Opinion
C090700
06-21-2021
THE PEOPLE, Plaintiff and Respondent, v. JULIAN JONAH GARCIA, Defendant and Appellant.
NOT TO BE PUBLISHED
Super. Ct. No. 16FE021333
RENNER, J.
Following a shooting outside of a nightclub involving multiple gunmen, a jury convicted defendant Julian Jonah Garcia of murder, two counts of attempted murder, possession of a firearm by a person convicted of a felony, and found true the firearm enhancements associated with the murder and attempted murder counts. Defendant appeals arguing the trial court abused its discretion in denying his motion for a mistrial after a prosecution witness testified that one of the gunmen had a gang-related tattoo in contravention of the court's in limine ruling excluding all gang-related evidence from the People's case-in-chief. Defendant further argues the trial court erred in failing to give an admonition after striking this testimony outside the presence of the jury. For the reasons we shall explain herein, we discern no abuse of discretion. Accordingly, we affirm the judgment.
I. BACKGROUND
The People's April 6, 2018 information in pertinent part charged defendant, Orlando Vidana, and German Zamora-Canada with murder (Pen. Code, § 187, subd. (a)-count one) and three counts of attempted murder (§§ 664, 187, subd. (a)-counts two-four). The information further charged defendant with one count of possession of firearm by a felon (§ 29800, subd. (a)(1)-count five). The information alleged that defendant and German Zamora-Canada “used, and intentionally and personally discharged a firearm” proximately causing great bodily injury and/or death with regard to counts one through four (§ 12022.53, subds. (b)-(d)). Finally, the information alleged that defendant had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12).
Undesignated statutory references are to the Penal Code.
The matter was jointly tried to a jury. At trial, the People presented testimony establishing that a shooting occurred in the early morning hours of October 9, 2016, killing Cesar and wounding Alexis, Jose, and Marcos. Cesar was working at a taco truck outside the nightclub and was shot while attempting to turn off the propane so that they could drive the taco truck away after the shooting started. The remaining victims had engaged in arguments with different individuals that night, but were not armed. Two different sizes of bullet casings were recovered from the scene: 9 millimeter and.40 caliber. These casings were from only two guns, which appeared to be wielded by two different gunmen.
Catherine identified defendant as the shooter from a photo line-up, but was not able to identify him at trial. She saw him shoot a man who was laying defenseless on the ground, while another person yelled, “Don't shoot.” She only saw one shooter. Catherine saw the shooter get into a Jeep and flee with several others. Consistent with the parties' stipulation that defendant was wearing a “light-colored button-down shirt and dark pants” when he entered the club around 10:20 p.m., Juan told detectives that one gunman was wearing a white shirt, dark jeans, and had short or no hair. He saw him fire initial warning shots and then point and aim before shooting. Jesus saw a man with a long-sleeved, collared, and button-down shirt and short hair reach under his shirt like he had a gun, but Jesus did not see a gun because he ran. According to Detective Jeffrey Griggs, defendant was a big guy, approximately 250 to 260 pounds.
This individual had hair that was buzzed shorter than Jesus, who used a No. 2 guard on his hair, making it approximately one-fourth of an inch long.
Marcos identified codefendant Zamora-Canada as the shooter who had been wearing a Spain jersey and who he saw flee in a small light-colored Jeep or SUV. Marcos “bear-hugged” that man after he saw him pull a gun from under his shirt and was shot in the leg. He did not see who shot Alexis, Jose, or the man from the taco truck who died. Veronica testified that the shooter had a tattoo with four dots under his left eye, as well as tattoos on his neck. She testified the dot tattoo was “gang-related, ” but the court struck that testimony, as we shall discuss herein. Zamora-Canada had a similar tattoo under his left eye and tattoos on his neck.
Police review of security camera footage from the club put Zamora-Canada in a Spain jersey with Garcia and Vidana that night.
Consistent with the parties' stipulation that Zamora-Canada had been wearing a Spain jersey when he entered the club around 10:30 p.m., Jesus testified one of the guys with guns was wearing a red athletic shirt with a number on the sleeve. Jennifer thought Zamora-Canada might be the gunman in a photo array police showed her. At trial, she testified either Zamora-Canada or Vidana was the gunman. Jennifer had told authorities that she saw the gunman shooting at her husband and brothers-in-law. She saw the gunman flee with several others in a silver Jeep Grand Cherokee and provided a partial license plate number.
