Filed 11/29/22 P. v. Garces CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWIN DAVID GARCES,

Defendant and Appellant.

 B320070

 (Los Angeles County

 Super. Ct. No. VA148434)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, John A. Torribio, Judge. Affirmed in part and 

remanded with directions.

Sally Patrone Brajevich, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Heidi Salerno, Deputy 

Attorneys General, for Plaintiff and Respondent.

_____________________
2

When Curtis Banks and Steven Lara confronted defendant 

and appellant Edwin David Garces about vandalizing their 

marijuana dispensary, Garces attacked both of them. The attack 

included Garces stabbing Banks nine times and seriously 

injuring him. A jury convicted Garces of one count each of

willful, deliberate and premeditated attempted murder (Pen.

Code,

1 §§ 187, subd. (a), 664, subd. (a)), assault with a deadly 

weapon (§ 245, subd. (a)(1)), and vandalism (§ 594, subd. (a)). In 

addition, the jury found that Garces personally used a knife in 

the attempted murder (§ 12022, subd. (b)(1)), that he inflicted 

great bodily injury (§ 12022.7, subd. (a)) in the attempted murder 

and the assault, and that he committed the crimes for the benefit 

of a criminal street gang.2 (§ 186.22, subd. (b)(1)(C).)

Garces now challenges his convictions, arguing there was 

insufficient evidence that he acted with premeditation and 

deliberation in the attempted murder, and that the prosecutor 

committed misconduct during closing argument. He also 

contends that we must remand the case for a new sentencing 

hearing in light of a recently enacted law restricting the 

imposition of sentence enhancements. We affirm Garces’s 

conviction but remand the case for a new sentencing hearing.

1 Unless otherwise specified, subsequent statutory 

references are to the Penal Code.

2 The court vacated the jury’s finding on the gang 

enhancements in light of Assembly Bill No. 333 (2021-2022 Reg. 

Sess.) (Stats. 2021, ch. 699), which became effective after Garces’s 

trial and which created new, more stringent substantive and 

procedural requirements for gang enhancements.
3

FACTS AND PROCEEDINGS BELOW

On the evening of August 8, 2018, Lara and Banks were

working at a marijuana dispensary in Huntington Park. Lara, 

the owner of the dispensary, saw two people spray-painting 

graffiti on the property’s back gate; he told Banks that he wanted 

to go out and confront them. Lara opened the gate, and he and 

Banks saw Garces and a female companion walking away. Lara 

asked why the two had been tagging the dispensary’s gate, but 

they did not respond. Lara and Banks followed Garces and his 

companion on foot and eventually caught up to them towards the 

end of the block. Garces turned around, pulled out a knife, and 

said, “What’s up?” Lara and Banks turned to run back towards 

the dispensary, and Garces pursued Lara. Lara fell down when 

he reached the dispensary gate and said to Banks, “Curtis, 

Curtis, help me. He’s about to stab me.” Banks punched Garces 

twice, hitting him once on the side of his face. Garces turned to 

face Banks and began slashing the knife at him. Garces stabbed 

Banks once in each arm and once in the chest as Banks tried to 

defend himself. Banks fell backward onto the ground, and 

Garces continued attacking him with the knife. Garces kicked 

Banks in the head, said “38th Street. This is my ‘hood,’ ” and ran 

away. Surveillance video footage showed Garces chasing Lara 

and Banks, but the stabbing occurred off-camera.

Banks suffered nine stab wounds to his arms, chest, and 

his left thigh, all of which penetrated through the muscles 

beneath the skin. By the time he arrived at a hospital, he had 

lost 20 percent of his blood volume and, according to the surgeon 

who treated him, might have died if he had not received prompt 

treatment.
4

A police officer encountered Garces in the parking lot of a 

nearby restaurant soon after the stabbing. The officer pursued 

Garces on foot and, after arresting him, recovered a knife that 

Garces threw away during the chase.

