People v. Garces CA2/1

Filed 11/29/22 P. v. Garces CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B320070
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. VA148434)
v.

EDWIN DAVID GARCES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, John A. Torribio, Judge. Affirmed in part and
remanded with directions.
Sally Patrone Brajevich, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Heidi Salerno, Deputy
Attorneys General, for Plaintiff and Respondent.
_____________________
 When Curtis Banks and Steven Lara confronted defendant
and appellant Edwin David Garces about vandalizing their
marijuana dispensary, Garces attacked both of them. The attack
included Garces stabbing Banks nine times and seriously
injuring him. A jury convicted Garces of one count each of
willful, deliberate and premeditated attempted murder (Pen.
Code,1 §§ 187, subd. (a), 664, subd. (a)), assault with a deadly
weapon (§ 245, subd. (a)(1)), and vandalism (§ 594, subd. (a)). In
addition, the jury found that Garces personally used a knife in
the attempted murder (§ 12022, subd. (b)(1)), that he inflicted
great bodily injury (§ 12022.7, subd. (a)) in the attempted murder
and the assault, and that he committed the crimes for the benefit
of a criminal street gang.2 (§ 186.22, subd. (b)(1)(C).)
Garces now challenges his convictions, arguing there was
insufficient evidence that he acted with premeditation and
deliberation in the attempted murder, and that the prosecutor
committed misconduct during closing argument. He also
contends that we must remand the case for a new sentencing
hearing in light of a recently enacted law restricting the
imposition of sentence enhancements. We affirm Garces’s
conviction but remand the case for a new sentencing hearing.

1 Unless otherwise specified, subsequent statutory
references are to the Penal Code.
2 The court vacated the jury’s finding on the gang
enhancements in light of Assembly Bill No. 333 (2021-2022 Reg.
Sess.) (Stats. 2021, ch. 699), which became effective after Garces’s
trial and which created new, more stringent substantive and
procedural requirements for gang enhancements.

2
 FACTS AND PROCEEDINGS BELOW
On the evening of August 8, 2018, Lara and Banks were
working at a marijuana dispensary in Huntington Park. Lara,
the owner of the dispensary, saw two people spray-painting
graffiti on the property’s back gate; he told Banks that he wanted
to go out and confront them. Lara opened the gate, and he and
Banks saw Garces and a female companion walking away. Lara
asked why the two had been tagging the dispensary’s gate, but
they did not respond. Lara and Banks followed Garces and his
companion on foot and eventually caught up to them towards the
end of the block. Garces turned around, pulled out a knife, and
said, “What’s up?” Lara and Banks turned to run back towards
the dispensary, and Garces pursued Lara. Lara fell down when
he reached the dispensary gate and said to Banks, “Curtis,
Curtis, help me. He’s about to stab me.” Banks punched Garces
twice, hitting him once on the side of his face. Garces turned to
face Banks and began slashing the knife at him. Garces stabbed
Banks once in each arm and once in the chest as Banks tried to
defend himself. Banks fell backward onto the ground, and
Garces continued attacking him with the knife. Garces kicked
Banks in the head, said “38th Street. This is my ‘hood,’ ” and ran
away. Surveillance video footage showed Garces chasing Lara
and Banks, but the stabbing occurred off-camera.
Banks suffered nine stab wounds to his arms, chest, and
his left thigh, all of which penetrated through the muscles
beneath the skin. By the time he arrived at a hospital, he had
lost 20 percent of his blood volume and, according to the surgeon
who treated him, might have died if he had not received prompt
treatment.

3
 A police officer encountered Garces in the parking lot of a
nearby restaurant soon after the stabbing. The officer pursued
Garces on foot and, after arresting him, recovered a knife that
Garces threw away during the chase.
Garces testified in his own defense. He admitted
vandalizing the gate outside the dispensary, but claimed that
Banks started the fight by punching him in the face. Garces
testified that he initially fought back with his fists, and that he
took his knife out when Lara joined in and struck him with a
heavy metal object.3 Garces said he warned Lara and Banks that
he had a knife, and he stabbed Banks only after Banks continued
punching him.
The trial court sentenced Garces to 16 years to life in
prison. The sentence consisted of seven years to life for
premeditated attempted murder of Banks (§§ 187, subd. (a), 664,
subd. (a)), plus the low term of two years for assault with a
deadly weapon of Lara (§ 245, subd. (a)(1)), plus seven years in
enhancements for personally using a knife (§ 12022, subd. (b)(1))
and inflicting great bodily injury (§ 12022.7, subd. (a)). The court
sentenced Garces to a concurrent term of six months for
vandalism (§ 594, subd. (a)).
DISCUSSION
A. Substantial Evidence Supported the Jury’s Finding of
Premeditation and Deliberation
Garces contends that there was no substantial evidence to
support the jury’s finding that he acted with premeditation and

3 Arresting officers did not notice any injuries to Garces
other than redness to his chest. There was blood on his clothing
but not his face or body, and the blood belonged to Banks.

