P. v. Garcia

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Filed 6/11/07 P. v. Garcia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES GARCIA,
Defendant and Appellant.
E039839
(Super.Ct.No. FSB052583)
OPINION
APPEAL from the Superior Court of San Bernardino County. Michael M. Dest,
Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton,
Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General,
for Plaintiff and Respondent.

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A jury found defendant and appellant James Garcia guilty of being a felon in
possession of a firearm (Pen. Code, § 12021, subd. (a)(1),1 count 1) and of possessing
stolen property (§ 496, subd. (a), count 4).2 The jury also found true the allegation that
the crimes were committed for the benefit of a criminal street gang. (§ 186.22, subd.
(b)(1)(A).) Defendant admitted that he had a prior serious felony conviction, within the
meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b)
through (i), as well as section 667, subdivision (a)(1). The trial court sentenced
defendant to a total term in state prison of 14 years, including the upper term of three
years on count 1, doubled to six years as a result of the prior strike conviction, plus three
years for the gang enhancement, and a consecutive five years for the prior serious felony
conviction. As to count 4, the court sentenced defendant to four years, plus three years
for the gang enhancement; however, it stayed the sentence on count 4, pursuant to section
654.
On appeal, defendant contends that his trial attorney provided ineffective
assistance of counsel (IAC) by failing to object to an expert witness’s opinion that
defendant possessed a stolen firearm with the specific intent to benefit a street gang. He
thus claims that his conviction (although he does not specify which conviction) should be
reversed. Defendant also filed a supplemental brief, contending that the court erred in
imposing the upper term, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [124
1 All further statutory references will be to the Penal Code unless otherwise noted.
2 Counts 2 and 3 were dismissed, pursuant to the prosecution’s motion.

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S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) ___ U.S.
___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We disagree and affirm.
FACTUAL BACKGROUND
On August 26, 2005, Officer Michael Mascetti parked his police car in a parking
lot before attending a function. Someone informed him that one of the windows on the
car was broken. When he returned to the car, Officer Mascetti discovered that his gun
was missing.
On October 14, 2005, a parole agent (the agent) was conducting a parole visit in
Colton when he noticed defendant. He contacted defendant because he had information
that defendant was possibly in that area. When the agent started talking to defendant, he
noticed that defendant had the number “13” on his earlobes. The agent knew that “13”
was an insignia of the North Side Colton (NSC) gang, so he asked defendant if he was in
a gang. Defendant said he was from Colton, which indicated to the agent that defendant
was in the NSC gang. He checked defendant for weapons and found a loaded gun in his
front pocket. Once the agent took the gun, defendant fled. Defendant was soon
apprehended by a police officer. While the officer was booking defendant, he asked him
if he was a member of the NSC gang, and defendant said yes. The gun recovered from
defendant was Officer Mascetti’s stolen gun.
Officer Shawn McFarland testified as a gang expert at trial. In 2004, he began
working in the Colton Police Department gang unit. His primary function was to contact
gang members on a daily basis and interview them in order to gather information about
gangs based in Colton. He testified that the main criminal activities of the NSC gang

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included homicide, assault with a deadly weapon, robbery, carjacking, and selling
controlled substances. Officer McFarland stated that guns were a necessity to gang
members since they used guns to commit their crimes. The crimes committed helped
gangs portray themselves as violent, which in turn earned them respect in the community.
In addition, McFarland said guns benefit gangs by helping them defend against other
gangs and protect their territories.
Officer McFarland explained that since a lot of gang members had felony
convictions, they were not able to purchase guns; thus, most guns possessed by gang
members were stolen. The guns were then passed from gang member to gang member so
that they could commit crimes on behalf of the gang. Moreover, stolen guns particularly
benefited a gang since they could not be traced back to the gang when used to commit
crimes. Officer McFarland further stated that possession of a weapon would heighten a
gang member’s status within a gang. He testified that a gun stolen from a police officer
would especially heighten one’s status in a gang since gang members do not care for
police officers or want to cooperate with them.
Officer McFarland then stated that, based on his review of the facts in the instant
case and the testimonies at trial, he believed defendant committed the crime to benefit the
NSC gang and enhance his status within that gang. He further testified that, in general,
possession of a stolen gun by a gang member would benefit the gang and its reputation in
the community for violence.

