People v. Garcia CA5

Filed 12/10/15 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F069324 Plaintiff and Respondent, (Super. Ct. No. F13900489) v.

JOHNNY ANGEL GARCIA, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. W. Kent Hamlin, Judge.

Peggy A. Headley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jennevee H. de Guzman, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

*Before Levy, Acting P.J., Poochigian, J. and Peña, J.

Johnny Angel Garcia, Jr., was convicted of possession of a controlled substance while armed with a firearm, and possession of a firearm by a felon. He argues the trial court erred when it denied his Penal Code section 995 motion to dismiss the controlled substance count. Garcia’s motion was made after the magistrate concluded at the preliminary hearing there was insufficient evidence to hold him on this count, but the prosecutor filed an information that contained the charge. While we find the trial court erred in denying the motion, we affirm the judgment because Garcia cannot establish the error caused him any prejudice. FACTUAL AND PROCEDURAL SUMMARY The first amended information charged Garcia with possession of a controlled substance while armed with a firearm (Health & Saf. Code, § 11370.1, subd. (a)), and possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)). In addition, Garcia was alleged to have suffered three prior convictions constituting strikes within the meaning of Penal Code section 667, subdivisions (b)-(i), and had three prior convictions resulting in prison sentences within the meaning of section 667.5, subdivision (b). The trial testimony is not relevant to the issue on appeal, so we will provide only a brief summary. Fresno police officer Robert Fry responded to a report of shots being fired in the neighborhood in question. As he was driving in the neighborhood, he noticed a man, later identified as Garcia, standing in front of a house talking on a cell phone, but did not think it was significant. When he reached an intersection, he turned his vehicle around. When he saw Garcia still standing in front of the house, Fry asked him if he had heard any gunshots. Garcia quickly turned away, walked to the front door of the house and knocked. As Garcia walked to the front door, he dropped an object into a bucket near the door. A man answered the door and a short conversation occurred. Garcia then turned back to Fry and said no one heard any gunshots. The man in the house, Va Lor, made a motion to Fry suggesting Garcia did not belong at the residence, so Fry yelled at Garcia