Filed 7/5/23 P. v. Garnsey CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A161875
v.
MICHAEL GARNSEY (Solano County
Defendant and Appellant. Super. Ct. No. FCR351850)
Michael Garnsey was convicted of mayhem and other
offenses after he repeatedly slashed his former girlfriend with a
machete. He contends the court violated his constitutional trial
rights by requiring witnesses to wear protective face masks while
testifying. We conclude Garnsey forfeited this claim by failing to
raise it at trial. We also reject his claim that the court violated
his rights to due process, effective assistance of counsel, and an
impartial jury by requiring prospective jurors to wear face masks
during voir dire.
We also find meritless Garnsey’s further contentions that
his convictions for attempting to dissuade a witness must be
reversed due to insufficient evidence and instructional error.
However, we remand the case for resentencing in light of a recent
amendment to Penal Code section 654.1
1 Undesignated statutory citations are to the Penal Code.
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BACKGROUND
In May 2020, Garnsey attacked his girlfriend, Stephanie R.,
with two machetes, inflicting permanent and disfiguring injuries.
Garnsey was charged with inflicting an injury resulting in
a traumatic condition on Stephanie (count 1), assault with a
deadly weapon (counts 2, 4), assault by means likely to produce
great bodily injury (count 3), and mayhem (count 5). The
complaint also alleged enhancements for use of a deadly weapon
(counts 1, 3, 5) and infliction of great bodily injury (counts 1, 2, 3,
5). The following month, the district attorney added three
additional counts charging Garnsey with knowingly and
maliciously attempting to dissuade Stephanie from attending and
testifying at trial (counts 6-8).
The jury acquitted Garnsey of one count of assault with a
deadly weapon, convicted him on all other counts, and found the
enhancements true. The court sentenced him to 15 years in
prison and imposed and stayed a $10,000 restitution fine.
DISCUSSION
A.
Garnsey was tried in October 2020, in the midst of the
COVID-19 pandemic and before vaccines were widely available.
The trial court required everyone in the courtroom to wear a
protective face mask at all times. Garnsey contends the masking
order violated his due process and confrontation rights and that,
at a minimum, the court was constitutionally required to inquire
into and make findings on alternative safety measures such as
clear masks or face shields or plexiglass barriers before requiring
testifying witnesses to wear opaque masks.
The arguments fail because Garnsey never objected to the
mask protocol or requested alternatives. The general masking
order then in effect in the Solano County Superior Court
2
explicitly gave the trial judge the discretion to “require an
individual to remove a mask as needed to facilitate fair and
effective courtroom proceedings, as long as six feet of social
distance can be maintained.” (Presiding Judge Donna L.
Stashyn, Mandatory Wearing of Face Masks in Enclosed Public
Spaces of the Solano County Courthouses, Misc. No. M-15-2020, p.
3 (eff. June 18, 2020).)2 Nothing in the record indicates the judge
presiding over Garnsey’s trial would have refused to consider
exercising that discretion if asked. If Garnsey thought that the
use of masks violated his rights and that there were better
alternatives, he should have said so. The arguments are
forfeited. (People v. Arredondo (2019) 8 Cal.5th 694, 710.)
We reject Garnsey’s related claim of ineffective assistance
of counsel because the evidence of his guilt was overwhelming. In
light of that evidence, there is no reasonable probability of a
different outcome had his counsel asked the court to consider
alternatives to opaque masks. (See Strickland v. Washington
(1984) 466 U.S. 668, 697; People v. Price (1991) 1 Cal.4th 324,
440, superseded by statute on another ground as stated in People
v. Hinks (1997) 58 Cal.App.4th 1157, 1161.)
B.
Garnsey next contends the court violated his constitutional
rights to due process, effective assistance of counsel, and an
impartial jury by requiring prospective jurors to wear masks
during voir dire. Again, as with his confrontation claim, Garnsey
forfeited the argument by failing to object at trial. In any event,
it is meritless.
We may not disturb the trial court’s exercise of its broad
discretion over voir dire unless its ruling rendered the resulting
trial fundamentally unfair. (People v. Carter (2005) 36 Cal.4th
2We take judicial notice of this order pursuant to Evidence
Code, section 452, subdivisions (d) and (e).