Garces testified in his own defense. He admitted 

vandalizing the gate outside the dispensary, but claimed that

Banks started the fight by punching him in the face. Garces 

testified that he initially fought back with his fists, and that he 

took his knife out when Lara joined in and struck him with a 

heavy metal object.3 Garces said he warned Lara and Banks that 

he had a knife, and he stabbed Banks only after Banks continued

punching him.

The trial court sentenced Garces to 16 years to life in 

prison. The sentence consisted of seven years to life for 

premeditated attempted murder of Banks (§§ 187, subd. (a), 664, 

subd. (a)), plus the low term of two years for assault with a 

deadly weapon of Lara (§ 245, subd. (a)(1)), plus seven years in 

enhancements for personally using a knife (§ 12022, subd. (b)(1))

and inflicting great bodily injury (§ 12022.7, subd. (a)). The court 

sentenced Garces to a concurrent term of six months for 

vandalism (§ 594, subd. (a)).

DISCUSSION

A. Substantial Evidence Supported the Jury’s Finding of 

Premeditation and Deliberation

Garces contends that there was no substantial evidence to 

support the jury’s finding that he acted with premeditation and 

3 Arresting officers did not notice any injuries to Garces 

other than redness to his chest. There was blood on his clothing 

but not his face or body, and the blood belonged to Banks.
5

deliberation in the attempted murder of Banks. He argues that 

all the evidence at trial indicated that “the stabbing was an 

impulsive reaction to the confrontation, with no time to reflect 

between the rapid stab wounds.” We are not persuaded.

Substantial evidence is “evidence which is reasonable, 

credible, and of solid value from which a rational trier of fact

could find defendant guilty beyond a reasonable doubt.” (People 

v. Cage (2015) 62 Cal.4th 256, 275.) When we review for 

substantial evidence, “[w]e do not reweigh the evidence or revisit 

credibility issues, but rather presume in support of the judgment 

the existence of every fact that could reasonably be deduced from 

the evidence.” (People v. Alvarez (2009) 178 Cal.App.4th 999, 

1004.) We may reverse only if “no rational trier of fact 

reasonably could have found defendant[ ] guilty” on the basis of 

the evidence. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 

166.)

“The crime of attempted murder is not divided into degrees, 

but the sentence can be enhanced if the attempt to kill was 

committed with premeditation and deliberation.” (People v. 

Gonzalez (2012) 54 Cal.4th 643, 654.) Courts have developed the 

jurisprudence of premeditation and deliberation primarily in 

cases involving first degree murder, but the same analysis 

applies in cases of attempted murder. (See, e.g., People v. Lenart

(2004) 32 Cal.4th 1107, 1127-1128.) The Supreme Court has

“identified ‘three basic categories’ of evidence [it] has generally 

found sufficient to sustain a finding of premeditation and 

deliberation: (1) planning activity, or ‘facts about how and what 

defendant did prior to the actual killing which show that the 

defendant was engaged in activity directed toward, and 

explicable as intended to result in, the killing’; (2) motive, or 
6

‘facts about the defendant’s prior relationship and/or conduct 

with the victim from which the jury could reasonably infer a 

“motive” to kill the victim’; and (3) manner of killing, or ‘facts 

about the nature of the killing from which the jury could infer 

that the manner of killing was so particular and exacting that the 

defendant must have intentionally killed according to a 

“preconceived design” to take his victim’s life in a particular way 

for a “reason.” ’ ” (People v. Morales (2020) 10 Cal.5th 76, 88-89, 

quoting People v. Anderson (1968) 70 Cal.2d 15, 26-27.)

These “ ‘ “guidelines are descriptive and neither normative 

nor exhaustive, and . . . reviewing courts need not accord them 

any particular weight.” ’ [Citation.]” (People v. Morales, supra,

10 Cal.5th at p. 89.) Ultimately, an attempted murder “ ‘ “ ‘is 

premeditated and deliberate if it occurred as the result of 

preexisting thought and reflection rather than unconsidered or 

rash impulse.’ ” [Citations.] “The true test is not the duration of 

time as much as it is the extent of the reflection. Thoughts may 

follow each other with great rapidity and cold, calculated 

judgment may be arrived at quickly.” ’ ” (Id. at p. 88.)

