California Court of Appeal Jan 29, 2021 No. E072792Unpublished
Filed 1/29/21 P. v. Garcia CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072792
v. (Super.Ct.No. INF1800497)
ROBERT ANTHONY GARCIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Davis, Judge.
Affirmed in part, sentence vacated and remanded with directions.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A Sevidal and Eric A.
Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Robert Anthony Garcia of one count of making a criminal threat
(Pen. Code, § 422; count 1; unlabeled statutory citations are to this code), three counts of
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being a felon in possession of a firearm (§ 29800; counts 3-5), and one count each of
exposing an assault weapon for sale (§ 30600, subd. (a); count 6), possession of an
assault weapon (§ 30605, subd. (a); count 7), being a felon in possession of ammunition
(§ 30305, subd. (a)(1)), exposing a high-capacity magazine for sale (§ 32310, subd. (a)),
possession of metal knuckles (§ 21810), and misdemeanor resisting a peace officer
(§ 148; count 2). In a bifurcated proceeding, the trial court found true the allegation that
Garcia served one prior prison term. Garcia was sentenced to 12 years four months in
state prison.
On appeal, Garcia argues that (1) the criminal threats conviction is not supported
by substantial evidence, (2) the speech forming the basis of his criminal threats
conviction is constitutionally protected, (3) one of his sentences for possessing an assault
weapon (counts 5 & 7) should be stayed under section 654, (4) the trial court erred by
failing to state reasons for imposing consecutive sentences, (5) the one-year prior prison
term enhancement should be stricken, and (6) the trial court erred by failing to consider
his ability to pay various fines, fees, and assessments. We agree about the prison prior
and remand for resentencing. We therefore do not address Garcia’s other claimed errors
about sentencing because the trial court can address them at resentencing. We otherwise
affirm.
BACKGROUND
On February 21, 2017, Garcia was convicted of a felony. He thereafter was placed
on postrelease community supervision. One of the terms of his community supervision
prohibited him from possessing firearms.
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In June 2017, California Highway Patrol (CHP) officer John G. was assigned to
the Coachella Valley Violent Task Force (task force), which was a gang and violent
crime task force composed of members of various law enforcement agencies.1 Members
of the task force were responsible for monitoring and conducting searches of people on
community supervision, parole, and probation.
On June 20, 2017, officer John and other members of the task force conducted a
search of Garcia’s residence, looking for firearms. One of the task force members had
been monitoring Garcia’s Facebook page and noticed that Garcia “had been posting some
stuff involving guns.” In conducting the search, officers located three firearms—a .22-
caliber revolver, a .22-caliber rifle, and a .25-caliber semiautomatic handgun. The
firearms were found in Garcia’s brother’s bedroom, which was not locked. Two of the
firearms were in a lockbox. Officers seized all three firearms because Garcia had access
to them. Garcia was not, however, found to have violated the terms of his community
supervision.
While officer John was at Garcia’s residence, he wore a vest with “CHP” printed
on the back. Garcia asked officer John whether he was a CHP officer, which officer John
confirmed. Garcia remarked that he was interested in becoming a CHP officer. Officer
John explained that convicted felons are ineligible.
Sometime after the search of his residence, Garcia posted on Facebook: “‘The
cops broke into my brother’s safe and stole three guns under his name. Hashtag, dirty
1 We refer to the victim by his first name, with or without last initials, to preserve his anonymity. (Cal. Rules of Court, rule 8.90(b).) No disrespect is intended.
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cops. What can you do?’” In the following Facebook post, Garcia stated: “‘On my life
Ima [sic] try and take a cop’s life. If I die, fuck it, I did it for freedom and for you guys to
own firearms and to protect your’s [sic] guys [sic] family. Cops are not here to help
hashtag.’”
When he posted those statements, Garcia was in the process of attempting to
become a CHP cadet. CHP applicants are required to befriend the CHP on Facebook.
The CHP did not conduct background checks on applicants until after applicants
completed a written test and a physical agility test. Garcia was scheduled to perform the
physical agility test on June 24, 2017. On June 23, 2017, a CHP recruiter was reviewing
Garcia’s Facebook page and noticed Garcia’s Facebook posts about law enforcement and
also found photographs of Garcia with various weapons, including brass knuckles with
spikes, a sawed-off shotgun, an “AR-15,” and a handgun. The recruiter reported what he
found to the CHP’s investigative services unit, which in turn contacted and involved
members of the task force, including officer John, who had conducted the prior search of
Garcia’s residence.
The same night that the recruiter noticed the Facebook posts a combined team of
12 law enforcement officials went to Garcia’s residence. The officers wanted to
apprehend Garcia immediately because they were concerned that “something could go
really bad” if Garcia attended his scheduled physical agility test the next day. Officer
John considered the Facebook post about “tak[ing] a cop’s life” to be a threat to all law
enforcement personnel. He also believed the threat particularly targeted those law
enforcement officers in the area, like himself, who had conducted the search of Garcia’s
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residence. That post caused officer John to be “very concerned” and afraid. Officer John
confirmed that he felt “more uniquely targeted” by the post because of his interaction
with Garcia during the prior search, which contributed to his being fearful. Officer John
did not take any steps to protect himself or his family as a result of Garcia’s statement.
Officer John explained that he did not take any extra steps to protect his family in part
because his “family is always protected because they know how to use firearms” and also
because law enforcement was able to detain Garcia and take him into custody on the
same night that officer John learned of the threat.
That night, Garcia was detained and arrested at his residence. Garcia did not have
a weapon on him, and no weapons were discovered in his residence. Officers were not
able to search underneath the trailer because of a barking dog who was there. Officers
seized Garcia’s computer. The contents of the computer were downloaded, and officers
searched Garcia’s Facebook account.
