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People v. Ortiz

California Court of Appeals, Second District, Sixth Division
Sep 18, 2008
2d Crim. B194337 (Cal. Ct. App. Sep. 18, 2008)

Opinion

NOT TO BE PUBLISHED

Superior Court of Los Angeles County No. BA277399 Stephen A. Marcus, Judge.

Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Jason Tran, Deputy Attorney General, for Plaintiff and Respondent.


GILBERT, P.J.

Daniel Ortiz appeals a judgment following conviction of first degree murder and two counts of unlawful possession of a firearm, with findings that he committed the murder with a firearm, and that he committed all offenses to benefit a criminal street gang. (Pen. Code, §§ 187, subd. (a), 189, 12021, subd. (d), 12022.53, subds. (b)-(d), 186.22, subd. (b)(1).) We order the trial court to correct the abstract of judgment to reflect 723 days' presentence custody credits, but otherwise affirm.

All statutory references are to the Penal Code.

FACTS AND PROCEDURAL HISTORY

Ortiz was a member of the criminal street gang "38th Street," and his gang moniker was "Capone." 38th Street and Barrio Mojados ("BMS") are rival criminal street gangs. The murder victim, David Landa, was a member of BMS. At the time of the criminal offenses here, Ortiz was 15 years old and on juvenile probation with an express condition prohibiting his possession of any weapon.

In July 2002, Ortiz spray-painted graffiti upon a wall outside Landa's residence. As he spray-painted his moniker and the name of his gang, Ortiz shouted to Landa to "come out [of] the house, motherfucker." On another occasion, Ortiz inquired whether Landa's brothers belonged to a rival gang by asking them, "Where you guys from?"

On the morning of August 11, 2002, Ortiz confronted Landa's neighbor and asked, "Where you from?" The neighbor replied that he was not "a gangster" and did not "bang." Ortiz walked away.

Later that day, another neighbor, Erik Prado, saw Ortiz walk into an alley behind the Landa residence. Ortiz wore heavy clothing despite the August weather. He peered through a chain-link fence at the Landa residence. At the time, Landa was at a nearby market. When Landa left the market, Ortiz approached him in the alley and asked, "Where you from?" Landa responded that he was not in a gang. Ortiz retrieved a handgun from his waistband and shot Landa repeatedly as he ran. Landa collapsed in the street and family members came to his aid. As he lay dying, he informed his brother that "Capone" had shot him. Manuel Domingues, a longtime friend to Landa, witnessed the shooting. Domingues also knew Ortiz.

A pathologist testified at trial that Landa died from gunshot wounds to his back and arm. The pathologist's examination revealed four distinct entry wounds.

Ortiz described the shooting to fellow gang member Juan Gutierrez. In a tape-recorded interview with police officers, Gutierrez stated that Ortiz admitted that he waited for Landa to leave the market and thereafter shot him three or four times with a .357 handgun. He then fled in a vehicle driven by a gang member. Gutierrez stated that he saw Ortiz with a .357 handgun prior to the shooting.

SEARCH OF THE ORTIZ RESIDENCE AND PREMISES

Approximately three weeks following the shooting, police officers arrested Ortiz at his home. Afterwards, police officers returned to the residence to search for firearms, among other things. Six officers arrived at the home, some in business suits and others in police uniforms. Miguel Terrazas, a police officer who spoke and understood the Spanish language, spoke with Ortiz's mother. He asked if the officers could search her home. Mrs. Ortiz questioned if the officers had a search warrant. Terrazas replied that they did not. Mrs. Ortiz then read and signed a consent form written in the Spanish language. Terrazas described Mrs. Ortiz as polite, cordial, and willing to assist the officers; however, another officer described her as shocked and confused over her son's arrest.

At a hearing to suppress evidence, Mrs. Ortiz testified that she signed the consent form without reading it completely. She stated that she "felt forced to do it" because she feared that police officers would otherwise obtain a search warrant or would forcibly search the home. Mrs. Ortiz added that her beliefs regarding a forcible search arose from television programs.

In a garage under construction, police officers found a loaded .357 magnum handgun wrapped inside a shirt. The garage had only two walls and no roof. It was 15 to 20 feet away from the Ortiz residence. Officer Mike Smith described it as a "skeleton" and "makeshift" garage. Mrs. Ortiz testified that homeless persons would enter the backyard through an unlocked gate and take empty soda cans from the garage.

The officers also recovered cans of spray paint in the garage and a music disc (“Rap Oldies to Remember”) marked "Capone" from Ortiz's bedroom.

The trial court denied the motion to suppress evidence. It opined that Ortiz may have had no reasonable expectation of privacy in the makeshift garage, that police officers knew that Ortiz was on probation, and that Mrs. Ortiz consented to a search of the premises. The trial court expressly found that Mrs. Ortiz was not credible when she stated that she did not read the consent form. The court also stated that it based its ruling upon the probation search condition and the consent to search, because Ortiz's expectation of privacy in the garage was "a close call."

