Saffari Law Group

Have you been ARRESTED or contacted by the Police, a Detective, FBI, or CPS?

A Travesty of Justice: The John McVoy, Jr. Murder Trial – Part 1


This is the first in a series of articles about my defense of Los Angeles Defense Attorney Law Firm (LADALF) client John McVoy, Jr. – most particularly at his relatively recent trial at the Governor George Deukmejian Courthouse in Long Beach where John was charged with:

One count of First-Degree Murder (in general) at California Penal Code section 187(a), California Penal Code section 188, California Penal Code section 189(a) & California Penal Code section 190; or, in the alternative, one count of Second-Degree Murder (California Penal Code section 192(a)&(b); California Penal Code section 187;

Two counts of Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664 & Penal Code section 187(a)); and

One count of felony Child Endangerment (California Penal Code section 273a).

Of the more than sixty (60) trials I have completed to date over the last 17 years, this one has bothered me the most. I have never experienced such open hostility and profound bias from a California state judge. The end result of this? Despite the fact that all the jurors believed John had been defending himself at the time of the subject killing, the judge refused to allow self-defense as an option – either as a complete defense (also known as a “perfect defense”, meaning that the defendant is not guilty of any crime), or an “imperfect” defense (meaning that the defendant would be convicted of a “lesser included offense”, such as:

Voluntary Manslaughter (Penal Code section 192(a)) or

Involuntary Manslaughter (Pen. Code section 192(b)).

At trial, I presented overwhelming evidence that the killing had occurred purely by accident while John had been defending himself against a vicious attack that nearly resulted in his own death. As a result, the judge was required as a matter of law to allow the jury to consider self-defense. She also refused to allow the jury to consider the lesser included offenses of Voluntary Manslaughter and Involuntary Manslaughter, which she was also required to allow in the jury instructions. 

In denying John’s lawful right to a self-defense and a manslaughter instruction, the judge committed what is known as constitutional error (for violating John’s rights under the United States and California Constitutions), as well as prejudicial error (because of the resulting murder conviction).

But for the judge’s legal “errors” (which both myself and at least two of the jurors were convinced resulted from her own prejudices towards John and I), at best John would have been acquitted. In fact, he was acquitted on all the other charges against him – a verdict that resulted because the judge inexplicably allowed the jury to consider self-defense as to those charges. 

At worst, John would have been convicted of Voluntary Manslaughter (Penal Code section 192(a): or Involuntary Manslaughter (Penal Code section 192(b): – either of which would have resulted in a far less egregious sentence than he ultimately received. In fact, with the numerous years he had spent in jail awaiting trial, including his good time credits, either conviction could – at least with most other judges — have resulted in him being immediately released upon sentencing.

This case will also stand out as one of the most profound and disturbing I’ve ever handled because never in my almost two decades of practicing criminal law have I been contacted by a juror after trial – much less two jurors. Specifically, they each independently (i.e., without knowledge of the other contacting me) told me how deeply troubled they were by the judge’s refusal to allow a self-defense or a manslaughter instruction in regard to the Murder charge (Pen. Code section 187(a), and by the fact that, according to both of them, all 12 jurors felt they had no choice but to convict John of some crime without being allowed to consider self-defense. And since the only option was Second-Degree Murder (Pen. Code section 192(a)&(b)), that’s what they did. (Both told me that all 12 jurors immediately rejected First-Degree Murder since there was never any evidence that John had intended to kill anyone that night.)

Fortunately, I am confident that based on the judge’s numerous legal errors, the 2nd District for the California Court of Appeal will overturn the guilty verdict and: (a) find John not guilty; (b) find him guilty of one of the two degrees of manslaughter; or (c) remand the case back to the judge for a new trial. This opinion is shared by several highly experienced and respected appellate lawyers I spoke with at length about the case after John’s conviction.

In the meantime, however, John – who had already spent five years in jail awaiting trial and now was recently transferred to a state prison – will continue to endure what can only be characterized as a genuine travesty of justice.


Aside from describing the dramatic events involving a case that would eventually receive so much media attention that even a London tabloid reported on it, this series of blogs provides “insider” details about how a defense against a murder prosecution is put together and presented. The following links will bring up some of these articles:

But for the judge’s numerous legal errors, however, this series would have been entitled “How to Obtain an Acquittal in a Murder Trial”. 

Notwithstanding, as the two jurors confirmed (see below), all 12 jurors believed I had done an outstanding job defending John throughout the trial. Accordingly, throughout this blog series, I’ll stop my narrative from time to time to give “trial tips” for newly minted defense lawyers, attorneys interested in switching over to a criminal defense practice, or otherwise any other criminal defense lawyer who’s interested in sharpening their trial skills.

Who is John McVoy, Jr.?

At the time of the incident, John, a White male, was 35 years old, six feet all, but weighing only 150 pounds. He lived in Corona, CA, and came from a good, loving, and supporting family. His father, John Senior, with whom John lived, is a CPA and his sister Jillian, like their father, was present for virtually every hearing. They would also be present for almost every day of the trial. 

Trial Tip:

It’s critical that the jury sees members of the defendant’s immediate family present in court each and every day. At the risk of stating the obvious, the jury must see that the defendant has a devoted family who unequivocally believes in his or her innocence. Every juror obviously has family members whom they love, so they will inevitably – and perhaps unconsciously – empathize (at least to some degree) with your client. All it takes is for a single juror to empathize with him or her to such a degree that a hung jury results.

John worked as a part-time freelance musical equipment salesman for Kay’s Guitars in Irvine, CA (earning strictly commissions at a business where he had previously been employed) full-time). Otherwise, his father helped financially support him.

As far as his personality, John is an intelligent, sensitive, extremely introverted, quiet, and almost painfully shy person – all traits that came through when he testified at trial. All three prosecution witnesses would confirm these character traits, as well as the fact that they had never once witnessed him acting aggressive or hostile towards anyone. John had been married once but had gotten divorced seven years before the incident. He has no children. According to his father, John was so devastated by this breakup that he essentially lost interest in seeing anyone else.

John’s debilitating health conditions played a critical role at trial and were central to his self-defense claims. Specifically, he is an extremely frail man who suffers from not one, but two chronically degenerative diseases — rheumatoid arthritis and Crohn’s disease. According to the Mayo Clinic:

Rheumatoid arthritis is a chronic inflammatory disorder that can affect more than just your joints. … [T]he condition can damage a wide variety of body systems, including the skin, eyes, lungs, heart, and blood vessels. An autoimmune disorder, rheumatoid arthritis occurs when your immune system mistakenly attacks your own body’s tissues.


Similarly, the Mayo Clinic states:

Crohn’s disease is a type of inflammatory bowel disease (IBD). It causes inflammation of your digestive tract, which can lead to abdominal pain, severe diarRea, fatigue, weight loss, and malnutrition. Inflammation caused by Crohn’s disease can involve different areas of the digestive tract…. This inflammation often spreads into the deeper layers of the bowel. Crohn’s disease can be both painful and debilitating, and sometimes may lead to life-threatening complications.


Why Did John Want to Quit the Band?

John had been an ardent longtime fan and supporter of a garage rock band called Below The Fault Line. The band had developed a popular local following and had finally began seeing commercial prospects come to fruition thanks to a sponsorship deal of some kind. John’s involvement with the band would also prove to be extremely important at trial for numerous reasons discussed below.

The band had been formed years earlier by two close friends for 15 years – Victor Garcia (age 32 at the time of the incident), in whose Long Beach home the incident occurred, and Ramon Chavarria (age 31, friends with Victor since high school). 

Another longtime fan was Miguel Rea (age 37), a Moreno Valley resident and also a close friend of Victor’s for 15 years – they, too, had gone to high school together. (There were several other band members but since they weren’t called as witnesses and otherwise had nothing to do with this case, I see no reason to identify them.) 

John had met Victor six years before the incident when John had a regular full-time on-site job at the guitar store in Irvine. He and Victor, as well as Victor’s wife, Susan Yang Garcia (age 33 on the night of the incident), had become fairly good friends, with John occasionally socializing with them at their modest home.

Approximately three years before the incident, John met Ramon and the other band members. From that point on, John became a fan and also supplied the band with free musical equipment. He eventually would occasionally play guitar for them and, therefore, became a de facto band member. In fact, during the two months prior to the incident, John had been rehearsing with the band in the attached garage at Victor’s house in Long Beach most Tuesday nights. (Sometimes the band would rent out a professional recording studio to play.) On the night in question, the band was scheduled to rehearse at the Garcias’ home with Ramon and several other hangers-on to also be present.

Miguel would later confirm to police that John “sponsored the band and would sometimes give the band musical equipment.” John also gave them a discount (his own wholesale purchase cost) for larger pieces of equipment. As a result, John quickly became a valuable addition to the band – a fact which the prosecution’s witnesses would unsuccessfully attempt to dispute at trial.

Importantly, however, in the months leading up to the incident, John had grown increasingly disillusioned with the band, whom he believed were taking advantage of his generosity. For example, at no time did any of the members ever offer to reimburse him for any of the equipment he gave them. This, too, came across at trial.

Perhaps even worse, numerous tough-looking young men with gang tattoos began hanging around the band – men whom Victor proudly boasted were actual Long Beach gang members. John began to feel uncomfortable around these men, as well as with Victor’s increasingly swaggering behavior around these individuals.

Trial Tip: 

A defendant’s self-defense claim can have its genesis months or even years before the alleged crime. As such, anything and everything that happens during that period which would support the claim that the defendant began to feel he or she was in danger of imminent serious physical harm or even death at the time of the alleged crime will be admissible at trial. Here, however, I did not attempt to introduce evidence of these supposed gang members hanging around the band because none of these individuals ever directly or indirectly threatened John. In other words, simply because these men may have contributed to John’s growing sense of unease was not in and of itself supportive of a self-defense claim because none of them were involved in the incident.

Victor’s increasingly disturbing behavior in the months and weeks leading up to the incident, however, would be directly relevant, admissible, and crucial for John’s self-defense claim. Specifically, whenever John intimated to Victor that he wanted to leave the band, Victor would become aggressive and threatening, clearly implying that he would physically harm John if he tried to do so. Keep in mind that despite John being three inches taller than Victor (who stood 5’9”), Victor outweighed him by a whopping 75 pounds (Victor weighed 225 and was stocky & muscular). In addition, Victor carried himself like a tough-guy street fighter. Victor would also make hostile racist remarks, repeatedly telling John in a menacing manner about how much he hated White people, then laughing it off as a “joke”.

(All of the prosecution’s witnesses agreed that John had never any conflicts with anyone else in the band. He never drank alcohol or did drugs, and only occasionally smoked marijuana.)

This situation finally came to a head approximately two weeks before the incident when Victor showed John his brand-new 12-guage tactical assault shotgun (the kind SWAT teams use), implying that he would use it on John if he tried to leave the band. John testified to all this at trial, and all 12 jurors believed his testimony while rejecting the prosecution witnesses’ claims that Victor had merely been “joking”. The next time John and Victor saw each other was the subject evening. 

John’s claims of self-defense never wavered once in the five years leading up to his trial. Indeed, as he told police the night of the incident (according to a police report), “he had signed an agreement to be in their band. … McVoy said he was afraid that if he didn’t go to band practice [that night], they would kill him.” 

So that tragic day, John left his job as a “retail guitar salesman” from the Kay’s Guitars in Irvine and drove directly to the Garcias’ home in Long Beach. His plan was to tell Victor once and for all that he was leaving the band. Unfortunately for everyone involved, John armed himself for his own protection.

The McVoys’ Family Heirloom – the Civil War-Era Revolver

The gun John would fire twice that night was a double-action, five-shot .41-caliber Long Colt revolver that dated back to the Wild West/post-Civil War era. (Think of a shorter-barreled version of the pistol Clint Eastwood carries in the 1990 film Unforgiven.) In other words, it was over a hundred years old, and had been in John’s family for many decades. (Interestingly, the judge would order that the firearm be returned to John’s father after the trial because of its “family heirloom” status.) 

Prior to the incident, John had only fired it once before when he went to the woods to see if it actually worked. The gun was so old and poorly cared for (i.e., not regularly cleaned and oiled), it was almost miraculous that it didn’t explode in John’s hand when he fired it. (The bullets themselves were no longer manufactured and were therefore purchased many years before at a gun show.)

Trial Tip: 

I had retained the services of two different expert witnesses in regard to the Colt. The first was an expert on gunpowder residue and the second was prepared to testify about the working mechanisms of the Colt itself. It should go without saying that anytime you have a trial involving the discharge of a firearm, you are going to want to have at least one defense expert lined up to counter the testimony of the prosecution’s expert. In fact, you should always have an expert ready to reject such testimony, regardless of the subject matter to which the prosecution’s expert is going to testify. Here, as it turned out, I didn’t need to call either expert because nothing the DA’s expert said on the stand hurt our defense.

And so that evening, John drove from Irvine to Long Beach with the Colt in the center of his rear waistband. But he never intended to actually fire it, only to frighten Victor if Victor sought to attack him or even shoot him with the shotgun.

The Facts of the Case and the Night of the Incident

On the night of January 10, 2017, John McVoy, Jr. and the rest of the Below The Fault Line band members were scheduled to get together at the Long Beach home (located at 6350 Knight Ave.) of Victor and Susan Garcia to rehearse in their garage. (This was a modest single-story, three-bedroom house in a residential neighborhood.) As he would testify convincingly on the stand at trial, John had gone there to quit the band, as well as to return a piece of musical equipment (which I forgot to mention in the last blog).

The Events Preceding the Shootings

Earlier that same afternoon at 5:11 pm, the Garcias’ close friend and band groupie Miguel Rea purchased a one-liter plastic bottle of Coke and Jack Daniels (as proven by a receipt the police found in his pocket on the night of the incident).

Approximately 10-20 minutes later (between 5:20 pm and 5:30 pm), Miguel arrived at the Garcias’ residence. Only Victor was home at the time. After Miguel arrived, Victor took him to the hallway closet where he showed off his new shotgun (which Miguel admitted to police). Miguel would testify that he felt uncomfortable with Victor brandishing the weapon. This shotgun was recovered by police and their photograph of it was introduced into evidence at trial – evidence that would bolster John’s claims of self-defense.

