P. v. Perez

Filed 5/4/07 P. v. Perez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Reversed with directions.

Grover Trask, District Attorney, and Elise J. Farrell, Deputy District Attorney, for Plaintiff and Appellant.

Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Respondent.

Defendant Jose Alfredo Perez was found guilty by a jury of attempted murder (Penal Code,[1] 664/187) and assault with a deadly weapon. ( 245, subd. (a)(2).) After the jury rendered its verdict, the trial court set the matter for sentencing. At that hearing, the court dismissed the action pursuant to section 1118.1.

The People have filed this appeal, alleging that the trial court entered a void order and acted in excess of its jurisdiction when it dismissed the action pursuant to section 1118.1. We conclude the court exceeded its jurisdiction in dismissing the action under that statute.

PROCEDURAL HISTORY[2]

Defendant was convicted of attempted murder and assault with a deadly weapon for firing a weapon near the victim, Ramon Rivera, and the matter was set for sentencing. Prior to the hearing, defense counsel filed a motion for new trial to which the prosecution filed an opposition.

At the hearing, the trial court indicated its intention to dismiss the action for insufficiency of the evidence and not grant a new trial. It detailed its reasons:

[B]ecause my indicated is to dismiss these actions, not to grant a new trial, but to dismiss for insufficiency of the evidence.

Neither side has briefed that. Neither side has briefed the [section] 245 charge at all. My thinking is this: There were two people that were there and theres physical evidence. Every case boils down to witness testimony or physical evidence. Every witness that was there who testified testified that the defendant did not shoot at anyone. The victim didnt say he was shot at. The victim testified, and was unimpeached when he said this, that he was confronting the defendant. The defendant displayed the gun in a threatening manner. The victim took two or three steps, moved behind an automobile, crouched down, two seconds went by after he crouched down, he heard a shot. Another couple seconds went by, he heard a taunt from the defendant and the defendant drove off with his friends. That was [the] unimpeached testimony of the victim.

The defendant testified to the same sequence of events. They all agree that at the time of the single shot the victim was crouched down behind a car and was not in a line of sight of the defendant. The physical evidence is inconsistent with the defendant being -- the defendant shooting at the victim.

Now, the People say that the physical evidence should be discounted because the officer at the scene talking to the victim didnt learn enough about what really happened to know where to look for the bullet. It doesnt seem to make much sense. From the Courts own hearing of the testimony, if there was a gunshot at the victim, there would be a bullet strike in the car, the driveway, or the house, not off in the neighbors house and not off in the side yard. No such bullet strike was ever found. There was -- physical evidence is strongly indicative that the gunshot was not at anyone.

So the physical evidence doesnt say he shot at anyone. All the witnesses say he didnt shoot at anyone. And yet he stands convicted of attempted murder. . . . [] . . . [] [B]oth sides briefed the notion of a new trial. Im introducing the notion that its going to be a dismissal. You can brief that. And I want you to also brief the [section] 245.

In response to the trial courts invitation, both parties filed supplemental briefs addressing the dismissal of the action. On the date of the hearing on the motion to dismiss, the trial court clarified that the only ground it was considering for the motion to dismiss was insufficiency of the evidence.

In arguing for dismissal, the defense stated there was insufficient evidence that defendant shot directly at the victim and instead shot into the air.

On the other hand, the prosecution argued that the case should not be dismissed because there was sufficient evidence of the attempted murder and the assault with a deadly weapon.

With respect to the assault, the prosecution stated that defendant admitted firing a gun, which he pointed at the victim. The fact that the police failed to find any bullet holes or casings did not make the evidence insufficient.

With respect to the attempted murder charge, the prosecution argued there was substantial evidence showing that defendant had the specific intent to kill the victim. It reasoned that it was illogical to believe that a person went into a gangs territory to only fire a warning shot and not to shoot a rival.

