Filed 5/30/14 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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,                                         G047694

                   v.                                                  (Super. Ct. No. 11ZF0115)

JOSE ANTONIO GARCIA,                                                   OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, David A.
Hoffer, Judge. Affirmed.
                   Robison D. Harley, Jr., for Defendant and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Lise Jacobson and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              A jury found defendant Jose Antonio Garcia guilty of the second degree
murder of his wife, Adriana. The jury returned a true finding that defendant personally
discharged a firearm within the meaning of Penal Code section 12022.53, subdivision (d)
in murdering the victim. (Unless otherwise indicated, all statutory references are to the
Penal Code.) The court sentenced defendant to state prison for 40 years to life.
              On appeal, defendant contends the trial court abused its discretion in
excluding evidence and in instructing the jury. Finding no error, we affirm.
                                             I
                                          FACTS
Months, Weeks and Days Prior to Murder
              According to a police officer, the previous June 19, 2010, defendant told
officers “he had received an anonymous phone call stating that his wife might be seeing
another man. He got home from work and said that he — she and him had a conversation
about their relationship and this accusation that she might be seeing another man.”
Defendant admitted putting a pillow over his wife’s head at that time, and that he
prevented her from leaving when she attempted to leave. After that, “the defendant had a
restraining order against him.”
              Defendant telephoned Adriana “every five minutes.” At one point, Adriana
moved into her brother and sister-in-law’s home. While staying there, defendant came to
the home “screaming saying foul language.” After some period, Adriana moved back to
her own home and lived with defendant, but there was an occasion where she came to her
brother and sister-in-law’s home with bruises.
              Adriana’s brother changed all the locks in her home several weeks prior to
her murder. Adriana did not give a key for the new locks to defendant.
              After the restraining order was in effect, defendant lived with his brother.
Defendant’s brother, told police he had installed a tracking device on Adriana’s vehicle.



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Defendant had told his brother he wanted him to install the device because he thought it
might help in a subsequent divorce.
              Adriana and another man had a romantic relationship between May 2010
and October 2010, when she was murdered. Defendant went to the man’s work and
asked him what he wanted with his wife. The man responded: “I told him I didn’t want
any problems and I was sorry and we’d just been friends.” Defendant told the man, “the
next time he came to my work he wouldn’t just come to work.” The man broke off his
relationship with Adriana after that. Adriana and the man did not meet again until she
invited him to an El Torito restaurant on the evening of October 15, 2010.
              Three days prior to the murder, someone offered to sell defendant a gun for
$350. Defendant negotiated the cost down to $180.
              According to defendant’s mother, defendant was crying on the evening of
October 14, 2010, two nights before the murder. He said: “Look Ma, Ma, what I’m
going to do is buy a gun, and I’m going to kill myself in front of Adriana.” That was the
first time he had ever made a claim that he was going to hurt himself or commit suicide.
Defendant also talked about suicide to his brother.
              The night before the murder, defendant went to a restaurant because he
knew Adriana would be at an El Torito restaurant which was across the street. After the
murder, defendant would tell the police he was going out for a drink and just happened to
go there, but would tell a psychologist Adriana told him which restaurant she would be
going to that evening.


The Day of the Murder
              During the morning of October 16, 2010, defendant and his son, who was
then 18, spoke on the telephone. The son, who lived with his mother, Adriana, and
siblings in their home on Mohawk Drive in Santa Ana, told defendant his mother was
home. Defendant said he wanted to meet with his son and the other children. Around

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noon, after the other kids were up and dressed, the 18-year-old son again spoke with
defendant and they planned to meet at “grandma’s house.” The children arrived at their
grandmother’s house on Sullivan Street at about 12:20 p.m., but defendant did not show
up or call.
               At about 12:25 p.m. Adriana was talking on the phone with her friend,
when Adriana started to whisper. In a scared voice, she said, “Tony.” Then the phone
went silent.
               In the early afternoon, police were dispatched to the Mohawk residence.
There had been a report that some shots were fired and a dead woman was inside the
house. They found Adriana’s body partially on a bed and partially on a carpet, and a
pillow “with all the blood” on it.
               There was a gunshot wound on the back of the head. There was bruising
along the neck, shoulder, chest, around the eyes, and left arm and knee. The bruising was
consistent with recent blunt force trauma. It was later determined the cause of death was
“cerebral edema due to the gunshot wound to the head.”
               At the scene, a pillow with a hole on one side and protruding stuffing on the
other side was found. The investigating detective opined that the significance of the
protruding stuffing was that “[a]s the bullet would pass through the pillow . . . if it were
to exit, you usually take something with it.”
               Defendant was located in a truck at Centennial Park. With officers
attempting to negotiate, he sat in the driver’s seat with a gun for approximately two
hours, and then placed the gun on the dashboard and came out of the truck and was taken
into custody. Police seized the gun from the driver’s side of the dashboard with a
magazine that had a 10 round capacity inserted in it as well as a round in the chamber.
Defendant handed police a note.
               When he was later interviewed by the police, defendant said he entered the
house through a window. She was in the bedroom, speaking to someone on a cell phone.

