Filed 2/1/16 P. v. Garcia CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

ARTHUR GARCIA,

Defendant and Appellant.

 B257247

 (Los Angeles County

 Super. Ct. No. BA355012)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. 

Perry, Judge. Affirmed as modified.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., 

Supervising Deputy Attorney General, and Nima Razfar, Deputy Attorney General, for 

Plaintiff and Respondent.

______________________________
2

Arthur Garcia appeals from the judgment entered following his conviction by a 

jury of attempted murder and assault with a firearm with true findings he had personally 

discharged a firearm causing great bodily injury to Laveil Hunter. Garcia contends his 

counsel provided ineffective assistance because he failed to properly object to admission 

of testimony Garcia had been seen with a gun about a month before the incident and the 

court engaged in prejudicial misconduct by actively questioning witnesses. We affirm

with a modification to reflect the People’s failure to prove a prior prison term 

enhancement.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

Garcia was charged by amended information with attempted premeditated murder 

(Pen. Code, §§ 187, subd. (a), 664) and assault with a firearm (Pen. Code, § 245,

subd. (a)(2)). It was specially alleged Garcia had personally discharged a firearm causing 

great bodily injury (Pen. Code, § 12022.53, subd. (d)), had suffered a prior serious felony 

conviction (robbery) within the meaning of Penal Code section 667, subdivision (a), and 

the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12) and had served a prior 

separate prison term for a felony conviction (felon in possession of a firearm) (Pen. Code, 

§ 667.5, subd. (b)). Garcia pleaded not guilty and denied the special allegations.

2. Summary of the Evidence Presented at Trial

a. Elizabeth Ramirez’s testimony

Elizabeth Ramirez testified Laveil Hunter asked her if she had any change as she

was entering a liquor store around 10 p.m. on March 29, 2009. She said no. After 

Elizabeth

1

left the store, Hunter again asked her for change. Elizabeth told him she did 

not have any; and Hunter began cursing at her, using racial slurs and threatening that he 

could kill her. Elizabeth, scared, drove home. When she arrived a few minutes later, her 

brother Raphael was there with Garcia and Pablo Renteria. Raphael got angry when 

 

1 Because Elizabeth Ramirez and her brother Raphael Ramirez share a surname, we 

refer to them by their first names for convenience.
3

Elizabeth told him what had happened and asked her to drive him to the liquor store so he 

could talk to Hunter. Garcia and Renteria said they would also go. Raphael rode in the 

front passenger seat of the car. 

Elizabeth dropped the three men off across the street from the liquor store and 

drove home. Although Elizabeth initially testified she did not hear anything as she drove 

away, when she was asked whether she had told police detectives she heard gunshots, she 

explained she heard “some kind of pops,” but did not know if they were gunshots. Over 

defense counsel’s “speculation” objection, Elizabeth further testified she had seen Garcia 

with a gun about a month earlier at a party her brother and his friends were having; but 

she was not able to identify whether it was a revolver or a semiautomatic handgun.

2

The jury was shown surveillance footage from cameras recording the front of the 

liquor store and the street alongside it and was presented with still photographs taken

from the video footage. The video footage showed Elizabeth’s car stop across the street 

from the liquor store. A man in a dark jacket walked quickly from the passenger side of 

the car around the rear of it, crossing the street toward Hunter, with another man 

following shortly behind him. Just as the first man reached the sidewalk with the second 

man at about the middle of the street, a third man, wearing a white shirt, left the car from

the rear passenger door on the driver’s side. As the first two men got closer to Hunter, he 

began to run; the third man was in the middle of the street waiting for a car to pass. After 

the car passed, the third man ran across the street and shot in the direction Hunter had 

run. (A muzzle flash can be seen.) Elizabeth identified her brother as the first man in the 

dark jacket walking toward Hunter. She could not distinguish which of the other two 

men was Garcia or Renteria. 

