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People v. Garcia

California Court of Appeals, Fifth District
Aug 17, 2023
No. F084151 (Cal. Ct. App. Aug. 17, 2023)

Opinion

F084151

08-17-2023

THE PEOPLE, Plaintiff and Respondent, v. JOEL RUBEN GARCIA, Defendant and Appellant.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. F20904576. Alvin M. Harrell III, Judge.

Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jesica Y. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

LEVY, Acting P. J.

INTRODUCTION

In 2020, a jury convicted appellant Joel Ruben Garcia of the following four felonies involving a female minor (the Victim):

1. A forcible lewd act (Pen. Code, § 288, subd. (b)(1); count 4);

All future statutory references are to the Penal Code unless otherwise noted.

2. Two counts of committing a lewd act (§ 288, subd. (a); counts 2 &3); and

3. An attempted lewd act (§§ 664/288, subd. (a); count 1).

Appellant received an aggregate determinate prison sentence of 26 years. In the present appeal, he contends that the trial court abused its discretion in permitting admission of five uncharged acts involving additional alleged conduct he had with the Victim. Appellant also raises a claim of ineffective assistance of counsel. Finally, he argues that the court erred at sentencing when it failed to strike a prior juvenile conviction. We affirm.

BACKGROUND

Appellant did not testify in this matter. We summarize the material facts that support the judgment or which are relevant to the issues raised on appeal.

The Victim, who was born in 2007, was 13 years old at trial. Appellant is the boyfriend of the Victim's mother. When the mother began dating appellant, the Victim was living with her mother and younger sister in a house in Mendota, California. The Victim's mother moved them into a trailer located in Mendota. The trailer was owned by appellant's parents.

Before the Victim's parents divorced, her father had lived with them in the house.

The prosecution established four separate incidents wherein appellant inappropriately touched, or attempted to touch, the Victim. These four incidents were the basis for the convictions in counts 1 through 4. In addition, the jury learned about five other uncharged acts involving appellant and the Victim. All of the charged and uncharged incidents occurred when the Victim was in sixth and seventh grades, from 2018 through 2020.

I. The First Charged Incident (Count 1).

The first charged incident occurred when the Victim was in sixth grade. In the Victim's bedroom in the house, appellant entered and made a gesture like he was "shushing" her. He grabbed her hand, unzipped his pants, and attempted to move her hand towards the area of his penis. She told him to stop and she physically resisted him. The Victim did not touch appellant's pants or his penis. Appellant said something like "we'll get to that" and he walked out of her bedroom. The Victim sat on her bed and cried. She did not immediately inform her mother because she was afraid of what might happen, and she did not know how to explain it.

When this incident occurred, the Victim's mother and younger sister were in the kitchen. From the Victim's bedroom, one would have to step into the hallway to see the kitchen. The bedroom door was ajar when this occurred.

Stemming from this incident, the jury convicted appellant of an attempted lewd act upon the Victim (§§ 664/288, subd. (a); count 1).

II. The Second Charged Incident (Count 2).

The second charged incident occurred when the Victim was either in sixth or seventh grade. This happened after she and her family had moved into the trailer. The Victim was asleep on the edge of a bed. Her mother and sister were also sleeping on the same bed, along with the Victim's dog. The Victim felt appellant touching her over her clothing on her buttocks and then on her vagina. He rubbed her vagina with his fingers. The touching lasted for about 15 seconds. She moved, attempting to get his hand away from her. Her dog woke up and she believed her dog might have tried to bite his hand. Her dog did not bark, and her mother and sister did not wake up. Appellant left.

In contrast to her trial testimony, the Victim initially reported to a deputy that appellant had touched her buttocks for about five minutes and then her vagina for about 10 minutes during this incident. During her forensic (MDIC) interview, the Victim claimed appellant had touched her buttocks and vagina during this incident for a total of about 10 or 15 minutes.

Stemming from this incident, the jury convicted appellant of a lewd act upon the Victim (§ 288, subd. (a); count 2).

III. The Third Charged Incident (Count 3).

The third charged incident occurred when the Victim was in seventh grade. Appellant picked her up from school. The Victim was in the front passenger seat. While driving, appellant said something like he "could do anything" he wanted to her, including touching her breasts. He briefly grabbed her left breast over her clothes.

