People v. Garcia CA2/2

Filed 12/3/20 P. v. Garcia CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO

THE PEOPLE, B301847

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA477275)
v.

RICHARD A. GARCIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Drew E. Edwards and David V. Herriford,
Judges. Affirmed.

Greg Wolff, 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, Paul M. Roadarmel, Jr. and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
 ******
Richard A. Garcia (defendant) was convicted of beating up
his on-again, off-again girlfriend, and sentenced to six years in
state prison. He argues that his conviction is barred by double
jeopardy and is infected with evidentiary error. We conclude
none of his claims entitle him to relief, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Defendant and Sandra S. (Sandra) met in 2012, and began
an on-again, off-again dating relationship that lasted until July
2019.
In the early morning hours of February 4, 2019, defendant
and Sandra got into an argument in an exchange of text
messages. Because Sandra wanted defendant to drive her to a
court hearing, she went to his house around 8:00 a.m. or 8:30
a.m. that morning. When defendant answered the front door, he
started yelling at Sandra and, without provocation, punched her
four times in the head and face with his closed fist. He then
dragged her by the hair into the house, through the living room,
and into the bathroom. Once there, he punched her three more
times with his closed fist. The blows knocked her to the floor,
and defendant held her to the floor. Defendant then walked out
of the room.
Bloodied and stunned, Sandra wiped some of the blood from
the injuries to her head and face with the sweater she was
wearing before deciding to get into the shower to clean herself up
a little. When she finished, she was unable to call 911 because
defendant had taken her purse that contained her cell phone, and
she was afraid to leave his house because defendant had
previously threatened her it “would be . . . worse for [her]” “if

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[she] left.” Exhausted from the beating, she laid down on the bed
in the house. It is unclear whether she passed out or fell asleep.
Sandra awoke six hours later (a little before 3:00 p.m.),
startled. She ran into the front of the house, and saw defendant
out in the front yard. When he left a few minutes later, Sandra
ran out of the house, flagged down a passing car, and asked for a
ride to her brother’s nearby house. Once there, she called 911 to
report the beating and, a few minutes later, spoke with a
responding police officer who was wearing a body camera.
The beating busted Sandra’s lip, bruised her right shoulder
and ear, and split her scalp in a way that necessitated two or
three stitches.
In a March 2019 back-and-forth exchange on an instant
messaging app associated with YouTube, defendant called
Sandra a “bitch,” a “snitch” and a “fuckn rat,” accused her of
being “the starter of all fighting,” explained that “this is why
[she] get fucked up for starting shit,” further suggested that the
February 2019 beating was Sandra’s fault because “If a sign says
beware of dog and u still stepp [sic] into the yard . . . then cry n
[sic] act like you didn’t know youd [sic] get bit,” and repeatedly
threatened her that he would “beat [her] ass” and “fuck [her] up”
when he “get[s] out” of prison.
II. Procedural Background
The People charged defendant with (1) injuring a spouse,
cohabitant or girlfriend (Pen. Code, § 273.5, subd. (a)), and (2)
battery causing serious bodily injury (id., § 243, subd. (d)). As to
the injuring a spouse count, the People also alleged that
defendant personally inflicted great bodily injury (id., § 12022.7,
subd. (e)).

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 The matter proceeded to trial in July 2019. The trial court
eventually declared a mistrial.
The matter proceeded to a second trial in September 2019.
The second jury convicted defendant of all counts and found true
the great bodily injury allegation.
The trial court sentenced defendant to six years in state
prison. The court imposed a six-year sentence on the injuring a
spouse, cohabitant or girlfriend count, comprised of a three-year
base term plus three years for the great bodily injury
enhancement. The court then imposed a three-year sentence on
the battery count, but stayed the sentence pursuant to Penal
Code section 654.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that his conviction must be overturned
because the trial court erred (1) in declaring a mistrial after the
first trial, such that the retrial violated double jeopardy, (2) in
not honoring the first jury’s request for readback of testimony, (3)
in admitting Sandra’s statements on the 911 call and to the police
who responded to that call, (4) in admitting Sandra’s statements
from the March 2019 exchange of instant messages, and (5) in
admitting evidence that defendant possessed methamphetamine
when he was arrested in April 2019.
I. Issues Relating to First Trial
A. Pertinent facts
On the first day of jury deliberations after defendant’s first
trial concluded, the jury asked for a readback of the entirety of
Sandra’s testimony. Because the request came late in the
afternoon, the court told the jury it would do the readback the
next morning.

