P. v. Ortiz

Filed 12/15/08 P. v. Ortiz CA4/1

Opinion on remand from Supreme Court

OPINION ON TRANSFER FROM THE CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Laura P. Hammes, Judge. Affirmed.

A jury found James Ortiz guilty of first degree robbery, assault with a deadly weapon, criminal threats, unlawfully taking/driving a vehicle, and evading the police with reckless driving. The jury also found true an enhancement allegation that Ortiz personally used a deadly and dangerous weapon in committing the criminal threats offense. Ortiz waived a jury trial on alleged priors, and the court found that Ortiz had previously suffered two prison priors (Pen. Code,^[1] 1203, subd. (e)(4) & 667.5, subd. (b)), and a serious felony prior, which qualified as a strike prior ( 667, subd. (a)(1), 668, 1192.7, subd. (c)). The court imposed a sentence of 18 years and four months, which included a six-year upper term for the robbery conviction (doubled because of the strike).

On appeal, Ortiz contended his conviction for evading the police with reckless driving should be reversed because the trial court's modification of the necessity instruction amounted to a directed verdict and deprived him of his constitutional right to present an affirmative defense. In our initial opinion filed April 17, 2007, we concluded the evidence did not support a necessity defense, and therefore there was no prejudicial error in modifying the necessity instruction. Accordingly, we affirmed the judgment as to his convictions.

Ortiz also challenged his sentence on the robbery conviction because he was sentenced to the upper term without a jury trial and without a finding of proof beyond a reasonable doubt on the aggravating factors. We concluded the sentence must be reversed because the trial court's selection of the upper term violated Ortiz's jury trial rights under Apprendiv. New Jersey(2000) 530 U.S. 466 (Apprendi).

Subsequent to our decision, the California Supreme Court issued its decision in People v. Towne (2008) 44 Cal.4th 63, which defined the scope of the prior conviction exception to the Apprendi rule. The Supreme Court then transferred this case back to this court with directions to vacate our previous decision and reconsider the case in light of Towne. We have received supplemental briefing from the parties addressing the impact of Towne on Ortiz's sentence. Based on Towne, we now affirm the judgment as to both sentence and the convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Prosecution Case

Ortiz and his girlfriend lived with Miguel Montoya, who had previously been Ortiz's Bible instructor. One evening, Ortiz left the apartment after an argument with his girlfriend. When Ortiz returned later that evening, Montoya told him he had driven Ortiz's girlfriend to her cousin's house. Ortiz became angry and told Montoya he "disrespected" him. Ortiz said he was going to kill Montoya and that Montoya was going to "die tonight." Ortiz then punched Montoya in the face and kicked him. Montoya covered his face with his hands and Ortiz stabbed him twice in the shoulder with a knife. Ortiz told Montoya he would "slit [his] throat, [and] put [him] in the trunk." Ortiz asked Montoya for the pink slip to his white Chevy Cavalier and $1,000. Montoya grabbed his car keys, threw them on the floor and told Ortiz to leave.

After Ortiz left, Montoya went to his neighbor's house and called the police. When the officers arrived, Montoya described the attack and said he thought Ortiz took his Chevy Cavalier to the Chicano Park area because that was where he dropped off Ortiz's girlfriend.

Later that evening, San Diego police officers were on duty in a marked patrol car in the parking lot at Chicano Park. The officers heard a radio broadcast that a possible suspect involved in a stabbing might be in that area, driving a car taken from the victim. Shortly after, they observed a white Chevy Cavalier driven by a male, later identified as Ortiz, heading towards them. The officers followed the car onto Interstate 5 and performed a records check. They discovered the vehicle was registered to Montoya.

Based on this information, the officers initiated a stop by activating the red lights and siren, but Ortiz did not stop. Ortiz exited the freeway, went through a stop sign, made a left turn, and accelerated away from the police car. A chase ensued and three additional police cars and a police helicopter became involved in the pursuit. Ortiz ran five to six stoplights, did not stop for at least 10 stop signs, and drove approximately 50 to 60 miles per hour on residential streets. The officers saw Ortiz almost hit other cars, including a police car, and witnessed two to three near collisions with pedestrians. Police officers deployed a spike strip and the rear two tires of Ortiz's vehicle deflated after he drove over the strip. Once the car stopped, officers arrested Ortiz and took him into custody. The police officers denied drawing a weapon at any time until after the stop.

