Filed 6/28/22 P. v. Orozco CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. John S. Somers, Judge.

Jake Christopher Stebner, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Ivan P. Marrs, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

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Isaac Manuel Orozco entered his ex-girlfriend’s house late one night, attacked her new boyfriend, and gouged his eye out. For this violence, the jury convicted Orozco of several crimes including aggravated mayhem, attempted aggravated mayhem, and first degree burglary. He was sentenced to serve 16 years, four months to life in prison for aggravated mayhem, including seven years for the attempted aggravated mayhem conviction and one year, four months for the first degree burglary conviction.

On appeal, Orozco contends the evidence was insufficient to prove first degree burglary. We disagree. He also claims Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1) (AB 518), enacted while this appeal was pending, justifies a new sentencing hearing. The People concede and, as explained below, we agree. We will vacate the sentence, order a new sentencing hearing, and otherwise affirm.

BACKGROUND

Charges

The Kern County District Attorney charged Orozco with committing five crimes: aggravated mayhem (Pen. Code,[1] § 205; Count 1), first degree burglary (§ 460, subd. (a); Count 2), assault with a deadly weapon (§ 245, subd. (a)(1); Counts 3 & 4), and attempted aggravated mayhem (§§ 664 & 205; Count 5). The aggravated mayhem charge included an allegation Orozco was armed with a “deadly or dangerous” weapon (§ 12022, subd. (b)(1)).

Evidence

Late one night, Orozco entered his ex-girlfriend’s home, unannounced, through the kitchen window. He went to his ex’s bedroom where he found her asleep alongside her new boyfriend, the victim.

The ex-girlfriend woke up to find Orozco at the head of the bed, “standing over [the victim].” Orozco appeared surprised and asked, “[S]o that’s who you are sleeping with right now?” He then pulled the victim to the floor and savagely attacked him until he gouged out one eye.

After gouging out the victim’s eye, Orozco proclaimed, “I got one” and “[N]ow next for the other eye.” Orozco “tried going for [the] other eye” but ultimately did not damage it “severely.”

During the attack, Orozco declared, “I told you to stay away from her.” He also used a dowel and a chair to beat the victim. He took these objects from his ex-girlfriend during the attack while she tried to defend the victim by hitting Orozco. Law enforcement officers arrived on scene,[2] found Orozco “running away from the” home, and made contact with him while “[h]e was covered in blood ….”

Verdict and Sentence

Orozco was convicted as charged. He was sentenced to serve 16 years, four months to life in prison. The sentence included seven years for attempted mayhem (Count 5) and one year, four months for first degree burglary (Count 2).

DISCUSSION

This appeal presents two questions. One, did the evidence sufficiently prove burglary? Two, does AB 518 apply retroactively and warrant relief in this case? We answer both questions in the affirmative.

I. The Evidence Sufficiently Proved Burglary

Burglary requires proof of entry coupled with “intent to commit … larceny or any felony ….” (§ 459.) Orozco argues “the prosecution failed to prove [he] harbored felonious intent at the time of entry ….” He points out, for example, “the prosecution presented no evidence [he] was even aware [the victim] was sleeping in [the] bed” before he entered the bedroom.

The People claim the evidence sufficed to prove burglary. We agree.

A. Additional Background

The court instructed the jury it could find burglary proven if Orozco entered the home with the intent to commit mayhem or assault with a deadly weapon. The prosecutor argued the evidence in accord with the instruction.

B. Analysis

“In reviewing a claim for sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime … beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Jennings (2010) 50 Cal.4th 616, 638-639 (Jennings).)

First, we acknowledge the evidence did not sufficiently prove burglary predicated on assault with a deadly weapon. There was no evidence Orozco was armed prior to his entry or armed himself in the home prior to the attack. He armed himself fortuitously during the attack by taking the dowel and chair from the ex-girlfriend after entering the house. Too much speculation is required to believe he intended to commit assault with a deadly weapon when he entered the kitchen window. (People v. Waidla (2000) 22 Cal.4th 690, 735 [speculation is not evidence].)

