Filed 5/30/13 P. v. Garcia CA2/2 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOSE GARCIA, 

 Defendant and Appellant. 

 B234395 

 (Los Angeles County 

 Super. Ct. No. BA303810) 

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

Ronald S. Coen, Judge. Affirmed as modified. 

Jeralyn Keller, 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, Assistant Attorney General, Zee Rodriguez and Roberta L. 

Davis, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * * * * 
2 

 Defendant Jose Garcia appeals from the judgment after his conviction by jury of 

first degree murder in violation of Penal Code section 187, subdivision (a).1 The jury 

found true the special circumstance allegations that the murder was committed during the 

commission of a robbery and a carjacking (§ 190.2, subd. (a)(17)). The jury also found 

true the allegations that defendant personally used a firearm and personally and 

intentionally discharged a firearm which proximately caused great bodily injury and 

death within the meaning of section 12022.53, subdivisions (b), (c) and (d). A different 

jury previously convicted defendant of unlawful firearm activity pursuant to 

section 12021, subdivision (d)(1).2

 The trial court sentenced defendant to life in prison without the possibility of 

parole for first degree murder. For the firearm enhancements, it imposed a consecutive 

term of 25 years to life (§ 12022.53, subd. (d)), and also imposed and stayed 20-year and 

10-year terms (§ 12022.53, subds. (c) & (b) respectively). For the unlawful firearm 

activity, the trial court imposed the upper term of three years to run concurrently with the 

first degree murder sentence. The court imposed various fines and fees including a court 

security fee of $40 per count for a total of $80. 

 Defendant contends the trial court improperly relied on an element of the offense 

(defendant’s probation status), to impose the upper term on the unlawful firearm activity 

conviction. He also contends the sentence of life without the possibility of parole is cruel 

and unusual punishment under both state and federal law. We modify the judgment to 

reduce the total security fee to $60, but otherwise affirm. 

FACTS 

 1. Procedural background 

The underlying proceeding involved three trials. The first jury deadlocked on both 

counts and the court declared a mistrial. The second jury found defendant guilty of 

 

1 All further statutory references are to the Penal Code unless otherwise indicated. 

2 In January 2012, this section was renumbered as section 29815. 
3 

unlawful firearm activity but deadlocked on whether defendant was guilty of first degree 

murder, and a mistrial was declared as to that count.3 The third jury found defendant 

guilty of first degree murder and found the firearm and special circumstance allegations 

to be true. 

 2. Prosecution evidence4

 On January 17, 2006, Emilio Isaac Huesca was driving a red Cadillac owned by 

his friend, Armando Arias, in the City of Los Angeles, with Arias as a passenger. The 

Cadillac was equipped with various electronics including television screens mounted on 

the back of the front seat headrests, and a PlayStation. At approximately 11:45 p.m., 

Detective Kelle Baitx of the Los Angeles Police Department responded to a shooting call 

and found Arias in an alley behind his house. Arias had been shot several times and was 

on his knees facing the wall. His upper body was leaning against the wall. The red 

Cadillac was gone. Detective Baitx found a single bullet on the ground and it was 

booked into evidence and submitted for testing. 

 Detective Tommy Thompson interviewed Huesca and testified that Huesca told 

him that two people in a car blocked the Cadillac in the alley.5 Surveillance video 

cameras were located at a Laundromat across the street from the alley but did not capture 

the shooting. A video time stamped at 11:30 p.m. showed a car similar to defendant’s 

mother’s Acura, circle the area and then back up into the alley. 

 Dr. Stephen Scholtz, a deputy medical examiner in the Los Angeles County 

Coroner’s Office and a forensic pathologist conducted an autopsy on Arias’s body, which 

had 12 entry wounds located on the back of the body. One entry wound was in the head 

 

3 The jury was deadlocked with 11 votes for guilty and one vote for not guilty. 

4 In the second trial, in which the jury found defendant guilty of unlawful firearm 

activity, the parties stipulated that prior to January 17, 2006, a court ordered defendant 

not to possess a firearm. The facts relevant to the issues on appeal are taken from the 

third trial. 

