Filed 2/22/16 P. v. Garcia CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. JONATHEN NATHANIEL GARCIA, Defendant and Appellant. H042102 (Santa Clara County Super. Ct. No. C1226110)

In re JONATHEN NATHANIEL GARCIA, on Habeas Corpus. H042632

I NTRODUCTION The district attorney charged defen dant Jonathe n Nathaniel Garcia and codefendants Bryan Chavez and Jose Luis Lemus with several counts of robbery (Pen. Code, §§ 211 , 212.5, subd. (c) ). 1 Chavez and Lemus entered plea agreements ; however , defendant proceeded with a jury trial. At the conclusion of the trial, t he jury convicted
defendant of eight co unts of robbery

. Defendant was sentenced to 19 years four months in state prison. Defendant claims on appeal that he was denied effective assistance of counsel
when trial c ounsel stipulated to evidence that Chavez and Lemus had pleaded no contest

1 Unspecified statutory references are to the Penal Code.2

to offenses arising out of the incident

. Defendant also raised the same claim in a petition for a writ of habeas corpus, which th is court previously ordered considered with his appeal

. F ACTUAL B ACKGROUND 1. Prosecution ’ s Evidence
On February 14, 2012, around 1:30 p.m., three men entered a Wells Fargo bank
located on Santa T eresa Boulevard in San Jose. At that time, there were eight employees working at the bank. The three men commanded everyone inside the bank to get down on the gr ound. Two of the m en jumped over the teller counter, and they had bank employees unlock cash drawers and put cash into a backpack. After taking the cash, t he two men jumped back over the counter, and all three men left the bank. The men took about $12,000. The robbery wa s caught on surveillance, and the video was played for the jury at trial. At trial, several bank employees testified that the men wore black clothes, black
shoes , and gloves. Two men wore ski masks and one of them wore a “beekeeper” hat,
which covered h is face. Two of the men had guns. At the time of the robbery, Officer Michael Nasser, an off duty police officer for the San Jose Police Department, was sitting in a parking lot about 100 yards from Wells Fargo bank. Officer Nasser saw three people run into the bank. The three individuals were wearing dark clothing and something covering their faces. Officer Nasser believed that these men were going to rob the bank. The officer drove around the bank to see if he could see anything. Approximately 20 seconds later, he saw the three men run out of the
bank. The officer followed the men and lost sight of them as they ran t o the parkin g lot
behind a brick wall. Fifteen second s later, he saw a green Jeep exit the parking lot.
Offi cer Nasser was familiar with that parking lot . He knew that it was fenced in , and he did not see anyone jumping the fences. He also did not see any other pedestrians or other

car s leave the lot. Officer Nasser followed the Jeep and got a license plate number.3

He could see on ly the driver from his view. He later identified the driver as Chavez. The
officer was unable to follow the Jeep , but he saw the Jeep drive toward h ighway 101. He called the police with the license plate number

. Salinas Police Officer Jua n Cruz

- Gonzal ez received a call about the Jeep
and the license plate information. The Jeep was registered to an address on
Homestead in Salinas , which was about 49 miles away from the Wells Fargo bank

. Officer Cruz

- Gonzalez drove to the Homestead address, arriving around 2:26 p.m. The re sidence was a duplex containing two apartments, “A” and “B

. ” The officer saw
th at t h e Jeep was parked next to a partment B. About 15 to 20 minutes later, Officer
Cruz

- Gonzalez saw defendant, Chavez, and Lemus exit a partment B. Def endant and Lemus cradled something in their arms. The three m en walked directly to the Jeep, got in the vehicle, and drove east. Officer Cruz

- Gonzalez contac t ed the other officers in his

team , informing them of what he had observed. H e continued surveil lance of the
Homestead residence after the three men left. He saw several other people go in and out of the residence during this time. There were four other males that were associated with
the Homestead residence. 2 Police officers contacted and investi gated these four other
males

. About one or two minutes after receiv ing the call from Officer Cruz

- Gonzalez,
officers conducted a traffic stop of the Jeep and ordered the three men out of the vehicle.
The officers det ained the three men and executed a search warrant of the Jeep

