Certiorari to the Utah Court of Appeals Third District, Salt
Lake The Honorable Robin W. Reese No. 101904923
D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Solic.
Gen., Salt Lake City, for petitioner
L. Welch, Salt Lake City, for respondent.
Justice Pearce authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Durham, and Justice Himonas joined.
Yesha Anthony Garcia fired four shots
at a car driving past his house. The car's driver,
Garcia's cousin Keith, was the intended target.
Keith's step-daughter Kanesha was also aboard when Garcia
took aim. The State charged Garcia with attempted murder and
possession of a firearm by a restricted person.
At trial, Garcia presented evidence of an imperfect
self-defense. The district court decided-and the State
conceded-that sufficient evidence of imperfect self-defense
existed to present the defense to a jury. The jury was also
instructed on the lesser-included offense of attempted
manslaughter. But the jury instruction explaining how
imperfect self-defense interacted with attempted manslaughter
misstated the law. The jury
convicted Garcia on the attempted murder and possession of a
firearm by a restricted person charges.
Garcia argued to the Utah Court of Appeals that his counsel
provided ineffective assistance when he failed to object to
the attempted manslaughter jury instruction. Garcia also
argued that the district court erred by not granting a
directed verdict on the possession of a firearm charge
because there was insufficient evidence to convict him.
Garcia claimed that to the extent his insufficiency claim was
unpreserved, his counsel provided ineffective assistance with
respect to that claim. The court of appeals found that the
defective jury instruction prejudiced Garcia's trial and
vacated his attempted murder conviction. State v.
Garcia, 2016 UT App 59, ¶ 26, 370 P.3d 970. The
court of appeals affirmed the possession of a firearm by a
restricted person charge, concluding that even if
Garcia's counsel had erred, the error was not
prejudicial. Id. ¶ 37.
The State seeks certiorari review of the court of
appeals' ruling. The State argues that the court erred by
presuming prejudice without considering whether, without
counsel's error, "[t]he likelihood of a different
result [was] substantial, not just conceivable."
Harrington v. Richter, 562 U.S. 86, 112 (2011).
Garcia cross-petitions and argues that the court of appeals
erred when it found that his counsel had not preserved his
argument concerning the constitutionality of the unlawful
user in possession statute. Garcia also claims that the court
of appeals erred when it found that his counsel had not
provided ineffective assistance when he neglected to argue
that the term "unlawful user" was
unconstitutionally vague as applied to him.
We reverse the court of appeals with respect to the jury
instruction argument, but we uphold the denial of
Garcia's motion for directed verdict.
Yesha Anthony Garcia sold drugs professionally. Garcia
believed his cousin Keith had stolen a portion of his cocaine
stash that Garcia kept at his cousin Tish's apartment.
This enraged Garcia. He beat up both Keith's wife and
step-daughter, Kanesha. Garcia then called Keith's mom on
the phone, telling her he was going to kill Keith.
That same evening, Garcia sent his live-in girlfriend to her
family's home, and-loaded gun in hand-waited for Keith to
appear. Eventually, Garcia saw Keith and Kanesha-who claim
they were looking for Garcia's address to give to the
police-drive past his house, turn around, and drive past
again. Garcia ran out his front door and unloaded his
revolver in the car's direction. Garcia failed to hit the
car. Kanesha called the police.
A little while later, a police officer found Garcia walking
in his neighborhood. At trial, the officer who made first
contact with Garcia on the street testified about their
encounter. The officer testified that he called over to
Garcia, who walked toward the officer and-unprompted-put his
hands on the hood of the police car. Garcia told the officer
that his name was Chancey Garcia. When asked to spell
Chancey, Garcia couldn't. When the officer asked him
"how that was possible that a grown man didn't know
how to spell his name, " Garcia became defensive. The
officer told Garcia that he was looking for someone who had
committed a crime and that, if it wasn't him, he could be
on his way. According to the officer, at that point, Garcia
began looking from side to side in a way that, in the
officer's opinion, seemed like Garcia was "looking
for an escape route." After that, the officer ordered
Garcia to sit down on the ground. Garcia complied. Another
officer approached with "the complainant, " who
identified Garcia as the shooter.
After Garcia was identified, he was cuffed and placed in a
police car. A detective who interviewed Garcia testified that
Garcia told him where the gun Garcia had fired could be
found. The detective also reported that Garcia insisted he
"hadn't done anything wrong. He was just protecting
himself and his family, that sort of thing."
Garcia spoke with a sergeant at the police station later that
morning. In the interview, Garcia explained his frame of mind
when Keith and Kanesha drove past his house:
A: I don't know what the f*** [Keith]'s gonna do. I
thought he was gonna throw a cocktail in my house.
Q: A Molotov cocktail?
A: Yeah. That's why I was there. If it wasn't for
that I would've been in Wendover or something. I would
try and let this shit die down.
. . . .
Q: Tish had said, yeah, he [Keith] came and got his gun,
he's gonna light you up? Or what'd she say?
A: Nah, I wasn't . . . thinking about him like hurting
me, burning me like that.
Q: But if Tish told you he had his gun . . . you knew that he
was coming for you, possibly.
A: Not really. Not in that kind of way because he's scary
you know, I mean, I know his character.
Q: So you didn't think he was gonna come? You just
A: Yeah, I was like mainly worried about my property really.
Garcia also spoke about his motive for firing at Keith:
[Keith] just pulled up in the Explorer, just like looking,
like-mad dogging and shit. And I looked, and I was like no he
didn't, no he didn't. And I just grabbed my shit like
boom boom boom boom, and I emptied out the whole
. . . .
I'm just glad I didn't hurt nobody, though. It was
just like when I saw him I just like, because I wanted to
kill him bad, I want him dead.
. . . .
I just lost it, man. Because I'm already done. Like, I
was so antsy yesterday. I wanted to just kill him. I wanted
to go just kill him.
At the station, Garcia also spoke about his drug dealing and
his drug use:
When I'm off cocaine, too, I get like real paranoid. I
always think the cops gonna run in my shit. So, uh, yeah cuz
I do a lot of cocaine like sometimes.
. . . .
Q: [I]t's odd that you use, because lots of people who
really got skills don't use at all.
A: Yeah, no, it's just my heart and soul is into this
shit man, you know what I mean? . . . .
A: I started using in 2006. I was twenty-five about to turn
At trial, Garcia told a somewhat different story. He
testified that he believed Keith had stolen drugs from him
and that he had merely taken "precautions to protect
[his] home from an attack from Keith." He also testified
that he expected Keith to come over to his house "with a
gun"-but never mentioned a Molotov cocktail. He said he
sent his girlfriend away because he "didn't feel
safe." When his counsel asked why he didn't feel
safe, he stated, "I just know my cousin."
Q: What does that mean?
A: He just blows stuff out of proportion. Just like one
minute he is cool with us, and then he just snaps.
Q: Okay. Does Keith have a history of violence?
Q: Okay. And you believed him to possess a firearm?
A: Yeah. . . . .
Q: Okay. And . . . what was your understanding of what he was
going to do with that gun?
A: He was coming for me. Like he was coming to ...