5 Huesca did not testify and at the time of trial his whereabouts were unknown. 
4 

by the right ear and the majority were located in the lower back of the torso. The 

gunshots damaged Arias’s internal organs and three of the wounds were fatal. The cause 

of death was multiple gunshot wounds and the downward trajectory of the bullets was 

consistent with the victim being shot from behind, as he knelt on the ground. Dr. Scholtz 

recovered four medium caliber bullets from Arias’s body during the autopsy. 

 Los Angeles Police Department Officer Genaro Arredondo, a firearms expert, 

conducted forensic testing on the expended bullet found at the shooting scene and those 

recovered by Dr. Scholtz. All five bullets were of the same general caliber and were fired 

from either a nine-millimeter, .38-caliber, or .357-caliber gun. Two of the bullets 

recovered from Arias’s body were fired from a single gun. The other three bullets were 

extensively damaged and Officer Arredondo could not definitively establish that they 

were also fired from the same gun. 

 At about 3:00 p.m. on January 18, Rolando Gavidia saw a large flatbed tow truck 

dropping off a red Cadillac on the street outside his house. Gavidia saw his neighbor, 

Russell Garcia, speak with two young men in a white Explorer that accompanied the tow 

truck. One of the young men was later identified as Ramon Garcia, Russell’s son.6 

Gavidia’s son called the police to report the presence of the red Cadillac. All electronic 

equipment including the stereo and headrest television screens had been removed from 

the Cadillac. 

 Detective Thompson interviewed Ramon at a juvenile camp. Defendant paid 

Ramon and Luis Flores to dispose of the stolen Cadillac. The car battery did not work 

when the electronic equipment was removed so defendant arranged for the Cadillac to be 

transported to Russell’s house. Ramon identified defendant by his distinctive gang 

tattoos and street moniker. 

 Defendant was arrested on June 1, 2006, and advised of his constitutional rights. 

The detectives told defendant the entire shooting was captured on video. Initially, 

 

6 We refer to Russell Garcia and his son Ramon Garcia by their first names to avoid 

confusion, not out of disrespect. They are not related to defendant. 
5 

defendant did not talk to the detectives but when walking toward the booking area at the 

police station he told Detective Thompson that he thought the Cadillac belonged to 

Huesca. He had been in the Cadillac with Huesca in the past and about two weeks before 

the shooting followed him with the intention of stealing the car and selling the 

electronics. Detective Thompson took defendant aside when he started to provide 

additional details of the shooting and recorded the conversation.7 On the day of the 

shooting, defendant saw Huesca driving the Cadillac and followed the car to the alley. 

He used his mother’s Acura to block the Cadillac from leaving the alley. He ordered 

Arias and Huesca out of the car and told them to face the wall and not to look at him. 

Arias “kept fidgeting” and defendant shot him with a .38-caliber gun. He took the 

Cadillac to his mother’s house and removed all of the electronic equipment. He asked his 

friends Ramon and Flores to help dispose of the Cadillac and told them it was stolen, but 

“not that hot.” Defendant paid for a tow truck to move the Cadillac because the battery 

stopped working. Defendant said he disposed of the gun but would not disclose the 

location. He also refused to identify the individual that drove his mother’s Acura away 

from the crime scene. At the end of the interview, defendant was told he was allowed to 

make a telephone call. 

 Defendant’s cell had a telephone and a monitoring device and defendant’s side of 

the conversation was recorded when he made a call.8 Defendant said, “Shit they got me 

motherfucker. For the murder. They got me for murder. . . . They got me on video and 

they fuckin.’ They got me driving and shit.” In Spanish, defendant said, “they have 

everything, dude, they have everything.” 

 

7 A compact disc containing an audio recording of the interview was played for the 

jury and, along with a transcript, was admitted into evidence. 