It was at the point that the two men sat down at the kitchen table and began drinking in earnest, knocking back shots, and sipping from large glass tumblers of Jack-and-Coke. Since Ramon had only arrived shortly before John, Victor and Miguel had consumed approximately 90% of the bottle between themselves over the next 90 minutes.

Approximately 30-45 minutes after Miguel’s arrival, Susan returned home with her and  Victor’s toddler son Ray (age two years and nine months). She set Ray down to play nearby then briefly joined the men at the table, enjoying at most two shots of whiskey with them.

Ramon Chavarria, band member and another close friend of the Garcias, arrived at 7:00 pm, and the four of them watched then-President Obama’s farewell address on TV.

The Discussion about Politics and Victor’s Racist & Threatening Remarks

Miguel would later tell police that he and Ramon teased Victor for having voted for Trump. (Miguel and Ramon had not voted for either candidate, or for anyone else.)

Approximately 20 minutes later (around 7:20 pm), John arrived, though he remained standing while Victor, Miguel, and Ramon continued drinking heavily, and Susan stood elsewhere in the kitchen holding Ray. John did not drink with them. The political discussion continued, during which Miguel rose from his seat. To John, it was obvious that they were all quite drunk.

Trial Tip:

At trial, the prosecution witnesses would all try to downplay how drunk Victor and Rea were that night. I thought that was a serious blunder on the ADA’s part because she knew I had overwhelming evidence as to the following: 

  • documentary evidence in the form of the liquor store receipt proving that Miguel had purchased the 750-millimeter bottle of 80-proof (40% pure alcohol) of bourbon only 90 minutes or so before John arrived at the house (the liquor store was just down the street therefrom);
  • evidence in the form of witness statements to police proving that Ramon had only arrived just before John, and that Susan herself only had a few shots, thereby confirming that Victor and Miguel had consumed almost the entire bottle by themselves; and
  • photographic evidence showing that the bottle was almost empty when police arrived, the empty shot glasses, as well as showing the near-empty tumblers of Jack-and-Coke.

The fact that Victor and Miguel were clearly highly intoxicated did not require the testimony of a defense expert – every juror could tell from their own experience that such would have been the case based on how much booze had been consumed in such a relatively brief period of time. 

In any event, the ADA should have gotten in front of this evidence and had her witnesses confirm how much JD had been drunk, instead of denying they were drunk because that simply convinced the jurors that the witnesses were obviously lying. And once that “lying door” opens for testifying witnesses, it’s hard to close it again. In other words, the jury was thereafter conditioned to believe that these witnesses were not only perjuring themselves on the stand in that instance, but would likely be doing so for the rest of the trial.

Victor then told John how much he “hated White people”, and that “White people like John should be killed.” Victor and Ramon also joined in the racist remarks against John, saying things such as “White people like you deserve to die.” (Again, later at trial, the prosecution’s witnesses would claim Victor had merely been joking, and that he had a “unique sense of humor”.) This would later prove to be critical in establishing John’s mindset for the purpose of my arguing self-defense. (Notably, no one had ever alleged that John was in any way racist.) John reported these racist slurs to the police who interviewed him that night. For the record, Victor, Miguel, and Ramon were described in police reports as “Hispanic” while Susan was described as “other Asian” (whatever that means).

Trial Tip:

It should come as no surprise that race always plays a significant role in any criminal trial – it’s simply how human nature works, whether consciously or unconsciously. This is such a sensitive topic that I’m really not at liberty to discuss this in much detail here. But it’s telling that during the initial “straw” vote, the four Latino jurors – who were all about the same age as Victor, Miguel, and Ramon – initially leaned towards finding John guilty of at least one of the charges. 

In fact, race came into play during jury selection when the Asian female Deputy District Attorney accused me of using one of my peremptory challenges to kick a female juror who, like Susan, was also Asian, solely because of her race, which of course is a big no-no. However, in one of the few minor victories allowed me, I was able to convince the judge that I sought to kick that juror only because she lived in an area that was extremely conservative and overwhelmingly pro law enforcement (which was the truth).

Victor then asked John whom he had voted for, and when he responded, “Hillary Clinton,” Victor yelled at him to “Get the fuck out of my house!” Ramon admitted to police that John did not respond and otherwise remained silent. (In my opinion, and no doubt in all 12 jurors’ as well, Victor was a racist bully whose animosity and aggression towards the obviously weaker John was greatly fueled by his highly inebriated state.)

During this tirade, John paced nervously back and forth, watching and listening to Victor become increasingly agitated. All of John’s fears about Victor were finally coming to fruition.

Victor Attacks John, Who Shoots Him in Self-Defense

Again, as John testified, he had brought along the ancient post-Civil War revolver because he was afraid of Victor. Specifically, Victor had recently physically threatened him, including by brandishing a 12-gauge Mossberg tactical assault shotgun after John first mentioned that he wanted to leave the band.

To reiterate, John was particularly frightened of Victor – a significantly larger, stronger, and tougher man – because John was an extremely frail man who suffered from severe rheumatoid arthritis and Crohn’s disease – degenerative medical conditions which would prevent him from being able to physically defend himself against Victor.

As prosecution witness Miguel testified, earlier that same evening, January 10, 2017, Victor had bragged about the shotgun and proudly displayed it to Miguel, which made him uncomfortable.

As the evidence at trial (including photographs) established, Victor and Miguel had been drinking heavily, having quickly polished off most of a 750 ml bottle of Jack Daniel’s whiskey and were, therefore, significantly intoxicated. Far worse, Victor was openly hostile to John. At one point, Victor made a violent threat against him, yelling angrily that “White people [like John] should be killed.” As John testified (and which all 12 jurors believed), he was genuinely afraid for his safety at the time.

This threat had been preceded moments earlier by John admitting that he had voted for Hillary Clinton as President, which angered the Donald Trump-supporting Victor. Even though John did not provoke Victor in any way, as the evidence at trial proved to the members of the jury, Victor suddenly attacked John with a metal can opener. (A photograph of this can opener would be introduced as evidence at trial.)

Note: From the very first time I met with John, he told me about how Victor, after screaming at him about Hillary Clinton, etc., had grabbed a metal object off the kitchen counter. Because everything happened so quickly, and because he was focused on Victor’s enraged face, John didn’t actually see the object, but he knew it was metal because he heard it scrape on the counter. John also saw a flash of something metallic in Victor’s hand as he lunged at John.

I never once doubted John’s claim about the metal can opener, but no such object had been booked into evidence. And certainly none of the prosecution witnesses told police or testified about Victor attacking John with such a dangerous item – that would obviously discount their version of events and thereby prove that their close friend Victor was the actual aggressor. Fortunately, however – just like in the movies – literally the night before the first day of trial, I finally found the proverbial needle in the haystack. 

As I was closely examining crime scene photos that I had only recently received from the DA’s Office, I finally spotted the can opener – which both Long Beach Police Department detectives and the Los Angeles County District Attorney’s Office’s prosecutor denied even existed – in the far corner of the living room underneath toddler Ray Garcia’s high chair. Of course, the LBPD themselves had never found it. In other words, this was textbook sloppy and incompetent police work. This photo obviously supported John’s defense.

As John testified, he pulled out the ancient Colt and warned Victor to back off. Instead, Victor picked up this sharp, metal can opener and charged him, forcing John to fire the gun at him in self-defense. However, because Victor had lowered his head during his lunge, the bullet struck the top of his head, seriously wounding him. The force of the blast sent the can opener skittering all the way across the room’s floor until it came to rest beneath Ray’s highchair.

Interestingly, and perhaps tellingly, Miguel told police he never even heard this first shot – despite the fact that even young Ray told police he heard “boom, boom”, thereby clearly indicating that he – a child less than three years old — had heard both gunshots.

Miguel’s Attack on John/the Killing of Susan

Immediately after the shooting of Susan, Miguel charged John and grabbed his arm, causing the Colt to accidentally discharge. That bullet struck (in the upper left side of her chest) and killed Susan (and narrowly missed hitting Ray). Ramon also had charged John, but as he himself told police, Miguel had gotten to John first.

Miguel then proceeded to savagely beat John to within an inch of his life, causing him severe injuries, including broken vertebrae in his neck and a broken nose, which required immediate hospitalization. As stated in the police report, “McVoy was covered from head to toe with what appeared to be blood all over him.”

Miguel punched John for minutes on end to the point where he had to stop at least once to catch his breath. The attack was so vicious that Miguel, too, was covered in blood – John’s. The LBPD’s Follow-Up Police Report confirmed that Miguel “had a good amount of blood on his plaid shirt and undershirt.” The report also confirmed that “Long Beach Fire Department … cleared the Witness [Miguel] of any injuries.”

John told the interviewing detective, when the second gunshot was fired, “It wasn’t like I was aiming” at anyone.

Ramon’s Actions While Miguel Assaulted John

At some point during Miguel’s assault on John, the Colt either fell or was pried from John’s hand, then Ramon picked it up or grabbed it, ran outside, and placed it in a flowerpot. Ramon then re-entered the house, found Ray on the floor next to Susan’s body, then picked up Ray and took him to a neighbor’s house. All the while, Miguel continued thrashing John.

After returning a second time to the house, the Follow-Up Police Report confirmed, “he [Ramon] saw that Miguel was still fighting with the suspect.” Notably, although the struggle had began in the living room, Miguel and John somehow ended up in the hallway and thereafter in Ray’s bedroom. At some point, upon Miguel’s urging, Ramon came over and kicked John in the head. However, based on the fact that the Follow-Up Report identified red stains on Ramon’s right pant leg and right shoe, Ramon had almost certainly kicked John multiple times. Ramon would admit to police that he had “stomped on John’s stomach.”

Ramon was instructed by Miguel to call 9-1-1. At 7:25 pm, he did just that, telling the operator words to the effect that John had shot Victor and Susan, and that Susan appeared to not be breathing. Meanwhile, Victor remained prone on the ground but was somehow still conscious, despite the serious head wound.

No less than 16 LBPD officers arrived on the scene, where they found Susan and Victor lying on their backs on the kitchen floor, and Miguel straddling John in the living room. Once they secured the scene (by ensuring there was no further danger to anyone), Long Beach Fire Department paramedics were allowed to enter. They thereafter vainly tried to resuscitate Susan, who was pronounced dead at the scene at 7:48 pm. They also treated Victor for his head wound, and John for his numerous injuries from the prolonged beating. According to the police report, “McVoy had a fractured C-2 vertebrae, fractured nose, several lacerations, [and] swelling and bruising.”

Both men were then transported to different local hospitals. At Long Beach Medical Center, Victor, who was in critical condition, underwent emergency surgery to remove a bullet fragment from his brain. Meanwhile, John was treated at College Medical Center. The booking photo of John wearing a neck brace and showing the extent of his injuries, would be a key piece of evidence for the defense.

From the moment John arrived until Susan was shot, only 15 minutes had elapsed.

Post-Arrest Media Attention

John’s arrest sparked widespread media attention in Los Angeles County (although nothing approaching the quasi-international publicity his conviction would instigate), including: CBS Los Angeles (“Man Charged With Killing Woman Who Was Holding Toddler, Shooting Her Husband In Long Beach”):

These articles confirmed the crimes that John was ultimately charged with:

One count of First-Degree Murder (in general) at California Penal Code section 187(a), California Penal Code section 188, California Penal Code section 189(a) & California Penal Code section 190; or, in the alternative, one count of Second-Degree Murder (California Penal Code section 192(a)&(b); California Penal Code section 187);

Two counts of Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664 & Penal Code section 187(a)); and

One count of felony Child Endangerment (California Penal Code section 273a).

A Special Allegation of Personal and Intentional Discharge of a Firearm Causing Great Bodily Injury or Death (California Penal Code section 12022.53(d)).

The articles also confirmed that if convicted, John would be facing life in state prison.

Initial Media Coverage

As I indicated in my previous blog, John’s arrest was widely reported in the local media. And not surprisingly, on January 13, 2017 (three days after the incident), the Los Angeles County District Attorney’s Office proudly announced John’s prosecution. See: (“Man Charged with Killing Woman, Shooting Her Husband in Long Beach”). The DA’s Office announced that it was requesting a bail of $5 million (though the judge would ultimately reduce it to $2 million – an irrelevant discount since neither John nor his family could afford such an astronomical amount).

For some reason, although the DA’s article confirmed John had been charged with one count of Murder under California Penal Code section 187(a) and two counts of Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664 & California Penal Code section 187(a)), there was no mention of the felony Child Endangerment charge (California Penal Code section 273a) for the near-shooting of Ray Garcia (who, again, was three months shy of his third birthday). Perhaps this oversight resulted from the fact that this particular charge likely would carry only a four-year prison sentence upon conviction, whereas John was already facing three life sentences (with potential parole) for the other three charges.

Further, each of those three counts constituted a Strike Offense (California Penal Code section 667(a)&(b); California Penal Code section 667.5(c) (“Violent Felonies”); California Penal Code section 1192.7(c) (“Serious Felonies”)). This meant that he could be required to serve out at least 80% of his sentence before being eligible for parole, depending on the circumstances. See also Strike Sentencing Enhancements (California Penal Code section 1170.12).

In addition, John was also looking at not one, but two maximum 20-year enhancements, as the article reported, for two Special Allegations of Personal and Intentional Discharge of a Firearm Causing Great Bodily Injury or Death (California Penal Code section 12022.53(d)) – i.e., the killing of Susan Garcia with the ancient Colt, and the serious wounding of Victor Garcia with the same.

Strangely, the article claimed that John got into an argument with both Victor and Susan despite the fact that none of the prosecution’s witnesses ever mentioned any verbal exchange, much less an argument, between John and Susan. But, of course, none of the articles disclosed the details about what really happened the night John was arrested.

John’s Arrest and Interrogation by a Biased, Myopic Detective

After being treated at the hospital, John was placed under arrest and housed at the Los Angeles County USC Medical Center under sheriff’s custody. Meanwhile, the Los Angeles County Sheriff’s Department (“LASD”) detectives executed a search warrant at the home that, again, John shared with his father, John Senior, in Corona. John Senior admitted the Colt was a longtime family heirloom. Inside the hallway, detectives found a box of .41-caliber ammunition that matched the bullet casings taken from the Garcias’ residence, as well as the remaining four bullets found in the Colt itself. And, of course, six rounds were missing from the box of ammo.