4
deliberation in the attempted murder of Banks. He argues that
all the evidence at trial indicated that “the stabbing was an
impulsive reaction to the confrontation, with no time to reflect
between the rapid stab wounds.” We are not persuaded.
Substantial evidence is “evidence which is reasonable,
credible, and of solid value from which a rational trier of fact
could find defendant guilty beyond a reasonable doubt.” (People
v. Cage (2015) 62 Cal.4th 256, 275.) When we review for
substantial evidence, “[w]e do not reweigh the evidence or revisit
credibility issues, but rather presume in support of the judgment
the existence of every fact that could reasonably be deduced from
the evidence.” (People v. Alvarez (2009) 178 Cal.App.4th 999,
1004.) We may reverse only if “no rational trier of fact
reasonably could have found defendant[ ] guilty” on the basis of
the evidence. (People v. Letner and Tobin (2010) 50 Cal.4th 99,
166.)
“The crime of attempted murder is not divided into degrees,
but the sentence can be enhanced if the attempt to kill was
committed with premeditation and deliberation.” (People v.
Gonzalez (2012) 54 Cal.4th 643, 654.) Courts have developed the
jurisprudence of premeditation and deliberation primarily in
cases involving first degree murder, but the same analysis
applies in cases of attempted murder. (See, e.g., People v. Lenart
(2004) 32 Cal.4th 1107, 1127-1128.) The Supreme Court has
“identified ‘three basic categories’ of evidence [it] has generally
found sufficient to sustain a finding of premeditation and
deliberation: (1) planning activity, or ‘facts about how and what
defendant did prior to the actual killing which show that the
defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing’; (2) motive, or

5
‘facts about the defendant’s prior relationship and/or conduct
with the victim from which the jury could reasonably infer a
“motive” to kill the victim’; and (3) manner of killing, or ‘facts
about the nature of the killing from which the jury could infer
that the manner of killing was so particular and exacting that the
defendant must have intentionally killed according to a
“preconceived design” to take his victim’s life in a particular way
for a “reason.” ’ ” (People v. Morales (2020) 10 Cal.5th 76, 88-89,
quoting People v. Anderson (1968) 70 Cal.2d 15, 26-27.)
These “ ‘ “guidelines are descriptive and neither normative
nor exhaustive, and . . . reviewing courts need not accord them
any particular weight.” ’ [Citation.]” (People v. Morales, supra,
10 Cal.5th at p. 89.) Ultimately, an attempted murder “ ‘ “ ‘is
premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or
rash impulse.’ ” [Citations.] “The true test is not the duration of
time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.” ’ ” (Id. at p. 88.)
In this case, there was sufficient evidence to support the
jury’s finding that Garces acted with premeditation and
deliberation in attempting to kill Banks. Garces argues the
attack was impulsive, and “sparked by the victim’s aggression.”
That is certainly one inference that could be drawn from the
evidence, but it is not the only one. Although the confrontation
between Garces, Lara, and Banks occurred quickly, Garces had
time to reflect and deliberate before he attacked. Garces walked
away from the dispensary, appearing to ignore Lara and Banks
even as Lara asked him why he had tagged the gate. Then
suddenly Garces stopped, drew his knife, turned around, said