The partial license plate matched Orlando Vidana's Jeep Grand Cherokee, which was photographed near the nightclub that night. The Jeep left the nightclub and then made an illegal U-turn and returned to the club. The shooting occurred thereafter. Police searched the Jeep and found a live 9-millimeter round of the same brand found at the crime scene. Gunshot residue was also detected in the driver's seat and rear passenger seat areas. DNA consistent with defendant was recovered from the driver's seat belt, steering wheel, and a pink wristband. A police search of a residence where Zamora-Canada had been staying revealed.40-caliber ammunition of the same brand used in the shooting. Neither of the firearms used in the shooting were recovered.
Authorities located the Jeep on October 20th. It had been left in an apartment complex in Vallejo that had no apparent connection to Vidana. Its license plates had been removed and replaced with old dealer plates.
Police arrested defendant and Vidana without incident. Authorities arrested Zamora-Canada after a car chase wherein Zamora-Canada repeatedly exclaimed to the driver, Alexander, things like: “ ‘I'm going away for life. I am not going back.' ” The parties stipulated that both defendant and Zamora-Canada had felony convictions making it illegal for them to possess firearms.
Defendant did not present any evidence in a defense case, but his codefendants called Johnny, who was working as a security guard at the club on the night in question. Johnny heard gunshots and gave varying accounts of the shooter's description, with heights ranging from 5 feet 6 inches to 6 feet 5 inches tall. The shooter might have had slicked-back hair, but he also testified that the shooter either had a buzz cut or was bald and had a goatee. The shooter was stocky, weighing about 270 pounds. This individual had been wearing a white shirt or dress shirt and fired four shots into a man lying on the ground. Johnny told police the shooter was associated with a green or black Honda. He did not think the shooter acted in self-defense. However, one of the victims had been causing trouble at the club all night.
At the close of evidence prior to instruction and argument, the court had the codefendants stand so that the jury could observe them.
While deliberating, the jury requested and received a readback of testimony from Veronica, Jennifer, Juan, Johnny, and Detective Griggs. The jury ultimately found defendant guilty of first degree murder, attempted murder as charged in counts two and four, being a felon in possession of a firearm, but not guilty of the attempted murder from count three. The jury determined the firearm enhancements associated with counts one, two, and four were true. The jury found codefendant Zamora-Canada guilty of second degree murder, the attempted murder from count three, of being a felon in possession of a firearm, and found true the associated enhancements. The jury found codefendant Vidana not guilty of the charged murder and not guilty of the attempted murder in count four, but could not reach verdicts on the remaining counts associated with Vidana. In bifurcated proceedings, the trial court determined defendant had suffered a prior strike.
On October 11, 2019, the trial court sentenced defendant to an indeterminate prison term of 125 years to life comprised of 25 years to life for murder, doubled to 50 years to life because of the prior strike, plus three consecutive terms of 25 years to life for each of defendant's firearm enhancements from counts one, two, and four. The trial court also sentenced defendant to a consecutive aggregate determinate term of 24 years comprised of the upper term of nine years for count two, doubled to 18 years for the prior strike, plus two years and four months doubled to four years and eight months for count four and eight months doubled to one year and four months for count five. The court imposed a $5,000 restitution fine (§ 1202.4, subd. (b)) and a $5,000 suspended parole revocation restitution fine (§ 1202.45). The court retained jurisdiction to award restitution, and the remaining fines and fees were waived. Defendant timely appealed.
II. DISCUSSION
Defendant argues the trial court prejudicially erred and abused its discretion in denying his motion for a mistrial after a prosecution witness (Veronica) testified that one of the gunmen involved in the shooting had a gang-related tattoo in contravention of the court's in limine ruling excluding all gang-related evidence from the People's case-in-chief. Defendant argues the trial court further erred in failing to admonish the jury after striking this testimony outside their presence. As we shall explain, we disagree.
A. Background
Prior to trial, the People moved in limine to exclude any mention of the victims having gang affiliation without an opportunity to litigate the issue. This prompted a discussion of the People's witness's statement concerning a tattoo on Zamora-Canada's face, that he was a Norteño, and that the victims may have been Sureños, which could be relevant to Zamora-Canada's claim of self-defense. The People clarified their witness would relay a physical description of one of the shooters, including the four-dot tattoo below his left eye, but would not mention any potential gang affiliation. Ultimately, the court ruled no gang information would be allowed in the People's case-in-chief, but that the defense would be allowed an opportunity to consider independently presenting gang evidence relative to a claim of self-defense.
During the People's case-in-chief, Veronica testified to seeing the gunman. He was Hispanic, aged 20-25, with a short ponytail, and wearing a red shirt. Veronica recalled that he had a tattoo. When questioned about this, the following exchange occurred:
“Q[:] You said he had a tattoo. What do you remember about a tattoo or tattoos?
