Filed 12/3/18
                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SIXTH APPELLATE DISTRICT

THE PEOPLE,                                         H043537
                                                   (Santa Clara County
        Plaintiff and Appellant,                    Super. Ct. No. C1368455)

        v.

JESSE GARCIA,

        Defendant and Respondent.


        Defendant Jesse Garcia was charged by information with participating in a
criminal street gang (Pen. Code, § 186.22, subd. (a), count 1) 1 and conspiracy to obstruct
justice (§ 182, subd. (a)(5)). The charges arose out of an investigation into a 2006
homicide, which had lain dormant until Garcia and other members of the Los Latinos
Locos (Triple L) street gang were implicated by someone in custody on an unrelated
offense. Garcia was accused of entering into an agreement with fellow gang members to
lie to police and obstruct the homicide investigation, preventing police from discovering
who committed the crime.
        Defense counsel filed a motion to dismiss the information pursuant to section 995.
On March 1, 2016, the trial court granted the motion and dismissed the information.
        On appeal, the People argue the trial court erred in granting the motion because
there was probable cause to believe that Garcia entered into a conspiracy to obstruct
justice. In the People’s view, the court wrongly concluded that this charge required
evidence that Garcia was an accessory after the fact (§ 32) or obstructed a peace officer in
the performance of his duties (§ 148).

        1
            Unspecified statutory references are to the Penal Code.
       As discussed below, we agree the trial court erred and we will reverse the order.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       A.     Preliminary hearing testimony and evidence
       On January 14, 2006, Chau Nguyen was sitting in his car in the driveway of his
residence when someone shot him twice in the head, killing him. The contemporaneous
police investigation did not uncover any viable leads and no arrests were made.
       San Jose Police Detective Erin Fong was assigned the case in 2010, and in July of
that year, she learned that an informant claimed to have material information about
Nguyen’s murder. On July 27, 2010, Fong interviewed the informant, Alfonso Chavoya,
who was in custody in an unrelated case.
       In that interview, Chavoya told Fong that in late 2005 or early 2006, he went to
see his girlfriend, Vicky Garcia, 2 at her house. When he arrived, he did not see Vicky, so
he wandered through the house looking for her. As he entered the back bedroom, he saw
two men, Augustin Rocha and Garcia, cleaning a gun. Chavoya said that both Rocha and
Garcia were members of Triple L and their gang monikers were “Sad Boy” and “Jeez,”
respectively. According to Chavoya, the gun he saw them cleaning was a .22 revolver.
In addition to cleaning the exterior of the handgun, Chavoya saw Garcia wiping the
bullets before loading them into the weapon. When Rocha and Garcia noticed that
Chavoya was watching them, they told him to get out of the bedroom.
       Chavoya told Fong he left the room as directed, and left the house, too, because he
could not find Vicky. He returned about 9:30 that evening. He and Vicky were in the
living room when Rocha ran in, followed by Garcia. Rocha was saying something like
“ ‘What do I do?’ ” and Garcia yelled “ ‘Where is the gun?’ ” and “ ‘Get rid of it.’ ” The
two men went down the hallway to talk to Vicky’s mother, who took a sweater Rocha
was wearing and burned it in the backyard. Chavoya left the house soon after.