In this case, there was sufficient evidence to support the 

jury’s finding that Garces acted with premeditation and 

deliberation in attempting to kill Banks. Garces argues the 

attack was impulsive, and “sparked by the victim’s aggression.” 

That is certainly one inference that could be drawn from the 

evidence, but it is not the only one. Although the confrontation 

between Garces, Lara, and Banks occurred quickly, Garces had 

time to reflect and deliberate before he attacked. Garces walked 

away from the dispensary, appearing to ignore Lara and Banks

even as Lara asked him why he had tagged the gate. Then 

suddenly Garces stopped, drew his knife, turned around, said 
7

“What’s up?” and charged after individuals that were no longer 

posing any threat to him. A jury could reasonably infer from this 

sequence of events that Garces planned his actions while being 

trailed by Lara and Banks as they demanded answers from him,

and waited until the right moment before turning on Banks and 

Lara and charging at them with his knife drawn. When Lara and 

Banks tried to run away, Garces pursued them for a meaningful 

distance down the street and back up to the dispensary before 

using the knife—further evidencing his premeditation and 

deliberation. Once Garces began stabbing Banks, he did so nine 

times including twice in the chest just barely missing Banks’s

heart. The jury could reasonably infer from the number of stab 

wounds as well as their location that Garces acted with reflection 

and a deliberate intent to kill. (E.g., People v. Potts (2019) 6 

Cal.5th 1021, 1028 [“ ‘plunging a lethal weapon into the chest 

evidences a deliberate intention to kill’ ”], quoting People v. 

Anderson, supra, 70 Cal.2d at p. 27.)

In addition, there was evidence indicating Garces had a 

motive for attacking. He had just spray-painted the name of his 

gang and his moniker on the gate of the dispensary. After the 

stabbing, Garces stood over Banks, stated his gang’s name and 

“This is my hood.” The prosecution’s gang expert testified that 

gang members commit acts of vandalism to mark their territories 

and instill fear in the community. The jury could have 

reasonably concluded that Garces was concerned Banks was

publicly challenging the gang’s dominance by confronting Garces 

after the tagging, and that it was necessary to attempt killing

Banks for the benefit of the gang to maintain that dominance.

When we review a verdict for substantial evidence, we do 

not substitute our own judgment for that of the jury. (People v. 
8

Ceja (1993) 4 Cal.4th 1134, 1139.) We ask only “whether a 

reasonable trier of fact could have found [the defendant] guilty 

beyond a reasonable doubt.” (People v. Nelson (2016) 1 Cal.5th 

513, 550.) Under that deferential standard, we must affirm the 

jury’s finding that Garces acted with premeditation and 

deliberation in committing the attempted murder.

B. The Prosecutor’s Misstatements in Closing Argument

Did Not Prejudice Garces

Garces contends that the prosecutor committed misconduct 

during closing argument by referring to matters outside the 

record, by vouching for Banks’s credibility, and by misstating the 

law. We agree with some of Garces’s claims, but we nevertheless 

affirm his convictions because he has failed to show that the 

prosecutor’s conduct prejudiced him.

