P. v. Ortiz

Filed 3/15/07 P. v. Ortiz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. John M. Tomberlin, Judge. Affirmed as to defendant Anthony Mark Ortiz. Reversed as to defendant Brandon Jamaal OGuynn.

Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant Anthony Mark Ortiz.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant Brandon Jamaal OGuynn.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.

Following a joint trial, a jury found Anthony Mark Ortiz and Brandon Jamaal OGuynn (hereafter referred to jointly as defendants, and referred to individually by last name) guilty of first degree murder in the shooting death of Leydeer Molina. With respect to defendant Ortiz, the jury further found true the special allegation under Penal Code section 12022.53, subdivision (d),^[1]that in the commission of the crime, defendant Ortiz personally and intentionally discharged a firearm which proximately caused great bodily injury and death. Based on the jurys verdicts and true finding, the trial court sentenced each defendant to a term of 25 years to life in state prison on the first degree murder conviction and sentenced defendant Ortiz to the additional mandatory consecutive term of 25 years to life in prison on the section 12022.53, personal gun use enhancement.

Each defendant raises various claims of error on appeal, the details of which we recount below, in our discussion of those claims. We agree with defendant OGuynns assertion that the evidence is insufficient to support the jurys verdict finding him guilty of first degree murder. Therefore, we will reverse his conviction on that charge. We conclude that defendant Ortizs claims are meritless, and will affirm his conviction.

FACTS

Although the record in this appeal is lengthy, the essential facts are not complex. In the mid-afternoon on August 11, 2002, a primer-gray-colored Buick Regal pulled up alongside Leydeer Molina in the parking lot of a Wal-Mart in Victorville. The driver of the car was defendant Ortiz, described by the only eyewitnesses as the white guy, and defendant OGuynn, the black guy, was the passenger. Mr. Molina and Cynthia Gamboa^[2]had been shopping at Wal-Mart and were attempting to unlock their car when defendant Ortiz pulled up. After one of the defendants said something that drew his attention, Mr. Molina walked over to defendants car. As Mr. Molina leaned in the drivers side window, defendant Ortiz fired three shots at close range with a nine-millimeter Sig Sauer handgun. Each shot hit Mr. Molina in the chest. After shooting Mr. Molina, defendant Ortiz, with defendant OGuynn in the passenger seat, sped away. Mr. Molina died in the Wal-Mart parking lot as his wife chased the Buick Regal yelling out the numbers on the vehicles license plate.

When the Buick Regal was located by the police two days after the Wal-Mart shooting, Thomas Felix was driving the car and the vehicle had been painted blue. Felix said that he had purchased the car from defendant Ortiz, who had agreed to paint the car as part of the purchase price. Jeremy Cox, the older brother of defendant Ortiz, had delivered the car to Thomas Felix on August 12, the day after the shooting. In a tape-recorded phone call^[3]that Jeremy Cox made from jail after he was arrested for being an accessory after the fact, Cox told Felix not to show up to testify at trial.^[4]

After leaving Wal-Mart defendant Ortiz drove to the home of his older brother, Jeremy Cox. Once there defendants told Cox and others present about the shooting. According to several witnesses, defendant OGuynn claimed that he had been the shooter. Jeremy Cox also told the police and testified at trial that defendant OGuynn said that he had shot Mr. Molina because the guy had gotten crazy and looked like he was going to hit defendant Ortiz so when he walked up to the car, defendant OGuynn shot him.^[5] According to Jeremy Cox, defendant Ortiz did not stay long at Coxs house and after defendant Ortiz left, Cox and defendant OGuynn spent the entire night painting the car.^[6] Cox and defendant OGuynn also took apart the interior of the car looking for the expended shell casings. They recovered only two of the three shell casings and Jeremy Cox threw them into a field. Law enforcement officers recovered one shell casing at the scene in the Wal-Mart parking lot.

The next morning defendants and Jeremy Cox read the local newspaper and learned that Mr. Molina had died. Several other people were with defendants and Cox in the garage by this time. One of the people present was Brandon Ruiz. After learning that Mr. Molina had died, defendant OGuynn gave the gun to Brandon Ruiz to hide. Initially, Ruiz took the gun to another friends home and hid the weapon in a flower pot. Later, after law enforcement officers had executed search warrants at various homes including defendant OGuynns and Coxs, Ruiz threw the gun in Lake Silverwood, a fact he told the investigating law enforcement officers when they questioned him about the shooting. Sheriffs department divers recovered the gun from the lake.

