Filed 6/9/16 P. v. Garcia CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G052531

         v.                                                            (Super. Ct. No. 14CF0026)

JOHNNY GARCIA,                                                         OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County,
David A. Hoffer, Judge. Affirmed.
                   Jason L. Jones, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   No appearance for Plaintiff and Respondent.
                                             *               *               *
              Defendant Johnny Garcia was convicted of 14 criminal charges. He was
sentenced to a total of 18 years eight months in prison.
              We appointed counsel to represent defendant on appeal. Appointed counsel
filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v.
California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no
issues, and requesting that we independently review the entire record. We provided
defendant 30 days to file written argument on his own behalf; that time has passed and no
supplemental brief has been filed.
              We have examined the entire record and appointed appellate counsel’s
Wende/Anders brief; we find no reasonably arguable issue. (Wende, supra, 25 Cal.3d
436.) We therefore affirm.


                                       BACKGROUND
              On October 8, 2013, Elaine Aguero, defendant’s girlfriend, went to the
emergency room with a broken nose and facial lacerations. She initially told a nurse that
she had been attacked by one Hispanic girl. When questioned by a police officer, Aguero
stated defendant had punched her in the nose during an argument. At trial, Aguero
reverted to the first story about being attacked by a girl, and claimed she had told the
police officer the other story to avoid being arrested herself and to get back at defendant,
with whom she was angry.
              On December 23, 2013, Aguero was in the passenger seat of a friend’s car,
when the friend began to argue with the driver of a minivan parked nearby. The driver of
the minivan drove into the driver’s side door of the car, then struck a wall. Aguero told
the responding police officer that defendant was the driver of the minivan; at trial, she
claimed she was not able to identify the driver. (The minivan had been stolen 12 days
before this incident.)



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              Defendant’s aunt had borrowed a red Dodge Ram pickup truck from a
friend. About 6:45 a.m. on December 31, 2013, she noticed the truck was missing. That
same day, Aguero saw defendant in a red Dodge Ram pickup truck outside a friend’s
house. Aguero recognized the truck as the one defendant’s aunt had been using.
              The next day, around 3:00 p.m., Aguero called 911, stating defendant was
trying to enter her home; Aguero’s mother, grandmother, and daughters were all in the
home at the time. During the 911 call, Aguero told the dispatcher her ex-boyfriend was
threatening to beat her, and said, “he’s done that before. He just came in the house, and
I’m really, really scared.” Aguero screamed, “he’s opening the door. He’s opening the
door”; “oh, my God”; and “he’s going to kill me.” Aguero initially told the dispatcher
the door was locked, but then said, “no, he came in. He’s inside the home. He’s inside
the house. The window was open, and he came in so I ran into my mom’s room. And
I’m locked in my mom’s room, but he’s trying to break in.” Aguero also told the
dispatcher, “nobody wants him here. He just always does this. I’ve had incidents with
him. He’s tried running me over like literally a few weeks ago.” At trial, Aguero
testified she had let defendant into the house to get some of his property. After defendant
had left, Aguero discovered her backpack and an iron were gone and her purse had been
emptied and money had been taken from it.
              Defendant returned to Aguero’s house about midnight, and contacted her
through her bedroom window. Both defendant and Aguero were yelling, and defendant
threw something at the window and broke it. Defendant was arrested and released on
bond subject to a protective order prohibiting him from contacting Aguero.
              Following defendant’s preliminary hearing, Aguero sent a text message to
defendant’s brother, in which she stated she had lied in court for defendant, and
complained that defendant was not sorry for breaking Aguero’s nose or trying to run her
over.