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1215, 1250.) The ruling here had no such effect. While no
published California appellate opinion has yet addressed whether
requiring masking during voir dire infringes on the defendant’s
constitutional rights, multiple federal courts that have considered
the question have reached the same conclusion: the constitution
does not require that a defendant can see a potential juror’s
unobstructed nose and mouth during voir dire. (See, e.g., United
States v. Ayala-Vieyra (6th Cir., Jan. 21, 2022, 21-1177) 2022
U.S.App.LEXIS 1783 [*13] & fn. 1 [citing numerous cases];
United States v. Crittenden (M.D. Georgia, Aug. 21, 2020, 4:20-
CR-7 (CDL) 2020 U.S.Dist.LEXIS 151950 [*22]-[*25].) Garnsey
cites no contrary authority.
C.
Garnsey was charged with three counts of attempting to
dissuade a witness in violation of section 136.1, subdivision (a)(2)
based on unspecified communications he made from jail on the
7th, 9th, and 12th of June 2020. He contends his convictions for
the June 9 (count 6) and June 7 (count 7) offenses must be
reversed due to insufficient evidence, and that instructional error
requires reversal on all three counts. These contentions, too, are
meritless.
1.
We turn first to Garnsey’s contention that there was
insufficient evidence to support his convictions on counts 6 and 7.
Under section 136.1, subdivision (a)(2), it is a crime to
“[k]nowingly and maliciously attempt[] to prevent or dissuade
any witness or victim from attending or giving testimony at any
trial, proceeding, or inquiry authorized by law.” To convict, the
prosecution must prove the defendant (1) intended to prevent or
dissuade a witness from testifying, and (2) performed an act
beyond mere preparation that shows he was putting his plan into
action. (People v. Foster (2007) 155 Cal.App.4th 331, 335
4
(Foster).) When the intent is clearly shown, any slight act in
furtherance of it suffices to complete the crime. (Id. at p. 336.)
The circumstances of a communication as well as the
statement itself are relevant to whether it constitutes an attempt
to discourage or prevent a witness from testifying. (People v.
Wahidi (2013) 222 Cal.App.4th 802, 806 (Wahidi).) Even an
ambiguous statement is sufficient if it reasonably may be
interpreted as intended to dissuade a witness. (Ibid.) We review
the evidence in the light most favorable to the judgment below,
presuming in support of the judgment the existence of every fact
the jury could reasonably have deduced from it, and reverse only
if there is no substantial evidence to support the judgment under
any possible hypothesis. (People v. Sanford (2017) 11
Cal.App.5th 84, 91.)
On three different days while in pretrial custody, Garnsey
wrote to and called friends or relatives asking them to tell
Stephanie to stay away from the trial. On June 7, 2020, he called
his friend Will. Will told Garnsey he had encouraged Stephanie
to come to court to say positive things about him. Garnsey
responded, “Yeah . . . it’s not, if you see her tell her not to go. Tell
her not to go.” He explained, “look, if she, if she doesn’t come to
court, bro, uh, they’re gonna drop the case.”
On June 9, Garnsey called his stepfather, Ron, and said,
“Hey, um, just have Will or something show up to court or
something like that, you know, in case, um, you know, people
show up in the lobby, he can kinda scare ’em away. (laughter).”
Garnsey then gave Ron the date and time for his court
appearance. At trial, Garnsey testified he did this because other
inmates told him “it was better if people didn’t show up.” He
added that “it was more joking, even though it was kind of
serious.”
Also on June 9, Garnsey wrote and addressed two letters
that were intercepted and redacted by correctional officers. He
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placed the letters in a single envelope addressed to both
recipients, along with other notes dated between June 10 and
June 13.
One letter was to Leslie, the mother of two of Garnsey’s
children. He wrote, “My lawyer said I’m looking at [15 years] if
she shows up so now I have to play the call every body game and
make sure the bitch don’t come other wise [sic] its bye doughy.”3
He added, “I really hope that bitch don’t come to court tho.”
Garnsey admitted at trial that he was referring to Stephanie.
The second June 9 letter was to Garnsey’s sister, Liz. He
wrote, “My lawyer said I’m going to lose @ my prelim and shit.
So I’m going to [trial]. Just make sure she doesn’t show up or I’m
looking @ [15 years] which I’m not ready for.” Garnsey provided
Stephanie’s phone number and asked Liz to call her and make
sure she would not come to court. On cross-examination, he
acknowledged that this was to make sure Stephanie stayed away.
He admitted he wrote these letters because other inmates told
him he had “a chance of getting out” if “people don’t come to
court.”
