Opinion
B158740. B168742.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. ALVARO GARCIA, JR., Defendant and Appellant. In re ALVARO GARICA, JR., on Habeas Corpus.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant, Appellant and Petitioner. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc L. Nolan, Supervising Deputy Attorney General, and Susan Sullivan Pithey, Deputy Attorney General, for Plaintiff and Respondent.
Alvaro N. Garcia appeals his conviction and sentence on two counts of lewdness upon a minor and one count of sending harmful matter over the internet. On appeal, Garcia raises three matters, the court: (1) erred in denying him the opportunity to present third-party culpability evidence; (2) violated Penal Code[] section 654 in sentencing him on all three counts; and (3) miscalculated Garcias presentence custody credits. We find no reversible error with respect to the admission of third-party culpability evidence because Garcia failed to demonstrate that evidence had any direct or circumstantial connection to the crimes and in any event, failure to admit such evidence amounted to harmless error. Likewise, Garcia has not demonstrated error in the courts failure to apply section 654 because sufficient evidence demonstrated all three counts were separate and distinct crimes. Consequently, we affirm as to these two claims. This matter, nonetheless, is remanded as to the third issue because the court miscalculated the appropriate number of presentence custody credits.
All statutory references are to the Penal Code unless otherwise indicated.
On a petition for writ of habeas corpus, Garcia asserts his counsel was ineffective for failing to investigate and present third-party culpability evidence.[] Garcia has failed to demonstrate his counsel was deficient and further that his counsels performance resulted in prejudice. Accordingly, we deny the petition.
By prior order of this court, Garcias appeal and petition for writ of habeas corpus are considered together.
FACTUAL AND PROCEDURAL HISTORY
On July 24, 1999, twelve-year-old Danielle M. met Garcia over the internet. They conversed through an "instant messaging" service about sexual matters. In a series of instant messages, Garcia informed Danielle M. that he was an Hispanic male in his twenties, and that he lived in Los Angeles. Danielle M. informed Garcia she was 12 years old and she lived in Lancaster.
About the same time, Danielle M. was also exchanging internet communications of a sexual nature with other individuals, including someone using the screen name "BESTMAN69" and someone by the name of Edgar Lopez who stated he lived in San Francisco.
According to Garcia, he was using the screen name "GOGOY2", but he told Danielle M. his name was "Al." Garcia and Danielle M. discussed meeting to have sexual intercourse. They agreed to meet the next day in Lancaster at a motel near Danielle M.s apartment. They had a subsequent telephone conversation in which they finalized the arrangements for meeting. Danielle M. told Garcia she would be wearing red and he explained he would be driving a gray pickup truck.
They met the next evening, July 24, 1999, at the Easy Eight Motel. Garcia registered in room 138. Upon entering the room, they engaged in vaginal intercourse for approximately 10 to 15 minutes. Garcia then instructed Danielle M. to turn over onto her stomach and they had anal intercourse for 5 to 7 minutes. Thereafter, Danielle M. turned over on her back and they had vaginal intercourse for 10 minutes. Shortly thereafter, Garcia left the motel.
A day or so later, Danielle M. told her mother, Sharon M. she had met an Hispanic male, called "Al", who was in his twenties over the internet and that they had engaged in sexual intercourse. Sharon M. subsequently discovered e-mail messages between Danielle M. and a man from San Francisco, Lopez. Sharon M. also found a photograph of male genitalia, which had been sent to Danielle M. over the internet. Sharon M. thought Danielle M. had met Lopez and had sex with him. Danielle M., however, denied meeting or having sex with Lopez or anyone from San Francisco.
Sharon M. took Danielle M. to the police. During a police interview, Danielle M. identified Garcia from a photographic line-up as the man she met at the motel with whom she had sexual intercourse on July 24, 1999. She also stated Garcia had several tattoos, including one of a cross, a pierced nipple and a front tooth that was longer than the others. She stated the man she met drove a gray truck and further stated she was wearing red when she met him.