6
“What’s up?” and charged after individuals that were no longer
posing any threat to him. A jury could reasonably infer from this
sequence of events that Garces planned his actions while being
trailed by Lara and Banks as they demanded answers from him,
and waited until the right moment before turning on Banks and
Lara and charging at them with his knife drawn. When Lara and
Banks tried to run away, Garces pursued them for a meaningful
distance down the street and back up to the dispensary before
using the knife—further evidencing his premeditation and
deliberation. Once Garces began stabbing Banks, he did so nine
times including twice in the chest just barely missing Banks’s
heart. The jury could reasonably infer from the number of stab
wounds as well as their location that Garces acted with reflection
and a deliberate intent to kill. (E.g., People v. Potts (2019) 6
Cal.5th 1021, 1028 [“ ‘plunging a lethal weapon into the chest
evidences a deliberate intention to kill’ ”], quoting People v.
Anderson, supra, 70 Cal.2d at p. 27.)
In addition, there was evidence indicating Garces had a
motive for attacking. He had just spray-painted the name of his
gang and his moniker on the gate of the dispensary. After the
stabbing, Garces stood over Banks, stated his gang’s name and
“This is my hood.” The prosecution’s gang expert testified that
gang members commit acts of vandalism to mark their territories
and instill fear in the community. The jury could have
reasonably concluded that Garces was concerned Banks was
publicly challenging the gang’s dominance by confronting Garces
after the tagging, and that it was necessary to attempt killing
Banks for the benefit of the gang to maintain that dominance.
When we review a verdict for substantial evidence, we do
not substitute our own judgment for that of the jury. (People v.

7
Ceja (1993) 4 Cal.4th 1134, 1139.) We ask only “whether a
reasonable trier of fact could have found [the defendant] guilty
beyond a reasonable doubt.” (People v. Nelson (2016) 1 Cal.5th
513, 550.) Under that deferential standard, we must affirm the
jury’s finding that Garces acted with premeditation and
deliberation in committing the attempted murder.
B. The Prosecutor’s Misstatements in Closing Argument
Did Not Prejudice Garces
Garces contends that the prosecutor committed misconduct
during closing argument by referring to matters outside the
record, by vouching for Banks’s credibility, and by misstating the
law. We agree with some of Garces’s claims, but we nevertheless
affirm his convictions because he has failed to show that the
prosecutor’s conduct prejudiced him.
1. Legal Background
“A prosecutor is held to a standard higher than that
imposed on other attorneys because of the unique function he or
she performs in representing the interests, and in exercising the
sovereign power, of the state.” (People v. Hill (1998) 17 Cal.4th
800, 820.) “The standards governing review of [prosecutorial]
misconduct claims are settled. ‘A prosecutor who uses deceptive
or reprehensible methods to persuade the jury commits
misconduct, and such actions require reversal under the federal
Constitution when they infect the trial with such “ ‘unfairness as
to make the resulting conviction a denial of due process.’ ”
(Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464,
91 L.Ed.2d 144]; see People v. Cash (2002) 28 Cal.4th 703, 733
. . . .) Under state law, a prosecutor who uses such methods
commits misconduct even when those actions do not result in a
fundamentally unfair trial.’ (People v. Alfaro (2007) 41 Cal.4th

8
1277, 1328 . . . .) ‘In order to preserve a claim of misconduct, a
defendant must make a timely objection and request an
admonition; only if an admonition would not have cured the harm
is the claim of misconduct preserved for review.’ (Ibid.) When a
claim of misconduct is based on the prosecutor’s comments before
the jury, ‘ “the question is whether there is a reasonable
likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.” ’
[Citations.]” (People v. Friend (2009) 47 Cal.4th 1, 29.) To
establish a claim of misconduct, “bad faith on the prosecutor’s
part is not required. (Hill[, supra,] at pp. 822-823.) ‘[T]he term
prosecutorial “misconduct” is somewhat of a misnomer to the
extent that it suggests a prosecutor must act with a culpable
state of mind. A more apt description of the transgression is
prosecutorial error.’ (Id. at p. 823, fn. 1.)” (People v. Centeno
(2014) 60 Cal.4th 659, 666-667.)
2. Referring to Matters Outside the Record
Garces contends the prosecutor committed misconduct
during closing argument by suggesting that Lara declined to
testify because Garces’s gang had intimidated him, when nothing
in the record supported that claim. The prosecutor told the jury
that gangs have negative effects on communities, then continued,
“As a matter of fact, here we didn’t have Steven Lara. I had to
prove an entire count without that person here because there’s no
way he wants anything to do with this case.” Garces’s attorney
objected, and the trial court ordered the jury to disregard the
comment. The prosecutor continued, “You heard from the
experts. There’s a reason why witnesses and victims don’t show
up.” Again, Garces’s attorney objected, and the court sustained
the objection.

