Filed 6/9/16 P. v. Garcia CA4/3

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOHNNY GARCIA,

 Defendant and Appellant.

 G052531

 (Super. Ct. No. 14CF0026)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

David A. Hoffer, Judge. Affirmed.

Jason L. Jones, under appointment by the Court of Appeal, for Defendant 

and Appellant.

No appearance for Plaintiff and Respondent.

* * *
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Defendant Johnny Garcia was convicted of 14 criminal charges. He was 

sentenced to a total of 18 years eight months in prison.

We appointed counsel to represent defendant on appeal. Appointed counsel 

filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. 

California (1967) 386 U.S. 738 (Anders), setting forth the facts of the case, raising no 

issues, and requesting that we independently review the entire record. We provided 

defendant 30 days to file written argument on his own behalf; that time has passed and no 

supplemental brief has been filed.

We have examined the entire record and appointed appellate counsel’s 

Wende/Anders brief; we find no reasonably arguable issue. (Wende, supra, 25 Cal.3d 

436.) We therefore affirm.

BACKGROUND

On October 8, 2013, Elaine Aguero, defendant’s girlfriend, went to the 

emergency room with a broken nose and facial lacerations. She initially told a nurse that

she had been attacked by one Hispanic girl. When questioned by a police officer, Aguero 

stated defendant had punched her in the nose during an argument. At trial, Aguero 

reverted to the first story about being attacked by a girl, and claimed she had told the 

police officer the other story to avoid being arrested herself and to get back at defendant, 

with whom she was angry.

On December 23, 2013, Aguero was in the passenger seat of a friend’s car, 

when the friend began to argue with the driver of a minivan parked nearby. The driver of 

the minivan drove into the driver’s side door of the car, then struck a wall. Aguero told 

the responding police officer that defendant was the driver of the minivan; at trial, she 

claimed she was not able to identify the driver. (The minivan had been stolen 12 days 

before this incident.)
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Defendant’s aunt had borrowed a red Dodge Ram pickup truck from a 

friend. About 6:45 a.m. on December 31, 2013, she noticed the truck was missing. That 

same day, Aguero saw defendant in a red Dodge Ram pickup truck outside a friend’s 

house. Aguero recognized the truck as the one defendant’s aunt had been using.

The next day, around 3:00 p.m., Aguero called 911, stating defendant was 

trying to enter her home; Aguero’s mother, grandmother, and daughters were all in the 

home at the time. During the 911 call, Aguero told the dispatcher her ex-boyfriend was 

threatening to beat her, and said, “he’s done that before. He just came in the house, and 

I’m really, really scared.” Aguero screamed, “he’s opening the door. He’s opening the 

door”; “oh, my God”; and “he’s going to kill me.” Aguero initially told the dispatcher 

the door was locked, but then said, “no, he came in. He’s inside the home. He’s inside 

the house. The window was open, and he came in so I ran into my mom’s room. And 

I’m locked in my mom’s room, but he’s trying to break in.” Aguero also told the 

dispatcher, “nobody wants him here. He just always does this. I’ve had incidents with 

him. He’s tried running me over like literally a few weeks ago.” At trial, Aguero 

testified she had let defendant into the house to get some of his property. After defendant 

had left, Aguero discovered her backpack and an iron were gone and her purse had been 

emptied and money had been taken from it.

Defendant returned to Aguero’s house about midnight, and contacted her 

through her bedroom window. Both defendant and Aguero were yelling, and defendant

threw something at the window and broke it. Defendant was arrested and released on 

bond subject to a protective order prohibiting him from contacting Aguero.

Following defendant’s preliminary hearing, Aguero sent a text message to 

defendant’s brother, in which she stated she had lied in court for defendant, and 

complained that defendant was not sorry for breaking Aguero’s nose or trying to run her 

over.
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The day after defendant was released from jail, Aguero called the police 

and reported defendant had come to her house, and had left after they argued through the 

screen door. Aguero told the police that defendant “didn’t do anything this time,” but 

had shown her that he had removed his GPS ankle bracelet.

Around 7:45 a.m. on March 5, 2014, the owner of a black Hyundai Accent 

noticed the car was missing. The owner later received a citation in the mail with a 

photograph dated March 5; the photograph showed defendant driving the car.