 

2 Although the record is not clear, it appears defense counsel’s objection may have 

been based on a statement Elizabeth made to detectives that she had “never really seen” 

Garcia with guns. In response to follow-up questions, however, Elizabeth told detectives 

she saw Garcia show a gun to Raphael at a party. The court, describing Elizabeth’s 

statement as “pretty specific,” permitted the prosecutor to ask her whether she had 

previously seen Garcia with a gun. 
4

b. Hunter’s testimony

Hunter acknowledged he had asked Elizabeth for change when she left the store, 

but testified he had never used racial slurs, threatened or cursed at her. When Elizabeth

said she did not have any change, a man who had come out of the store with her said, 

“No and fuck you.” Hunter responded “fuck you” to the man, and Elizabeth told Hunter 

“not to talk to her homeboy like that.”3A few minutes later, according to Hunter, “Two 

dudes drove up on me, told me what I was doing messing with their homeboy, and I 

started running.” Although the surveillance video appears to show Hunter looking 

toward Elizabeth’s car when it drove up and as the men left it, he testified he did not see 

where the men had come from because “I had my back turned, when I turned around 

there was two of them coming from . . . a side street.” As Hunter ran, he heard seven or 

eight gunshots. One of the shots struck him in the back of the leg. 

Hunter testified he had seen the men before in the neighborhood. Additionally, 

during an interview when he was in the hospital, Hunter identified Garcia and Renteria 

from a photographic lineup. In the “photo identification report” Hunter wrote, “The 

picture 1B [Elizabeth] is the one that was driving the car when they shot me. Number 4B

[Renteria] 3A [Garcia] were in the car when they shot me.” However, at trial Hunter was 

unable to identify Garcia as one of the men who had accosted him. He also testified he 

did not see the man who shot him because he was running away. 

c. Detective Rose’s testimony

Los Angeles Police Detective Eric Rose, who investigated the shooting incident, 

testified he interviewed Renteria at the Newton Division station. During that interview 

Renteria told Rose that he and Raphael had chased Hunter and that it was Garcia who had 

shot him. Rose also testified Renteria did not claim he had been the shooter.

 

3 Elizabeth testified she did not know the man, but had seen him before around the 

liquor store. 
5

d. Renteria’s testimony

Renteria testified he shot Hunter. He contended he had been socializing with 

some friends, although he did not know their names, and went to the liquor store because 

“I got pound for whoever got shot, you know.” He testified he did not recognize anyone 

in the court room. He also claimed the only other person in the car was a woman whose 

name he did not know. He denied telling police detectives he and Raphael had chased 

Hunter and Garcia shot him. When the prosecutor asked him questions about the 

surveillance footage, Renteria said, “Man, I’m not going to tell you nothing else. I 

already told you what I had to tell you, man, and I ain’t going to say nothing else, man.” 

During cross-examination Renteria acknowledged he had pleaded guilty to assault with a 

firearm in connection with the incident and was serving a seven-year sentence. He also 

agreed he would be labeled a snitch if he gave the police a statement incriminating other 

people and that snitches get punished, even in state prison. 

e. The defense theory of the case

Garcia did not testify or present any other witness testimony. His primary defense 

theory was that Raphael, who was most upset by the threat to his sister, shot Hunter and 

that Garcia did not know Raphael intended to shoot him or else Garcia would not have 

run so closely after Hunter, putting Garcia in the line of fire. Garcia’s attorney argued

Renteria had so clearly lied that nothing he said, including his statement to detectives that 

Garcia had shot Hunter, could be trusted. In contrast, Hunter was a very credible witness, 

and the fact he had identified Garcia and Renteria strongly suggested Raphael was the 

shooter: “Who are the two faces that he’s able to identify seven or eight days later in the 

hospital? Mr. Renteria and Mr. Garcia. Both of those people were the people who were 

approaching him, who were running towards him. He got shot by the third person who 

was across the street with a gun and he was the person who had the most motive to want 

to hurt Mr. Hunter.” 

3. The Verdict and Sentence

The jury found Garcia guilty of attempted premeditated murder and assault with a 

firearm and found true the special allegations he had personally discharged a firearm 
6

causing great bodily injury. After the trial court in a separate proceeding found true the 

special allegation that Garcia had suffered a prior serious felony conviction, it sentenced 

him for attempted murder to an indeterminate term of life with a minimum parole 

eligibility of seven years doubled to 14 years pursuant to the three strikes law, plus a 

consecutive 25-year-to-life term for personally discharging a firearm causing great bodily 

injury, plus five years for the prior serious felony conviction enhancement. The court 

imposed and stayed sentence on the assault with a firearm conviction. 