9
 We agree with Garces that these statements were
improper.4 Referring to matters outside the record during closing
argument is “clearly . . . misconduct” (People v. Pinholster (1992)
1 Cal.4th 865, 948, disapproved on another ground in People v.
Williams (2010) 49 Cal.4th 405, 459) because it is both unfair and
difficult for the defendant to refute facts that were never
presented in court in the first place. (People v. Benson (1990) 52
Cal.3d 754, 794.) The prosecutor thus “ ‘ “circumvent[s] the rules
of evidence” ’ ” (People v. Hill, supra, 17 Cal.4th at p. 828) and
introduces considerations the jury otherwise would not have
heard about. In addition, a prosecutor commits misconduct by
violating a prior court ruling. (People v. Crew (2003) 31 Cal.4th
822, 839.) The prosecutor might not have intended to disobey the
court’s ruling, but by pursuing the same argument the court had
just rejected, she did so.
It does not follow, however, that these misstatements
require reversing Garces’s convictions. Prosecutorial misconduct
requires reversal “under the federal Constitution when it ‘ “so
infect[s] the trial with unfairness as to make the resulting
conviction a denial of due process.” ’ [Citations.]” (People v.
Cash, supra, 28 Cal.4th at p. 733.) Misconduct under state law
does not require reversal “unless it is reasonably possible that the
jury would have reached a result more favorable to the defendant
had the misconduct not occurred.” (People v. Gonzales and Soliz
(2011) 52 Cal.4th 254, 319.)

4 We disagree with Garces that these statements also
shifted the burden to the defense to prove why Lara was
unavailable to testify. The reason for Lara’s absence was not an
element of the charges against Garces, and neither party bore the
burden of proving why he was missing.

10
 The prosecutor’s conduct in this case does not meet either
of these thresholds for reversal. The question of Lara’s absence
was not of central importance to the case. Garces was not
accused of dissuading Lara from testifying, and even in the
absence of Lara, the jury heard full accounts of the day’s events
from Banks and from Garces himself, and saw surveillance video
footage of part of the attack. The court sustained objections to
the comments from the prosecutor and told the jury to disregard
the prosecutor’s statement. An admonition to the jury to
disregard a prosecutor’s statement is ordinarily “sufficient to cure
any harm.” (People v. Tate (2010) 49 Cal.4th 635, 689.)
The insinuation that Lara was too intimidated to testify
may have prejudiced Garces, but even if the prosecutor had not
made those statements, the jury still would have heard testimony
that Garces was a member of a gang that regularly assaulted and
killed its enemies. In comparison with this testimony, the effect
of the prosecutor’s statements on the jury was minimal.
3. Vouching for Banks
Garces contends that the prosecutor committed misconduct
by vouching for the veracity of Banks’s testimony. He points to a
moment during closing argument when the prosecutor said, “If
you look at what Curtis Banks said—and mind you, nothing he
said, nothing, not a bit of his testimony was attacked. There is
no evidence to show that he was lying.”
We disagree that this argument was improper. The
prosecutor did not vouch for Banks “by referring to evidence
outside the record” or by “plac[ing] the prestige of her office
behind a witness by offering the impression that she has taken
steps to assure a witness’s truthfulness at trial.” (People v. Frye
(1998) 18 Cal.4th 894, 971, disapproved on another ground in

11
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Instead, the
prosecutor argued that the jury should infer that Banks had
testified honestly “based on the ‘facts of [the] record and the
inferences reasonably drawn therefrom, rather than any
purported personal knowledge or belief.’ ” (Ibid.) The credibility
of Banks was a key issue at trial, as the jury had to resolve the
competing testimony from Banks and Garces about what
happened between the two of them. The prosecutor’s comments
were proper argument on this important issue. (See ibid.)
4. Arguing that Garces’s Membership in a Gang Was
Proof of Intent to Kill
Garces contends that the prosecutor misled the jury by
suggesting that his mere membership in a gang was proof that he
acted with an intent to kill when he attacked Banks. During
rebuttal argument, the prosecutor argued that Garces’s actions
were willful, deliberate, and premeditated. She told the jury,
“when the defendant joined the gang, a part of that membership
is a willingness to kill.” The court sustained its own objection to
this argument, but Garces’s attorney did not ask the court to
admonish the jury to disregard the statement. The prosecutor
then continued, “when you join gangs, when you want to rise up
in gangs, you have to be willing to put in work. You heard it from
the [prosecution’s gang expert]. And part of that work is assault,
it’s murder.” This time, neither the court nor Garces’s attorney
objected to the prosecutor’s statement.
We need not decide whether these statements were
improper because Garces forfeited them by failing to “make a
timely objection and request an admonition.” (People v. Alfaro,
supra, 41 Cal.4th at p. 1328, italics added.) Even if we ignore the
forfeiture, Garces’s claim fails because Garces has failed to show

