People v. Garcia CA2/6

Filed 7/30/14 P. v. Garcia CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B250216 (Super. Ct. No. VA128816) Plaintiff and Respondent, (Los Angeles County)

v.

LARRY STEVE GARCIA,

Defendant and Appellant.

A jury found Larry Steve Garcia guilty of attempted robbery. (Pen. Code, §§ 211, 664.)1 The jury also found a gang allegation to be true (§ 186.22, subd. (b)(1)(B)) and that the victim was a paraplegic (§ 667.9, subd. (a)). Garcia admitted that he suffered a prior prison term. (§ 667.5, subd (b).) He received an aggregate sentence of nine years in prison. On appeal, Garcia contends the gang allegation is not supported by substantial evidence, attempted robbery is not a predicate offense to a section 667.9 enhancement, and the trial court erred in denying his Faretta motions. We strike the section 667.9 sentence enhancement. In all other respects we affirm.

1 All statutory references are to the Penal Code.

FACTS On October 29, 2012, at approximately 5:40 p.m., Diego Ramirez was crossing the street in his wheelchair. A white Cadillac abruptly stopped in the middle of the road, blocking Ramirez's path. Garcia got out of the car and asked Ramirez what he had on him. Ramirez replied, "Nothing." Garcia attempted to grab Ramirez's cellphone and Bluetooth earpiece from him. A struggle ensued. Ramirez pushed Garcia away with his hands. Garcia hit Ramirez in the head with a blunt object. Ramirez began to bleed from the wound. Garcia got back in his car and left. It took four staples to close Ramirez's head wound. Ramirez had known Garcia for over five years and identified him as his assailant. He told the police his assailant was Larry Garcia, known as "Sneaks," from the Jardin 13 gang. Gang Evidence Los Angeles County Deputy Sheriff Steven Lopez testified as a gang expert. Lopez testified that Garcia is an admitted member of the Jardin 13 gang. The primary activities of the gang include assault, assault with a deadly weapon, possession of narcotics for personal use and sale, vandalism, murder, burglaries and other thefts. Garcia committed the crimes against Ramirez in Jardin 13 territory. Lopez testified the attempted robbery was committed for the benefit of, at the direction of, and in association with, a criminal street gang. When asked for the basis of his opinion, Lopez testified: "The act was a violent act, it was committed in a public area; it was a residential street, in plain view; daylight hours. The victim knew the defendant from prior contacts based on his own statements to me; recognized him, named him, knew his moniker, knew what gang he was from. The crime was committed in Jardin 13 territory, which is a safe zone for the defendant. He knows that he has the protection, the backing of the gang. He's asserting control of his turf by committing the crime in his territory.