COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
December 9, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
DAVID ELIGIO GARCIA, DEFENDANT AND APPELLANT.
APPEAL from a judgment of the Superior Court of Riverside County, Peter L. Spinetta, Judge. Affirmed. (Super. Ct. No. RIF112212)
The opinion of the court was delivered by: Benke, Acting P. J.
P.v . Garcia CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted David Eligio Garcia of attempted murder (Pen. Code,*fn1 §§187, 664), shooting at an occupied motor vehicle (§ 246), and assault with a semi-automatic firearm (§245, subd. (b)). The jury made true a finding Garcia was armed with a firearm in the commission of the offenses (§12022, subd. (a)(1)). However, the jury found not true an allegation Garcia personally and intentionally used a firearm in the commission of the attempted murder. The court sentenced Garcia to a term of life in state prison, with a consecutive determinate term of one year. On appeal Garcia contends the court erred in denying his motion for a new trial and in admitting hearsay evidence as past recollection recorded. Neither of these contentions has merit and accordingly we affirm the judgment.
On September 4, 2003, Beatriz Barajas was Garcia's girlfriend. That evening Barajas got off work at 8:00 p.m. and returned home to find Garcia waiting for her. The two smoked methamphetamine together and at some point during the course of the evening, Garcia told Barajas he wanted to go see a friend of his, Vladimir Diaz. Garcia and Barajas then got into Barajas's Toyota Celica and Garcia drove them to Diaz's home near Vine Street in Riverside.
Upon arriving at Diaz's home, Garcia went inside while Barajas stayed in the car. After a few minutes, Garcia and Diaz came back to the car. Barajas got in the back seat, Diaz sat in the front passenger seat, and Garcia again drove. While in the car the three occupants smoked more methamphetamine. Diaz told Barajas that either he or his house had been shot at earlier in the evening and the people who shot at him lived in the area near Victoria and 14th Street in Riverside.
After driving to the home of yet another friend, Garcia drove the car to Kansas Street, near 14th street, and parked the car. While the car was parked, Barajas saw Garcia dismantle a handgun and show Diaz how to clean the gun and wipe fingerprints from bullets.
Garcia then started driving the car and shortly thereafter told Barajas to lie down in the back seat of the car. After feeling a right turn, Barajas heard "popping sounds" coming from the front of the car. She later described the sounds as three to four gunshots.
After the shots were fired, Garcia drove away from the scene and found a cul-de-sac where Diaz threw the gun out of a car window. After driving around some more, the three returned to the cul de sac to look for the gun. They were unable to find it and they then searched the car for shell casings. Barajas was able to locate one and threw it out a car window as well.
Garcia then drove erratically around Riverside because he thought he was being chased and shot at. Eventually, the car was pulled over by a California Highway Patrol (CHP) officer, who requested assistance from the Riverside Police Department.
Richard Soliz, Jr.
At around 10:00 p.m. on September 4, 2003, Richard Soliz, Jr., was driving to his cousin's house in Riverside. As he made a U-turn to park in front of his cousin's house, Soliz noticed a Toyota Celica approaching his car at a high rate of speed. He parked his car and the Celica stopped roughly a half car length behind him and parallel to him. Soliz heard "popping sounds" and when he looked over his left shoulder to investigate, he saw flashes coming from the Celica. As the rear passenger window of his car shattered, Soliz realized he was being shot at. Soliz later found bullet holes on his car and bullets lodged in the frame of his car as well as in one of the passenger seats.
When he was interviewed by police shortly after the shooting, Soliz was able to describe the car from which the shots had been fired but was unable to identify the driver or any of the occupants. Later, Riverside police brought Soliz to the stop where he identified Barajas's Celica as the car from which the shots had been fired.
Juan Munoz is a Riverside police officer and responded when the CHP advised it had stopped the Celica. Munoz spoke to Barajas, who told him about the shooting and where the gun was located. With information provided by Barajas, police were able to recover a nine-millimeter handgun from the area where a gun had been thrown from the Celica.
