and he said he needed to go to San Bernardino. Instead, they walked to a liquor store to buy more alcohol. On the way, Siringo noticed that Garcia was wiping his shoes in the grass. Siringo asked Garcia what he was doing and Garcia told him he needed to get some blood off his shoes. They bought some beer and ate some tacos. Siringo said that Garcia acted as if nothing had happened. After they ate, Siringo and Garcia talked for awhile and then Garcia said good-bye and left.

Garcia was quickly identified as a suspect in the killing and a warrant was issued for his arrest. On December 7, police officers searched a storage unit rented in his name, but the search yielded nothing of any evidentiary value. On December 8, Garcia contacted the San Bernardino County Sheriff’s Department and surrendered himself to authorities. There was no blood found on any item of Garcia’s clothing at the time of his arrest, but the arresting officers did notice that his right hand was swollen and scabbed. Garcia told them it was swollen due to a previous fracture.

Two investigators from the Huntington Beach Police Department drove to San Bernardino and interviewed Garcia after his arrest. In a video-recorded statement that was played for the jury, Garcia told the officers that he had recently left Huntington Beach and moved to San Bernardino “for the summer” and to visit friends. He acknowledged that he had been homeless for several months. He said he worked at the recycling plant in Huntington Beach and lived in a camp along the Santa Ana River between the Hamilton Avenue and Adams Street Bridges. Although he acknowledged that he had been in Huntington Beach on December 5, Garcia denied having any involvement in Pascoe’s death. He claimed that he was surprised by news reports on the subject and surprised that he was wanted in connection to the crime. He admitted associating with other homeless men that worked at the recycling plant. He also admitted that he drank some beer with a group of them one night before he left for San Bernardino, but he denied knowing anything else about them. The interviewers tried to pin-down Garcia’s whereabouts on specific days, which prompted him to say, “You guys ain’t got nothing on me, man, and you know it.” He did not testify at trial.

II DISCUSSION

The trial court gave several jury instructions relevant to the murder charge, including the definition of homicide (CALCRIM No. 500), justifiable homicide as a result of the defendant’s acts in self-defense or defense of another (CALCRIM No. 505), and the right of self-defense as it applies to a death occurring during mutual combat (CALCRIM Nos. 3471, 3472). The court also gave instructions defining murder with malice aforethought (CALCRIM No. 520), the role of provocation as it may be used to reduce murder and to manslaughter (CALCRIM No. 522), that any doubt whether a crime is murder or manslaughter must be resolved in the defendant’s favor (CALCRIM No. 560C), and how to consider evidence of a defendant’s voluntary intoxication as it relates to his or her intent to kill (CALCRIM No. 625). Finally, the court gave an instruction on lesser included crimes (CALCRIM No. 640A), and defined voluntary manslaughter due to sudden quarrel or heat of passion (CALCRIM No. 570), voluntary manslaughter as a result of the defendant’s genuine, but unreasonable, belief in the need for self-defense (CALCRIM No. 571), and involuntary manslaughter as an unlawful killing that is the result of a willful act committed without malice and without conscious disregard for human life (CALCRIM No. 580).

Involuntary manslaughter

The court instructed the jury with CALCRIM No. 625 as follows: “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may not consider evidence of voluntary intoxication for any other purpose.”

Relying on People v. Wright (2005) 35 Cal.4th 964, the People requested a modification of this instruction by adding the following paragraph: “Voluntary intoxication is not relevant to the issue of implied malice. If all the elements of implied malice as I have defined them to you are established, the fact the defendant may have been voluntarily intoxicated is not a defense and does not relieve him of responsibility for the crime.” The court denied the People’s modification request.

Relying on People v. Abilez (2007) 41 Cal.4th 472 (Abilez), Garcia claims the court had a sua sponte duty to instruct the jury that it could find him guilty of involuntary manslaughter based on a theory of voluntary intoxication to the point of unconsciousness. In the alternative, he claims trial counsel’s failure to request a jury instruction on this point constitutes ineffective assistance of counsel. We find no merit to either contention.