. The officers found a black backpack behind the cent er console , a black sweatshirt underneath the backpack , and a black pea coat on the rear passenger seat . Inside the backpack, the
officers found $3,959, a loaded Bryco .38 0

- ca liber semiautomatic gun , a green

2 The four other males were: Angel Lopez, age 11; Eduardo Lopez, age 17; Angel Daniel Lopez, age 26; and Jonathan Santoyo, age 20.4

sweatshirt, a green/brownish fisherman’s hat, a gray cloth, gloves, and a black mask. They also found $3,845 in the upper left sleeve of the black sweatshirt. Prior to transporting defendant to the police station, an of ficer searched defendant and found a cash strap in his pocket. The cash strap had “Santa Teresa” written on the side of it. Wells Fargo bank used such straps to bundle a certain amount of currency together. When the bank receives money from the cash vault, typically an employee would stamp the strap with the name of the branch location. The officers also found $255 on defendant’s person.
Officers later executed a search warrant at a partment B of the H omestead residence. During the search of the do wnstairs bathroom , t he officers found a backpack containing a loaded Walther PPK .38 0

- caliber semiautomatic gun , two black ski masks, gloves, and $313. Near the backpack, the officers also found an ident ification card for Chavez, miscellaneous indicia bel onging to Chavez, and a gray sweatshirt with “Ecko Unlimited” on the front of it. San Jose Police Detective Todd Jennings conducted the investigation of the bank robbery. He arrived at Wells Fargo bank 15

- 20 minutes after the robbery occurred. As part of his investigation, Detective Jennings reviewed the surveillance video of the robbery. From the video stills, h e identified Lemus and Chavez as the men jumping the
counter. He noted that Chavez was wearing a gra y sweatshirt with “Ecko Unlimited” on th e front of it . He described the third suspect as wearing “gray Adidas pants with the
three v ertical stripes going down,” a green sweatshirt , “a green/brown fishing hat,” and
white shoes

. The third suspect also had a gun , which he held with his left hand. After defendant’s arrest, Detective Jennings conducted an interview, in which defendant stated
that he was left handed. Defendant also wore white shoes and gray Adidas pants with three vertical stripes at the time of the arrest . The se clothes were similar to those worn by the suspect in the surveillance video.5

2. Defense Evidence
Criminalist Tahnee Nelson Mehmet testified for the defense at trial. She
examined both the Bryco and Walther PPK guns for DNA testing. Mehmet was unable

to draw a conclusion on the DNA profiles from the Bryco gun due to the low level of
DNA results

. With respect to the Walther PPK gun, defendant’s DNA was not on the trigger. The parties stipulated that there were eight fingerprints collected from the two
g uns. One of the prints matched Lemus, and the other prints were not identified.
P ROCEDURAL B ACKGROUND On May 2 3 , 2013, the district attorney charged defendant, Chavez, and Lemus of nine counts of second degree robbery ( § § 211 , 212.5, subd. (c)). The district attorney further alleged that defendant and Chavez personally used a firearm as to each count (§ 12022.53, subd. (b)). Prior to the commencement of trial, the trial court granted the prosecution’s motion to dismiss one count of second degre e robbery (count 8) as to defendant only

. The jury trial commenced on August 11, 2014. On August 20, 2014, the jury found defendant guilty as to eight counts of second degree robbery (counts 1

- 7, 9) and found the firearm allegation true as to all counts

. On February 20, 2015, the trial court sentenced defendant to 19 years four months in state prison.
D ISCUSSION Defendant contends on appeal that his trial counsel rendered ineffective assistance when counsel stipulated that Chavez and Lemus were convic ted of participating in the robbery

. He contends that the stipulation “served no reasonable tactical purpose” and that it strengthened the prosecution’s case about the third robber’s identity. He asserts that he was prejudiced by the stipulation as the o ther evidence against defendant was “far from open and shut. ”6