DISCUSSION

1. Counsel’s Failure To Object Under Evidence Code Section 1101 to the 

Admission of Testimony Garcia Had Previously Been Seen with a Gun Was Not 

Ineffective Assistance of Counsel

a. Legal principles governing ineffective assistance of counsel

The right to counsel guaranteed by both the Sixth Amendment to the United States 

Constitution and article I, section 15 of the California Constitution “‘includes, and indeed 

presumes, the right to effective counsel. . . .’” (People v. Blair (2005) 36 Cal.4th 686, 

732.) “The benchmark for judging any claim of ineffectiveness must be whether 

counsel’s conduct so undermined the proper functioning of the adversarial process that 

the trial cannot be relied on as having produced a just result.” (Strickland v. Washington

(1984) 466 U.S. 668, 686 [104 S.Ct. 2052, 80 L.Ed.2d 674]; accord, In re Valdez (2010) 

49 Cal.4th 715, 729.)

“‘To establish ineffective assistance of counsel under either the federal or state 

guarantee, a defendant must show that counsel’s representation fell below an objective 

standard of reasonableness under prevailing professional norms, and that counsel’s 

deficient performance was prejudicial, i.e., that a reasonable probability exists that, but 

for counsel’s failings, the result would have been more favorable to the defendant.’” 

(In re Roberts (2003) 29 Cal.4th 726, 744-745; accord, In re Crew (2011) 52 Cal.4th 126, 

150; see Strickland v. Washington, supra, 466 U.S. at p. 694.) “‘The burden of sustaining 

a charge of inadequate or ineffective representation is upon the defendant. The proof . . . 
7

must be a demonstrable reality and not a speculative matter.’” (People v. Karis (1988) 

46 Cal.3d 612, 656; accord, People v. Vines (2011) 51 Cal.4th 830, 875.)

“Judicial scrutiny of counsel’s performance must be highly deferential. It is all too 

tempting for a defendant to second-guess counsel’s assistance after conviction or adverse 

sentence, and it is all too easy for a court, examining counsel’s defense after it has proved 

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. 

[Citation.] A fair assessment of attorney performance requires that every effort be made 

to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at 

the time. Because of the difficulties inherent in making the evaluation, a court must 

indulge a strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action ‘might be considered sound trial 

strategy.’” (Strickland v. Washington, supra, 466 U.S. at p. 689; see People v. Gamache

(2010) 48 Cal.4th 347, 391; People v. Carter (2003) 30 Cal.4th 1166, 1211.) On a direct 

appeal a conviction will be reversed for ineffective assistance of counsel only when the 

record demonstrates there could have been no rational tactical purpose for counsel’s 

challenged act or omission. (Gamache, at p. 391; People v. Anderson (2001) 25 Cal.4th 

543, 569; People v. Lucas (1995) 12 Cal.4th 415, 442.)

b. Legal principles governing evidence of uncharged misconduct

California law has long precluded use of evidence of a person’s character (a 

predisposition or propensity to engage in a particular type of behavior) as a basis for an 

inference that he or she acted in conformity with that character on a particular occasion: 

Evidence Code section 1101, subdivision (a),

4

“prohibits admission of evidence of a 

 

4 Evidence Code section 1101, subdivision (a), provides, “Except as provided in this 

section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a 

trait of his or her character (whether in the form of an opinion, evidence of reputation, or 

evidence of specific instances of his or her conduct) is inadmissible when offered to 

prove his or her conduct on a specified occasion.” 
8

person’s character, including evidence of character in the form of specific instances of 

uncharged misconduct, to prove the conduct of that person on a specified occasion.”

(People v. Ewoldt (1994) 7 Cal.4th 380, 393.) Indeed, “‘[t]he rule excluding evidence of 

criminal propensity is nearly three centuries old in the common law.’” (People v. 