       2
        Since Vicky shares the same last name as the defendant, we henceforth refer to
her by her first name.
                                             2
       A few days later, Chavoya ran into Rocha again. Rocha told him that he had shot
“an Asian guy” in the same neighborhood where Vicky lived. 3 Approximately one
month after that encounter, Chavoya was talking with Rocha’s sister, Felisa. Felisa, who
had been dating Garcia, told Chavoya she saw Garcia dispose of a gun near McKee Road
in San Jose. Felisa showed Chavoya the area where Garcia left the gun, but Chavoya
could not find it.
       Fong and another officer drove out to the site with Chavoya and asked him to
point to the area where Felisa told him Garcia put the gun. At Fong’s request, the records
department searched for reports of discarded weapons, and it turned up a report of a
.22-caliber revolver that had been found in the same area. That weapon was still in the
police department’s property unit. 4
       Based on the information provided by Chavoya, Fong obtained a court order to
monitor and record Garcia’s phone. Due to the length of time that had elapsed since the
murder, Fong attempted to instigate conversation about the crime among the subjects by
calling them in for interviews, interviewing their family members, and distributing flyers
in the neighborhood promising a reward in exchange for information regarding the
homicide. Fong spoke to Garcia’s cousin, Louie, as well as Garcia’s parole agent. On
February 10, 2011, Fong asked Garcia’s parole agent to tell Garcia that San Jose Police
wanted to talk to him the following day about a homicide case.
       The morning of February 11, police intercepted a phone call between Garcia and
Cruz Castro. 5 Garcia told Cruz that his parole agent told him he had to talk to homicide


       3
         Fong testified that Vicky’s house was within walking distance of the house
where Nguyen was murdered.
       4
         According to Fong, she had the revolver sent to the crime lab for testing but, for
reasons which are not disclosed in the record, the crime lab was unable to determine
whether the revolver was used in Nguyen’s murder.
       5
         As discussed below, another person interviewed by police in this case shares
Castro’s surname, so we refer to both men by their first names.
                                             3
investigators that afternoon. He asked Cruz what his “boundaries are for that interview
and if he should go.” Cruz told Garcia he had to go, but “ ‘[a]ll you do is just, like, you
don’t know nothing.’ ” Cruz also told Garcia that, after he met with police, Garcia
needed to report “ ‘to [his] homies’ . . . ‘[and] let them know what’s happening with
you.’ ” Cruz advised Garcia that “ ‘if it starts getting sticky [during the interview], just
clam up.’ ” Garcia said he was “ ‘just going to straight up [say] I don’t know nothing.’ ”
       At the interview, Fong informed Garcia she was investigating a cold case
homicide and his name, along with other names, had come up during that investigation.
She showed him photographs of the victim, the victim’s house and the surrounding area,
as well as photographs of Rocha and Felisa. Garcia said he did not recognize the victim,
though he recognized the area where the victim lived. Garcia denied knowing anything
about Nguyen’s murder, and denied knowing either Rocha or Felisa, even when Fong
identified them by name. Fong said that Rocha also went by “Sad Boy” or “Adrian,” but
Garcia denied knowing anyone who went by those names. Garcia was not “extremely
cooperative” during the half-hour interview and provided no information to Fong about
the murder.
       Following the interview, police intercepted a phone call between Garcia and Frank
Garcia, aka “Punch.” Garcia told Frank that he had just talked to the police about a
homicide and that he had previously “cleared it with the big homie.” After asking Frank
to “guess what it is,” Garcia asked if Frank “remember[ed] what [Rocha] did?” Frank
asked why they wanted to talk to Garcia about that, since he “didn’t do nothing.” Garcia
said he did not know, but he was “stressing the fuck out.” He told Frank that when the
police said they knew that he (Garcia) and Felisa used to date, Garcia replied, “I don’t
know what the fuck you’re talking about.” Frank asked if someone was “telling on”
