People v. Garza CA4/3 ( 2021 )

Filed 12/2/21 P. v. Garza CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060383
v. (Super. Ct. No. C1356498)
LOUIE GARZA, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Santa Clara County, Julia
L. Alloggiamento, Judge. Affirmed in part, reversed in part, and remanded with
directions.
Mark David Greenberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Eric D. Share and
Katie L. Stowe, Deputy Attorneys General.
* * *
Appellant was convicted of killing his cousin and sentenced to 84 years to
life in prison. He contends his murder conviction must be reversed because of two
instructional errors, and that pursuant to several newly enacted Senate Bills, his sentence
must be vacated and the matter remanded for a new sentencing hearing. We conclude
there were no reversible errors, but agree appellant is entitled to a new sentencing
hearing. We affirm the conviction and remand for further proceedings.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Case-in-Chief
1. Testimony of the Victim’s Wife
In May 2013, Ralph Gomez and his wife Vicky were living at her brother’s
house in San Jose. On the morning of May 8, appellant, who is Gomez’s cousin, and his
wife Carmen came over to visit. While the group conversed in the kitchen, appellant,
Carmen and Gomez drank beer and shared a phencyclidine (PCP) cigarette. Appellant
paid Gomez $30 for another PCP cigarette.
When Vicky noticed Carmen had stopped talking and was propping her
head up with her hands, Vicky twice asked Carmen what was wrong, but received no
response. Appellant then pulled out a gun, pointed it at Gomez, and said, “‘What?
What? What? I don’t give a fuck. I’m going to kill everybody in this fucking house.’”
Gomez remained seated, “hunched over with his hands over his head and his elbows
down by his knees.” When appellant said, “‘What about that girl?’” Gomez responded,
“‘What girl?’”
Vicky slowly backed out of the kitchen and went to a bedroom to find a cell
phone, but was unsuccessful. She decided to get help, and as she began climbing out
through the window, she heard Gomez say, “‘If you’re going to fucking . . .’” which she
took to mean, “If you’re going to do it, just do it.” Then she heard a gunshot. Vicky was
afraid appellant would shoot her next. She ran to the next-door neighbor’s house and
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knocked on the door, but no one answered. After knocking on several other neighbors’
house and receiving no response, Vicky hid behind a car for about 15 minutes.
After Vicky saw appellant and Carmen leave, she went back into the house
where she saw Gomez lying face down on the floor in the living room with a gunshot in
the back of his head. She used a neighbor’s phone to call her son and tell him that
appellant had shot Gomez. Then she called 911.
2. Other Evidence
San Jose Police Sergeant Jacqueline Lonero responded to the scene. She
saw Gomez lying face down on the floor, with his fingers laced together above his head.
Other than an overturned chair, there was nothing that made Lonero believe there had
been any fight or struggle.
The autopsy showed Gomez died from the gunshot wound to the back of
his head, which was almost immediately fatal. Gomez was killed by a hollow-point
bullet, a type of ammunition designed to cause more lethal damage than similar caliber
ammunition.
San Jose Police Sergeant Stewart Davies testified he interviewed Vicky at
the crime scene, and obtained arrest warrants for appellant and Carmen and search
warrants for appellant’s residence and Acevedo’s vehicle. The police were able to arrest
Carmen at the residence, but appellant could not be located. In appellant’s home, police
found two live bullet cartridges in a glove inside of a dresser drawer, an empty handgun
case, and a safe with boxes of ammunition. Police found four live bullet cartridges in the
trunk of Carmen’s car.
Appellant’s daughter testified her father visited her a few days after the
shooting, at her Oregon house. Appellant confessed to shooting Gomez in the head,
stating it was “me or him” and that he needed to hurt Gomez before Gomez hurt him. He
also said that he was upset because Gomez had “ripped him off for some money in a drug
deal.” After shooting Gomez, he “kicked [Gomez] in the head like the little bitch that he
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was.” He then buried the gun “where the cops [would] never find it.” Appellant told his
daughter he knew the police were looking for him and had come to say goodbye.
On July 22, 2013, appellant left a voicemail message for Vicky’s niece,
apologizing for “what happened,” claiming his “wife didn’t have nothing to do with it,”
and admitting, “I did it.” Several days later, appellant turned himself in to the police.
B. Defense Case
Appellant testified he could not fully recall the shooting incidence because
he had used PCP that day. He drove to Gomez’s home because he wanted to get high and
had heard Gomez had some drugs. He brought a loaded handgun to show off to Gomez.
Appellant paid Gomez $30 for two PCP cigarettes, and he smoked one with Gomez in the
kitchen. While smoking the PCP cigarette, appellant repeatedly told Gomez it smelled
funny, which made Gomez angry.
Gomez started yelling and kicked the chair out from under appellant.
Gomez threatened to kill appellant and Carmen, before pushing and kicking appellant.
Appellant retaliated by punching Gomez in the nose. Appellant did not remember
shooting Gomez, but when he “came to,” Gomez was on the ground. Appellant knew
that he “was in trouble,” threw the gun in a dumpster, and left town.
Appellant testified Gomez had a reputation as a violent bully. He
witnessed Gomez threatening to kill his brother and beating up one of his nieces’
boyfriend. Appellant also saw Gomez with a knife and had heard Gomez owned a gun.
Appellant’s sister testified Gomez had a reputation for violence. A police
officer testified Gomez had kicked out the window out of his patrol car in 2011. Several
witnesses testified Gomez had threatened to kill them. Gomez had a 2004 conviction for
attempted robbery while armed with a firearm.