Police were able to find gun residue on Diaz's hands and on the outside of the Celica's passenger door. They also noted the inside of the passenger door frame of the Celica had been damaged by a bullet; Barajas confirmed that the damage had not been there before the shooting. No gun residue was found on either Garcia or Barajas.
On the morning following the shooting, Garcia tested positive for the presence of methamphetamine and amphetamine in his bloodstream.
TRIAL AND POSTTRIAL PROCEEDINGS
Trial on the charges growing out of the shooting did not occur until more than four years after the shooting took place. At trial the prosecutor refreshed Barajas's memory with statements she had given police. Based on expert analysis of the trajectory of the bullet which damaged the passenger door of the Celica, and the fact that a shell casing was found inside the car, the prosecutor argued that Garcia, as the driver of the car, was the shooter. However, the prosecutor argued that even if Diaz was the shooter, Garcia was still guilty of the substantive offenses as an aider and abettor.
As we indicated at the outset, the jury found Garcia guilty of all the charges alleged in the information and a made a true finding he was armed when he committed the attempted murder. However, as we have noted, the jury found not true the allegation he personally and intentionally discharged a firearm. Following the verdict, Garcia made a motion for a new trial on the grounds there was insufficient evidence of his guilt. In particular, he argued that in light of the fact he was under the influence of methamphetamine and amphetamine there was inadequate evidence he intended to murder anyone. The trial court denied the motion.
I New Trial
Garcia argues that in denying his motion for a new trial, the trial court failed to conduct an independent review of the evidence. We find no error.
In his new trial motion, Garcia noted that the jury found he was not the shooter and that in light of the evidence he was under the influence of amphetamine and methamphetamine, the jury acted against the weight of the evidence in finding he knowingly and intentionally aided and abetted Diaz. Garcia further argued the court was required to make an independent review of the evidence and its weight. (See § 1181, subd. (6).) The People agreed that the trial court was required to independently review the evidence.
The court denied the motion and stated: "I just want to make one more comment before making my final ruling and that's with respect to the contention that the verdict was contrary to the evidence. The evidence at trial as the People's statement, I think, will state, the evidence at trial, this shows that defendant was the driver of the vehicle, that prior to the shooting the defendant shows Diaz how to wipe fingerprints from the bullets. The defendant made the decision after discussion with Diaz to drive to the specific location on Fourth Street; that defendant then drove to the Fourth Street location, a place where none of the three had reason to be at that night other than the shooting; that prior to turning the corner on Fourth, defendant told Barajas to lay down across the back seat. The defendant then stopped the vehicle, permitting Diaz to conduct the shooting, and then the defendant drove the vehicle away from the scene. The evidence introduced at trial also demonstrated that the defendant then drove to a secluded, dark dead-end street so the gun used in the shooting could be secreted. The evidence also demonstrated a motive for the shooting and so on . . . . This is from the People's brief. There's no question in my mind in this case that -- by the way, I come from the perspective here that it's tragic that Mr. Garcia committed the act that he did in this case as we'll talk about a little later. He's a person who had minor or no criminal record. There was testimony to the effect from his mother, albeit his mother, but from his mother and perhaps others that he was quote unquote, good boy until he go involved with methamphetamine. So I come from the perspective of some empathy, more than empathy, even sympathy for the situation, but the fact of the matter is that there is substantial evidence in this case to support the verdict of the jury, that he had an intent to kill and that he acted in a willful, premeditated manner. One might say it's too bad that . . . drugs led him to all of this and that's sad, but that does not negate the fact that what took place here was willful, deliberate, premeditated intentional killing or shooting, attempting to kill someone, and there is substantial evidence to support that finding."
Section 1181, subdivision (6), states in relevant part: "When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial . . . : [¶] 6. When the verdict or finding is contrary to law or evidence . . . ."
In considering a motion for new trial on this basis, although the trial court is required to weigh the evidence independently, it must nonetheless begin with a presumption the verdict is correct. (People v. Davis (1995) 10 Cal.4th 463, 523-524.) "The trial court 'should [not] disregard the verdict . . . but instead . . . should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.' [Citation.]
