P. v. Ortiz
Filed 3/29/13 P. v. Ortiz CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOSE
M. ORTIZ,
Defendant and Appellant.
B240739
(Los Angeles County
Super. Ct. No. GA084174)
APPEAL from a judgment of the Superior
Court for Los
Angeles County, Candace J. Beason, Judge.
Affirmed.
Sunnie L. Daniels, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and
Respondent.
A jury
convicted defendant Jose M. Ortiz of one count of
(Pen. Code,
title="">[1]
§ 243, subd. (d)), and found true an allegation that he personally
inflicted great bodily injury upon the victim (§ 12022.7, subd. (a)). Defendant admitted that he suffered a prior
conviction within the meaning of the Three Strikes law (§§ 1170.12, subds.
(a)-(d), 667, subds. (b)-(i)), and that he suffered a prior serious felony
conviction within the meaning of section 667, subdivision (a)(1). The trial court denied defendant’s motion to
strike the prior conviction allegation and sentenced him to the midterm of
three years in prison, doubled under the Three Strikes law, plus five years
under section 667, subdivision (a)(1), for a total aggregate term of 11 years.
BACKGROUND
On July 21, 2011, at around 4:00 in
the afternoon, Julio Tobar was driving west on Broadway in the city of San
Gabriel when he saw two men crossing the street while engaged in a
fist-fight. He saw one of the men,
identified as defendant, knock the other man out. Defendant continued to punch the man in the
face, then got up and started kicking him in the face while the man was on the
ground, unconscious. Tobar pulled his
truck over to the side of the road, got out, and said to defendant, “Hey, . . .
he’s out, let it go.†Defendant
immediately stopped, looked down at the victim and said, “I told you I don’t
want to do this.†Defendant then called
to a woman who had come out of a nearby house, asking her to get the car so
they could take the victim to the hospital.
Defendant tried to pick the victim up to carry him to the car, with
Tobar’s assistance, when the police arrived.
The victim, Juan Quintana, knew
defendant. Until shortly before the
fight, Quintana had been living at the home of Adriana Pantoja, the mother of
Quitana’s nephew. Quintana, who was not
in a relationship with Pantoja, moved out after Pantoja started dating
defendant. On July
21, 2011,
Quintana went to Pantoja’s house because he wanted to retrieve cable boxes; he
had a cable subscription when he lived there, and he left without taking the
boxes, which he had to return to the cable company. When he arrived, Pantoja was outside. As he was talking to her, defendant came out
of the house and, according to Quintana, started taunting him. Defendant grabbed Quintana’s shirt and ripped
or pulled it off. Quintana started
walking toward his girlfriend’s truck across the street, when he heard
something behind him. He turned around
and saw defendant. Quintana does not
remember anything after that; he woke up in a hospital the next day. Quintana suffered numerous injuries to his
face, including fractures of the left medial wall (the left part of his eye)
and the nasal bone, which required immediate
Defendant was charged by information
with one count of battery with serious bodily injury (§ 243, subd. (d))
and one count of assault by means likely to produce great bodily injury
(§ 245, subd. (a)(1)). The
information also alleged that, as to both counts, defendant personally
inflicted great bodily injury (§ 12022.7, subd. (a)), and that he had
suffered a prior conviction within the meaning of the Three Strikes law and
within the meaning of section 667, subdivision (a)(1).
At trial, the defendant presented a
single witness, Lucia Reynoso, the mother of defendant’s child, who also knows
Quintana and Pantoja. Reynoso testified
that earlier in the day on July 21, 2011, she saw Quintana at the W.I.C.
office. They had a conversation about
defendant in which Quintana expressed animosity toward defendant. In her presence, Quintana placed a call to
Pantoja’s telephone. Reynoso could hear
the voice on the other end of the call, and heard him speaking first to Pantoja
and then to defendant. She heard
Quintana say that he was going to go right over to Pantoja’s house and beat
defendant up.
In closing arguments,
the aggressor in the fight and that defendant acted in self defense. The prosecutor told the jury that both counts
were based solely upon the blows defendant inflicted after Quintana was
unconscious, and argued that defendant could not claim self defense with regard
to those blows.
The jury found defendant guilty of
battery with serious bodily injury and found that defendant personally
inflicted great bodily injury on Quintana, but it could not reach a verdict on
the assault count. The court declared a
mistrial on that count, and ultimately dismissed it. Defendant timely filed a notice of appeal
from the judgment.
DISCUSSION
After review of the record,
defendant’s court-appointed counsel filed an opening brief asking this court to
review the record independently in accordance with the holding of
441.
We advised defendant that he had 30
days within which to submit any contentions
or issues that he wished us to consider.
No response has been received to date.
We have examined the entire record and
are satisfied that no arguable issues exist, and that appellant has, by virtue
of counsel’s compliance with the Wende
procedure and our review of the record, received adequate and effective
appellate review of the judgment entered against him in this case. (Smith
v. Robbins (2000) 528 U.S. 259, 278; People
v. Kelly (2006) 40 Cal.4th 106, 112-113.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE,
Acting P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.
undesignated statutory references are to the Penal Code.
