Filed 12/3/20 P. v. Garcia CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD A. GARCIA,

Defendant and Appellant.

 B301847

 (Los Angeles County

 Super. Ct. No. BA477275)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Drew E. Edwards and David V. Herriford, 

Judges. Affirmed.

Greg Wolff, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Paul M. Roadarmel, Jr. and Michael Katz, 

Deputy Attorneys General, for Plaintiff and Respondent.
2

* * * * * *

Richard A. Garcia (defendant) was convicted of beating up 

his on-again, off-again girlfriend, and sentenced to six years in 

state prison. He argues that his conviction is barred by double 

jeopardy and is infected with evidentiary error. We conclude 

none of his claims entitle him to relief, and affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Defendant and Sandra S. (Sandra) met in 2012, and began 

an on-again, off-again dating relationship that lasted until July 

2019.

In the early morning hours of February 4, 2019, defendant 

and Sandra got into an argument in an exchange of text 

messages. Because Sandra wanted defendant to drive her to a 

court hearing, she went to his house around 8:00 a.m. or 8:30 

a.m. that morning. When defendant answered the front door, he 

started yelling at Sandra and, without provocation, punched her 

four times in the head and face with his closed fist. He then 

dragged her by the hair into the house, through the living room, 

and into the bathroom. Once there, he punched her three more 

times with his closed fist. The blows knocked her to the floor, 

and defendant held her to the floor. Defendant then walked out 

of the room.

Bloodied and stunned, Sandra wiped some of the blood from 

the injuries to her head and face with the sweater she was 

wearing before deciding to get into the shower to clean herself up 

a little. When she finished, she was unable to call 911 because 

defendant had taken her purse that contained her cell phone, and 

she was afraid to leave his house because defendant had 

previously threatened her it “would be . . . worse for [her]” “if 
3

[she] left.” Exhausted from the beating, she laid down on the bed 

in the house. It is unclear whether she passed out or fell asleep.

Sandra awoke six hours later (a little before 3:00 p.m.), 

startled. She ran into the front of the house, and saw defendant 

out in the front yard. When he left a few minutes later, Sandra 

ran out of the house, flagged down a passing car, and asked for a 

ride to her brother’s nearby house. Once there, she called 911 to 

report the beating and, a few minutes later, spoke with a 

responding police officer who was wearing a body camera. 

The beating busted Sandra’s lip, bruised her right shoulder 

and ear, and split her scalp in a way that necessitated two or 

three stitches. 

In a March 2019 back-and-forth exchange on an instant 

messaging app associated with YouTube, defendant called 

Sandra a “bitch,” a “snitch” and a “fuckn rat,” accused her of 

being “the starter of all fighting,” explained that “this is why 

[she] get fucked up for starting shit,” further suggested that the 

February 2019 beating was Sandra’s fault because “If a sign says 

beware of dog and u still stepp [sic] into the yard . . . then cry n 

[sic] act like you didn’t know youd [sic] get bit,” and repeatedly 

threatened her that he would “beat [her] ass” and “fuck [her] up” 

when he “get[s] out” of prison.

II. Procedural Background

The People charged defendant with (1) injuring a spouse, 

cohabitant or girlfriend (Pen. Code, § 273.5, subd. (a)), and (2) 

battery causing serious bodily injury (id., § 243, subd. (d)). As to 

the injuring a spouse count, the People also alleged that 

defendant personally inflicted great bodily injury (id., § 12022.7, 

subd. (e)). 
4

The matter proceeded to trial in July 2019. The trial court 

eventually declared a mistrial. 

The matter proceeded to a second trial in September 2019. 

The second jury convicted defendant of all counts and found true 

the great bodily injury allegation. 

The trial court sentenced defendant to six years in state 

prison. The court imposed a six-year sentence on the injuring a 

spouse, cohabitant or girlfriend count, comprised of a three-year 

base term plus three years for the great bodily injury 

enhancement. The court then imposed a three-year sentence on 

the battery count, but stayed the sentence pursuant to Penal 

Code section 654. 

Defendant filed this timely appeal. 

DISCUSSION

Defendant argues that his conviction must be overturned 

because the trial court erred (1) in declaring a mistrial after the 

first trial, such that the retrial violated double jeopardy, (2) in 

not honoring the first jury’s request for readback of testimony, (3) 

in admitting Sandra’s statements on the 911 call and to the police 

who responded to that call, (4) in admitting Sandra’s statements 

from the March 2019 exchange of instant messages, and (5) in 

admitting evidence that defendant possessed methamphetamine 

when he was arrested in April 2019.