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ANALYSIS
I. Defendant Has Failed to Demonstrate That He Received IAC
Defendant contends his attorney provided IAC by not objecting to Officer
McFarland’s testimony that defendant possessed a firearm with the specific intent to
benefit the NSC gang. Defendant argues that Officer McFarland’s opinion testimony
regarding his specific intent was inadmissible. He accordingly claims that he is entitled
to reversal of his conviction. At the outset, we note that the testimony at issue was only
relevant to the jury’s true findings on the enhancement allegations under section 186.22,
subdivision (b)(1)(A), not to the jury’s determination that defendant was guilty of the
underlying charges. Thus, defendant has not presented a valid basis upon which to
reverse his conviction. In any case, defendant’s IAC claim fails.
To demonstrate IAC, a defendant must establish that: 1) his counsel’s
performance was deficient under an objective standard of professional competency; and
2) there is a reasonable probability that, but for counsel’s errors, a more favorable
determination would have resulted. (People v. Holt (1997) 15 Cal.4th 619, 703.) If the
defendant makes an insufficient showing on either one of these components, the claim
fails. (Ibid.) “Moreover, ‘“a court need not determine whether counsel’s performance
was deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” [Citation.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1126.)

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A. Testimony at Issue
“[Prosecutor:] Now, you have listened to all of the testimony in this case and,
based upon your review of the facts of this case, do you have an opinion as to whether or
not this crime was committed with the specific intent to promote, benefit, or enhance
North Side Colton?
“A. Yes.
“Q. And what is that opinion?
“A. That this crime was committed to benefit the North Side Colton gang and the
gang status of [defendant] within that gang.
“Q. And how does that happen?
“A. Due to the fact that [defendant] was found in possession of a loaded firearm.
The firearm was stolen. It was stolen from a law enforcement officer. And upon being
retrieved or located by another law enforcement officer, James Garcia fled on foot and
was apprehended. [¶] What that does is show that he was uncooperative with law
enforcement, which was one of the major rules amongst members, that they be
uncooperative with law enforcement.
“Q. And as to your opinion of him possessing the weapon to benefit either himself
or the gang, does your prior contacts with [defendant] and a weapon impact that opinion
at all?
“[Defense Counsel]: Objection, your Honor. I cite Mitchell v. Prunty, the Ninth
Circuit, 1977. The police department cannot testify to specific elements of specific intent
or knowledge.

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“[Prosecutor]: Actually, your Honor, there’s more recent case law that says they
can.
“The Court: This is a --
“[Defense Counsel]: People v. Killebrew, 2002, I also cite.”
After that, the court sustained the objection, subject to review. Defense counsel
then moved to strike the answer. The court struck the answer and told the jury to
disregard it.
B. Defendant Cannot Show That He Was Prejudiced by the Testimony at Issue
Defendant now argues that defense counsel erred in failing to object to the
prosecutor’s first question regarding Officer McFarland’s opinion on whether defendant
committed the crime with the specific intent to benefit the NSC gang. He further
contends that, once defense counsel got the favorable ruling on the objection that she did
raise, she should have requested the court to also strike Officer McFarland’s answer to
the specific intent question. By failing to do so, defendant claims that his counsel
provided him with ineffective assistance and his conviction should be reversed. We
conclude that defendant has failed to show that a more favorable result would have
resulted, absent defense counsel’s alleged errors.
The evidence established that defendant was a felon in possession of a gun that
was stolen from a law enforcement officer. Defendant admitted that he was a member of
the NSC gang, and the evidence showed that the NSC gang’s main criminal activities
included offenses in which guns are used, such as homicide, assault with a deadly
weapon, robbery, and carjacking. Officer McFarland, a gang expert, testified that gang

