People v. Garcia CA6

Filed 3/19/14 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039043 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1225794)

v.

RICHARD JOSEPH GARCIA,

Defendant and Appellant.

Defendant Richard Joseph Garcia appeals a judgment of conviction entered following a jury trial. On appeal, defendant asserts the trial court erred in imposing concurrent sentences on an attempted criminal threats charge (Pen. Code, §§ 422, 664)1 and a battery charge (§§ 242-243, subd (e)) pursuant to section 654. STATEMENT OF THE FACTS AND CASE This case arises out of a domestic violence incident on February 12, 2012, involving defendant and his on-again-off-again girlfriend Olivia Collazo. Around 1:00 a.m., defendant went to the house where Ms. Collazo was staying and began knocking loudly on the door while yelling for Ms. Collazo to come out. Ms. Collazo did not want to see defendant, but went outside because defendant seemed angry and she was afraid he would do something to the house.

1 All further statutory references are to the Penal Code.

After Ms. Collazo went outside to talk to defendant, her cell phone rang. Defendant wanted to know who was calling and accused Ms. Collazo of cheating on him, even though they were not a couple at the time. Defendant called Ms. Collazo a “bitch” and demanded to see her phone. When she refused, defendant pulled her to the side of the house and pushed her to the ground. Defendant struggled to take Ms. Collazo’s phone, which was in her pocket at the time. Defendant put his hands around Ms. Collazo’s neck saying, “Why are you doing this?” and “Are you cheating on me?” Defendant let go of Ms. Collazo’s neck, and reached for his knife, pointing the blade at her saying, “I’m going to cut your face.” Ms. Collazo responded, “Do it.” Defendant continued to demand to see Ms. Collazo’s phone. Ms. Collazo then threw the phone over the fence. Defendant reached over the fence and grabbed the phone. Ms. Collazo then started struggling with defendant over the phone. During the struggle, Ms. Collazo had her hand on the phone and defendant pulled her finger backward, dislocating it. Defendant immediately gave the phone back to Ms. Collazo and said he would take her to the hospital. Ms. Collazo refused to go with him, and defendant eventually left. A few hours later, Ms. Collazo went to the hospital, and hospital personnel called the police. The lower joint on Ms. Collazo’s right middle finger was dislocated, and the ligaments were stretched. Surgery was required to repair the injury on March 2, 2012. Defendant was charged with criminal threats with the personal use of a deadly weapon, a knife (§§ 422, 12022, subd. (b)(1); count 1), battery in which defendant personally caused great bodily injury (§§ 242-243, subd. (d), 667, 1192.7; count 2), false imprisonment (§§ 236-237; count 3), and battery on a person with whom defendant had a dating relationship as a misdemeanor (§§ 242-243, subd. (e); count 4). The information also alleged defendant had a strike prior (§§ 667, subds. (b)-(i), 1170.12), and a prior serious felony conviction (§ 667, subd. (a)).