Stemming from this incident, the jury convicted appellant of a lewd act upon the Victim (§ 288, subd. (a); count 3).

IV. The Fourth Charged Incident (Count 4).

The final charged incident occurred when the Victim was in seventh grade. The Victim was alone in the trailer with appellant. He told her not to tell anyone about them, complaining that he had a son and he did not want to go to jail. He grabbed her by her neck. He put his lips on her lips for a second before she pushed him away. He called the Victim "a bitch" and walked away.

Appellant's son is younger than the Victim.

Stemming from this incident, the jury convicted appellant of a forcible lewd act upon the Victim (§ 288, subd. (b)(1); count 4).

V. The Five Uncharged Acts.

In addition to the four charged incidents, the jury learned about five uncharged acts involving appellant and the Victim.

A. Allegedly touching the Victim's ear with his penis.

When she was either in sixth or seventh grade, the Victim was asleep in the trailer. Her mother and sister were sleeping in a different location in the trailer. The Victim woke when she heard pants unzipping. She then allegedly felt something on her ear. It was soft and she believed it was appellant's penis. She never actually saw appellant or his penis, but she believed she had felt his penis because she had heard the unzipping of pants. The alleged touching lasted for only a matter of seconds. She "froze" and did not yell out.

B. Allegedly touching the Victim's vagina while swimming.

At some point, the Victim was at a river or lake with her mother, younger sister, appellant, and some of appellant's family members. Appellant was teaching the Victim and other minors how to swim. While he was holding the Victim in the water, he allegedly touched her vagina over her clothing. She swam away and joined her mother. At trial, the mother testified that she did not witness anything inappropriate during this incident.

C. Allegedly massaging the Victim's thigh.

In sixth or perhaps seventh grade, the Victim injured one of her ankles. While the mother and younger sister were in the residence, appellant massaged or touched the injured ankle. At some point, the mother went into the garage to vacuum the car. According to the Victim, appellant first massaged her ankle but he then allegedly massaged her "whole leg" and thigh at "the very top." She did not want that and she asked what he was doing. She could not recall if he responded. She testified that she felt confused and afraid of appellant. At trial, the mother testified that she never saw appellant run his hand up the Victim's leg.

D. Allegedly attempting to record the Victim while she was showering.

When she was about 12 years old and "maybe" in seventh grade, the Victim was taking a shower in the trailer. While showering, she allegedly saw appellant's cell phone slide under a small gap in the bathroom door. The phone's camera was facing up. The Victim ducked down to avoid being recorded, and she called out that she knew appellant was there. She threatened to either call law enforcement or alert her mother. Appellant allegedly responded that he was "just looking" for his phone, which he removed and he walked away.

During closing argument, the defense noted that law enforcement never searched appellant's cell phone.

E. Allegedly showing the Victim pornography on his cell phone.

On more than one occasion, appellant allegedly showed the Victim pornographic videos that he was watching on his cell phone. She told the jury that she saw people having an "intimate relationship" when he showed her his phone. At trial, she did not think the people were clothed, but she admitted that she "didn't really see" them.

VI. The Victim Discloses the Abuse.

The Victim told the jury that appellant had told her more than once not to tell anyone about his conduct with her. The jury learned, however, that the Victim had disclosed some of the incidents to others.

A. The Victim tells her best friend.

Starting in sixth grade, the Victim told her best friend about some incidents involving appellant. The best friend heard about appellant sliding his cell phone under the bathroom door. According to the best friend, she was told this happened while the Victim was changing her clothes after getting out of a shower. The Victim had reported to her best friend that appellant had been trying to record her.

In the seventh grade, the best friend learned that appellant had grabbed the Victim's thigh when the Victim had been asleep. The Victim told her best friend that she had raised concerns about appellant with her mother multiple times, but her mother did not believe her.

The Victim never told her best friend about being touched on her vagina or chest.

