P. v. Ochoa

Filed 10/17/07 P. v. Ochoa 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Ingrid Adamson Uhler, Judge. Affirmed.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted defendant Marcial Armenta Ochoa of premeditated attempted murder and other associated charges, with true findings on weapon-use allegations, following a shooting from an alley into the backyard of a residence. He was sentenced to a total term of life plus 25 years to life. On appeal, defendant contends that his sentence violates Penal Code section 654.^[1] For the reasons set forth below, we shall affirm the judgment.

I

FACTUAL AND PROCEDURAL HISTORY

On June 11, 2005, Marc Davis and his fiance, Mary Brader, were at the home of Joanne Stewart, Jim Puskas, and Joe Brown to have dinner. Around 6:45 p.m., everyone gathered in the enclosed patio, where Stewart was serving food.

At that time, a Ford Escort pulled up to the rear of the house, immediately adjacent to the back gate. Stewart recognized the car; about two hours earlier, three males had stopped by the house in the same vehicle. One of the occupants spoke with Brown about Browns son, who was in prison. After the conversation ended, the three men attacked Brown, beating him until Stewarts screaming chased them away.

Later, as the group sat on the back patio for dinner, Stewart saw defendant get out of the same car, which was now parked in front of the rear gate. After getting out of the car, defendant pulled out a rifle and placed it on the car roof. Defendant then pointed the rifle at the back patio, where Davis and the others were gathered. Stewart saw defendant with the rifle and began shouting. At the same time, Davis saw defendant and began to yell for everyone to get down. Davis then grabbed his fiance and attempted to get inside the house.

Just as Davis reached a far bedroom, he was shot. He was hit in the abdomen with a single bullet; defendant had fired eight rounds into the house. Stewart and the others tried to help Davis by placing a pressure pack on the wound. Shortly after being shot, Davis went into shock and passed out. He was eventually airlifted to the hospital, where his spleen was removed and 31 staples were used to close the wound. The bullet, which could not be removed, still remains in his abdomen.

Shortly after the incident, defendant was arrested by Ontario Police. At the time of arrest, defendant was standing in an alley, next to the driver side door of the Ford Escort involved in the shooting. Defendant was apprehended along with two other individuals, one of whom was Rogelio Romero, who later pleaded guilty to being an accessory. After the arrest, defendant was identified as the shooter, and Romero was identified as the man who had attacked Brown at the house earlier in the day. The rifle used in the shooting was also found in the car.

On August 17, 2006, a second amended information charged defendant with (1) attempted deliberate and premeditated murder of Davis under sections 664, subdivision (a) and 187, subdivision (a) (count 1); (2) shooting at an inhabited dwelling under section 246 (count 2); (3) shooting from a motor vehicle under section 12034, subdivision (c) (count 3); (4) assault with a firearm of Davis under section 245, subdivision (a)(2) (count 4); and (5) possession of a firearm by a felon under section 12021, subdivision (a)(1) (count 5).

The amended information also alleged several firearm enhancements as to count 1: (1) defendant personally and intentionally discharged a firearm, proximately causing great bodily injury under section 12022.53, subdivision (d); (2) defendant personally and intentionally discharged a firearm under section 12022.53, subdivision (c); and (3) defendant personally used a firearm under section 12022.53, subdivision (b). Furthermore, the information alleged that in the commission of counts 1 through 4, defendant personally used a firearm within the meaning of sections 1203.06, subdivision (a)(1) and 12022.5, subdivision (a). Finally, the information alleged that in the commission of counts 2, 3, and 4, defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a).

On September 19, 2006, a jury found defendant guilty on counts 1, 2, 4, and 5. As to count 1, the firearm enhancements were found true. Moreover, the jury found true that defendant, in the commission of counts 2 and 4, personally used a firearm and personally inflicted great bodily injury.

On November 27, 2006, the trial court sentenced defendant to state prison for a total term of life plus 25 years to life. The court determined that attempted first degree murder was the principal count and imposed a sentence of life in prison. Count 1 was enhanced under section 12022.53, subdivision (d), for which the court imposed a consecutive sentence of 25 years to life. The sentence was stayed under section 654.

II

ANALYSIS

On appeal, defendant contends that the assault with a firearm in count 4 was a lesser offense of the premeditated attempted murder in count 1 and, therefore, the trial court should have dismissed count 4 rather than staying the sentence therefor.