Defense Case

Ortiz testified on his own behalf. He stated Montoya inappropriately touched him on two different occasions and Ortiz was discussing these incidents with his girlfriend when Montoya arrived home from church. Ortiz's girlfriend wanted Ortiz to talk about the touching with church pastors, but Ortiz initially refused. Ortiz finally agreed and left to talk to the pastors. On the way there, he changed his mind and walked back to the apartment. When he walked through the door, Montoya hit him with a sharp object on his right temple. Montoya told him that if he could not have him, nobody could. Ortiz saw a knife in his hand and they fought as Montoya tried to move the knife towards Ortiz's chest. Ortiz stated Montoya stabbed himself as they were fighting. Ortiz punched him in the face about three times so Montoya would let go of the knife. Montoya started crying and told Ortiz he loved him. He dropped the knife to the ground. The men then sat on the couch and talked for about two hours. Montoya told Ortiz not to go to the police. After some time, Ortiz told Montoya he was going to the store to get supplies to fix the wound. Montoya told Ortiz that he could use Montoya's car to go to the store. Montoya told Ortiz to be careful.

Ortiz said he then took the car and "went cruising around," not knowing where to go. While driving, Ortiz saw police officers and a patrol car parked in the parking lot at Chicano Park. One of the police officers, standing about 25 feet away, pulled out a gun and pointed it at Ortiz while he was in his vehicle.^[2] Ortiz became scared because this was an "area they've killed people before." He drove on the freeway and started driving towards a police station. However, he was "going in circles," knowing the location of the police station but not getting any closer. Ortiz was fearful because he "ha[d] seen [police officers] shoot a lot of people." He drove around so people would "come outside"; he believed that the police would not shoot him if people were outside. Ortiz testified that while he was "trying to flee" from the officers, he went through only one traffic light that was yellow and obeyed all traffic signs. He eventually came to a stop when there were about 70 people outside. Ortiz was then arrested.

Necessity Defense Instruction

During the jury instruction conference, Ortiz's counsel requested the court to instruct on necessity and duress as affirmative defenses to the crime of driving recklessly while evading a police officer. (Veh. Code,  2800.2.) Counsel asserted that the evidence supported the defense because Ortiz testified he felt he was in imminent danger from being shot by the police officer who was holding a gun near Chicano Park. The court initially stated it was not inclined to give this instruction because an individual does not have a right to evade police officers merely because of a subjective fear of the officers. However, after several lengthy discussions with counsel, the court decided to give the necessity instruction, but to condition the defense on the jury finding the officer's alleged use of the gun (pointing it at Ortiz's vehicle near Chicano Park) was "unlawful." As given to the jury, the instruction stated that before the jury could rely on the necessity defense, it must find the prosecution had not met its burden to show the police officer's

"use of the weapon was lawful."^[3]

Neither party was satisfied with the court's compromise solution. The prosecutor asserted that the facts did not warrant a necessity defense and the court's modification of the instruction did not alter this conclusion. Defense counsel objected to the court's modification of the instruction, stating that she did not "think that the issue of whether or not police officers were acting lawfully is even part of this."

DISCUSSION

I. Necessity Defense

Ortiz contends the court erred in modifying the necessity defense instruction by conditioning the defense on the legality of the police officer's claimed weapon use. He claims the court's modification of the instruction prevented him from fairly presenting the

necessity defense to the jury. This contention is unavailing. The facts presented did not support a necessity defense, and therefore there was no prejudicial error in instructing the jury that the defense was conditional.

A defendant is entitled to a requested instruction on an affirmative defense if the defense is supported by substantial evidence. (In re Christian S. (1994) 7 Cal.4th 768, 783.) In determining whether the evidence supports the instruction, a court must view the evidence in the light most favorable to the defense, and assume the truth of the defendant's evidence. (People v. Wilson (1967) 66 Cal.2d 749, 762.) " 'Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.' " (People v. Flannel (1979) 25 Cal.3d 668, 685.) However, a trial court need not give an instruction where the supporting evidence is minimal and insubstantial. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)

Necessity is an affirmative defense based on public policy considerations. (In re Eichorn (1998) 69 Cal.App.4th 382, 389.) The scope of the defense "is very limited and depends on the lack of a legal alternative to committing the crime. It excuses criminal conduct if it is justified by a need to avoid imminent peril and there is no time to resort to the legal authorities or such resort would be futile." (People v. Beach (1987) 194 Cal.App.3d 955, 971.) "Necessity does not negate any element of the crime, but represents a public policy decision not to punish such an individual despite proof of the crime." (People v. Heath (1989) 207 Cal.App.3d 892, 901.) The necessity defense is inappropriate if its "recognition would encourage rather than deter violence" or other forms of dangerous conduct. (People v. Kearns (1997) 55 Cal.App.4th 1128, 1135; see People v. Slack (1989) 210 Cal.App.3d 937, 943-944.) Additionally, the defendant must have a good faith belief that the criminal act was necessary to prevent the greater harm, and this belief must be "objectively reasonable." (People v.Kearns, supra, 55 Cal.App.4th at p. 1135.)