On June 12, Garnsey called Ron again, gave him
Stephanie’s phone number, and asked him to call her to “make
sure that she doesn’t come to court.” He said, “Every time I call
her it just goes straight to the answering machine, so I don’t
know if she’s just got me blocked or if she’s got her phone turned
off or what. . . But I just wanna, I just wanna double make sure
you know what I mean ‘cause, um, 15 years is a long time.”
This evidence amply supports the convictions on counts 6
and 7. As we understand his argument, Garnsey does not
seriously challenge the sufficiency of the evidence that he
harbored the specific intent to prevent or dissuade a witness or
victim from testifying. (See Foster, supra, 155 Cal.App.4th at p.
3 Garnsey went by the nickname “Dough Boy” or “Doughy.”
6
335.) Rather, he contends the evidence falls short of proving that
he “ ‘perform[ed] an act . . . “beyond mere preparation. ” ’ ” (Ibid.)
The contention is specious. On both dates in question,
Garnsey wrote to or called friends or relatives and asked them to
tell Stephanie not to come to court. Just as in Foster, this went
beyond mere preparation; Garnsey “put his ‘plan into action’ ” by
taking concrete steps to convey the message he wanted its
recipients to deliver to Stephanie. (Foster, supra, 155
Cal.App.4th at p. 336.) Notwithstanding that these attempts
proved unsuccessful, Garnsey “did everything necessary” to
ensure his message was delivered. (See ibid.) No more is
required for conviction. (Ibid.)
Garnsey protests that his June 7 call fell short of attempted
witness dissuasion because he “expressed himself conditionally
when he asked Will to tell [Stephanie] not to come to court only if
Will happened to see her,” and neither gave Will her number nor
asked him to affirmatively seek her out. This misses the point.
Garnsey indisputably asked Will to tell Stephanie not to come to
court. Regardless of whether he also provided Stephanie’s phone
number or told Will to track her down, he conveyed the message
he wanted Will to give her. That was sufficient, particularly
given the overwhelming evidence of Garnsey’s plan, as he himself
described it, to “call everybody . . . and make sure the bitch don’t
come.” “ ‘ [[W]henever] the design of a person to commit a crime
is clearly shown, slight acts done in furtherance of that design
will constitute an attempt, and the courts should not destroy the
practical and common-sense administration of the law with
subtleties as to what constitutes preparation and what
constitutes an act done toward the commission of a crime.’ ”
(People v. Memro (1985) 38 Cal.3d 658, 698, superseded by
statute on another ground as stated in Riske v. Superior Court
(2016) 6 Cal.App.5th 647, 659-660; see also Wahidi, supra, 222
Cal.App.4th at p. 806.)
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Garnsey’s arguments about his June 9 calls to Ron and
letters to Leslie and Liz are no more persuasive. He contends
that asking Ron to have Will show up to court to “scare” unnamed
people away was insufficient because he did not specifically name
Stephanie. We disagree. In the context of Garnsey’s multiple
calls and letters, let alone his admission at trial that his June 9
letters referred to Stephanie, the jury could reasonably find his
aim was to prevent her from testifying. (See Wahidi, supra, 222
Cal.App.4th at p. 806 [finder of fact may consider the
surrounding circumstances in determining whether statement
constitutes an attempt to dissuade a witness from testifying].)
Garnsey claims he was merely joking, but the jury reasonably
disagreed.
Garnsey next argues his June 9 letters to Liz and Leslie are
insufficient to prove he committed an attempt offense on that day
without evidence that he provided them to correctional officers
for mailing that same day. In his view, writing the letters was
“an act of ‘mere preparation’ ” that did not amount to attempted
dissuasion until he took steps to put them in the mail. Even if
correct—a point we need not decide—the argument is
immaterial. Garnsey’s June 9 phone call to Ron, in the context of
the letters written (even if not mailed) the same day, amply
establishes the completed offense.
2.
Garnsey’s claim of instructional error is also unpersuasive.
Without objection, the court instructed the jury with
CALCRIM No. 2622 that the prosecutor was required to prove
“the defendant maliciously tried to prevent or tried to discourage
[Stephanie] from attending or giving testimony at trial
proceeding or inquiry authorized by law. [Stephanie] was . . . a
crime victim, and the defendant knew he was trying to prevent or
trying to discourage [Stephanie] from attending or giving
testimony at a trial and intended to do so.”