In Abilez, the defendant was convicted of the first-degree murder of his mother, and of committing forcible sodomy, robbery, burglary, and car theft. Through the testimony of various witnesses, including his accomplice, the defendant introduced evidence that at various times on the day of the murder he appeared to be under the influence of heroin and/or alcohol, and that he drank alcohol throughout the day of the murder. In addition, the defendant called an expert witness at trial to testify about the effects of chronic alcohol abuse and heroin use on cognitive function. His trial attorney raised the issue of whether his client was intoxicated to the point of unconsciousness such that an instruction on involuntary manslaughter should be given. The trial court agreed to consider a proposed modification of the standard involuntary manslaughter instruction. However, counsel did not present such a modification to the court or mention the issue again during the remainder of the trial.

The California Supreme Court agreed with what it called “counsel’s concession” that “there was insufficient evidence to warrant an instruction on involuntary manslaughter (Abilez, supra, 41 Cal.4th at p. 516), and proceeded to recite the law on voluntary intoxication to the point of unconsciousness: “‘When a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter. “Unconsciousness is ordinarily a complete defense to a charge of criminal homicide. [Citation.] If the state of unconsciousness results from intoxication voluntarily induced, however, it is not a complete defense. [Citation.] . . . [I]f the intoxication is voluntarily induced, it can never excuse homicide. [Citation.] Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication.”’ [Citation.] Such a person need not be incapable of movement. [Citation.]” (Abilez, supra, 41 Cal.4th at p. 516, fn. omitted.)

Garcia quotes this paragraph from the Abilez opinion and contends the trial court here failed to “give the jury this vital information.” We disagree that information regarding voluntary intoxication to the point of unconsciousness was in fact vital to the resolution of this case. The standard instruction on this legal principle is CALCRIM No. 626. Fundamental to the instruction, as explained by its attendant use notes and citations, is the admission of evidence demonstrating that the defendant was in fact intoxicated to the point of unconsciousness. While the defendant does not need to lie perfectly still and do nothing to establish unconsciousness, there must be some evidence of intoxication to the point that the defendant is no longer aware of his or her actions. (Pen. Code, § 26, subd. 4; People v. Ochoa (1998) 19 Cal.4th 353, 423-424.)

CALCRIM No. 626 provides: “Voluntary intoxication may cause a person to be unconscious of his or her actions. A very intoxicated person may still be capable of physical movement but may not be aware of his or her actions or the nature of those actions. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] When a person voluntarily causes his or her own intoxication to the point of unconsciousness, the person assumes the risk that while unconscious he or she will commit acts inherently dangerous to human life. If someone dies as a result of the actions of a person who was unconscious due to voluntary intoxication, then the killing is involuntary manslaughter. [¶] Involuntary manslaughter has been proved if you find beyond a reasonable doubt that: [¶] 1. The defendant killed without legal justification or excuse; [¶] 2. The defendant did not act with the intent to kill; [¶] 3. The defendant did not act with a conscious disregard for human life; AND [¶] 4. As a result of voluntary intoxication, the defendant was not conscious of (his/her) actions or the nature of those actions. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not unconscious. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] voluntary manslaughter).”

A trial court is not obligated to instruct sua sponte on theories unsupported or only weakly supported by the evidence. (See People v. Reeves (2001) 91 Cal.App.4th 14, 51.) Here, there was no evidence Garcia was intoxicated to the point of unconsciousness. Quite the contrary, the evidence established people understood what he said, that they walked with him and rode in a car with him at various times throughout the day, and that he had sufficient control of his body to forcibly control other people at will. Moreover, in his admission to Siringo, Garcia demonstrated sufficient presence of mind to realize what he had done and plan accordingly. Just minutes after he beat Pascoe into unconsciousness, he told Siringo that he had just killed someone and needed to flee to San Bernardino, which is in fact where he was when he surrendered on the outstanding warrant. As in the Abilez case, we conclude the trial court had no sua sponte duty to instruct the jury on involuntary manslaughter under a theory of voluntary intoxication to the point of unconsciousness because there was no evidence Garcia was intoxicated to the point of unconsciousness when he killed Pascoe.