Defendants contention fails because the California Supreme Court has held that only the statutory elements test, and not the accusatory pleading test, is to be used in deciding whether multiple convictions are proper. Under the statutory elements test, the assault was not a necessarily included offense of the attempted murder.

A. The Test for Necessarily Included Offenses in Multiple Conviction Cases

In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed); see 954.) However, [a] judicially created exception to the general rule permitting multiple conviction prohibits multiple convictions based on necessarily included offenses. [Citation.] (Reed, at p. 1227; see also People v. Pearson (1986) 42 Cal.3d 351, 355.)

Ordinarily, one offense may be necessarily included in another under either of two tests. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.] (Reed, supra, 38 Cal.4th at pp. 1227-1228.)

In Reed, however, the Supreme Court held that where the validity of multiple convictions is in issue, only the statutory elements test is to be used in determining whether an offense is necessarily included in another. The court explained: The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime. . . . But this purpose has no relevance to deciding whether a defendant may be convicted of multiple charged offenses. (Reed, supra, 38 Cal.4th at p. 1229.)

Accordingly, the Reed court concluded: . . . Courts should consider the statutory elements and accusatory pleading in deciding whether a defendant received notice, and therefore may be convicted, of an uncharged crime, but only the statutory elements in deciding whether a defendant may be convicted of multiple charged crimes. (Reed, supra, 38 Cal.4th at p. 1231.) Under the statutory elements test, the court held, the defendant properly was convicted of possession of a firearm by a felon, carrying a concealed firearm, and carrying a loaded firearm while in a public place, all based on the same act of carrying a handgun. Although the information alleged the defendants prior felony conviction in all three counts, so that under the accusatory pleading test the two carrying counts would have been necessarily included offenses, being a felon was not a statutory element of the carrying counts. (Id. at pp. 1228, 1230-1231.)

Here, similarly, use of a firearm is not a statutory element of attempted murder. Therefore, [u]nder the statutory elements test, assault with a firearm is not included within attempted murder. [Citation.] (People v. Parks (2004) 118 Cal.App.4th 1, 6, citing People v. Cook (2001) 91 Cal.App.4th 910, 918-919.) Reed thus requires rejection of defendants claim of improper multiple conviction.

B. Sloan

On August 16, 2007, the California Supreme Court filed its opinion in People v. Sloan (2007) 42 Cal.4th 110 (Sloan). In Sloan, the issue was whether enhancement allegations [may] be considered for purposes of the rule prohibiting multiple convictions based on necessarily included offenses[.] (Id. at p. 113.) The Supreme Court held that, because the statutory or legal element test applies, enhancements are neither recognized nor considered in determining whether the defendant can be convicted of multiple charged crimes based on necessarily included offenses. (Id. at p. 114.) In reaching this conclusion, the Supreme Court followed its previous decision issued in Reed, as discussed above. (Sloan, at pp. 113-114.)

In a companion case filed by the Supreme Court on the same date, August 16, 2007, People v. Izaguirre (2007) 42 Cal.4th 126 (Izaguirre), the Supreme Court summarized the Sloan case as follows:

. . . Sloan is consistent with this courts recent decision in . . . Reed . . .  which held that the legal elements test, rather than the accusatory pleading test, should be used in determining whether conviction of a charged offense is barred under the rule. Since enhancements are not legal elements of the offenses to which they attach, they are not considered in defining necessarily included offenses under the test. (Izaguirre, supra, 42 Cal.4th at p. 128.)

Therefore, Sloan further requires rejection of defendants claim of improper multiple conviction.

C. Apprendi,Seel, and Izaguirre

Defendant also claims that firearm enhancements are directly analogous to the premeditation allegation discussed in People v.Seel (2004) 34 Cal.4th 535 (Seel). Therefore, according to defendant, firearm enhancements should be considered as the functional equivalent of additional elements of a constructively larger crime when analyzing lesser included offenses. Again, defendants contention lacks merit.

In Apprendi v. New Jersey (2000) 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (Apprendi), the United States Supreme Court held: Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.) The court further stated that when the term sentence enhancement is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. (Id. at p. 494, fn. 19.)

