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I thought the judge’s bias against me (and John) was clearly evident when she initially ruled that DDA Kim could play numerous excerpts from the audiotape of Det. Sellers’ interrogation, but at the same time deny me the opportunity to play the entire recording so the jury could judge those statements within their proper context. Kim’s excerpts, of course, largely consisted of John admitting to shooting the purported victims, bringing the gun, etc. But I wanted the jury to hear the entire audiotape so they could hear for themselves how biased Sellers was against John via his refusing to get John’s side of the events.
By the way, when I skewered the detective on cross, including by confronting him about the fact that it’s supposed to be his job to inquire into all the possible facts, and not just those that would support a murder prosecution, all he could do was hem and haw and sputter some nonsensical and transparently bullshit explanation. He was also extremely condescending and evasive, constantly avoiding my questions to look directly at the jury and “cop-splain” them in a convoluted manner about how detectives are supposed to operate. I repeatedly had to ask the judge to force him to answer the question directly.
The jury could barely conceal their disdain for him. So when he finally limped like a beaten man off the stand, it brought to mind how he liked when he first took the stand: confident, chest out, chin up, shoulders squared back, ready to do battle with me. Whereas he initially semi-glared, semi-smirked at me whenever I saw him in court or in the hallway before his cross, thereafter he wouldn’t even make eye contact with me.
I find that many of these bad detectives (and many cops & deputies) are simply egotistical bullies who are invariably movie-star macho and misogynistic. So when you get one of these bullies, you need to beat them down, using your own superior intellect and their own professional shortcomings and egos against them. And with Sellers, I gave him what I like to call a “Folsom Prison-style beat down”. I would be lying if I didn’t say I enjoyed every moment of it.
Or as my old friend, employer, and quasi-mentor J. Tony Serra, famous San Francisco-based civil rights attorney, once told me when I was interning for him in San Francisco, “You never feel as alive as you do when you’re in trial.” See: latimes.com.
Besides that, I would strongly suggest to all young attorneys to push hard for trial on every single case – which is the best professional advice I’d ever received (from my first supervisor at the Los Angeles County Public Defender’s Office. Always go on the attack, and never stop attacking the prosecutor. Keep them on the ropes the entire time and bury them in motions (though certainly not meritless or frivolous motions, which will come back to haunt you and rightfully earn the enmity of the judge – not that I need to do so to earn John’s judge’s loathing). Everything has to be legit, though – you can’t be bluffing when you announce “ready for trial” to the judge; you need to see some of these cases all the way through jury trial. Otherwise, your opponents will know you’re bluffing. But if your reputation is that of someone who is more than willing to go trial, then the chances of your client getting an outstanding plea deal (typically just before trial commences) will skyrocket.
Anyways, I was forced to prepare a motion that sets forth California’s “Rule of Completeness”, which requires that when one party wants to play excerpts from any type of recording, the opposing party is automatically entitled to play the entire recording for the jury. See: law.cornell.edu. Although the judge finally agreed with me, I was irritated that the judge had forced me to write a motion based on black-letter law (i.e., basic law that every judge should know).
Miguel Rea told the first Long Beach Police Department officers at the scene that he had not heard the first gunshot and only saw Victor on the ground a moment later. However, Miguel contradicted himself later that night when he was interviewed by a detective, whom he told that he actually saw Victor fall to the ground (though, again, without hearing the first gunshot).
In fact, both Miguel and fellow prosecution witness Ramon Chavarria both – independently – told police that neither of them had heard the first shot, despite standing only a few feet away from Victor and John. They would both testify to the same at trial. But I punched big holes in their claims by having them state exactly where they were when they heard the first shot was fired. They both directly contradicted each other, as well as the testimony of Victor Garcia, as far as where everyone was situated at that time.
In the end, it appeared (and not just to me) that in the few minutes before police had arrived after the 9-1-1 call, that Miguel and Ramon agreed to say that John shot Victor and his wife Susan Garcia without provocation, much less in self-defense. By doing so, they would be able to protect their 15-year-long friend, by ensure John went to prison for murder (California Penal Code section 188).
See, by claiming that they didn’t hear the first shot, they could then obviously claim that they didn’t see exactly was going on at the time of the first shot – i.e., John defending himself against Victor attacking John with a dangerous metal object. But the jury saw through all that.