1. Legal Background

“A prosecutor is held to a standard higher than that 

imposed on other attorneys because of the unique function he or 

she performs in representing the interests, and in exercising the 

sovereign power, of the state.” (People v. Hill (1998) 17 Cal.4th 

800, 820.) “The standards governing review of [prosecutorial] 

misconduct claims are settled. ‘A prosecutor who uses deceptive 

or reprehensible methods to persuade the jury commits 

misconduct, and such actions require reversal under the federal 

Constitution when they infect the trial with such “ ‘unfairness as 

to make the resulting conviction a denial of due process.’ ” 

(Darden v. Wainwright (1986) 477 U.S. 168, 181 [106 S.Ct. 2464, 

91 L.Ed.2d 144]; see People v. Cash (2002) 28 Cal.4th 703, 733 

. . . .) Under state law, a prosecutor who uses such methods 

commits misconduct even when those actions do not result in a 

fundamentally unfair trial.’ (People v. Alfaro (2007) 41 Cal.4th 
9

1277, 1328 . . . .) ‘In order to preserve a claim of misconduct, a 

defendant must make a timely objection and request an 

admonition; only if an admonition would not have cured the harm 

is the claim of misconduct preserved for review.’ (Ibid.) When a 

claim of misconduct is based on the prosecutor’s comments before 

the jury, ‘ “the question is whether there is a reasonable 

likelihood that the jury construed or applied any of the 

complained-of remarks in an objectionable fashion.” ’ 

[Citations.]” (People v. Friend (2009) 47 Cal.4th 1, 29.) To 

establish a claim of misconduct, “bad faith on the prosecutor’s 

part is not required. (Hill[, supra,] at pp. 822-823.) ‘[T]he term 

prosecutorial “misconduct” is somewhat of a misnomer to the 

extent that it suggests a prosecutor must act with a culpable 

state of mind. A more apt description of the transgression is 

prosecutorial error.’ (Id. at p. 823, fn. 1.)” (People v. Centeno

(2014) 60 Cal.4th 659, 666-667.)

2. Referring to Matters Outside the Record

Garces contends the prosecutor committed misconduct 

during closing argument by suggesting that Lara declined to 

testify because Garces’s gang had intimidated him, when nothing 

in the record supported that claim. The prosecutor told the jury

that gangs have negative effects on communities, then continued, 

“As a matter of fact, here we didn’t have Steven Lara. I had to 

prove an entire count without that person here because there’s no 

way he wants anything to do with this case.” Garces’s attorney 

objected, and the trial court ordered the jury to disregard the 

comment. The prosecutor continued, “You heard from the 

experts. There’s a reason why witnesses and victims don’t show 

up.” Again, Garces’s attorney objected, and the court sustained 

the objection.
10

We agree with Garces that these statements were 

improper.4 Referring to matters outside the record during closing 

argument is “clearly . . . misconduct” (People v. Pinholster (1992) 

1 Cal.4th 865, 948, disapproved on another ground in People v. 

Williams (2010) 49 Cal.4th 405, 459) because it is both unfair and 

difficult for the defendant to refute facts that were never 

presented in court in the first place. (People v. Benson (1990) 52 

Cal.3d 754, 794.) The prosecutor thus “ ‘ “circumvent[s] the rules 

of evidence” ’ ” (People v. Hill, supra, 17 Cal.4th at p. 828) and 

introduces considerations the jury otherwise would not have 

heard about. In addition, a prosecutor commits misconduct by 

violating a prior court ruling. (People v. Crew (2003) 31 Cal.4th 

822, 839.) The prosecutor might not have intended to disobey the 

court’s ruling, but by pursuing the same argument the court had 

just rejected, she did so.

It does not follow, however, that these misstatements 

require reversing Garces’s convictions. Prosecutorial misconduct 

requires reversal “under the federal Constitution when it ‘ “so 

infect[s] the trial with unfairness as to make the resulting 

conviction a denial of due process.” ’ [Citations.]” (People v. 

Cash, supra, 28 Cal.4th at p. 733.) Misconduct under state law 

does not require reversal “unless it is reasonably possible that the 

jury would have reached a result more favorable to the defendant 

had the misconduct not occurred.” (People v. Gonzales and Soliz

(2011) 52 Cal.4th 254, 319.)

