Filed
10/22/12 P. v. Ruiz CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
OTILIO DIAZ RUIZ,
Defendant and
Appellant.
F062315
(Super. Ct. Nos. F10906162 &
CF02901585)
APPEAL from
a judgment of the Superior Court of Fresno
County. Hilary A. Chittick, Judge.
Barbara
Michel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In 2004,
appellant Otilio Ruiz was working as a security guard at Los Arcos Nightclub
when Jane Doe, his former girlfriend, arrived.
Jane Doe had ended the relationship two years earlier, but appellant
became angry when he saw her dancing closely with an unknown man that
night. Appellant shot both Jane and the
man she happened to be dancing with, identified as John Doe. Both victims were wounded in the head but
survived. John Doe did not know
appellant or Jane; he simply asked her to dance that night and ended up being
shot in the head.[1]
Appellant was not arrested for the
shootings until 2009. In 2011, after a
jury trial, appellant was convicted of counts I and II, attempted murder of
Jane and John (Pen. Code,[2] §§ 664, 187, subd. (a)); counts III and
IV, assault with a firearm on Jane and John (§ 245, subd. (a)(2)); and
count V, corporal injury to the mother of his child, Jane (§ 273.5). The jury found true enhancements as to count
I, that appellant personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)); as to count II, that appellant personally and
intentionally discharged a firearm causing great bodily injury to John
(§ 12022.53, subd. (d)); as to counts II and IV, appellant personally
inflicted great bodily injury to John (§ 12022.7, subd. (a)); and as to
all counts, that appellant personally used a firearm (§ 12022.5, subd.
(a)). Appellant was sentenced to 18
years plus 25 years to life.
On appeal, appellant contends there
is insufficient evidence to support his conviction in count II for attempted
murder of John Doe because he did not know John Doe and he did not intend to
kill him. He also contends there is
insufficient evidence to support the great bodily injury enhancements as to
count II, and argues that John Doe merely suffered a graze wound that did not
satisfy the definition of great bodily injury.
We will affirm.
FACTS
Jane Doe
was 14 years old when she started dating appellant. She ran away from home, moved in with
appellant, and had his child. Jane
testified that she lived with appellant even though he had encountered legal
trouble because he was living with a 14-year-old girl.
Jane testified
that appellant was physically abusive toward her during their relationship, he
hit her more than 10 times, and she was afraid of him. Appellant was jealous and threatened to harm
Jane or her parents if she looked at another man or went somewhere by
herself. Appellant also threatened to
take their child to Mexico if she reported the assaultive incidents to the
police.
Jane broke
up with appellant when she was 16 years old.
Jane was upset because appellant would not let her go to school and he
was very jealous. Jane and the child
moved away from appellant, she returned to school, and she did not contact him
again.
On one occasion after they broke
up, Jane was walking from school and realized that appellant had followed her
to the bus stop. Another time at the bus
stop, he emerged from the bushes and tried to grab her. On another occasion, in June 2001, Jane was
carrying her daughter to a bus stop and appellant drove by. She continued walking. Appellant appeared behind her, slapped her
face, and tried to hit her. Jane
reported this incident to the police.
In August
2003, appellant was convicted of the infliction of corporal injury to a parent
of a child, based on an assaultive incident he committed on Jane in February
2002. A protective order was issued
against appellant that prevented any contact with Jane, effective until August
2006.[3]
In 2004, at
the time of the shooting in this case, Jane was 18 years old. In 2011, at the time of appellant’s trial,
Jane was 25 years old.
In 2004,
appellant was sharing an apartment with Albert Merino. Merino worked as a security guard for a
private company which provided guards for the Los Arcos Nightclub in
Fresno. Appellant obtained a job with
the same security company, using the name “Diego Sandoval.”
On the
evening of March 19, 2004, appellant and Merino reported to Los Arcos Nightclub
in Fresno for their shifts as security guards.
It was appellant’s second time on the job and he was still being
trained. Appellant and the other guards
were dressed in identical uniforms and they did not carry guns. Merino had never seen appellant with a
gun.
Around 9:00
p.m. on March 19, 2004, just by happenstance, Jane and two girlfriends went to
Los Arcos Nightclub for dancing. She was
startled to see appellant enter the nightclub, wearing a security guard’s
uniform. She had no idea that appellant
worked there.
Jane
immediately told her girlfriends that appellant was there, and said she wanted
to leave because she was afraid of him.
Jane’s friends refused to leave and assured her that he would not do
anything. Jane had to stay at the
nightclub because she did not have another ride home.