Again, John’s bail was set at $2 million, which neither he nor his family had the resources to post bond, which, depending on their assets, could equal 5% to 10% of the bail amount.

During his extensive interrogation, led by a particularly incompetent and egregiously biased detective whom I call Detective Sellers (after the late great actor Peter Sellers who was most famous for playing the hopelessly bumbling French detective Inspector Jacques Clouseau). John never denied firing the two bullets which struck the Garcias, but repeatedly insisted that he had only fired the first shot in self-defense after being attacked (as described above), and the second shot went off accidentally when Miguel Rea attacked him next.

John agreed to speak with the detective – virtually always the worst possible thing a suspect, particularly in a murder case, can do (though not in this case as discussed hereafter). After reading him his Miranda rights, Sellers interviewed him while recording John on audiotape. In John’s case, I don’t believe he did himself any harm since there was no dispute that he had shot Victor first and then Susan second, or that he had voluntarily brought the revolver with him to their residence. In addition, the Colt was obviously his, the GRS (gun powder residue) testing (sometimes referred to as a “paraffin test”) confirmed he had fired the gun, etc.

On the contrary, the fact that the detective shut him down no less than eleven times whenever he tried to explain he only shot the victims when trying to defend himself certainly helped him at trial. He also repeatedly denied in the interview that he ever had any intention of shooting anyone that night.

Trial Tip:

This detective’s incompetence and willful blindness as to the actual facts of the case turned off the jurors so much – namely, the fact that Sellers had no interest whatsoever in hearing evidence that John had acted in self-defense (which, at minimum, the severe injuries inflicted upon John in and of themselves should have prompted Sellers to investigate further – if not the fact that it’s supposed to be his job to investigate all the facts, and not just those that fit nicely into what he believed to have occurred.

Both jurors told me that all 12 jurors were aghast at Seller’s severe myopia in refusing to even listen to John’s version. Indeed, they said that several of the jurors believed Sellers should be criminally prosecuted for his egregious dereliction of the duty! Finally, they both said most if not all the jurors agreed that Sellers should be fired (and thereby lose his LBPD pension). In my 60-plus criminal trials I’ve completed to date, I have never seen jurors so horrified by a detective’s actions.

This is why I mercilessly cross-examined Sellers at trial for two full days. I went over the recordings and the interview transcript with him line by line, forcing him to admit – again, eleven times – that he had cut off John whenever John tried to explain that he had been attacked by Victor with a metal object, and that he had next been attacked by Miguel, which caused the revolver to fire a second time. Sellers was also extremely evasive on the stand, and his contempt for me easily showed through to the jury. I couldn’t have asked for a better bad-guy detective to confront.

So trial attorneys and would-be trial lawyers – it’s uncommon to get a detective like Sellers whom you know is going to garner the wrath of the entire jury, but it’s certainly not unheard of. In fact, I’ve had plenty of detectives – primarily from both the Los Angeles Police Department and the Los Angeles County Sheriff’s Department – who’ve crumbled on cross-examination when faced with the irrefutable facts of their own incompetence and bias.

Destroying the detective on the stand (assuming you can do so) may very well destroy the prosecution’s entire case. And in John’s case, but for the judge’s prejudicial errors in refusing to allow him a self-defense claim on the Murder charge – either First-Degree Murder (California Penal Code section 190) or Second-Degree Murder (CaliforniaPenal Codesection 192(a)&(b)California Penal Code section 187) — and to allow a manslaughter instruction – for both Voluntary Manslaughter (Penal Code section 192(a)) and Involuntary Manslaughter (Penal Code section 192(b)) — Sellers’ disastrous performance would have done the same here.

So go after relentlessly bludgeoning those deserving detectives at trial or, much less frequently, during a preliminary hearing – preferably by using their own words in their police reports or in audio recordings such as here. I’ve found that because the justice system in California, and particularly in Los Angeles County, is so heavily skewed in favor of the prosecution (i.e., the judge is typically a former Deputy District Attorney; the jury is predisposed to believe your client is guilty; etc.), that many detectives don’t bother to dot all their “I’s” or cross all their “T’s” when conducting your client’s investigation. So take every opportunity to exploit their sloppiness – because even evidence that the detective was sloppy in his or her work can turn a jury off enough to taint the entire prosecution. Besides, it’s our job as criminal defense attorneys to ensure that the police do their job properly and constitutionally.

Oh, and as far as preliminary hearings, I know it’s tempting to pull out that ace you’ve been holding up your sleeve– whether it’s in regard to the prosecution’s witnesses or the police – in the hope of getting the prelim judge to dismiss the case. But I almost never do that.

First, I know that it’s very infrequent to have a case tossed at prelim (and, of course, I’m referring to felony cases since misdemeanors don’t include prelims), regardless of how weak or even non-existent the DA’s evidence is incriminating your client, because the standard for binding a case over for trial is so low, and because no judge wants to toss out a serious felony case at prelim (especially one involving a violent crime – and most particularly one involving murder), that your chances of getting it tossed are very low. That’s why you should save your best stuff for trial, particularly the material that’s going to help you destroy the prosecution’s witnesses and police/detectives.

Almost half of the clients that retain me had left previous attorneys because, for whatever reason(s), they were unhappy with the attorney’s representation of them. This is not surprising since many of these attorneys actually promised that they would be able to get the case dismissed at prelim! That is blatantly unethical and flat out false. By contrast, I always tell my clients that it’s highly unlikely we’ll beat the case at prelim, but it’s an excellent opportunity to nail the prosecution’s witnesses to testimony that I’ll be able to use against them at trial. It’s also an opportunity to highlight the weakness of the DA’s case, which could result in an offer that’s too good for the client to pass up.

Importantly, John told Det. Sellers that he had no idea the second gunshot had killed Susan since he wasn’t even sure the gun had been fired a second time, and particularly because he had no intention of harming Susan (or Ray for that matter). “That wasn’t intentional,” he told the detective.

Again, John readily admitted to shooting Victor, which he didn’t think constituted a crime since he had merely been defending himself against someone with a dangerous object. (Again, Long Beach Police Department officers and detectives failed to spot and tag the metal can opener despite the fact that they photographed it (under Ray’s high chair)!

John admitted to bringing the gun from home and carrying it in his rear waist band. He also admitted to having carried it during the last several band meetings/rehearsals because of his growing fear of Victor. As he explained to the police, he had only fired it on one occasion four years earlier to determine that it actually worked. (Again, John was extremely lucky that the gun didn’t explode in his hand because the ammunition was so old and rare it could only be purchased at gun shows. Amazingly, after the trial was over, the judge ruled that she would have the Colt returned to John’s father because it was indeed an ancient family heirloom.)

As John said, “I didn’t want to pull the gun out at all. I brought it there because I felt not safe there and this has been [like that] since the last couple of times that I’ve been there. They’ve been … threatening towards me like ‘You’re going to do this now. You’re in the band.””

Bizarrely, and as I forgot to include in my recitation of facts in the previous blogs, Miguel had told LBPD that when he was “struggling to hold John now” (i.e., viciously beating him), he had heard John say the word “jihad” once or twice. This was such a bizarre and nonsensical assertion, particularly in light of the fact that no witness or shred of evidence indicated that John had any interest in politics (aside from voting for Hillary Clinton), much less as a wannabe terrorist, that I was forced to file a Motion In Limine (California Evidence Code section 350; California Evidence Code section 352) (a motion to dismiss evidence, which is heard on the eve of trial before the jury is empaneled) to prevent the prosecutor from presenting this overly prejudicial evidence to the jury. But the police and prosecution ran with the “jihad” angle, hoping it would shore up the glaring fact that there was no evidence whatsoever that John had a motivation for shooting the Garcias that night. In the end, the jihad thing turned into a red-herring – a “nothing burger” which had no impact – because it was dismissed by the prosecution as a motive.

Trial Tip:

I would eventually get Miguel to admit at trial that he “might” have punched John as many as a hundred times, that he was forced to stop to catch his breath several times during the beating, and that the only thing the vastly weaker John could do was scratch his eye. I even got him to essentially admit that he had significantly downplayed the severity of the beating when interviewed by police the night of the incident.

The Deputy DA prosecuting the case – DDA Kim – knew or should have known that I was going to show overwhelming evidence about the beating, and particularly about the severe injuries John sustained as a result thereof – both of which she knew would bolster my self-defense arguments. Therefore, she – as with the whiskey consumption and resultant intoxication of Victor and Miguel – should have gotten in front of the evidence by having Miguel testify on direct examination that he had, in fact, pummeled John to a pulp. Instead, she allowed him to testify that he only punched John “a few times” while “trying to restrain him”.

All Miguel’s bullshit fell apart, of course, when I withered him during cross examination. I even exposed his claim that he was defending himself against John when John tried to scratch his eyes (since as an infirm person weighing 75 pounds less than his attacker, that’s all he could do). It was almost laughable about what a big deal DDA Kim made about the photos of Miguel’s scratches, as if poor Miguel had been the victim.

By the time Miguel left the witness stand, I could tell by the looks in the jurors’ eyes that they understood he was a witness who was willing to outright lie on the stand – all to ensure that John would be convicted of the charges against him. The two jurors I spoke with confirmed that Miguel did not come across as credible or believable.

Simply put, DDA Kim should have dealt with the whiskey and the beating issues upfront on direct, which would have taken out some of the sting of my cross. (By the way, DDA Kim was a veteran prosecutor with the DA’s Office but this would be her last case. After the trial, she transferred to some other department for the county.)

When the detective asked John if he had called anyone “jihad” earlier that night, John explained that he had no idea what he was talking about, but confirmed he had never used racist terms against anyone and that he was not a racist.

The interview ended at 5:20 am. John remained in custody (i.e., handcuffed to the bed) at the Los Angeles County USC Medical Center. He would, of course, be transferred days later to the central Los Angeles County Men’s Jail. That would prove to be John’s home for next five years (before he was transferred to state prison).

Again, the summary of the detective’s interview of John significantly differs from the actual recording of that interrogation. In the latter, John attempts at least than 11 times to explain that he only shot Victor after Victor had lunged at him, and that he accidentally shot Susan when Miguel attacked him & grabbed his arm. Each time, the detective would cut him off, knowing that this recording would be used by whatever defense counsel represented John (i.e., either a Deputy Public Defender or private counsel). Needless to say, John was unable to mention the fact that Victor had attacked him with the can opener, and therefore he had been in fear for his life.

Trial Tip:

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:

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: 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).

The Police Investigation

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.

The Four Felony Charges Against John

On January 13, 2017, John was formally charged by the Los Angeles County District Attorney’s Office with the following felonies:

Count OneFirst-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 TwoDeliberate and Premeditated Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664: & California Penal Code section 187(a): (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.

The Trial

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.

Trial Tip:

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.

Jury Selection (Voir Dire)

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.

Trial Tip:

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:

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)): 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 ( hears his case and admonishes our judge for abusing her discretion.

Opening Statements

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.

Trial Tip:

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.

My Opening Statement (continued)

John’s Involvement with the Band

I moved on to John’s involvement with Below The Fault Line, Victor Garcia’s garage rock band, where, in the beginning, John subbed in and otherwise helped out by playing phaser guitar or bass guitar here and there. I explained that starting around September 2016, John became a de facto “full time” band member whose value to them skyrocketed once he started supplying them with at-cost musical equipment and even more so when he gave them free equipment.

Next, I began sowing the seeds of John’s self-defense claim by stating that in December 2017 (one month before the incident), John secured them what could potentially be a lucrative guitar-strap sponsorship – a detail I am remiss in failing to previously mention. But, as I told the jurors, this is when Victor’s bullying behavior started intensifying after the band signed the sponsorship contract. Victor was concerned that John’s leaving the band might jeopardize what could be a possible payday in the tens of thousands of dollars.

Victor’s Bullying and Gang Affiliation

Although at the time I made my opening statement I fully intended to subsequently introduce evidence of Victor’s gang affiliation to bolster John’s self-defense claim, as I mentioned in a previous blog, I ultimately changed my mind. As a result, in my opening I did mention that Victor (“Vic” to his friends) hung out with gang members with the names of “Bone Thugs” and “Psycho Realm”, and that prior to Beneath The Fault Line he had been a member of a gangsta-rap band that was also called “Psycho Realm”.

In fact, I said that Victor had initially introduced himself to John as being from “East Side Longos”, a Long Beach-based street gang (which John, who had no knowledge or interest whatsoever in street gangs, had no idea what “Longos” meant). See:

Next, I explained that as they worked together more frequently, Victor became more and more bossy, pushy, and aggressive about John not leaving the band and that things started to escalate.

Trial Tip:

You should always imagine your jury as an audience watching a movie or a play. They are expecting to hear a good story, so your opening statement must lay out the highlights of that story, so as long as you deliver by never making a promise you can’t keep (i.e., by failing to provide promised exculpatory evidence), and so long as your “story” is more emotionally engaging than the prosecutor’s (which shouldn’t be too difficult since prosecutors rarely apparently don’t prioritize engaging with the jury as opposed to laying out all the “facts” and purported evidence in a systematic, linear, and ultimately boring manner). In other words, never make promises in your opening that you can’t keep.

As I made my opening statement, I made sure to make direct eye contact with each of the jurors, and I could sense that they were with me – i.e., I could see them leaning forward with intense looks, clearly focused on my every word. I therefore decided to get into more detail about Victor’s bullying f John. Specifically, I went into how Victor became increasingly pushy, aggressive, demanding, and insisting that John needed to do things for the band, such as buy gear or instrument parts for Victor’s idea to build a special guitar. In short, Victor became bossy and threatening.

Trial Tip:

If you have the “ammunition”, such as I did here, you should take every advantage to “smear” the prosecution’s witnesses – piece by piece, word by word – so the jury sees and hears that everything they say is either at worst an outright lie or, at best, an evasion of the truth.

