P. v. Ditmar

Filed 8/21/06 P. v. Ditmar CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. James C. McGuire, Judge. Affirmed.

Christine Vento, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Raquel M. Gonzalez and Lilia E. Garcia, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant Jesse James Ditmar guilty of second degree murder of his stepfather, Mr. Million (Pen. Code, § 187, subd. (a); count 1),^[1] attempted premeditated and deliberate murder of his mother, Mrs. Million (§§ 664, 187, subd. (a); count 2), and grand theft auto (§ 487, subd. (d)(1); count 3), for stealing the Millions' car. The jury also found true as to count 2 that defendant inflicted great bodily injury upon Mrs. Million. (§ 12022.7, subd. (a).) The court sentenced defendant to a total prison term of 28 years to life, consisting of 15 years to life for murder; a life sentence with a minimum of seven years for attempted murder; a consecutive upper term of three years for the grand theft auto count; and an upper term of three years for the count 2, great bodily injury, enhancement.

Defendant contends there was insufficient evidence that he premeditated and deliberated the attempted killing of his mother. Defendant also raises several instructional challenges, including the failure to give CALJIC Nos. 8.73 and 8.42, concerning provocation as a defense, and failure to instruct that provocation can occur over an extended period of time and consist solely of words. Alternatively, as to this last instruction, defendant asserts that his trial attorney's failure to request the instructions constituted ineffective assistance of counsel. As to sentencing, defendant complains that the trial court abused its discretion and committed Blakely^[2] error by imposing the upper term on the grand theft auto count. We conclude there was no reversible error and affirm the judgment.

1. Facts

In March 2003, when defendant was 21 years old, he moved back in with his mother and stepfather, Mr. and Mrs. Million. While living with the Millions, defendant and the Millions continually argued and bickered.

During the evening of October 8, 2003, defendant attacked Mr. and Mrs. Million with a Mag Lite flashlight and fireplace tongs. Mr. Million died but Mrs. Million survived the brutal attack.

Mrs. Million's Police Interview on October 9th

The police interviewed Mrs. Million at the hospital on October 9, 2003, and her recorded statement was played for the jury. Mrs. Million stated that she, Mr. Million, and defendant were the only ones in the house the evening of the attack. Mr. and Mrs. Million were in separate rooms. Defendant attacked her late in the evening, when she was getting ready for bed. While she was standing in the doorway of the front room, defendant grabbed her from behind. Mrs. Million told defendant he was hurting her, to let go, and that she thought she was having a stroke. One side of her head hurt terribly. She fell to the floor and blacked out.

Defendant did not say anything to her either before or during the attack, which came out of the â€