P. v. Garcia CA2/6

Filed 4/22/13 P. v. Garcia CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B238859 (Super. Ct. No. 1355715) Plaintiff and Respondent, (Santa Barbara County)

v.

FIDEL GARCIA,

Defendant and Appellant.

Fidel Garcia appeals a judgment following conviction of first degree robbery, dissuading a witness from reporting a crime (two counts), and making criminal threats (two counts), with a finding that he acted in concert with others in committing residential robbery. (Pen. Code, §§ 211, 136.1, subd. (b)(1), 422, 213, subd. (a)(1)(A).)1 We order the trial court to correct the abstract of judgment to reflect Garcia's conviction of first degree robbery, but otherwise affirm. FACTS AND PROCEDURAL HISTORY In the evening of April 11, 2011, Jose and Maria Bernal were at home in Santa Maria.2 As Maria was speaking with her daughter Isela on the telephone, she heard a loud knock on the front door. Jose opened the door and saw Garcia's mother. He asked her purpose, and she stated, "[N]o, they're coming. They're upset." 1 All statutory references are to the Penal Code unless stated otherwise. 2 We shall refer to the Bernals by their first names, not from disrespect, but to ease the reader's task.

Garcia, his mother, and Adam Byrd "pushed" Jose aside and entered the home. Garcia wore sunglasses and a bandana over his face; Byrd carried an aluminum baseball bat and assumed a "swinging" position with the bat. Maria was acquainted with Garcia and his mother because her daughter C. was friendly with Garcia. Garcia approached Jose, pointed a knife at Jose's neck, and demanded that C. pay a $200 debt. Jose responded that C. was confined at juvenile hall. When Maria stated that she was calling for police emergency assistance, Garcia's mother took Maria's cellular telephone and bent it backwards. Garcia then demanded to inspect C.'s bedroom. Jose accompanied him to C.'s bedroom where Garcia looked in the closet and stabbed the bedding with his knife because he believed that C. was hiding. When Garcia and Jose returned to the living room, Garcia pointed the knife near Jose's eye and stated: "If you don't pay me what your daughter owes, or if you speak about this to the police, you're dead, you and your family." Jose and Maria were frightened by Garcia's threats, and Maria was sobbing. Jose and Byrd walked into Jose's bedroom where Jose obtained $200 in currency and gave it to Byrd. Garcia warned the Bernals that if they informed the police, he "was going to kill [Jose]" and later "kill [C.]" in their presence. Garcia also warned that he was associated with the "Black Hand." In response to Isela's call requesting a check upon her parents' welfare, a Santa Maria police officer went to their residence and found the Bernals upset and "shaken up." About a block away, Police Officer Cassandra Stowasser saw Byrd running with a baseball bat. She detained and arrested him. The jury convicted Garcia of first degree robbery, two counts of dissuading a witness from reporting a crime, and two counts of making criminal threats, and found that he acted in concert with others in committing the residential robbery. (§§ 211, 136.1, subd. (b)(1), 422, 213, subd. (a)(1)(A).) The trial court sentenced Garcia to a 10-year prison term pursuant to section 1170.15, consisting of six years for first degree robbery and two years for each count of dissuading a witness. The court stayed sentence on the two counts of making criminal threats pursuant to section 654, imposed a $3,600