On January 13, 2017, John was formally charged by the Los Angeles County District Attorney’s Office with the following felonies:
Count One: First-Degree Murder (California Penal Code section 190) or Second-Degree Murder (California Penal Code section 192(a)&(b)) (for the killing of Susan Garcia). A conviction for First-Degree Murder would result in a potential lifetime prison sentence (specifically, 25 years to life with potential parole — California Penal Code section 190). A Second-Degree Murder conviction would typically result in a 15-years-to-life prison term — (15 years to life with possible parole) (California Penal Code section 190.05(a)).
Count Two: Deliberate and Premeditated Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664: https://codes.findlaw.com/ca/penal-code/pen-sect-664.html) & California Penal Code section 187(a): https://codes.findlaw.com/ca/penal-code/pen-sect-187.html) (for the shooting of Victor Garcia). If the jury found John guilty of deliberate and premeditated Attempted Murder, then he could face a potential life sentence.
Count Three: Attempted Murder (for the allegedly attempted shooting of the Garcias’ young child, Ray Garcia). Same potential sentence.
Count Four (which was actually added a few months before trial started): Felony Child Endangerment (California Penal Code section 273a) (for the danger posed to Ray Garcia, posed by the shooting of Susan Garcia). Under these circumstances, John would likely face an additional four-year prison term upon conviction for this charge.
Specifically, John was charged with a special allegation of personally using a firearm pursuant to Penal Code section 12022.53. This could add either ten or 20 years to his underlying sentences.
Specifically, California Penal Code § 12022.53 states:
(a) This section applies to the following felonies:
(1) Section 187 (murder). …
(b) [A]ny person who, in the commission of a felony specified in subdivision (a), personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. …
(c) [A]ny person who, in the commission of a felony specified in subdivision (a), personally and intentionally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years.
Under Pen. Code § 12022.53(b) & (c), John faced a potential ten-year or 20-year sentencing enhancement for personal using or personally and intentionally firing a gun, respectively, for the shootings of Victor and Susan. Thus, in addition to 15 years to life for any of those convictions (with the possibility of parole), he faced a potential consecutive decade- or two-decade long term for the enhancement for each charge.
On October 25, 2021, John’s trial finally commenced – more than four years and ten months after the incident. By the way, in case any of you were wondering, John proved to be a model prisoner while stewing in the Los Angeles County Men’s Jail. In fact, he was so well liked by jail guards (who are all LASD deputies), as well as by his fellow prisoners, that he was made a trustee. As such, he was given special privileges – the deputies would even bring extra food from their own lunches for John. John is such an all-around nice, gentle, and humble person, that it’s hard to dislike him.
Interestingly, I could tell how I was doing at trial in part by the demeanor of the courtroom bailiffs (who are also armed and uniformed sheriff’s deputies) towards John. During the prosecution’s “case-in-chief”, they stood close by him, and even directly behind him as he sat next to me at the defense table, as if they were ready to pounce on him if he even flinched. And at the end of each trial day, these deputies would firmly slap him back into handcuffs for the ride back to jail.
But after John finished testifying, and everything finally fell into place for the jury (i.e., that John had been legitimately defended himself against Victor and Miguel’s attacks when he fired the two shots, and that he had only brought the gun for self-protection), those deputies were now treating John with obvious kindness, as if they knew he was that “rare” innocent person who was being unfairly prosecuted.
Note: Anyway, as I indicated in a previous blog, the first order of business is motions to exclude evidence (known as Motions In Limine (California Evidence Code section 350; California Evidence Code section 352, pronounced “lim-in-aye”), which I already discussed. However, for you practitioners, the final installment of this blog series will be about all the motions I filed in this case, how I argued them, and what resulted therefrom.
Please don’t do what I try to stop myself from doing, which is attempt to read the proverbial tea leaves as to how you think the jury will vote based on individual – or even collective – events at trial. Here, every step of John’s trial left me feeling more and more confident that we would at least get a hung jury, if not outright acquittal on all the charges.
See, I knew if the jury believed that John had only acted out of self-defense, then they would find him innocent of all four charges. See CALCRIM No. 505. Justifiable Homicide: Self-Defense or Defense of Another. But despite my day-by-day mini-triumphs, I’d been around the block enough times and for long enough to ensure that little voice in my head constantly whispered, “Don’t count your chickens before they’re hatched because you never know how a jury will vote.”