B. The Victim tells her father.

The Victim eventually told her father about some of the incidents in which appellant had touched her inappropriately. Once the Victim reported these incidents, the father called the mother that same day. The mother did not react as if she believed the allegations. The next day, the father called the sheriff's office and made a report, which occurred in June 2020. On June 20, 2020, sheriff deputies made contact with the Victim, and she was interviewed. Law enforcement arrested appellant on or about July 16, 2020.

The Victim's younger sister, who was eight years old at the time of trial, testified that she overheard the Victim telling their father that appellant had touched her.

The Victim also complained to her father that appellant had been verbally abusive towards her and her younger sister, and he had acted aggressively with them, such as striking a wall when upset.

C. An evidentiary conflict existed regarding whether the Victim told her mother.

At trial, an evidentiary conflict existed regarding whether the Victim had disclosed the abuse to her mother before law enforcement became involved. According to the Victim, she told her mother twice about what was happening. The Victim claimed that she had texted her mother that appellant was "touching" her. According to the Victim, her mother made her delete that text. The Victim did not disclose the abuse to her father until she believed her mother was not going to do anything about her concerns.

Law enforcement forensically searched the Victim's cell phone. No relevant messages were located on it.

In contrast to the Victim's testimony, the mother denied ever knowing about these allegations until the father and law enforcement became involved. The mother denied ever seeing appellant touch the Victim inappropriately. At trial, the mother confirmed that she still loved appellant, she still considered him her boyfriend, and she still hoped they would get married.

The Victim's younger sister also denied ever seeing appellant touch the Victim inappropriately.

At trial, the Victim claimed that she had heard appellant say he would marry her mother so she could get her green card. At trial, the mother admitted she was not a citizen of the United States, but she denied wanting to marry appellant in order to obtain citizenship.

DISCUSSION

I. Appellant has Forfeited his Claim that the Trial Court Abused its Discretion Regarding Admission of the Five Uncharged Acts; Appellant Fails to Demonstrate Ineffective Assistance of Counsel and any Presumed Error is Harmless.

Appellant contends that the trial court abused its discretion under Evidence Code sections 352 and 1108 by permitting introduction of the five uncharged acts. According to appellant, the evidence from the five uncharged acts was more prejudicial than probative, the prosecution failed to provide the required notice regarding its intent to introduce this evidence, and the court failed to properly evaluate this evidence before permitting its admission. Appellant seeks reversal of his judgment.

Evidence Code section 352 allows a trial court to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."

Evidence Code section 1108 "is an exception to the general prohibition against admitting character evidence to prove criminal disposition or propensity." (People v. Jandres (2014) 226 Cal.App.4th 340, 352.) Evidence of the defendant's commission of an uncharged "sexual offense" is admissible under Evidence Code section 1108 if the evidence is admissible under Evidence Code section 352. (Evid. Code, § 1108, subd. (a).) Such evidence may be admitted to prove a fact other than the defendant's disposition to commit such an act, such as motive, opportunity, intent or identity. (Evid. Code, § 1101, subd. (b).)

We reject these arguments. This claim is forfeited and appellant does not demonstrate ineffective assistance of counsel. In any event, any presumed evidentiary error is harmless.

A. This claim is forfeited.

Prior to the start of this trial, the defense filed a motion in limine which generally opposed the admission of any uncharged act. The motion cited Evidence Code sections 352 and 1108. At oral argument, however, the defense informed the court that its objections only pertained to two uncharged acts, i.e., (1) where appellant allegedly touched the Victim's ear with his penis, and (2) where appellant allegedly tried to record the Victim in the shower with his cell phone. According to the defense, the Victim could not identify appellant as the perpetrator of those two incidents and, thus, this evidence was more prejudicial than probative. To resolve the issue of identity, the court held an evidentiary hearing under Evidence Code section 402 (the section 402 hearing).

At the section 402 hearing, the Victim testified about these two alleged uncharged incidents. Following her testimony, the court noted that the Victim had shaken violently at times while testifying. The court had no doubt that the Victim had believed that these events had happened. The court ruled that, based on the totality of the circumstances, the evidence suggested appellant had been the perpetrator of these two uncharged acts and it was appropriate to admit this evidence under Evidence Code section 1108. At no time did the defense raise any other objections to the admission of the five uncharged acts, including when the Victim testified before the jury. Indeed, appellant notes in his reply brief that, regarding the two challenged uncharged acts, the only "substantive discussion" dealt with identification, and the defense never challenged the other three uncharged acts.