Garcia, and Garcia said that someone “pointed the finger towards me.”
       Fong interviewed Felisa on February 15, 2011. In that interview, Felisa said that
she and Garcia “drank beer and had sex,” but never had any conversations.
                                              4
       On February 23, 2011, Fong interviewed Garcia a second time. Garcia again
denied knowing Rocha, Felisa, or Nguyen, and denied recognizing any of those people
when showed their photographs. Fong asked if he had any affiliation with Triple L, but
Garcia said he did not. Fong then told Garcia that in 2005 he and Rocha had been
stopped by police together. Garcia replied that Rocha “looked familiar” and he “ ‘must
have kicked it with him.’ ”
       Fong also showed Garcia a photograph of his brother, Sammy Garcia, and Garcia
identified him properly. He denied that Sammy was involved with Triple L, however.
Fong displayed a photograph of Garcia’s aunt, Suzanne, who Chavoya said had burned
Rocha’s sweater on the night of the murder. Garcia acknowledged the photo was of his
aunt, though he refused to say her name.
       In March 2012, Fong interviewed Jose Castro about the 2006 homicide. Jose
admitted he had been an active member in Triple L in 2006. About three or four months
after the killing, Jose was walking down the street when he saw Rocha, also a member of
Triple L, driving by. Rocha pulled over to talk to him and admitted shooting Nguyen.
Rocha told Jose he tried to carjack “an Asian dude,” and shot him in the head.
Afterward, he ran through the nearby creek to get to Garcia’s house. Jose said that
Garcia was in Triple L as well, and Jose believed that Garcia and Rocha were “ ‘tight.’ ”
       After qualifying as a gang expert, Fong testified it was her opinion that Triple L
was a criminal street gang, and that Garcia and Rocha were active participants in that
gang. Fong also opined that, by withholding information about Rocha’s involvement in
the 2006 homicide from police, Garcia was acting to benefit Triple L.
       B.     Information and section 995 motion
       On January 29, 2015, Garcia was charged by information with one felony count of
participating in a criminal street gang (§ 186.22, subd. (a), count 1) and one felony count
of conspiracy to obstruct justice (§ 182, subd. (a)(5), count 2). In the course of the
conspiracy, Garcia allegedly made false statements to police during his February 2011
                                              5
interviews when he denied knowing anything about the 2006 homicide, denied knowing
Felisa, and denied knowing Rocha. The information further alleged Garcia had three
prison prior convictions under section 667.5, subdivision (b).
       Garcia moved to dismiss the information pursuant to section 995. On March 1,
2016, the trial court granted the motion and dismissed the case. 6
       The People timely appealed.
II.    DISCUSSION
       A.     Applicable legal principles and standard of review
       Pursuant to section 995, a court properly sets aside all or part of an information
upon finding that the defendant “had been committed without reasonable or probable
cause.” (§ 995, subd. (a)(2)(B).) “ ‘ “ ‘Reasonable or probable cause’ means such a state
of facts as would lead a [person] of ordinary caution or prudence to believe, and
conscientiously entertain a strong suspicion of the guilt of the accused.” ’ ” (People v.
Mower (2002) 28 Cal.4th 457, 473.) The showing required at this stage “is exceedingly
low” (Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846), and an information
“ ‘should be set aside only when there is a total absence of evidence to support a
necessary element of the offense charged.’ ” (Id. at p. 842, quoting People v. Superior
Court (Jurado) (1992) 4 Cal.App.4th 1217, 1226.)
       In reviewing a section 995 motion “the appellate court in effect disregards the
ruling of the superior court and directly reviews the determination of the magistrate
holding the defendant to answer.” (People v. Laiwa (1983) 34 Cal.3d 711, 718; accord,
Lexin v. Superior Court (2010) 47 Cal.4th 1050, 1072 (Lexin).) Insofar as the motion
“rests on consideration of the evidence adduced, we must draw all reasonable inferences
in favor of the information [citations] and decide whether there is probable cause to hold