Falsetta (1999) 21 Cal.4th 903, 913.) Evidence Code section 1101, subdivision (b),

5

clarifies, however, that this rule “does not prohibit admission of evidence of uncharged 

misconduct when such evidence is relevant to establish some fact other than the person’s 

character or disposition.” (Ewoldt, supra, 7 Cal.4th at p. 393; accord, People v. Leon

(2015) 61 Cal.4th 569, 597-598; see Falsetta, at p. 914 [“the rule against admitting 

evidence of the defendant’s other bad acts to prove his present conduct [is] subject to farranging exceptions,” citing Evid. Code, § 1101, subd. (b)].) 

c. Counsel’s performance did not fall below an objective standard of 

reasonableness because the testimony was not clearly inadmissible

under Evidence Code section 1101

Garcia’s attorney unsuccessfully attempted to prevent introduction of Elizabeth’s 

testimony she had seen Garcia with a gun about a month before the incident by objecting 

it was “speculation.”6 We cannot determine why he did not also object it was 

impermissible character evidence, which his appellate counsel asserts would have 

 

5 Evidence Code section 1101, subdivision (b), provides, “Nothing in this section 

prohibits the admission of evidence that a person committed a crime, civil wrong, or 

other act when relevant to prove some fact (such as motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake or accident, or whether a 

defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act 

did not reasonably and in good faith believe that the victim consented) other than his or 

her disposition to commit such an act.”

6 Determining whether Garcia was the shooter was not necessary to find him guilty 

of attempted premeditated murder. As the court properly instructed the jury, Garcia 

could be found guilty if he aided and abetted the perpetrator who had directly committed 

the crime. However, only the individual who actually discharged the firearm is subject to 

the enhancement alleged pursuant to Penal Code section 12022.53, subdivision (d) 

(personal discharge of a firearm causing great bodily injury or death).
9

presented a better ground for excluding the testimony; but on this record we cannot say 

the failure to do so constituted ineffective assistance. 

As Garcia suggests, “[w]hen the prosecution relies on evidence regarding a 

specific type of weapon, it is error to admit evidence that other weapons were found in 

the defendant’s possession, for such evidence tends to show not that he committed the 

crime, but only that he is the sort of person who carries deadly weapons.” (People v. 

Barnwell (2007) 41 Cal.4th 1038, 1056; see People v. Cox (2003) 30 Cal.4th 916, 956, 

disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) 

But as Justice Traynor explained for the Supreme Court in People v. Riser (1956) 

47 Cal.2d 566, 577, disapproved on other grounds in People v. Chapman (1959) 

52 Cal.2d 95, 98 and People v. Morse (1964) 60 Cal.2d 631, 648, “When the specific 

type of weapon used to commit a homicide is not known, it may be permissible to admit 

into evidence weapons found in the defendant’s possession some time after the crime that 

could have been the weapons employed. There need be no conclusive demonstration that 

the weapon in defendant’s possession was the murder weapon.” (See Cox, at p. 955 [trial 

court properly admitted evidence three guns had been found in defendant’s truck even 

though cause of death was unknown; prosecutor allowed to show defendant had 

“‘instruments that would allow him to overpower and cause the death of these young 

girls’”]; People v. Carpenter (1999) 21 Cal.4th 1016, 1052 [witness’s testimony 

defendant told her he kept a gun in his van was relevant and admissible as circumstantial 

evidence he committed the offenses]; see also People v. Lane (1961) 56 Cal.2d 773, 785

[admission of guns found in abandoned truck not relevant to the homicide “per se” but as 

weapons “of a character which could be used in armed robbery . . . in furtherance of the 

criminal plan”].)

Here, there was no evidence as to the type of handgun Garcia showed Raphael—

Elizabeth testified she did not know the difference between a revolver and a 

semiautomatic weapon and at best thought the handgun might have been silver—and the 

prosecution did not rely on any specific type of handgun as having been used in the 

crime. Thus, the gun Elizabeth saw could have been the firearm used to shoot Hunter;
10

and Garcia’s access to, and prior possession of, a gun was relevant circumstantial 

evidence he was the shooter, not simply an aider-and-abettor of the aggravated assault.

7

The link between the handgun Elizabeth saw and the weapon used in the shooting was, of 

course, tenuous. But defense counsel’s failure to object under Evidence Code 

section 1101 simply did not rise to the level of a “showing that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 

Sixth Amendment.” (Strickland v. Washington, supra, 466 U.S. at p. 687.)

8

 Indeed, 

“‘[D]eciding whether to object is inherently tactical, and the failure to object will rarely 

establish ineffective assistance.’” (People v. Carrasco (2014) 59 Cal.4th 924, 985; 

accord, People v. Salcido (2008) 44 Cal.4th 93, 172.)

