People v. Garcia CA3

Filed 12/27/23 P. v. Garcia CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C097092

v. (Super. Ct. No. 21FE017421)

ELADIO GONZALEZ GARCIA,

Defendant and Appellant.

A jury found defendant Eladio Gonzalez Garcia guilty on two counts each of making a criminal threat, assault with a deadly weapon, and assault by means of force likely to produce great bodily injury after he threatened his sister and nephew with a meat cleaver. The trial court sentenced defendant to an aggregate 13 years four months in prison. Defendant now contends (1) his trial counsel was ineffective in failing to object to testimony about his prior uncharged misconduct, and (2) under People v. Aguayo (2022) 13 Cal.5th 974 (Aguayo), he should not have been convicted of both assault with a deadly weapon and assault by means of force likely to produce great bodily injury. Agreeing with defendant’s second contention, we will remand the matter to the trial court with direction to vacate, as to each victim, either the conviction for assault with a deadly weapon or assault with force likely to produce great bodily injury. We will otherwise affirm the judgment.

1

BACKGROUND Defendant brandished a meat cleaver at his sister I.G. and threatened her while he was intoxicated, saying, “Come at me bitch, I’m going to kill you.” His sister’s son V.P., defendant’s nephew, arrived and defendant approached him with the cleaver, saying he would beat and kill him. Defendant swung the cleaver but the nephew dodged it. After a call to 911, law enforcement detained defendant. As to the sister, the prosecution charged defendant with making a criminal threat (Pen. Code, § 422, subd. (a)1 -- count one), assault with a deadly weapon (§ 245, subd. (a)(1) -- count three), and assault with force likely to produce great bodily injury (§ 245, subd. (a)(4) -- count four). The prosecution asserted similar charges based on defendant’s conduct toward the nephew. (§§ 422, subd. (a) [count two], 245, subd. (a)(1) [count five], 245, subd. (a)(4) [count six].) The prosecution alleged that defendant used a deadly weapon in making the criminal threats, and further alleged that a prior 2005 criminal threats conviction was a prior strike (§ 422). Before trial, the prosecution sought in limine to admit evidence of the prior strike conviction and prior instances of violence between defendant and the victims. The prosecutor argued the new criminal threats charges required her to show the victims’ state of mind, and their history with defendant would do that. The same applied to the prior criminal threat conviction, which involved defendant’s girlfriend. The trial court allowed the evidence, saying it was relevant to show defendant’s motive and intent. The sister testified there had been other times when defendant’s conduct caused her to call law enforcement. In one instance, a nearby trailer was on fire and the sister believed defendant was the cause. On another occasion, defendant got into a fight with the nephew over a debit card and said the sister and nephew “were going to get it.”