2018 UT App 30

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

YESHA ANTHONY GARCIA,

Appellant.

Opinion

No. 20140203-CA

Filed February 23, 2018

Third District Court, Salt Lake Department

The Honorable Robin W. Reese

No. 101904923

John B. Plimpton and Teresa L. Welch, Attorneys

for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGES GREGORY K. ORME and KATE A. TOOMEY concurred.

CHRISTIANSEN, Judge:

¶1 This case is before us on remand from the Utah Supreme 

Court.1 See generally State v. Garcia (Garcia II), 2017 UT 53, rev’g in 

part and aff’g in part, State v. Garcia (Garcia I), 2016 UT App 59, 370 

 

1. The supreme court’s opinion did not contain an explicit 

remand instruction. After that opinion was issued, counsel for 

Garcia indicated to the clerk of the supreme court that further 

issues existed requiring remittitur to this court. The clerk 

remitted the case to us, with the direction to “address any 

potential independent grounds for decision that were properly 

raised on appeal but that have not yet been addressed.”
State v. Garcia

20140203-CA 2 2018 UT App 30

P.3d 970. As relevant here, Yesha Anthony Garcia appealed his 

conviction for attempted murder, arguing that his constitutional 

right to the effective assistance of counsel had been violated

when his counsel failed to object to an error-ridden jury 

instruction regarding imperfect self-defense, see Garcia I, 2016 UT 

App 59, ¶¶ 10–16 & n.5, and failed to request a jury instruction 

explaining that arson and aggravated arson are forcible felonies

that Garcia was entitled to use deadly force to defend against, see 

id. ¶ 26 n.7. 

¶2 We concluded that approving the errors in the imperfect 

self-defense instruction, including the misplaced burden of 

proof, amounted to ineffective assistance of counsel; we 

therefore vacated Garcia’s conviction for attempted murder. Id.

¶ 26. Because we vacated Garcia’s conviction on this basis, we 

did not address his arson-instruction contention. See id. ¶ 26 n.7.

We also expressed skepticism as to whether Garcia was entitled 

to an imperfect self-defense instruction under the facts of the 

case, id. ¶ 16 n.4, but noted that Garcia’s counsel, the State, and 

the trial court had all agreed that he was so entitled, id. ¶ 25.

¶3 The Utah Supreme Court reversed, concluding that 

Garcia had not been prejudiced by the erroneous instruction 

regarding imperfect self-defense. Garcia II, 2017 UT 53, ¶ 48. The 

supreme court highlighted Garcia’s statements to police and his 

trial testimony and concluded that “[t]he evidence that Garcia 

pulled the trigger out of a desire to kill [the victim] overpowers 

any evidence that he acted on a reasonable but erroneous belief 

that he was defending himself.” Id. ¶ 47. The supreme court

therefore held that no prejudice arose from counsel’s failure to 

request a correct imperfect self-defense instruction. Id.

¶4 We now address the question we did not reach in 

Garcia I—whether Garcia received ineffective assistance of 

counsel when his counsel did not seek to have the jury 

instructed that arson and aggravated arson were forcible felonies

for purposes of an imperfect self-defense claim. “To succeed on a 

claim of ineffective assistance of counsel, a defendant must show 
State v. Garcia

20140203-CA 3 2018 UT App 30

that trial counsel’s performance was deficient and that the 

defendant was prejudiced thereby.” State v. Hards, 2015 UT App 

42, ¶ 18, 345 P.3d 769.

¶5 Garcia’s contention revolves around the imperfect 

self-defense instruction given to the jury. Imperfect self-defense

would have applied here if the jury had determined that Garcia

had acted “under a reasonable belief that the circumstances 

provided a legal justification or excuse for the conduct although 

the conduct was not legally justifiable or excusable under the 

existing circumstances.” See Utah Code Ann. § 76-5-203(4)(a)

(LexisNexis 2012). Garcia argues that his counsel was not 

effective because counsel did not ensure that the jury understood 

that defending against the threat of arson or aggravated arson 

would have justified shooting at the victims.

¶6 However, this argument is foreclosed by the supreme 

court’s conclusion that Garcia did not suffer prejudice from

other defects in the imperfect self-defense instruction given at 

trial. The supreme court determined that the evidence that 

Garcia “was motivated by a desire to kill [the victim] 

overwhelmed the evidence that Garcia acted in imperfect 

self-defense.” Garcia II, 2017 UT 54, ¶ 45. Therefore, no prejudice 

resulted when the imperfect self-defense instruction misstated 

the law in several ways. Id. ¶ 48. A jury instruction defining and 

explaining that arson and aggravated arson were forcible 

felonies would merely have clarified an arguably vague term of 

the imperfect self-defense instruction, i.e., what crimes, as 

perceived by Garcia, could have given him a legal justification

for shooting at the victim. Because Garcia was not prejudiced by

the erroneous imperfect self-defense instruction actually given to 

the jury, see id., no prejudice could have resulted from an alleged 

ambiguity in that instruction that a more definite arson 

instruction would have cured. 

¶7 We also reject Garcia’s cumulative-error claim. Given the 

supreme court’s conclusion that Garcia did not suffer prejudice 

from the erroneous imperfect self-defense instruction, we do not 
State v. Garcia

20140203-CA 4 2018 UT App 30

see any greater risk of prejudice from an ambiguity in that 

instruction. See ConocoPhillips Co. v. Utah Dep’t of Transp., 2017 

UT App 68, ¶ 30, 397 P.3d 772 (“Our confidence [in the fairness 

of a verdict] is more likely to be shaken when the errors work 

together in a pernicious manner so as to cause more prejudice 

than the mere sum of the individual errors.”).

¶8 Affirmed.