Here, by my opening statement, I primed the jury to be inclined to see DDA Kim’s witnesses – namely Detective Sellers, Victor, Miguel Rea, and Ramon Chavarria – as individuals willing to say whatever would be necessary to protect their friend Victor by nailing the coffin in John’s prosecutorial grave. By the end of the trial, the jurors had little, if any, sympathy towards these people, including Victor, whom would across to them as a brutal, violent, and altogether reprehensible individual.

Of course, there was nothing to smear about Susan Garcia, but I knew that so long as I could prove that her death was the tragic result of Miguel attacking John – and therefore the product of self-defense – then I thought the jury would see her death as a tragic accident that, but for Miguel’s attack, would never have occurred. The same went for the near shooting of almost-three-years-old Ray Garcia.

I emphasized how Victor directly ordered John to remain with the band with an unspoken threat emphasized by the former’s brandishing of his Mossberg tactical assault shotgun (see: “You will do this, you’re in the band.” I pointed out that Victor’s implied but nevertheless clear physical threats were only made when he and John were alone. I also laid out all the reasons John had felt Victor and the other band members were trying to take advantage of him. John had felt trapped/scared, thought about calling police but worried about consequences. Thus, little by little, I was able to portray Victor as the menacing bully he in fact was.

Importantly, all three of the prosecution’s witnesses greatly downplayed John’s role in the band – once again, a foolish tactic on DDA Kim’s part because – yet again – it showed that these individuals were willing to lie on the stand. Indeed, they all testified that John was basically a “groupie” and “wannabe”. But I excoriated them on the stand with evidence – including their own hesitant admissions – that John played regularly for them, gave them instrument parts for free, sold them larger equipment at cost through his employer (Kay’s Guitars in Irvine), and that he helped them secure the guitar-strap sponsorship deal. For the jury, it was just one more lie piling upon their previous lies (the whiskey drinking, Miguel’s beating of John, the ludicrous allegation that no had seen the first shot despite standing only a few feet away, etc.).

John’s Frail Condition and Chronically Degenerative Diseases

Now that I had portrayed how scary Victor was – including his superior weight and strength in comparison with John – I then emphasized how John could not possibly have hoped to defend himself against a physical attack by either Victor or Miguel. Specifically, I identified John’s suffering from long-term rheumatoid arthritis and Crohn’s disease – the latter being an autoimmune disease that leaves the body perpetually weak.

Trial Tip:

Anytime you’re arguing self-defense in a criminal trial (or, in certain circumstances, a civil trial), you want to always keep in mind the fact that self-defense is essentially based on reasonable subjectivity. This means that each juror must place themself in the position of the defendant – while accounting for all the defendant’s infirmities and mindset – so that hopefully he or she agrees that based on the history between the assailant, the physical and psychological state of the assailant, and the precise circumstances of the subject incident, the defendant was reasonable in believing that he or she was in imminent danger of being seriously injured or killed by the assailant.

I summed up this portion of my opening by stating that it could not be reasonably disputed that based on how John was so physically weak – i.e., quasi-emaciated at six feet tall but only weighing 150 pounds with no muscles to speak of – that he was literally unable to protect himself without a firearm. To garner further sympathy from the jury, I also explained that John was a meek, gentle, and sensitive person who had been traumatized by having been raised by a severely bipolar mother who was an up-and-down manic depressive who acted very aggressively at times towards her own son. I suggested that Victor’s own behavior towards John – i.e., where he was sometimes friendly and other times threatening and hostile – itself seemed symptomatic of undiagnosed bipolar disorder that in and of itself triggered John’s childhood trauma.

The Gun

I could see at this point in my opening that every one of the 12 jurors and two alternates were enthralled by the compelling details of John’s story and how he ended up on trial for murder. This interest only increased when I turned my attention to the post-Civil War era .41-caliber Colt revolver at issue here. See:

I explained that because of Victor’s increasing hostility, aggressiveness, and threats, he started bringing the gun to band rehearsal for his own protection.

The details of the firearm itself were understandably fascinating to the jury – it was a 120-year-old heirloom (dating from the late 1880’s) that had initially been acquired by John’s great-grandfather when he worked on railroad trains, and that he carried for protection against train robbers so prevalent at that time (think Jesse James and his gang). I told them that the revolver was typically secured in a glass display case at his father’s house. And up until 2013 (four years prior to the incident), when John purchased ancient bullets at a gun show, he had never once fired it. He did so at some point thereafter because he was curious to see if it would actually fire. So he went into the woods, fired it twice, saw that it worked, replaced it in its display case, and promptly forgot about it – that is, until Victor started threatening him four years later.

The Day of the Incident

Now that I had set the proverbial stage for the jury – i.e., the history leading up to the fateful day at issue – I stated that the day before that night, Victor had called John to come to band practice as proven by John’s text message to his sister confirming that he was heading up that day to band practice at the Garcias’ Long Beach home.

Next, I laid out the 90 minutes leading up to the incident – beginning with Miguel buying a bottle of Jack Daniel’s whiskey at approximately 5pm, then arriving at Victor’s house around 10 minutes later. I then explained that Miguel and Victor together consumed about 90% of the entire bottle in less than an hour-and-a-half by knocking back shots and chasing it with Jack-and-Cokes. I told the jury that this 750-millimeter bottle was almost empty when John arrived.

Trial Tip:

Throughout your opening statement, you should be constantly referring to evidence – whether in the form of testimony of witnesses (and in rare occasions such as here, your own client/the defendant), documents, videos, photos, etc. The jury will be taking mental notes (or, if the judge allows, written notes on actual notepads) so it is critical that you come through on each of those promised evidentiary items. Otherwise, the jury will remember that you essentially tried to mislead them. I see deputy district attorneys (or, in misdemeanor trials, sometimes deputy city attorneys) doing this frequently at trial so ensure you don’t do the same.

I then went on to set out John’s purpose in going to Victor’s house that night – i.e., John’s plan was to leave/quit the band and cut things off because he had grown tired of Victor’s aggressive behavior. He also went to return a piece of equipment that belonged to the band. But, of course, he had the ancient Colt hidden in his rear waistband just in case things got out of control. Finally, I said that John would normally go straight into Victor’s sound-proofed garage where the band practiced but that since everyone (band members Victor and Ramon, hanger-on Miguel, Victor’s wife Susan, and their toddler, Ray) was hanging out in the house, he went in there as well.

How the Tragic Events Unfolded

I laid out beat by beat what led to the first gunshot being fired. I could see that the jury was definitely hanging on my every word. I may have even switched to speaking in the present tense at that point in order to “transport” the jurors into that house at that time. I said that when John gets there, it was obvious to him that they (Victor, Susan, Miguel, and Ramon) had been talking about politics while drinking and watching Obama’s concession speech, and that they continued to do so in his presence.

At that point, Victor said he had voted for Trump so the others (Miguel, Ramon, and perhaps also Susan) began good-naturedly giving him a hard time while John remained uneasily silent, concerned about how obviously drunk both Victor and Miguel were – especially Victor, who was speaking very loudly and gesticulating.

John then used the restroom and when he came out, Victor asked him whom he had voted for and he said Hillary Clinton. As John feared, Victor became instantly hostile and aggressive, and used racist, violent, and threatening language towards him. Victor started yelling at John, threatening him. I told the jury that they would hear the details of what Victor said from John himself.

Trial Tip:

Always sprinkle “cliffhangers” throughout your opening statement so that the jury can look forward to the “payoffs” – here, for example, I knew the jurors would be eagerly awaiting to hear what John had to say about the specifics of Victor’s hostile and racist remarks. An even bigger “hook” or cliffhanger I dropped was the promised testimony (again, from John) and evidence (in the form of the photograph) about the object Victor used to attack him.

Next, I will rarely have my client testify – either at the preliminary hearing or at trial – because doing so exposes them to cross-examination and impeachment by the prosecuting attorney. It also results in the defendant opening doors to lines of questioning (via cross) that otherwise wouldn’t be allowed by the judge.

But I made an exception in John’s case because I knew that his entire defense would come down to his word against that of the three prosecutions witnesses (again, Victor, Miguel, and Ramon – not including Detective Sellers). I also knew that John’s personality and truthfulness would come through on the stand and allow the jury to emotionally connect with him. My hope was that they would not only sympathize with him, but actually empathize with him. So when your client has nothing to hide – particularly when the case comes down to “he said, she said”, then you should consider putting him or her on the stand.

The Shooting of Victor

I finally came to the firing of the first bullet, explaining that Victor had grabbed a dangerous metal object off the kitchen counter and tried to attack John with it. I said that it was only then that John had pulled out the ancient Colt and pointed it at Victor, telling him to “Get back.” But instead, Victor lunged towards John, who then tried to shoot the object out of his hand. Unfortunately, however, because Victor lowered his head as he charged John, the bullet instead carved a groove across the top of his head, seriously injuring him.

The Killing of Susan and Near-Miss of Ray

I next explained that Miguel then also rushed at John, grabbing his “gun hand” and thereby causing the second bullet to fire – this time unintentionally with the tragic and accidental result of it striking Susan in the upper torso, killing her, and missing Ray by inches. I quickly moved on to describing the horrific beating Miguel inflicted on John who, without the gun, was utterly defenseless.

I’ll finish up my comments about my opening in the next blog.

My Opening Statement (continued)

The Beating of John at the Hands (and Feet) of Miguel and Ramon

I continued my opening by illustrating the fact that while Miguel Rea was beating John to a pulp, Miguel actually called out to Ramon Chavarria to enlist his help in the thrashing. Ramon, I told the jury, then rushed over and kicked John at the very lease – and likely far more than — several times in the head. I finished my description of the merciless and bloody attack on John by stating that it was only at the very end of that ordeal that John somehow managed to free his hand to scratch Miguel’s face – because, I emphasized, John truly believed he was about to die. I also emphasized the fact that this was exactly why John had been so terrified that he felt he needed the protection of the ancient Colt because he knew he was physically too weak to defend himself against such a vicious attack.

At that point, I moved closer to the jury box so they could see my disdain for the prosecution’s witnesses (most particularly Miguel and Ramon), stating that the jurors should listen very carefully to their testimony because they were going to drastically downplay the near-death beating they gave John. In other words, I said, they were going to lie.

Trial Tip:

It’s definitely risky to predict to a jury during your opening about how the prosecution’s witnesses are going to testify – obviously, if you’re wrong, your predictions will blow up in your face. Here, however, I was very confident that they weren’t going to change their story – that is, the version of events they gave to police the night of the incident, as well as how they testified at the preliminary hearing. (See People v. Slaughter (1984) 35 Cal.3d 629, 637-638) (describing the purpose and process of a prelim).

So if you feel that strongly about your prediction, then go with it – because the jury will see that everything you said was going to happen during the trial-in-chief did, which in turn will make them predisposed to believing your (and your client’s version) of events over the deputy district attorney and his/her witnesses (or the deputy city attorney, if your case involves a misdemeanor trial in the City of Los Angeles.

Because of the traumatic brain injury he sustained, which resulted in permanent damage to Victor Garcia, and based on his prelim testimony, I knew that he would not be able to testify as to anything that happened after he was shot. That meant the murder charge (California Penal Code section 187) for the killing of Susan Yang Garcia would come down to the combined testimony of Miguel and Ramon against John’s. But I was fairly certain that the two buddies would stick to their same ludicrous story – i.e., that they barely punched John while trying to restrain him – a story that was utterly belied by the gravity and nature of John’s injuries, as well as by the forensic evidence recovered at the scene. I also strongly suspected that DDA Kim would do nothing to jeopardize her case by actually having her witnesses tell the truth.

In all fairness, even if they had testified truthfully so at trial, I would have thoroughly impeached them with the statements they had made to police and with their prelim testimony – i.e., I would attack them with “Are you lying now or were you lying then?” (or words to that effect).

In other words, DDA Kim was damned either way since her witnesses had obviously lied to the police when (barely) questioned by LBPD detectives and police that tragic night. As it turned out, I was right on the money – both Miguel and Ramon would essentially perjure themselves on the stand – that is, until I forced them to admit to the severity, gravity, and duration of their combined attack on John. See Perjury (California Penal Code section 118).

No Evidence of John’s Motive or Intent to Shoot or Kill Anyone

Now that I was done eviscerating the prosecution’s version of events (or at least as told through the People’s three main percipient witnesses – i.e., those individuals who supposedly witnessed the alleged crimes with their own eyes), it was time to attack the primary element required in a murder prosecution – the element of intent (i.e., motive). See CALCRIM No. 520. First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187).

Here, aside from DDA Kim’s ludicrous “jihad” and voting-for-Hillary Clinton angles, I pointed out the glaring lack of an actual motive or intent on John’s part to commit the crimes for which he was now being tried. Again, I told the jury that as they would hear from the prosecution’s witnesses themselves, John had never displayed any aggressive behavior toward any of them or towards anyone else (that they were aware of). “You’ll hear them testify that at all times, he was a calm, nice, peaceful guy who got along with everyone in band, and who didn’t have a racist or mean bone in his entire body.”

I then explained that John had no motive to harm Susan because he barely knew her — she was never present during band practice in the Garcias’ garage. Moreover, he didn’t even know or expect that she would be there that evening. (Again, the only reason John even went into their home that night was because no one was in the garage – instead, they were partying in the kitchen.) Nor, I said, did John have any reason to want to harm Miguel or Ramon, who had been friends with Victor for over 15 years but otherwise barely knew John outside of the band.

And that’s when I turned the tables and directly placed the blame on Miguel and Ramon for John’s current predicament – they had every reason to lie about John supposedly blasting away at everyone for no apparent reason because they wanted to protect Victor. Specifically, as I told the jury, they saw Victor attack John with a dangerous object – without provocation – so they wanted to protect their buddy and ensure that the guy who shot him in self-defense nevertheless went to prison for life. I added that Miguel and Ramon also wanted to protect Miguel for nearly beating John to death and for Miguel causing Susan’s death (and the near-shooting of Ray) when he, too, attacked John and grabbed his gun hand.