8 A compact disc containing an audio recording of defendant’s portion of the 

conversation was played for the jury and, along with a transcript, was admitted into 

evidence. 
6 

DISCUSSION 

I. Dual Use Doctrine 

Defendant claims that the trial court violated California Rules of Court, 

rule 4.420(d),9 known as the dual use doctrine, by using a factor that was an element of 

the crime of unlawful firearm activity (§ 12021, subd. (d)(1))10 to justify imposing the 

upper term for the same crime. The People respond that defendant has forfeited any 

challenge to his sentence on this basis because he failed to object in the lower court to the 

court’s imposing the aggravated term. 

 The Supreme Court, in People v. Scott (1994) 9 Cal.4th 331, held “that the waiver 

doctrine should apply to claims involving the trial court’s failure to properly make or 

articulate its discretionary sentencing choices. Included in this category are cases in 

which the stated reasons allegedly do not apply to the particular case, and cases in which 

the court purportedly erred because it double-counted a particular sentencing factor, 

misweighed the various factors, or failed to state any reasons or give a sufficient number 

of valid reasons.” (Id. at p. 353.) The court concluded, “In sum, we hold that complaints 

about the manner in which the trial court exercises its sentencing discretion and 

articulates its supporting reasons cannot be raised for the first time on appeal.” (Id. at 

p. 356.) 

 In the instant case, defendant had an opportunity to do so but did not interpose an 

objection at the sentencing hearing or argue that the trial court’s consideration of his 

probation status was improper or somehow constituted an impermissible dual use of 

 

9 California Rules of Court, rule 4.420(d) provides: “A fact that is an element of the 

crime upon which punishment is being imposed may not be used to impose a greater 

term.” 

10 In January 2006, when defendant committed the offenses herein, section 12021, 

subdivision (d)(1) stated in relevant part: “Any person who, as an express condition of 

probation, is prohibited or restricted from owning, possessing, controlling, receiving, or 

purchasing a firearm and who owns, purchases, receives, or has in his or her possession 

or under custody or control, any firearm . . . is guilty of a public offense . . . .” 
7 

facts. We therefore conclude that his appellate challenge to the trial court’s sentencing 

choices and supporting rationale must be deemed waived. 

II. Constitutionality of Defendant’s Life Without Parole Sentence 

Defendant contends that his sentence of life without the possibility of parole 

violates the Eighth Amendment’s and the State Constitution’s proscriptions against cruel 

and unusual punishment because it was grossly disproportionate.11 We find this 

argument unavailing. 

 First, defendant failed to raise this contention in the trial court and therefore 

forfeited the issue on appeal. Nevertheless, to forestall a subsequent ineffectiveness of 

counsel claim and in the interest of judicial economy, we consider the issue. (People v. 

Norman (2003) 109 Cal.App.4th 221, 230.) 

 Under the Eighth Amendment of the federal Constitution, we must assess three 

factors to determine whether a sentence is disproportionate to the offense: (1) the gravity 

of the offense and the harshness of the penalty; (2) sentences imposed for other crimes in 

the same jurisdiction; and (3) sentences imposed for the same crime in other jurisdictions. 

(Ewing v. California (2003) 538 U.S. 11, 22.) Defendant makes no attempt to present an 

intrastate comparison of sentences for other crimes or an interstate comparison of 

sentences for the same crime. His argument fails on this basis alone. 

 Under the California Constitution, we assess whether a punishment “shocks the 

conscience and offends fundamental notions of human dignity” based on a number of 

factors, including: (1) the nature of the offense and/or the offender; (2) a comparison of 

the sentence with punishments prescribed in California for different offenses; and (3) a 

comparison of the challenged sentence with punishments prescribed for the same offense 

in other jurisdictions. (In re Lynch (1972) 8 Cal.3d 410, 424.) We reject defendant’s 

 

11 “Cruel or unusual punishment may not be inflicted or excessive fines imposed.” 

(Cal. Const., art. I, § 17.) “Excessive bail shall not be required, nor excessive fines 

imposed, nor cruel and unusual punishments inflicted.” (U.S. Const., 8th Amend.) 
8 

claim of disproportionality under the California Constitution for the same reason that we 

reject his federal claim—he has failed to offer any inter- and intrastate comparisons. 