Under these principles, Ortiz's evidence was insufficient to support a necessity defense. First, there was no objective basis for a belief that the officers would commit an unjustified shooting if Ortiz complied with the officers' demands to stop his vehicle. The sole basis for Ortiz's claimed concern was his testimony that he saw a uniformed police officer near Chicano Park with a gun and the fact that he had previously "seen police officers kill people" and "shoot a lot of people." This testimony is insufficient to show a reasonable basis for concluding that these particular police officers, who were following Ortiz's vehicle in a marked police vehicle with their sirens on, were intending to shoot him for no reason. Absent some particular facts to support a reasonable belief that a specific police officer intends to commit a crime against a citizen, it is contrary to the public policy of this state to suggest that a citizen may flee from an officer because of a generalized fear of police officers. (See People v. Slack, supra, 210 Cal.App.3d at p. 943; cf. People v. Pena (1983) 149 Cal.App.3d Supp. 14, 25-26.)

Additionally, the necessity defense is inappropriate if the defendant's actions create a danger greater than the evil the defendant was attempting to prevent. (People v. Kearns, supra, 55 Cal.App.4th at p. 1135; People v. McKinney (1986) 187 Cal.App.3d 583, 586-587.) In allegedly attempting to protect his own safety from a potential risk, Ortiz drove in a reckless and erratic manner in a residential neighborhood, endangering the lives of the police officers and numerous other drivers and pedestrians. Ortiz had near collisions with several other vehicles and pedestrians. By engaging in this conduct, Ortiz created a greater danger than the one he sought to avoid. The potential risk of physical harm to Ortiz was far outweighed by the danger he created to others by his reckless driving. (People v. Slack, supra, 210 Cal.App.3d at p. 943.)

In Slack, an intoxicated defendant evaded Tijuana police officers and drove while intoxicated across the border because he believed he would be assaulted by the officers if he complied with their demands to stop. (People v. Slack, supra, 210 Cal.App.3d at p. 943.) He based this belief on his previous contacts with the Tijuana police and his claim that he was once assaulted by a Tijuana police officer. This court held these facts were insufficient to justify a necessity defense because the defendant could not have had a good faith belief that "the threat of physical assault from law enforcement officials significantly outweighed the threat of public mayhem and property destruction to which he exposed those in his wake." (Ibid.) Similarly, in this case, Ortiz's belief that he needed to avoid the police officers for his own safety cannot justify his conduct of driving in a reckless manner.

On this record, the evidence was insufficient to support a necessity defense. Thus, there was no prejudice to Ortiz in the court's giving a modified version of the instruction. Moreover, any instructional error was not prejudicial. (See Chapman v. California (1967) 386 U.S. 18; People v. Molina (2000) 82 Cal.App.4th 1329, 1332-1335.) Viewing the record and the jury's findings on the other charged offenses, there is no possibility that the jury would have found in Ortiz's favor on the necessity defense. No reasonable juror would have believed that after violently assaulting the person with whom he was living and then taking his vehicle, Ortiz evaded the police officers merely because he subjectively believed the officer would shoot him for no reason, rather than in an attempt to flee to avoid arrest.

II. Sentencing

Ortiz contends the trial court violated his Apprendi jury trial rights by sentencing him to the upper term of six years on the robbery count based on facts not found by the jury.

A. Background Information

Ortiz waived his jury trial right on the charged prior convictions. After the jury verdict, the court held a trial on the alleged priors. Based on the evidence presented, the court found Ortiz: (1) had at least two felony convictions precluding a grant of probation ( 667, subd. (c)); (2) served two prior prison terms within the meaning of sections 667.5, subdivision (b), and 667; and (3) had a prior strike conviction ( 667, subds. (b)-(i), 1170.12), which also qualified as a prior serious felony conviction ( 667, subd. (a)). The underlying convictions proved at this hearing included: (1) corporal injury on a spouse or cohabitant in 1991 ( 273.5); (2) assault with a deadly weapon in 1994 ( 245, subd. (a)(1)); and (3) assault by force in 2001 ( 245, subd. (a)(1)).