C. Rebuttal Case
A friend of Gomez who dated appellant for several years testified it was
appellant, not Gomez, who had a reputation for violence or aggression. Appellant
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bragged about having committed violent acts and on one occasion, he pointed a shotgun
at her.
In a recorded jail call, appellant told his wife he would go for a claim of
self-defense, claiming Gomez had pulled a gun out on him. In another recorded jail call,
appellant told his wife to say she did not remember the shooting incident because she was
in the bathroom at the time. Appellant stated while Carmen was in the bathroom, he had
asked Gomez about a woman he was messing around with, and Gomez got “all riled up.”
Gomez pulled out a gun and threatened to kill appellant and his wife. Appellant got
scared and “jumped on him.” At trial, appellant admitted Gomez never had a gun.
D. Trial and Sentence
A jury found appellant guilty of first degree murder and found true a gun
use enhancement. In a court trial, the court found true a prior conviction and prior prison
term allegations. Appellant was sentenced to 84 years to life.
II
DISCUSSION
A. Instructional Errors
Appellant contends his murder conviction must be reversed because the
trial court erred in giving CALCRIM No. 571, on imperfect self-defense, and CALCRIM
No. 370, on motive. We review instructional claims de novo. (People v. Posey (2004)
32 Cal.4th 193, 218.) “It is error to give an instruction which, while correctly stating a
principle of law, has no application to the facts of the case.” (People v. Guiton (1993)
4 Cal.4th 1116, 1129.) Thus, “instructions not supported by substantial evidence should
not be given” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.) Evidence is
“[s]ubstantial” for this purpose if it is “sufficient to ‘deserve consideration by the jury,’
that is, evidence that a reasonable jury could find persuasive.” (People v. Barton (1995)
12 Cal.4th 186, 201, fn. 8.)
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1. Substantial Evidence Supported Giving the Challenged Portion of CALCRIM No. 571
When the parties discussed CALCRIM No. 571, which provides that a
killing that would otherwise be murder is reduced to voluntary manslaughter if the
defendant killed the person in imperfect self-defense or imperfect self-defense of another,
defense counsel sought to exclude the portion of CALCRIM No. 571, which states:
“Imperfect self-defense does not apply when the defendant, through his own wrongful
conduct, has created circumstances that justify his adversary’s use of force.” The trial
court denied the request.
Appellant contends the evidence was insufficient to support giving the
challenged portion of CALCRIM No. 571 because the trial evidence did not suggest he
committed some wrongful conduct which provoked Gomez’s use of force resulting in the
shooting. We disagree. Vicky testified appellant pulled out a gun and threatened to kill
everyone. Appellant also mentioned a “girl” before Vicky left the room. In a recorded
jail call, appellant stated he had asked Gomez about a girl he was messing around with,
which caused Gomez to threaten to kill him and his wife. At trial, appellant testified
Gomez was a violent bully and that during the incident Gomez threatened to kill
appellant and his wife and kicked him. A reasonable jury could find that appellant pulled
a gun out on Gomez, which caused Gomez to threaten and kick him, and appellant
retaliated by shooting Gomez. The jury could conclude appellant committed a wrongful
act that justified Gomez’s kick and threat. Thus, substantial evidence supported giving
the challenged portion of CALCRIM No. 571.
2. Appellant’s Challenge to CALCRIM No. 370 Is Barred
The jury was instructed with CALCRIM No. 370 as follows:
“The People are not required to prove that the defendant had a motive to
commit the crimes charged or discharge the firearm. In reaching your verdict you may,
however, consider whether the defendant had a motive.
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“Having a motive may be a factor tending to show that the defendant is
guilty or that an allegation is true. Not having a motive may be a factor tending to show
the defendant is not guilty or that an allegation is not true.”
Appellant contends the motive instruction improperly reduced the
prosecution’s burden of proof. However, motive is not an element of the crime of
murder. (People v. Whisenhunt (2008) 44 Cal.4th 174, 218.) In any event, it was defense
counsel who requested the instruction, and when the parties discussed the proposed
instruction, approved its form. Thus, appellant is barred from challenging the instruction
under the doctrine of invited error. (See, e.g., People v. Enraca (2012) 53 Cal.4th 735,
761 [“The doctrine of invited error bars a defendant from challenging an instruction when
the defendant has made a conscious and deliberate tactical choice to request it.”].)
B. Appellant Is Entitled to a New Sentencing Hearing
Appellant’s sentence included four one-year enhancements for prison priors
under Penal Code section 667.5, subdivision (b), and one five-year enhancement for a
prior serious felony under section 667, subdivision (a). Appellant contends he is entitled
to the benefits of Senate Bill No. 136, effective January 1, 2020, under which his prison
priors no longer qualify as enhancements. Thus, he argues, the court’s true finding of the
prison priors and the imposition of the related enhancements under Penal Code section
667.5, subdivision (b), must be vacated. Appellant also argues the matter must be
remanded for the trial court to exercise its newly-granted discretion under Senate Bill No.
1393, effective January 1, 2019, whether to impose the five-year enhancement for the
prior felony conviction. The People agree on both sentencing issues.
We conclude appellant is entitled to the benefits of Senate Bill Nos. 136
and 1393. The court’s true findings on the prison priors and the related enhancements
must be stricken. We will vacate the sentence and remand the case for a new sentencing
hearing, at which the court will exercise its discretion its discretion whether to strike the
Penal Code section 667, subdivision (a), enhancement.
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III
DISPOSITION
The conviction is affirmed, the sentence is vacated, and the matter
remanded for further proceedings in accordance with this opinion.
ZELON, J.*
WE CONCUR:
O’LEARY, P. J.
GOETHALS, J.
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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