People v. Dillon (1983) 34 Cal.3d 441 (Dillon), on which defendant relies, holds 

that murder committed in the commission of a robbery is a serious crime presenting a 

high level of danger to society. In that case, however, our Supreme Court concluded the 

facts of the specific crime in question and the defendant’s culpability weighed in favor of 

concluding the imposition of a life sentence constituted cruel or unusual punishment. (Id.

at pp. 488–489.) The particular facts of Dillon were central to our Supreme Court’s 

conclusion. The shooting in Dillon occurred during an attempt to steal marijuana plants 

the victim was cultivating. (Id. at pp. 451–452.) The defendant had previously overheard 

the victim threaten to shoot anyone coming on his property. (Id. at p. 451.) An 

accidental firearm discharge during the attempted robbery alerted the victim to the 

presence of the defendant and his cohorts. (Id. at p. 452.) The defendant heard the 

victim approaching, saw him carrying a shotgun, and, “[w]hen [the victim] drew near, 

defendant began rapidly firing his rifle at him.” (Ibid.) The facts in Dillon contrast 

dramatically with the carjacking, robbery and murder of Arias. 

 Defendant had a prior criminal history and was on probation at the time of the 

murder. Defendant chose to take the Cadillac while it was being driven, thereby 

guaranteeing a confrontation with the owner. He carefully planned the carjacking having 

followed Huesca some two weeks earlier. Defendant chose to force Arias and Huesca to 

kneel by the wall when they exited the Cadillac and did not leave immediately with the 

Cadillac. When Arias “fidgeted,” defendant shot him in the back and head 12 times. He 

then stripped the Cadillac of its electronic components and made plans with his friends to 

dispose of it. Defendant showed no remorse in his statements to police or at sentencing. 

Defendant contends that his sentence constitutes cruel and unusual punishment 

because he was “barely more than a child himself” when the shooting occurred. 

Defendant was 18 years old, and, under these circumstances, we find the factor of 

defendant’s age was “substantially outweighed by the seriousness of the crime and the 
9 

circumstances surrounding its commission . . . .” (People v. Gonzales (2001) 87 

Cal.App.4th 1, 17.) Successful challenges to sentences on the grounds of cruel and 

unusual punishment are rare. (In re Nuñez (2009) 173 Cal.App.4th 709, 734, 735.) This 

is not one of the rare cases in which the sentence imposed should be reduced as cruel and 

unusual. 

III. Court Security Fee 

 Defendant argues, and the People concede, that the trial court improperly imposed 

a total security fee of $80, pursuant to section 1465.8, subdivision (a)(1). At the time of 

defendant’s conviction on count 2, on October 27, 2008, former section 1465.8, 

subdivision (a)(1) provided: “To ensure and maintain adequate funding for court 

security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal 

offense . . . .” As of October 19, 2010, the security fee was increased to $40. (§ 1465.8, 

subd. (a)(1), as amended by Stats. 2010, ch. 720, § 33.) Because the $40 security fee was 

unauthorized at the time defendant was convicted of count 2, we will correct the 

judgment. (See People v. Davis (2010) 185 Cal.App.4th 998, 1000 [new court facilities 

fee imposed by Gov. Code, § 70373 does not apply to cases in which the defendant’s 

conviction was rendered before effective date]; People v. Alford (2007) 42 Cal.4th 749, 

754 [§ 1465.8’s “legislative history supports the conclusion the Legislature intended to 

impose the court security fee to all convictions after its operative date”].) 
10 

DISPOSITION 

The judgment is modified to reduce the section 1465.8 court security fee from $80 

to $60 for the reasons stated herein. The trial court is directed to send a corrected abstract 

of judgment to the Department of Corrections and Rehabilitation reflecting the 

modification in the amount of the court security fee. In all other respects, the judgment is 

affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

_____________________, J. *

 FERNS 

We concur: 

____________________________, Acting P. J. 

 ASHMANN-GERST 

____________________________, J. 

 CHAVEZ 

 

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

article VI, section 6 of the California Constitution.