Forensic analysis of the bullets recovered from the body of Mr. Molina established that they had been fired from the gun recovered from the lake. In a search of defendant OGuynns bedroom, law enforcement officers recovered a pair of Solo black jeans, a pocket of which contained a plastic baggie that held three bullets, two of which were nine millimeter. One of the nine-millimeter bullets had the same head stamp, or Bunter tool, marking as the shell casing found at the scene of the shooting. According to the expert witness, the Bunter tool stamps a letter and number on every bullet produced. The stamp wears out in about a day but during that day between 50,000 to 100,000 cartridges are produced. From the fact that the same Bunter stamp was used on the bullet found in defendant OGuynns pocket and the shell casing recovered at the scene, the expert could conclude that the two bullets were manufactured on the same day and might even have come from the same box of ammunition. Jeremy Cox testified that the gun recovered from the lake belonged to defendant OGuynn who, according to Cox, was always packing.^[7]

Although defendants, when initially questioned by law enforcement officers denied participation in the shooting, by the time of trial the only issue was which of them had been the actual shooter. The prosecutors theory was that defendant OGuynn was the shooter and that defendant Ortiz had aided and abetted that crime by driving the car.^[8] However, Ms. Gamboa, who was the witness closest to the Buick at the time of the shooting, told the police and testified at trial that the driver of the car was the shooter, and that she recalled seeing a white hand holding a black gun. Ms. Gamboa identified the passenger as a black man and stated that he just sat there during the shooting. The only other eyewitness, Ms. Logsdon, concurred with Ms. Gamboa that the shooter was the white guy and the driver of the car.

Additional facts will be discussed below as pertinent to the issues defendants raise on appeal.

DISCUSSION

1.

DEFENDANT OGUYNNS SUFFICIENCY OF THE EVIDENCE CLAIM

Defendant OGuynn challenges the sufficiency of the evidence to support his first degree murder conviction. As he points out, because the charges included section 12022.53 personal use allegations for both defendants, and the jury found the personal use allegation true as to defendant Ortiz, the jury necessarily found that defendant Ortiz was the actual shooter. Moreover, the Attorney General acknowledges that we are constrained by that finding in assessing the sufficiency of the evidence to support the jurys verdict finding defendant OGuynn guilty of first degree murder. Because the jury found that he was not the actual shooter, in order to find defendant OGuynn guilty of first degree murder, the jury had to find that he aided and abetted defendant Ortiz in the commission of that crime.^[9]

[A]n aider and abettor is a person who, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime. [Citation.] (People v. Prettyman (1996) 14 Cal.4th 248, 259, quoting People v. Beeman (1984) 35 Cal.3d 547, 561.) In this case, there was evidence, set forth above, from which the jury could find that the gun defendant Ortiz used to shoot Mr. Molina belonged to defendant OGuynn. In order for the jury to find defendant OGuynn aided and abetted defendant Ortiz in the shooting they had to find not only that defendant Ortiz used defendant OGuynns gun but also that defendant OGuynn gave the gun to defendant Ortiz with knowledge that Ortiz intended to use it to shoot Mr. Molina and with the intent of promoting, encouraging or facilitating that shooting. There is no evidence, either direct or circumstantial, from which the jury in this case could find that defendant OGuynn gave defendant Ortiz the gun that Ortiz used to shoot Mr. Molina.

The evidence pertinent to defendant OGuynns participation in the crime is that he and defendant Ortiz went to Wal-Mart together in defendant Ortizs car with defendant Ortiz driving. Defendant OGuynn left the store while defendant Ortiz paid for a purchase at the checkout stand. Defendant OGuynn waited outside the store for defendant Ortiz to get his car and pick him up. Defendant OGuynn was in the car at the time defendant Ortiz drove up to Mr. Molina and shot him.^[10] Assuming without actually deciding that the evidence is sufficient to show that the gun defendant Ortiz used to shoot Mr. Molina belonged to defendant OGuynn, there is no evidence to show how defendant Ortiz got that weapon. Because the record is devoid of evidence in that regard, the jurys implied finding on the critical issue is entirely speculation. In other words, defendant OGuynn might have given the gun to defendant Ortiz. On the other hand, he might have put the gun on the seat of the car and defendant Ortiz simply grabbed it and used it to shoot Mr. Molina. Numerous other possibilities come to mind, all of which are equally based on speculation.

