People v. Garcia CA5

Opinion

Filed 3/2/21 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F078623 Plaintiff and Respondent, (Kings Super. Ct. v. No. 18CMS1514B)

MICHAEL LEE GARCIA, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Renee Paradis and Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Defendant and appellant Michael Lee Garcia was convicted of several crimes in connection with a home invasion robbery he committed alongside his codefendant. He argues the court erred in failing to instruct the jury on unanimity. He also contends, and the Attorney General concedes, that his prior prison term enhancements must be stricken under Senate Bill No. 136 (2019–2020 Reg. Sess. (Senate Bill 136)). We accept the concession, order the enhancements stricken, reject defendant’s argument concerning unanimity, and otherwise affirm the judgment. BACKGROUND In an amended information filed September 10, 2018, the Kings County District Attorney charged defendant Michael Lee Garcia and his brother Johnny Cotta Garcia with first degree burglary, with a person present (count 1; Pen. Code, § 459),1 home invasion robbery (count 2; § 211), and assault by means likely to produce great bodily injury (count 3; § 245, subd. (a)(4).) The information also alleged four prior prison term enhancements against defendant. A jury convicted defendant on counts 1 and 2 as charged, as well as assault as a lesser included offense of count 3. Defendant admitted the prior prison term enhancements. The court sentenced defendant to the upper term of nine years on count 2, plus four years for the prior prison term enhancements. The court imposed stayed (§ 654) terms of six years on count 1, and 180 days in jail on the assault conviction (a lesser included offense of count 3.) FACTS Stephanie Byares lived with her boyfriend Nathan Mayer on South 10th Avenue in Hanford. On April 25, 2018, at around 10:00 a.m., Byares saw defendant working on a white car in her driveway. At around 2:00 p.m., Byares left to go to the store and saw the

1 All further statutory references are to the Penal Code unless otherwise stated.

2. same white car following her.2 Byares told Mayer about the incident. Mayer “just got out of the hospital that day” because he had been bitten by a black widow spider on his arm, hand and foot. Mayer’s left hand and right foot were “bandaged up” as a result. At around 8:30 or 9:00 p.m., Byares was painting in her kitchen and Mayer was asleep in the bedroom. Byares heard a knock on a door to the garage. Byares asked who it was, and a person responded, “Mikey.” Byares told Mayer someone was at the door for him. Byares returned to painting while Mayer went to the door. Less than two minutes later, Byares thought she heard people yelling or something being thrown in the garage. Byares went to the garage and saw defendant and codefendant Johnny Cotta Garcia3 “beating up” Mayer. Specifically, the two men were hitting Mayer with their fists. Byares asked them to stop, but they did not. There was also a woman present, later identified as Bobbi Jo Blair.4 Johnny pushed Byares aside and entered the home, laughing and smirking. Defendant was still fighting Mayer. Johnny retrieved a wallet from the bedroom, brought it to the garage and took out $200.5 The wallet itself was later found in the front yard. At some point, Johnny carried a safe from Byares’s closet outside to the front yard. Byares ran outside and screamed for help. Byares was unable to flag down a nearby sheriff’s deputy, so she picked up her dead cell phone and pretended to call 911. Defendant, Johnny, and Blair got into a car and drove away quickly. The car they used to leave in was the same one that had been following Byares earlier in the day.

2 Byares later testified she believed it was the same car but was not “a hundred percent sure.” 3 Because he shares a last name with defendant, Johnny Cotta Garcia will be referred to by his first name. In the reporter’s transcripts, Ms. Blair’s first name is spelled “Bobby Joe.” 4 However, the information filed on May 23, 2018, spells her name “Bobbi Jo.” Accordingly, we will also use that spelling. 5 Later, Byares testified that the $200 was on the bed next to the wallet.