Further, I explained, aside from Miguel’s motives to lie, his testimony should be disregarded because his highly drunken state made him an unreliable witness. For the same reason, I added, Victor’s testimony should be disregarded – i.e., aside from his brain injury (which, but for his unprovoked and deadly attack on John, would not have occurred), he was also extremely drunk. (One thing I should have mentioned to the jury is the fact that LBPD did such a sloppy job investigating the incident that, despite seeing the virtually empty Jack Daniel’s bottle, empty shot glasses, and large tumbler of Jack-and-Coke, they didn’t bother testing the blood alcohol levels of Victor, Miguel, and Ramon.)

Finally, I warned the jurors to watch out for Miguel and Ramon’s lies about their claims that Victor had only been “joking” when he threatened to kill John and when he said that “all White people should be killed” – again, another attempt to protect their good friend. I pointed out that there was no way for John – or any reasonable person in his position, for that matter – to know that Victor was joking when he had made those threats, or when he waved his Mossberg assault shotgun in John’s face, warning him not to leave the band.

John’s Statements to Detective Sellers

I finished up my opening statement by going into Detective Sellers’ tunnel-visioned interrogation of John after the shootings. But first I explained John’s state of mind at the time Sellers came to his bedside at the hospital – John was heavily sedated from pain medication and was in severe pain from cuts, wounds, bruises, and a neck fracture. He was also beyond physically exhausted by the time Sellers arrived at 5:30 am – more than ten hours after the incident.

By this time, I told the jurors, Seller had already spoken to Miguel and Ramon and unreservedly accepted their concocted version of events as the truth. He had his mind made up, he was there to get a confession, and he had no interest whatsoever in getting an explanation of what actually happened or otherwise hearing John’s side of story. This is the very definition of an ignorant and incompetent detective – though, of course, I didn’t dare use those precise words in front of the obviously pro-prosecution judge.

(By the way, the judge herself was an interesting character who wore a Covid mask the entire time that was illustrated to look like the bad guy (“Immortan Joe”) in the 2015 film Mad Max: Fury Road, giving her a bizarre and disturbing visage. And any doubt I may have had before the trial commenced that she was pro-prosecution was erased by the fact that I had heard from reliable sources that she was married to a senior law enforcement officer.)

Finally, I nailed home the fact that – as I said the audio recording itself would confirm – the detective – no less than eleven times – ignored, failed to follow up on, or outright shut down John’s attempts to explain that he had only been defending himself when he shot Victor, and that he had been viciously attacked by Miguel immediately thereafter, which caused the second bullet to fire. Instead, I told them, he only wanted answers that confirmed that John had shot Victor (though at that point John was not yet aware Susan had been shot, or even that he had fired a second bullet). “As far as the detective was concerned,” I said, “he only wanted answers from John that would fit in nicely with a murder prosecution. In other words, this detective couldn’t have cared less about the truth.”

And that was the end of my opening statement – now the trial-in-chief could begin.

The Prosecution’s Direct Examinations and My Cross Examinations

Victor Garcia

As a survivor who was badly and permanently injured by John’s firing of the ancient Colt, it made perfect sense for DDA Kim to put Victor on the stand first. Not surprisingly, though, his recollection of what happened that night was hazy, and certainly could not recall anything that occurred after John had shot him. See:

However, he did deny all the awful things he had done to John – both leading up to the incident, as well as the incident itself, namely:

  1. That he had ever bullied John or made any threatening or racist comments to him;
  2. That he had ever brandished his SWAT-type tactical shotgun to John; and
  3. That he had attacked John that night, much less with a dangerous object.

Again, Victor’s head wound prevented him from recalling much of anything from that night, including whether he had gotten into a political discussion or argument or anything else of that nature (one-sided or not) with John or with anyone else that night.

But during my cross-examination, he admitted that since he had just been shot, he didn’t see John fire the second bullet which struck and killed Susan. Nevertheless, he again denied threatening John, and claimed that John inexplicably shot him without provocation. Again, at no time did he mention that he had attacked John. He simply couldn’t remember.

Because of his head wound and resulting memory loss, all in all Victor presented as an unreliable witness for the prosecution. As a result, I didn’t think he did much damage to our defense. The jury was clearly looking forward to the testimony of witnesses who could recall what happened on the evening of January 10, 2017.

Miguel Rea

As I previously mentioned, I believe the deputy district attorney, DDA Kim, who was prosecuting the case, blundered by failing to have Miguel mention the true extent and severity of John’s beating – again, Miguel only claimed to police and the prosecutor that he had merely “restrained” John. On DDA Kim’s direct, he also seriously downplayed the drinking, claiming he and Victor had only had a “few drinks” – another flub on the prosecutor’s part.

On cross, I got Miguel to admit that Victor had showed off his shotgun, which he also admitted had made him feel very uncomfortable.

Another line of cross-examination that positively blasted Miguel (and, by extension, DDA Kim herself) was his preposterous claim that despite being only a few feet away, neither he nor Ramon actually saw John shoot Victor – again, testifying otherwise would have necessarily implicated Victor in attacking John, and therefore John firing at him in self-defense. The upside of this for the defense meant – as the two jurors would later confirm to me – that Miguel and Ramon came across as highly unreliable witnesses. Coupled with the fact that Victor’s memory of the incident was extremely hazy, this left John as the only person who could clear up the confusion (which he did beautifully, I thought).

However, Miguel blatantly perjured (California Penal Code section 118) himself when he testified that after hearing the first gunshot and seeing Victor on his back, he saw John pivot with his arm fully extended and fire at Susan without provocation or explanation.

On cross, however, I tore his story apart piece by piece, detail by detail. I got him to admit that he and John were struggling with the gun in John’s hand and that perhaps that “might” have caused the gun to fire – a far cry from Miguel’s original testimony on direct.

I also blasted his testimony that he had only struggled with John for the purpose of holding him down until police could be summoned. Specifically, I quickly wore him down to the point where he admitted punching John so many times that he couldn’t remember the actual numbers of blows he inflicted upon John. I even got him to admit that he had been forced to take a breather once or twice because he was so winded from beating John. (The Follow-Up Police Report also confirmed that Miguel “got on top of him and punched him an unknown number of times on the face.”)

In addition, I got Miguel to admit that at one point during the beating, he actually called out to Ramon to have him come over and kick John in the face! But when I asked Miguel if Ramon had kicked John in the face or head more than once, Miguel became extremely cagey.

Best of all, I was able to confront Miguel (and, again, by extension DDA Kim) with an LBPD police report that he had “started ‘whaling’ on him’’, meaning that he had in fact repeatedly punched John while he lay helpless on his back.

As the two jurors would tell me after the trial, neither Miguel nor Ramon had presented as believable, much less trustworthy, percipient witnesses because of the two friends’ almost painful attempts to cover up for themselves, as well as for Victor.

On rebuttal, the prosecutor sought to deflect from the obvious life-threatening beatdown John had taken by making a big deal about a single scratch near Miguel’s eye — specifically, she argued that this minor injury served as evidence that he and John had essentially been engaged in mutual combat, and that he had been forced to defend himself against John – another big mistake, I thought.

But as John would testify on direct, he admitted to trying to claw Miguel’s eyes as he felt certain he was about to be beaten to death, and because he was too physically weak to otherwise defend himself against the onslaught.

More on Miguel’s trial testimony will be coming up in the next blog article.

Trial Testimony by the Two Main Prosecution Witnesses

Miguel Rhea’s Direct and Cross-Examinations (continued)

I also eviscerated Miguel Rea’s spurious claim that he had supposedly heard that John had said the word “jihad” or something to the effect that John himself was a “jihad” while John was being beaten. I got Miguel to admit that John might have said something else entirely. (It was never determined what, if anything, John had said during the attack. John himself never recalled saying anything as he was struggling to breathe during the assault.)

Again, Miguel had told Detective Sellers (who had interviewed him later that tragic night) that he didn’t see the first gunshot because he had been looking at Ramon at the time. This directly contradicted what Miguel had told the initial investigating uniformed LBPD officer on scene that he had stood up to speak to John (and, therefore, he must have been looking at John). When directly called on this glaring discrepancy, Miguel simply muttered some nonsensical and obviously evasive response.

In fact, as I nailed him on cross and pointed out to the jury, Miguel had told the follow-up detective (not Sellers) that at the time of the first gunshot, he (Miguel) had been looking at Ramon, who had been sitting at the table, so he wasn’t sure whether Victor had been seated or standing when he was shot.

All he knew was that Victor ended up on the kitchen floor as a result, and that it was only after Susan had been shot that he (Miguel) had noticed John was holding a gun in his right hand. But nobody in the jury box was buying Miguel’s obfuscation – but, again, they wouldn’t know what actually occurred until John finally took the stand in his own defense.

One truthful thing Miguel confirmed was the fact that he had arrived at 5:30 pm or so with the bottle of Jack Daniel’s. And although, again, he totally denied that he or Victor were highly intoxicated that night, the jury know had heard from the horse’s mouth that virtually the entire seven hundred and fifty milliliter bottle within an hour and a half of John firing the first bullet.

Similarly, Miguel also confirmed that Susan Garcia and her & Victor’s young son, Ray Garcia, only arrived 60 minutes before she was killed (or about 6:30 pm). This helped bolster my argument/allegation that only Victor and Miguel had consumed at least 90% of the entire bottle. (There are 16 shots in this size bottle, which is also commonly referred to as a “fifth” – see: This is the equivalent of drinking 16 beers.) Again, at most, Susan only had one or, at most, two shots herself. In addition, Miguel confirmed that Ramon had arrived 30 minutes after Susan – or only one half-hour before the shootings. Again, as with Susan, Ramon only had a few shots of whiskey that night.

Actually, though, John had arrived to the Garcias’ residence at approximately 7:30 pm, which could have been as early asten minutes, but not less than five minutes, before the first bullet was fired. (The precise time – i.e., to the minute – was never determined.)

Interestingly, Miguel – in seemingly contradiction to his other testimony that he hadn’t seen what happened when the first shot was fired – admitted that he had actually been standing right next to John in the kitchen momentsearlier, discussing a motorcycle that John used to own (or still did). (Miguel told police he hadn’t seen John in 18 months since they both attended a concert the band had played in Santa Ana (Orange County, CA).) Keep in mind that this directly contradicted his other testimony that he was looking at Ramon when he heard the first shot. In fact, he actually claimed he hadn’t even heard the first shot go off – he merely saw Victor fall backwards, before he claimed John swung his gun towards Susan, arm fully extended, and fired at her without provocation.

Notwithstanding, Miguel knew he was performing terribly as a prosecution witness – he had a difficult time maintaining eye contact with me (or even the prosecutor), he constantly fidgeted on the stand, his shoulders drooped a little, and he spoke in a halting, low voice – all, at least to me, indications that he was, at minimum, aware that he was lying and that he knew that the jury knew he was lying.

Ramon Chavarria

Both Ramon and Miguel greatly downplayed John’s role in the band, claiming he was really just a groupie or hanger-on when, in fact, as I got both of them to admit on cross, John was not just a guitarist for the band, but a promoter and vital financial sponsor who regularly provided equipment for free that the others were unable or unwilling to pay on their own. They also admitted that they never reimbursed John. By the time I was done with that line of cross, the jury had a clear picture that the band had been shamelessly taking advantage of John.

By the way, I forgot to mention that Miguel had lied to the interviewing LBPD officer by claiming he “has only seen Suspect McVoy a few times at the band’s concerts. They never talked and they don’t know each other.”

On direct, Ramon testified that at the time of the first gunshot, he had been looking down because he was twisting the top off a plastic water bottle. Ramon himself had confirmed to an LBPD officer that “he just saw his two friends get shot.” In other words, this supported my conviction that he had lied on direct when he claimed that he had not witnessed Victor being shot.

Like Miguel, Ramon testified that after hearing the first shot, he looked in John’s direction and saw him extending his arm with the Colt aimed towards Susan. (It was obvious to me, at least, that he and Ramon had quickly concocted this nonsense in order to implicate John in a First-Degree Murderat California Penal Code section 187(a), California Penal Code section 188, California Penal Code section 189(a) & California Penal Code section 190 charge and to absolve their good friend Victor of any wrongdoing.)

Ramon, as Miguel did, testified that Victor had only been joking around with John that night about Hillary Clinton and making the racial remarks, claiming that Victor had a peculiar, deadpan sense of humor. He also claimed, as he had originally told a uniformed officer at the scene that night, that no one had been arguing about politics or any other subject just before the first shot was fired: “During entire conversation everyone was calm, and no one was arguing or disagreeing.”

As I had done with Miguel, I went in detail over where everyone was supposedly sitting or standing at the time the first bullet was fired. I knew Miguel and Ramon wouldn’t be able to keep their stories straight, which would further underscore their deceitful testimony. And sure enough, they repeatedly contradicted each other. For example, Ramon testified that both of them were seated at the kitchen table when Victor was shot – obviously contradicting Miguel’s claim that he had been standing up in the kitchen. Unlike Miguel, however, he admitted that he had heard what at first he believed to be a firecracker.

By the way, had I used my gun expert at trial, he would have testified that John’s particular .41-caliber Colt model – particularly in the confines of that relatively small kitchen/living room – would have sounded like a cannon going off. He was prepared to go into comparing decibel levels of certain sounds, with the gunshot equivalent to a fire engine siren going off in the home. See: Again, however, I decided his testimony was not important enough to extend the trial.

As with Miguel, Ramon testified that after Victor went down, he (Ramon) saw John standing across from Susan with his arm fully extended away from his body and pointing the gun directly at her and her son (but never saying anything). John then shot a second time, striking Susan and causing both her and her son to fall on the floor. He then said he saw Miguel immediately get up and rush John. While Miguel was struggling with John, he saw that the gun was still in John’s right hand. He got the gun and ran outside to hide the gun so John could no longer use it. Of course, it wasn’t until I got him on cross that he finally admitted to kicking John in the head “once or twice”. Even then, however, he was unable to explain why there was so much blood on his pants legs. (Sloppy police work resulted in LBPD not testing the blood to determine whose it was – since, conceivably, it could have belonged to Victor or Susan.)

