People v. Garcia
B306081
| Cal. Ct. App. | Mar 28, 2022Background:
- Lisa Maria Garcia was convicted by a jury of second-degree robbery (Pen. Code § 211) and assault with a deadly weapon (§ 245(a)(1)) based on an attack on a Boost Mobile store owner during a dispute over phones.
- Security video and store employees corroborated the victim’s testimony that Garcia grabbed the victim’s phone, struck her with a bag, then repeatedly hit her with a large metal sign and a wooden toy, causing injuries requiring staples.
- Jury found true firearm/weapon and great-bodily-injury enhancements; trial court imposed an upper-term 5-year sentence on count 1 plus a consecutive 3-year enhancement, suspended execution and placed Garcia on 5 years’ probation, and imposed a 10-year postconviction protective order under Penal Code § 136.2(i)(1).
- On appeal Garcia raised multiple claims: instructional error (deadly weapon, unanimity, self-defense), deprivation of right to present a defense (struck testimony and limits on argument), prosecutorial misconduct, ineffective assistance of counsel, cumulative error, and invalidity of the protective order.
- While the appeal was pending, SB 567 and AB 124 amended Penal Code § 1170 regarding imposition of upper terms; parties agreed the changes are ameliorative and apply retroactively to nonfinal cases.
- Court’s disposition: affirmed convictions in all other respects; vacated the § 136.2 protective order; vacated the upper-term sentence and remanded for full resentencing under the new § 1170 rules.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jury instructions on deadly weapon (CALCRIM No. 875/3145) | Instructions (as given and read with written versions) correctly informed jury; any minor misstatements cured by other instructions and counsel argument | Omitted bracketed language, included improper phrase, and oral misstatement eliminated an element or confused jury | Errors, if any, were harmless beyond a reasonable doubt; written instructions controlled and conviction stands |
| Unanimity on which object was the deadly weapon | No sua sponte unanimity instruction needed because evidence showed a single continuous assault using multiple instruments | Jury had to unanimously agree on the specific object used as the deadly weapon | No unanimity instruction required; jury need only agree that a deadly weapon was used in the single assault |
| Self-defense / excluded testimony / ability to argue victim committed a crime | Exclusion of irrelevant testimony and limiting argument about victim’s criminality were proper; defendant could still argue unlawful detention/self-defense | Striking testimony about store employee’s brother and prohibiting argument that victim committed false imprisonment violated right to present a defense | Court acted within discretion; exclusion and limitation did not violate rights and any error was harmless |
| Prosecutorial misconduct in closing | Argument correctly characterized credibility issues and burden remained with prosecution | Prosecutor misstated law and shifted burden to defendant by saying jury would find victim a criminal if they acquitted | No misconduct that prejudiced the defense; claims not preserved and fail on the merits |
| Ineffective assistance (failure to object, cross-examine on U-visa, request instructions) | Counsel’s choices were trial strategy or harmless; record does not show prejudice | Counsel failed important objections and cross-examination (admitted oversight on U-visa) costing a fair trial | Ineffective assistance not established on direct appeal; no reasonable probability of different outcome shown |
| Postconviction protective order under Penal Code § 136.2(i)(1) | Protective order may be imposed only for qualifying domestic violence convictions | Garcia argued the order exceeded statutory authority because convictions were not domestic violence offenses | Protective order vacated as convictions (robbery, assault) are not qualifying domestic violence offenses under § 136.2 |
| Remand for resentencing under SB 567 / AB 124 (Pen. Code § 1170) | New statutory standard requires aggravating facts be stipulated or found beyond a reasonable doubt; remand required because upper term relied on unadmitted/unfound facts | Garcia sought remand for resentencing under the amended, retroactive statute | Upper-term sentence vacated; case remanded for full resentencing and reconsideration of probation terms |
Key Cases Cited
- People v. Quinonez, 46 Cal.App.5th 457 (instructional-review principles and considering instructions as a whole)
- People v. Dieguez, 89 Cal.App.4th 266 (other correct instructions can cure omission of an essential element)
- People v. Frederickson, 8 Cal.5th 963 (written instructions control over oral misstatements)
- People v. Osband, 13 Cal.4th 622 (same principle: written instructions govern conflicts with oral reading)
- People v. Russo, 25 Cal.4th 1124 (unanimity instruction doctrine for single discrete event vs. multiple crimes)
- People v. Covarrubias, 1 Cal.5th 838 (unanimity and single-defense context)
- In re Estrada, 63 Cal.2d 740 (ameliorative statutes apply retroactively to nonfinal cases)
- People v. Valenzuela, 7 Cal.5th 415 (full resentencing rule when part of a sentence is stricken)