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members who possess guns stolen from law enforcement officers would have heightened
status within the gang. Furthermore, the evidence showed that guns were necessary for
gangs to commit crimes, defend themselves against other gangs, protect their territories,
and establish their reputation in their communities. Officer McFarland explained that
most guns used by gangs were stolen, and that stolen guns were beneficial to gangs since
they could not be traced back to them. Once obtained, gang members would pass the
guns around to commit crimes on behalf of the gang. In view of this evidence, the jury
easily could have concluded that defendant stole Officer Mascetti’s gun for the benefit of
his gang, even without Officer McFarland’s opinion testimony.
Defendant argues that there was no direct evidence, other than Officer
McFarland’s opinion, that he possessed the gun with the intent to benefit his gang.
Without that evidence, defendant claims that the jury would have reached a different
conclusion. However, “‘[e]vidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a
conviction. [Citations.]’ [Citation.] A jury may infer a defendant’s specific intent from
the circumstances attending the act, the manner in which it is done, and the means used,
among other factors. [Citation.] . . . When the evidence is sufficient to justify a
reasonable inference that the requisite intent existed, the jury’s finding of that intent will
not be disturbed on appeal. [Citation.]” (People v. Ferrell (1990) 218 Cal.App.3d 828,
834.) The evidence here was sufficient to justify the jury’s true finding that defendant
had the requisite intent to support the enhancement.

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We conclude that it is not reasonably probable that, but for counsel’s alleged
errors, a more favorable determination would have resulted. Thus, defendant’s IAC
claim fails.
II. The Court Properly Sentenced Defendant to the Upper Term
Defendant contends that his Sixth Amendment right to a jury trial, as defined in
Blakely, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466
(Apprendi), was violated when the trial court imposed the upper term sentence in count 1.
We disagree and conclude that the present sentence may be affirmed based on
defendant’s recidivism.
A. The Upper Term Was Supported by Factors That Did Not Need to Be Found
by a Jury
In Blakely, the U.S. Supreme Court affirmed that “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.’”
(Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) In
Cunningham, supra, 127 S.Ct. at page 860, the United States Supreme Court held that the
imposition of an upper term sentence under California’s determinate sentencing law,
based solely on a judge’s factual findings, violates a defendant’s Sixth and Fourteenth
Amendment right to a jury trial.
At the outset, the People assert that defendant forfeited his Blakely claim by failing
to raise it at the sentencing hearing. We disagree. At the time of defendant’s sentencing,
the decision in People v. Black (2005) 35 Cal.4th 1238 (Black) was the controlling

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precedent. Black held that Blakely did not apply to California’s determinate sentencing
law. (Black, supra, at p. 1244.) In light of that holding, it would have been futile for
defendant to raise a Blakely objection at sentencing. “Reviewing courts have
traditionally excused parties for failing to raise an issue at trial where an objection would
have been futile or wholly unsupported by substantive law then in existence.” (People v.
Welch (1993) 5 Cal.4th 228, 237-238.) Thus, defendant did not waive his claim of
Blakely error by failing to object in the trial court. Nonetheless, his contention fails.
A single factor in aggravation suffices to support the imposition of the upper term.
(People v. Osband (1996) 13 Cal.4th 622, 730.) Here, the court based the upper term on
the aggravating factors that the firearm was stolen from a police officer, defendant had
served a prior commitment in the California Youth Authority (CYA), he was on felony
probation at the time he committed the offense, and he was personally armed with a
loaded weapon. Both Blakely and Apprendi recognize that “the fact of a prior
conviction” can be found by a judge, even though any other fact that increases the
maximum statutory penalty for a crime must be found by a jury. (Blakely, supra, 542
U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.) The Apprendi exception for prior
convictions has been broadly interpreted by California courts. (People v. Thomas (2001)
91 Cal.App.4th 212, 221-223.) Because the facts of defendant’s probation status at the
time of the current offense and his prior CYA commitment arise out of the fact of a prior
conviction, and are so closely related to the prior convictions themselves, they come
within the prior conviction exception. Also, as with a prior conviction, these facts can be
established by a review of court records. (Id. at p. 223.) Thus, the upper term was

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supported by factors that did not need to be found by a jury. (Blakely, supra, at p. 301;
Apprendi, supra, at p. 490.)
B. Any Error Was Harmless
The record shows that the court relied upon factors, which perhaps should have
been submitted to a jury—that the firearm was stolen from a police officer and that
defendant was personally armed with a loaded weapon. However, in view of the court’s
proper reliance on the recidivist factors, any error in relying on the other factors was
harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Price (1991) 1 Cal.4th
324, 492, superseded by statute on other grounds as stated in People v. Hinks (1997) 58
Cal.App.4th 1157, 1161-1164.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P.J.
KING
J.

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