Merino
testified that appellant approached him and said he was uncomfortable because
his girlfriend was at the nightclub.
Appellant asked to leave. Merino
told appellant to call their supervisor.
Jose
Rivera, the security company’s supervisor, testified that appellant called him
between 9:15 p.m. and 9:30 p.m.
Appellant said his girlfriend was at the nightclub, he had problems with
her, and it was probably better for him to leave. Rivera told appellant he could leave. Merino gave appellant the keys to his car,
and Merino saw appellant drive away from the club.
In the meantime, Jane approached
the security guard at the front door, and told him that she was concerned about
appellant’s presence. The security guard
later told her that appellant had left the nightclub.
Elizabeth Maciel was also working
as a security guard that night, and she was stationed by the dance floor. She had seen appellant leave the nightclub
earlier that evening. About an hour
later, however, she saw appellant return.
Appellant was still wearing his security guard’s uniform, and Maciel
thought he had been recalled to work.
Jane was sitting at a table with
her girlfriends when she saw appellant inside the nightclub. Jane became nervous and told her friends that
she was afraid. Her friends reacted by
getting up and going to the restroom as soon as they saw appellant, and they
left Jane alone at their table.
Jane remained at the table by
herself for a few minutes. Appellant
looked at her with a mean and angry face, similar to how he looked on previous
occasions when he was angry at her.
Jane testified that a man
approached her table and asked if she wanted to dance. Jane did not know this man and had never seen
him before. Jane agreed to dance with
him because she did not want to sit by herself, and she was afraid appellant
was going to approach and talk to her.
Jane and the man, later identified
as John Doe, went to the dance floor and danced together for a short period of
time. The music was for a slow dance,
and they held each other. There were
other couples on the dance floor.
Elizabeth Maciel was still
monitoring the dance floor. Maciel
testified that appellant stood near the dance floor and seemed to be looking at
the dancers. Maciel realized appellant
was not on duty, and advised the security officer at the front door that
appellant should remove his uniform to avoid confusion.
Maciel suddenly heard a loud
popping sound and saw sparks from the dance floor. She heard a second pop and realized that a
weapon was being fired. The two pops
were fired fairly quickly together.
Maciel looked at the dance floor
and saw appellant pointing a gun at Jane’s head. Appellant was standing within three feet of
Jane. Jane was still dancing with John
Doe when the shots were fired. Maciel
did not see appellant point the gun at John Doe.
Maciel testified everyone started
to run from the dance floor. Maciel then
heard more pops. Jane ran to Maciel and
tried to hide behind her. Jane was
crying and covered with blood. Appellant
appeared in front of Maciel as Jane was hiding behind her, and he pointed a
small black gun at Maciel. Appellant
moved the gun from side to side and tried to aim it at Jane. Appellant told Maciel to move, but Maciel
refused and continued to shield Jane.
Appellant did not fire any more gunshots and he ran out of the
nightclub.
Hortencia
Garcia was at the nightclub with some friends, and also saw the shooting. Garcia testified that appellant approached
Jane and John while they were dancing.
Appellant stood behind the couple, appeared to say something to them,
and the couple turned to face him. He
was four to five feet away from them.
Garcia
testified appellant raised his right hand and pointed something shiny at
Jane. Jane and John were standing next
to each other, and appellant was right in front of them. John raised both his hands in front of his
body. Garcia heard a pop, and Jane ran
away from appellant and passed Garcia’s table.
Garcia did not notice what happened to John.
Garcia testified that appellant ran
after Jane and he was holding a gun.
Garcia heard additional pops and one of the dance floor lights
shattered. Garcia saw Jane hide behind Maciel,
and then appellant ran out the front door.
Jane
testified that she was dancing with John Doe when she saw appellant holding a
gun. He was standing about eight feet
away from them, and he was pointing the gun directly at Jane’s head as she danced
with John. Jane and John stopped
dancing. Jane immediately ran away from
appellant, John, and the dance floor.
She heard gunshots and realized she was wounded in the head. She did not know what happened to John.
Jane heard more gunshots and realized
appellant was following her. “I was
running and we were in between tables.
And he was, like, trying to get close to me to shoot. He wanted to shoot me closer . . ..” Jane ran to Maciel and asked for help, and
tried to hide behind her. Appellant stood
in front of Maciel and he still had the gun.
Jane eventually saw appellant leave the nightclub.
John Doe
testified that he was at the nightclub by himself. He did not know Jane Doe. He asked her to dance with him. She agreed and they went to the dance floor.