In the present appeal, appellant raises the following seven arguments. None of these specific concerns were raised below.

1. The prosecution allegedly failed to provide proper notice to the defense prior to the start of trial regarding some of these uncharged acts.

2. The court allegedly failed to evaluate the uncharged acts properly under Evidence Code sections 352 and 1108.

3. Uncharged act No. 4 was allegedly not a sexual offense. Appellant contends that the alleged incident wherein he slipped his cell phone into the bathroom while the Victim was showering does not qualify as a sexual offense under Evidence Code section 1108. Instead, he argues that this alleged incident amounted to misdemeanor disorderly conduct under section 647, subdivision (j).

In general, this statute prohibits a person from looking through a hole or opening with the use of an electronic device, such as a mobile phone, to invade the reasonable expectation of privacy of an occupant in various locations, including a bathroom. This statute also prohibits a person from using a concealed camera of any type to secretly record that other person "for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy." (§ 647, subd. (j)(1) & (2).)

4. Uncharged act No. 5 was allegedly inadmissible because it was not supported by the evidence. Appellant argues that the evidence was insufficient to establish his criminal intent when he allegedly showed the Victim pornography on his cell phone.

5. The uncharged acts were allegedly not similar to the conduct charged in counts 1 through 4. Appellant asserts that the uncharged acts were not factually similar to the charged conduct and should have been excluded on that ground.

6. The uncharged acts were allegedly confusing to the jury. Appellant contends that the jury had more uncharged acts to consider than charged conduct, and the jury would have been confused.

7. The uncharged acts allegedly consumed too much time. Appellant maintains that the number of uncharged acts was excessive.

Appellant has forfeited these arguments. He was required to state his specific evidentiary objections in the trial court, and our appellate review is limited to those issues that he actually raised below. (People v. Abel (2012) 53 Cal.4th 891, 924; see also Evid. Code, § 353.) An objecting party may not argue on appeal that the trial court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct. (People v. Abel, supra, 53 Cal.4th at p. 924.)

To preserve a claim through a motion in limine, the objecting party must specify the same grounds to the trial court that are subsequently raised on appeal. (People v. Solomon (2010) 49 Cal.4th 792, 821.) If the motion in limine does not set forth the specific grounds, a proper objection must be lodged to preserve the evidentiary issue for appeal. (People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

Here, appellant's general objection raised in his motion in limine is insufficient to preserve the specific arguments he now advances in this appeal. (See People v. Solomon, supra, 49 Cal.4th at p. 821.) Instead, after filing his motion and raising a very general objection, appellant specifically asked the court to consider only two of the uncharged acts, and appellant focused on the issue of identity as grounds to exclude those two alleged incidents. Appellant never raised the specific arguments he now asserts. He never asked the court to analyze or rule on the concerns that he now alleges. Accordingly, he cannot argue that the court erred in failing to conduct an analysis it was not asked to perform. (See People v. Abel, supra, 53 Cal.4th at p. 924.) This claim is forfeited.

We note that, in general, we must presume the trial court knew and applied the law correctly in the exercise of its official duties. (Evid. Code, § 664; People v. Mosley (1997) 53 Cal.App.4th 489, 496; People v. Mack (1986) 178 Cal.App.3d 1026, 1032.)

Respondent contends that appellant has forfeited his arguments regarding the three uncharged acts which were not the subject of the section 402 hearing. We disagree that forfeiture only applies to those three uncharged acts. Instead, none of the arguments which appellant raises on appeal were presented below for any of the five uncharged acts. Therefore, this claim is forfeited in its entirety.

B. Appellant does not establish ineffective assistance of counsel.

To overcome forfeiture, appellant raised ineffective assistance of counsel. To prevail on this claim, he must establish two criteria: (1) his counsel's performance fell below an objective standard of reasonable competence, and (2) he was prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) Appellant has the burden to show both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)

During closing argument in this matter, appellant's trial counsel, Dennis Yamada, asserted to the jurors that the Victim had embellished the sexual allegations. According to Yamada, neither the Victim nor her father liked appellant, and the Victim's father had helped her create these allegations. Yamada argued that none of the improper acts had occurred, and appellant was not guilty on all counts.

