Defense counsel filed a motion to dismiss the information pursuant to section 995. On March 1, 2016, the trial court granted the motion and dismissed the information.
On appeal, the People argue the trial court erred in granting the motion because there was probable cause to believe that Garcia entered into a conspiracy to obstruct justice. In the People's view, the court wrongly
As discussed below, we agree the trial court erred and we will reverse the order.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Preliminary hearing testimony and evidence
On January 14, 2006, Chau Nguyen was sitting in his car in the driveway of his residence when someone shot him twice in the head, killing him. The contemporaneous police investigation did not uncover any viable leads and no arrests were made.
San Jose Police Detective Erin Fong was assigned the case in 2010, and in July of that year, she learned that an informant claimed to have material information about Nguyen's murder. On July 27, 2010, Fong interviewed the informant, Alfonso Chavoya, who was in custody in an unrelated case.
In that interview, Chavoya told Fong that in late 2005 or early 2006, he went to see his girlfriend, Vicky Garcia,
Chavoya told Fong he left the room as directed, and left the house, too, because he could not find Vicky. He returned about 9:30 that evening. He and Vicky were in the living room when Rocha ran in, followed by Garcia. Rocha was saying something like " 'What do I do?' " and Garcia yelled " 'Where is the gun?' " and " 'Get rid of it.' " The two men went down the hallway to talk to Vicky's mother, who took a sweater Rocha was wearing and burned it in the backyard. Chavoya left the house soon after.
Fong and another officer drove out to the site with Chavoya and asked him to point to the area where Felisa told him Garcia put the gun. At Fong's request, the records department searched for reports of discarded weapons, and it turned up a report of a .22-caliber revolver that had been found in the same area. That weapon was still in the police department's property unit.
Based on the information provided by Chavoya, Fong obtained a court order to monitor and record Garcia's phone. Due to the length of time that had elapsed since the murder, Fong attempted to instigate conversation about the crime among the subjects by calling them in for interviews, interviewing their family members, and distributing flyers in the neighborhood promising a reward in exchange for information regarding the homicide. Fong spoke to Garcia's cousin, Louie, as well as Garcia's parole agent. On February 10, 2011, Fong asked Garcia's parole agent to tell Garcia that San Jose Police wanted to talk to him the following day about a homicide case.
The morning of February 11, police intercepted a phone call between Garcia and Cruz Castro.
At the interview, Fong informed Garcia she was investigating a cold case homicide and his name, along with other names, had come up during that investigation. She showed him photographs of the victim, the victim's house
Following the interview, police intercepted a phone call between Garcia and Frank Garcia, aka "Punch." Garcia told Frank that he had just talked to the police about a homicide and that he had previously "cleared it with the big homie." After asking Frank to "guess what it is," Garcia asked if Frank "remember[ed] what [Rocha] did?" Frank asked why they wanted to talk to Garcia about that, since he
Fong interviewed Felisa on February 15, 2011. In that interview, Felisa said that she and Garcia "drank beer and had sex," but never had any conversations.
On February 23, 2011, Fong interviewed Garcia a second time. Garcia again denied knowing Rocha, Felisa, or Nguyen, and denied recognizing any of those people when showed their photographs. Fong asked if he had any affiliation with Triple L, but Garcia said he did not. Fong then told Garcia that in 2005 he and Rocha had been stopped by police together. Garcia replied that Rocha "looked familiar" and he " 'must have kicked it with him.' "
Fong also showed Garcia a photograph of his brother, Sammy Garcia, and Garcia identified him properly. He denied that Sammy was involved with Triple L, however. Fong displayed a photograph of Garcia's aunt, Suzanne, who Chavoya said had burned Rocha's sweater on the night of the murder. Garcia acknowledged the photo was of his aunt, though he refused to say her name.
In March 2012, Fong interviewed Jose Castro about the 2006 homicide. Jose admitted he had been an active member in Triple L in 2006. About three or four months after the killing, Jose was walking down the street when he saw Rocha, also a member of Triple L, driving by. Rocha pulled over to talk
After qualifying as a gang expert, Fong testified it was her opinion that Triple L was a criminal street gang, and that Garcia and Rocha were active participants in that gang. Fong also opined that, by withholding information about Rocha's involvement in the 2006 homicide from police, Garcia was acting to benefit Triple L.