John testified he was dancing when
someone fired a gun and he was shot.
Just before the shooting, he saw a man and woman standing next to each
other and arguing; they were about five to six feet away from John. The man seemed to be arguing with the
woman. He did not look or talk to
John. John saw the man raise his right
arm, and he was holding a black handgun, possibly a revolver. After the gunshots, the woman had blood on
her face. John went toward the woman to
help her. John was not sure if the woman
was the same person he had asked to dance.
John testified the man was about
two to three feet away from him when he heard the gunshots. John testified he felt something on the top
right side of his head, and thought he was hit by a BB shot. There was “just a little spurt of blood that
came out” from the right side of his upper forehead, and the blood went down
his face.
Fresno
Police Officer Bowling responded to the nightclub and briefly spoke to Jane,
who was bleeding, crying, and upset.
Jane said appellant, her former boyfriend, pointed a gun at her and
fired several shots. Bowling also spoke
to John, who was holding the top of his head and said he had been shot. Bowling saw redness, a bump, and some blood
on John’s head.
A deformed
lead bullet fragment was found on the nightclub’s dance floor. There were no casings, which was consistent
with the gunman using a revolver.
Jane testified the bullet hit the
right side of her forehead. It did not
penetrate her skin or enter her scalp.
The wound was cleaned and she did not need stitches. She was treated and released from the
hospital that night.
John was also treated at the
hospital and released that night. John
testified the hospital staff took something out of his head, and he received
stitches on the top right side of his head.
A police officer showed him “a little ball” which had been removed from
his head. He did not suffer any residual
pain and did not need additional treatment.
Officer Bowling spoke to John while
he was being treated at the hospital.
Bowling saw a laceration and bump on the top right side of John’s
head. John told Bowling that he had been
dancing with Jane. A man approached
Jane, and he was holding a black revolver-type handgun. John said the man pointed the gun at Jane,
fired one round, and hit her in the head.
John said the man “then fired one round at him and he ducked to avoid
being hit, but [he] was struck in the head.”
John said the man was two to three feet away from him when he fired at
John.
Dr. Marc
Shalit participated in the treatment that John received in the emergency room
for a gunshot wound to the scalp. John
was alert and did not lose consciousness.
There was “‘scant bloody drainage to right temple area.’” John’s head wound was irrigated and forceps
were used to remove shrapnel. It was a
.22-caliber bullet and it was not deformed.
John received a staple to bring the skin together and repair the
wound. A CT scan was performed and it
was negative for any neurological injury.
John was not given any pain medication.
Dr. Shalit reviewed John’s medical
records and testified that a nurse initially classified his head wound as a
probable graze wound, which would be defined as a “minor gunshot wound that has
not sustained much damage.” After
reviewing John’s records, however, Dr. Shalit explained that John’s wound was
“a bit more than a graze wound, because foreign body and material was removed
from the wound,” and a bullet was actually located under the skin on his
head.
On the night of the shooting,
appellant apparently left the nightclub in Merino’s car and did not return to
their apartment. Merino’s car was found
a week later, parked at a supermarket in Parlier. The vehicle contained a security guard’s
uniform. There were two expended
.22-caliber casings in the front center console.
An arrest warrant was issued for
appellant in 2004. He was arrested in
2009.
APPELLANT’S
TRIAL TESTIMONY
Appellant
testified that at the time of the shooting, he had broken up with Jane but he
thought they still had feelings for each other.
Appellant was surprised when he saw Jane at the nightclub. Jane tried to talk to him but he ignored
her. Appellant believed Jane was
taunting him and trying to make him jealous.
Appellant called his boss and said that his former girlfriend was
causing him problems, and asked for an assignment at another club. However, his boss refused.
Appellant
walked outside the club and told Merino about his problem with Jane. Merino gave appellant his car keys so he
could leave. Appellant stayed in the
parking lot but he did not leave the area.
Appellant went back inside the club
and saw Jane dancing with an unknown man.
Appellant thought Jane was “showing off to him, sort of like to provoke
me, to make me upset.” Appellant became
even more upset when he saw that Jane and the man were dancing close together
and hugging. Appellant did not know the
man, but he thought Jane was embarrassing him in front of his friends.
Appellant testified that he had
obtained a loaded .22-caliber revolver when he was outside the nightclub; he
did not have the gun when he initially reported for work. Appellant pointed the gun at Jane and shot
her in the forehead. Appellant claimed
he was not angry at the man who was dancing with Jane, but admitted the man was
standing right by Jane’s side when he fired the gun. Appellant admitted that after he fired the
first shot, he chased and followed Jane through the nightclub. He later left in Merino’s car and went to a
friend’s house.
