Filed 8/27/20 P. v. Garcia CA2/6
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                         DIVISION SIX


THE PEOPLE,                                                                 2d Crim. No. B301279
                                                                         (Super. Ct. No. 2016032805)
     Plaintiff and Respondent,                                                (Ventura County)

v.

ALEXIS GARCIA,

     Defendant and Appellant.


       Alexis Garcia appeals a judgment following conviction of
assault with a semiautomatic firearm, and shooting a firearm at
an occupied motor vehicle, with a finding of personal firearm use.
(Pen. Code, §§ 245, subd. (b), 246, 12022.5, subd. (a).)1 We order
the correction of the court minute order and abstract of judgment
to reflect the oral pronouncement of judgment, but otherwise
affirm.




        All statutory references are to the Penal Code unless
         1

stated otherwise.
            FACTUAL AND PROCEDURAL HISTORY
       In the early evening of September 16, 2016, Joshua Allred
visited the Oxnard home of Eduardo Sandoval to collect payment
of a claimed debt owed by Sandoval’s younger brother. An
argument ensued between Allred and Sandoval’s stepfather.
Allred left but soon returned with a crowbar. Sandoval’s mother
summoned police officers and Allred left again. Another man
stood nearby and he also left with Allred.
       Sandoval retrieved a baseball bat and chased in the
direction of the second man through the street and into the alley.
At the same time, Sandoval’s friend, Alberto O’Campo, drove his
truck into the alley.
       A black Acura sedan with a damaged front fender was
stopped in the alley. Garcia left the rear passenger seat of the
vehicle, holding a black, gray, or chrome-colored firearm. Garcia
fired two gunshots at Sandoval and three at O’Campo’s truck.
Sandoval was not injured but the truck sustained two passenger
door gunshot-strikes and a shattered rear window.
       Bystanders placed emergency calls to the police dispatcher
reporting the shooting. One caller described the shooter as a
passenger in a black Acura sedan with a damaged front fender.
       Within a short time, a police officer located the black Acura
sedan and effected a traffic stop. Garcia was a left rear-seat
passenger. Sandoval identified the driver and Garcia in a field
identification as being the occupants of the vehicle in the alley.
Sandoval also identified Garcia as the man who fired the
handgun at him and O’Campo.
       Police officers discovered a black semiautomatic handgun
in the backseat of the Acura sedan, underneath a cup holder.
The handgun was loaded with nine rounds of a 10-round




                                 2
magazine, with one round in the chamber. Other loose rounds
were found in a case in the driver’s door panel. Tests later
revealed that Garcia had gunshot residue particles on each hand.
       In a police interview, Garcia admitted that he went with
Allred to the Sandoval home to collect a debt. Initially, Garcia
denied firing a handgun, but then admitted that he fired the
handgun at a truck.
       At trial, Sandoval and O’Campo lacked recall of many
circumstances of the incident, including the identification of the
man firing the handgun. They also admitted that they were
reluctant witnesses who were compelled to attend trial.
       The jury convicted Garcia of assault with a semiautomatic
firearm (count 1), and shooting a firearm at an occupied motor
vehicle (count 2). (§§ 245, subd. (b), 246.) It also found that
Garcia personally used a firearm in the commission of count 1.
(§ 12022.5, subd. (a).) The trial court sentenced Garcia to a
prison term of nine years, consisting of a six-year midterm for
count 1 and a three-year low term for the personal firearm use
enhancement. The court imposed but stayed sentence for count
2. It also imposed a $300 restitution fine, a $300 parole
revocation restitution fine (suspended), an $80 court facilities
assessment, and a $60 criminal conviction assessment, and
awarded Garcia 500 days of presentence custody credit.
(§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. (a); Gov. Code,
§ 70373.)
       Garcia appeals and contends that: 1) the trial court abused
its discretion by excluding photographs of his companion’s
injured shoulder and 2) insufficient evidence supports his
conviction of assault with a semiautomatic firearm. The Attorney
General responds to the contentions and adds that the minute




                                3
order and the abstract of judgment do not accurately reflect the
oral pronouncement of judgment regarding the stay of sentence
for count 2.
                             DISCUSSION
                                   I.
       Garcia argues that the trial court abused its discretion by
precluding evidence that Allred suffered from a bruised and
contused shoulder. He contends that the court denied his
constitutional right to fully present the defense of self-defense.
       At trial, Police Officer James Crilly testified that Allred
had a bruised and contused shoulder and thigh. Crilly took
photographs of the bruises and defense counsel published the
photographs to the jury. The trial court refused the defense
request to admit the photographs into evidence, however, absent
evidence regarding how Allred sustained the injuries and
whether Garcia either saw the injuries being inflicted by
Sandoval or O’Campo or knew that Sandoval or O’Campo
inflicted them. The court ruled: “[It is] too speculative to guess
what caused those injuries without some kind of evidence. [W]e
don’t know when those bruises occurred.” Allred was an
unavailable witness at trial. Nevertheless, the court instructed
with CALCRIM Nos. 3470, 3472, 3474 regarding self-defense.
       The trial court possesses broad discretion to determine the
relevance of admissible evidence. (People v. Jones (2017) 3
Cal.5th 583, 609 [general rule]; People v. Rodriguez (1999) 20
Cal.4th 1, 9 [same].) Here the court did not abuse its discretion
because there was no evidence that Allred sustained his injuries
as a result of an interaction with Sandoval or O’Campo, or that
Garcia witnessed or knew that the victims struck Allred. Thus,