I. Issues Relating to First Trial

A. Pertinent facts

On the first day of jury deliberations after defendant’s first 

trial concluded, the jury asked for a readback of the entirety of 

Sandra’s testimony. Because the request came late in the 

afternoon, the court told the jury it would do the readback the 

next morning. 
5

On the second day of deliberations, one of the jurors was 

too ill to come to court and the parties stipulated to replace her

with an alternate juror. The court then instructed the newly 

constituted jury that it must “begin [its] deliberations again from 

the beginning,” and “must disregard the earlier deliberations and 

decide this case as if [the] earlier deliberations have not taken 

place.” 

After less than two hours of deliberation, the jury sent a 

note. The note read:

“We are unable to come to a unanimous decision 

because we feel that there is insufficient evidence 

from both the defense and the People. Even with a 

review of all current exhibits, we all feel strongly 

about our individual opinions, and they will not 

change.”

In response to the note, the court called the jury to the 

courtroom and asked how many votes the jury had taken. The 

foreperson responded, “maybe four.” The court explained that 

because the newly constituted jury had been deliberating for 

“between an hour and a half, [or an hour and] 45 minutes,” it was 

“going to ask [the jury] to go back and talk some more.” The 

court reminded the jury that it could send a note if the jurors 

wanted readback. 

After less than 90 minutes of further deliberation, the jury 

sent a second note. The note read:

“We created a timeline and carefully reviewed each 

piece of evidence again. We cannot agree on a 

unanimous verdict. We feel that we will be unable to 

reach a verdict with more time as well. We all feel 

strongly that there is not enough evidence.”
6

In response to this note, the court again called the jury to 

the courtroom. The court again asked how many votes the jury 

had taken. The foreperson responded, “Like nine,” and added

that the jury’s split had “[s]tayed the same” in all nine votes. The 

court asked, “Without telling me how many people voted guilty 

and how many voted not guilty, what is the actual split?” The 

foreperson responded, “Six to six.” The court then asked whether 

“there is anything else the court can do to assist [the jury] in 

reaching a verdict, [such as] additional readback of testimony[ or]

any further instructions.” The foreperson responded, “We don’t 

see anything.” The court polled each of the jurors as to whether 

they believed each “cannot reach a verdict”; all 12 responded they 

could not. 

The court then declared a mistrial and dismissed the jury. 

Defendant moved for dismissal of the charges on the 

ground that “it was an even split as well as the jurors saying 

there was insufficient evidence.” The trial court denied the 

motion, explaining that “[h]alf the jurors indicated . . . their belief 

[defendant] was guilty of the charge” and that it was “well within 

the People’s province to retry this case.” 

B. Analysis

1. Double jeopardy

The federal and California constitutional guarantees of 

double jeopardy prevent the People from subjecting a person to a 

second trial for the same offense(s) unless, as is pertinent here, 

the first trial was terminated by “legal” or “manifest” “necessity.” 

(People v. Anderson (2009) 47 Cal.4th 92, 104 (Anderson); People 

v. Halvorsen (2007) 42 Cal.4th 379, 425; Curry v. Superior Court

of San Francisco (1970) 2 Cal.3d 707, 712; U.S. Const., 5th 

Amend.; Cal. Const., art. I, § 15.) There is a legal or manifest 
7

necessity for retrial when the jury in the first case is genuinely 

unable to reach a verdict. (Anderson, at p. 104.) A jury is 

genuinely deadlocked only if “it satisfactorily appears that there 

is no reasonable probability that the jury can agree” on a verdict. 

(Pen. Code, § 1140; People v. Bryant, Smith and Wheeler (2014) 

60 Cal.4th 335, 462.) “The determination whether there is a 

reasonable probability of agreement rests in the discretion of the 

trial court.” (People v. Breaux (1991) 1 Cal.4th 281, 319.)

The trial court did not abuse its discretion in concluding 

that there was a reasonable probability that the jury in the first 

trial could not agree on a verdict (and hence, in concluding that 

there was no violation of double jeopardy). When the jury first 

indicated it was deadlocked, the court noted the relatively brief 

time spent deliberating, ordered the jury to continue discussing 

the case, and offered to provide any assistance the jury wanted. 

When the jury later reaffirmed its continued deadlock, the court 

confirmed that the 6-6 split had not changed after nine votes, and 

polled each individual juror to confirm that each felt they could 

not reach agreement. On these facts, the court acted well within 

its discretion in concluding that there was no reasonable 

probability the first jury could agree on a verdict.