“A[:] In his left side under his eye.
“Q[:] What do you remember about a tattoo under his left eye?
“A[:] I just noticed a tattoo.
“Q[:] Do you know what kind of tattoo, or what it was of?
“A[:] A gang-related.
“Q[:] Specifically, can you tell me what it looked like?
“[Counsel for Zamora-Canada]: Your Honor, may I be heard for a second?
“[The Court]: No.
“BY [Deputy District Attorney:]
“Q[:] Can you tell me what it looked like?
“A[:] It was four dots.
“Q[:] I am going to have you look at the gentleman at the table on the far side in the gray shirt and blue tie. [¶] Can you see him ok?
“A[:] Yeah.
“Q[:] Can you see his face okay?
“A[:] Yeah.
“Q[:] Do you see any tattoos on his face?
“A[:] Yeah.
“Q[:] Do you recognize the tattoo on his face?
“A[:] It's kind of faded, so I can't see it.”
The court then took a break, excusing the jury and allowing the witness to approach Zamora-Canada to get a better look at his face. During this break, Zamora-Canada moved for a mistrial because the witness had violated the court order by identifying the tattoo as a “ ‘gang tattoo.' ” The People explained that Veronica had been specifically instructed not to mention anything gang related, including the significance of the tattoo or her opinions concerning the origins of the fight at the club. The court clarified the testimony Veronica had given and then took a break. Following that break, the court offered to immediately strike the testimony and admonish the jury. Alternatively, the court offered to continue with the trial and deal with the mistrial motion later in the day. Defendant's counsel stated he was not requesting an immediate admonishment, and the court elected to defer the matter to later.
Following the break, Veronica testified that she had a closer look at codefendant Zamora-Canada during the break, and his tattoo was similar to the one she saw with the four dots. The shooter also had tattoos on his neck, as did Zamora-Canada.
The court returned to Zamora-Canada's mistrial motion after the close of testimony that day. Both defendant and Vidana joined the motion, with defendant arguing the jury would conclude that defendant was with Zamora-Canada and therefore must also have had gang affiliation. Defendant argued no instruction could cure the prejudice. In response, the court highlighted that defendant had violated the in limine ruling by including the statement “ ‘Where are you from?' ” in his opening argument PowerPoint. However, the court agreed with defendant's response that the jury had been instructed that nothing the attorneys said was evidence. The court indicated it could similarly instruct the jury the witness's statement was not evidence. Zamora-Canada disagreed, arguing that denying his mistrial motion would be profoundly unfair because “the word ‘gang' was directly stated about my client” and the resulting prejudice could not be cured by instruction. An instruction would only make it worse by highlighting the issue.
Ultimately, the court denied Zamora-Canada's mistrial motion, indicating the reference had been quick and given in such a way that even the court did not initially register what it was. The court would strike the illicit testimony and preferred to instruct the jury about that striking because otherwise they would not know about it. However, the court would defer to the defendants' wishes on any such instruction. Zamora-Canada argued the court must minimally grant a mistrial as to himself because he would now be forced to offer gang evidence. The court disagreed, indicating the error would be easy to cure with an instruction and that the mere reference to a gang-related tattoo did not equate to someone being in a gang or that what happened had anything to do with a gang.
The court also denied defendant and Vidana's mistrial motions, indicating that there was even less prejudice as to these defendants given that the remark was directed at Zamora-Canada. The court did not believe a juror would find defendant and Vidana had gang affiliation by merely being with Zamora-Canada. There was further discussion regarding prejudice and possible remedies. The People agreed the testimony should be stricken, but deferred on whether the jury needed to be instructed. Ultimately, the court struck the “gang-related” testimony and the question preceding it. It advised counsel that the court would continue to entertain ideas on how to cure the resulting prejudice and that they could revisit the matter the next court day.
The next court day Zamora-Canada filed a request for reconsideration of the mistrial motion, which defendant and Vidana joined. Defendants argued they were near the beginning of the trial and the prejudice associated with the word gang necessitated the granting of the motion. The trial court disagreed, reiterating its suggestion that the jury be given a pinpoint instruction to disregard anything related to gangs.
