P. v. Garza 10/9/03 CA6

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: H024041

Case Date: 10/09/2003

Preview:Filed 10/9/03

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, Plaintiff and Respondent, v. CARLOS OZUNA GARZA, Defendant and Appellant. H024041 (Santa Clara County Super. Ct. No. CC095672)

The defendant, Carlos Ozuna Garza, was found by police in a Lincoln Town Car that had been missing from his former employer for a week. He was under the influence of phencyclidine (PCP). A jury found the defendant guilty of auto theft, receiving or retaining stolen property (the Lincoln) and being under the influence of a controlled substance. He claims on appeal that these charges were unsupported by substantial evidence, his Marsden1 motion and motion for new trial were improperly denied, conviction for theft of and retaining the same stolen property was barred by statute, the court improperly instructed the jury on various issues, the cumulative effect of these errors prejudiced his case, and his custody credits were improperly calculated. We find the trial court properly denied his Marsden motion and motion for new trial, as he failed to produce evidence that defense counsel performed ineffectively or that an irreconcilable breakdown arose in communications between counsel and client. Substantial evidence supported each of the convictions. The jury was properly instructed

1

People v. Marsden (1970) 2 Cal.3d 118, 123.

regarding the legal and factual issues at hand. The improper conviction for both theft and retention of the same property requires the reversal of his conviction for retaining the Lincoln. Error did not cumulatively affect his conviction. We will remand the matter to the trial court for reconsideration of the calculation of custody credits. STATEMENT OF THE CASE An information charged the defendant with auto theft (Veh. Code,

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