B. Information and section 995 motion
On January 29, 2015, Garcia was charged by information with one felony count of participating in a criminal street gang ( § 186.22, subd. (a), count 1) and one felony count of conspiracy to obstruct justice (§ 182, subd. (a)(5), count 2). In the course of the conspiracy, Garcia allegedly made false statements to police during his February 2011 interviews when he denied knowing anything about the 2006 homicide, denied knowing Felisa, and denied knowing Rocha. The information further alleged Garcia had three prison prior convictions under section 667.5, subdivision (b).
Garcia moved to dismiss the information pursuant to section 995. On March 1, 2016, the trial court granted the motion and dismissed the case.
The People timely appealed.
II. DISCUSSION
A. Applicable legal principles and standard of review
Pursuant to section 995, a court properly sets aside all or part of an information
In reviewing a section 995 motion "the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer." ( People v. Laiwa (1983)
B. Adequacy of the record
Before turning to the substantive question presented, we address Garcia's claim that the appeal must be rejected due to the People's failure to provide an adequate record for review. Garcia asserts that his section 995 motion was argued to the trial court on four separate dates in 2016, specifically February 4, February 5, February 18 and March 1, but the record on appeal contains only the reporter's transcript from the final, dispositive March 1 hearing.
It is well-settled that, on appeal, the burden is on the appellant to provide an adequate record, and "[i]n numerous situations, appellate courts have refused to reach the merits of an appellant's claims because no reporter's transcript of a pertinent proceeding or a suitable substitute was provided." ( Foust v. San Jose Construction Co., Inc. (2011)
In this case, however, the record on appeal is adequate, despite the failure to include reporter's transcripts from the three February 2016 hearings. That is because the standard of review in appeals from orders granting section 995
C. Conspiracy to obstruct justice
In this case, we must decide whether the evidence presented at the preliminary hearing was "such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt.' " ( Lexin , supra ,
Section 182, subdivision (a)(5), makes it a criminal act for two or more persons to conspire "to pervert or obstruct justice, and the due administration of the laws." "A conviction for conspiracy requires proof of four elements: (1) an agreement between two or more people, (2) who have the specific intent to agree or conspire to commit an offense, (3) the specific intent to commit that offense, and (4) an overt act committed by one or more of the parties to the agreement for the purpose of carrying out the object of the conspiracy." ( People v. Vu (2006)
In this case, the People presented evidence at the preliminary hearing which showed that, prior to being interviewed by police, Garcia spoke with Cruz, a fellow gang member who appeared to have some authority within the gang. In that conversation, Garcia agreed that, during the police interview, he would tell police he did not know anything about the murder. He further agreed that, after the interview, he would " 'report to [his] homies.' "
At his first interview with police, Garcia falsely stated he did not know Rocha or Felisa. After the interview, he spoke with another gang member, Frank, and, in that conversation, implied that the police interview was about "what [Rocha] did." Garcia told Frank that, when confronted by police with their knowledge that he and Felisa used to date, he again denied knowing what they were talking about.
As outlined above, in reviewing this evidence, we "draw all reasonable inferences in favor of the information [citations] and decide whether there is probable cause to hold the defendant[ ] to answer, i.e., whether the evidence is such that 'a reasonable person could harbor a strong suspicion of the defendant's guilt.' " ( Lexin , supra ,
Garcia argues, citing People v. Redd (2014)
In Redd , the defendant, an inmate, was charged with conspiring to obstruct justice based on a scheme in which he arranged to have a prison cook smuggle tobacco into the prison for him. ( Redd , supra ,
III. DISPOSITION
The order dismissing the information is reversed.
WE CONCUR:
Mihara, J.
Grover, J.
Notes
Unspecified statutory references are to the Penal Code.
Since Vicky shares the same last name as the defendant, we henceforth refer to her by her first name.
Fong testified that Vicky's house was within walking distance of the house where Nguyen was murdered.
According to Fong, she had the revolver sent to the crime lab for testing but, for reasons which are not disclosed in the record, the crime lab was unable to determine whether the revolver was used in Nguyen's murder.
As discussed below, another person interviewed by police in this case shares Castro's surname, so we refer to both men by their first names.
Although the motion to dismiss was principally directed at count 2, the People conceded that count 1 could not stand on its own and must be dismissed if the trial court granted the motion as to count 2.