"A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. ' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' [Citation.]" (Id. at p. 524; see also People v. Robarge (1953) 41 Cal.2d 628, 633.)
In People v. Davis the court rejected the defendant's argument that the trial court there had failed to independently review the evidence: "Although defendant isolates statements in which the trial court refers to the jury's verdicts, it is clear from the record as a whole that it did not regard itself as bound by any of the jury's findings." (People v. Davis, supra, 10 Cal.4th at p. 524.) In particular, the court in People v. Davis relied on the trial court's fairly detailed discussion of the evidence and its statement of its view of the evidence. (Ibid.)
As in People v. Davis, looking at the record as a whole, it is clear the trial court considered the evidence with the independence required on a motion for a new trial. We note the trial court not only discussed in some detail the evidence which shows Garcia acted with an intent to kill on the evening of the shooting, but the court also expressed its sympathy for the defendant, his drug use and the tragic consequence of that drug use. Thus, the face of this record shows that the trial court carefully weighed conflicting considerations but nonetheless concluded Garcia acted intentionally. The consideration the trial court gave the evidence and its recognition of the consequences of its ruling plainly demonstrate the trial court exercised its independent judgment with respect to the evidence.*fn2
II Past Recollection Recorded
Garcia contends the trial court erred in admitting a recording of Barajas's interview with Officer Munoz as past recollection recorded under Evidence Code §1237. We find no error.
At a trial that occurred more than four years after the shooting, Barajas struggled to remember much of what she said to police both the night of the shooting and in subsequent interviews. Accordingly, during much of the course of Barajas's testimony, the prosecutor was permitted to refresh Barajas's recollection of what she said during those interviews with transcripts of interviews she had given police.
After Barajas had testified, but while she was still subject to recall as a witness, the prosecutor examined Officer Munoz with respect to a transcript of what Barajas told him when he interviewed her at the police station after the shooting. In particular, the prosecutor asked Munoz if Barajas had told him that that she had heard Diaz tell Garcia that he had been shot at that evening and that Diaz knew where the people who shot him hung out. Garcia's counsel objected to these questions on the grounds they called for hearsay and were speculative. The trial court overruled the objections and ruled that Munoz could read portions of the transcript of the interview into the record as past recollection recorded. While Munoz was on the stand, the trial court then conducted an unreported sidebar conference. At the end of the sidebar, the trial court stated that the parties had agreed that instead of having Munoz read the transcript into the record, the recording of the interview would be played for the jury.
On appeal Garcia argues the prosecution did not lay a proper foundation under Evidence Code section 1237 because Barajas did not testify that she had no memory of the specific statements she made in the interview or that the statements she made were true.*fn3 We reject this argument.
Principally, we reject it because at trial Garcia raised no objection on the grounds the prosecution had not laid a proper foundation. "[A] claim of error in the admission of evidence is generally not cognizable on appeal in the absence of a specific and timely objection in the trial court on the ground urged on appeal." (People v. Price (1991) 1 Cal.4th 324, 445.) As the respondent notes, here Garcia's failure to raise a foundational objection prevented the prosecution from curing any foundational defect at trial by recalling Barajas and establishing her lack of memory of the statements she made to Munoz and the accuracy of the recording.
However, we also reject Garcia's contention because the record in fact contains direct testimony by Barajas to the effect she had difficulty remembering what occurred on the evening of the shooting but that she was honest with Munoz when he interviewed her when the events surrounding the shooting were fresh in her mind. That testimony was sufficient to establish that Barajas lacked an adequate current memory and was reliable in stating that her earlier statements to Munoz were true; no more was needed to establish a foundation for admission of the interview. (See People v. Miller (1996) 46 Cal.App.4th 412, 423, disapproved on other grounds People v. Cortez (1998) 18 Cal.4th 1223, 1240.)*fn4
WE CONCUR: NARES, J. McINTYRE, J.