After he was convicted in this matter, appellant discharged Yamada. Prior to sentencing, appellant obtained new legal representation. His subsequent attorney filed a motion for new trial, asserting in relevant part that Yamada had rendered ineffective assistance regarding the admission of the five uncharged acts. Prior to sentencing in this matter, the court conducted an evidentiary hearing and Yamada testified regarding his representation of appellant.

Yamada explained that he had initially filed a "blanket objection" in his trial brief under Evidence Code section 1108 regarding the admission of any uncharged act. However, he then only objected to the admission of two of the uncharged acts, which he did not believe had occurred. He did not oppose admission of the remaining three uncharged acts because those incidents had occurred with other people present, and Yamada believed that the Victim had simply added sexual allegations to those other incidents. Yamada testified that he had wanted the jury to see that the Victim was "making up a lot of stuff." Yamada had also decided the jury should hear the Victim's entire MDIC interview rather than attempt to redact portions of it. Although a lot of hearsay was contained in the MDIC interview, Yamada felt that some of that hearsay evidence might benefit the defense. Yamada also did not seek a limiting instruction regarding the propensity evidence. Instead, he felt that the court's standard instruction was adequate, and he had wanted the jury to associate the Victim's "exaggerations and embellishments" into "one big package."

During the hearing regarding the motion for a new trial, appellant's new counsel called an expert who opined that Yamada had rendered ineffective assistance in not doing more to limit the damage caused by admission of some of the uncharged acts.

The trial court denied appellant's motion for a new trial. In relevant part, the court concluded that insufficient evidence supported his claim of ineffective assistance of counsel.

Appellant does not challenge the court's ruling denying his motion for a new trial. Instead, to establish that forfeiture of this claim should not occur, appellant contends that Yamada's trial strategy was not objectively reasonable. According to appellant, Yamada abdicated his duties as defense counsel when he willingly permitted introduction of the uncharged acts.

Appellant fails to demonstrate ineffective assistance of counsel. A decision whether or not to object to the admission of evidence is inherently tactical, and such decisions are given substantial deference. (People v. Majors (1998) 18 Cal.4th 385, 403.) A failure to object seldom establishes incompetency of counsel. (Ibid.)

Although Yamada could have raised any number of additional objections to the admission of the five uncharged acts, it is not the appellate court's role to determine if different approaches were available, but, rather, whether the record discloses that Yamada had no rational tactical reason for the approach he took. (People v. Fosselman (1983) 33 Cal.3d 572, 581.) Yamada's testimony provided a rational explanation why he only opposed admission of two of the uncharged acts, and why-in opposing those two incidents-he focused on the perpetrator's identity.

Prior to the section 402 hearing, it was unclear whether the prosecution could establish that appellant was the one who had allegedly touched the Victim's ear after she heard pants unzipping or whether appellant had attempted to record her when she was showering. Nobody else was present when these two alleged acts had occurred, and it was uncertain how the Victim would be able to identify appellant as the perpetrator. In contrast, it was undisputed that appellant had interacted with the Victim in some capacity during the remaining three uncharged incidents. Moreover, Yamada attempted to convince the jury that the Victim was motivated to lie because of her animosity towards appellant. Yamada attempted to demonstrate that the sexual allegations could not have occurred as the Victim had claimed. Yamada wanted the jury to recognize that most of the uncharged incidents allegedly occurred while other people were present. Thus, this record amply demonstrates that Yamada made a reasonable tactical decision regarding how to handle the uncharged acts. As such, it cannot be said that Yamada's trial strategy resulted in ineffective assistance even though appellant now questions that strategy in hindsight and calls it unreasonable. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 [appellate court considers whether record contains any explanation for counsel's actions].) We will not second-guess Yamada's tactical decisions, which appear reasonable under the circumstances. (People v. Kelly (1992) 1 Cal.4th 495, 520.)