In Seel, the California Supreme Court applied Apprendis reasoning in holding that the federal double jeopardy clause barred the state from retrying the defendant on an allegation that an attempted murder was premeditated, after a Court of Appeal ruling that the evidence was insufficient to prove premeditation. (Seel, supra, 34 Cal.4th at p. 550.) The court reasoned that since a finding of premeditation exposes the defendant to a greater punishment than the usual statutory maximum for attempted murder, under Apprendi premeditation must be treated as the functional equivalent of an element of a greater offense than the one covered by the jurys guilty verdict. [Citation.] (Seel, at p. 548.)

Focusing on the functional equivalent language in Apprendi and Seel, defendant argues that firearm use must be treated as the functional equivalent of an element of any offense in which it is alleged for the purpose of seeking an enhanced sentence. Therefore, in the context of multiple conviction, a court must determine the elements of an offense by considering not only the statutory definition but also any enhancement allegations. Thus, the court would have to use the accusatory pleading test â€‘‑ just what Reed forbids.

Apprendi and Seel do not support defendants argument. To say that an enhancement or premeditation allegation is the functional equivalent of an element of the underlying crime for one purpose is not to say that it is for all purposes. Neither Apprendi nor Seel involved the propriety of multiple convictions for included offenses in a single proceeding. In Apprendi, the issue was whether enhancement allegations must be proved to a jury beyond a reasonable doubt, a matter not in issue here. Seel concerned retrial of a premeditation allegation in a second proceeding, also not in issue here. Moreover, Seel was based on the federal double jeopardy clause. That clause protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. [Citation.] (Ohio v. Johnson (1984) 467 U.S. 493, 498 [104 S.Ct. 2536, 81 L.Ed.2d 425].)

Defendant cannot invoke either of the first two protections, because he was not subjected to a second prosecution after acquittal or conviction. Defendant also cannot invoke the third protection, against multiple punishments. The United States Supreme Court has consistently held that the multiple-punishment bar does not prohibit a state from charging, prosecuting, or punishing a defendant for included offenses, as long as it does so in a single proceeding.

Thus, in Ohio v. Johnson, supra, 467 U.S. 493, the court said that the State is not prohibited by the Double Jeopardy Clause from charging [a defendant] with greater and lesser included offenses and prosecuting those offenses in a single trial. (Id. at p. 500.) In Missouri v. Hunter (1983) 459 U.S. 359 [103 S.Ct. 673, 74 L.Ed.2d 535], the court said that simply because two criminal statutes may be construed to proscribe the same conduct . . . does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. (Id. at p. 368.) Most recently, in Hudson v. United States (1997) 522 U.S. 93 [118 S.Ct. 488, 139 L.Ed.2d 450], the court said that the double jeopardy clause protects against imposition of multiple punishments only when such occurs in successive proceedings . . . . (Id. at p. 99.)

If the double jeopardy clause does not bar charging, prosecuting, or punishing a defendant for included offenses in a single proceeding, then a fortiori it does not bar multiple conviction. In fact, the only effect of the clause in a single proceeding is to prevent the sentencing court from prescribing greater punishment than the legislature intended. (Missouri v. Hunter, supra, 459 U.S. at p. 366.) Therefore, if it is evident that a state legislature intended to authorize cumulative punishments, a courts inquiry is at an end. (Ohio v. Johnson, supra, 467 U.S. at p. 499, fn. 8.) By parity of reasoning, if it is evident that the Legislature intended to authorize multiple convictions for included offenses, the double jeopardy clause does not bar a court from imposing such convictions.

Our Supreme Court found in Reed that [t]he Legislature has made clear that a defendant may be convicted of more than one offense even if they arise out of the same act or course of conduct. [Citation.] (Reed, supra, 38 Cal.4th at p. 1230.) Thus, there is no basis for applying the double jeopardy bar in this case, and Seel does not undermine Reed.

The recent Supreme Court decision in Izaguirre supports our conclusion. Izaguirre is cited by our Supreme Court in Sloan, holding that the federal double jeopardy clauses prohibition against a second prosecution for the same offense after acquittal[] has no bearing on the claim . . . that federal double jeopardy principles require enhancements to be considered when applying the multiple conviction rule to necessarily included offenses. (Sloan, supra, 42 Cal.4th at p. 123, citing Izaguirre, supra, 42 Cal.4th at pp. 132-134.) Therefore, defendants argument has no merit.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

MILLER

J.

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