Officers discovered numerous Facebook messages, posts, and comments in which
Garcia advertised various firearms and ammunition for sale, including an AR-15.
Garcia’s Facebook account also included numerous photographs of Garcia inside his
residence holding the same AR-15.
Garcia referenced other assault weapons in comments he made on Facebook. In
one statement, Garcia said, “‘All right. Let me get the money, like, in two weeks because
I got, like, two . . . AR-15s that I have built.’” The officer testified that this comment was
relevant to all of the offenses about the AR-15 (counts 5, 6, & 7). In another message,
Garcia commented, “‘Yes, I’m going to sell it to one of my homies. Then I’m going to
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have five AR-15s for sale.’” He also commented on June 3, 2017, that, “I got like 2
AR15s that[] I have built.” In another message on May 31, 2017, accompanying a
photograph of Garcia with “the AR style platform,” Garcia commented, “‘I sold it, but I
have another one for $750.’”
DISCUSSION
A. Criminal Threat
Garcia was convicted of making a criminal threat based on the language contained
in the first sentence of this Facebook post: “‘On my life Ima [sic] try and take a cop’s
life. If I die, fuck it, I did it for freedom and for you guys to own firearms and to protect
your’s [sic] guys [sic] family. Cops are not here to help hashtag.’” (Italics added.) He
contends that there was not sufficient evidence to support numerous elements of his
criminal threats conviction. He also claims that his speech constituted protected political
speech. All of his contentions lack merit.
To convict a defendant of making criminal threats under section 422, the
prosecution must prove the following five elements: “‘(1) that the defendant “willfully
threaten[ed] to commit a crime which will result in death or great bodily injury to another
person,” (2) that the defendant made the threat “with the specific intent that the
statement . . . is to be taken as a threat, even if there is no intent of actually carrying it
out,” (3) that the threat—which may be “made verbally, in writing, or by means of an
electronic communication device”—was “on its face and under the circumstances in
which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to
convey to the person threatened, a gravity of purpose and an immediate prospect of
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execution of the threat,” (4) that the threat actually caused the person threatened “to be in
sustained fear for his or her own safety or for his or her immediate family’s safety,” and
(5) that the threatened person’s fear was “reasonabl[e]” under the circumstances.”’ (In re
George T. (2004) 33 Cal.4th 620, 630 (George T.), quoting People v. Toledo (2001) 26
restrict imposition of the one-year prior prison term enhancement to sexually violent
offenses. (§ 667.5, subd. (b).) Garcia’s underlying conviction, for which the trial court
imposed the one-year enhancement, was not a sexually violent offense. The parties agree
and this court has already held that Senate Bill No. 136 applies retroactively to those like
Garcia whose sentences were not final when Senate Bill No. 136 became effective.
(People v. Chubbuck (2019) 43 Cal.App.5th 1, 13-14.) We consequently order the trial
court to strike the one-year prior prison term enhancement.
For the misdemeanor resisting arrest conviction (§ 148), the trial court imposed a
one-year sentence to run concurrently. As the People correctly observe, that term could
instead have been imposed to run consecutively to the terms for the felony convictions.
(People v. Brown (2016) 247 Cal.App.4th 1430, 1433-1436.) Consequently, because the
trial court did not impose the maximum sentence possible, “we remand the matter for
resentencing to allow the court to exercise its sentencing discretion in light of the
changed circumstances.” (People v. Jennings (2019) 42 Cal.App.5th 664, 682; People v.
Buycks (2018) 5 Cal.5th 857, 893.) The sentence imposed on resentencing may not
exceed the original aggregate sentence. (People v. Jones (1994) 24 Cal.App.4th 1780,
1783-1784; People v. Hanson (2000) 23 Cal.4th 355, 357-358.)
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Our remand for resentencing eliminates the need for us to consider whether
Garcia’s remaining arguments concerning sentencing succeed in showing prejudicial
error. We agree with Garcia that the trial court erred by failing to state its reasons for
imposing consecutive sentences. (§ 1170, subd. (c) [“The court shall state the reasons for
its sentence choice on the record at the time of sentencing”]; Cal. Rules of Court, rule
4.406(b)(5); People v. Bejarano (1981) 114 Cal.App.3d 693, 704.) But we need not
determine whether the error was harmless. At resentencing, the trial court will have
another opportunity to state its reasons for imposing consecutive sentences. In addition,
Garcia will have the opportunity to present evidence and argument concerning his ability
to pay any fines, fees, and assessments.
DISPOSITION
The sentence is vacated, the trial court is directed to strike the one-year prior
prison enhancement under section 667.5, subdivision (b), and the matter is remanded for
resentencing. The trial court shall forward the amended abstract of judgment to the
California Department of Corrections and Rehabilitations. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
SLOUGH Acting P. J. FIELDS J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that there was sufficient evidence to support the defendant's criminal threats conviction and that the speech was not constitutionally protected, but remanded the case for resentencing due to an error regarding a prior prison term enhancement.
Issues
Whether there was sufficient evidence to support the criminal threats conviction under Penal Code section 422.
Whether the defendant's Facebook post constituted constitutionally protected political speech.
Whether the trial court erred in imposing a one-year prior prison term enhancement.
Disposition. Affirmed in part, sentence vacated and remanded.
Quotations verified verbatim against the opinion
“Garcia expressed an unequivocal plan to attempt to kill a law enforcement officer, even if it resulted in Garcia’s own death. Nothing about the statement “‘Ima [sic] try and take a cop’s life’” is ambiguous.”
“We agree about the prison prior and remand for resentencing.”