P. v. Ortiz

Filed 5/2/07 P. v. Ortiz CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Defendant Edward Ortiz was charged with attempting to murder Sean DeMel, intentionally discharging and personally using a firearm causing great bodily injury, and having served three prior prison terms. He waived trial by jury, and the court found him guilty of attempted murder. The court also found the firearm allegations were true, but failed to make any findings as to the truth of the prior prison term allegations. Defendant was sentenced to 35 years to life in prison (the middle term of seven years for the attempted murder, plus 25 years to life for personally and intentionally discharging a firearm causing great bodily injury, plus three years for the prior prison term enhancements).

On appeal, defendant contends that (1) his attempted murder conviction must be reversed for insufficient evidence, (2) the great bodily injury enhancement must be stricken for lack of substantial evidence, and (3) the prior prison term enhancements must be stricken because the trial court did not find them to be true. With respect to his third contention, he claims that retrial of the prior prison term allegations is barred by double jeopardy.

We shall vacate the judgment and sentence on the prior prison term enhancements, remand for further proceedings to determine the truth of those allegations, and affirm the judgment in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

We summarize the evidence in the light most favorable to the judgment. (People v. Smith (2005) 37 Cal.4th 733, 739 (hereafter Smith).)

On New Years Eve 2003, defendant partied at the trailer home of his girlfriend, Roxanne Peralta. When Sean DeMel arrived around 9:00 p.m. and walked into the trailer, he and defendant exchanged a few words. Peralta sensed there was tension between DeMel and defendant, who walked outside onto the porch and down the stairs. DeMel followed defendant, and Peralta followed DeMel. As defendant reached the bottom of the stairs, he turned around, removed a .22-caliber semiautomatic gun from a holster, and pointed it at DeMel, who was standing on the porch near the top of the stairs. DeMel told defendant to [p]ut away the gun, and they stared at each other for a couple of minutes before defendant shot DeMel in the chest. Peralta was about three feet from DeMel and about four feet from defendant when DeMel was shot. After defendant shot DeMel, he walked to a friends car and drove away.

DeMel testified that he had seen defendant once before the night of the shooting and that nothing unfriendly had occurred. DeMel denied saying anything to defendant when DeMel entered the trailer. He explained that later, while defendant was on the porch and DeMel was inside the trailer, DeMel asked defendant what was up, and defendant told DeMel to get off [him], i.e., [l]eave him alone. DeMel then joined defendant on the porch and introduced himself. Defendant told DeMel his name, held up a handgun, and again told DeMel to [g]et off [him]. Defendant then shot DeMel in the chest from a distance of about 20 feet.^[1]

Although the gunshot was painful, DeMel did not fall down. A friend took DeMel to Feather River Hospital, where he was flown by helicopter to Enloe Hospital. The bullet left two puncture wounds and a bullet fragment just beneath the skin surface by about 1 cm. DeMel was kept in the hospital overnight for observation.

At the close of the Peoples case-in-chief, defendant moved for judgment of acquittal, arguing there was insufficient evidence that he intended to kill DeMel. The court denied the motion.

DISCUSSION

I

Defendant contends there is insufficient evidence to support the attempted murder conviction because there was no evidence that he intended to kill DeMel. Alternatively, he claims the trial court improperly denied his motion for judgment of acquittal.

Finding sufficient evidence in the record that defendant intended to kill DeMel when he shot him in the chest at close range, we reject both claims.

A

The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [Citations.] (Smith, supra, 37 Cal.4th at pp. 738-739.)

Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 623.) Intent to unlawfully kill and express malice are, in essence, one and the same. [Citation.] (Smith, supra, 37 Cal.4th at p. 739.) Express malice requires a showing that the assailant either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur. [Citation.] [Citations.] (Ibid.) While evidence of motive is often probative of intent to kill, motive is not required to establish intent to kill. (Id. at p. 741.) [T]he mental state required to convict a defendant of attempted murder[] may in many cases be inferred from the defendants acts and the circumstances of the crime. (Id. at p. 741.)

The act of firing toward a victim at a close, but not point blank, range in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill . . . . [Citation.] [Citations.] (Smith, supra, 37 Cal.4th at p. 741.) In Smith, the California Supreme Court concluded the evidence was sufficient to support a finding that Smith intended to kill a baby and the babys mother when he fired a single shot into [a car] from a position directly behind it and a distance of approximately one car length as [the car] was pulling away from the curb, and the bullet passed through the mothers headrest, narrowly missing the mother and the baby. (37 Cal.4th at pp. 742-743.)