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Adriana threw the cell phone at him. Defendant had a gun in his pocket. He took out the
gun “[w]hen she started hitting me.” Defendant explained what he was thinking when he
pulled out the gun: “I wanted to kill myself right there, but I knew that [my son] and
them were going to call back, come back, so I go, if they don’t, if I don’t go over there,
they’re gonna come back. So I called the police.” When he was asked how many times
he shot the gun, defendant responded: “Two.” When he was asked where he shot her, he
said: “I think in the head.”
              The following questions were asked by a detective and answered by
defendant:
              Q: “You wanted to shoot yourself.”
              A: “. . . myself. Yeah, but I said, [my son] is gonna come so I, I go before
I’m going call the cops so they can come and make sure that they’re here . . . .”
              Q: “So . . . .”
              A: “. . . so they won’t let them in. And I go, I’m just gonna go and kill
myself. And I was wait . . . I was waiting to get the, I then moved from right there, the
truck was in the same spot since the morning.”


Defense Expert
              A clinical and forensic psychologist conducted a psychological evaluation
of defendant, reviewed cell phone records and reviewed police reports. The doctor
testified defendant “suffers from major depressive disorder, severe, and he also suffers
from borderline intellectual functioning,” and that a jail psychiatrist diagnosed defendant
as having adjustment disorder. The doctor explained that borderline intellectual
functioning “is a person who has an IQ between 71 and 84. So this is a person that would
basically be considered borderline mentally retarded.”
              The doctor stated: “A major depressive disorder is a mood disorder where
the person feels sad most of the time or has lost interest in measurable activities, and it’s

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accompanied by other symptoms such as insomnia, could be agitation, fatigue, either
significant weight loss or weight gain, preoccupied with thoughts of death or suicidal
ideation.”
              With regard to borderline intellectual functioning, the doctor explained:
“When a person doesn’t have adequate intellectual functioning it affects all areas of their
lives. So for instance, a person can’t communicate as well with other people. So they
will become easily frustrated. They don’t have the intellectual capacity to deal with
stressors like other people — like normal people do, people functioning within the
average range and above.”


              Pretrial Motion
              Prior to trial, citing Evidence Code section 1250, subdivision (a) as well as
to a nonhearsay purpose, defendant moved the court for admission of the note defendant
gave to police, a three-page handwritten document which states: “My name is Jose
Garcia A. I fund out that my wife Adriana Garcia was shidding on me from time to time
and when I confronted her she put a restraining order on me for her and the kids too. Just
last knigh I got her with a man I told her I would let it go if she would go away with the
man and live me and the kids alone and she said she had everything her way she has my
house money and I was out of the picture, and she didn’t even need to take care of the
kids. [Defendant’s signature.] I keap asking her family to talk to her she was
[unreadable word] home with the kids she was away on the street with her friends. This
started since March of this year when . . . started puching my wife to do what she wanted
her to do, and when I would call my wife that . . . lady would tell her dont anwer him be
just like I do want ever I want with your brother . . . . [Defendant’s signature.] No one
knew I was going to do this it just happen so quickly give my parents our kids.
[Defendant’s signature.] 10/16/2010 By the way her sister in law . . . knew everything