We may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence. [Citations.] (People v. Morris (1988) 46 Cal.3d 1, 21.) There is no evidence that defendant OGuynn gave defendant Ortiz the gun, least of all that he did so with knowledge that Ortiz intended to use it to shoot Mr. Molina and with the intent to facilitate that shooting. Therefore, the evidence does not support defendant OGuynns first degree murder conviction and we must reverse that conviction. Although the trial court instructed the jury on the elements of the offense of accessory after the fact to murder, that offense is a lesser related charge to the crime of murder rather than a lesser necessarily included offense. Therefore, we may not reduce defendant OGuynns murder conviction to a conviction for that lesser related offense. (See 1260, 1181, subd. 6, which permits the court to reduce a defendants conviction to a lesser included offense when the evidence warrants such a reduction; People v. Matian (1995) 35 Cal.App.4th 480, 488 [court may reduce conviction for felony false imprisonment to a conviction for the lesser included offense of misdemeanor false imprisonment].) Instead, we must reverse the first degree murder conviction and direct the trial court to dismiss the action as to defendant OGuynn.

2.

DEFENDANT ORTIZS CLAIMS ON APPEAL

A. Sufficiency of the Evidence Claim

Defendant Ortiz contends that the evidence was insufficient to support the jurys true finding on the allegation under section 12022.53, subdivision (d), that he personally used a handgun and caused the death of Mr. Molina. We disagree.

In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432.) Substantial evidence is evidence which is reasonable, credible, and of solid value. (Peoplev. Johnson (1980) 26 Cal.3d 557, 578.)

As recounted above, Ms. Gamboa and Ms. Logsdon, the eyewitnesses to the shooting, both said that the driver, the white guy, i.e., defendant Ortiz, was the shooter. In challenging the sufficiency of that evidence to support the jurys true finding defendant Ortiz contends that neither witness was credible. The defects in credibility that defendant Ortiz cites, including the ability of each witness to see what happened and the conflicts and inconsistencies between the statements each witness made to the police and the testimony of each witness at trial, were fully fleshed out for the jury. Accordingly, we must presume the jury considered those issues in reaching their verdict on the section 12022.53 allegation.

[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] [Citations.] (People v. Thornton (1974) 11 Cal.3d 738, 754.) As evidenced by their true finding, the jury resolved the credibility issue and the conflicts in evidence against defendant Ortiz. Because there is evidence to support the jurys finding that defendant Ortiz was the actual shooter, we may not reverse the jurys true finding simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citations.] (People v. Farnam (2002) 28 Cal.4th 107, 143.)

B. Evidence that Defendant Ortizs Brother Threatened Defendant OGuynn

Defendant Ortiz challenges the admissibility of evidence that his older brother, Jeremy Cox, threatened to have defendant OGuynn beaten up unless OGuynn agreed to take the blame for the shooting. We will not address this issue because the record does not support defendant Ortizs claim that such evidence was admitted at trial. As the Attorney General correctly points out, the portions of the record defendant Ortiz cites to support his claim, do not contain the challenged testimony.^[11] Moreover, although the prosecutor did ask Jeremy Cox whether he had tried to have defendant OGuynn beaten up while the two were in jail, Cox answered that he had not done so and also stated that he was not present when OGuynn was assaulted in jail, an attack that left OGuynn with a broken jaw. Cox repeated his denials when counsel for defendant OGuynn asked him the same questions on cross-examination. In short, Jeremy Cox denied any involvement in and knowledge of an assault on defendant OGuynn that occurred while the two were in jail. Because the evidence defendant Ortiz purports to challenge was not admitted at trial, this claim has no basis and for that reason we must reject it.