On March 6, Aguero saw a black car behind her after she had dropped off 

her children at school. When the car honked at her, she noticed defendant was driving it. 

Defendant followed Aguero to her friend’s house. Defendant and Aguero argued outside 

the house, and Aguero told defendant to leave her alone. Aguero called the police and 

told the responding officer that defendant had pulled her hair and bit her on the shoulder

when she walked away; at trial, she testified she simply walked away.

Defendant was charged in an information with assault with force likely to 

produce great bodily injury (Pen. Code, § 245, subd. (a)(4)); two counts of aggravated 

assault (id., § 245, subd. (a)(1)); three counts of unlawful taking of a vehicle (Veh. Code, 

§ 10851, subd. (a)); hit and run with property damage (id., § 20002, subd. (a)); first 

degree residential burglary of an inhabited dwelling (Pen. Code, §§ 459, 460, subd. (a)); 

petty theft (id., §§ 484, subd. (a), 488); vandalism under $400 (id., § 594, subds. (a) & 

(b)(2)(A)); domestic battery causing injury with a prior conviction for violence (id., 

§ 273.5, subds. (a) & (f)(1)); receipt of stolen property (id., § 496d, subd. (a)); and two 

counts of violation of a protective order (id., § 166, subd. (c)(1)). The information 

alleged that a nonaccomplice was present during the residential burglary (Pen. Code, 

§ 667.5, subd. (c)(21)); that as to three of the charges, defendant committed the crime 

while on bail (id., § 12022.1, subd. (b)); that defendant personally inflicted great bodily 

injury (id., § 12022.7, subd. (e)); and that defendant had suffered three prior prison terms

(id., § 667.5, subd. (b)). A jury found defendant guilty of all charges, and found true the 
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allegations that he personally inflicted great bodily injury and that a nonaccomplice was 

present during the burglary. Defendant’s motion for a new trial was denied.

In a bifurcated bench trial, the trial court found true the out-on-bail 

enhancement allegations and two of the prior prison term conviction enhancement

allegations (the third was dismissed on the People’s motion).

The trial court sentenced defendant to a total prison term of 18 years eight 

months. Defendant filed a timely notice of appeal.

ANALYSIS OF POTENTIAL ISSUES

Appellate counsel suggests three legal issues for our review. First, we 

consider whether the audiotapes of the 911 calls were properly admitted over defendant’s 

trial counsel’s objection. An audiotape of a victim’s 911 call is admissible hearsay. A

statement to a 911 operator is an excited utterance pursuant to Evidence Code 

section 1240, and under Crawford v. Washington (2004) 541 U.S. 36, 68, it is 

nontestimonial and therefore its admission does not violate a defendant’s constitutional 

rights. (See People v. Byron (2009) 170 Cal.App.4th 657, 675-676.)

Second, we consider whether the prosecutor committed prejudicial 

misconduct when, during closing argument, she argued that domestic violence victims 

often recant their claims, despite the lack of any such evidence at trial. We need not 

address the merits of this argument because defendant’s trial counsel did not object to the 

argument. “‘As a general rule a defendant may not complain on appeal of prosecutorial 

misconduct unless in a timely fashion—and on the same ground—the defendant made an 

assignment of misconduct and requested that the jury be admonished to disregard the 

impropriety.’” (People v. Hill (1998) 17 Cal.4th 800, 820.) 

Finally, we consider whether defendant’s motion for a new trial was 

properly denied. The only ground for the motion was the discovery of witnesses whose 

testimony was not presented at trial. “When a verdict has been rendered or a finding 
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made against the defendant, the court may, upon his application, grant a new trial, in the 

following cases only: [¶] . . . [¶] . . . When new evidence is discovered material to the 

defendant, and which he could not, with reasonable diligence, have discovered and 

produced at the trial.” (Pen. Code, § 1181, subd. 8, italics added.) However, all of the 

witnesses “discovered” were known to defendant and could, with reasonable diligence, 

have been produced at trial. The trial court did not err in denying the motion for a new 

trial.

Our review of the record pursuant to Wende, supra, 25 Cal.3d 436, and 

Anders, supra, 386 U.S. 738, including the possible issues suggested by defendant’s 

appellate counsel, has disclosed no reasonably arguable appellate issue. Competent 

counsel has represented defendant in this appeal.

DISPOSITION

The judgment is affirmed.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

BEDSWORTH, J.