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              The day after defendant was released from jail, Aguero called the police
and reported defendant had come to her house, and had left after they argued through the
screen door. Aguero told the police that defendant “didn’t do anything this time,” but
had shown her that he had removed his GPS ankle bracelet.
              Around 7:45 a.m. on March 5, 2014, the owner of a black Hyundai Accent
noticed the car was missing. The owner later received a citation in the mail with a
photograph dated March 5; the photograph showed defendant driving the car.
              On March 6, Aguero saw a black car behind her after she had dropped off
her children at school. When the car honked at her, she noticed defendant was driving it.
Defendant followed Aguero to her friend’s house. Defendant and Aguero argued outside
the house, and Aguero told defendant to leave her alone. Aguero called the police and
told the responding officer that defendant had pulled her hair and bit her on the shoulder
when she walked away; at trial, she testified she simply walked away.
              Defendant was charged in an information with assault with force likely to
produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); two counts of aggravated
assault (id., § 245, subd. (a)(1)); three counts of unlawful taking of a vehicle (Veh. Code,
§ 10851, subd. (a)); hit and run with property damage (id., § 20002, subd. (a)); first
degree residential burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a));
petty theft (id., §§ 484, subd. (a), 488); vandalism under $400 (id., § 594, subds. (a) &
(b)(2)(A)); domestic battery causing injury with a prior conviction for violence (id.,
§ 273.5, subds. (a) & (f)(1)); receipt of stolen property (id., § 496d, subd. (a)); and two
counts of violation of a protective order (id., § 166, subd. (c)(1)). The information
alleged that a nonaccomplice was present during the residential burglary (Pen. Code,
§ 667.5, subd. (c)(21)); that as to three of the charges, defendant committed the crime
while on bail (id., § 12022.1, subd. (b)); that defendant personally inflicted great bodily
injury (id., § 12022.7, subd. (e)); and that defendant had suffered three prior prison terms
(id., § 667.5, subd. (b)). A jury found defendant guilty of all charges, and found true the

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allegations that he personally inflicted great bodily injury and that a nonaccomplice was
present during the burglary. Defendant’s motion for a new trial was denied.
              In a bifurcated bench trial, the trial court found true the out-on-bail
enhancement allegations and two of the prior prison term conviction enhancement
allegations (the third was dismissed on the People’s motion).
              The trial court sentenced defendant to a total prison term of 18 years eight
months. Defendant filed a timely notice of appeal.


                             ANALYSIS OF POTENTIAL ISSUES
              Appellate counsel suggests three legal issues for our review. First, we
consider whether the audiotapes of the 911 calls were properly admitted over defendant’s
trial counsel’s objection. An audiotape of a victim’s 911 call is admissible hearsay. A
statement to a 911 operator is an excited utterance pursuant to Evidence Code
section 1240, and under Crawford v. Washington (2004) 541 U.S. 36, 68, it is
nontestimonial and therefore its admission does not violate a defendant’s constitutional
rights. (See People v. Byron (2009) 170 Cal.App.4th 657, 675-676.)
              Second, we consider whether the prosecutor committed prejudicial
misconduct when, during closing argument, she argued that domestic violence victims
often recant their claims, despite the lack of any such evidence at trial. We need not
address the merits of this argument because defendant’s trial counsel did not object to the
argument. “‘As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.’” (People v. Hill (1998) 17 Cal.4th 800, 820.)
              Finally, we consider whether defendant’s motion for a new trial was
properly denied. The only ground for the motion was the discovery of witnesses whose
testimony was not presented at trial. “When a verdict has been rendered or a finding

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made against the defendant, the court may, upon his application, grant a new trial, in the
following cases only: [¶] . . . [¶] . . . When new evidence is discovered material to the
defendant, and which he could not, with reasonable diligence, have discovered and
produced at the trial.” (Pen. Code, § 1181, subd. 8, italics added.) However, all of the
witnesses “discovered” were known to defendant and could, with reasonable diligence,
have been produced at trial. The trial court did not err in denying the motion for a new
trial.
              Our review of the record pursuant to Wende, supra, 25 Cal.3d 436, and
Anders, supra, 386 U.S. 738, including the possible issues suggested by defendant’s
appellate counsel, has disclosed no reasonably arguable appellate issue. Competent
counsel has represented defendant in this appeal.


                                       DISPOSITION
              The judgment is affirmed.


                                                  FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




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