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 On the second day of deliberations, one of the jurors was
too ill to come to court and the parties stipulated to replace her
with an alternate juror. The court then instructed the newly
constituted jury that it must “begin [its] deliberations again from
the beginning,” and “must disregard the earlier deliberations and
decide this case as if [the] earlier deliberations have not taken
place.”
After less than two hours of deliberation, the jury sent a
note. The note read:
“We are unable to come to a unanimous decision
because we feel that there is insufficient evidence
from both the defense and the People. Even with a
review of all current exhibits, we all feel strongly
about our individual opinions, and they will not
change.”
In response to the note, the court called the jury to the
courtroom and asked how many votes the jury had taken. The
foreperson responded, “maybe four.” The court explained that
because the newly constituted jury had been deliberating for
“between an hour and a half, [or an hour and] 45 minutes,” it was
“going to ask [the jury] to go back and talk some more.” The
court reminded the jury that it could send a note if the jurors
wanted readback.
After less than 90 minutes of further deliberation, the jury
sent a second note. The note read:
“We created a timeline and carefully reviewed each
piece of evidence again. We cannot agree on a
unanimous verdict. We feel that we will be unable to
reach a verdict with more time as well. We all feel
strongly that there is not enough evidence.”

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 In response to this note, the court again called the jury to
the courtroom. The court again asked how many votes the jury
had taken. The foreperson responded, “Like nine,” and added
that the jury’s split had “[s]tayed the same” in all nine votes. The
court asked, “Without telling me how many people voted guilty
and how many voted not guilty, what is the actual split?” The
foreperson responded, “Six to six.” The court then asked whether
“there is anything else the court can do to assist [the jury] in
reaching a verdict, [such as] additional readback of testimony[ or]
any further instructions.” The foreperson responded, “We don’t
see anything.” The court polled each of the jurors as to whether
they believed each “cannot reach a verdict”; all 12 responded they
could not.
The court then declared a mistrial and dismissed the jury.
Defendant moved for dismissal of the charges on the
ground that “it was an even split as well as the jurors saying
there was insufficient evidence.” The trial court denied the
motion, explaining that “[h]alf the jurors indicated . . . their belief
[defendant] was guilty of the charge” and that it was “well within
the People’s province to retry this case.”
B. Analysis
1. Double jeopardy
The federal and California constitutional guarantees of
double jeopardy prevent the People from subjecting a person to a
second trial for the same offense(s) unless, as is pertinent here,
the first trial was terminated by “legal” or “manifest” “necessity.”
(People v. Anderson (2009) 47 Cal.4th 92, 104 (Anderson); People
v. Halvorsen (2007) 42 Cal.4th 379, 425; Curry v. Superior Court
of San Francisco (1970) 2 Cal.3d 707, 712; U.S. Const., 5th
Amend.; Cal. Const., art. I, § 15.) There is a legal or manifest

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necessity for retrial when the jury in the first case is genuinely
unable to reach a verdict. (Anderson, at p. 104.) A jury is
genuinely deadlocked only if “it satisfactorily appears that there
is no reasonable probability that the jury can agree” on a verdict.
(Pen. Code, § 1140; People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 462.) “The determination whether there is a
reasonable probability of agreement rests in the discretion of the
trial court.” (People v. Breaux (1991) 1 Cal.4th 281, 319.)
The trial court did not abuse its discretion in concluding
that there was a reasonable probability that the jury in the first
trial could not agree on a verdict (and hence, in concluding that
there was no violation of double jeopardy). When the jury first
indicated it was deadlocked, the court noted the relatively brief
time spent deliberating, ordered the jury to continue discussing
the case, and offered to provide any assistance the jury wanted.
When the jury later reaffirmed its continued deadlock, the court
confirmed that the 6-6 split had not changed after nine votes, and
polled each individual juror to confirm that each felt they could
not reach agreement. On these facts, the court acted well within
its discretion in concluding that there was no reasonable
probability the first jury could agree on a verdict.
Citing the language used in the jury’s two notes stating
that the jury felt there is “insufficient” or “not enough” evidence,
defendant argues that what the jury really meant was that all 12
jurors felt that there was “not enough evidence” to convict him,
or, at a minimum, that the jury was confused about the beyond a
reasonable doubt standard. We reject this argument as an
unreasonable and implausible reading of the jury’s notes. In both
notes, the jurors had also expressly indicated that they were
“unable to come to a unanimous verdict.” What is more, the