POLICE INTERVIEW

Police officers interviewed Ortiz following his arrest and recorded a portion of the interview. Ortiz acknowledged that he had "problems with [BMS] in the past." He stated that he obtained a handgun and ammunition "at the swap meet" for protection against BMS gang members. Ortiz explained that he was using a public telephone outside a market when Landa appeared. Landa stated: "I shot you, I shot you," and moved his arm toward his waist. Ortiz feared that Landa "was gonna pull a gun like he did before." Ortiz's handgun then "start[ed] shooting."

In a written statement, Ortiz stated that he revealed his handgun to frighten Landa, but it "[went] off."

Following the interview, a third police officer entered the room and asked Ortiz if he "still want[ed] to talk to [his] mom?" Ortiz's response was not intelligible. The officer replied that Ortiz could not engage in a lengthy conversation with his mother now, but could do so later.

The trial court denied Ortiz's motion to suppress evidence of the police interview. The court explained that it heard the recorded interview, and that Ortiz was cooperative, "calm[]" and "in control."

ESCAPE FROM CUSTODY

On December 23, 2002, probation officers escorted Ortiz to the dentist for a routine appointment. A vehicle drove alongside the reception area where Ortiz waited. Despite handcuffs and shackles, he ran from the reception area and dove through an open passenger window of the vehicle. The driver quickly drove away. Police officers captured Ortiz approximately 25 months later in Texas.

GANG EVIDENCE

Police Officer Mike Contreras testified as an expert witness regarding criminal street gangs in the Los Angeles area where Ortiz and Landa resided. He knew Ortiz, whose moniker was “Capone,” as a gang member of the 38th Street gang, a rival gang to BMS. Contreras opined that a shooting under the circumstances here would be a crime committed to benefit a criminal street gang. He opined that a gang member who had been shot at or whose graffiti had been erased would lose his gang's respect if he did not retaliate.

Defense expert witness Doctor Fraser testified that once triggered, a panic reaction ("fight or flight" syndrome) is a physiological process that is difficult to stop. He opined that with great arousal, a person might misperceive a situation as threatening.

The jury convicted Ortiz of first degree murder and two counts of unlawful possession of a firearm. (§§ 187, subd. (a), 189, 12021, subd. (d).) It also found that he committed the murder with a firearm, and that he committed all crimes to benefit a criminal street gang. (§§ 12022.53, subds. (b)-(d), 186.22, subd. (b)(1).) The trial court sentenced Ortiz to 51 years 8 months to life imprisonment. It ordered that he serve the term for one count of unlawful firearm activity and the related criminal street gang enhancement concurrently to the other counts. The trial court awarded Ortiz 520 days of presentence custody credit.

Ortiz appeals and contends that: 1) The trial court erred by denying his motion to suppress evidence of the firearm; 2) the trial court erred by suppressing evidence of his police interview; 3) the criminal street gang enhancements are not supported by substantial evidence; 4) he was improperly convicted of two counts of unlawful possession of a firearm; 5) his sentence violates the proscription of section 654 against multiple punishment; and 6) the trial court incorrectly calculated his presentence custody credits.

DISCUSSION

I.

Ortiz argues that the trial court erred by denying his motion to suppress evidence of the handgun found in the makeshift garage. He asserts that he had a reasonable expectation of privacy in the garage because it was enclosed by chain-link fencing and within 20 feet of the residence. (People v. Robles (2000) 23 Cal.4th 789, 795 [a garage that is attached to or adjacent to a home may give rise to a legitimate expectation of privacy]; People v Superior Court (Arketa) (1970) 10 Cal.App.3d 122, 126 [shed with closed door constitutionally protected against unlawful search and seizure].) Ortiz contends the error is prejudicial pursuant to Chapman v. California (1967) 386 U.S. 18, 24-26.

In deciding a motion to suppress evidence, the trial court is empowered to determine the credibility of witnesses, resolve conflicts in the evidence, weigh the evidence, and draw reasonable factual inferences. (People v. Woods (1999) 21 Cal.4th 668, 673.) As a reviewing court, we consider the evidence most favorably to the trial court's ruling. (Ibid.) Although we defer to the express and implied findings of the trial court, we exercise our independent judgment to determine the constitutionality of the search. (Ibid.)

The trial court did not err because Ortiz did not have a reasonable expectation of privacy in the makeshift garage. The garage was a "skeleton," without a roof, door, or four walls. It was visible to the public through a chain-link fence. Members of the public could and did enter an unlocked gate and take recycling materials from the garage. Neither Ortiz nor his family took steps to preclude such intrusions. "'What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 384.)