Appellant
testified that he did not want to kill Jane when he shot her that night: “If I wanted to do it, I would have done it a
long time ago. Even up until now.” Appellant was asked if he shot the man with
whom Jane was dancing. He replied: “If you saw it yourself, yes.” When asked to explain his answer, appellant
said, “Well, if she saw it, yes, and if not, not.”
DISCUSSION
I. Appellant’s Conviction
For Attempted Murder Of John Doe Is Supported By Substantial Evidence.
Appellant
contends there is insufficient evidence
to support count II, attempted murder of John Doe, because he did not know John,
he did not intend to kill him, and he did not even intend to shoot him.
In
assessing the sufficiency of the evidence to support a conviction, “we review
the entire record in the light most favorable to the judgment to determine
whether it discloses evidence that is reasonable, credible, and of solid value
such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless
it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th
297, 331; People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) “[U]nless the testimony is
physically impossible or inherently improbable, testimony of a single witness
is sufficient to support a conviction.
[Citation.]” (
1181.)
“Attempted murder requires the
specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing. [Citation.]”
(People v. Booker (2011) 51
Cal.4th 141, 177-178 (Booker).) “‘The mental state required for attempted
murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice—a conscious disregard for
life—suffices. [Citation.]’ [Citation.]
. . . . Hence, in order for defendant to be convicted of the attempted
murder of the [victim], the prosecution had to prove he acted with specific
intent to kill that victim.
[Citation.]” (
739 (Smith).)
“Attempted murder requires express
malice, that is, the assailant either desires the victim’s death, or knows to a
substantial certainty that the victim’s death will occur. [Citation.]”
(Booker, supra, 51 Cal.4th at p. 178.)
“Malice is express when
the killer harbors a deliberate intent to unlawfully take away a human
life.” (People v. Lasko (2000) 23 Cal.4th 101, 104, italics omitted.) “Intent to unlawfully kill and express malice
are, in essence, ‘one and the same.’
[Citation.]” (
“... [I]ntent to kill or express malice, the mental state required
to convict a defendant of attempted murder, may in many cases be inferred from the defendant’s acts and
the circumstances of the crime.
[Citation.]” (
Appellant
contends the evidence of his specific intent to kill John was “slim to
non-existent” because his “rage was directed” against Jane Doe, he aimed the
gun at Jane’s head, he did not know John and never threatened him, no one saw
him aim the gun at John, and there was “scant to no evidence” that he intended
to kill John.
To the
contrary, there was substantial evidence of appellant’s express malice and
specific intent to kill John. “‘There is
rarely direct evidence of a defendant’s intent.
Such intent must usually be derived from all the circumstances of the
attempt, including the defendant’s actions.
[Citation.] The act of firing toward a victim at a close, but not point blank,
range “in a manner that could have inflicted a mortal wound had the bullet been
on target is sufficient to support an inference of intent to kill ....” [Citation.]’
[Citations.]” (
Such circumstances are present in
this case. While most of the witnesses
saw appellant initially aim his weapon at Jane rather than John, such evidence
does not negate the other evidence in support of appellant’s conviction for the
attempted murder of John. The shooting
occurred as Jane and John danced to slow music and remained close
together. Hortencia Garcia and Elizabeth
Maciel testified that Jane and John were still dancing together when appellant
aimed the gun at Jane’s head. Maciel
thought appellant was standing just three feet behind Jane when he raised the
gun and aimed it at her head. Garcia
testified that appellant stood four to five feet behind them, raised his right
hand and pointed the gun at Jane. John
raised his hands, as if to protect himself, and appellant fired the two
shots.
Jane similarly testified that
appellant pointed the gun at her head as she was dancing with John, and she was
wounded from one of his first shots.
John testified appellant was about two to three feet away from him when
he heard the gunshots, and he realized he was wounded in the head. John told Officer Bowling that the gunman
aimed and fired at Jane, and then the gunman “fired one round at him and he
ducked to avoid being hit, but [he] was struck in the head.”
While appellant now claims that his
animosity was solely directed at Jane, appellant testified at trial that his
anger was provoked when he saw Jane dancing closely together with a man. Indeed, appellant admitted John Doe was standing
right by Jane’s side when he fired the gun, and gave an evasive answer when
asked if he had shot John Doe. He
replied: “If you saw it yourself,
yes.” When asked to explain his answer,
appellant said, “Well, if she saw it, yes, and if not, not.”
