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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

 Plaintiff and Respondent,

v.

FIDEL GARCIA,

 Defendant and Appellant.

2d Crim. No. B238859

(Super. Ct. No. 1355715)

(Santa Barbara County)

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.
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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 
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restitution fine, a $3,600 parole revocation restitution fine (stayed), a $200 court security 

fee, and a $150 criminal conviction assessment, and awarded Garcia 250 days of 

presentence custody and conduct credit. (§§ 1202.4, subd. (b), 1202.45, 1465.8, subd. 

(a); Gov. Code, § 70373.)

Garcia appeals and contends that the trial court did not properly instruct 

regarding the elements of dissuading a witness and making criminal threats because it 

chose to "save some time" with "mix and match" instructions. 

DISCUSSION

I.

Garcia asserts that the trial court instructed that the jury could convict him 

of intimidating a witness and making criminal threats if it found that either Jose or Maria 

had been intimidated or threatened, i.e., that the victims were interchangeable. He argues 

that the use of the word "or" allowed the jury to convict him without deciding whether he 

intimidated or threatened each victim. Garcia adds that the jury received written 

instructions (CALCRIM Nos. 1300 and 2622) containing the word "or" instead of "and." 

He contends that the error denied his federal and state constitutional rights to due process 

of law and to trial by jury, and is not harmless beyond a reasonable doubt. (People v. 

Flood (1998) 18 Cal.4th 470, 479-480 [instructional error relieving the prosecution of 

proving each element of an offense beyond a reasonable doubt violates a defendant's 

federal and state constitutional rights].)

The trial court instructed regarding the elements of intimidating a witness 

and stated that Garcia must have discouraged Jose or Maria from reporting the crime or 

seeking his arrest, and that Jose or Maria must have been crime witnesses or victims. 

The court also instructed concerning the elements of making a criminal threat and stated 

that the threat to Jose or Maria must be immediate and unequivocal, the threat must have 

caused Jose or Maria to be in sustained fear for their own safety or that of a family 

member, and that Jose's or Maria's fear was reasonable under the circumstances. 

In reviewing claims of instructional error, we decide whether the defendant 

has shown a reasonable likelihood that the jury, considering the challenged instruction in 
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the context of the instructions as a whole, understood that instruction in a manner that 

violated his constitutional rights. (People v. Tate (2010) 49 Cal.4th 635, 696; People v. 

Vang (2009) 171 Cal.App.4th 1120, 1129.) We also presume that jurors generally 

understand and follow instructions. (People v. Myles (2012) 53 Cal.4th 1181, 1212.)

There is no reasonable likelihood that the jury misunderstood the 

instructions to permit them to convict Garcia without a unanimous agreement as to the 

particular victim dissuaded or threatened for each count. Viewed in context, the trial 

court's use of "or" in the instructions simply reflected that there was a count for each 

victim. 

Moreover, the trial court instructed with CALCRIM No. 3515, regarding 

consideration of each count separately and a return of a separate verdict for each count. 

It also instructed with CALCRIM No. 3501, regarding unanimous agreement upon the 

particular acts constituting each offense. The verdict forms for counts 2, 3, 4, and 5 

stated the name of the corresponding victim; counts 2 and 4 expressly concerned Jose, 

and counts 3 and 5 expressly concerned Maria, i.e., "We, the jury . . . , hereby find the 

Defendant . . . GUILTY of the crime of CRIMINAL THREATS, against Jose Bernal." 

(Count 4.) During summation, the prosecutor also stated that "Count[s] 2 and 3 are for 

each person, Jose and Maria Bernal respectively being intimidated or being threatened." 

In addition, a jury note submitted to the trial court during deliberation 

questioned whether Garcia "ha[d] to directly address Maria in order to fulfill count #5." 

The jury also asked that Maria's testimony be reread and withdrew an earlier question 

regarding an explanation of criminal threats and "the choices between the family 

members." The jury notes reflect that it considered each victim separately for each 

charged count. 

In sum, it is clear beyond a reasonable doubt that a rational jury would have 

found Garcia guilty beyond a reasonable doubt absent the asserted error in employing the 

word "or." (People v. Gonzalez (2012) 54 Cal.4th 643, 663 [standard of review].)
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II.

The Attorney General points out that the abstract of judgment erroneously 

recites that Garcia was convicted of second degree robbery in count 1, not first degree 

robbery. The Attorney General is correct. (People v. Andra (2007) 156 Cal.App.4th 638, 

642-643.)

The trial court shall amend the abstract of judgment to reflect a conviction 

in count 1 of first degree robbery, and then forward the certified amended abstract of 

judgment to the Department of Corrections and Rehabilitation. The judgment is 

otherwise affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.
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Kay Kuns, Judge

Superior Court County of Santa Barbara

______________________________

Susan Morrow Maxwell, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Linda C. 

Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney 

General, for Plaintiff and Respondent.