       6
        Although the motion to dismiss was principally directed at count 2, the People
conceded that count 1 could not stand on its own and must be dismissed if the trial court
granted the motion as to count 2.
                                             6
the defendant[] to answer, i.e., whether the evidence is such that ‘a reasonable person
could harbor a strong suspicion of the defendant’s guilt.’ ” (Lexin, supra, at p. 1072.)
But “where the facts are undisputed, the determination of probable cause ‘constitute[s] a
legal conclusion which is subject to independent review on appeal.’ ” (People v.
Superior Court (Bell) (2002) 99 Cal.App.4th 1334, 1339, quoting People v. Watson
(1981) 30 Cal.3d 290, 300.)
       B.     Adequacy of the record
       Before turning to the substantive question presented, we address Garcia’s claim
that the appeal must be rejected due to the People’s failure to provide an adequate record
for review. Garcia asserts that his section 995 motion was argued to the trial court on
four separate dates in 2016, specifically February 4, February 5, February 18 and
March 1, but the record on appeal contains only the reporter’s transcript from the final,
dispositive March 1 hearing.
       It is well-settled that, on appeal, the burden is on the appellant to provide an
adequate record, and “[i]n numerous situations, appellate courts have refused to reach the
merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding
or a suitable substitute was provided.” (Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 186.) That rationale for this general rule is grounded in “the
cardinal rule of appellate review that a judgment or order of the trial court is presumed
correct and prejudicial error must be affirmatively shown.” (Id. at p. 187.) When the
record on appeal does not include the materials necessary to demonstrate prejudicial
error, the appellate court cannot conduct the meaningful review necessary to decide the
matter.
       In this case, however, the record on appeal is adequate, despite the failure to
include reporter’s transcripts from the three February 2016 hearings. That is because the
standard of review in appeals from orders granting section 995 motions makes the trial
court’s ruling, let alone the arguments of counsel leading up to that ruling, almost entirely
                                              7
irrelevant. (Lexin, supra, 47 Cal.4th at p. 1072.) We instead review the determination of
the magistrate holding the defendant to answer based on the evidence adduced at the
preliminary hearing. (People v. Laiwa, supra, 34 Cal.3d at p. 718.) Accordingly, we find
the record on appeal adequate for our review.
       C.     Conspiracy to obstruct justice
       In this case, we must decide whether the evidence presented at the preliminary
hearing was “such that ‘a reasonable person could harbor a strong suspicion of the
defendant’s guilt.’ ” (Lexin, supra, 47 Cal.4th at p. 1072.) We think it was.
       Section 182, subdivision (a)(5), makes it a criminal act for two or more persons to
conspire “to pervert or obstruct justice, and the due administration of the laws.” “A
conviction for conspiracy requires proof of four elements: (1) an agreement between two
or more people, (2) who have the specific intent to agree or conspire to commit an
offense, (3) the specific intent to commit that offense, and (4) an overt act committed by
one or more of the parties to the agreement for the purpose of carrying out the object of
the conspiracy.” (People v. Vu (2006) 143 Cal.App.4th 1009, 1024.) As explained by
the California Supreme Court in Lorenson v. Superior Court (1950) 35 Cal.2d 49, many
of the offenses, such as “[b]ribery, . . . perjury, falsifying evidence, and other acts which
would have been considered offenses against the administration of justice at common law
are made criminal by legislative enactment.” (Id. at p. 59.) Unlike those more specific
statutes, section 182, subdivision (a)(5) “is a more general section making punishable a
conspiracy to commit any offense against public justice.” (Lorenson, supra, at p. 59.)
       In this case, the People presented evidence at the preliminary hearing which
showed that, prior to being interviewed by police, Garcia spoke with Cruz, a fellow gang
member who appeared to have some authority within the gang. In that conversation,
Garcia agreed that, during the police interview, he would tell police he did not know
anything about the murder. He further agreed that, after the interview, he would “ ‘report
to [his] homies.’ ”
                                               8
       At his first interview with police, Garcia falsely stated he did not know Rocha or
Felisa. After the interview, he spoke with another gang member, Frank, and, in that
conversation, implied that the police interview was about “what [Rocha] did.” Garcia
told Frank that, when confronted by police with their knowledge that he and Felisa used
to date, he again denied knowing what they were talking about.
       In his second interview with police, Garcia continued to deny knowing Rocha or
Felisa, again denied recognizing the victim, and denied any affiliation with Triple L. It