Ramon testified that they had all been watching Obama’s farewell speech when John admitted to having voted for Hillary Clinton. At that point, Ramon claimed that Victor responded to John jokingly, saying, “Get the fuck out of my house.” John didn’t respond and remained quiet most of the time he was there. John remained standing and paced around in the area between the living room and dining table the whole time. All of a sudden, Ramon claimed he heard a “pop” sound and saw Victor drop to the floor in the kitchen near the refrigerator. He then said he heard a second pop sound and saw Susan immediately drop to the floor next to the dining table.

After Miguel rushed and tackled John, Ramon stated that he “went for John’s arms” to disarm him. He said the gun fell to the floor and slid over to an area under the kitchen table. He testified that he heard Miguel yelling at John repeatedly: “Why’d you have to do it?” Again, Ramon minimized the extent of the beating Miguel inflicted on John, but he admitted on cross that he had told Detective Sellers (at around 2:15 am on January 11, 2017 – about four and a half hours after the incident) that “Miguel was struggling on the ground with John and was hitting John, trying to control him.”

Finally, Ramon testified on direct that he went over to the dropped gun, picked it up, and called 9-1-1 from his cell phone before going outside to put the gun in a flowerpot. He said he then picked up Ray and took him to a neighbor’s house across the street until police could arrive.

Detective Sellers

Miguel told Detective Sellers hours after the incident that as he struggled to control John on the ground, he had shouted, “Why’d you have to do it?”, to which John supposedly responded, “I’m a jihad” or a “ya-heed”, which confused Miguel. However, on cross, the detective admitted that LBPD had found no evidence whatsoever that John was a supporter of ISIS or any other terrorist organization, or even that he harbored particularly strong views about politics in general. In other words, the whole “jihad” motive was a “nothing burger”. (Notably, on cross, Ramon admitted that he himself had not heard John say anything that sounded like that, or anything at all, for that matter.)

I caused immeasurable damage to the detective’s credibility when I went carefully over the transcript of John’s interrogation with him. I pointed out and quoted no less than eleven times when John tried in vain to explain that he had only been defending himself, after which each time the detective shut him down.

Both jurors would later tell me that the entire jury had been appalled by the detective’s blatant refusal to hear John’s side of the story. In other words, the entire jury was convinced that once the detective had made up his mind about John’s guilt, he had no interest in hearing anything else that would detract from that belief. In fact, both jurors told me they were shocked that the detective was even allowed to conduct such a one-sided criminal investigation. Welcome to the world of L.A. County law enforcement.

I didn’t consider the detective to be a particularly bright individual so it was easy to run intellectual rings around him during my cross examination. Again, instead of directly answering my questions, he would often turn to face the jury to explain to them how detectives supposedly operate. But they could tell he was simply scrambling to cover up his own incompetence and bias towards John.

John Takes the Stand in His Own Defense

Before John had taken the stand, the jury (as I would, of course, later learn) was still uncertain about exactly what happened that night. They had heard the prosecution’s witnesses testify about John supposedly shooting both Victor and Susan without provocation, but then saw that testimony torn apart on cross. The jury knew that Miguel and Victor were clearly lying to protect their friend – lying about numerous issues as previously discussed – so their individual and collective testimony was rejected. And since Victor had trouble remembering what even happened that night due to his brain injury, his testimony was also unhelpful in filling in the missing gaps of what actually transpired.

But John’s testimony would change all that and finally help everything fall into place for all 12 jurors. Until then, they weren’t sure about why John had felt the need to arm himself that night, or why he even went over to the Garcias’ residence.

As far as John’s demeanor and composure on the stand, including during cross where he was unflappable, I couldn’t have been more pleased. He was soft-spoken, calm, and otherwise came across as extremely credible. DDA Kim would later make a huge deal about John’s confusion in pinpointing the exact date – whether it was two weeks or four weeks before the incident – that Victor had brandished the shotgun at him, but the two jurors would later tell me that, too, was a nothing burger (or as William Shakespeare put it, “Much ado about nothing.”

Otherwise, it certainly helped that in the almost five years between the incident and the trial, John had never once wavered in his version of events – most importantly, what he told Detective Sellers early the following morning.

But John’s gaunt physical appearance confirmed that he suffered from Rheumatoid Arthritis and Crohn’s Disease. I carefully walked him through each and every symptom he suffered from as a result of these debilitating diseases, and I could almost feel the jury’s sympathy from across the courtroom. I also walked John through his childhood and adulthood, family life, his marriage and divorce, work history, etc. – all for the purpose of humanizing and making him relatable to the jury. Up until now, they couldn’t get an accurate read as to what kind of person he was.

Next, John testified in detail and at length about his involvement in the band, as well as his relationship with Victor over the years leading up to the incident. This line of testimony soon turned towards Victor shamelessly taking financial advantage of him. I made sure to have John talk about how, after John began indicating that he wanted to leave the band, Victor began brining around unsavory characters to band practice: “He brought shady looking guys with face tattoos, tough looking guys that looked like thugs or gang members. They wore hoodies and didn’t talk to anyone. Victor acted like they were part of his crew, and he flaunted his connection to them.” Again, these were apparently hardcore members from East Side Longos street gang in Long Beach.

I’ll finish discussing John’s testimony in the next blog article.

John’s Trial Testmony (continued)

Notably, John testified that once he helped the band secure the guitar strap sponsorship deal (see, e.g.:, Victor’s attitude towards him suddenly became both imperious and overbearing – and that’s when the bullying started in earnest.

When coupled with his testimony about the bullying, I believe John’s description of his emotionally abusive childhood by a mother who suffered from severe bipolar disorder (back then such a sufferer was commonly referred to as a “manic depressive”). See:

This testimony was particularly poignant when John talked about how his mother’s abuse was almost identical to the way Victor pushed and ordered him around, then would act like his longtime friend again, before reverting back to his intimidating manner. The jury clearly saw that Victor’s behavior triggered John’s post-traumatic stress disorder (PTSD) that his mother had inflicted upon him. See: And it should go without saying that all of this contributed to John’s ultimate need to defend himself.

Next, I had John talk about three separate incidents in the months and weeks leading up to the tragic night where Victor acted in a threatening and hostile manner, including the incident where Victor threatened him with the tactical Mossberg 12-gauge shotgun.

In fact, as John explained to the jury, the reason he wanted to tell Victor that night (January 10, 2017) that he was leaving the band for good was because he knew other people would be present: “I went to Victor’s house to return the equipment and tell him I’m quitting the band. I didn’t think he would do anything with the other band members there. Until then he had only threatened me when we were alone.”

After arriving at the Garcias’ residence in Long Beach, John explained that the reason he didn’t sit down at the table with Victor and the others (even after Ramon offered him a seat) was because he simply wanted to make his announcement that he was quitting the band and leave. However, the obvious state of Victor’s inebriation made him nervous and uneasy, so he remained standing, pacing back and forth. This feeling of dread, of course, only increased when Victor began yelling at him about voting for Hillary Clinton, claiming all White people should be killed (“I want to kill all white people” is what Victor specificall told him), and so forth.

In fact, according to John, their exchange went like this:

Victor: “All white people should die. I hate all Whites and they should die”

John: “Hey man, you’re being racist. Not all White people are corrupt politicians. That’s racist, man.”

Victor: “You talking shit to me in my house, White boy?! You better shut the fuck up!” John said he knew Victor was not joking – he wasn’t smiling or laughing, and his eyes were filled with rage and hate.

And that’s when Victor raised his hand with a metal object and came towards John in a threatening manner, clearly intending to attack him. Importantly, John confirmed that he was not angry in any towards Victor (or anyone else in the house) and that he certainly didn’t shoot Victor because of any such anger.

In response, John pulled the ancient Colt from his rear waistband, pointed it at Victor, cocked the hammer as a warning, and even said, “Back off!” But still Victor charged at him (though I wonder if Victor would have done so had he been sober).

Then, on the big screen in the courtroom, I displayed the LBPD photo of the metal can opener – blown up to show its details – so John could confirm that this is what Victor had attacked him with. See People v. Aledamat (2019) 8 Cal.5th 1 (definition of a “dangerous weapon” to include any “inherently dangerous” object that can cause serious physical harm or death).

This was the moment – the proverbial “smoking gun” that I had been waiting to drop since my opening statement, and the jury’s reaction did not disappoint – you could have heard a pin drop in that room. If there were any vestiges of doubt in their minds that John had been acting in self-defense – at least in regard to Victor’s attack – then that was instantly dispelled when I put that photo up on the screen. I couldn’t resist taking a quick glance at DDA Kim and Detective Sellers (who sat next to each other during the entire trial at, of course, the prosecution table, which was situated closest to the jury in comparison to the defense table) – Sellers was furiously whispering in Kim’s ear while she was just as furiously taking notes. The importance of this photo, combined with John’s testimony about the can opener, certainly did not escape them – i.e., they were aware that the outcome of the trial was far from a foregone conclusion (as many murder trials are, in my opinion).

At this point of his direct testimony (see California Evidence Code sections 765-778), I made sure to slow John down so he could explain in detail the emotions surging through him. These were some of the questions I asked him: “How were you feeling when Miguel rushed you? Were you scared? Why?” John, not surprisingly, replied that he was absolutely terrified because first, Victor had tried to attack him with a sharp metal object (that from day one, John had told me he believed was a can opener taken from the kitchen counter). (By the way, had LBPD – most particularly Detective Sellers – done their job correctly, they would have realized the Garcias’ kitchen was missing a can opener, which should then have motivated them to do a more thorough search for it. After all, who doesn’t have a can opener?)

Then Miguel lunged for him: “I was outnumbered, and I thought they would hurt or kill me. They’re much stronger than me.” John believed Miguel outweighed him by at least 50 pounds (but he actually outweighed him by a staggering 75 pounds).

Next, John testified that he wasn’t sure how the second bullet was fired – it could have been Miguel grabbing his hand, which then caused the ancient Colt to discharge. Again, he emphasized that everything happened in seconds.

I then had John go into detail about what happened, and how he himself felt immediately after Miguel tackled him to the ground (after the second shot was fired). These are some of the questions I asked him: “What happened after Miguel tackled you? How did he beat on you? Did he punch, knee, or choke you? How many times did he choke you? Did it hurt? Were you gasping for air? How did it make you feel? Were you scared for your life? Did you think Miguel was going to kill you? What did you do to Miguel and when? Why did you poke Miguel in the eye or scratch his eye? What did you do while Miguel was punching and choking you?”

After that, I had John recount how, while Miguel was punching him over and over, Ramon stomped on his stomach with his foot then kicked him in the head several times. John truly believed he was about to die – and, as I later learned, every juror believed him (since they, too, would have felt the same way under these circumstances and if they were in the same physical condition as him – which satisfies several of the requisite elements in order to establish a valid self-defense in a homicide case (murder — California Penal Code section 187(a)), California Penal Code section 188, California Penal Code section 189(a) & California Penal Code section 190, attempted murder — (California Penal Code section 664) & California Penal Code section 187(a)&(b))and manslaughter (California Penal Code section 192(a)). See CALCRIM No. 505. Justifiable Homicide: Self-Defense or Defense of Another.

I then had John drop another bombshell – compelling evidence via his testimony that moments before Ramon dialed 9-1-1, he and Miguel quickly worked out a story that would protect themselves and Victor, and incriminate John for murder and attempted murder.

Specifically, John stated that while Miguel was choking him, he heard Ramon say, “What do I tell the cops?” Miguel yelled, “Tell them that he shot two people!” The implication was blindingly clear: if John had fired away without any provocation or reason (i.e., he “went postal”), then why would Ramon need instruction on what to say to the police? Instead, as no doubt the jury was thinking, Ramon would have said something like “This guy just went crazy and shot two people for no reason!” Instead, he and Miguel had to get their stories straight.

I finally finished my direct with John confirming the horrific nature of his injuries.

DDA Kim’s inexpert cross examination of John literally did no discernible damage to our defense and, therefore, does not merit much space in this blog article. In any event, she had already lost the jury to me by the time I had finished my opening statement.

The Prosecution’s Closing Arguments

Because of the high burden of evidence (i.e., proof beyond a reasonable doubt) is placed on prosecutors, they always get to go first and last in their closings. See CALCRIM No. 220. Reasonable Doubt. See also:

Here, it was not until the Deputy DA made her closing argument at the end of the trial that she finally tried to deflate one of my closing arguments. Specifically, she admitted that neither the police or nor the prosecution had been able to scrape together any evidence of motive – i.e., that John had no reason or interest in harming anyone, most particularly Victor and Susan.

However, DDA Kim reminded the jury that no motive was required in order to find defendant guilty of murder (including First-Degree Murder). See California Penal Code sections 187 – 199 (Homicide). But I knew from extensive personal experience that a prosecutor’s case for murder is always weakened without a motive. Otherwise, how is the jury supposed to know whether the defendant intentionally tried to kill the victim?

Otherwise, the prosecutor saw a tempest in a teacup by overblowing the fact that John had eventually admitted on cross that he may have last seen Victor only two weeks before the incident – i.e., before the receipt for the purchase of Victor’s shotgun. It was her “Aha, gotcha!” moment. And literally the only one she would have during the entire trial.

Note: DDA Kim and I had it out in a sidebar (i.e., conference out of the jury’s earshot) in front of the judge because I had objected to Kim’s desire to argue that John was no different than any of the shooting-spree mass murderers like the kids from the Columbine Massacre.

Not surprisingly, I blew a head gasket, arguing that the DDA had no idea what she was talking about because those kids certainly had a motive for the Columbine shootings – they sought revenge against all the “cool” kids who either ignored or made fun of them. See: Here, I argued before the judge, none of those mass murderers argued self-defense at trial. Further, and more importantly, I argued that a lack of motive is one of defenses considered to be valid to a murder or attempted murder charge, according to CALCRIM. See CALCRIM No. 370. Motive. In the end, in one of my few victories before this judge, she agreed with me and ordered the prosecutor not to compare John to any mass killers.

Otherwise, DDA Kim laid out the facts in a perfunctory and not particularly engaging way – most of which I did not dispute (such as the fact that John brought the ancient Colt with him to the Garcias’ residence, that he shot Victor, and that he shot & killed Susan and almost shot their toddler Ray).