C. Cruel and Unusual Punishment

Defendant Ortiz contends that his sentence of 25 years to life on the section 12022.53, subdivision (d) personal use of a firearm enhancement violates both the state and federal constitutional prohibitions against cruel and unusual punishment. Defendant Ortiz asserts, first, that the mandatory consecutive sentence of 25 years to life for personal use of a firearm violates the state Constitution because it does not take into consideration individual culpability, mitigating circumstances, or gradations in punishment. This claim was addressed and rejected in People v. Martinez (1999) 76 Cal.App.4th 489, 494-496. Defendant Ortiz purports to distinguish People v. Martinez on the ground that the defendant in that case was convicted of attempted murder, a crime for which the trial court imposed a mitigated sentence of 10 years in state prison, whereas defendant Ortiz has been convicted of first degree murder, a crime he contends is automatically enhanced by 25 years to life. In other words, defendant Ortiz is of the view that his personal use of a gun should not be punished even though he committed a more serious offense than that committed by the defendant in People v. Martinez.

The Legislature obviously felt otherwise, as evidenced by its enactment of section 12022.53, known as the 10-20-life law, because the law includes both murder and attempted murder among the specified crimes to which the enhancement applies ( 12022.53, subd. (a)(1)) and imposes prison terms of 10 years, 20 years, and 25 years depending on the seriousness of the firearm use. ( 12022.53, subds. (b), (c) & (d).) Fixing the penalty for crimes is the province of the Legislature, which is in the best position to evaluate the gravity of different crimes and to make judgments among different penological approaches. [Citations.] Only in the rarest of cases could a court declare that the length of a sentence mandated by the Legislature is unconstitutionally excessive. [Citations.] (People v. Martinez, supra, 76 Cal.App.4th at p. 494.) In short, the distinction defendant Ortiz attempts to draw is meritless. For the reasons stated in People v. Martinez, we reject defendant Ortizs initial challenge to the constitutionality of section 12022.53, subdivision (d). (People v. Martinez, supra, at pp. 494-496.)

Equally meritless is defendant Ortizs assertion that section 12022.53, subdivision (d) runs afoul of the test the Supreme Court articulated in People v. Dillon (1983) 34 Cal.3d 441, for determining whether a punishment violates the state constitutional prohibition against cruel or unusual punishment. Under the California Constitution, a sentence may be cruel or unusual if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Citation.] (People v. Martinez, supra, 76 Cal.App.4th at p. 494, quoting In re Lynch (1972) 8 Cal.3d 410, 424.) The main technique of analysis under California law is to consider the nature both of the offense and of the offender. [Citation.] The nature of the offense is viewed both in the abstract and in the totality of circumstances surrounding its actual commission; the nature of the offender focuses on the particular person before the court, the inquiry being whether the punishment is grossly disproportionate to the defendants individual culpability, as shown by such factors as age, prior criminality, personal characteristics, and state of mind. [Citations.] (People v. Martinez, supra, 76 Cal.App.4th at p. 494, citing People v. Dillon, supra, 34 Cal.3d. at p. 479.)

Defendant Ortiz asserts that the circumstances of the crime in this case included an exchange of words between defendants and the victim, a confrontation that warranted instructing the jury on various principles of self-defense. Those same facts, Ortiz contends, constitute mitigating circumstances that render the sentence of 25 years to life on the firearm use enhancement unconstitutional. We do not share defendant Ortizs view of the evidence. According to the evidence presented at trial, defendant Ortiz sought out Mr. Molina who was doing nothing more threatening than trying to unlock his car so that he and his wife could load their Wal-Mart purchases into the vehicle and go home to their children. If a confrontation occurred, defendant Ortiz initiated it and for no apparent reason other than that he believed Mr. Molina had mad-dogged him, i.e., he had looked at him funny. Although among defendant Ortizs friends and associates, mad-dogging apparently is sufficient justification to shoot someone, it is not a justification accepted in other contexts of our society. Defendant Ortizs act of shooting Mr. Molina was utterly senseless and defies comprehension. That act warrants the most severe punishment that the trial court could lawfully impose.

Finally, defendant Ortiz argues that his sentence of 25 years to life on the firearm use enhancement also violates the Eighth Amendment to the United States Constitution for the same reasons the sentence is disproportionate under state law. While we do not share defendant Ortizs view that the Eighth Amendment includes a proportionality guarantee, we will not address that issue because the sentence does not run afoul of that guarantee. As discussed in connection with his state constitutional claim, the sentence of 25 years to life for his personal use of a firearm that caused the death of Mr. Molina is not disproportionate to defendant Ortizs criminal conduct. Although previously stated, the senselessness of the crime bears repeating defendant Ortiz drove up to Mr. Molina in the Wal-Mart parking lot, shot him in the chest three times at close range and killed him for absolutely no reason other than he apparently wanted to show that he could commit such a mindless and senseless act. Bluntly put, the sentence fits the criminal conduct.