The manager of the Easy Eight Motel found the receipt from July 24, 1999, which contained Garcias name, address and drivers license number. It also indicated Garcia had registered for room 138.
When police interviewed Garcia, he admitted meeting Danielle M. over the internet in July 1999 and that at the time he was using the screen name GOGOY2. He also stated that he spoke with Danielle M. over the telephone and that they agreed to meet in Lancaster at the Easy Eight Motel. He said he drove to Lancaster in his sisters gray truck and met Danielle M. and they had sex. He described Danielle M. as wearing a red mini skirt and claimed she looked older than 12 years old. Police photographs of Garcia reveal he has a tattoo of a cross and that one of his teeth is longer than his other teeth.
Garcia was arrested and charged with two counts of lewdness upon a minor and one count of sending harmful matter over the internet.
During the preliminary hearing, a police detective described Danielle M.s initial interview with police. The detective related that Danielle M. described her internet communications and a sexual encounter at the Easy Eight Motel on July 24, 1999. Danielle M. stated she met an Hispanic male from Los Angeles. Danielle M. also told police the person she communicated with over the internet called himself "Al" and used the screen name "BESTMAN69."
At trial, Garcia presented evidence he had never used the screen name "BESTMAN69." Consequently, Garcia sought to introduce third-party culpability evidence. Specifically, he wanted to introduce evidence Danielle M. had internet contacts with other individuals, including "BESTMAN69" as well as evidence of Sharon M.s belief that Danielle M. had met and had sex with someone other than Garcia. Garcia argued the preliminary hearing testimony in which the detective related Danielle M.s initial statement the person she met used the screen name "BESTMAN69," established a sufficient connection between a third party and the crime to warrant admission of the evidence.
The prosecution responded admission of the evidence was unwarranted. The prosecution argued that while Danielle M. may have initially been confused as to the screen name of the person she met, she had nonetheless clearly identified Garcia prior to and during trial as the person with whom she met and had sex with at the Easy Eight Motel on July 24, 1999, and that there was no evidence that she had met anyone else. The court agreed. The court found Sharon M.s belief that the man Danielle M. met was "BESTMAN69" was merely speculation. As to the preliminary hearing testimony, the court found that from its review of the hearing transcript, it was apparent that there was merely confusion about the screen names. The court further observed, "to go to third-party culpability evidence, what youre basically try to show somebody else is guilty. I think youve got to have more than just a motive. All youre telling me is there is some other pervert on the AOL line thats talking to [Danielle M.] but there is nothing connecting that person to crime thats alleged here. Thats the problem you have with third-party culpability."
Later in the trial, Garcia moved again to admit the evidence and/or for a continuance to further investigate the matter. Based on information gleaned from an FBI file during trial, Garcias investigator discovered "BESTMAN69" was a screen name used by a Gerardo Alonzo Martinez. The court rejected the request, finding: "its pretty clear . . . that she just was confusing the names. . . when I look at the totality of the evidence, the only thing you really have is a communication with somebody up North. But there is no evidence that that person came down here. That that person had any physical contact with the victim." The court concluded Garcia had not established a sufficient connection between a third party and the crimes.
The jury convicted Garcia on all three counts. The court sentenced him on all three counts to a term of 85 years to life.[]
Garcia had four serious prior convictions within the meaning of the three strikes law and had served a prior prison term to warrant a prison term enhancement.
Garcia appeals. Garcia also filed a petition for writ of habeas corpus.
DISCUSSION
I. Third-Party Culpability Evidence Claim.
A. The Appeal
On appeal, Garcia argues the trial court improperly excluded evidence that a third party may have committed the crimes and the courts refusal to allow him to present such evidence denied him his constitutional right to a fair trial, the right to present a defense and exculpatory evidence. As set forth below, we conclude the court did not abuse its discretion in denying Garcias request to present this evidence.
A criminal defendant has the right to present evidence that a third party is responsible for committing the crimes charged. To be admissible "the third party evidence need not show `substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendants guilt." (People v. Hall (1986) 41 Cal.3d 826, 833.) This notwithstanding, not all evidence however remote is admissible to prove third-party culpability. Evidence of "mere motive or opportunity to commit the crime in another person is insufficient" and need not be admitted. (Ibid.) To warrant admission, the defendant must show a direct or circumstantial evidence linking the third person to the crime. (Ibid.)