was only when confronted with evidence that he and Rocha had been stopped by police
together that he said Rocha “looked familiar.” He persisted in downplaying their
relationship though, saying they were casual acquaintances at most.
       As outlined above, in reviewing this evidence, we “draw all reasonable inferences
in favor of the information [citations] and decide whether there is probable cause to hold
the defendant[] to answer, i.e., whether the evidence is such that ‘a reasonable person
could harbor a strong suspicion of the defendant’s guilt.’ ” (Lexin, supra, 47 Cal.4th at
p. 1072.) We think probable cause is clear and that a reasonable person would harbor a
strong suspicion of Garcia’s guilt. To recap: (1) Garcia entered into an agreement with
Cruz; (2) with the specific intent to agree to obstruct the police investigation and protect
his fellow gang member; (3) with the specific intent to obstruct the investigation; and
(4) made false statements to the police in order to obstruct the investigation into
Nguyen’s murder. (See People v. Vu, supra, 143 Cal.App.4th at p. 1024 [elements of
conspiracy].)
       Garcia argues, citing People v. Redd (2014) 228 Cal.App.4th 449 (Redd), that the
trial court properly dismissed the case against him because in order to bring an action for
conspiracy to obstruct justice under section 182, subdivision (a)(5), there must be some
reference to a defined criminal offense. Garcia reads this decision too broadly.
       In Redd, the defendant, an inmate, was charged with conspiring to obstruct justice
based on a scheme in which he arranged to have a prison cook smuggle tobacco into the
                                              9
prison for him. (Redd, supra, 228 Cal.App.4th at p. 454.) On appeal, defendant argued
that bringing tobacco into a prison “does not pervert or obstruct justice or the due
administration of the laws.” (Id. at p. 460.) The court agreed, noting that the sweeping
language of section 182, subdivision (a)(5) must be “ ‘given content by the cases,’ ” so
that the statute “ ‘ “give[s] adequate guidance to those who would be law-abiding, . . .
advise[s] defendants of the nature of the offense with which they are charged, or . . .
guide[s] courts in trying those who are accused.” ’ ” (Redd, supra, at p. 463, quoting
Davis v. Superior Court (1959) 175 Cal.App.2d 8, 14.) Accordingly, it was incumbent
on the prosecution to explain how conspiring to smuggle tobacco into a prison
“constitute[s] a perversion or obstruction of justice or the due administration of the laws.”
(Redd, supra, at p. 463.) Because there was no separate statute prohibiting the act of
bringing tobacco into a state prison nor was there any claim by the prosecution that doing
so would be a crime under common law, the court found that there was “insufficient
evidence” to support defendant’s conviction under section 182, subdivision (a)(5).
(Redd, supra, at p. 464.)
       There is nothing in Redd which requires that a conspiracy to obstruct justice be
founded upon a separate, specific criminal statute to survive a section 995 motion to
dismiss. Rather, there must be some showing that the defendant’s actions would obstruct
justice. It goes without saying that affirmatively lying to police officers in the course of a
criminal investigation for the purpose of shielding a fellow gang member from further
scrutiny and, potentially, prosecution would fit that definition. Accordingly, it makes no
difference whether Garcia’s statements to police would be sufficient to establish
violations of section 32 (accessory after the fact) or section 148 (obstructing law
enforcement officer in performance of his or her duties), as the trial court seemed to
suggest. Based on the foregoing, the trial court erred in granting Garcia’s section 995
motion.


                                             10
III.   DISPOSITION
       The order dismissing the information is reversed.




                                           11
                          Premo, Acting P.J.




WE CONCUR:




             Mihara, J.




             Grover, J.




People v. Garcia
H043537
Trial Court:                        Santa Clara County Superior Court
                                    Superior Court No. C1368455

Trial Judge:                        Hon. Helen E. Williams

Counsel for Plaintiff/Appellant:    Xavier Becerra
The People                          Attorney General

                                    Gerald A. Engler
                                    Chief Assistant Attorney General

                                    Jeffrey M. Laurence
                                    Senior Assistant Attorney General

                                    Seth K. Schalit
                                    Supervising Deputy Attorney General

                                    Bridget Billeter
                                    Supervising Deputy Attorney General

Counsel for Defendant/Respondent:   Under appointment by the Court of
Jesse Garcia                        Appeal
                                    Dallas Sacher




People v. Garcia
H043537