Ortiz also challenges the validity and scope of his mother's written consent to search, as well as any reliance by the searching officers upon his juvenile probation search condition. In view of our discussion, ante, we do not decide these contentions.

II.

Ortiz contends that the trial court erred by denying his motion to suppress statements made in his police interview. He asserts that his statements were involuntary and obtained in violation of his request to speak to his mother. Ortiz points to the end of the recorded portion of the interview when a third police officer, Officer Smith, arrives and inquires if Ortiz "still want[ed] to talk to [his] mom?"

Ortiz relies upon People v. Burton (1971) 6 Cal.3d 375, 383-384, holding that police must cease interrogation of a minor upon the minor's request to speak to a parent. (Ibid. [evidence from interrogation following minor's request to contact parent is inadmissible and prejudicial per se].) In sum, Ortiz contends that his request to speak to his mother was an invocation of his Fifth Amendment rights and that further questioning violated those constitutional rights.

Prior to ruling upon Ortiz's motion, the trial court reviewed the taped recording of the police interview and considered the testimony of Officer Gregory McKnight, the officer who conducted the interview. The trial court found that Officer McKnight's testimony was credible and that Ortiz did not request to speak to his mother before or during the interview.

We independently review the trial court's ruling on a motion to suppress a statement pursuant to Miranda v. Arizona (1966) 384 U.S. 436. (People v. Guerra (2006) 37 Cal.4th 1067, 1092-1093.) We review the trial court's findings as to the factual circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation, for substantial evidence. (Ibid.)

Here following the conclusion of the interview, Officer McKnight left the interrogation room. Officer Smith had then returned from searching the Ortiz residence. The transcript then reflects a long interval with no speaking, and finally Officer Smith's comment about Ortiz speaking to his mother. It is a reasonable inference that Ortiz did not request to speak to his mother before or during the police interview. Rather, he made his request following the conclusion of the interview, after Officer McKnight had left. Moreover, the recorded portion of the interview reflects that Ortiz never asked to speak to his mother. Sufficient evidence supports the trial court's ruling regarding the circumstances of the interview and the credibility of Officer McKnight.

III.

Ortiz asserts that insufficient evidence supports the criminal street gang enhancements of section 186.22, subdivision (b)(1). (Ibid. ["[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall . . . be punished as follows . . . ."].) He asserts that he acted alone in self-defense. (In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 [insufficient evidence to support gang allegation where evidence showed only that minor carried a concealed knife for self-protection].) Ortiz claims that the expert witness opinion was not specific concerning how the shooting benefited his gang. (Ibid. ["The prosecution did not present any evidence that the minor was in gang territory, had gang members with him, or had any reason to expect to use the knife in a gang-related offense"].)

In assessing the sufficiency of evidence to support a judgment, we review the entire record, and draw all reasonable inferences therefrom, to determine whether reasonable and credible evidence exists to support the decision of the trier of fact. (People v. Young (2005) 34 Cal.4th 1149, 1180.) We do not reweigh the evidence nor do we resolve evidentiary conflicts. (Id. at p. 1181.) Moreover, evaluation of the credibility of witnesses is the exclusive province of the trier of fact. (People v. Guerra, supra, 37 Cal.4th 1067, 1129, 1141; People v. Olguin (1994) 31 Cal.App.4th 1355, 1382 [evidence sufficient to support criminal street gang allegation].)

Sufficient evidence supports the jury's factual finding that Ortiz committed the offenses for the benefit of, or in association with a criminal street gang. Several weeks before the shooting, Ortiz challenged Landa by spray-painting his moniker and the name of his gang on a wall near Landa's residence. Ortiz also challenged Landa to come outside. Ortiz admitted that he purchased a handgun at the swap meet to use against Landa and BMS gang members. Prior to shooting Landa, Ortiz asked him, "Where you from?" Following the shooting, Ortiz fled in a vehicle driven by another gang member. He later bragged to gang cohort Gutierrez that he waited for Landa outside the market and then shot him. Moreover, Officer Contreras testified that a gang member who had been shot at by a rival gang member would lose his gang's respect if he did not retaliate. Although other evidence may tend to prove that Ortiz acted in self-defense or from personal motives, that evidence was not accepted by the trier of fact. (People v. Olguin, supra, 31 Cal.App.4th 1355, 1382 [evidence that shooting was a personal dispute, rather than a gang-related, not accepted by trier of fact].)

IV.

Ortiz argues that he may not be convicted of two counts of unlawful possession of a firearm because each count rests upon possession of the .357 handgun. He asserts that he had only an uninterrupted possession of the handgun. Ortiz relies upon People v. Warren (1940) 16 Cal.2d 103, 112 [statute prohibiting felon from possessing firearm does not punish "'for each day that the [felon] is in possession of the weapon'"] and United States v. Horodner (9th Cir. 1993) 993 F.2d 191, 193-194 [Congress intended unlawful possession of firearm to be course of conduct not separately punishable].)