2. The Trial Court Did Not Commit Prejudicial Misconduct by Attempting To 

Clarify Witnesses’ Testimony and Control the Pace of the Proceedings

Garcia contends the trial court committed prejudicial misconduct by unnecessarily 

participating in the examination of witnesses. Garcia recounts several examples of the 

court questioning each of the witnesses, primarily during direct examination, and argues 

the court’s repeated intervention suggested it was allied with the prosecution. This claim 

has been forfeited and, in any event, lacks merit.

 

7 Even if only minimally probative, the danger of undue prejudice by admission of 

the testimony was equally minimal. All evidence that tends to prove guilt is damaging or 

prejudicial to the defendant’s case; the “prejudice” referred to in Evidence Code 

section 352 “‘applies to evidence which uniquely tends to evoke an emotional bias 

against the defendant as an individual and which has very little effect on the issues.’” 

(People v. Karis (1988) 46 Cal.3d 612, 638.) Firearm possession today is commonplace. 

Evidence of it does not evoke an inappropriate emotional bias against a defendant as an 

individual.

8 We do not believe it would have been an abuse of discretion to overrule an 

objection to this portion of Elizabeth’s testimony under Evidence Code section 1101, 

subdivision (a). Nor do we believe defense counsel’s failure to request a limiting 

instruction under CALCRIM No. 375 was prejudicial under the Strickland standard. (See 

fn. 7, above.) 
11

a. Law governing judicial misconduct

The due process clause of the Fourteenth Amendment requires a fair trial in a fair 

tribunal before a judge with no actual bias against the defendant or interest in the 

outcome of the case. (See Bracy v. Gramley (1997) 520 U.S. 899, 904-905 [117 S.Ct. 

1793, 138 L.Ed.2d 97].) Judicial misconduct occurs when a trial judge strongly suggests 

to the jury he or she disbelieves the defendant’s case or otherwise favors the prosecution. 

(See Liteky v. United States (1994) 510 U.S. 540, 555-556 [114 S.Ct. 1147, 127 L.Ed.2d 

474]; see People v. Houston (2012) 54 Cal.4th 1186, 1219 [“court commits misconduct if 

it creates the impression that it is denigrating the defense or otherwise allying itself with 

the prosecution”].) To violate a defendant’s right to a fair trial, the judge’s intervention 

must be significant and adverse to a substantial degree. (See McBee v. Grant (6th Cir.

1985) 763 F.2d 811, 818; see also Duckett v. Godinez (9th Cir.1995) 67 F.3d 734, 740.)

In People v. Sturm (2006) 37 Cal.4th 1218 (Sturm) the Supreme Court 

summarized the California standard for judicial misconduct: “‘[T]he court has a duty to 

see that justice is done and to bring out facts relevant to the jury’s determination.’ 

[Citation.] . . . However, ‘a judge should be careful not to throw the weight of his 

judicial position into a case, either for or against the defendant.’ [Citation.] [¶] Trial 

judges ‘should be exceedingly discreet in what they say and do in the presence of a jury 

lest they seem to lean toward or lend their influence to one side or the other.’ [Citation.] 

A trial court commits misconduct if it ‘“persists in making discourteous and disparaging 

remarks to a defendant’s counsel and witnesses and utters frequent comment from which 

the jury may plainly perceive that the testimony of the witnesses is not believed by the 

judge.”’” (Id. at pp. 1237-1238.) 

b. Garcia’s claim has been forfeited

Garcia has forfeited his claim of judicial misconduct because he failed to object on 

this ground during trial. (See Sturm, supra, 37 Cal.4th at p. 1237 [“[a]s a general rule, 

judicial misconduct claims are not preserved for appellate review if no objections were 

made on those grounds at trial”].) Garcia argues any objection would have been futile

and no admonition could have cured the prejudice, thus his claim is cognizable on appeal. 
12

(See ibid. [finding it would have been futile for defendant to object to the judge’s

derogatory comments and objections where it could cause the judge to be more negative 

toward defendant in front of the jury].) Garcia, however, fails to support his contention 

with any reasoned argument. The court did not in its questioning of witnesses display 

hostility, frustration or animus toward defense counsel or the defendant; and there was no

apparent risk that an objection might further anger or frustrate the court reflecting

negatively on the defendant. Indeed, Garcia concedes defense counsel and the trial judge 

had a “long-term professional acquaintance” and defense counsel, who was “professional 

and polite” could have “forthrightly but professionally opposed the court’s appearance of 

favoritism toward the prosecution’s case.” Significantly, Garcia acknowledges “it may 

be that this manner of conducting the trial was the particular style of this particular 