Finally, this claim of ineffective assistance fails because appellant does not establish prejudice. He must demonstrate a reasonable probability that he would have obtained a more favorable outcome absent Yamada's alleged errors. (People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Majors, supra, 18 Cal.4th at p. 403.)

The jury was instructed that appellant was presumed innocent and the prosecution had to prove beyond a reasonable doubt that he had committed the charged crimes. The elements were provided for each crime charged in counts 1 through 4. During the instructional phase, the court summarized the five uncharged acts that had been introduced against appellant. The court admonished the jurors that they could consider the evidence regarding the five uncharged acts only if the People had proven by a preponderance of the evidence that appellant had in fact committed these uncharged crimes. If the People had not met this burden, the jurors were instructed to "disregard this evidence entirely." However, if the jurors decided that appellant had committed the uncharged offenses, they could, but were not required to, conclude that appellant was disposed or inclined to commit sexual offenses, and appellant was likely to commit and did commit any or all of the charged offenses. The jurors were told that, if they concluded appellant had committed the uncharged offenses, that was only "one factor to consider along with all of the other evidence. It is insufficient to prove [appellant] is guilty of any of the charged crimes. The People must still prove each of the charged offenses beyond a reasonable doubt."

During deliberations, the jury asked the court for clarification regarding which acts constituted the charged crimes and which constituted the uncharged incidents. After conferring with the parties, the court summarized for the jurors the four alleged acts that constituted the charged crimes. The court noted that some of the jurors were nodding in the affirmative when the court stated it hoped that clarified the issue. Later that same day, the jury found appellant guilty in the four charged crimes.

The court instructed the jurors that they had to judge the credibility of all witnesses. The jurors were told that they could believe all, part or none of any witness's testimony. During closing argument, the prosecutor asserted that the Victim's core details had been consistent both before and during trial. The prosecutor argued that the Victim gave detailed descriptions to law enforcement regarding numerous incidents with appellant, and she did not have a motive to lie. In contrast, Yamada pointed out many of the Victim's discrepancies to the jurors during closing argument, asserting they should not find her credible. Yamada contended that the Victim had exaggerated much of her testimony, and she had wanted appellant gone.

At trial, the Victim's best friend corroborated some of the Victim's testimony. Through the best friend, it is apparent that the Victim had previously raised concerns about appellant's behavior. Although the Victim's trial testimony had inconsistencies from her prior statements regarding how appellant had touched her during some of the incidents, the Victim's testimony and her pretrial statements nevertheless overwhelmingly established appellant's criminal behavior with her. In rendering its verdicts, it is abundantly apparent the jurors found the Victim credible.

For example, the Victim testified that appellant touched her vagina about 15 seconds or less when she was lying on the bed when her mother and younger sister were asleep next to her. However, during her MDIC interview, she had claimed that appellant had touched her vagina for much longer, and the total encounter lasted about 10 minutes. Likewise, the Victim told the initial responding deputy that appellant had touched her vagina for about 10 minutes during this encounter.

Finally, the prosecutor barely mentioned the five uncharged acts during closing argument, and the prosecutor did not summarize the facts for the jurors from those five alleged incidents. Instead, the prosecutor generally asserted that the uncharged conduct showed appellant's pattern with the Victim. The prosecutor's closing argument neither emphasized the uncharged acts, nor made them crucial to establishing appellant's guilt for the charged crimes.

Based on this record, it is not reasonably probable appellant would have obtained a more favorable result had the trial court excluded some of the five uncharged acts that were admitted against him. The Victim's testimony against appellant was strong and compelling, if not overwhelming. Our confidence is not undermined regarding the outcome of this matter. Therefore, appellant fails to establish ineffective assistance of counsel and this claim is forfeited.

C. Any presumed evidentiary error is harmless.

Appellant contends that the trial court abused its discretion because it should have precluded some of the uncharged acts from coming into evidence. Because this claim is forfeited, we need not address whether the court abused its discretion and we need not analyze the specific concerns which appellant now raises. In any event, it is also overwhelmingly apparent that, even if this claim is not forfeited, any assumed evidentiary error was harmless.