In this case, the trial court gave CALCRIM No. 625, the standard instruction on involuntary manslaughter as a result of voluntary intoxication. This instruction corresponds with Penal Code section 22 , which limits the introduction of evidence of voluntary intoxication in this way: “Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought.” Thus, the court properly instructed the jury on the “general principles of law that [were] closely and openly connected with the facts presented at trial. [Citations.]” (People v. Ervin (2000) 22 Cal.4th 48, 90.) There was no instructional error.

At trial, counsel also challenged the constitutionality of Penal Code section 22. Garcia does not reassert this issue on appeal. Therefore, we do not address the issue or otherwise consider the constitutionality of Penal Code section 22 in this opinion.

Furthermore, trial counsel need not request certain jury instructions simply to forestall a claim of ineffective assistance of counsel. It has been said that “[c]ounsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile.” (People v. Price (1991) 1 Cal.4th 324, 387.) In the absence of any evidence to support giving CALCRIM No. 626, or some other pinpoint instruction or proposed modification to include the same legal principles, the trial court would have correctly denied counsel’s request for such an instruction. Consequently, we reject Garcia’s related ineffective assistance of counsel claim.

Accidental Homicide

CALCRIM No. 511 states, “The defendant is not guilty of (murder/[or] manslaughter) if (he/she) killed someone by accident while acting in the heat of passion. Such a killing is excused, and therefore not unlawful, if, at the time of the killing: [¶] 1. The defendant acted in the heat of passion; [¶] 2. The defendant was (suddenly provoked by ___ [or] suddenly drawn into combat by ____ ); [¶] 3. The defendant did not take undue advantage of _____ ; [¶] 4. The defendant did not use a dangerous weapon; [¶] 5. The defendant did not kill _____ in a cruel or unusual way; [¶] 6. The defendant did not intend to kill _____ and did not act with conscious disregard of the danger to human life; [¶] AND [¶] 7. The defendant did not act with criminal negligence.” (CALCRIM No. 511, Excusable Homicide: Accident in the Heat of Passion, Vol. I, p. 195.)

At trial, defense counsel requested the court give CALCRIM No. 511 because the court had given other instructions on heat of passion and because counsel challenged the evidence of his client’s intent to kill. As counsel stated, “[W]hat we have here is we have a fight. My client punches him twenty times and he dies. Now I’m arguing that it was an accidental death; that my client didn’t intent to kill him. He didn’t disregard the consequences and consciously disregard the danger.” Counsel acknowledged there were facts that undermined his position, but argued “there’s a reasonable inference that can be argued from the evidence” sufficient to warrant an instruction on accidental homicide. The trial court disagreed, concluding there were insufficient facts to warrant giving the instruction, and denied counsel’s request.

On appeal, Garcia contends the court’s refusal to give CALCRIM No. 511 constitutes reversible error. We agree with the trial court’s determination of the issue.

A prerequisite to giving any jury instruction is sufficient evidence that makes the instruction both relevant to the pertinent legal theories and necessary to a just result. “It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. [Citations.]” (People v. St. Martin (1970) 1 Cal.3d 524, 531.) There must be substantial evidence in support of an instruction, and “‘[s]ubstantial evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence that a reasonable jury could find persuasive.’ [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 645.)

Garcia relies on People v. Hampton (1929) 96 Cal.App. 157 (Hampton), to argue that the defense of excusable homicide was “certainly a defense on which [defense counsel] relied, and there was “substantial evidence’ in the sua sponte instructional sense — that is, evidence beyond minimal or the insubstantial — to support the instruction.” In Hampton, the defendant removed his hat and let out a yell as he entered a pool hall. A patron of the pool hall complained to the defendant about his conduct, and the defendant hit him in the mouth and nose. When Wesley Blake, one of the defendant’s friends, reprimanded him for his conduct, a verbal argument started between them, which resulted in the defendant knocking Blake to the floor. There was conflicting testimony about whether Blake was in the process of getting up, or whether he had already stood up, taken a swing, and perhaps even hit the defendant, but regardless of these facts, it was conceded that the defendant hit Blake a second time. The second blow knocked Blake backward and out of the front door of the pool hall. When Blake fell, he hit the sidewalk, which knocked him unconscious, and he died the following day. At trial, the court denied the defendant’s request for an instruction on excusable homicide “[w]hen committed by accident and misfortune in the heat of passion . . . .” (Hampton, supra, 96 Cal.App. at p. 159.)

