People v. Garcia (56 Cal. App. 4th 1349, 1997)

Opinion

YEGAN, J.

Anthony Cryder Garcia, a defendant subject to the “Three Strikes” law, was convicted by a jury of, inter alia, the first degree murder of Darryl Jurczeski. (Pen. Code, §§ 187, 189.) He was sentenced to state prison for a term of 59 years to life. He appeals contending the trial court abused its discretion when it ordered him to wear a belt capable of delivering a powerful electric shock if he became violent, attempted to escape or otherwise misbehaved during trial. He further contends the testimony of a “prosecution witness” ought to have been excluded because it resulted from a coercive plea agreement. We affirm.

Facts

Guy Morillo drove Billy Reese, appellant and Darryl Jurczeski from Paso Robles to a turnout on Highway 46 near Cambria. He stopped the car there, so the four men could relieve themselves. Morillo and Reese testified that when Jurczeski walked up a small embankment toward the car, appellant shot Jurczeski with a pistol. Jurczeski said, “why me?” and started to fall down the embankment. Appellant followed, shooting Jurczeski twice more. When appellant returned to the car, Morillo took the gun from him and emptied it. Reese picked up some spent shells. The three men returned to Paso Robles where they separated.

Appellant and Jurczeski worked together selling methamphetamine. Before tiie murder, appellant told Jurczeski’s girlfriend that Jurczeski would have to be “taken out” because he was a “snitch,” i.e., a police informant. On the day of the murder, appellant made similar comments to another acquaintance, Steve Routh.

The murder weapon was never recovered. However, the parties stipulated that it was originally owned by Kathy Robinson. Robinson asked Guy Morillo to sell the gun for her. Morillo gave it to Steve Routh, who agreed to sell it. Routh gave the gun to appellant, in trade for another handgun.

A few days after the murder, appellant took the pistol to his longtime friend, Victor Arismendez. He told Arismendez that he had done something he regretted and needed to get rid of the gun. When Arismendez asked whether appellant was referring to the Jurczeski murder, appellant said he was. Roy Pelton was doing some work at Arismendez’s house that day. Arismendez offered to sell the gun to Pelton, then checked with appellant before quoting a purchase price of $100. Pelton bought the gun. No one told him it had been used in a murder. Within a day or two, Arismendez told Pelton the gun might have been used in a murder and told him to get rid of it. Pelton complied by throwing the gun into a dumpster.

Appellant presented no affirmative evidence in his defense. Instead, he impeached most of the prosecution witnesses with their prior felony convictions, lengthy histories of drug abuse, and prior inconsistent statements to the police. For example, Morillo, Reese, Routh and several other witnesses denied any knowledge of the murder during their initial interviews with law enforcement.

Appellant’s theory was that Morillo was the killer. Under this theory, Morillo accused appellant to deflect suspicion from himself, Reese implicated appellant to obtain the favorable disposition of a burglary charge that was later dismissed, and Arismendez did so pursuant to a plea agreement. Under the plea agreement, Arismendez agreed to testify and was allowed to plead no contest to six felony charges. Probation was to be granted with Arismendez serving a one-year term in county jail. The agreement also provided that a felony charge pending against Arismendez’s girlfriend would be reduced to a misdemeanor.

Trial Court Proceedings and the Order for the “React” Belt

Times have changed and so has technology. We have apparently progressed from the “ball and chain” to an electronic belt which is functionally invisible and accomplishes the same goal as physical shackling. During trial, appellant was required to wear a “React” belt underneath his clothing. The belt will deliver 50,000 volts of electricity if activated by a remote transmitter that is controlled by an attending officer. This shock will immobilize the wearer and may create a “[possibility of self-defecation” and a “[pjossibility of self-urination[.]” A prisoner notification form states the belt could be activated if the wearer fails to “Comply With Officer Direction,” or engages in: “A. Any outburst or quick movement [U B. Any hostile movement HQ C. Any tampering with the belt [