Opinion
F072091
11-08-2017
THE PEOPLE, Plaintiff and Respondent, v. EDWIN GARCIA, Defendant and Appellant.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR041667)
OPINION
THE COURT APPEAL from an order of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Caitlin Christian, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and John W. Powell, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Franson, J. and Smith, J.
-ooOoo-
The trial court found that appellant Edwin Garcia violated a grant of probation in case No. MCR041667 and sentenced him to a prison term of four years. On appeal, Garcia contends: (1) the admission of testimonial hearsay at his probation revocation hearing violated his due process right to confrontation; and (2) he was denied the effective assistance of counsel by defense counsel's failure to object to the introduction of this hearsay. We find merit to Garcia's ineffective assistance of counsel claim and remand the matter to the trial court.
FACTS
In the early morning of April 17, 2011, Garcia and two or three other people severely beat a former Norteño gang member, requiring him to be hospitalized (case No. MCR041667).
On March 16, 2012, Garcia pled guilty to assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)).
All further statutory references are to the Penal Code, unless otherwise noted.
On April 13, 2012, the court placed Garcia on probation for five years with certain terms and conditions, including that he serve 112 days in jail.
On November 15, 2013, after Garcia admitted violating his probation, the court reinstated probation and ordered him to serve 120 days in jail.
On April 20, 2015, the probation department filed a petition alleging Garcia violated the condition of probation requiring him to obey all laws by committing the offenses of being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and active participation in a criminal street gang (§ 186.22, subd. (a)) (case No. MCR051456).
On May 1, 2015, following a combined preliminary hearing and probation violation hearing in case No. MCR051456, the court bound over Garcia on a charge of assault with a firearm (§ 245, subd. (a)(4)) with a gang enhancement (§ 186.22, subd. (b)), and a charge of active participation in a criminal street gang. In case No. MCR041667, it found that Garcia violated his probation.
On July 28, 2015, the court revoked appellant's probation in case No. MCR041667 and sentenced him to an aggravated prison term of four years.
The Combined Preliminary Hearing and Probation Violation Hearing
At the combined hearing, the parties stipulated that the Norteño gang was a criminal street gang. Additionally, Madera Police Officer Juan Gaona testified that on April 16, 2015, at approximately 9:28 p.m., he was dispatched to Town and Country Park in Madera, on a report of subjects in a red van brandishing a firearm. En route, Gaona spotted Garcia driving a van matching the description of the van involved in the brandishing incident and initiated a traffic stop. As the vehicle slowed, Mark Saenz, the front passenger, got out and started running. Gaona chased Saenz and observed him reach toward his waistband with his left hand. Gaona continued chasing Saenz and saw him make a motion with his left hand as if he was throwing something. Gaona caught up to Saenz, handcuffed him, and walked him back to the patrol car. Gaona and Officer Sizemore then returned to the area where Gaona saw Saenz discard something. In some bushes, they found a semiautomatic handgun that contained a magazine with 15 live rounds.
Gaona also testified that Sizemore seized two cell phones, a bumper sticker with the "Huelga bird" on the front windshield by the dash, and three CD cases from underneath the front driver's seat. One of the CD cases had an image of several people, whom Gaona described as gang members, who were dressed in red and black clothing and exhibiting gang signs. The people were standing over a person laying on the ground who was dressed in blue and was bleeding. Sizemore also told him that when one of the cell phones rang, an image of the Huelga bird displayed on the screen.
The Huelga bird is a symbol commonly used by the Norteño criminal street gang.
Only a few minutes elapsed between the time Gaona received the brandishing a weapon call and when he spotted Garcia driving the van.
Officer David Herspring testified, without objection, that he spoke with Briana Leon, the woman who called 911 to report seeing someone point a gun at a group of juveniles in the park. Leon told Herspring she was walking with a friend when she saw a purple, burgundy van drive past them and then drive by a group of about six juveniles. She then saw the front seat passenger lean out of the van and point a black handgun toward the group of juveniles. One of the juveniles in the group said, "Hey, we got to get out of here," and the juveniles got in some cars and left. Herspring subsequently showed Leon a picture of the van Garcia and Saenz were in when they were stopped and she identified it as the van she saw at the park.
Detective Hector Garibay testified as an expert that on April 16, 2015, Garcia was an active participant in the Norteño gang. He based his opinion on a number of factors, including Garcia being in the company of Saenz, a known gang member, the various gang paraphernalia found in the van, and Garcia's gang tattoos. Garibay also testified that Saenz was a member of the Norteño gang, that he had been a member of the subset of Adelaide Street, but most recently he associated with the North Side Madera subset. Garibay based his opinion on a number of factors, including Saenz's gang tattoos and his association with other gang members. Garibay also testified that brandishing a gun at the juveniles benefited the Norteño gang because it intimidated victims of gang offenses and witnesses.
Although Detective Garibay referred to the pointing of a firearm out of the front passenger's window as brandishing a weapon, under People v. Miceli (2002) 104 Cal.App.4th 256, it also was an assault. (Id. at p. 269 ["To point a loaded gun in a threatening manner at another ... constitutes an assault, because one who does so has the present ability to inflict a violent injury on the other and the act by its nature will probably and directly result in such injury."].)