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that was going on again. [Defendant’s signature.] I ask God for HLPH, and it was
denied” (Errors in original.) The court denied the motion to admit the note.
                                             II
                                       DISCUSSION
Defendant’s Note
              Defendant’s first contention is: “The court abused its discretion by
excluding any and all state of mind evidence about [defendant’s] suicide note written at
the time of the murder.” He claims defendant’s “state of mind on the day of the murder
was critical. Was he depressed and suicidal or angry and homicidal? Although
[defendant’s] suicide note never specifically mentions the word suicide, it certainly paints
a vivid picture of a severely depressed person who suddenly found himself in a hopeless
and helpless situation.” He also states the note supported his heat of passion defense.
              “(a) Subject to Section 1252, evidence of a statement of the declarant’s then
existing state of mind, emotion, or physical sensation (including a statement of intent,
plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by
the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant’s state of
mind, emotion, or physical sensation at that time or at any other time when it is itself an
issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct
of the declarant. [¶] (b) This section does not make admissible evidence of a statement of
memory or belief to prove the fact remembered or believed.” (Evid. Code, § 1250.)
“Evidence of a statement is inadmissible under this article if the statement was made
under circumstances such as to indicate its lack of trustworthiness.” (Evid. Code § 1252.)
A trial court’s evidentiary ruling is reviewed for abuse of discretion. (People v. Jablonski
(2006) 37 Cal.4th 774, 821.)
              In People v. Ervine (2009) 47 Cal.4th 745, defendant wrote five pages of
notes after a shooting, which the court excluded, and which the California Supreme Court
reviewed for abuse of the trial court’s discretion, before concluding there was no abuse of

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discretion. (Id. at p. 778.) The court analyzed as follows: “At the time defendant wrote
these documents, he was trapped inside his house; personnel from the Lassen County
Sheriff’s Department and other law enforcement agencies were just outside. He was
aware that his only options were surrender or suicide, and his statements focus largely on
securing forgiveness.” (Id. at p. 779.) The Supreme Court concluded “[t]here was thus
ample ground to suspect his motives and sincerity when he wrote these self-serving
documents.” (Ibid.)
              In the instant matter, the trial court here stated: “[T]here’s no question this
man was suicidal. He spent four hours with a gun to his head holding the police at bay
while they negotiated him out of killing himself. . . . The suicide note — so-called
suicide note doesn’t say anything about suicide. The reason we know he was suicidal, he
sat there with a gun to his head for four hours threatening to the police that he was going
to kill himself. . . . The issue is whether he also wanted to and planned to take her with
him.”
              The court carefully analyzed the situation and considered the probative and
prejudicial value of the note before ruling, concluding the probative value was lacking.
We cannot conclude the court abused its discretion or otherwise erred in excluding the
note.
              Additionally, the jury heard a lot about suicide. They heard all about the
negotiations to get defendant out of his truck. Jurors saw the video of defendant telling
police he wanted to kill himself during his police interview. There was also testimony
from defendant’s mother that he told her he wanted to kill himself. Defendant’s brother
told the jury defendant talked about suicide. Additionally, the defense psychologist
testified that persons with defendant’s condition are “preoccupied with thoughts of death
or suicidal ideation.” Under these circumstances, even if the court erred in excluding
defendant’s note, which we do not find, we cannot conclude that excluding admission of
defendant’s note made any difference in the jury’s determination, and, in light of the state

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of the evidence, we do conclude it was harmless under any standard. (Chapman v.
California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)


Evidence of Adriana’s Lack of Fear
              Defendant next argues: “The court abused its discretion by refusing to
admit evidence of the [Adriana’s] lack of fear to support [defendant’s] provocation
defense and corroborate his confession to the police regarding [Adriana’s] provocative
conduct immediately preceding the homicide.”
              When defendant’s son was testifying, defense counsel asked: “[D]id your
mother ever express any concern about your father’s violation of this restraining order?”
The prosecutor objected on the basis of hearsay and relevance, and defense counsel said
it was offered to show the nonhearsay purpose of absence of fear.
              The court questioned defense counsel about the relevance of Adriana’s state
of mind, and counsel responded: “Well, the relationship between these two people is
highly relevant. I mean, that’s all we have. That’s how we have heat of passion and
sudden quarrel. And you have to consider the relationship between those two people.
And I think this has a tendency in reason to prove the nature of the relationship. It’s not a
fear domination — fear-dominated relationship.” The court sustained the prosecutor’s
objection on the ground of relevance.
              In his brief, defendant expands his argument somewhat: “If the prosecution
is entitled to elicit [Adriana’s] statement of fear to refute a defendant’s claim that
[Adriana] fearlessly challenged him, assaulted him, and insulted him in a very
provocative way to show sufficient provocation to reduce the killing from murder to
voluntary manslaughter, it follows that [defendant] should have been permitted to show
absence of fear to support his claim that his wife fearlessly attacked him in the bedroom
in a sufficiently provocative way to reduce the killing on October 16, 2010 from murder
to voluntary manslaughter.”