                                 4
the photographs were not relevant to Garcia’s claim of self-
defense.
       As a general rule, a defendant has no constitutional right to
present all asserted relevant evidence in his favor. (People v.
Guillen (2014) 227 Cal.App.4th 934, 1019.) Application of the
ordinary rules of evidence does not impermissibly infringe on the
defendant's right to present a defense. (People v. Lucas (2014) 60
Cal.4th 153, 270, overruled in part by People v. Romero and Self
(2015) 62 Cal.4th 1, 53; People v. Gonzales (2012) 54 Cal.4th
1234, 1258.) Thus, constitutional principles are not offended by
rulings that exclude evidence that is marginally relevant, or that
poses a risk of confusion of the issues. (Gonzales, at p. 1259.) In
order for a defendant's constitutional rights to override the
application of the ordinary rules of evidence, the proffered
evidence must have more than slight relevance to the issues and
must be of substantial and significant value. (Guillen, at
p. 1019.) “A defendant’s rights to due process and to present a
defense do not include a right to present to the jury a speculative,
factually unfounded inference.” (People v. Mincey (1992) 2
Cal.4th 408, 442.)
                                  II.
       Garcia asserts that insufficient evidence supports his
conviction of assault with a semiautomatic firearm because
conflicting evidence exists whether the firearm used was a
semiautomatic handgun or a revolver. He points to discrepancies
concerning the color of the handgun, whether he “cocked” or
“charged” the weapon prior to shooting, and evidence that the
handgun found in the rear seat was loaded with nine rounds of
ammunition although five shots had been fired. Garcia adds that




                                 5
a police officer testified that an item was thrown from the Acura
sedan just before the traffic stop.
       In reviewing the sufficiency of evidence to support a
conviction, we examine the entire record and draw all reasonable
inferences therefrom in favor of the judgment to determine
whether there is reasonable and credible evidence from which a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. (People v. Brooks (2017) 3 Cal.5th 1, 57; People
v. Johnson (2015) 60 Cal.4th 966, 988.) Our review is the same
in a prosecution primarily resting upon circumstantial evidence.
(People v. Rivera (2019) 7 Cal.5th 306, 331.) We do not
redetermine the weight of the evidence or the credibility of
witnesses. (People v. Albillar (2010) 51 Cal.4th 47, 60; People v.
Young (2005) 34 Cal.4th 1149, 1181 [“Resolution of conflicts and
inconsistencies in the testimony is the exclusive province of the
trier of fact”].) We must accept logical inferences that the jury
might have drawn from the evidence although we may have
concluded otherwise. (Rivera, at p. 331.) “If the circumstances
reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances
might also reasonably be reconciled with a contrary finding.”
(Albillar, at p. 60.) In our review, we focus upon the evidence
that was presented, rather than evidence that might have been
but was not presented. (People v. Story (2009) 45 Cal.4th 1282,
1299.)
       Here police officers discovered a black loaded
semiautomatic firearm in the backseat of the Acura sedan in
proximity to rear-seat passenger Garcia. Moreover, during the
field identification conducted by Officer Sergio Figueroa,
Sandoval demonstrated that Garcia pulled back the top of the




                                6
firearm prior to shooting it. At trial, Figueroa testified that this
gesture is referred to as “charging,” and is used with
semiautomatic handguns and not revolvers. This evidence and
the reasonable inferences therefrom support the finding that the
firearm Garcia used was a semiautomatic handgun and not a
revolver. Conflicting evidence otherwise is a matter of witness
credibility and concerns the weight of the evidence which we do
not redetermine. (People v. Young, supra, 34 Cal.4th 1149, 1181
[statement of general rule].)
                                 III.
      The Attorney General points out that the trial court’s
minute order and the abstract of judgment incorrectly state the
five-year term for count 2 is to be served concurrently. At
sentencing, the trial court imposed a five-year term for count 2
but ordered the sentence stayed pursuant to section 654.
      Generally, the clerk’s minutes and the abstract of judgment
may not modify the oral pronouncement of judgment. (People v.
Leon (2020) 8 Cal.5th 831, 855.) We presume that any
discrepancy between the oral pronouncement of judgment and
the sentence reflected in the court’s minutes and the abstract of
judgment is the result of clerical error. (Ibid.) Thus, we direct
the trial court to amend the court’s minute order and the abstract
of judgment accordingly.




                                 7
                          DISPOSITION
      We order the trial court to correct the minute order and the
abstract of judgment regarding the sentence imposed but stayed
for count 2, but otherwise affirm. The court shall forward the
amended documents to the Department of Corrections and
Rehabilitation.
      NOT TO BE PUBLISHED.




                                    GILBERT, P. J.
We concur:



             YEGAN, J.



             TANGEMAN, J.




                                8
                     Rocky J. Baio, Judge

               Superior Court County of Ventura

               ______________________________



      Heather E. Shallenberger, under appointment by the Court
of Appeal, for Defendant and Appellant.
      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo and Nancy Lii Ladner, Deputy
Attorneys General, for Plaintiff and Respondent.




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