The court again returned to the gang issue following the close of the People's case-in-chief, wherein Zamora-Canada's attorney stated he was considering asking gang questions of the upcoming witness, Johnny. Zamora-Canada ultimately did not ask any such questions, and thereafter, the court inquired concerning admonishing the jury because no counsel had requested any special instructions. The court suggested instructing the jurors: “ ‘No evidence has been presented in this case identifying any witness or party as a gang member. No evidence has been presented to prove that any activity testified to had a gang purpose or was related to gangs in any way. Therefore, the jury may not consider the subject of gangs or gang activity as it relates to this case or their verdict.' ”
Both defendant and Vidana's attorney stated they would want the proposed instruction, but Zamora-Canada's counsel objected. Zamora-Canada further requested that, if the instruction were given, the court also instruct: “ ‘The issue or word “gang” cannot even come up in your deliberations. Should it come up in your deliberations in any manner[, ] way, shape, or form, it is to be reported to the [c]ourt immediately.' ” Because the testimony concerned Zamora-Canada, it was the People's position that his “desires should carry the day.” The court concurred that it would abide by Zamora-Canada's wishes and not give the pinpoint instruction, highlighting that while defendant and Vidana had requested the court's proposed instruction, the stricken testimony did not implicate them. Neither defendant nor Vidana's attorney objected to this decision.
B. Analysis
“A trial court should grant a motion for mistrial ‘only when “ ‘a party's chances of receiving a fair trial have been irreparably damaged' ”' [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction' [citation]. ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.] Accordingly, we review a trial court's ruling on a motion for mistrial for abuse of discretion.” (People v. Avila (2006) 38 Cal.4th 491, 573.) A trial court abuses its discretion when it exercises its “ ‘ “discretion in an arbitrary, capricious, or patently absurd manner that result[s] in a manifest miscarriage of justice, ”' ” or when its ruling “ ‘falls outside the bounds of reason.' ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
Defendant contends the trial court abused its discretion in denying his motion for mistrial such that his right to a fair trial was violated because Veronica's testimony that the gunman had a “gang-related” tattoo similar to Zamora-Canada's tattoo could have caused the jury to convict defendant “on an improper inference that his apparent affiliation with a criminal street gang established that he was the type of person who would commit the charged shootings.” Defendant cites numerous cases discussing the prejudicial nature of gang-related evidence. While it is true, as defendant asserts, that evidence of gang membership poses a substantial risk of prejudice (People v. Hernandez (2004) 33 Cal.4th 1040, 1049) and such evidence may be “highly inflammatory” (People v. Cox (1991) 53 Cal.3d 618, 660, overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22), we do not agree that defendant has established that the trial court abused its discretion in denying the mistrial motion.
Here, the jury heard no evidence that defendant was associated with a gang. Rather, the record reflects that when Veronica, a lay witness, was asked, “Do you know what kind of tattoo, or what it was of?” she stated, “A gang-related.” She then went on to describe that tattoo as consisting of four dots and that codefendant Zamora-Canada had a tattoo similar to the one she observed on the shooter. Thus, Zamora-Canada was the only defendant implicated by this testimony, which was not expert testimony and did not implicate Zamora-Canada as a current gang member, nor suggest that the shooting at issue was gang related. The court struck the question and testimony outside the presence of the jury, and ultimately acquiesced to Zamora-Canada's wishes that the jury not be given a curative instruction because of concerns it would highlight the issue. This was within the court's discretionary powers. (See, e.g., People v. Vernon (1979) 89 Cal.App.3d 853, 865.)
Moreover, we find it highly unlikely the trial court's failure to admonish the jury irreparably damaged defendant's chances at a fair trial. First, as previously discussed, the fleeting reference to the tattoo being “gang-related” implicated defendant's codefendant Zamora-Canada, not defendant. Second, the jury requested a read-back of Veronica's testimony and was instructed in CALCRIM No. 222 that the jury had to accept that readback as accurate. Because we presume the jury understood and followed this instruction (People v. Holt (1997) 15 Cal.4th 619, 662), we must conclude that the jury accepted the version of Veronica's testimony that did not include the complained-of remark.
Finally, given the extensive evidence implicating defendant, including eyewitness testimony and the evidence recovered from codefendant Vidana's Jeep, we do not believe Veronica's fleeting remark altered the outcome of the proceedings. (See People v. Rhinehart (1973) 9 Cal.3d 139, 152, disapproved on other grounds in People v. Bolton (1979) 23 Cal.3d 208, 213 [witness's mentioning of victim's employer was not sufficiently prejudicial to justify mistrial or jury admonition]; cf. People v. Mendoza (2000) 24 Cal.4th 130, 162-163 [trial court did not err in allowing “fleeting and minor” references to gang affiliation that were relevant to the witness's state of mind and “did not result in gross unfairness so as to amount to a denial of defendant's constitutional right to a fair trial”].)
III. DISPOSITION
The judgment is affirmed.
We concur: MAURO, Acting P. J., KRAUSE, J.