DISCUSSION
Garcia relies on People v. Arreola (1994) 7 Cal.4th 1144, 1151 (Arreola) to contend he was denied his due process right of confrontation because the court allowed Officer Herspring to testify regarding witness Leon's testimonial hearsay statements about the assault without a showing of good cause. Garcia further contends that because the error was of constitutional dimensions, prejudice must be assessed under the harmless beyond-a-reasonable-doubt standard (id. at p. 1161; Chapman v. California (1967) 386 U.S. 18, 24), and that under this standard, the error was not harmless because the testimonial hearsay was the only evidence that an assault occurred. Alternatively, Garcia contends that he was denied the effective assistance of counsel by defense counsel's failure to object to the introduction of witness Leon's hearsay statements. Respondent contends Garcia forfeited his challenge to the introduction of witness Leon's hearsay statements by defense counsel's failure to object. Respondent further contends defense counsel did not provide ineffective representation by his failure to object because he may have had a tactical reason for not objecting. We agree with Garcia that defense counsel provided ineffective representation by his failure to object to the introduction of witness Leon's hearsay statements and that the failure to object was prejudicial.
"The minimum due process requirements at a formal probation revocation hearing include written notice of the claimed violations, disclosure of evidence against the defendant, an opportunity for the defendant to be heard and to present evidence, and 'the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).' [Citations.] The defendant's right of confrontation at the formal revocation hearing does not arise from the confrontation clause, but from due process [citation]; it is 'not absolute. Confrontation may be denied if the trier-of-fact finds and expresses good cause for doing so.' [Citation.] For example, the former testimony of a legally unavailable witness is generally admissible. [Citation.] Due process does not prohibit the 'use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.' " (People v. Gomez (2010) 181 Cal.App.4th 1028, 1033-1134.)
In Arreola, the Supreme Court held that the introduction of a preliminary hearing transcript violated the defendant's due process right to confrontation because the prosecutor failed to establish good cause for its admission. In so doing, the court reaffirmed its holding in People v. Winson (1981) 29 Cal.3d 711, "requiring a showing of good cause before a defendant's right of confrontation at a probation revocation hearing can be dispensed with by the admission of a preliminary hearing transcript in lieu of live testimony." (Arreola, supra, 7 Cal.4th at p. 1159.) "The broad standard of 'good cause' is met (1) when the declarant is 'unavailable' under the traditional hearsay standard (see Evid. Code, § 240), (2) when the declarant, although not legally unavailable, can be brought to the hearing only through great difficulty or expense, or (3) when the declarant's presence would pose a risk of harm (including, in appropriate circumstances, mental or emotional harm) to the declarant." (Id. at pp. 1159-1160.)
Officer Herspring's testimony regarding the hearsay statements of witness Leon were akin to the preliminary hearing testimony at issue in Arreola. Further, as in Arreola, the prosecutor here did not establish good cause for their admission. Thus, admission of witness Leon's hearsay statements violated Garcia's due process right to confrontation.
Although Garcia forfeited this issue by defense counsel's failure to object, the issue is cognizable in the context of Garcia's claim that defense counsel provided ineffective representation by his failure to preserve this issue by objecting.
"The test for determining whether a criminal defendant received ineffective assistance of counsel is well-settled. The court must first determine whether counsel's representation 'fell below an objective standard of reasonableness.' [Citation.] The court then inquires whether 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " (People v. Jones (2010) 186 Cal.App.4th 216, 234-235.)
The petition alleged Garcia violated his probation by committing the offense of being a felon in possession of a firearm and the offense of participating in a criminal street gang. The assault and gang offenses on which Garcia was bound over in case No. MCR051456 were both dependent on witness Leon's testimony because Gaona's testimony that he chased Saenz and recovered a hand gun that Saenz discarded did not, by itself, implicate Garcia in either of these offenses. Further, one element of the offense of active participation in a criminal street gang is "the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang." (People v. Albillar (2010) 51 Cal.4th 47, 56.) Although Garibay provided evidence that Saenz and Garcia were Norteño gang members, witness Leon's hearsay statements were the only evidence presented at the hearing that supported an inference that Garcia promoted, furthered, or assisted in any felonious conduct by Saenz. Since Leon's statements were the only evidence that implicated Garcia in either of the two probation violations, "we can conceive of no tactical reason whatsoever which might have dictated trial counsel's decision not to object." (People v. Moreno (1987) 188 Cal.App.3d 1179, 1191.)
Moreover, counsel's failure to object prejudiced Garcia because, as discussed above, without Leon's hearsay statements the prosecutor would not have been able to prove Garcia violated his probation. Thus, we conclude Garcia was denied the effective assistance of counsel by defense counsel's failure to object to the admission of Leon's hearsay statements. However, since double jeopardy does not bar the retrial of a probation violation allegation that is reversed for insufficient evidence (Lucido v. Superior Court (1990) 51 Cal.3d 335, 343, fn. 5, In re Coughlin (1976) 16 Cal.3d 52, 61), we remand the matter to the trial court for it to conduct a new probation violation hearing.
Garcia contends that the evidence failed to establish that he promoted, furthered, or assisted a member of the same gang in which Garcia actively participated. Thus, according to Garcia, the court violated his right to due process when it revoked his probation because the evidence was insufficient to find that he participated in a criminal street gang. This issue is moot in light of our decision to remand the matter for a new probation violation hearing. --------
DISPOSITION
The order revoking probation is reversed and the matter remanded to the trial court for it to hold another probation hearing.
Based on our resolution of the ineffective assistance of counsel claim, upon issuance of remittitur, the clerk of this court is directed to give the required notice to the State Bar of California pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), and to defendant's trial counsel pursuant to Business and Professions Code section 6086.7, subdivision (b), and California Rules of Court, rule 10.1017.