3. Mayer was “shocked” and “dazed” after the incident. His hand was bleeding, and he received stitches at a hospital. Mayer identified the assailants to Byares as defendant and Johnny Cotta Garcia. Mayer said one of them owed him money, so Mayer “put out … on the street” that he was owed money. Mayer said defendant and Johnny assaulted him because he had “put their name on the street.” Police arrested defendant and Blair at a residence in Kings County. Defendant was found hiding under a bed in the residence. The day after the robbery, police detectives interviewed Johnny, who claimed he had been home all night. DISCUSSION I. Court Did Not Err in Failing to Issue Unanimity Instruction Defendant argues that a unanimity instruction or prosecutorial election was required here, and their absence requires reversal. We reject defendant’s contention. A. Background The court instructed the jury on burglary as follows:

“The defendants are charged in Count 1 with burglary. To prove the defendant is guilty of this crime the People must prove that:

“One, the defendant entered a building.

“And two, when he entered the building he intended to commit theft.

“To decide whether the defendant intended to commit theft, please refer to the separate instruction I will give you on that crime.

“A burglary was committed if the defendant entered with the intent to commit theft. The defendant doesn’t have to actually committed [sic] theft, as long as he entered with the intent to do so. The People do not have to prove the defendant actually committed theft.” The court also instructed the jury that “[a] house includes any garage attached to the house, and functionally connected with it.”

4. In closing argument, the prosecutor contended that the defendants entered the home with the intent to “steal money.” The prosecutor further noted that, for purposes of a burglary, “a house does include any garage that is attached.” B. Analysis In a criminal case, the jury’s verdict must be unanimous. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) Specifically, “the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.]” (Ibid., italics omitted.) As a result, “when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]” (Ibid., italics added.) The Attorney General contends the unanimity rule is not implicated here because there is no evidence of multiple discrete burglaries. In contrast, defendant argues the evidence in this case does suggest more than one discrete burglary: first, “the initial entry into the garage with the intent to commit an assault” and second, “entering the house with the intent to commit theft.” As explained below, we reject defendant’s contention that the jury could have relied on an intent-to-commit-assault theory of burglary.

1. Intent-to-Commit-Assault Theory of Burglary Precluded by Target Offense Instruction One way a burglary can occur is where the defendant enters a house or room “with intent to commit grand or petit larceny or any felony ….” (§ 459.) The crime a defendant intended to commit upon entry is sometimes referred to as the “target offense.” Courts must identify for the jury the target offense(s) underlying a burglary charge. (See People v. Hughes (2002) 27 Cal.4th 287, 348–349.) Specifically, a trial court “ ‘must give instruction to the jury identifying and defining the target offense(s) that the defendant allegedly intended to commit upon entry into the building.’ [Citation.]” (Id. at p. 349.) Here, the court performed this duty by identifying “theft” as

5. the target offense for the burglary charge. The instruction did not include assault or any other crime as a possible target offense. Because we presume juries correctly apply instructions, we cannot accept defendant’s argument that the jury may have relied on an intent-to-commit-assault theory of burglary. Thus, defendant’s intent-to-commit-assault argument cannot establish that the jury was faced with two discrete crimes for which a unanimity instruction was required.

2. Even Assuming Evidence Showed Two Legally Distinct “Entries,” No Unanimity Instruction was Required Defendant also argues there were two potential “entries” for burglary purposes: the entry into the garage and the entry into the home. However, even if the jury could have concluded there were two burglarious “entries” – the entry into the garage and the entry into the home6 – there was only one burglarious intent the jury could have relied on for both entries: intent to commit theft. In that circumstance, no unanimity instruction would be required. “[A] ‘ “unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction.” ’ [Citation.]” (People v. Williams (2013) 56 Cal.4th 630, 682.) If defendant and Johnny entered the garage with intent to commit theft and then defendant, with intent to commit or aid and abet theft, did in fact aid and abet Johnny’s subsequent burglarious entry into the house proper, unanimity is not required because those two acts are so closely connected as to form part of one transaction.7

6 The Attorney General notes that entry into an attached garage is entry into the home for purposes of burglary. (See People v. Thorn (2009) 176 Cal.App.4th 255, 267– 268.) 7 Defendant cites People v. Sparks (2002) 28 Cal.4th 71, which addressed “whether a defendant’s entry into a bedroom within a single-family house with the requisite intent can support a burglary conviction if that intent was formed only after the defendant’s entry into the house.” (Id. at p. 73; see also People v. Taylor (2010) 48 Cal.4th 574, 627.) The court answered that question affirmatively. However, the fact that a burglary conviction can be based on entry into a room does not mean that a defendant commits multiple burglaries by entering different rooms of a residence with the