Citing the language used in the jury’s two notes stating 

that the jury felt there is “insufficient” or “not enough” evidence, 

defendant argues that what the jury really meant was that all 12 

jurors felt that there was “not enough evidence” to convict him, 

or, at a minimum, that the jury was confused about the beyond a 

reasonable doubt standard. We reject this argument as an 

unreasonable and implausible reading of the jury’s notes. In both 

notes, the jurors had also expressly indicated that they were 

“unable to come to a unanimous verdict.” What is more, the 
8

foreperson went on to report that “six” jurors had voted “guilty” 

and “six” had voted “not guilty.” Read as a whole, the only 

plausible interpretation of the jury’s representation that there 

was “not enough evidence” is as an inartful statement that “there 

is not enough evidence for all 12 of us to agree on defendant’s 

guilt” rather than a nonsensical statement that “all 12 of us think 

there is not enough evidence, including the six of us who still 

voted guilty.” (See Shoemaker v. Myers (1992) 2 Cal.App.4th 

1407, 1424 [“‘Where a statute is susceptible of two constructions, 

one leading to mischief or absurdity, and the other consistent 

with justice and common sense, the latter must be adopted’”].) 

This is particularly so when we consider that the note was 

written by a juror, and we do not expect jurors to be precise in 

their use of legal terminology. (Accord, People v. Riggs (2008) 44 

Cal.4th 248, 287.) The implausibility of defendant’s reading of 

the jury notes also obviated any need for the court to inquire 

further or to instruct further regarding the burden of proof. 

Defendant resists this conclusion, citing People v. Medina (1980) 

107 Cal.App.3d 364 for the proposition that the court should have 

inquired further, but Medina is inapt: There, the trial court was 

too quick to dismiss a jury that had expressly told the judge it 

“[n]eed[ed] further instructions.” (Id. at pp. 368-370.) Here, the 

jury had repeatedly told the court that it was deadlocked.

2. Failure to honor request for readback

When a jury requests the readback of testimony, the court’s 

failure to honor that request can invalidate the verdict. (Pen. 

Code, § 1138; People v. Frye (1998) 18 Cal.4th 894, 1007, 

overruled in part on other grounds as stated in People v. Doolin

(2009) 45 Cal.4th 390, 421.) While the trial court did not honor 

the jury’s initial request for readback of Sandra’s testimony at 
9

the first trial, this was not error.1 That is because, on the very 

next morning before the readback could occur, a new juror was 

seated. When this happens, the trial court is required to 

“instruct the jury to set aside and disregard all past deliberations 

and begin deliberating anew.” (People v. Collins (1976) 17 Cal.3d 

687, 694, overruled on other grounds as stated in People v. 

Boyette (2002) 29 Cal.4th 381, 462, fn. 19; accord, CALCRIM No. 

3575 [so instructing].) The trial court here did just that. Thus, 

the trial court was not required to honor the previous jury’s 

request for readback. Indeed, it would have been error if the trial 

court had gone ahead with the readback because doing so would 

have suggested that the prior jury’s deliberations—including its 

requests for readback—still mattered. (See People v. Guillen

(2014) 227 Cal.App.4th 934, 1030-1031 [finding error in this 

context].) What is more, the trial court told the newly constituted 

jury that it was free to request any readback, and it decided not 

to do so.

II. Evidentiary Issues

We review a trial court’s evidentiary rulings for an abuse of 

discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)

1 It is not clear whether this issue is even properly before us 

given that it deals with the first jury’s deliberations (which ended 

with what we have determined to be a proper declaration of a 

mistrial) and given that what is before us now are the convictions 

arising out of the second jury’s deliberations.
10

A. Sandra’s statements on the 911 call and to the 

responding officers2

Sandra’s out-of-court statements on the 911 call and to the 

responding officers regarding what happened when defendant 

beat her were admitted for their truth, and are accordingly 

hearsay. (Evid. Code, § 1200, subd. (a).) 

The trial court nevertheless did not abuse its discretion in 

admitting Sandra’s statements because they qualify as excited 

utterances. Because these statements were made after a 

startling occurrence (namely, defendant’s attack) and pertain to 

that occurrence, the sole issue is whether Sandra’s statements 

were the product of “‘the nervous excitement’” caused by the 

beating and made “‘before there [was] time to contrive and 

misrepresent . . . .’” (People v. Poggi (1988) 45 Cal.3d 306, 318; 

Evid. Code, § 1240.) Factors relevant to this issue include “‘[(1)] 

the passage of time between the startling event and the 

statement[(s)], [(2)] whether the declarant blurted out the 

statement or made it in response to questioning, [(3)], the 

declarant’s emotional state and physical condition at the time of 

making the statement, and [(4)] whether the content of the 

statement suggested an opportunity for reflection and 

fabrication.’ [Citations.]” (People v. Sanchez (2019) 7 Cal.5th 14, 

40.) “‘[N]o one factor or combination of factors is dispositive.’” 