The evidence did, on the other hand, prove Orozco intended to commit mayhem when he entered the home. Orozco arrived unannounced; had he intended to converse with his ex-girlfriend he could have contacted her by phone or at least tried the front door.[3] He stood over the victim and expressed his displeasure by stating, ”[S]o that’s who you are sleeping with right now?” He then launched a savage attack, quickly targeting the victim’s eye while reminding him, “I told you to stay away from her.” After Orozco gouged out one eye he announced his intent to target the “other eye,” making clear his intent to maim the victim.

It is true the evidence suggests Orozco was surprised in the bedroom prior to attacking the victim. But the evidence he was surprised was not further explained. Admittedly, his surprise could reasonably mean he was not expecting to find the victim in bed with his ex-girlfriend. But it could also reasonably mean he was simply expressing disdain for the victim[4] or was startled when his ex-girlfriend spontaneously awoke.[5] We are constrained from choosing amongst reasonable inferences to reverse a conviction for insufficient evidence. (Jennings, supra, 50 Cal.4th at p. 639.)

In sum, the haste with which Orozco attacked the victim and gouged out his eye, combined with no apparent lawful purpose in entering the home unannounced, readily proved a preexisting intent to commit mayhem. Orozco’s statements made during the attack including reaffirming a previous warning to the victim[6] and explicitly declaring an intent to target the victim’s eyes, all reasonably suggest Orozco entered the home with the intent to commit mayhem against the victim. Accordingly, we find the evidence fairly proved burglary.

II. AB 518 Demands a New Sentencing Hearing

AB 518 “amended Penal Code section 654, subdivision (a) to provide, in pertinent part: ‘An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.’ (Italics added.) Previously, where Penal Code section 654 applied, the sentencing court was required to impose the sentence that ‘provides for the longest potential term of imprisonment’ and stay execution of the other term. (Pen. Code, § 654, former subd. (a).) As amended …, Penal Code section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379 (Mani).)

The amendment to section 654 “was enacted while [Orozco’s] appeal was not yet final and it provides the trial court new discretion to impose a lower sentence ….” (Mani, supra, 74 Cal.App.5th at p. 379.) This constitutes an “ameliorative benefit” and applies to this case. (Ibid.) Accordingly, we must vacate the sentence and order a new sentencing hearing.[7]

DISPOSITION

The sentence is vacated. The judgment is otherwise affirmed. The trial court is directed to resentence Orozco in accordance with section 654 and AB 518.

SNAUFFER, J.

WE CONCUR:

POOCHIGIAN, ACTING P. J.

FRANSON, J.

[1] All statutory references are to the Penal Code.

[2] The ex-girlfriend testified she “called 911” “during the attack ….”

[3] The evidence indicated Orozco and his ex-girlfriend remained in contact “ [b]y text.”

[4] For example, Orozco’s question—“so that’s who you are sleeping with right now?”—is rationally interpreted as mockery. The statement was not further described or probed.

[5] On this latter point, the ex-girlfriend testified, “Nothing prompted me to wake up. I just woke up.”

[6] The fact Orozco previously warned the victim “to stay away” from his ex-girlfriend came from the ex-girlfriend; the victim did not testify to the reminder warning.

The victim did, however, testify he was familiar with Orozco’s voice and Orozco “stop[ped] by [his] work one day.” There was no elaboration. Nonetheless, these facts reasonably prove Orozco and the victim knew one another prior to the attack. Because the evidence reasonably suggests they knew each other, it supports the theory Orozco premeditated the attack and targeted the victim prior to entering the home.

[7] The People concede AB 518 applies retroactively and “agree that remand for resentencing is required.” Orozco’s remaining sentencing claims are moot. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full resentencing rule allows a court to revisit all prior sentencing decisions when resentencing a defendant.”].)