A. Relevant Background On October 18, 2013, Lemus pleaded no contest to one count of second degree robbery and two counts of false imprisonment. On August 1, 2014, Chavez pleaded no

contest to t wo counts of second degree robbery. Defendant proceeded with a jury trial. Prior to trial, the prosecution requested in a motion in limine that the court take judicial notice of Chavez and Lemus’s no contest pleas

. The prosecution explained that
the c onviction s were relevant to prove defendant’s identity and involvement in the crime. The court took the matter under submission, noting that “ [t] he issue of whether or not there will be a stipulation regarding the decision of the co

- defendant s to plead no contest
in this case is s till pending.” Eventually, o n August 15, 2014, the fifth day of trial, the parties stipulated that Chavez and Lemus were both “ convicted of participating in the robbery at Santa Teresa Wells Fargo

. ” During closing a rgument , the prosecutor told the jury that this case was about the identity of the third robber. The prosecutor stated, “The other undisputed fact s are that
Chavez and Lemus were two of the three people who did it. Both of those men have
been convicted f

or their participation in the Wells Fargo robbery.” The prosecutor further argued : “We know Chavez and Lemus were both
convicted of that robbery. And we know that 61 minutes after the robbery happened, the getaway car was parked unoccupied, and Office r Cruz

- Gonzalez watched it for 15 or 20 minutes before Chavez, Lemus, and the defendant came out of

. . . Apartment B, which tells us that, for 15 to 20 minutes, the defendant was inside of [the Homestead residence]
with the other two robbers so he was wit h them an hour after the robbery happened. And that is one brick in the wall identifying who the third robber is. “And then you also have companionship when they get in the car so they walk straight to the car, Chavez not holding anything, [defendant] c radling something like a football, and Lemus cradling something with two hands. They all get into the same car which is another brick in the wall of identity.”7

Defense counsel stated in his closing argument, “We both agreed before the trial
that Lemus a nd Chavez had been convicted of this crime

. . . . [¶] The question presented by this case is, who was that third man?” Counsel argued that defendant was not identified until later when he left the Homestead residence and got into the Jeep with
Chavez and Lemus . He pointed to the fact that there were m any people associated with
the Homestead residence and that many people were coming in and out of that house.
Counsel asserted , “The fact that [defendant]

. . . got into the [Jeep] doesn’t prove he participa ted in the robbery.”
B. Ineffective Assistance of Counsel
The standard of review for a claim of ineffective assistance of counsel is well
settled. “To prevail on a claim of ineffective assistance of counsel, a defendant ‘ “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” ’ [Citation.] A court must indulge a strong presumption that counsel’ s conduct falls within the wide range of reasonable professional assista nce. ( Strickland v

. Washington (1984) 466 U.S. 668, 689.) Tactical errors are generally not deemed reversible, and counsel’ s decisionmaking must be
evaluated in the context of the available facts. ( Id . at p. 690.) To the extent the record on appeal fai ls to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. ( People v

. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Moreover, prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable pr obability that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ( Strickland v

. Washington , supra , 466 U.S. at p. 694.)” ( People v

. Maury (2003) 30 Cal.4th 342, 389.)8

On the appellate record before us, we are unable to definit iv ely establish why

co unsel chose to stipulate to the codefendants’ plea conviction s, and i t does not appear that counsel was ever asked for an explanation. We note that with his writ petition,
defendant submitted a declaration by trial counsel, in which counse l provided an explanation for the stipulation . However, on appeal we are limited to the evidence in the
record. Where the appellate record is devoi d of an explanation for counsel’ s challenged conduct, “[a] claim of ineffective assistance

. . . is more ap propriately decided in a habeas corpus proceeding.” ( People v

. Mendoza Tello , supra , 15 Cal.4th at pp. 266

- 267.) Accordingly, the judgment is affirmed.
C. Petition for Writ of Habeas Corpus
In the declaration attached to the petition for writ of habeas corpus, trial c ounsel explained that he entered the stipulation for three reasons : (1) T he prosecution had the full record of conviction for Chavez and Lemus and he “did not want [the prosecution] to present these document s as an exhibit for the jury to pour over

. ” (2) T he prosecution threatened to call Chavez to testify against defendant . Additionally, Chavez had made a statement to the police indicating that defendant was the third robber, and since Chavez

was “effectiv ely severed ” from the case , counsel “did not see how [he] could keep this
statement out under the Aranda/Bruton [ 3 ] line of cases.” (3) A ll other testimony involved the actions of the three defendants, “so all of the facts were going to come in through one means or another.”