Before the sentencing hearing, the probation officer prepared a report identifying these and other prior convictions, and describing the underlying facts with respect to two of those convictions. First, with respect to the 1994 assault with a deadly weapon conviction ( 245, subd. (a)(1)), which served as the basis for the first prison prior, the strike prior, and the serious felony prior, the report stated: "The defendant and his girlfriend were in a motel room drinking alcohol when the defendant got angry because the television would not work. The defendant began pulling his girlfriend's hair and demanding $200.00. When the victim told the defendant she did not have the money, the defendant pushed her against the wall and began choking her. The defendant tore an empty beer can in half and threatened to use it to kill her. The defendant continued to punch and bite his girlfriend. At one point, the defendant used a full can of beer to strike her in the face. When she fell to the ground, the defendant began kicking her. The victim was finally able to get out the door and yell for help. When police arrived, the victim was soaking wet from being thrown in the shower, was bleeding and sustained injuries to her nose and face."

Second, with respect to the 2001 assault conviction that served as the basis for the second prison prior ( 667.5, subd. (b)), the probation report stated: "The victim was sitting on a bench at a trolley stop eating a bowl of soup when the defendant approached and asked him for [25] cents. The victim told the defendant he did not have [25] cents. The defendant then punched the victim in the face causing the victim to fall backward off the bench and spill his soup. The victim suffered a black eye."

The probation report also noted that Ortiz: (1) had "two summary grants and one formal grant of probation"; (2) violated each grant of probation by failing to comply with conditions and by failing to remain law abiding; (3) was on state parole when he committed the current offense; and (4) has violated state parole on several occasions over the years, and was sent back to finish the term. The report states that the source for this information was "Criminal Records; Probation File."

Ortiz's statement in mitigation focused primarily on Ortiz's claims that the victim contributed to the crime. The statement also asserted that: Ortiz was suffering from a mental condition that reduced his culpability; he would have been granted probation had he been eligible; and his performance on parole was satisfactory until this incident. The prosecutor's statement in aggravation identified several aggravating factors relating to the current conviction, including that the crimes involved great violence, weapon use, and a vulnerable victim. The prosecutor also identified aggravating factors relating to Ortiz's prior criminal history, including that Ortiz previously engaged in violent conduct, had numerous prior convictions, served two prior prison terms, was on parole when he committed this offense, and his performance on previous parole sentences was unsatisfactory.

B. Sentencing Hearing

At the beginning of the sentencing hearing, the court stated it tentatively intended to: (1) impose the upper term on the first degree robbery count, doubled for the prior strike (12 years); (2) impose a consecutive middle term (one year and four months) on the evading officer count; (3) stay the remaining counts under section 654; (4) impose five years on the serious felony prior ( 667, subd. (a)); and (5) strike both prison priors ( 667.5, subd. (b)).

In challenging this tentative sentence, Ortiz's counsel urged the court to strike the strike and to impose the lower or middle term on the robbery count. With respect to the upper term, counsel argued that "[t]he factors involved in the robbery itself in this case are actually very minimal," and did not involve the use of the knife or violence because the victim admitted he gave Ortiz the keys and told him to leave. When Ortiz addressed the court, he blamed numerous other individuals for his current and prior convictions and denied that he used a beer can as a weapon in one of the prior convictions. In response, the prosecutor emphasized Ortiz's violent past, and reiterated the facts of his prior convictions set forth in the probation report, i.e., Ortiz's assault on his girlfriend with the beer can in the hotel room and his assaulting the man at the trolley stop for no reason.

The court took a brief recess and then confirmed the tentative sentence. The court explained its reasoning as follows:

"I have given [this case] a great deal of thought. And my view is still that the upper term is appropriate in this case. I'm looking at Count 1, which is the residential robbery, as the principal term. I believe that upper term should be imposed because of the following aggravation factors: The defendant took advantage of a position of trust; he used a knife to cut the victim and to terrorize him, which was unnecessary; all previous probations on which he had been granted terms without custody or with limited custody ended up being revoked; he has shown a continuing pattern of violence throughout his life that is violence against the weak and in situations where there was no provocation; and he was on parole when he committed the instant offense. [] [I]t seems to me that Mr. Ortiz has never come to grips with the fact that his violence comes from him. There are no excuses. He has taken advantage of his family."

(Italics added.)

[] . . . []

"[T]his case was overwhelming in its strength. There was no question of his guilt nor was there any question in these prior cases. [] And when you look at this pattern of unprovoked violence, horrible violence; when you look at him punching a woman with a beer can, kicking her, throwing her in a shower; going up to a man at a trolley stop, because the man won't give him some money, he then punches him out; there's no excuse for that kind of behavior, none. Absolutely none. . . ."