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              To support his position, defendant cites People v. Escobar (2000) 82
Cal.App.4th 1085. In that case, the defendant testified his wife fearlessly challenged him
and insulted him in a very provocative way to support his defense that he killed her in a
heat of passion. (Id. at p. 1103.) After ruling the defendant had placed the victim’s state
of mind at issue, the prosecutor was permitted to present evidence the victim was afraid
of the defendant. (Ibid.)
              In Escobar, it was the defendant who offered evidence of lack of fear. In
the instant matter, the evidence was elicited from Adriana’s son, the very person a mother
might go out of her way to shield from knowledge about her true feelings for his father.
Under the circumstances we find in this record, we cannot conclude the court abused its
discretion when it found the proposed testimony irrelevant. Additionally, Adriana’s state
of mind here was not in dispute.
              Had the court erred in not permitting evidence of Adriana’s lack of fear,
and we do not make that finding, any error in excluding the evidence is harmless under
any standard because there is overwhelming evidence here to support the jury’s verdict.
(Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at
p. 836.)


CALCRIM No. 3428
              On appeal, defendant contends: “The court prejudicially erred in
connection with [defendant’s] mental impairment defense” by not instructing the jury
with his preferred modified version of CALCRIM No. 3428.
              Defendant claims he submitted a proposed instruction to the court, a
modified version of CALCRIM No. 3428. The requested instruction is not contained in
the record on appeal. However, the court did give the CALCRIM No. 3428 to the jury.
              Counsel and the trial court discussed the issue many months after the
verdict. The court stated: “One issue has to do with the requested or the possibility that

                                            10
the defense requested specific jury instructions, and I had to ask counsel to look into their
file to see if they had it.” The prosecutor said he did not have a hard copy of that
instruction in his file, but stated he remembered discussing it. The prosecutor added: “I
remember what he asked. I think the record and the transcript is clear about that. I think
what should go up to the Court of Appeal[] is the fact that that request was made for a
full rendition of 3428.”
              CALCRIM, No. 3428, as actually given to the jury in this case, reads:
“You have heard evidence that the defendant may have suffered from a mental defect or
disorder. You may consider this evidence only for the limited purpose of deciding
whether, at the time of the charged crime, the defendant acted with the intent or mental
state required for that crime. [¶] The People have the burden of proving beyond a
reasonable doubt that the defendant acted with the required intent or mental state. If the
People have not met this burden, you must find the defendant not guilty.”
              In his brief on appeal, defendant states he requested the court to give the
following modified version of CALCRIM 3428: “You have heard evidence that the
defendant may have suffered from a mental defect or disorder. You may consider this
evidence only for the purpose of deciding whether, at the time of the charged crime, the
defendant acted with the intent or mental state required for that crime. [¶] The People
have the burden of proving beyond a reasonable doubt that the defendant acted with
premeditation, deliberation, and express malice aforethought in order to convict
defendant of first degree murder under either theory. If the People have not met this
burden, you must find defendant not guilty of first degree murder. [¶] The People have
the burden of proving beyond a reasonable doubt that the defendant acted with malice
aforethought, either express or implied, in order to convict defendant of any murder. [¶]
If the People have not met this burden, you must find the defendant not guilty of murder.”




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              When the proposed modified instruction was discussed during trial, the
court stated: “I’m just concerned about a lengthy and confusing instruction on a fairly
simple point. That’s what we would be — that’s what the court would created if it tried
to set out each offense and each mental state separately, and that’s why the court — I like
this shorter version. There are other instructions that the court is proposing that are
standard in the CALCRIM where the court refers the — refers the jury to the specific
instructions on the crimes for the mental state. And I think that the jury, therefore, is
completely capable of making that reference, and therefore, I’m not going to change 3428
to make it more detailed than it is right now.”
              The trial court has a duty to instruct the jury on general principles of law
that are commonly or closely connected to the facts before the court and necessary for the
jury’s understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) Here
the court instructed the jury with CALCRIM Nos. 520 (First or Second Degree Murder
with Malice Aforethought) and 521 (First Degree Murder).
              In addition to giving CALCRIM No. 3428, the court instructed the jury
with CALCRIM No. 520 on first or second degree murder with malice aforethought,
CALCRIM No. 521 on first degree murder. Both of these instructions included the
language in the modified jury instruction defendant claims he urged the court to give.
When the modified instruction defendant offered was denied by the court, the court
explained the language requested was included within other instructions, and adding the
additional language would render the instructions lengthy and confusing.
              A court is within its discretion in refusing to instruct a jury with a special
instruction duplicative of other instructions given. (People v. Jones (2012) 54 Cal.4th 1,
74.) Under the circumstances we find in this record, we cannot conclude the court erred
in refusing to give defendant’s modified version of CALCRIM No. 3428.




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                                       III
                                 DISPOSITION
           The judgment is affirmed.




                                             MOORE, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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