Based on the entirety of the
record, appellant’s act of raising his gun at the level of Jane’s head, and
firing two shots at nearly point-blank range as Jane and John danced and
remained close together, provides substantial evidence of his express malice
and specific intent to kill John, and supports his conviction for the attempted
murder of John.[5]
Evidence That Appellant Inflicted Great Bodily Injury On John.
As to count
II, attempted murder of John, the jury found appellant personally and
intentionally discharged a firearm causing great bodily injury to John
(§ 12022.53, subd. (d)); and that appellant personally inflicted great
bodily injury to John (§ 12022.7, subd. (a)). Appellant contends the jury’s great bodily
injury findings for both enhancements are not supported by substantial evidence
because John suffered “only a scalp wound so minor that it caused no pain and
required no hospitalization.”
For purposes of both challenged
enhancements, great bodily injury is defined as “a significant or substantial physical injury.” (§ 12022.7, subd. (f), § 12022.53,
subd. (d).) It is an injury which is
“not insignificant, trivial or moderate.
[Citation.]” (
1060, 1066.) There is no specific
requirement that “the victim suffer ‘permanent,’ ‘prolonged’ or ‘protracted’
disfigurement, impairment, or loss of bodily function.” (People v. Escobar
(1992) 3 Cal.4th 740, 750.) “Abrasions, lacerations, and bruising can
constitute great bodily injury.
[Citation.]” (People v. Jung
(1999) 71 Cal.App.4th 1036, 1042.)
“[T]he damage need not be permanent.
[Citations.]” (
823, 827.)
“Proof that a victim’s bodily
injury is ‘great’ . . . is commonly established by evidence of the severity of
the victim’s physical injury, the resulting pain, or the medical care required
to treat or repair the injury.
[Citations.]” (
66.) However, “[a]lthough any medical treatment obtained by the
victim is relevant to determining the existence of ‘great bodily injury’
[citation],” the statutory definition and relevant case authorities “do not require
a showing of necessity of medical treatment.”
(People v. Wade (2012) 204
Cal.App.4th 1142, 1150, italics in original.)
For example, in People v. Lopez (1986) 176 Cal.App.3d 460, the
court upheld great bodily injury findings where one victim was shot in the
right buttock and a second victim in the left thigh; there was no evidence
either victim sought or received medical attention. (Id.
at pp. 463-465.) In People v. Wolcott
(1983) 34 Cal.3d 92, the court upheld the great bodily injury finding where the
victim was shot in the calf and the bullet fragmented. The treating doctor removed one fragment but
left the others to “work their way out naturally.” The victim lost little blood, no sutures were
required, and the victim went to work the next day. (Id.
at p. 107.) Wolcott concluded the victim’s “penetrating wounds” could not be
“described as ‘superficial’ . . . .” (
“[D]etermining whether a victim has
suffered physical harm amounting to great bodily injury is not a question of
law for the court but a factual inquiry to be resolved by the jury. [Citations.]
‘“A fine line can divide an injury from being significant or substantial
from an injury that does not quite meet the description.”’ [Citations.]
Where to draw that line is for the jury to decide.” (People
v. Cross, supra, 45 Cal.4th at p.
64.)
The jury’s great bodily injury findings
are supported by substantial evidence.
John Doe was wounded in the head by a gunshot likely fired from a
.22-caliber revolver. The wound was not
insignificant, trivial or moderate.
While the emergency room nurse initially classified it as a minor
gunshot wound, and the bullet did not penetrate John’s scalp, Dr. Shalit
explained that the wound was more serious than a graze wound since the bullet
lodged under the skin of his head, shrapnel from a .22-caliber bullet was
removed, and a staple was used to bring the skin together and repair the
wound. As in Lopez and Wolcott,
appellant suffered a significant or substantial physical injury, and the jury’s
great bodily injury findings are supported by substantial evidence.
DISPOSITION
The
judgment is affirmed.
_____________________
LEVY, Acting P.J.
WE CONCUR:
_____________________
POOCHIGIAN, J.
_____________________
FRANSON, J.
[1] The
information identified the shooting victims as Jane Doe and John Doe (they are
not related). At trial, both victims
testified under their own names. On
appeal, however, both appellant and respondent have identified the victims as
Jane Doe and John Doe, and we will also do so.
[2] All
further statutory citations are to the Penal Code unless otherwise indicated.