(Ibid.) Although approximately six hours passed between the 

beating and Sandra’s statements on the 911 call and to the 

responding officers, and although some were in response to 

2 To the extent defendant challenges the admission of the 

bodycam footage worn by officers who arrested defendant in April 

2019, he does not provide any reasoned argument to support 

those challenges and they are accordingly waived. (E.g., In re 

S.C. (2006) 138 Cal.App.4th 396, 408.) 
11

questions posed by the 911 operator and the officer, she spent

nearly all of that time unconscious. More to the point, we have 

reviewed the 911 tape and the bodycam video worn by the 

responding officer, and they reflect that Sandra was still under 

the “excitement” of the beating at the time she made her 

statements: She was sobbing on the 911 tape, and the bodycam 

video shows a battered and bleeding Sandra looking dazed and 

speaking only haltingly. (Accord, People v. Liggins (2020) 53 

Cal.App.5th 55, 61-64 [proper to admit, as an excited utterance, 

statement recorded by bodycam where video showed declarant 

was still under stress of event].)

Defendant further argues that we cannot rely upon the 

excited utterance exception because the trial court never did, 

leaving us no exercise of discretion to review. This argument 

ignores the longstanding rule that “‘“we review the [trial court’s] 

ruling, not the court’s reasoning and, if the ruling was correct on 

any ground, we [may] affirm.”’” (People v. Brooks (2017) 3 

Cal.5th 1, 39.)

B. Sandra’s statements in the March 2019 

exchange of instant messages

The People introduced a hardcopy of the March 2019 

exchange of instant messages between defendant and Sandra,3 so 

defendant’s statements during that exchange are hearsay but 

admissible as the statements of an adverse party. (Evid. Code, 

§ 1220.) Sandra’s statements during the exchange are admissible 

to “‘provid[e] context’ [citation]” for defendant’s statements, but 

3 Although defendant repeatedly notes that it was “40 pages” 

of text messages, it is in actuality 40 pages of blown-up screen 

shots of text messages, which appear in what must be 22- to 60-

point typeface in alternating bubbles occupying only half the 

page.
12

in that respect, are not admissible for their truth. (People v. 

Fayed (2020) 9 Cal.5th 147, 169.) However, the prosecutor asked 

Sandra about many of her own statements during her testimony 

and, in closing argument, referred to those statements as if they 

had been admitted for their truth. Defendant forfeited his right 

to complain of this error, however, because he did not request an 

instruction limiting this evidence to its nonhearsay uses (Evid. 

Code, § 355), and did not object to the prosecutor’s closing 

argument (People v. Crew (2003) 31 Cal.4th 822, 839).

To forestall any claim that defense counsel was 

constitutionally ineffective for not requesting a limiting 

instruction and not objecting, we address that claim. Even if we 

assume for the sake of argument that defense counsel’s decision 

not to object was deficient performance rather than a product of 

trial tactics, defendant has still not established that there is a 

“reasonable probability” that, but for that deficient performance, 

“the result of the proceeding would have been different.” 

(Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) That is

because the evidence of defendant’s guilt was overwhelming and 

his trial testimony implausible. The evidence that defendant 

beat Sandra was overwhelming: Sandra testified to the beating; 

her trial testimony was corroborated by her nearcontemporaneous statements on the 911 call and to the 

responding officers; her injuries from the beating were 

photographed and visible in the bodycam video recorded hours 

after the beating; and defendant effectively admitted to beating 

her in the instant message exchange and went so far as to 

threaten to do it again. Defendant testified, and his defense was 

not only that he did not do the beating, but that he saw Sandra 

around 8:00 p.m. the same day and that she had no visible 
13

injuries. Thus, the defense was that Sandra beat herself up 

enough to look battered and bruised on the bodycam video at 3:00

p.m., and then used what we must assume to be super-human 

healing power to appear wholly uninjured five hours later. Given 

the totality of this evidence, Sandra’s statements during the 

instant message exchange—which at most added a fourth layer of 

corroboration to her account of defendant’s attack—had no 

discernable effect on the outcome of this trial. Defendant 

suggests that the fact that the first jury deadlocked and the 

second jury convicted him means that the instant messages 

(which were not admitted at the first trial) were necessarily 

prejudicial. We reject this suggestion, as the admission of those 

messages were not the only difference between the two trials. 