The Defense’s Closing Arguments

One of the numerous battles I lost with the judge was my request that I be allowed to show a large chart I always like to show juries during my closings, which is essentially a diagram of different levels of belief in the defendant’s guilt as required under California law. For example, the chart’s graph shows that if a juror merely believes that the defendant “probably” committed the alleged crime, then the juror must nevertheless vote “not guilty”. However, the judge refused my request – the first time this has ever happened to me in more than sixty (60) criminal trials completed to date – because she wouldn’t allow any chart that shows a “quantification” of guilt. As I argued fruitlessly to her, the chart didn’t have a single number or figure in it, so it could not possibly include any such quantification. But she wouldn’t have it.

I always begin my closings by sincerely thanking the jurors – the 12 empaneled jurors and the two alternates – and telling them that I believe serving on a jury – most particularly on a criminal jury – is the cornerstone of our democracy and, therefore, of the utmost importance. See: And I believe this with all my heart – it is the jurors who determine whether the police and the prosecution have done their jobs correctly by gathering and presenting evidence beyond a reasonable doubt, and without violating the defendant’s constitutional (federal and state) rights. See:

Without a jury of his or her peers, a defendant is otherwise at the mercy of the power of the state – collectively, the judge, prosecutor, and police, who are typically biased against the defendant. Thus, the jury provides impartial common sense whereas the state only provides authoritarian rule. That is not the definition of a democracy. (Of course, I withheld my beliefs that criminal defense attorneys also ensure that civil rights are honored and obeyed by the state – and ensure that we live in a free society with these civil liberties. Who else is going to fight the system?)

I then went directly to one of my strongest arguments, as indicated above – i.e., the fact that there was no motive for murder. I reminded the jury that they saw and heard for themselves that John was simply a genuinely nice and peaceful person – he was reserved but got along with everyone and otherwise never had problems with anyone. He was not racist or even political, and never argued with anyone. He had never showed any hostility or aggression to anyone. “If you had,” I said, “you would have heard about it.”

I told the jury that, of course, an actual motive for murder is vital to the prosecution’s case, regardless of what DDA Kim told them in her opening. See: “Their story makes no sense — why would he do this?” I asked. “John had no ill will towards Susan. And although he was scared of Victor, John also had no ill will towards him or any others there, including Ray. That is the missing piece of the prosecution’s puzzle. And without it, you can’t convict John of murder (California Penal Code section 187(a)) or attempted murder.” See California Penal Code section 664.

One of the issues I hammered home was in direct response to DDA Kim’s “gotcha” moment. I rehabilitated John’s testimony by pointing out to the jury that John was merely confused by the dates and so obviously made a mistake as to when Victor brandished the shotgun and made threatening comments to him.

Besides that, I argued that her “gotcha” moment was also a big nothing burger – “smoke and mirrors,” I said – because John’s personality was so demure and people-pleasing that he was easily influenced to give the prosecutor the “aha” answer she wanted. But I argued that this, instead, simply showed what a docile and compliant person John was – with the obvious implication being that John was not capable of hurting anyone, much less committing cold-blooded murder.

I was next able to tie together all the instances when John felt threatened by Victor – I went over criminal jury instructions (judge used CALJIC (see instructions at: but they mirror CALCRIM). See: (explaining CALCRIM); see also comparing CALJIC to CALCRIM.

I’ll try to finish up my remarks about my closing argument in the next blog article.

The Defense’s Closing Arguments (cont’d)

My next line of discussion in my closing argument was, of course, to summarize how the prosecution’s witnesses all – without exception — fell apart on the stand from the combined and individual weight of their own biased and unreliable testimony.

Specifically, I reminded the jury that both Miguel Rea and Ramon Chavarria had been close friends with Victor Garcia for 15 years, but had only known John for a few months (in other words, very little). As a result, I suggested, the jury should use their basic common sense and reject their testimony for the simple reason that it was obviously tainted.

To support that argument, I pointed out the fact that Miguel and Victor’s stories revealed numerous glaring inconsistencies – i.e., constantly changing stories and each of those fraught with internal and external contradictions. See: I explained that in my experience, the District Attorney’s Office’s witnesses present the story a certain way, then only on cross will admit to more – i.e., they reluctantly reveal the truth of what actually happened.

I then reminded the jurors that none of the prosecution’s witnesses, including Victor and Detective Sellers, were reliable narrators of the supposed/alleged facts. Victor’s testimony was unreliable because of his traumatic brain injury; indeed, Victor himself, I reminded them, confirmed that he had only the foggiest memories of what happened that night, and certainly could not recall anything that happened after he was shot in the head. See: (discussing “post-traumatic amnesia”).

As for Detective Sellers (as discussed in more detail below), his one-sided questioning of John was akin to a predatory falcon that zeroes in on its prey and dive-bombs towards it without caring about or paying attention to anything else.

Here, I reminded the jury, there were almost a dozen occasions when John tried to tell him his own version of events – most importantly, that he had only shot Victor in self-defense when Victor attacked him with a sharp metal object; and – once Sellers had informed John that Susan Yang Garcia had been shot and killed by the second bullet – she had been shot accidentally when Miguel next attacked John, thereby causing the ancient Colt to discharge. In other words, I summarized, Seller’s testimony was therefore entirely unreliable and unbelievable.

Next, I reminded the jurors that Victor and Miguel had been so drunk that based on their high blood alcohol content, which I estimated was as high as three times the legal limit – again, LBPD incompetently failed to test their BACs – something that should obviously always be done when you have a homicide and significant alcohol use. See:

Besides, I said, each juror could use his/her/their common sense and personal experience to determine that Victor and Miguel were extremely drunk – having polished off approximately 90% of the 80-proof whiskey within a maximum time of 90 minutes. See, for example: . Further, the fact that both Miguel and Ramon clearly lied about the alcohol use in order to cover for their good friend Victor underscored the fact that their testimony was biased and unreliable.

I pointed out how incredibly sloppy the LBPD’s investigation proved to be – they didn’t bother testing the BAC of anyone, including John himself. They never tested the blood on Ramon’s pant legs and shoes (from his kicking and stomping of John). Det. Sellers had admitted that he not only had no idea how much was left in the whiskey bottle when police arrived and photographed the purported crime scene.

Sellers also admitted that he (unbelievably) didn’t think the presence or effect of alcohol was germane to the (prosecution’s) case! See, for example:

Indeed, as I stated, the Long Beach Police Department – which had sent over a dozen uniformed officers, at least two detectives (including, of course, Sellers), and multiple technicians (such as a crime scene photographer) — LBPD had not thought to seize the near-empty bottle, shot glasses, cocktail glasses, the half-empty one-liter plastic Coke bottle, and the large tumbler of Jack-and-Coke – all in-your-face evidence that Victor and friends had been heavily drinking that night – a fact which would obviously support John’s (unheard) protestations of innocence based on self-defense.

But, I reminded the jury, aside from conducting his questioning of John with self-serving tunnel vision (because John’s murder conviction would be a nice feather in his professional cap), Sellers and the LBPD’s biggest blunder was not finding the metal can opener under Ray’s high seat – despite the fact that LBPD had photographed the can opener sitting thereunder as part of the crime scene documentation.

Next, I emphasized the fact that Seller’s own willful blindness was merely mirroring that of the prosecution’s – namely, that DDA Kim had gone to great lengths to exclude the receipt of the whiskey purchase because she knew it proved how quickly the Jack Daniel’s had been consumed for the reasons indicated above. I next circled back to my earlier suggestion that the jury should be using their common sense – and most particularly in regard to this issue: “Why don’t they want you to know?” This had been one of the few evidentiary arguments that judge allowed to proceed in the presence of the jury. See California Evidence Code section 352.

I then summarized to the jury the tainted testimony of each of the prosecution’s witnesses, beginning the most benign —

Ramon Chavarria (also known as “Cabbage” to his friends)

The jury clearly didn’t need me to remind them that Ramon had tried to whitewash Victor’s threatening of John – including his racist remarks – as simply the product of Victor’s “outspoken, flamboyant” personality. The jurors knew that Ramon was present when Victor had said things to John such as “That’s what I hate about White People” and “Get the fuck out of my house”, and that nevertheless Ramon tried to shrug it off as merely Victor “joking”. “But, of course, what else was Ramon going to come in and say – “Yes, my friend was aggressive?”

In fact, I said to the jury (whom I was directly facing the entire time of my multi-hour closing argument), literally everything Ramon had said and done regarding the facts in this case has been to protect Victor – as well as Miguel, who, I said, knew it was his own fault that Susan had been killed after he himself had attacked John.

For example, I told them, Ramon “just happened to have had his head down right before the first shot.” Otherwise, he would have had to directly perjure (see Perjury (California Penal Code section 118) himself on the stand by claiming that he hadn’t seen Victor coming at John with an object – “Would he admit that his close friend did that?” I rhetorically asked. “Wouldn’t that be like ‘snitching’ on your friend?”

Similarly, or as I put it — “almost miraculously” – Ramon, as he testified, didn’t even see the bottle of whiskey or the shot glasses on the small dining table. Nor did he see Miguel drinking at all – despite the fact that the whiskey tumbler had been photographed as being directly in front of the very chair Ramon had testified Miguel had been sitting in only moments before the first shooting.

“Ramon doesn’t even remember if Susan was sitting or standing,” I argued. “The only facts he can remember are those that put the blame of John for the first shooting, which was caused by Victor himself for trying to maim or even kill John with the ‘deadly weapon’ (see Assault with a Deadly Weapon (ADW) (California Penal Code section 245(a)(1)), as well as the second shooting, which was similarly caused by Miguel attacking John with Ramon’s help. No doubt, I surmised, Ramon had been concerned about his own potential criminal culpability for repeatedly kicking John in the face and head, and stomping on him while Miguel beat him almost to death. Without John being the bad guy here, I stated, perhaps it would be Miguel and Ramon being put on trial for attempted murder (California Penal Code section 664) & California Penal Code section 187(a)) and assault with a deadly weapon (Ramon’s feet).

I also touched on Ramon’s testimony where he had claimed that his memory of that night overall was “blurry” and “foggy” because “everything happened so fast – in only what seemed like a few seconds” (or words to that effect). Therefore, as I told the jury, Ramon – even assuming for argument’s sake that he was being completely truthful – then he may have very well have gotten the sequence of events wrong.

But, I said, Ramon didn’t deserve the benefit of credibility because, again, by pretending he had a foggy memory means he had an “out” because he didn’t have to testify under penalty of perjury about the aggressive and hostile actions of Victor, Miguel, and, again, even Ramon himself. “And this is what good, old friends do, right?” I said to the jury. “They take care of each other because they have each other’s backs. And sometimes that means lying or otherwise hiding the truth.”

“Now both Ramon and Miguel testified that, again, they only saw Victor fall back after Ramon had heard a firecracker sound – a loud ‘pop’, though Miguel heard nothing – but then afterwards John turned, aimed with his entire arm extended at Susan, then shot her to death.” “But this claim makes no sense,” I reminded the jurors, “because even the prosecutor herself admitted John had no motive or otherwise intended to “go postal” – despite the fact that he barely knew Susan, and had only met her a few times at band practice and never for more than a few minutes of pleasantries.

But then I pointed out a major inconsistency – I said that on direct, when Ramon was supposedly imitating John’s physical gestures in shooting Susan, he had demonstrated with two arms extended as if in a T.J. Hooker” shooting stance with one hand supporting the other to steady the gun when it fired. But on cross, he admitted that he had told detectives that night that he wasn’t sure whether one or two arms had been extended. But, I said, when I cross examined him, Ramon seemed certain that John had only extended a single arm – and Ramon even physically mimicked John doing so.

Next, I underscored the fact that on direct, not once did Ramon talk about how Miguel had been punching John or “whaling” away as Miguel admitted he had done that night to Detective Sellers. Instead, I said, Ramon merely testified that Miguel had been trying to “restrain” John as they struggled on the floor. Again, I said, this clearly shows his bias and how he leaves things out or spins things in his and his friends’ favor. See: Indeed, it was only on cross, I said, that he finally admitted Miguel had repeatedly punched John and that he himself had kicked John once or twice in the face (again, something he omitted from his direct testimony).

On cross, Ramon admitted that Miguel’s beating of John had gone on so long that at one point, Ramon left to place the ancient Colt in a flower pot just outside the front door, then came back to grab Ray, whom Ramon then took across the street to a neighbor’s house. Then, when Ramon returned that second time, Miguel was still punching John in the face and head (and also trying to strangle him as the ligature marks around John’s neck confirmed). In fact, I argued, Ramon was such a hopeless spin-master that he actually testified that John didn’t appear to be physically weak to him – despite the fact that every juror could see how emaciated John was on the stand. “He actually said that John was not physically weak because he and Miguel were struggling on the ground so much that John had made Miguel exhausted. See, Ramon once again failed to testify to the obvious – that is, that Miguel – as Miguel himself admitted on cross – was tired because he had punched John at least 50 to 100 times! That’s how he spins it!”

I next moved on to going over Victor’s testimony – again, he himself admitted that he didn’t remember much about the incident, though he had admitted to taking shots of Jack Daniel’s and drinking from the tumbler of Jack-and-Coke. See:

Victor also admitted that sometimes he and John had been alone before other band members had arrived – despite the fact that Ramon had falsely claimed that this “never happened” because he himself claimed that he had “always” been present when John was there with Victor. But perhaps conveniently, I said, Victor testified that he didn’t “recall” making any threats at any time to John; nor did he recall saying “Get the fuck out of my house” to him that night.

Moreover, I pointed out, the bullet entry wound across the top of Victor’s head was 100% consistent with him being shot while he had had lowered his head and charged at John with the dangerous object. “What would you have done in that situation,” I said, taking the time to look in each juror’s eyes. “Knowing all that you knew about Victor and your own extremely weak physical state, would you have fired at him to protect your own life?”

Having completely destroyed Ramon in the eyes of the jury, I next turned to —

Miguel Rea

The first thing I touched on was the fact that Miguel, on cross, was only capable of providing shifty answers to every one of my uncomfortable questions. About the only straightforward or honest answer he gave me was his admission that Victor had shown him around the house for about 30 minutes before Victor showed him his assault shotgun, making him feel extremely uncomfortable. But even getting that from him, I mentioned, was like pulling teeth.