The facts in this case are even more compelling. Defendant pointed a gun directly at DeMel and fired a single shot from a distance of several feet to at most 20 feet, hitting DeMel in the chest. At the time, DeMel was standing, facing defendant. Given these facts, the trial court reasonably could conclude that defendant intended to kill DeMel, i.e., purposely shot DeMel in the chest with a deliberate intent to unlawfully take away [DeMels] life [citation] or knowledge that his act of shooting [DeMel in the chest] would, to a substantial certainty, result in [DeMels] death. [Citation.] (Smith, supra, 37 Cal.4th at p. 743.)

Defendant argues that an inference he intended to kill DeMel is precluded by [his] failure to fire a second shot when it was obvious that the first had not achieved any deadly purpose, given the absence of any interference or threat compelling [defendant] to abandon the effort. While defendant fails to specify the fact upon which he bases his argument, it appears to be based on the fact that DeMel remained standing after being shot. There are two problems with defendants argument.

First, DeMels failure to fall to the ground after being shot did not make it obvious that he would survive. Second, even if it did, it does not follow that defendant lacked the animus to kill when he shot DeMel. (Smith, supra, 37 Cal.4th at p. 741 [that the shooter may have fired only once and then abandoned his efforts out of necessity or fear does not compel the conclusion that he lacked the animus to kill in the first instance].) Contrary to defendants assertion, the trial court reasonably could have concluded that defendants failure to fire a second shot was due to his desire to make a quick getaway and avoid apprehension, and not because he lacked the intent to kill DeMel. Sufficient evidence supports the attempted murder conviction.

B

We now turn to defendants claim that the trial court erred in denying his motion for judgment of acquittal. The standard on review of a denial of a motion for acquittal is the same as that applied by an appellate court in reviewing a conviction--whether from the evidence, including all reasonable inferences to be drawn therefrom, there is any substantial evidence of the existence of each element of the offense charged. [Citations.] [Citation.] (People v. Castaneda (1994) 31 Cal.App.4th 197, 202.) Where, as in this case, the motion is made at the close of the prosecutions case-in-chief, the sufficiency of the evidence is tested as it stood at that point. (People v. Cole (2004) 33 Cal.4th 1158, 1213.)

All of the evidence summarized above as supporting defendants conviction for attempted murder was introduced during the Peoples case-in-chief. Accordingly, the trial court properly denied the motion for judgment of acquittal.

II

Defendant contends the evidence does not support the trial courts finding that he personally and intentionally discharged a firearm causing great bodily injury when he shot DeMel in the chest. This is so, he argues, because DeMels wounds were not shown to be other than superficial; no muscles, organs other than the skin, or bones were affected; DeMel suffered no loss of consciousness; he remained standing when shot; he walked into the hospital on his own; and was not shown to have suffered intense or lasting pain. We are not persuaded.

Great bodily injury is a significant or substantial physical injury. (Pen. Code, 12022.7, subd. (f), 12022.53, subd. (d).) This standard contains no specific requirement that the victim suffer permanent, prolonged or protracted disfigurement, impairment, or loss of bodily function. (People v. Escobar (1992) 3 Cal.4th 740, 750 (hereafter Escobar).) A finding that the victim suffered great bodily injury must be upheld on appeal if it is supported by substantial evidence, even if the circumstances might reasonably be reconciled with a contrary finding. (Id. at p. 750.)

Escobar upheld a finding of great bodily injury based upon a rape victims bloody knees, vaginal soreness, abrasions, and painful neck. (Escobar, supra, 3 Cal.4th at pp. 744, 749-750.) Other cases have upheld great bodily injury findings based upon gunshot wounds that required little or no medical attention and did not inflict internal injuries or long-term pain. (People v. Wolcott (1983) 34 Cal.3d 92, 107-108; People v. Mendias (1993) 17 Cal.App.4th 195, 201, 205-206; People v. Lopez (1986) 176 Cal.App.3d 460, 465.)

Defendant shot DeMel in the chest, causing him pain and requiring medical treatment. The bullet left two puncture wounds and a bullet fragment just beneath the skin surface by about 1 cm. DeMel was kept in the hospital overnight for observation. This evidence supports a finding of great bodily injury. (Cf. Escobar, supra, 3 Cal.4th at pp. 744, 749-750; People v. Wolcott, supra, 34 Cal.3d at pp. 107-108; People v. Mendias, supra, 17 Cal.App.4th at pp. 201, 205-206; People v. Lopez, supra, 176 Cal.App.3d at p. 465.)