4 We disagree with Garces that these statements also 

shifted the burden to the defense to prove why Lara was 

unavailable to testify. The reason for Lara’s absence was not an 

element of the charges against Garces, and neither party bore the 

burden of proving why he was missing.
11

The prosecutor’s conduct in this case does not meet either 

of these thresholds for reversal. The question of Lara’s absence 

was not of central importance to the case. Garces was not 

accused of dissuading Lara from testifying, and even in the 

absence of Lara, the jury heard full accounts of the day’s events 

from Banks and from Garces himself, and saw surveillance video 

footage of part of the attack. The court sustained objections to 

the comments from the prosecutor and told the jury to disregard 

the prosecutor’s statement. An admonition to the jury to 

disregard a prosecutor’s statement is ordinarily “sufficient to cure 

any harm.” (People v. Tate (2010) 49 Cal.4th 635, 689.)

The insinuation that Lara was too intimidated to testify 

may have prejudiced Garces, but even if the prosecutor had not 

made those statements, the jury still would have heard testimony 

that Garces was a member of a gang that regularly assaulted and 

killed its enemies. In comparison with this testimony, the effect 

of the prosecutor’s statements on the jury was minimal.

3. Vouching for Banks

Garces contends that the prosecutor committed misconduct 

by vouching for the veracity of Banks’s testimony. He points to a 

moment during closing argument when the prosecutor said, “If 

you look at what Curtis Banks said—and mind you, nothing he 

said, nothing, not a bit of his testimony was attacked. There is 

no evidence to show that he was lying.”

We disagree that this argument was improper. The 

prosecutor did not vouch for Banks “by referring to evidence 

outside the record” or by “plac[ing] the prestige of her office 

behind a witness by offering the impression that she has taken 

steps to assure a witness’s truthfulness at trial.” (People v. Frye

(1998) 18 Cal.4th 894, 971, disapproved on another ground in 
12

People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Instead, the 

prosecutor argued that the jury should infer that Banks had 

testified honestly “based on the ‘facts of [the] record and the 

inferences reasonably drawn therefrom, rather than any 

purported personal knowledge or belief.’ ” (Ibid.) The credibility 

of Banks was a key issue at trial, as the jury had to resolve the 

competing testimony from Banks and Garces about what 

happened between the two of them. The prosecutor’s comments

were proper argument on this important issue. (See ibid.)

4. Arguing that Garces’s Membership in a Gang Was 

Proof of Intent to Kill

Garces contends that the prosecutor misled the jury by 

suggesting that his mere membership in a gang was proof that he 

acted with an intent to kill when he attacked Banks. During 

rebuttal argument, the prosecutor argued that Garces’s actions 

were willful, deliberate, and premeditated. She told the jury, 

“when the defendant joined the gang, a part of that membership 

is a willingness to kill.” The court sustained its own objection to 

this argument, but Garces’s attorney did not ask the court to 

admonish the jury to disregard the statement. The prosecutor 

then continued, “when you join gangs, when you want to rise up 

in gangs, you have to be willing to put in work. You heard it from 

the [prosecution’s gang expert]. And part of that work is assault, 

it’s murder.” This time, neither the court nor Garces’s attorney 

objected to the prosecutor’s statement.

We need not decide whether these statements were 

improper because Garces forfeited them by failing to “make a 

timely objection and request an admonition.” (People v. Alfaro, 

supra, 41 Cal.4th at p. 1328, italics added.) Even if we ignore the 

forfeiture, Garces’s claim fails because Garces has failed to show 
13

that the prosecutor’s first statement prejudiced him, and the 

follow-up statements were within the bounds of fair argument.

The prosecutor’s first statement was arguably improper, in 

that it implicitly equated gang membership with a willingness to 

kill. This may have suggested to the jurors that they could take 

Garces’s admitted membership in a gang as proof of one of the 

elements of attempted murder. “ ‘ “[I]t is improper for the 

prosecutor to misstate the law generally [citation], and 

particularly to attempt to absolve the prosecution from its prima 

facie obligation to overcome reasonable doubt on all elements” ’ ” 

of an offense. (People v. Bell (2019) 7 Cal.5th 70, 111.)