6. 3. Evidence did not Suggest Defendant Formed Intent to Steal After Entering the Garage Defendant also posits that he could have formed intent to steal before entering the garage (in which case his entry into the garage was the burglarious entry) or he could have formed the intent to steal after entering the garage but before entering the house (in which case his entry into the house was the burglarious entry). We disagree. There was no evidence defendant formed the intent to steal after entering the garage but before entering the house. The evidence only supported the inference that the intent to steal was formulated before entry into the garage or the house. Indeed, the prosecutor summarized that evidence to the jury:

“What was the point in the three defendants coming to that house that night on 10th Avenue late in the evening? Were they coming over to get milk and cookies that [Byares] had ready for them? Obviously not. The intent behind the defendant’s [sic] actions I would contend is circumstantially shown by the way in which they followed [Byares] throughout the day. You have the car there early in the morning. You have the same car following [Byares]. And then finally [Byares] identified it as the same car that she [sees] fleeing the scene. They were casing the place ….”

“Additionally[,] I want you to pay very close attention, look at the videos. What did the defendants do when they pulled up in the car? We talked about this. The front passenger and the back passenger doors were left open. The lights were left on, the car was left running. Why would you leave a car running with the doors open? You would only do something like that if you intended to get away as quickly as possible. You know, sometimes you might do something like that if … another person [is] in the car with you. I am just going to drop this for a minute, and come … right back. But there was no one that remained in the car. All three got

same intent. (See Sparks, at p. 87, fn. 21.) Otherwise, it could be argued that defendant committed several burglaries in the present case: once when he entered the garage, another when he entered the house, another when he entered the bedroom, and perhaps another when he re-entered the garage. And, again, even if that were a proper classification of defendant’s conduct, “ ‘ ‘unanimity … is not required when the acts alleged are so closely connected as to form part of one transaction.” ’ [Citation.]” (People v. Williams, supra, 56 Cal.4th at p. 682.)

7. out. All three walked in the direction towards the garage. That shows us that there was a plan in place. All three of them had the same purpose, and that purpose was to go in and steal money.” In contrast, there was no evidence defendant only formulated an intent to commit theft after entering the garage.8 Thus, defendant has not shown that the “evidence suggests more than one discrete crime” so as to trigger the unanimity rule. (People v. Russo, supra, 25 Cal.4th at p. 1132)

II. We Accept the Attorney General’s Concession that the Prior Prison Term Enhancements Must be Stricken Pursuant to Senate Bill 136 The parties agree that defendant’s prior prison term enhancements must be stricken pursuant to Senate Bill No. 136,9 which took effect on January 1, 2020. (2019– 2020 Reg. Sess.) (Stats. 2019, ch. 590, § 1, eff. Jan. 1, 2020.) We accept the Attorney General’s concession on that point and will order the enhancements stricken. The Attorney General observes the matter need not be remanded for resentencing because the court imposed the most stringent aggregate sentence possible. (See People v. Lopez, supra, 42 Cal.App.5th at p. 342.) Defendant agrees with the Attorney General’s application of Senate Bill 136.

8 Defendant points to the “break in time during which Byares was painting in the kitchen before she came out to the garage and asked them to stop fighting. But the parties could have been fighting for some time prior to Byares hearing them. We simply do not know what happened during that timeframe and the absence of evidence about that timeframe does not suggest anything about defendant’s intent. Defendant also says, without citation to evidence, that the conversation with Mayer at the door “went awry.” But the evidence that something went “awry” was the fighting itself. There is no evidence establishing that the fighting resulted from something said during the conversation, rather than from a preconceived plan to rob Mayer. 9 Senate Bill No. 136 amended section 667.5, subdivision (b), and provides that “a one-year prior prison term enhancement will only apply if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).” (People v. Lopez (2019) 42 Cal.App.5th 337, 340–341.)

8. DISPOSITION All four of defendant’s prior prison term enhancements are hereby stricken. The trial court is directed to cause an amended abstract of judgment to be prepared and transmitted to the appropriate parties and entities. In all other respects, the judgment is affirmed.

POOCHIGIAN, Acting P.J. WE CONCUR:

DETJEN, J.

MEEHAN, J.

9.