Filed 12/10/15 P. v. Garcia CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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


THE PEOPLE,
                                                                                           F069324
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F13900489)
                   v.

JOHNNY ANGEL GARCIA, JR.,                                                                OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. W. Kent
Hamlin, Judge.

         Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Eric L. Christoffersen and Jennevee H. de Guzman, Deputy Attorneys General,
for Plaintiff and Respondent.
                                                        -ooOoo-


         *Before    Levy, Acting P.J., Poochigian, J. and Peña, J.
       Johnny Angel Garcia, Jr., was convicted of possession of a controlled substance
while armed with a firearm, and possession of a firearm by a felon. He argues the trial
court erred when it denied his Penal Code section 995 motion to dismiss the controlled
substance count. Garcia’s motion was made after the magistrate concluded at the
preliminary hearing there was insufficient evidence to hold him on this count, but the
prosecutor filed an information that contained the charge. While we find the trial court
erred in denying the motion, we affirm the judgment because Garcia cannot establish the
error caused him any prejudice.
                    FACTUAL AND PROCEDURAL SUMMARY
       The first amended information charged Garcia with possession of a controlled
substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), and
possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)). In addition, Garcia
was alleged to have suffered three prior convictions constituting strikes within the
meaning of Penal Code section 667, subdivisions (b)-(i), and had three prior convictions
resulting in prison sentences within the meaning of section 667.5, subdivision (b).
       The trial testimony is not relevant to the issue on appeal, so we will provide only a
brief summary.
       Fresno police officer Robert Fry responded to a report of shots being fired in the
neighborhood in question. As he was driving in the neighborhood, he noticed a man,
later identified as Garcia, standing in front of a house talking on a cell phone, but did not
think it was significant. When he reached an intersection, he turned his vehicle around.
When he saw Garcia still standing in front of the house, Fry asked him if he had heard
any gunshots. Garcia quickly turned away, walked to the front door of the house and
knocked. As Garcia walked to the front door, he dropped an object into a bucket near the
door. A man answered the door and a short conversation occurred. Garcia then turned
back to Fry and said no one heard any gunshots. The man in the house, Va Lor, made a
motion to Fry suggesting Garcia did not belong at the residence, so Fry yelled at Garcia


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to come to the police vehicle. Garcia ran away and jumped Lor’s fence. Garcia was
located about an hour later hiding in a garage a few houses down from where he was first
seen. Fry recovered from the bucket a revolver, car keys, a black digital scale, and a
substance that appeared to be methamphetamine. The revolver was fully loaded with five
rounds of live ammunition.
       Lor testified a Hispanic man parked in the street, then walked to his front door and
knocked. When Lor answered the door, the Hispanic man offered him $100 if he would
tell the police officer, who was in his car in the street, that he (the Hispanic man) lived at
the house. Lor signaled to the police officer that the man did not live at the house. The
man took off running through Lor’s backyard. Lor was not able to identify Garcia as the
man who knocked on his door.
       The substance recovered from the scene was tested and found to contain
methamphetamine; it was weighed and determined to be a usable amount. The revolver
was tested and found to be operable.
       Garcia’s only defense witness was Jose Palomares. Palomares testified that on the
night in question he had been riding with Garcia, he was the one who walked up to Lor’s
house and dropped the items in the bucket, and he was the one who ran away when
confronted by Fry. His testimony contained many holes, and he could not remember
many details. At the sentencing hearing the trial court described Palomares’s testimony
as “completely fictional.”
       The jury found Garcia guilty as charged. Garcia admitted the prior conviction
allegations as well as the prior prison term allegations. The trial court struck two of
Garcia’s prior convictions and then sentenced him to the aggravated term of four years
for the possession count, doubled to eight years, and added one year for the prison prior
for a total term of nine years. The sentence on the possession of a firearm count (three
years doubled for a total of six years) was stayed pursuant to Penal Code section 654.




                                              3.
                                      DISCUSSION
       Garcia’s only argument is that the trial court erred when it denied his Penal Code
section 995 motion to dismiss count 1 of the information, possession of
methamphetamine while armed with a loaded and operable firearm. Resolution of this
issue requires us to begin with the evidence at the preliminary hearing.
       Only two witnesses testified at the preliminary hearing. Fresno police officer
Robert Fry testified in a manner wholly consistent with his trial testimony. However, the
firearm was only described as a “loaded .38 Smith and Wesson revolver.” Frey did not
testify the weapon was operable.
       Defense counsel argued the evidence was insufficient to hold Garcia on the
possession of methamphetamine while armed with a loaded and operable firearm count
because of the absence of this evidence. The magistrate agreed and did not hold Garcia
to answer to this charge.
       The information filed by the prosecutor charged Garcia with possession of
methamphetamine while armed with a loaded and operable firearm. Defense counsel
filed a motion pursuant to Penal Code section 995 arguing there was insufficient evidence
presented at the preliminary hearing to support the count. The trial court denied the
motion concluding,

       “I will … find that there is circumstantial evidence sufficient to meet the
       test at prelim for the People to allege the charge at trial, and the reason for
       that, as I say, is the gun is loaded, he does engage in conduct which
       evidences a consciousness of guilt, and while it doesn’t necessarily mean
       that his consciousness of guilt goes directly to this particular charge, um, it
       strikes me that if he hadn’t been involved in the firing of this weapon, his
       behavior would have been considerably different when he was confronted
       by the officer. I think his behavior when confronted by the officer and then
       when told to stop by the officer, and later being found where he was, buy
       into the fact he’s found four or five residences from one of the reporting
       parties is enough for the court to conclude there’s circumstantial evidence
       he fired the gun that was reported, and that’s enough evidence to support
       the conclusion that that gun that he tossed in that bucket was that gun that
       he fired, and was therefore operable.”