The appellate court noted that in addition to the court’s refusal to give an instruction on accidental death, the court gave another instruction that included the following language: “‘And when the mortal blow, though unlawful, is struck in the heat of passion, excited by a quarrel, sudden and of sufficient violence to amount to adequate provocation, the law, out of forbearance for the weakness of human nature, will disregard the actual intent, and will reduce the offense to manslaughter. In such case, although the intent to kill exists, it is not that deliberate and malicious intent which is an essential element in the crime of murder.’” (Hampton, supra, 96 Cal.App. at p. 159.) The appellate court determined that this instruction, [t]he gist of [which] was the direct contrary to section 195 of the Penal Code, in that by such statute ‘homicide is excusable . . . when committed . . . in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken,’ etc.” (Id. at pp. 159-160.) The court explained, “Considering the evidence in the case, it is apparent that to instruct the jury that if the homicide in question was committed ‘in the heat of passion, excited by a quarrel, sudden and of sufficient violence to amount to adequate provocation,’ merely had the effect of reducing the crime to that of manslaughter, to all intents and purposes was a direction to the jury to find the defendant guilty of that crime.” (Id. at p. 160.) Thus, the appellate court decided that the circumstances surrounding the homicide warranted an instruction on excusable homicide as defined in Penal Code section 195, and that the trial court had erred by refusing such an instruction. (Ibid.)

We find the Hampton case inapposite. True, the witnesses testified Garcia and Pascoe got into a heated argument, an argument that had something to do with religion and Pascoe’s feminine appearance, at least in Garcia’s eyes, and they exchanged threats and challenges. However, when Crockett raised his head just a few minutes later to find out what was going on, Garcia, the larger of the two, was sitting on top of Pascoe’s head and repeatedly punching Pascoe. He continued to punch Pascoe notwithstanding the fact that Pascoe was not punching him back. When Crockett told Garcia to stop hitting Pascoe, Garcia yelled at him to mind his own business, and he continued to punch Pascoe in the face and head for a few more minutes.

Garcia also cites People v. Cooley (1962) 211 Cal.App.2d 173, disapproved on other grounds in People v. Lew (1968) Cal.2d 744. However, the appellate court affirmed the trial court’s refusal to give the instruction without much explanation, and Garcia fails to explain how the case bolsters his argument.

At trial, Garcia acknowledged that he intentionally hit Pascoe, but claimed he lacked the intent to kill, claiming self-defense or acts committed while under the heat of passion. The jury found him not guilty of murder and guilty of voluntary manslaughter. However, there was no evidence to support the court’s giving an instruction on accidental death while acting in the heat of passion. Garcia intentionally hit Pascoe at least 20 times in the face and head. In fact, he used his size advantage to pin Pascoe down and keep him from retaliating, and he continued to hit Pascoe after Crockett asked him to stop. Thus, the trial court correctly refused defense counsel’s request for CALCRIM No. 511.

III DISPOSITION

The judgment is affirmed.

WE CONCUR: BEDSWORTH, J., MOORE, J.


Summaries of

People v. Garcia

California Court of Appeals, Fourth District, Third Division
Jul 28, 2008
No. G038469 (Cal. Ct. App. Jul. 28, 2008)
Case details for

People v. Garcia

Case Details

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

Court:California Court of Appeals, Fourth District, Third Division

Date published: Jul 28, 2008

Citations

No. G038469 (Cal. Ct. App. Jul. 28, 2008)