The erroneous admission of uncharged offense evidence is reviewed under the standard of prejudice established in People v. Watson (1956) 46 Cal.2d 818. (People v. Leon (2008) 161 Cal.App.4th 149, 169; People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.) The question is whether it is reasonably probable appellant would have obtained a more favorable result in the absence of the error. (People v. Watson, supra, 46 Cal.2d at p. 837.)

The prosecutor noted during closing argument that the Victim's testimony had some inconsistencies from her prior statements, but her recollection of the core details never changed. It is readily apparent that the jury found the Victim credible. Even if the court should have precluded admission of some of the uncharged acts, an issue we need not address, it is not reasonably probable appellant would have obtained a more favorable result. The evidence established beyond any reasonable doubt that appellant committed the crimes charged in counts 1 through 4. Consequently, even if this claim is not forfeited, it nevertheless fails due to a lack of prejudice. Reversal is not appropriate for any alleged evidentiary error.

II. Appellant does not Establish that his Judgment must be Reversed based on Alleged Ineffective Assistance of Counsel.

Separate from avoiding the forfeiture doctrine, appellant also argues that his four convictions must be reversed due to ineffective assistance of counsel. He asserts that Yamada failed to take reasonable steps to keep the five uncharged acts from coming into evidence. We reject this claim.

The United States Supreme Court holds that, when a criminal defendant alleges prejudice stemming from ineffective assistance of counsel, the defendant must show that his counsel's errors were so serious as to deprive him of a fair trial and a result that was unreliable. (Strickland v. Washington, supra, 466 U.S. at p. 687.) "The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect." (Kimmelman v. Morrison (1986) 477 U.S. 365, 374.) Thus, any analysis must focus on whether the result of the proceeding was fundamentally unfair or unreliable. (Lockhart v. Fretwell (1993) 506 U.S. 364, 369-370.)

We have already concluded that appellant cannot establish ineffective assistance of counsel to overcome forfeiture of his first claim. Likewise, appellant does not demonstrate that his convictions must be reversed due to alleged ineffective assistance of counsel. Considering the record as a whole, appellant's trial was not rendered fundamentally unfair or unreliable. It is apparent the jury found the Victim credible. The trial evidence conclusively established that appellant was guilty of the charged crimes in counts 1 through 4. Even if the jury had not heard about some of the five uncharged acts, appellant does not meet his burden of showing a reasonable probability that the result would have been different. (See People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Our confidence in the outcome of this matter is not sufficiently undermined. (See People v. Majors, supra, 18 Cal.4th at p. 403.) Consequently, this claim is without merit.

III. The Trial Court did not Abuse its Discretion in Failing to Strike Appellant's Prior Strike Conviction.

Appellant asserts that the trial court abused its discretion in denying a Romero motion to strike a finding that appellant had committed felony robbery (§ 211) in 2003 when he was a juvenile. Because the court did not strike the 2003 conviction, appellant's sentence was doubled under the Three Strikes law from an aggregate prison sentence of 13 years to 26 years.

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

We review this claim for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Appellant bears the burden to show that the court's sentencing discretion was irrational or arbitrary. (Id. at p. 376.) In the absence of such a showing, we presume the court acted to achieve legitimate sentencing objectives, and its discretionary sentencing choice will not be reversed. (Id. at pp. 376-377.)

We find no abuse. The Three Strikes law increases punishment for a person who is convicted of a felony after having been previously convicted of specified offenses. (People v. Murphy (2001) 25 Cal.4th 136, 139.) Section 1385, subdivision (a), gives the trial court the discretion to strike an allegation that a defendant has previously been convicted of a felony if the dismissal is in furtherance of justice. (Romero, supra, 13 Cal.4th at p. 508.) The Three Strikes law was devised for career criminals and it was intended to ensure longer prison sentences for those who commit a felony as long as they were previously convicted of at least one strike. (People v. Strong (2001) 87 Cal.App.4th 328, 331-332.) Our Supreme Court has declared that the purpose of the Three Strikes law is to punish recidivism, and it focuses on the status of a defendant as a repeat felon. (People v. Murphy, supra, 25 Cal.4th at p. 155.)

