People v. Garcia

Procedural entryThis page is a short order in People v. Garcia. Read the opinion of the Court — 244 Cal. App. 4th 1349 →

California Court of Appeal·Decided June 8, 2018·No. D073825·Published

Opinion

Filed 6/5/18

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D073825

Plaintiff and Respondent,

v. (San Diego County Super. Ct. No. SCN340086) JOSE EPIFANIO GARCIA, ORDER STRIKING Defendant and Appellant. WENDE/ANDERS BRIEF FILED BY COUNSEL FOR APPELLANT

THE COURT:

A jury convicted Jose Epifanio Garcia1 of attempted voluntary manslaughter and

assault with a semiautomatic firearm (Pen. Code, §§ 664, 192, subd. (a), 245, subd. (b)),2

and Jose filed an appeal. For reasons we discuss, the Wende/Anders3 brief filed by Jose's

* This matter has been considered by Justices Benke, O'Rourke, and Irion. Justice Irion concurs in parts I and II and concurs in the result in part III.

1 Jose was jointly tried with his brother, Salvador. For the sake of clarity, we refer to the Garcia brothers by their first names.

2 Further unspecified statutory references are to the Penal Code.

3 People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders). appointed appellate counsel is stricken. Counsel is ordered to file a new brief in

conformity with Wende, supra, 25 Cal.3d 436, or file a merits brief.

FACTUAL AND PROCEDURAL BACKGROUND

Jose is Salvador's older brother. Salvador insulted the sister of victim Gerardo M.,

causing animosity between Salvador and Gerardo. A few months later, when Salvador

and Gerardo next saw each other, the unresolved animosity between them led to a

physical fight between two groups of men in the parking lot of Gerardo's apartment

complex. One group included Jose, Salvador, and two of their friends. The other group

included Gerardo, his cousin, and friend, Erik R. Armed with guns, Jose and Salvador

approached Gerardo's unarmed group. Erik, who was a former gang member, suggested

that Jose's group put their guns away and fight "one on one." Members of Jose's group

then began fist fighting with members of Gerardo's group.

During the fight, Salvador pointed a gun at Erik's head. Out of concern for Erik's

life, Gerardo threw a beer bottle at Salvador's head, but missed. The fighting continued,

Gerardo got shot in the torso, and fell to the ground. While Gerardo was down on his

back, Salvador and his friend punched him. Next, Salvador pulled out a gun from his

waistband area and shot Gerardo in the face. At that point, Gerardo's father stopped the

fight. Salvador pointed his gun at several of Gerardo's family members while threatening

to shoot. Jose and Salvador fled the area together.

Gerardo, who survived his gunshot wounds, and his sister identified Salvador as

the shooter. Gerardo identified Jose as a person who had been holding a gun during the

fight.

2 Jose and Salvador were charged with attempted murder (§§ 664, 187, subd. (a))

and assault with a semiautomatic firearm (§ 245, subd. (b)). During their joint trial, the

People's theory, with respect to attempted murder, was that (1) Salvador shot Gerardo;

and (2) Jose intended to aid and abet Salvador with committing assault with a

semiautomatic firearm, a natural and probable consequence of which was attempted

murder. The court instructed the jury accordingly. The court also instructed the jury on

the lesser included offense of attempted voluntary manslaughter based on heat of

passion/sudden quarrel and imperfect self-defense.

After deliberating, the jury convicted Jose of attempted voluntary manslaughter

and assault with a semiautomatic firearm. (§§ 664, 192, subd. (a), 245, subd. (b).) The

court sentenced him to a prison term of nine years for assault with a semiautomatic

firearm.4 Jose filed a timely appeal.5

APPELLATE PROCEEDINGS

Jose's appointed appellate counsel submitted a brief on Jose's behalf "pursuant to

the procedures outlined in [Wende, supra,] 25 Cal.3d 436 and Anders[, supra,] 386 U.S.

738."

The discussion section of the brief states as follows:

4 The court stayed his sentence on attempted voluntary manslaughter under section 654.

5 Jose's appeal initially proceeded under the same case number as Salvador's appeal. On the court's own motion, we bifurcated the appeals and assigned this appeal a different case number. 3 "When counsel files a brief which sets forth a summary of the proceedings and facts with citations to the transcript, but raises no specific issues, the Court of Appeal must conduct a review of the entire record to determine whether the record reveals any issues which would, if resolved favorably to the appellant, result in reversal or modification of the judgment. ([Wende, supra,] 25 Cal.3d 436; People v. Feggans (1967) 67 Cal.2d 444; Anders[, supra,] 386 U.S 738 . . . ; see also People v. Johnson (1981) 123 Cal.App.3d 106, 109-112.)"

"This brief, with the attached declaration of appellate counsel, is filed in accordance with the procedures outlined in [Wende, supra,] 25 Cal.3d 436, and People v. Feggans, supra, 67 Cal.2d 444, as interpreted by the court in People v. Johnson, supra, 123 Cal.App.3d 106. The following information about claims appearing in the record is provided pursuant to Anders[, supra,] 386 U.S 738, to assist the court in conducting its independent review of the record." (Boldface added.)

The brief then identifies general and specific "claims" appearing in the record. Under the

claim headings are citations to the clerk's transcripts and/or reporter's transcripts, and

each claim is accompanied by string citations listed in no particular order, as follows:

"A. ERROR FOR FAILURE TO SEVER APPELLANT'S CASE FROM THAT OF HIS BROTHER SALVADOR?

"(CT 1:209, 215-216, RT 1:114-116, RT 16:1260; Pen. Code, § 1098; Zafiro v. United States (1993) 506 U.S. 534, 544; People v. Thompson (2016) 1 Cal.5th 1043, 1081; People v. Homick (2012) 55 Cal.4th 816, 850; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41; People v. Burney (2009) 47 Cal.4th 203, 236-237; Williams v. Superior Court (1984) 36 Cal.3d 441, 447-448; People v. Massie (1967) 66 Cal.2d 899, 917; People v. Cummings (1993) 4 Cal.4th 1233, 1287; United States v. Tootick (9th Cir. 1991) 952 F.2d 1078, 1082; United States v. Romanello (5th Cir. 1984) 726 F.2d 173, 174 People v. Boyde (1988) 46 Cal.3d 212, 231; People v. Jackson (1996) 13 Cal.4th 1164, 1208-1209; People v. Souza (2012) 54 Cal.4th 90, 110-111; People v. Greenberger (1997) 58 Cal.App.4th 298, 343; People v. Garcia (2008) 168 Cal.App.4th 261, 280; People v. Hardy (1992) 2 Cal.4th 86, 168; United States v. Sherlock (9th

4 Cir. 1989) 962 F.2d 1349, 1362; United States v. Buena Lopez (9th Cir. 1993) 987 F.2d 657, 661.)

"B. SUFFICIENCY OF EVIDENCE RE AIDING AND ABETTING?

"(Juan H. v. Allen (9th Cir.2005) 408 F.3d 1262, 1277-1278; People v. Nguyen (1993) 21 Cal.App.4th 518, 531; People v.

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