The decision on whether to admit this evidence rests within the discretion of the trial court and will not be reversed absent a showing of abuse. (Id. at p. 834.)
Here, Garcia sought to introduce evidence that someone else, specifically, "BESTMAN69" or Edgar Lopez conversed with Danielle M. over the internet and met her to have sex.
The court concluded, however, Garcia had failed to establish a sufficient link between the crimes and BESTMAN69, Edgar Lopez or anyone else. In our view, the court did not abuse its discretion in reaching this conclusion. To warrant admission, Garcia needed to present some admissible evidence that the person Danielle M. met at the Easy Eight Motel on July 24,1999, was either BESTMAN69 or someone other than Garcia. His evidence to establish such a link consisted of the speculation of Sharon M. that she "thought" her daughter had met Edgar Lopez. This speculation was laid to rest by Danielle M., who told her mother that she never met or had sex with Lopez.
Garcias other evidence was based on the testimony of the detective at the preliminary hearing that Danielle M. initially told police the person she met had the screen name of "BESTMAN69" and Garcias subsequent discovery that the person who used that screen name was a Gerardo Alonzo Martinez. Based on our review of the record in this matter, we agree with the trial courts observations as to this evidence. The trial court concluded, and we agree, Danielle M. exchanged sexually explicit internet communications with more than one individual, including Garcia, and that she was simply confused about the screen name of the person whom she met and had sex with at the Easy Eight Motel on July 24, 1999. She did not, however, suffer from any confusion as to the in-person identity of the perpetrator. She unequivocally identified Garcia as the person she met on the internet on July 23, 1999, and arranged to have sex with the next day.
Under Hall, third-party culpability evidence is not admissible where it shows only that another possesses the motive or opportunity to commit the crimes. As far as the crimes charged in this case, it is immaterial Danielle M. may have been having explicit internet conversations with another person, that she may have made plans to meet others for sex or that others were also under investigation by the authorities. To be admissible under Hall, the evidence must connect a third-party to the particular crimes charged. Here there is no genuine dispute as to the identity of Garcia as the person who contacted Danielle M. on July 23, 1999, via the internet and had sex with her on July 24, 1999, at the Easy Eight Motel. Not only did Danielle M. attest to these matters, Garcia admitted them to authorities. Moreover, their liaison was independently corroborated by motel records. Given the strong evidence presented at trial, it is simply inconceivable that a party other than Garcia committed these particular crimes.
Consequently, we cannot say the trial court erred in refusing to allow Garcia to present the third-party culpability evidence.
In any event, we further conclude any error in admitting this evidence was harmless under People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Cudjo (1993) 6 Cal.4th 585, 611-612 [Watson harmless error standard applies to errors in admitting third party culpability evidence].) As set forth above, the evidence presented in this matter against Garcia was overwhelming. In our view, even if Garcia would have been permitted to present evidence concerning "BESTMAN69," Edgar Lopez or another person, it is not reasonably probable Garcia would have received a more favorable result at trial.
B. Habeas Petition
Procedures and Standards for Habeas Corpus
Because a petition for writ of habeas corpus seeks to collaterally attack a preemptively final criminal judgment, the petitioner bears a heavy burden to plead and later prove sufficient grounds for relief. (People v. Duvall (1995) 9 Cal.4th 464, 474.)
Where as here, after considering the petition, the return and traverse, this court finds there are no disputed factual questions as to matters outside the trial record, the merits of the habeas corpus petition can be decided without an evidentiary hearing. (Id. at p. 478.)
Garcia Failed to Demonstrate He Was Prejudiced By His Counsels Conduct
Garcia contends his trial counsel rendered ineffective assistance when counsel failed to fully investigate and present the third-party culpability evidence.