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Garnsey asserts this was insufficient. Relying on the bench
notes for the pattern instruction on attempt (CALCRIM No. 460),
he maintains the court was required sua sponte to instruct the
jury on the general principles of attempt crimes, including the
requirement that he took a direct but ineffective step toward
committing the crime beyond planning or preparation. (See
People v. Townsel (2016) 63 Cal.4th 25, 58 [trial court must
instruct on general principles of law relevant to the issues raised
by the evidence]; § 21a [“[a]n attempt to commit a crime consists
of two elements: a specific intent to commit the crime, and a
direct but ineffectual act done toward its commission”].)
The People maintain the court was not required to
elaborate on CALCRIM No. 2622 in this way without a request
because instructing the jury it had to find Garnsey “tried” to
prevent or discourage a witness from testifying obviated any risk
it would convict him without a showing that he had taken some
direct step to put his plan in motion. “ ‘[T]ried’ is a commonly
understood term, and the trial court thus had no sua sponte duty
to clarify what was meant by that word.” Further, the jury was
also instructed with CALCRIM Nos. 251 and 252 that the offense
requires proof of both wrongful intent and a prohibited act. From
this, they maintain, “the jury would have logically and
reasonably concluded it needed to find [Garnsey] performed some
act in furtherance of his specific intent.”
We need not decide whether the court was required to
instruct on the elements of attempt because, assuming arguendo
that it was, any error was harmless. People v. Cain (1995) 10
Cal.4th 1, 44, is analogous. There the trial court instructed the
jury on the elements of an attempted rape special circumstance,
but not on the elements of attempt. The Supreme Court found
the omission was harmless beyond a reasonable doubt: “[I]nsofar
as relevant here [the pattern instruction on the elements of
attempt] merely restates the common meaning of ‘attempt.’ To
9
attempt an act is to ‘try’ or ‘endeavor to do or perform’ the act.
[Citation.] Defendant could not ‘try’ to rape [the victim] without
intending to do so and doing an act toward the rape’s commission.
In finding defendant attempted or tried to rape [the victim], the
jury thus necessarily considered and found to be true” the
elements set forth in the pattern instruction on attempt.4 (Ibid.;
see also People v. Lynch (2010) 50 Cal.4th 693, 763 [following
People v. Cain where jury was instructed it had to find the
defendant committed murder during commission or attempted
commission of a robbery].) The Court’s reasoning applies with
equal force here.
In any event, the omission here could not conceivably have
affected the verdict in light of the overwhelming evidence that
Garnsey did more than mere planning or preparation; indeed, he
acknowledged at trial that he wrote and addressed the letters
and made the phone calls that provided the basis for the
attempted witness dissuasion counts. Having assessed and
soundly rejected his challenge to the evidence of those acts, we
have no difficulty concluding the jurors would have convicted
Garnsey if instructed with CALCRIM No. 460. If the omission
was error, it was harmless beyond a reasonable doubt. (See
Neder v. United States (1999) 527 U.S. 1, 15-16 [harmless beyond
a reasonable doubt standard for failure to instruct on an element
of offense].)
D.
Effective January 1, 2022, the Legislature amended section
654 by removing the requirement that a defendant be punished
under the provision providing for the longest term of
imprisonment and granting the trial court discretion to impose
4The omitted instruction at issue in People v. Cain, supra,
10 Cal.4th 1 was CALJIC No. 6.00 (Id. at p. 44), which effectively
mirrors the language of CALCRIM No. 460.
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punishment under any applicable provision. (Assem. Bill No. 518
(2021-2022 Reg. Sess.), Stats. 2021, ch. 441, § 1.) Because
Garnsey's case is not final, the parties correctly agree that this
change in the law applies retroactively under In re Estrada
(1965) 63 Cal.2d 740 and requires remand for resentencing
pursuant to section 654 as amended. Garnsey concedes that,
because the full resentencing rule applies upon remand (see
People v. Buycks (2018) 5 Cal.5th 857, 893-894), his additional
contention that trial counsel rendered ineffective assistance by
failing to object to a $10,000 restitution fine is now moot.
DISPOSITION
The case is remanded to the trial court for resentencing. In
all other respects the judgment is affirmed.
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______________________
BURNS, J.
We concur:
____________________________
SIMONS, ACTING P.J.
____________________________
LANGHORNE, J.*
A161875
* Judge of the Napa County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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