Far more “painful”, I said, was eliciting admissions from him that confirmed he and Victor had knocked back the equivalent of about eight shots of whiskey in 90 minutes – or one shot just over every ten minutes. “How drunk would you be if you did that?” I asked. “And how many questions did I have to ask him before he admitted all that information?” I pointed out that at first he would only admit to taking “two or three shots”, and then it was “maybe four shots”. Yeah, right – maybe. And even then, he would only concede that he was “buzzed” but “definitely not drunk”. Definitely. See:

Note: Another barometer of how I believed I had been doing thus far was seemingly confirmed by the fact that several local newspaper/online reporters took the time to speak with me after my closing. They both seemed very sympathetic to John, as revealed by their questions. I’m looking forward to reaching out to them, as well as other periodicals, once the 2nd District for the California Court of Appeal  in California either overturns John’s guilty verdict on Second-Degree Murder (California Penal Code section 192(a)&(b); California Penal Code section 187, or, at the very least, remands it back to the state court – i.e., our trial judge – with the order that she allow a self-defense instruction, as well as a manslaughter instruction, to the jury when deliberating the First or Second-Degree Murder charges (California Penal Code section 190).

I’ll continue my summation and analysis of Miguel’s testimony in my closing in the next blog article.

The Defense’s Closing Arguments (cont’d)

Miguel Rea (cont’d)

I kept hammering home each and every duplicitous statement Miguel had made on the stand, such as when he initially claimed on direct that at the time of the first shot, he had been looking at Ramon – but then later, on the cross, he changed his story so that at that time, he was inexplicably facing the kitchen wall. “You heard him say it – he simply wasn’t ‘paying attention’. How do you not ‘pay attention’ when a cannon goes off three feet away from you? Does that make any sense at all?”

Nor did Miguel admit to hearing Victor say anything about White people – “How convenient. Apparently, Miguel had temporary hearing issues – he also told you he didn’t hear the first shot go off, even though Ramon did. But then Miguel, as always, changed his story later – this time he said he might have heard the shot.”

And, I also pointed out, Miguel initially refused to admit that he struggled for the gun and thereby caused his friend’s wife’s death. But then later he said, “I grabbed John’s hand and tried, again and again, to get the gun out of his hand.”

I then read directly from the verbatim notes I had taken during Miguel’s direct examination. After he tackled John, Ramon told the prosecutor that he laid “on top of him, trying to keep him from moving”, and that he (Ramon) was “holding his hands, pinning him down, making sure he couldn’t move”. Miguel had also testified that while they “struggled, John started sliding into the hallway”, “John’s back was on the on the floor”, “I kept pinning him down”, “John was trying to get out of my grip”, and “John started gouging my eye.”

As I told the jury, “Yet not once during his direct examination does Miguel say, ‘I punched him’ It was only on the cross that he admits he punched John more than 20 times?” I explained that “this shows how Victor’s friends present their version of a story without telling the full truth.” See California Evidence Code section 788 (“Attacking or Supporting Credibility”).

Miguel also testified that immediately after he tackled John, he asked John, “What did you do?”, and that John replied, “He’s [i.e., Victor] a jihad’ or a ‘jaheed’”, but Miguel later admitted that he told the detectives that he couldn’t understand what John had said. Miguel also admitted on the cross that John had said it softly and that he – Miguel – might have misunderstood him. See

I then underscored the fact that there was zero evidence of John being a religious extremist – “You would have heard about it. The police took his phone, and laptop – the detective couldn’t remember if they took his iPad too, but you know they did. So if there had been evidence of involvement in terrorism, you would have heard about it.” See California Penal Code section 1523 through Penal Code section 1542 (search warrants).

“And let’s face it – you heard Detective Sellers say that the Long Beach Police Department never called the Department of Homeland Security or any other federal agency, like the CIA, to report John as a possible terrorist. So obviously even the police never believed that the ‘jihad’ or ‘jaheed’ or ‘hee-haw” or whatever Miguel thought he heard John say in his drunken stupor with the sound of the first gunshot still ringing in his ears – was a viable motive. This ridiculous claim shows how out of it Miguel was that he thinks he heard that.”

Next, I emphasized how close to death John had been as a result of the horrific, merciless, and relentless beating Miguel gave him. “He could have killed John with his bare hands in less than a 10-minute period – you heard John testify that he saw stars and started blacking out. Miguel only stopped attacking him because the police got there – less than five minutes after Ramon called 9-1-1. This is exactly why John felt he needed protection.”

And with that, I finished summarizing and criticizing Miguel’s testimony. It was now time to turn to the lead detective on the case —

Detective Sellers

Ripping Sellers apart in front of the jury was almost too easy – after all, he perfectly epitomized the stereotypical caricature of the lazy, dull, and incompetent detective. I methodically ticked off everything that the two jurors would later tell me were Sellers’ most reprehensible qualities.

First, it was crystal-clear obvious that Sellers was completely biased against John from the time the bungling detective arrived on the scene at the Garcias’ home. He was too myopic and close-minded to do more than a cursory, one-sided investigation so everything he did after visiting the home was geared towards ensuring John’s conviction. Again, John was facing the following criminal charges:

One count of murder – either First-Degree Murder (in general) at California Penal Code section 187(a), California Penal Code section 188California Penal Code section 189(a)) & California Penal Code section 190 or Second-Degree Murder (California Penal Code section 192(a)&(b)California Penal Code section 187);

Two counts of Attempted Murder – either Deliberate and Premeditated Attempted Murder (“First-Degree Attempted Murder”) (California Penal Code section 664 & California Penal Code section 187(a)) or “Second-Degree” Attempted Murder (Penal Code section 664);

One count of felony Child Endangerment (California Penal Code section 273a); and

Special Allegation of Personal and Intentional Discharge of a Firearm Causing Great Bodily Injury or Death (California Penal Code section 12022.53(d)).

I then mentioned that the fact that Sellers talked to Ramon and Miguel first supports the defense’s argument that the detective had already made his mind up. In fact, as I reminded the jurors, Det. Sellers admitted on cross that he actually prepared a checklist of everything he wanted John to admit to during the interrogation. “Please recall how on the audiotape, Sellers kept changing the subject every time John talked about how he had been threatened by Victor, about how he felt afraid for his own safety, and about how both Victor and Miguel attacked him. Not once did Sellers ask for details. Instead, on at least those eleven times, you heard the detective shut John down.” See:

“But at the same time, Sellers asked minute details of everything else that he thought would help the prosecution’s case. He admitted to you on cross examination that he didn’t care about whether their main witnesses had been drinking – he didn’t care about how drinking eight shots of whiskey each might have affected their perception and memory of what actually happened that night.” (on how alcohol affects eyewitness recollections).

“You also heard the detective say, ‘I only gather the facts and then the prosecution decides whether to charge the suspect.’ But you all saw for yourselves that he doesn’t gather facts from the other side of the story – here, he only presents a one-sided story to the District Attorney’s Office and of course they file charges.” See:

“In fact, neither Detective Sellers nor Ms. Kim, the prosecutor here, had any idea that John was going to argue self-defense. This came as a complete surprise to them! That’s because the police couldn’t have cared less about John trying to save his own life against not one, but two attackers. – either of who could have easily killed him – Victor with his metal can opener with that hooked claw, and Miguel who would probably have beaten John to death if the police hadn’t arrived when they did.

“And let’s face it – the prosecution wouldn’t have cared if they had heard evidence of John’s self-defense. All they want is a win – at any cost, even if that cost is the truth. They don’t care about justice or what’s right – they only want another conviction.

“But who knows? Maybe the outcome could have been different if they had bothered to listen to what John had been trying to tell them over and over. Maybe John wouldn’t have been prosecuted if they had gone back to look for the can opener. But why would they do that? By ignoring the truth, they have an open and shut case, right? Another notch on their belt.

“And look how eager they were to get that notch – look how fast the police and the prosecution moved on this case. It only took less than 48 hours from the time Detective Sellers finished interrogating John for the DA’s Office to file murder charges against him. Two days to determine the fate of a man’s life – maybe for the rest of his entire life. How long would it have taken them to get John’s side of the story? To go back and search for that can opener? They didn’t even bother to look at their own crime scene photos because if they had, they would have seen the can opener. But I wonder if they would have changed their course of action. I doubt it, don’t you?” See People v. Smith (1993) 13 Cal.App.4th 1184 (finding that a can opener can be a deadly weapon).

“For the last two weeks, you jurors have patiently sat here and listened to the prosecution’s witnesses testifying and Ms. Kim arguing – all so that the so-called People of California – the state, the government – can ensure a victory with John’s conviction. But each of you are the People so let me ask you this – have you heard anything from the prosecution’s side – and, again, that means Victor, Ramon, Miguel, Detective Sellers, and even Ms. Kim herself – that comes across as being impartial or truthful?

“Does it seem to you that they don’t care about the fact that John was nearly beaten to death and all Miguel got was a tiny scratch on his eye? Or that Victor and Miguel were so wasted on whiskey that perhaps that would have caused them to attack John, who hadn’t even had a sip of booze that night? Hell, you even heard Detective Sellers say that he didn’t care about whether they had been drinking, and didn’t care about how that much hard-alcohol consumption could affect aggressiveness and memory. Isn’t that supposed to be his job – to care about anything and everything that could affect both witnesses and the suspect in a murder case?” See: (effect of alcohol use on aggression and violence).

To further support my opinion that the entire murder investigation had been run in a sloppy, slip-shod manner, I said to the jury that Det. Sellers never bothered to re-interview Miguel and Ramon – including even after Sellers had at least gotten snippets of John’s protestations of innocence based on self-defense. Sellers never even bothered to go back to question them about how many shots of whiskey they had had that night. Sellers had definitely heard that much at least from John. See: (importance of follow-up interviews in criminal cases).

Instead, law enforcement put their understandably limited time, energy, and resources into drafting a search warrant affidavit, obtaining the signed warrant, and executing it by raiding John’s father’s house (where John had lived for many years up until the date of his arrest). All they found – which John’s father readily took them directly to (in a hallway closet) – was a box of the .41-caliber Long Colt cartridges, which matched the bullets and bullet fragments found at the purported scene of the crime. Again, when “interviewed” by Det. Sellers, John never denied that it was his own firearm – the famous Wild West-era long-barreled six-shot revolver manufactured by Colt since the mid 1880’s – and that same ammunition that resulted in Victor’s wounding and Susan’s death (and Ray’s near-miss).

“You would think,” I started to the jury, “that at the very least, the Long Beach Police Department and – or the Los Angeles County District Attorney’s Office would at least want to determine whether there were any holes in their version of events in order to shore up any potential weaknesses at trial.

“But that’s certainly not what the prosecution – that is, the combination of the DA’s Office and Long Beach PD – did here. They were completely caught off guard when John testified, right? That’s because they had no idea we were going to be arguing self-defense! I blame this on general apathy and laziness on The People’s part. Think about it – how much more work does it take for the police to investigate and gather evidence in regard to all possible and realistic crime scenarios? Or, instead, they could simply accept the most obvious scenario – meaning that in their highly biased minds, the one that fits neatly in their preconceived notion of what actually happened. It always corresponds to the contemporaneous benefits the prosecution and its team – the LBPD – receives. Every murder conviction is a major gold star in both the ADA’s and detective’s career file.

“Look, cutting straight to the chase, you jurors can all see how this entire prosecution – without exception – has been conducted in such a way that every supposed ‘fact’ you heard from their witnesses, and from Ms. Kim herself, has been utterly self-serving and geared towards ensuring a conviction on all counts.

“See, by virtue of the fact that the prosecution was so willing to gaslight you on most of the major issues John raised in his testimony, such as glossing over how drunk Victor and Miguel were that night, and how badly Miguel and Ramon had beaten and stomped John, you can be assured that this means they’re not willing to tell you the entire truth. They only want you to hear their version of the truth.”

Trial Tip:

I obviously realize that my closing had gone on for more than 90 minutes, which is typically all a jury can withstand before zoning (or dozing) off. But here, as with my closing, I could feel the energy from the jury – it was intense and, to be quite frank, almost intoxicating. What I’m trying to say here is that you should always trust your instincts and go with the proverbial flow. If you feel the jury is hanging on your every word, leaning forward, and sharp-eyed – even after a 90-minute lunch break when they would otherwise be sleepy, and in fact were sleepy during DDA Kim’s paint-by-number closing argument. But in any other circumstances, I would likely caution you to be concise, relatively brief, and circumspect when delivering your closing. In other words, less is usually more.

I continued on: “Their entire ‘investigation’ consisted of Detective Sellers interviewing-slash-interrogating Miguel, Ramon, and then – at past five in the morning, when John was handcuffed to a hospital bed after receiving emergency medical treatment for his severe injuries, including a broken neck, and so was exhausted beyond belief – and probably in a state of mild shock, considering what he had just gone through – that is, almost getting killed by two men you thought were your friends…. You would have thought that at the very least Detective Sellers – or someone else from the Long Beach PD – would have thought to interview John a few days or even a week later, when he would be lucid, coherent, and healed enough to give a clear-eyed interview. If nothing else, but at least to confirm everything John had told them during the first interview, right?

“But that wasn’t necessary here. Once Detective Sellers got everything he wanted during his first interrogation of John, why do any more work? This prosecution was sewn up in a nice neat little bag once John admitted to having intentionally brought the gun to the Garcias’ residence, and once John admitted to having shot Victor. That was it for them – this whole case was wrapped up in a nice little bow for them. Giving any attention to a self-defense theory or argument or claim would simply complicate that end goal. So why even go there?

“To sum things up, this entire investigation took place over that night and the day after, when they got the search warrant and raided John’s residence. Enough time to review the whole case or did they rely on the detective’s version? Of course not.

“The following morning, the DA’s Office filed the following charges. By California law, I’m not allowed to tell you what the maximum penalty is for any of these convictions, much less all of them, but by the nature of the charges, I think you can use your common sense and therefore comprehend what a conviction will mean.”

I promise I’ll finally finish the discussion about my closing argument.