John’s Trial Testmony (continued)

Notably, John testified that once he helped the band secure the guitar strap sponsorship deal (see, e.g.: guitarworld.com), 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: webmd.com.

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: mayoclinic.org. 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: courts.ca.gov.

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: slate.com. 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: americanbar.org. 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: findlaw.com.

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: law.cornell.edu. “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: lawcat.berkeley.edu) but they mirror CALCRIM). See: courts.ca.gov (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.