In this matter, the trial court reviewed appellant's criminal history, and it believed that he did not fall outside the scope of the Three Strikes law. This record amply supports the court's conclusion.

Appellant was approximately 34 years old when he was sentenced in this matter in 2022. In 2003, a juvenile petition was sustained after the court found that appellant had committed felony robbery. He was deemed a ward of the juvenile court and placed into a gang program.

In 2004, another wardship petition was sustained when appellant was found to have failed to obey the juvenile court's order. Appellant's program was vacated and he was informed he would be placed in the California Youth Authority for a future violation.

In 2006, appellant was convicted as an adult of felony vandalism involving damages of $5,000 or more. He was placed on formal probation, which he subsequently violated. He was sentenced to prison for 16 months.

In 2007, appellant was convicted of a misdemeanor for possession, manufacturing or selling a dangerous weapon. He was sentenced to jail for 180 days.

In 2012, appellant was convicted of a misdemeanor for possessing a controlled substance.

In 2017 appellant was convicted of a felony for infliction of corporal injury on a spouse or cohabitant. Probation was denied and he was sentenced to prison for two years. In 2018, he transitioned to postrelease community supervision. Starting around that time, he began dating the Victim's mother, and he began to touch the Victim inappropriately.

We agree with the sentencing court that appellant's criminal history outweighed the remoteness of the 2003 strike conviction for robbery. Starting as a juvenile, appellant has engaged in repeated criminal behavior and he has multiple felony convictions as an adult. His convictions are increasing in severity and he has repeated incarcerations. He has performed exceedingly poor on probation and parole. No "extraordinary" circumstances exist to show that appellant, a career criminal, should fall outside the spirit of the Three Strikes sentencing scheme. (See People v. Strong, supra, 87 Cal.App.4th at p. 338.) The court did not abuse its sentencing discretion.

Finally, appellant contends that this matter must be remanded in light of Senate Bill No. 81 (Stats. 2021, ch. 721, § 1). According to appellant, the court failed to consider Senate Bill No. 81 when denying the Romero motion. We find no error.

Effective January 1, 2022, Senate Bill No. 81 amended section 1385 to add specific mitigating factors the trial court must consider when deciding whether to strike enhancements from a defendant's sentence in the interest of justice. (§ 1385, subd. (c); People v. Burke (2023) 89 Cal.App.5th 237, 242-243.) We agree with respondent that appellant's prior strike conviction is not an "enhancement" that falls under Senate Bill No. 81.

Published authority has already held that Senate Bill No. 81 does not apply to the Three Strikes law. (People v. Burke, supra, 89 Cal.App.5th 237, 243-244.) The term "enhancement" has a well-established technical meaning in California law. (Romero, supra, 13 Cal.4th at pp. 526-527.) "A sentence enhancement is 'an additional term of imprisonment added to the base term.'" (People v. Jefferson (1999) 21 Cal.4th 86, 101, italics omitted; see also Cal. Rules of Court, rule 4.405(5).) In contrast, the Three Strikes law is not an enhancement. Instead, it is an alternative sentencing scheme for the current offense. (Romero, at p. 527; People v. Williams (2014) 227 Cal.App.4th 733, 744.) Accordingly, the trial court did not err in failing to apply Senate Bill No. 81 when denying appellant's Romero motion. (See People v. Burke, supra, 89 Cal.App.5th at pp. 243-244.)

Based on this record, appellant fails to meet his burden to show that the court's sentencing decision was irrational or arbitrary. We presume the court acted to achieve legitimate sentencing objectives. (See People v. Carmony, supra, 33 Cal.4th at pp. 376377.) Accordingly, no abuse of discretion appears and this claim fails.

DISPOSITION

The judgment is affirmed.

WE CONCUR: MEEHAN, J. DE SANTOS, J.


Summaries of

People v. Garcia

California Court of Appeals, Fifth District
Aug 17, 2023
No. F084151 (Cal. Ct. App. Aug. 17, 2023)
Case details for

People v. Garcia

Case Details

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

Court:California Court of Appeals, Fifth District

Date published: Aug 17, 2023

Citations

No. F084151 (Cal. Ct. App. Aug. 17, 2023)