DISPOSITION

The judgment as to defendant Ortiz is affirmed. The judgment of conviction as to defendant OGuynn is reversed with directions to the trial court to dismiss the charge against him.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ Miller

J.

/s/ King

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1]All further statutory references are to the Penal Code unless indicated otherwise.

^[2]Mr. Molina and Ms. Gamboa were not legally married but had lived together for many years and had three children. We refer to them in this opinion as husband and wife.

^[3]In addition to the recording of Jeremy Coxs phone call, the prosecutor played tape recordings of numerous telephone calls defendant OGuynn placed from jail to his family and to various friends, including members of defendant Ortizs family.

^[4]Cox eventually pled guilty to the accessory charge and to a charge of dissuading a witness, but the victim of that charge was Herminino Quintero.

^[5]Other witnesses testified that the victim had been mad-dogging defendant Ortiz and that when he walked up to the car, he looked like he was going to hit Ortiz.

^[6]Other witnesses testified that defendant Ortiz was present and helped to paint the car. Much of the trial was spent pointing out and/or addressing inconsistencies in the statements and testimony of the various witnesses.

^[7]In his defense, defendant OGuynn argued that Jeremy Cox fabricated what he had told others and the police in an effort to protect his brother and place blame for the shooting on defendant OGuynn. Herminino Quintero testified that he had been threatened by Jeremy Cox and that Cox had told him that defendant OGuynn was the shooter.

^[8]The prosecutor presented an elaborate scenario at trial based on the fact that defendants had been shopping in Wal-Mart at the same time that Mr. Molina and Ms. Gamboa also had been shopping there. From that fact, the prosecutor posited that defendants might have encountered Mr. Molina in the automotive section where they might have exchanged words or had some type of run in with him. Ms. Gamboa did not see any encounter between defendants and Mr. Molina but acknowledged that she had been separated from her husband for a minute or two. Videotape from Wal-Mart surveillance cameras showed both defendants standing in line at a checkout stand. The woman who had been standing in line behind them testified at trial that defendants had made her uncomfortable because they were making comments as they checked out women. The videotape also showed that defendant OGuynn left the store while defendant Ortiz paid for a purchase. Although Ms. Gamboa testified that defendant OGuynn passed right by her as she and her husband left the store, the videotape shows that both defendants were outside the store before Mr. Molina and Ms. Gamboa left the Wal-Mart. Once outside, defendant OGuynn waited by a vending machine area in the front of the store until defendant Ortiz drove up in the Buick Regal. After defendant OGuynn got in the car, defendant Ortiz did not leave the parking lot by the nearest exit but instead drove up an aisle that paralleled the aisle in which Mr. Molina and Ms. Gamboa were walking to get to their car; after passing by Mr. Molina and Ms. Gamboa, defendant Ortiz made a U-turn and pulled up along side Mr. Molina who was standing at the rear of his car, attempting to unlock the doors. From these facts, the prosecutor posited the theory that defendant OGuynn might have waited outside the store so that he could follow Mr. Molina when he came out in order to confront him for a slight that might have occurred inside the store if Mr. Molina and defendants had crossed paths in the automotive section. In short, the claim that defendants and Mr. Molina crossed paths inside Wal-Mart is based entirely on speculation.

^[9]The prosecutors theory, as noted previously, was that defendant OGuynn was the shooter and defendant Ortiz aided and abetted in the commission of that offense by driving the car and pulling up alongside Mr. Molina. That theory lost viability when both eyewitnesses testified that the driver was the shooter.

^[10]After the shooting both defendants engaged in numerous acts designed to cover up the shooting, including painting and disposing of defendant Ortizs car and disposing of the gun. Those acts do not shed any light on the dispositive issue did defendant OGuynn give defendant Ortiz the gun used in the shooting, and if so, did he do so with knowledge that defendant Ortiz intended to use the gun to shoot Mr. Molina and with the intent to facilitate the commission of that crime.

^[11]One of defendant Ortizs citations is to testimony in which Jeremy Cox claims that defendant OGuynn tried to have him beaten up in jail.