Ortiz properly was convicted of two counts of unlawful possession of a firearm. Count 4 alleged that he unlawfully possessed the handgun on August 11, 2002, the day he used the weapon to shoot Landa. Count 5 alleged that he unlawfully possessed the handgun on September 3, 2002, the day police officers searched his residence and found the handgun in the makeshift garage. Section 954 "clearly permits multiple convictions arising from the same act or course of conduct in the present criminal proceeding." (People v. Sloan (2007) 42 Cal.4th 110, 122.) Unless one offense is necessarily included within another, multiple convictions can be based upon an indivisible course of conduct. (People v. Benavides (2005) 35 Cal.4th 69, 97.) People v. Warren, supra, 16 Cal.2d 103, 112, is distinguishable because the information there did not charge possession on a specific date or occasion. United States v. Horodner, supra, 993 F.2d 191, 193-194, is not helpful to Ortiz because it involved Congressional intent and federal law regarding unlawful possession of firearms.

V.

Ortiz asserts that his punishment for two counts of unlawful possession of a firearm (counts 4 and 5) violates principles of double jeopardy and the proscription against multiple punishment set forth in section 654. He points out that the trial court imposed a four-year term for count 4 and its gang enhancement, to be served concurrently to count 1, and a consecutive one-year and eight-month term for count 5 and its gang enhancement. Ortiz contends that sentence on counts 4 and 5 must be stayed because he had a single criminal intent - to harm Landa. (People v. Bradford (1976) 17 Cal.3d 8, 22 [multiple punishment for unlawful possession of firearm permissible if evidence establishes possession "'distinctly antecedent and separate'" from primary offense].) He relies upon People v. Spirlin (2000) 81 Cal.App.4th 119, 130-131 [section 654 allows only one punishment where felon's intent and objective in possessing same firearm on three occasions were the same] and People v. Cruz (1978) 83 Cal.App.3d 308, 332-333 [prosecution did not establish that felon's possession of firearm was antecedent and separate from underlying crime].)

Ortiz's sentence does not violate section 654 or principles of double jeopardy. The unlawful firearm possession of count 4 occurred on and before August 11, 2002, and resulted in Landa's murder. The second count of unlawful firearm possession occurred on September 3, 2002, when police officers discovered the handgun in Ortiz's makeshift garage. The two counts are separated in time and have different objectives and intents. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143 [reviewing court affirms trial court's findings regarding section 654 that are supported by sufficient evidence].)

Moreover, section 654 does not preclude punishment for unlawful possession of a firearm and the first degree premeditated murder of Landa. Ortiz admitted in a tape-recorded police interview that he acquired the handgun at a swap meet several weeks prior to the shooting. Thus, Ortiz "necessarily intended to possess the firearm when he first obtained it, which . . . occurred antecedent to the shooting. That he used the gun to shoot at [Landa] required a second intent in addition to his original goal of possessing the weapon. [His] use of the weapon after completion of his first crime of possession of the firearm thus comprised a 'separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.'" (People v. Jones, supra, 103 Cal.App.4th 1139, 1147.) This conclusion furthers the purpose of section 654 to punish a defendant commensurate with his culpability. (Id. at p. 1148.)

The trial court's implied finding of separate objectives also does not violate Ortiz's Sixth Amendment guarantee to a jury trial. (Apprendi v. New Jersey (2000) 530 U.S. 466.) When section 654 applies, it reduces a defendant's sentence. (People v. Cleveland (2001) 87 Cal.App.4th 263, 270.) Apprendi applies only where a nonjury factual determination increases the maximum penalty beyond the range authorized by the jury verdict. (Cleveland, at p. 270.)

VI.

Ortiz contends that the trial court erred in calculating his presentence custody credits. The Attorney General concedes.

Ortiz is entitled to a total of 723 days of presentence custody credit, from the day of his initial arrest until his escape (112 days), and from the day of his rearrest through sentencing (611 days). (People v. Cooper (2002) 27 Cal.4th 38, 40.)

We order the trial court to correct the abstract of judgment to reflect 723 days' presentence custody credits, and to forward the amended abstract to the Department of Corrections. We otherwise affirm.

We concur: COFFEE, J., PERREN, J.


Summaries of

People v. Ortiz

California Court of Appeals, Second District, Sixth Division
Sep 18, 2008
2d Crim. B194337 (Cal. Ct. App. Sep. 18, 2008)
Case details for

People v. Ortiz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DANIEL ORTIZ, Defendant and…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Sep 18, 2008

Citations

2d Crim. B194337 (Cal. Ct. App. Sep. 18, 2008)

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