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foreperson went on to report that “six” jurors had voted “guilty”
and “six” had voted “not guilty.” Read as a whole, the only
plausible interpretation of the jury’s representation that there
was “not enough evidence” is as an inartful statement that “there
is not enough evidence for all 12 of us to agree on defendant’s
guilt” rather than a nonsensical statement that “all 12 of us think
there is not enough evidence, including the six of us who still
voted guilty.” (See Shoemaker v. Myers (1992) 2 Cal.App.4th
1407, 1424 [“‘Where a statute is susceptible of two constructions,
one leading to mischief or absurdity, and the other consistent
with justice and common sense, the latter must be adopted’”].)
This is particularly so when we consider that the note was
written by a juror, and we do not expect jurors to be precise in
their use of legal terminology. (Accord, People v. Riggs (2008) 44
Cal.4th 248, 287.) The implausibility of defendant’s reading of
the jury notes also obviated any need for the court to inquire
further or to instruct further regarding the burden of proof.
Defendant resists this conclusion, citing People v. Medina (1980)
107 Cal.App.3d 364 for the proposition that the court should have
inquired further, but Medina is inapt: There, the trial court was
too quick to dismiss a jury that had expressly told the judge it
“[n]eed[ed] further instructions.” (Id. at pp. 368-370.) Here, the
jury had repeatedly told the court that it was deadlocked.
2. Failure to honor request for readback
When a jury requests the readback of testimony, the court’s
failure to honor that request can invalidate the verdict. (Pen.
Code, § 1138; People v. Frye (1998) 18 Cal.4th 894, 1007,
overruled in part on other grounds as stated in People v. Doolin
(2009) 45 Cal.4th 390, 421.) While the trial court did not honor
the jury’s initial request for readback of Sandra’s testimony at

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the first trial, this was not error.1 That is because, on the very
next morning before the readback could occur, a new juror was
seated. When this happens, the trial court is required to
“instruct the jury to set aside and disregard all past deliberations
and begin deliberating anew.” (People v. Collins (1976) 17 Cal.3d
687, 694, overruled on other grounds as stated in People v.
Boyette (2002) 29 Cal.4th 381, 462, fn. 19; accord, CALCRIM No.
3575 [so instructing].) The trial court here did just that. Thus,
the trial court was not required to honor the previous jury’s
request for readback. Indeed, it would have been error if the trial
court had gone ahead with the readback because doing so would
have suggested that the prior jury’s deliberations—including its
requests for readback—still mattered. (See People v. Guillen
(2014) 227 Cal.App.4th 934, 1030-1031 [finding error in this
context].) What is more, the trial court told the newly constituted
jury that it was free to request any readback, and it decided not
to do so.
II. Evidentiary Issues
We review a trial court’s evidentiary rulings for an abuse of
discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)

1 It is not clear whether this issue is even properly before us
given that it deals with the first jury’s deliberations (which ended
with what we have determined to be a proper declaration of a
mistrial) and given that what is before us now are the convictions
arising out of the second jury’s deliberations.

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 A. Sandra’s statements on the 911 call and to the
responding officers2
Sandra’s out-of-court statements on the 911 call and to the
responding officers regarding what happened when defendant
beat her were admitted for their truth, and are accordingly
hearsay. (Evid. Code, § 1200, subd. (a).)
The trial court nevertheless did not abuse its discretion in
admitting Sandra’s statements because they qualify as excited
utterances. Because these statements were made after a
startling occurrence (namely, defendant’s attack) and pertain to
that occurrence, the sole issue is whether Sandra’s statements
were the product of “‘the nervous excitement’” caused by the
beating and made “‘before there [was] time to contrive and
misrepresent . . . .’” (People v. Poggi (1988) 45 Cal.3d 306, 318;
Evid. Code, § 1240.) Factors relevant to this issue include “‘[(1)]
the passage of time between the startling event and the
statement[(s)], [(2)] whether the declarant blurted out the
statement or made it in response to questioning, [(3)], the
declarant’s emotional state and physical condition at the time of
making the statement, and [(4)] whether the content of the
statement suggested an opportunity for reflection and
fabrication.’ [Citations.]” (People v. Sanchez (2019) 7 Cal.5th 14,
40.) “‘[N]o one factor or combination of factors is dispositive.’”
(Ibid.) Although approximately six hours passed between the
beating and Sandra’s statements on the 911 call and to the
responding officers, and although some were in response to

2 To the extent defendant challenges the admission of the
bodycam footage worn by officers who arrested defendant in April
2019, he does not provide any reasoned argument to support
those challenges and they are accordingly waived. (E.g., In re
S.C. (2006) 138 Cal.App.4th 396, 408.)

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questions posed by the 911 operator and the officer, she spent
nearly all of that time unconscious. More to the point, we have
reviewed the 911 tape and the bodycam video worn by the
responding officer, and they reflect that Sandra was still under
the “excitement” of the beating at the time she made her
statements: She was sobbing on the 911 tape, and the bodycam
video shows a battered and bleeding Sandra looking dazed and
speaking only haltingly. (Accord, People v. Liggins (2020) 53
Cal.App.5th 55, 61-64 [proper to admit, as an excited utterance,
statement recorded by bodycam where video showed declarant
was still under stress of event].)
Defendant further argues that we cannot rely upon the
excited utterance exception because the trial court never did,
leaving us no exercise of discretion to review. This argument
ignores the longstanding rule that “‘“we review the [trial court’s]
ruling, not the court’s reasoning and, if the ruling was correct on
any ground, we [may] affirm.”’” (People v. Brooks (2017) 3
Cal.5th 1, 39.)
B. Sandra’s statements in the March 2019
exchange of instant messages
The People introduced a hardcopy of the March 2019
exchange of instant messages between defendant and Sandra,3 so
defendant’s statements during that exchange are hearsay but
admissible as the statements of an adverse party. (Evid. Code,
§ 1220.) Sandra’s statements during the exchange are admissible
to “‘provid[e] context’ [citation]” for defendant’s statements, but

3 Although defendant repeatedly notes that it was “40 pages”
of text messages, it is in actuality 40 pages of blown-up screen
shots of text messages, which appear in what must be 22- to 60-
point typeface in alternating bubbles occupying only half the
page.

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in that respect, are not admissible for their truth. (People v.
Fayed (2020) 9 Cal.5th 147, 169.) However, the prosecutor asked
Sandra about many of her own statements during her testimony
and, in closing argument, referred to those statements as if they
had been admitted for their truth. Defendant forfeited his right
to complain of this error, however, because he did not request an
instruction limiting this evidence to its nonhearsay uses (Evid.
Code, § 355), and did not object to the prosecutor’s closing
argument (People v. Crew (2003) 31 Cal.4th 822, 839).
To forestall any claim that defense counsel was
constitutionally ineffective for not requesting a limiting
instruction and not objecting, we address that claim. Even if we
assume for the sake of argument that defense counsel’s decision
not to object was deficient performance rather than a product of
trial tactics, defendant has still not established that there is a
“reasonable probability” that, but for that deficient performance,
“the result of the proceeding would have been different.”
(Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) That is
because the evidence of defendant’s guilt was overwhelming and
his trial testimony implausible. The evidence that defendant
beat Sandra was overwhelming: Sandra testified to the beating;
her trial testimony was corroborated by her near-
contemporaneous statements on the 911 call and to the
responding officers; her injuries from the beating were
photographed and visible in the bodycam video recorded hours
after the beating; and defendant effectively admitted to beating
her in the instant message exchange and went so far as to
threaten to do it again. Defendant testified, and his defense was
not only that he did not do the beating, but that he saw Sandra
around 8:00 p.m. the same day and that she had no visible

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injuries. Thus, the defense was that Sandra beat herself up
enough to look battered and bruised on the bodycam video at 3:00
p.m., and then used what we must assume to be super-human
healing power to appear wholly uninjured five hours later. Given
the totality of this evidence, Sandra’s statements during the
instant message exchange—which at most added a fourth layer of
corroboration to her account of defendant’s attack—had no
discernable effect on the outcome of this trial. Defendant
suggests that the fact that the first jury deadlocked and the
second jury convicted him means that the instant messages
(which were not admitted at the first trial) were necessarily
prejudicial. We reject this suggestion, as the admission of those
messages were not the only difference between the two trials.
(Cf. People v. Ross (2007) 155 Cal.App.4th 1033, 1055 [noting that
prior jury’s deadlock is merely one “fact” to consider in assessing
prejudice].)
C. Defendant’s possession of a substance that
appeared to be methamphetamine in April 2019
1. Pertinent facts
The People sought to introduce evidence that, when
defendant was arrested for the charged crimes in April 2019, he
left a baggie filled with a crystal-like powder in the back of the
police vehicle used to transport him. The trial court excluded this
evidence in the People’s case-in-chief, but noted it might “revisit”
the ruling “depending” on what defendant might say during his
testimony. Defendant testified. During cross-examination, the
prosecutor asked when the defendant last used
methamphetamine. Defendant responded that he had not used
methamphetamine at all in 2019 or, for that matter, since 2006
or 2007. The trial court then allowed the prosecutor to call the
officer who transported defendant in April 2019, and that officer

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testified that defendant had left a clear plastic baggy with a
crystal-like substance in the back seat of the police vehicle, and
that the substance appeared to be methamphetamine.
2. Analysis
The trial court did not abuse its discretion in admitting this
evidence. To be sure, whether defendant possessed
methamphetamine in April 2019 is collateral to whether he beat
Sandra in February 2019. But “[a] matter collateral to an issue
in the action may nevertheless be relevant to the credibility of a
witness who presents evidence on an issue.” (People v. Rodriguez
(1999) 20 Cal.4th 1, 9 (Rodriguez).) Here, defendant denied using
methamphetamine in 2019 while testifying. Evidence that
defendant possibly possessed some methamphetamine in 2019
constitutes evidence regarding “[t]he existence or nonexistence of
any fact testified to by [a witness],” and is therefore relevant to a
witness’s credibility. (Evid. Code, § 780, subd. (i).) Admission of
this evidence was accordingly entrusted to the trial court’s
discretion to decide whether its probative value was substantially
outweighed by the danger of unfair prejudice. (Rodriguez, at pp.
9-10; People v. Mendoza (2011) 52 Cal.4th 1056, 1089-1090; Evid.
Code, § 352.) Here, evidence of defendant’s possible possession of
methamphetamine in April 2019 had moderate probative value
not only to impeach him, but also to corroborate Sandra’s
testimony that defendant was high at the time he attacked her in
February 2019, which helped to explain his seemingly sudden
explosion of violence as well as his subsequent misperception of
the event. Conversely, the fact that defendant possessed a
substance that looked like methamphetamine two months after
the charged offenses did not pose a great danger of unfair
prejudice given its minor nature and its lack of a clear link to the

14
charged crimes. A trial court striking the balance of these
considerations in favor of admission does not abuse its discretion.
Defendant’s chief response is to cite civil cases and criminal
cases that pre-date enactment of the Truth-in-Evidence Law (Cal.
Const., art. I, § 28, subd. (f)(2)) for the proposition that “‘“[a]
party cannot cross-examine his adversary’s witness upon
irrelevant matters, for the purpose of eliciting something to be
contradicted.”’” (Winifred D. v. Michelin North American, Inc.
(2008) 165 Cal.App.4th 1011, 1033; Bowman v. Wyatt (2010) 186
Cal.App.4th 286, 327; People v. Lavergne (1971) 4 Cal.3d 735,
744.) These cases do not apply in criminal matters because the
California Constitution now provides that “relevant evidence
shall not be excluded in any criminal proceeding,” subject to the
trial court’s usual exercise of its authority under Evidence Code
section 352. (Cal. Const., art. I, § 28, subd. (f)(2); Rodriguez,
supra, 20 Cal.4th at pp. 9-10.) And even if we assumed that this
old maxim still applied and that the trial court therefore erred in
admitting this evidence, “it is not reasonably probable that a
result more favorable to [the] defendant would have resulted”
given the overwhelming evidence against defendant, the
implausible testimony he provided, and the collateral nature of
this evidence to the charged offenses. (People v. Cole (2004) 33
Cal.4th 1158, 1195; see generally People v. Watson (1956) 46
Cal.2d, 818, 835-836.)
D. Cumulative error
Defendant also argues that the evidentiary errors,
considered cumulatively, warrant reversal. In light of our
determinations that some of the alleged errors are not errors at
all, and that none of them is prejudicial, we further conclude that
adding them together is also not prejudicial.

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 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
ASHMANN-GERST

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