To establish a claim of ineffective assistance of counsel, the defendant must prove both counsels representation was objectively deficient, below a reasonable standard of care under prevailing professional norms, and prejudice flowing from the deficient performance, that is, but for counsels errors, the defendant would have received a more favorable result. (People v. Waidla (2000) 22 Cal.4th 690, 718.) Defendant has the burden of proving an ineffective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
Given the difficulties inherent in making this evaluation, this court indulges in a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance; the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered a sound trial strategy." (People v. Thomas (1992) 2 Cal.4th 489, 530-531.)
Moreover, a reviewing court need not determine "whether counsels performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (In re Fields (1990) 51 Cal.3d 1063, 1079.) Defendant must affirmatively demonstrate prejudice. It is not sufficient for the defendant to show the error had some "conceivable effect" on the outcome of the proceeding; defendant must prove that there is a "reasonable probability," that absent the errors the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)
With these principles in mind, we turn to Garcias claim of ineffective assistance. Specifically, he claims his counsel was ineffective for failing to fully investigate the identity of "BESTMAN69" prior to trial. A review of the record discloses his counsel investigated this matter during the trial and that his investigator discovered the identity of the person using the screen name BESTMAN69 as Gerardo Alonzo Martinez. In arguing to present the BESTMAN69 identity evidence to the jury, counsel presented the court with a photo of the person using the BESTMAN69 screen name. The court observed the person in the photo did not sufficiently resemble the person Danielle M. had identified as the individual who had committed the crimes, and thus, the court denied Garcias request to present the evidence. In his petition, Garcia has failed to demonstrate how discovery of this evidence prior to trial would have changed the courts ruling.
Furthermore, Garcia has not shown what evidence a more thorough investigation of this matter might have disclosed. In fact, in requesting a continuance to conduct a further investigation, his counsel conceded that he was uncertain what if anything an additional investigation might disclose. Garcias failure even to suggest what admissible third party culpability evidence might have been unearthed in a subsequent investigation defeats his ineffective assistance of counsel claim.
Based upon our review of the trial court proceedings and argument submitted with the writ petition, we conclude Garcia has failed to establish a reasonable probability that he suffered prejudice as a result of his counsels conduct. Such failure is fatal to his claim he was deprived of effective assistance of counsel. Garcia has not satisfied his burden to prove sufficient grounds for extraordinary relief, and accordingly he is not entitled to a writ of habeas corpus.
II. Section 654 Claim
The Court Did Not Err in Failing to Stay Garcias Sentences Under
On appeal, Garcia argues section 654 prohibited the court from ordering separate sentences for two counts of lewdness upon a minor and one count of sending harmful matter over the internet because all three offenses were part of an indivisible course of conduct. Garcia claims all three offenses had one primary objective—sexual gratification and thus he was improperly subject to multiple punishment in violation of section 654.[] We do not agree.
Section 654 provides: "An act or omission that is punishable in different ways by different provisions of the law shall be punished under the provision that provides the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ."
Section 654 prohibits multiple punishment for multiple statutory violations produced by the "same act or omission." Nonetheless, because section 654 is intended to ensure punishment commensurate with culpability, its protections have been extended to situations where the defendant commits several offenses during an "indivisible course of conduct." (People v. Harrison (1989) 48 Cal.3d 321, 335.) The defendants "intent and objective" determine whether the transaction is indivisible. If all of the offenses were incidental to, or were the means of accomplishing or facilitating one objective defendant may be found to have a single intent and should therefore be punished only once. (People v. Neal (1960) 55 Cal.2d 11, 19.) If on the other hand, the defendant is found to have harbored separate and multiple criminal objectives, including simultaneous ones, the defendant may be punished for each offense "even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." (People v. Beamon (1973) 8 Cal.3d 625, 639; People v. Latimer (1993) 5 Cal.4th 1203, 1216; see e.g., People v. Coleman (1989) 48 Cal.3d 112, 162.)
