People v. Garcia CA2/8

Filed 4/27/16 P. v. Garcia CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B264294

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA131927) v.

FELIPE GARCIA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Schultz, Judge. Affirmed.

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Steven E. Mercer, Marc A. Kohm and Abtin Amir, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant Felipe Garcia shot his ex-girlfriend’s romantic partner three times at close range and then shot at police officers attempting to arrest him. He used his 16- month-old son as a shield to stop officers from shooting at him. On appeal, he challenges the sufficiency of the evidence of one count of premeditated attempted murder and argues that there was instructional error. We find no error and affirm the judgment of conviction. FACTS Defendant once lived with and was romantically involved with Nancy Magana, and they had one child together. At the beginning of January 2014, Magana began dating Miguel Ibarra. At the end of January 2014, defendant wanted to rekindle his romance with Magana. Defendant told Magana “if I [(Magana)] wasn’t going to be with him, I [(Magana)] wasn’t going to be with somebody else.” On January 25, 2014, defendant saw Magana, who was driving Ibarra’s truck. Defendant took Magana’s keys. Although he returned the keys, he hit the truck with his bumper as Magana drove away. On January 26, 2014, defendant wrote Magana a series of text messages. He told her that he wanted to get back together with her. Magana responded that she would think about it. Defendant also cautioned her that “if you’re not mine you’re not going to be anyone else’s.” Referring to Ibarra, defendant further warned Magana: “I’m going to break this guy.” Also on January 26, 2014, Ibarra waited in his truck outside Magana’s home as she prepared to go dancing with him. Defendant went to Magana’s home, walked up to Ibarra’s truck, asked Ibarra to lower the window, and then shot at Ibarra three times. One bullet hit Ibarra’s jaw and another hit his shoulder. The third did not hit Ibarra. Ibarra testified that after defendant signaled him to lower the window, Ibarra called Magana, referred to defendant as an “asshole,” and saw Magana come outside near his truck. Ibarra testified that he did not argue with defendant. As a result of the