3 People v

. Aranda (1965) 63 Cal.2d 518; Bruton v

. United States (1968) 391 U.S. 123. “ ‘The Aranda/Bruton rule addresses the situation in which “an out

- of

- court confession of one defendant

. . . incriminates not only that defendant but another defendant jointly charged

. ” [Citation.] “The United States Supreme Court has held that, because jurors cannot be ex pected to ignore one defendant’s confession that is ‘powerfully incriminating’ as to a second defendant when determining the latter’s guilt, admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant. ” ’ ” ( People v

. Combs (2004) 34 Cal.4th 821, 841

. )9

W e acknowledge that genera lly, evidence of a codefendant’s guilty plea or conviction is not admissible to prove gui lt of a defendant. ( People v

. Neely (2009) 176 Cal.App.4th 787, 795.) Nonetheless, “[t]here is no question that a defendant may stipulate to the introduction of evidence to which he might have objected and wh i ch might otherwise be inadmissible.” ( People v
. Torres (1962 ) 201 Cal.App.2d 290, 295.) In this case, counsel was clearly concerned about the risk that other , po ssibly more incriminating , evidence re lating to the codefendants would be presented at trial

. Specifically, counsel was concerned that Chavez would testify against defendant and that prior statements implicating defendant would be admitted into evidence

. Defendant, however, argues that counsel’s fear was unfounded because Chavez was unavailable as a witness to testify, since he had not b een sentenced at the tim e of defendant’s trial and
would thus retain his Fifth Amendment privilege against self

- incrimination

. ( People v

. Fons e ca (1995 ) 36 Cal.App.4th 631, 635.) Regardless of whether Chavez had a Fifth Amendment privile ge against
self

- incrimination, nothing in the record shows that he would have invoked such a privilege at defendant’s trial. In our view, there was a reasonable p ossibility that Chavez

w ould have testified against defendant, especially if he w as offered a benefit from t he prosecution. Furthermore, as defendant was tried separately from his codefendants,
counsel acted reasonably in order to avoid the possibility of Chavez’s incriminating

statements being admitted into evidence. (See People v

. Combs , supra , 34 Cal.4th at
p. 841 [concluding that the Aranda/Bruton rule does not apply where the defendant was separately tried from his or her codefendant ].) Given these concern s , counsel had valid

reasons to opt for the stipulation rather than run the risk of the jury hearing evidence that would have gone beyond the mere plea convictions of the codefendants

. Even if we conclude that trial counsel’s performance was deficient in stipulating to the plea convictions , defe ndant cannot prove prejudice. Notwithstanding the stipulation,

t he evidence substantiated Chavez and Lemus’s participation in the robbery.10

Specifically, Officer Nasser had testified that he saw Chavez as the getaway driver; Chavez’s driver’s license was near the b ackpack containing the two guns ; Lem us’s fingerprints were found on one of the guns; and Detective Jennings had identified the m as the two men who jumped over the bank counter during the robbery

. In light of this
evidence , the stipulation did not likely change the outcome of defendant’s cas e

. Furthermore, the stipulation did not detract from defendant’s theory of the case that he was one of the many people associated with the Homestead residence and that he was merely at the residence with the two codefendants at the wrong time. Therefore, as defendant has not shown a “ reasonable probability ” that counsel’s stipulation would have made a difference in the jury’s verdict, we re ject defendant’s ineffective assistance of
counsel claim

. ( Strickland v

. Washington , supra , 466 U.S. at p. 694. )
D ISPOSITION The judgment is affirmed

. The petition for a writ of habeas corpus is denied.Premo, Acting P.J.

WE CONCUR:

Elia, J.

Grover, J.