State v. Garcia

2018 UT App 30
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
Y ESHA A NTHONY GARCIA,
Appellant.
Opinion
No. 20140203-CA
Filed February 23, 2018
Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 101904923
John B. Plimpton and Teresa L. Welch, Attorneys
for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. O RME and K ATE A. TOOMEY concurred.
CHRISTIANSEN, Judge:
¶1 	This case is before us on remand from the Utah Supreme
Court.1 See generally State v. Garcia (Garcia II), 2017 UT 53, rev’g in
part and aff’g in part, State v. Garcia (Garcia I), 2016 UT App 59, 370
1. The supreme court’s opinion did not contain an explicit
remand instruction. After that opinion was issued, counsel for
Garcia indicated to the clerk of the supreme court that further
issues 	existed 	requiring 	remittitur 	to 	this 	court. 	The 	clerk
remitted the case to us, with the direction to “address any
potential independent grounds for decision that were properly
raised on appeal but that have not yet been addressed.”

State v. Garcia
20140203-CA 	2 	2018 UT App 30
P.3d 970. As relevant here, Yesha Anthony Garcia appealed his
conviction for attempted murder, arguing that his constitutional
right to the effective assistance of counsel had been violated
when 	his 	counsel 	failed 	to 	object 	to 	an 	error-ridden 	jury
instruction regarding imperfect self-defense, see Garcia I, 2016 UT
App 59, ¶¶ 10–16 & n.5, and failed to request a jury instruction
explaining that arson and aggravated arson are forcible felonies
that Garcia was entitled to use deadly force to defend against, see
id. ¶ 26 n.7.
¶2 	We concluded that approving the errors in the imperfect
self-defense 	instruction, 	including 	the 	misplaced 	burden 	of
proof, 	amounted 	to 	ineffective 	assistance 	of 	counsel; 	we
therefore vacated Garcia’s conviction for attempted murder. Id.
¶ 26. Because we vacated Garcia’s conviction on this basis, we
did not address his arson-instruction contention. See id. ¶ 26 n.7.
We also expressed skepticism as to whether Garcia was entitled
to an imperfect self-defense instruction under the facts of the
case, id. ¶ 16 n.4, but noted that Garcia’s counsel, the State, and
the trial court had all agreed that he was so entitled, id. ¶ 25.
¶3 	The 	Utah 	Supreme 	Court 	reversed, 	concluding 	that
Garcia had not been prejudiced by the erroneous instruction
regarding imperfect self-defense. Garcia II, 2017 UT 53, ¶ 48. The
supreme court highlighted Garcia’s statements to police and his
trial testimony and concluded that “[t]he evidence that Garcia
pulled the trigger out of a desire to kill [the victim] overpowers
any evidence that he acted on a reasonable but erroneous belief
that he was defending himself.” Id. ¶ 47. The supreme court
therefore held that no prejudice arose from counsel’s failure to
request a correct imperfect self-defense instruction. Id.
¶4 	We 	now 	address 	the 	question 	we 	did 	not 	reach 	in
Garcia I—whether 	Garcia 	received 	ineffective 	assistance 	of
counsel 	when 	his 	counsel 	did 	not 	seek 	to 	have 	the 	jury
instructed that arson and aggravated arson were forcible felonies
for purposes of an imperfect self-defense claim. “To succeed on a
claim of ineffective assistance of counsel, a defendant must show

State v. Garcia
20140203-CA 	3 	2018 UT App 30
that 	trial 	counsel’s performance 	was deficient 	and 	that 	the
defendant was prejudiced thereby.” State v. Hards, 2015 UT App
42, ¶ 18, 345 P.3d 769.
¶5 	Garcia’s 	contention 	revolves 	around 	the 	imperfect
self-defense instruction given to the jury. Imperfect self-defense
would have applied here if the jury had determined that Garcia
had acted “under a reasonable belief that the circumstances
provided a legal justification or excuse for the conduct although
the conduct was not legally justifiable or excusable under the
existing circumstances.” See Utah Code Ann. § 76-5-203(4)(a)
(LexisNexis 	2012). 	Garcia 	argues 	that 	his 	counsel 	was 	not
effective because counsel did not ensure that the jury understood
that defending against the threat of arson or aggravated arson
would have justified shooting at the victims.
¶6 	However, this argument is foreclosed by the supreme
court’s conclusion that Garcia did not suffer prejudice from
other defects in the imperfect self-defense instruction given at
trial. The supreme court determined that the evidence that
Garcia 	“was 	motivated 	by 	a 	desire 	to 	kill 	[the 	victim]
overwhelmed 	the 	evidence 	that 	Garcia 	acted 	in 	imperfect
self-defense.” Garcia II, 2017 UT 54, ¶ 45. Therefore, no prejudice
resulted when the imperfect self-defense instruction misstated
the law in several ways. Id. ¶ 48. A jury instruction defining and
explaining 	that 	arson 	and 	aggravated 	arson 	were 	forcible
felonies would merely have clarified an arguably vague term of
the 	imperfect 	self-defense 	instruction, 	i.e., 	what 	crimes, 	as
perceived by Garcia, could have given him a legal justification
for shooting at the victim. Because Garcia was not prejudiced by
the erroneous imperfect self-defense instruction actually given to
the jury, see id., no prejudice could have resulted from an alleged
ambiguity 	in 	that 	instruction 	that 	a 	more 	definite 	arson
instruction would have cured.
¶7 	We also reject Garcia’s cumulative-error claim. Given the
supreme court’s conclusion that Garcia did not suffer prejudice
from the erroneous imperfect self-defense instruction, we do not

State v. Garcia
20140203-CA 	4 	2018 UT App 30
see any greater risk of prejudice from an ambiguity in that
instruction. See ConocoPhillips Co. v. Utah Dep’t of Transp., 2017
UT App 68, ¶ 30, 397 P.3d 772 (“Our confidence [in the fairness
of a verdict] is more likely to be shaken when the errors work
together in a pernicious manner so as to cause more prejudice
than the mere sum of the individual errors.”).
¶8 	Affirmed.