(Cf. People v. Ross (2007) 155 Cal.App.4th 1033, 1055 [noting that 

prior jury’s deadlock is merely one “fact” to consider in assessing 

prejudice].)

C. Defendant’s possession of a substance that 

appeared to be methamphetamine in April 2019

1. Pertinent facts

The People sought to introduce evidence that, when 

defendant was arrested for the charged crimes in April 2019, he 

left a baggie filled with a crystal-like powder in the back of the 

police vehicle used to transport him. The trial court excluded this 

evidence in the People’s case-in-chief, but noted it might “revisit” 

the ruling “depending” on what defendant might say during his 

testimony. Defendant testified. During cross-examination, the 

prosecutor asked when the defendant last used 

methamphetamine. Defendant responded that he had not used 

methamphetamine at all in 2019 or, for that matter, since 2006 

or 2007. The trial court then allowed the prosecutor to call the 

officer who transported defendant in April 2019, and that officer 
14

testified that defendant had left a clear plastic baggy with a 

crystal-like substance in the back seat of the police vehicle, and 

that the substance appeared to be methamphetamine. 

2. Analysis

The trial court did not abuse its discretion in admitting this 

evidence. To be sure, whether defendant possessed 

methamphetamine in April 2019 is collateral to whether he beat 

Sandra in February 2019. But “[a] matter collateral to an issue 

in the action may nevertheless be relevant to the credibility of a 

witness who presents evidence on an issue.” (People v. Rodriguez

(1999) 20 Cal.4th 1, 9 (Rodriguez).) Here, defendant denied using 

methamphetamine in 2019 while testifying. Evidence that 

defendant possibly possessed some methamphetamine in 2019

constitutes evidence regarding “[t]he existence or nonexistence of 

any fact testified to by [a witness],” and is therefore relevant to a

witness’s credibility. (Evid. Code, § 780, subd. (i).) Admission of 

this evidence was accordingly entrusted to the trial court’s 

discretion to decide whether its probative value was substantially 

outweighed by the danger of unfair prejudice. (Rodriguez, at pp. 

9-10; People v. Mendoza (2011) 52 Cal.4th 1056, 1089-1090; Evid. 

Code, § 352.) Here, evidence of defendant’s possible possession of 

methamphetamine in April 2019 had moderate probative value 

not only to impeach him, but also to corroborate Sandra’s 

testimony that defendant was high at the time he attacked her in 

February 2019, which helped to explain his seemingly sudden 

explosion of violence as well as his subsequent misperception of 

the event. Conversely, the fact that defendant possessed a 

substance that looked like methamphetamine two months after 

the charged offenses did not pose a great danger of unfair 

prejudice given its minor nature and its lack of a clear link to the 
15

charged crimes. A trial court striking the balance of these 

considerations in favor of admission does not abuse its discretion.

Defendant’s chief response is to cite civil cases and criminal 

cases that pre-date enactment of the Truth-in-Evidence Law (Cal. 

Const., art. I, § 28, subd. (f)(2)) for the proposition that “‘“[a] 

party cannot cross-examine his adversary’s witness upon 

irrelevant matters, for the purpose of eliciting something to be 

contradicted.”’” (Winifred D. v. Michelin North American, Inc.

(2008) 165 Cal.App.4th 1011, 1033; Bowman v. Wyatt (2010) 186 

Cal.App.4th 286, 327; People v. Lavergne (1971) 4 Cal.3d 735, 

744.) These cases do not apply in criminal matters because the 

California Constitution now provides that “relevant evidence 

shall not be excluded in any criminal proceeding,” subject to the 

trial court’s usual exercise of its authority under Evidence Code 

section 352. (Cal. Const., art. I, § 28, subd. (f)(2); Rodriguez, 

supra, 20 Cal.4th at pp. 9-10.) And even if we assumed that this 

old maxim still applied and that the trial court therefore erred in 

admitting this evidence, “it is not reasonably probable that a 

result more favorable to [the] defendant would have resulted” 

given the overwhelming evidence against defendant, the 

implausible testimony he provided, and the collateral nature of 

this evidence to the charged offenses. (People v. Cole (2004) 33 

Cal.4th 1158, 1195; see generally People v. Watson (1956) 46 

Cal.2d, 818, 835-836.)

D. Cumulative error

Defendant also argues that the evidentiary errors, 

considered cumulatively, warrant reversal. In light of our 

determinations that some of the alleged errors are not errors at 

all, and that none of them is prejudicial, we further conclude that 

adding them together is also not prejudicial.
16

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST