Filed 6/8/21 P. v. Garcia CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077990
Plaintiff and Respondent,
(Super. Ct. No. 17CR04410D)
v.
ADRIAN GARCIA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Merced County. Carol K.
Ash, Judge.
Kevin J. Lindsley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Jennifer
Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Adrian Garcia was convicted for his role in a gang-related assault with a deadly
weapon occurring in jail (Pen. Code,1 §§ 245, subd. (a)(1) & 186.22, subd. (b)). On
1 All statutory references are to the Penal Code.
appeal, he contends the court’s jury instruction describing an uncharged conspiracy
erroneously lowered the prosecution’s burden of proof.
The People concede both error and prejudice. We accept the concessions and will
reverse the judgment.2
BACKGROUND
Charges
The Merced County District Attorney charged Garcia with three crimes:
Attempted murder (§§ 187 & 664, Count 1), assault with a deadly weapon (§ 245,
subd. (a)(1), Count 2), and possessing a weapon in jail (§ 4502, subd. (a), Count 3). It
was also alleged the crimes were gang-related (§ 186.22, subd. (b)) and the victim
suffered great bodily injury (§ 12022.7, subd. (a)).
Trial Evidence3
The victim testified he was attacked by several other men he was housed with in
jail.4 He suffered significant injuries including “numerous small puncture wounds”
across his back. He identified Garcia as one of his assailants but was unaware if Garcia
utilized a weapon in the attack.
Verdict and Sentence
Garcia was convicted of assault with a deadly weapon (Count 2) but acquitted of
attempted murder and possessing a weapon (Counts 1 and 3). The gang-related crime
and great bodily injury enhancements were found true. He was sentenced to serve
11 years eight months in prison.5
2 Additional claims related to fines and restitution are moot.
3Much of the evidence is not relevant to the issues on appeal. Our summary is
appropriately confined to the issues presented.
4 Five other men were charged for the same crimes.
5 Part of the sentence was due to a conviction in a second case.
2.
DISCUSSION
The jury was instructed Garcia was guilty if he 1) directly committed a crime,
2) aided and abetted a crime, or 3) a co-conspirator committed a crime to further an
uncharged conspiracy to commit murder. Only the conspiracy instruction is at issue.
Garcia argues the instruction failed to adequately describe the elements necessary
to prove assault with a deadly weapon. The People agree and concede prejudice. We
agree on both accounts.
I. Instructional Error
To explain the uncharged conspiracy theory, the court instructed the jury with the
following relevant language:
“To prove that the defendant is guilty of the crimes charged in
Count[s] 1, 2 and 3, the People must prove that:
1. The defendant conspired to commit [murder];
2. A member of the conspiracy committed an assault and/or
possessed a sharp instrument to further the conspiracy;
AND
3. Committing an assault and/or possessing a sharp
instrument was a natural and probable consequence of the
common plan or design of the crime the defendant conspired
to commit.”6
Conspicuously, the instruction does not define, identify, or otherwise describe assault
with a deadly weapon.
Neither assault nor possession of a sharp instrument constitutes assault with a
deadly weapon. Even assault combined with simultaneous weapon possession does not
equal assault with a deadly weapon. Assault with a deadly weapon requires utilizing the
6 Conspiracy and natural and probable consequences were defined elsewhere in
the instructions.
3.
weapon in a manner likely to cause injury. (People v. Marsh (2019) 37 Cal.App.5th 474,
484; § 245, subd. (a)(1).) The uncharged conspiracy instruction in this case errs because
it inadequately explains assault with a deadly weapon.
II. Prejudice
Alternative-theory error occurs “when a court instructs on [multiple] theories of
guilt, one [or more] correct, and the other[s] incorrect.” (People v. Aledamat (2019)
8 Cal.5th 1, 7.) When the error is legal, a “reviewing court must reverse the conviction
unless, after examining the entire cause, including the evidence, and considering all
relevant circumstances, it determines the error was harmless beyond a reasonable doubt.”
(Id. at p. 13.) The court’s review is not limited to “an examination of the jury’s findings
as reflected in the verdict itself ….” (Ibid.) The People bear the burden “to ‘prove
beyond a reasonable doubt that the error … did not contribute to the verdict obtained.’ ”
(People v. Mower (2002) 28 Cal.4th 457, 484.)
The People concede prejudice. We are obliged to agree. The People bear the
burden to prove the error was harmless but make no effort to discharge the burden. In
any event, were we to examine the record we would find no steadfast basis upon which to
conclude the error in this case was harmless beyond a reasonable doubt.7
7 The People may retry Garcia upon remand.
4.
DISPOSITION
The judgment is reversed.
SNAUFFER, J.
WE CONCUR:
LEVY, Acting P.J.
POOCHIGIAN, J.
5.