This argument could not have prejudiced Garces under 

either the federal or state standard, however, because the court 

intervened immediately and ordered the jury to disregard the 

statement. The prosecutor then clarified her point in a way that 

corrected the error.

In her follow-up statements, the prosecutor did not suggest 

that gang membership was tantamount to proof of intent to kill, 

but rather that assault and murder were central activities of 

Garces’s gang, and that members were expected to be willing to 

commit these offenses for the benefit of the gang. These 

statements were essentially a summary of the testimony from the 

prosecution’s gang expert, and proper comment on evidence that 

had been admitted during the trial. If any jurors were still 

confused, the jury instructions stated the relevant law accurately.

C. The Case Must Be Remanded for Resentencing under

Senate Bill No. 81

In 2021, the Legislature enacted Senate Bill No. 81 (2021-

2022 Reg. Sess.) (Stats. 2021, ch. 721), which amended section 

1385 to provide new guidelines for trial courts in imposing 
14

sentence enhancements.5 Under the law as revised, the court 

must consider several potential mitigating factors before 

imposing a sentence enhancement. In particular, the law 

provides that if “application of an enhancement could result in a 

sentence of over 20 years[,] . . . the enhancement shall be 

dismissed.” (§ 1385, subd. (c)(2)(C). Because this “change[ ] in 

the law . . . allow[s] for a possibility of reduced punishment” 

(People v. Sek (2022) 74 Cal.App.5th 657, 666), it applies 

retroactively to defendants like Garces whose convictions were 

not yet final when the law became effective. We agree with both 

Garces and the Attorney General that we must remand the case 

to the trial court for resentencing.

Garces and the Attorney General also argue that the court 

must correct an error in the minute order from the sentencing 

hearing. Under section 1202.4, subdivision (f)(3)(G), victim 

restitution includes “[i]nterest, at the rate of 10 percent per 

annum, that accrues as of the date of sentencing or loss.” The 

trial court ordered Garces to pay $331.24 in victim restitution but 

did not mention interest. Nevertheless, the minute order from 

the sentencing hearing added 10 percent interest per year to the 

restitution order. Because “[t]he oral imposition of sentence 

constitutes the judgment in an action, and the minutes cannot 

add anything substantive to the oral pronouncement” (People v. 

El (2021) 65 Cal.App.5th 963, 967), both Garces and the Attorney 

5 The Legislature subsequently enacted Assembly Bill 

No. 200 (2021-2022 Reg. Sess.) (Stats. 2022, ch. 58, § 15), which 

amended section 1385 to correct a clerical error introduced by 

Senate Bill No. 81.
15

General agree that we must remand the case to the trial court to 

correct the minute order.

In light of the order for a new sentencing hearing, the issue

regarding interest is moot. Because the trial court must hold a 

new sentencing hearing to give Garces the benefit of the new 

amendments to section 1385, his previous sentence and the 

associated minute order will be vacated. We note, however, for 

the benefit of the parties at the new sentencing hearing, that a 

restitution “order must fully reimburse the victim for every 

economic loss caused by the defendant’s criminal conduct, 

including 10 percent interest as of the date of the loss.” (People v. 

Wickham (2013) 222 Cal.App.4th 232, 238.) A sentence that fails 

to impose restitution as required is unauthorized and “must be 

vacated and the proper sentence imposed whenever the matter is 

brought to the attention of the trial or reviewing court.” (People 

v. Turrin (2009) 176 Cal.App.4th 1200, 1205.)
16

DISPOSITION

The judgment of conviction is affirmed. Garces’s sentence 

is vacated, and the case is remanded to the trial court for a new 

sentencing hearing.

NOT TO BE PUBLISHED

WEINGART, J.*

We concur:

CHANEY, J.

BENDIX, Acting P. J.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.