III

Defendant argues that the prior prison term enhancements must be stricken because the trial court did not make any true findings on those enhancement allegations. He also claims that retrial of the allegations is barred.

The People concede the enhancements must be stricken but assert that retrial is not barred.

As we will explain, the sentences on the prior prison term enhancements must be vacated and the case must be remanded for a limited retrial in which the People may present evidence to support the prior prison term allegations.

A

The information alleged that defendant served three prior prison terms within the meaning of section 667.5, subdivision (b).

On May 20, 2005, just before the People completed their case-in-chief, the parties agreed to bifurcate the trial of the prior prison term allegations.

On June 2, 2005, after both sides rested, the trial court set June 17th for argument, ruling as it relates to verdicts and should it be necessary conclusion of the trial as it relates to the priors. (Italics added.) The hearing on June 17, 2005, was continued to August 12.

On August 12, 2005, the trial court found defendant guilty of attempted murder and found the firearm allegations to be true, but deferred ruling on the prior prison term allegations until sentencing.

On January 25, 2006, the trial court sentenced defendant to 35 years to life, including three years for the prior prison term enhancements. In doing so, the court stated: The matter is before the Court as a result of a conviction by court trial . . . [of] attempted murder. In addition[,] the Courtfound 3 prior prison term allegations under section 667.5(b) true. In addition[,] the Court found the use allegations under [section] 12022.53 [,subdivisions] (b), (c) and (d) also true. (Italics added.)

Subdivision (e) of Penal Code section 1170.1 requires that all enhancements be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact. Under Penal Code section 1158, whenever the fact of a previous conviction of another offense is charged in the accusatory pleading, unless the defendant admits the prior conviction in his answer, the trier of fact must find whether or not he has suffered such previous conviction. Failure to make an oral finding as to the truth of the prior conviction has the same effect as a finding of not true. (People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439-1440, citing People v. Eppinger (1895) 109 Cal. 294; People v. Molina (1977) 74 Cal.App.3d 544, 550.)

Here, the trial court failed to make any findings as to the truth of the prior prison term allegations, and defendant did not admit the truth of those allegations. Thus, the sentences imposed on the prior prison term enhancements must be vacated.^[2]

Defendant claims that retrial of the enhancements is barred by double jeopardy. He acknowledges that both the California Supreme Court, in People v. Monge (1997) 16 Cal.4th 826, and the United States Supreme Court, in Monge v. California (1998) 524 U.S. 721 [141 L.Ed.2d 615], rejected claims that double jeopardy applies to bar retrial of a prior conviction allegation where insufficient evidence was produced at the first trial. He urges, however, that both Monge decisions were effectively overrul[ed] by Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435], which he contends greatly altered our understanding of the terms sentencing factor and sentencing proceeding with important implications for double jeopardy jurisprudence. Defendant concedes, however, that thus far, . . . developing jurisprudence has not resulted in a holding that double jeopardy protections apply to allegations under section 667.5, subdivision (b). Thus, he raises the issue to preserve it for further review.

Until our Supreme Court decides otherwise, we are bound to follow Monge, and therefore, we are not at liberty to find that a retrial in this matter is barred by the principles of double jeopardy. (Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1303.)

Accordingly, we shall remand for the limited purpose of further proceedings to determine the truth of the prior prison term allegations and for resentencing on those allegations if they are found to be true. (People v. Morton (1953) 41 Cal.2d 536, 544-545; Cherry v. Superior Court, supra, 86 Cal.App.4th at pp. 1303-1305; People v. Franz (2001) 88 Cal.App.4th 1426, 1455-1456.)

DISPOSITION

The sentences imposed for the three prior prison term enhancement allegations are vacated and the case is remanded to the trial court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.

SCOTLAND, P.J.

We concur:

HULL, J.

BUTZ , J.

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^[1] DeMel told medical personnel that he had been shot from a distance of less than 15 feet.

^[2] Because we conclude that the sentences on the prior prison term enhancements must be vacated due to the courts failure to make any true findings on the enhancement allegations, we need not address defendants alternative argument that any true finding on the prison prior allegations was unsupported by the evidence.