12
that the prosecutor’s first statement prejudiced him, and the
follow-up statements were within the bounds of fair argument.
The prosecutor’s first statement was arguably improper, in
that it implicitly equated gang membership with a willingness to
kill. This may have suggested to the jurors that they could take
Garces’s admitted membership in a gang as proof of one of the
elements of attempted murder. “ ‘ “[I]t is improper for the
prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its prima
facie obligation to overcome reasonable doubt on all elements” ’ ”
of an offense. (People v. Bell (2019) 7 Cal.5th 70, 111.)
This argument could not have prejudiced Garces under
either the federal or state standard, however, because the court
intervened immediately and ordered the jury to disregard the
statement. The prosecutor then clarified her point in a way that
corrected the error.
In her follow-up statements, the prosecutor did not suggest
that gang membership was tantamount to proof of intent to kill,
but rather that assault and murder were central activities of
Garces’s gang, and that members were expected to be willing to
commit these offenses for the benefit of the gang. These
statements were essentially a summary of the testimony from the
prosecution’s gang expert, and proper comment on evidence that
had been admitted during the trial. If any jurors were still
confused, the jury instructions stated the relevant law accurately.
C. The Case Must Be Remanded for Resentencing under
Senate Bill No. 81
In 2021, the Legislature enacted Senate Bill No. 81 (2021-
2022 Reg. Sess.) (Stats. 2021, ch. 721), which amended section
1385 to provide new guidelines for trial courts in imposing

13
sentence enhancements.5 Under the law as revised, the court
must consider several potential mitigating factors before
imposing a sentence enhancement. In particular, the law
provides that if “application of an enhancement could result in a
sentence of over 20 years[,] . . . the enhancement shall be
dismissed.” (§ 1385, subd. (c)(2)(C). Because this “change[ ] in
the law . . . allow[s] for a possibility of reduced punishment”
(People v. Sek (2022) 74 Cal.App.5th 657, 666), it applies
retroactively to defendants like Garces whose convictions were
not yet final when the law became effective. We agree with both
Garces and the Attorney General that we must remand the case
to the trial court for resentencing.
Garces and the Attorney General also argue that the court
must correct an error in the minute order from the sentencing
hearing. Under section 1202.4, subdivision (f)(3)(G), victim
restitution includes “[i]nterest, at the rate of 10 percent per
annum, that accrues as of the date of sentencing or loss.” The
trial court ordered Garces to pay $331.24 in victim restitution but
did not mention interest. Nevertheless, the minute order from
the sentencing hearing added 10 percent interest per year to the
restitution order. Because “[t]he oral imposition of sentence
constitutes the judgment in an action, and the minutes cannot
add anything substantive to the oral pronouncement” (People v.
El (2021) 65 Cal.App.5th 963, 967), both Garces and the Attorney

5The Legislature subsequently enacted Assembly Bill
No. 200 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 58, § 15), which
amended section 1385 to correct a clerical error introduced by
Senate Bill No. 81.

14
General agree that we must remand the case to the trial court to
correct the minute order.
In light of the order for a new sentencing hearing, the issue
regarding interest is moot. Because the trial court must hold a
new sentencing hearing to give Garces the benefit of the new
amendments to section 1385, his previous sentence and the
associated minute order will be vacated. We note, however, for
the benefit of the parties at the new sentencing hearing, that a
restitution “order must fully reimburse the victim for every
economic loss caused by the defendant’s criminal conduct,
including 10 percent interest as of the date of the loss.” (People v.
Wickham (2013) 222 Cal.App.4th 232, 238.) A sentence that fails
to impose restitution as required is unauthorized and “must be
vacated and the proper sentence imposed whenever the matter is
brought to the attention of the trial or reviewing court.” (People
v. Turrin (2009) 176 Cal.App.4th 1200, 1205.)

15
 DISPOSITION
The judgment of conviction is affirmed. Garces’s sentence
is vacated, and the case is remanded to the trial court for a new
sentencing hearing.
NOT TO BE PUBLISHED

WEINGART, J.*

We concur:

CHANEY, J.

BENDIX, Acting P. J.

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

16