"He had a loving sister. He's got a loving wife. He's got a fiancee here to support him. He did it. And now he blames everybody else for itthe lawyers, the judges, the policewhoever didn't give him what he needed to have. And it all revolves right back to him. He's violent, and he has taken advantage of other people."

[] . . . [] . . . 

"And it's his remorselessness that also gets into the Court to say he is a dangerous man because he will never take responsibility for his own actions. He will always blame it on someone else. It will always be someone else's problem."

C. Analysis

A defendant has a constitutional right to have the jury, not the trial judge, decide all facts (except for the fact of a prior conviction) that increase the penalty for a crime beyond the prescribed statutory maximum. (Apprendi, supra, 530 U.S. at p. 490.) Interpreting the Apprendi jury trial rights, in People v. Black (2007)41 Cal.4th 799, the California Supreme Court determined that a trial court is permitted to make factual findings beyond the jury's verdict to support an upper term selection, if the defendant is eligible for the upper term because at least one aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions. (Id. at p. 816, cert. den. Black v. California (Jan. 14, 2008) ___U.S.___ [128 S.Ct. 1063].)

In People v. Towne, supra, 44 Cal.4th 63, our high court set forth the parameters of the prior conviction exception to the Apprendi rule, stating that it is permissible for a trial court to select an upper term based on a finding that the defendant (1) had numerous or increasingly serious prior convictions; (2) had served a prior prison term; (3) was on probation or parole at the time the crime was committed; or (4) had performed unsatisfactorily on probation or parole "so long as the [unsatisfactory performance] determination is based upon the defendant's record of one or more prior convictions." (Id. at pp. 70-71, 75-77, 79, 82.)

Here, under the prior conviction exception, the trial court was entitled to make the factual finding that Ortiz was on parole at the time the robbery was committed. This finding rendered Ortiz eligible for the upper term, and accordingly his Apprendi jury trial rights were not violated by the trial court's other factual findings made to select the upper term for the robbery conviction.

Although recognizing that the parole factor falls within the prior conviction exception, Ortiz contends that the sentence on the robbery count must be reversed because "the trial court also verbalized other aggravating factors outside the scope of the prior convictions . . . ." The contention is unavailing. In Black, the California Supreme Court explained that once the defendant is eligible for the upper term based on the establishment of a constitutionally permissible fact, "the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (People v. Black, supra, 41 Cal.4th at p. 813, italics added.) Because the trial court's finding related to Ortiz's parole status rendered him eligible for the upper term, the trial court properly could make, and rely upon, other factual findings outside the prior conviction exception.

Finally, we reject Ortiz's contention that we should not follow Towne's statement that parole status is within the prior conviction exception because the statement was dicta. Although the Towne court found the defendant eligible for the upper term based on numerous prior convictions and his admission of prior prison terms, the court expressly stated it was further defining the parameters of the prior conviction exception "to ensure consistency in the application of the . . . exception in the California appellate courts." (People v. Towne, supra, 44 Cal.4th at pp. 76-77.) We follow our high court's directive that parole status falls within the prior conviction exception and properly makes a defendant eligible for the upper term.

DISPOSITION

The judgment is affirmed.

HALLER, Acting P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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^[1] Unless otherwise specified, all further statutory references are to the Penal Code.

^[2] During direct examination, Ortiz said that the person he saw with a gun was a police officer. However, at one point during cross-examination, Ortiz identified this person as "[a man] wearing dark clothes."

^[3] The instruction read: "A defendant is not guilty of the crime of evading a peace officer if he attempts to escape because of necessity based on an unlawful use of a deadly weapon to effect an arrest or detention, and if certain other conditions are met. [] If a deadly weapon is used to effect an arrest or detention, the people bear the burden of proof that the use of the weapon was lawful. [] If the jury finds credible evidence that an officer used a deadly weapon to effect an arrest or detention, and if the [jury] has reasonable doubt as to the legality of the attempt of detention or arrest with a weapon, then it may consider the defense of necessity to the crime of evading a peace officer."

"[A] person is not guilty of the crime when he or she engages in an act, otherwise criminal, through necessity. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the elements of this defense. [] Namely, one, the act charged was criminal, was done to prevent a significant and imminent evil, namely a threat of bodily harm to himself. Two, there was no reasonable legal alternative to the commission of the act. Three, the reasonably foreseeable harm likely to be caused by the act was not disproportionate to the harm avoided. Four, the defendant entertained a good-faith belief that his act was necessary to prevent the greater harm. Five, that belief was objectively reasonabl[e] under all of the circumstances. And, six, the defendant did not substantially contribute to the creation of the emergency."