                                             4.
Garcia argues the trial court’s reasoning was flawed, and the evidence was insufficient to
hold him to answer to the charge.
       Health and Safety Code section 11370.1, subdivision (a) provides increased
punishment for individuals who possess controlled substances “while armed with a
loaded, operable firearm.” Penal Code section 995, subdivision (a)(1)(B) requires an
information be set aside if the defendant had not been legally committed by a magistrate,
or he or she was committed without reasonable or probable cause. Reasonable or
probable cause is defined as the state of facts that would lead a man of ordinary caution
or prudence to believe and conscientiously entertain a strong suspicion the defendant was
guilty of the charged crime. (People v. San Nicolas (2004) 34 Cal.4th 614, 654.)
Reasonable or probable cause may exist even if the facts leave some room for doubt
about the guilt of the defendant. (People v. Mower (2002) 28 Cal.4th 457, 473.) “Every
legitimate inference that may be drawn from the evidence must be drawn in favor of the
information.” (People v. Hall (1971) 3 Cal.3d 992, 996.)
       Nonetheless, the People must make some showing as to the existence of each
element of the charged offense. (Thompson v. Superior Court (2001) 91 Cal.App.4th
144, 148.) These elements may be established with circumstantial evidence. (People v.
Gaio (2000) 81 Cal.App.4th 919, 936.)
       The issue is whether the prosecution presented sufficient evidence at the
preliminary hearing, through either direct or circumstantial evidence, that would permit
us to infer the firearm recovered by Fry was operational. Clearly there was no direct
evidence the firearm was operational. Fry’s testimony established only that the firearm
was loaded. The magistrate concluded there was a complete lack of evidence to support
the “operational” element of a Health and Safety Code section 11370.1, subdivision (a)
offense. The trial court felt the reasonable inferences that could be drawn from the facts
adduced at the preliminary hearing provided sufficient evidence the firearm was
operational. We disagree.


                                            5.
       The trial court’s reasoning was based on two facts. The first fact was Fry
responded to the area because of reports of shots having been fired. The second fact was
Garcia responded to Fry in such a manner to suggest a consciousness of guilt. The trial
court reasoned that if Garcia had not shot his firearm causing the reports of shots fired in
the area, then he would have reacted differently when confronted by Fry. Because Garcia
ran when confronted by the police, the trial court concluded it was reasonable to infer
Garcia was the one who fired the shots in the area, and therefore the firearm had to be
operational.
       The trial court’s logic is flawed for two reasons. First, Fry testified at the
preliminary hearing the firearm was loaded. He did not state the firearm had been
recently fired. If the revolver was loaded, it is logical to conclude it had not been fired, a
fact confirmed by Fry’s trial testimony. Since there was no evidence Garcia had
additional cartridges to replace those the trial court concluded he had previously fired, the
evidence does not support the trial court’s inference.
       Second, the premise on which the trial court based its conclusion is erroneous.
The trial court assumed Garcia ran only because he recently fired the firearm. However,
Garcia’s reaction to being confronted by the police is logically explained by the fact he
was a recently released felon in possession of a firearm and methamphetamine. To
suggest he ran because he had recently fired the firearm is pure speculation. Because the
premise on which the trial court relied is based on speculation, the conclusion the trial
court reached is based on speculation. Speculation is not a reasonable and legitimate
inference adduced from the evidence. The trial court’s error, however, requires reversal
only if Garcia can establish he was prejudiced by this error. (People v. Letner and Tobin
(2010) 50 Cal.4th 99, 140 (Letner).)
       Garcia argues he suffered prejudice as a result of the trial court’s ruling because,
had the trial court ruled correctly, then the prosecution would have been precluded from
prosecuting him for this charge by the “two dismissal rule” found in Penal Code section


                                              6.
1387. (Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 218 [two dismissals of
felony charges for the same offense will bar further prosecution].) He reasons that since
the magistrate dismissed the Health and Safety Code section 11370.1, subdivision (a)
violation once when it held there was insufficient evidence to hold him to answer the
charge, the dismissal pursuant to his Penal Code section 995 motion would have been the
second dismissal.
       The flaw in Garcia’s argument is that the trial court did not grant the Penal Code
section 995 motion, so the charge was only dismissed once. Therefore, the two dismissal
rule does not apply. Instead, as the Supreme Court did in Letner, we look to the record of
this case to determine if the error in denying the section 995 motion caused Garcia
prejudice. As in Letner, the record conclusively establishes Garcia did not suffer any
prejudice because the evidence at trial established the firearm was operational, and the
evidence also was sufficient to support every other element of the charge. (Letner, supra,
50 Cal.4th at p. 140.)
       Letner is procedurally identical to this case. The magistrate in Letner did not hold
the defendants to answer on burglary charges and a burglary special circumstance
allegation because of insufficient evidence. The prosecutor filed an information which
included the charge as well as the special circumstance allegation. The defendants both
moved to dismiss pursuant to Penal Code section 995 based on the magistrate’s ruling.
The trial court denied the motion finding sufficient evidence to hold the defendants to
answer on all charges and allegations. (Letner, supra, 50 Cal.4th at p. 138.) On appeal
the defendants argued the trial court erred in denying their respective section 995
motions. The Supreme Court declined to reach the merits of the issue, instead rejecting
the defendants’ argument because they could not establish any prejudice as the evidence
presented at trial was sufficient to support the jury’s verdict. (Letner, at pp. 138-140.)
Since the relevant facts in this case are identical to the relevant facts in Letner, we are




                                              7.
bound by the Supreme Court’s analysis. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal.2d 450, 455.)
                                   DISPOSITION
      The judgment is affirmed.




                                          8.