Judge.” These are precisely the circumstances in which an objection is necessary: The 

court was plainly unaware its attempts to facilitate examination and the pace of trial 

might have created a perception of bias. 

c. Even if not forfeited, Garcia’s claim lacks merit

“A trial court has both the discretion and the duty to ask questions of witnesses, 

provided this is done in an effort to elicit material facts or to clarify confusing or unclear 

testimony.” (People v. Cook (2006) 39 Cal.4th 566, 597; see Evid. Code, § 775 [“[t]he 

court, on its own motion or on the motion of any party, may call witnesses and 

interrogate them the same as if they had been produced by a party to the action, and the 

parties may object to the questions asked and the evidence adduced the same as if such 

witnesses were called and examined by an adverse party”]; People v. Carlucci (1979) 

23 Cal.3d 249, 256 [Evid. Code, § 775, a codification of case law, “‘confers upon the trial 

judge the power, discretion and affirmative duty . . . [to] participate in the examination of 

witnesses whenever he [or she] believes that he [or she] may fairly aid 

in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or 

covering omissions, in allowing a witness his [or her] right of explanation, and in

eliciting facts material to a just determination of the cause’”].) 
13

The record demonstrates the court participated in the examination of witnesses to 

clarify confusing testimony and to advance the questioning. Elizabeth was a reluctant 

witness. She was neither forthcoming nor articulate, and the prosecutor struggled to 

establish basic propositions and to refresh her recollection with statements she had made 

to detectives. For example, an inordinate amount of time was spent trying to establish 

Elizabeth’s familiarity with Garcia and Renteria and where they were when she first 

came home the evening Hunter was shot. Finally, the court intervened:

“The Court: . . . The point is that you—these were what, friends of your brothers; 

is that what you thought?

“The Witness: Yeah. They weren’t in my house. They lived around that area, but 

they weren’t in my house.

“The Court: So let’s get to it. So you come home and your brother is there with 

two of his friends?

“The Witness: Yes.

“The Court: All right. Let’s take up from there.”

All of the court’s questions to witnesses were in a similar vein. Renteria and 

Hunter were also reluctant witnesses. The court’s questions simply facilitated the pace of 

the proceedings. If anything, the court’s active engagement reflected poorly on the 

prosecutor’s capabilities and skill; it did not suggest the court favored the prosecution or 

disbelieved the defense. 

Finally, the jury was instructed with CALCRIM No. 3550, “Do not take anything I 

said or did during the trial as an indication of what I think about the facts, the witnesses, 

or what your verdict should be.” The jury is presumed to have followed the trial court’s

instructions, and there is no indication it did not. (People v. Sanchez (2001) 26 Cal.4th 

834, 852.)

3. The Record Should Be Corrected To Reflect the Prior Prison Term Allegation 

Was Not Proved

Although it was specially alleged Garcia had served a separate prior prison term 

for a felony conviction in 2004, at the bifurcated trial on Garcia’s prior convictions the 
14

People introduced no evidence regarding that conviction; and the court made no finding 

and neither imposed nor stayed an additional enhancement pursuant to Penal Code 

section 667.5, subdivision (b). Garcia contends the absence of any evidence in support of 

the special allegation and the court’s failure to address it should be considered an implied 

not true finding. He argues the record should be corrected to reflect that finding. (Cf.

People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1440 [“[w]hen no words are used and 

the trier of fact fails to make a finding the effect is the same as a finding of ‘not true’”].) 

We agree and order the judgment entered on June 27, 2014 to be modified to reflect that 

the special allegation Garcia had served a prior separate prison term for a 2004 felony 

conviction was not proved.

DISPOSITION

The judgment is modified to include a finding that the special allegation Garcia 

had served a prior separate prison term for a 2004 felony conviction was not proved. As 

modified, the judgment is affirmed.

PERLUSS, P. J.

We concur:

ZELON, J.

BLUMENFELD, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.