Here, this even included several jurors seemingly smiling at me from the jury box and in the hallway as we passed each other. And, as you’ll learn from reading about this case, a jury can change its collective mind at the last possible minute and seemingly doom your client. So enjoy those victories but keep your own expectations, and most particularly those of your client’s and his or her family’s, in check.
From the large pool of prospective jurors, eventually 12 jurors plus two alternates will be empaneled. However, how each side – the prosecution and the defense – gets there is almost a mini-trial in itself. In fact, in my opinion, based on my extensive trial experience, I can say unreservedly that jury selection – known as “voir dire” (pronounced vwah-deer) – is without a doubt the most important part of the trial. The type of jury you empanel will almost always determine the outcome of the trial.
No veteran trial attorney is going to reveal all, or even most of their jury selection strategy “secrets”. I’m certainly no different. But I’ll now reveal one of my more obvious strategies – chopping prospective jurors who, as I indicated in a previous blog, live in extremely conservative law-and-order, largely pro-Republican cities, such as Manhattan Beach. Since you only have a limited number of peremptory challenges (i.e., number of times when you can strike a potential juror “for [good] cause”), these are always a safe bet. See: leginfo.legislature.ca.gov.
Here, I felt fairly good about the ultimate composition of the jury – I felt that with these dozen individuals, John had a very strong chance of at least getting a hung jury. Of course, I didn’t take into account how badly the judge would literally ignore black-letter law and refuse to provide a self-defense or a manslaughter instruction as to the murder charge California Penal Code section 187(a)). See, e.g., CALCRIM No. 570. Voluntary Manslaughter: Heat of Passion – Lesser Included Offense (Pen. Code, § 192(a)): https://www.justia.com/criminal/docs/calcrim/500/570/. This was truly an eye-opening experience for me, though one that I’m very confident one that will ultimately work out in John’s favor once the 2nd District for the California Court of Appeal (https://www.courts.ca.gov/2dca.htm) hears his case and admonishes our judge for abusing her discretion.
I, of course, knew virtually everything DDA Kim was going to argue in her opening statement. Since the burden of proof (i.e., proof beyond a reasonable doubt) is on the prosecution, they always get to go first and last (i.e., a rebuttal to my opening statement). After all, according to the California Code of Criminal Procedure, as well as the California Rules of Evidence), the prosecution must provide the defense with copies of all evidentiary items they’re going to use at trial (but neither party is required to provide such copies or even the identity of witnesses that either the prosecution or the defense anticipates calling at trial).
Notwithstanding, by the time DDA Kim (whom I immediately knew from her demeanor and personality would not be able to emotionally connect with the jury – the simple fact is that some trial lawyers can but most of them can’t) finished her opening, to the untrained eye, and no doubt to the jury as well at that point, John’s guilt on all four charges was seemingly a foregone conclusion.
But that’s why people hire me and why I only accept a limited number of cases – i.e., those I think I will have a fighting chance of beating at trial. With the right jury, a good trial attorney will win his or her trial at the end of their opening statement – that is, if you lay out all the exculpatory evidence you’ll be presenting in a clear, coherent, and logical manner, then you will swing the jury to your side – regardless of what the prosecution argued in their opening. But even with a great opening statement, as I did in this case, you never give away everything. The final ace up my sleeve that I held back, but with which I tantalized the jury by telling them I would reveal at the end of the trial (which I would do via John’s testimony, but which I didn’t mention in my opening), was the photo of, and (John’s) testimony regarding, the can opener.
I started my opening statement with visual aids – as they say, a picture is worth more than a thousand words. Here, I used a large screen to first put up the photo of John at the hospital with his horrific injuries. Then I put up right next to that the LBPD photo of Miguel with his single scratch. I then shot down DDA Kim’s claims that not only did John not intend to shoot anyone that night, but that – as indicated by the photos – he had done so only in self-defense, in regard to Victor, and only by accident, in regard to Susan’s killing and the near-miss of Ray – but that the second shot was also the result of John legally defending himself.
Next, I went over John’s background since high school, when he started an online music store, and thereafter sold guitars and sponsored/promoted bands. I emphasized the fact that he was able to get musical instrument equipment at cost.
Then I went back five years before the incident – to 2012, when John first met Victor, who had played in various bands, including one that played gangster rap. (Victor’s involvement in that musical genre would ultimately result in the judge slapping me with $500 in sanctions – I’ll get into that much later in this blog series.)
The details of my opening statement will be continued in my next blog.