The trial court dismissed the charges because it found no evidence to support the charged offenses. It believed that pointing a gun at someone, without making a demand, could not be an assault. In addition, there was no evidence that the gun was pointed at the victim or that it was an interrupted assault. The trial court specifically stated that it want[ed] the record clear that [it was] not considering [Penal Code section] 1385 as a basis for anything [it was] doing in this case. This is not a [section] 1385 situation. This is strictly a sufficiency of the evidence situation.

When the trial court dismissed the action, ruling that it would not grant a motion for new trial, the prosecution requested the legal basis for the trial courts decision:

[THE PROSECUTOR]: Can I ask the Court under what authority the Courts dismissing the action? Youre not granting a motion for new trial. Youre dismissing the action.

THE COURT: Yes.

[THE PROSECUTOR]: Can I ask the court under what authority?

THE COURT: [Section] 1118. [] . . . []

[THE PROSECUTOR]: So under 1118 the Courts dismissing the charges.

THE COURT: Insufficiency of the evidence, yes. Thats what we had the supplemental briefing on. I gave that intent before.

[THE PROSECUTOR]: No. The supplemental briefing was based on [section] 1385.

THE COURT: Well, I specifically said were not here to talk about motion for new trial. I asked for supplemental briefing for dismissal, insufficiency of the evidence.

[THE PROSECUTOR]: Which would be under [section] 1181, granting of motion for new trial.

THE COURT: Im not granting motion for new trial; dismissing those two charges.

DISCUSSION

A. A Dismissal Made under Section 1118.1 Cannot Be Entered After a Jurys Verdict.

The prosecution appeals from the trial courts dismissal of the charges, alleging that the trial court entered a void order and acted in excess of its jurisdiction when it dismissed the action pursuant to section 1118.1. We conclude that the trial court erred when it dismissed the action under section 1118.1.

Section 1118.1 provides: In a case tried before a jury, the court on motion of the defendant or on its own motion, at the close of the evidence on either side and before the case is submitted to the jury for decision, shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading if the evidence then before the court is insufficient to sustain a conviction of such offense or offenses on appeal. (Italics added.)

Under section 1118.1, a trial court cannot dismiss the case after it is submitted to the jury for a decision. (People v. Hatch (2000) 22 Cal.4th 260, 269.) Where a court has jurisdiction over the subject matter and the parties, but has no power to act except in a particular manner or to act without the occurrence of procedural prerequisites, a court acts in excess of jurisdiction. (In re Jesusa V. (2004) 32 Cal.4th 588, 624.)

In this instance, the trial court exceeded its jurisdiction when it dismissed the two counts pursuant to section 1118.1 after the jury rendered its verdicts. This the trial court cannot do. (See, e.g., People v. Cowan (1987) 194 Cal.App.3d 756, 758-760 [trial court acted in excess of jurisdiction where it struck section 1203.066 allegations pursuant to section 1385 despite language in section 1203.066 specifically prohibiting use of section 1385 to strike allegations].) We reverse the order of dismissal because the trial court lacked the authority to dismiss under section 1118.1. This returns the parties to the status quo prior to the erroneous ruling.

At the time of the hearing, the trial court had pending before it its own sua sponte motion to dismiss, a defense motion for new trial, and the prosecutions request for sentencing. The parties argued whether the counts should be dismissed under section 1385, but were surprised when the trial court instead dismissed the action under section 1118.1. We wish to clarify that we remand the matter in order to give the parties a fair opportunity to argue whether the charges should be dismissed under section 1385 (but not under section 1118.1), a new trial should be granted, or the defendant should be sentenced. We make no determinations as to whether there was sufficient evidence to support the assault with a deadly weapon and attempted murder charges.

DISPOSITION

The dismissal is reversed. The matter is remanded to the trial court with the following directions: Dismiss the case using the correct statutory authority; grant the defendant a new trial; or issue a sentence as per defendants conviction.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ McKINSTER

Acting P. J.

/s/ KING

J.

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[1] All further statutory references will be to the Penal Code unless otherwise indicated.

[2] In light of our conclusion that the trial court dismissed this matter using the incorrect statutory authority, we have imparted an abbreviated version of the facts admitted at trial.