In the context of sex offenses, the courts have departed from the traditional section 654 analysis. In People v. Perez (1979) 23 Cal.3d 545, the court examined whether section 654 precluded multiple punishment for separate sex crimes committed during the same criminal venture pursuant to the same intent and objective to obtain sexual gratification. The Perez court concluded multiple, separate sex crimes are not considered to be a "single course of conduct" for the purposes of section 654, and consequently each may be punished separately. (Id. at p. 552.) The court reasoned:
"Such an intent [sexual gratification] and objective is much too broad and amorphous to determine the applicability of section 654 . . . . To accept such a broad, overriding intent and objective to preclude punishment for otherwise clearly separate offenses would violate the statutes purpose to insure that a defendants punishment will be commensurate with his culpability. . . . [& para;] A defendant who attempts to achieve sexual gratification by committing a number of base criminal acts on his victim is substantially more culpable than a defendant who commits only one such act. We therefore decline to extend the single intent and objective test of section 654 beyond its purpose to preclude punishment for each such act." (Id. at pp. 552-553.)
In view of Perez, section 654 does not prohibit separate punishment for multiple sex offenses, which though closely connected in time and part of the same criminal endeavor are separate and distinct, and which are not committed as a means of committing any other sex offense, and do not facilitate nor are merely incidental to the commission of another sex offense. (Id. at pp. 553-554.)
Here with respect to the count for sending harmful material over the internet, we have no doubt this constituted a separate and distinct offense from the other crimes, irrespective of the holding in Perez. The internet crime occurred the day before the sex crimes and involved significantly different conduct such that even if the aim was to obtain sexual gratification, the internet offense could not be considered part of the same, indivisible course of sexual acts for the purposes of section 654.
Concerning the lewdness counts, we also conclude the trial court did not err in failing to apply section 654. One of the counts was based on one of the acts of vaginal intercourse, while the other count was based on the act of anal intercourse. While the broad objective of each act may have been similar, that is, Garcias sexual gratification, sufficient evidence presented at trial demonstrates the crimes were separate and distinct. Garcia has not shown either act facilitated the other, was a means to commit the other or was merely incidental to the other. Though the crimes occurred during the same intimate encounter, each sex act was complete before the other began. Consequently, under Perez separate sentences for each crime were appropriate pursuant to section 654.
III. Presentence Custody Credit Claim
On appeal, Garcia also asserts the trial court erred in calculating his presentence custody credits because it awarded him only 772 days. He maintains he was entitled to a total of 888 days. He is correct.
As the attorney general concedes, at sentencing a defendant is entitled to receive custody credits for the number of predisposition days in custody, and for the purposes of predisposition custody credits, a partial day in actual custody is treated as a whole day. (People v. Smith (1989) 211 Cal.App.3d 523, 526.) In addition, in terms of conduct credits, a defendant convicted under section 667.5 is entitled to accrue conduct credits at a rate of up to 15 percent. (See § 2933.1; see also People v. Cooper (2002) 27 Cal.4th 38, 48.)
Garcia was in custody from December 1, 1999, until his sentencing on January 11, 2002. Thus, he was in actual custody for 773 days rather than the 772 calculated by the sentencing court.[] He, therefore, was entitled to 773 days of actual custody. Moreover because Garcia was convicted of two section 667.5 qualifying felonies, he was entitled to conduct credit. Fifteen percent of 773 days is 115 days. (See People v. Ramos (1996) 50 Cal.App.4th 810, 816 [15 percent limitation is calculated to the greatest number of whole days].) Thus, Garcia was entitled to a total of 888 days of presentencing custody credit, consisting of 773 actual custody days plus 115 days of conduct credit. The abstract of judgment must be modified to reflect the accurate number of days.
The year 2000 was a leap year.
DISPOSITION
The petition for writ of habeas corpus is denied. The judgment is vacated and remanded to the trial court. On remand, the trial court is directed to (1) vacate the abstract of judgment; and (2) order a new abstract of judgment pursuant to the views expressed in this opinion about the calculation and award custody credits. The court is further ordered to direct the Clerk of the Superior Court to prepare and send a new abstract of judgment to the Department of Corrections. The judgment is affirmed in all other respects.
We concur: PERLUSS, P.J. and JOHNSON, J.