Opinion
E032611.
11-20-2003
THE PEOPLE, Plaintiff and Respondent, v. ENRIQUE ORTEGA, Defendant and Appellant.
Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Anthony Da Silva, Erika Hiramatsu, and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Enrique Ortega was found guilty of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) and second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)). In connection with each count, one enhancement for personally discharging a firearm (Pen. Code, § 12022.53, subd. (c)) and a second enhancement for personally discharging a firearm and causing great bodily injury (Pen. Code, § 12022.53, subd. (d)) were found true. Defendant was sentenced to a total of 34 years to life in prison.
Defendant contends:
1. The evidence is insufficient to support his convictions for attempted murder and robbery.
2. The trial court erred by admitting evidence of defendants prior juvenile adjudication to impeach him.
3. The abstract of judgment erroneously fails to reflect the stay of an enhancement term.
The People concede that the abstract of judgment must be corrected. We agree, and we will so direct. Otherwise, we find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
Victim Rumaldo Garcia testified at trial. He admitted that he was then in custody, based on felony convictions for making terrorist threats and spousal battery.
Garcia testified that on October 25, 2001, around 1:00 a.m., he and his supervisor Dan went to the house of one Shawna, in Colton. They were there to buy half an ounce of methamphetamine. Garcia had about $500. After waiting inside for about an hour, he "got tired," so he went outside and waited in his pickup truck. Dan came out and told him to "wait ten more minutes."
Garcia saw defendant arrive and go in the house. Garcia had seen him at Shawnas house before but knew him only as "Trigger." When defendant came back out, Garcia was in the front yard, near the porch. Defendant yelled, "[Y]ou be mother fucking," then hit him. As Garcia turned to hit defendant back, defendant shot him in the stomach.
Defendant then said, "Give me your fucking money." Garcia replied, "Fuck you, no." Later, however, he threw the money down. He then got up and walked to his truck. Dan had run away. Garcia drove himself to a hospital.
At 2:00 a.m., Officer Eddie Contreras interviewed Garcia at the hospital. At trial, Garcia had no recollection of this interview. Officer Contreras testified that Garcia was in "extreme pain" and had trouble communicating.
Garcias statement to Officer Contreras was arguably inconsistent with his trial testimony in five ways. First, he said that, when defendant arrived, he had been at Shawnas house only 10 minutes, talking to her in the yard. Second, he said defendant demanded his money before, not after, hitting him. Third, he claimed he hit defendant back. Fourth, he could not provide the name of the person who shot him. Fifth, he did not mention Dan.
About three weeks later, Officer Eric Campa interviewed Garcia again, at Garcias home. Garcias statement to Officer Campa was entirely consistent with his trial testimony, except that he said he was buying only a quarter-ounce of methamphetamine.
Two days after the shooting, police officers saw defendant and one Isa Maugh go into a Shop-N-Go store in Bloomington. When they came out, the officers detained them. Maugh was carrying a bag from the store. In it, the police found a loaded handgun. When they took it out, Maugh said, "[F]uck, thats not mine." She told the police she did not know the gun was in the bag and that defendant must have put it there. The gun turned out to be the one used to shoot Garcia.
At trial, Maugh denied knowing defendant or the man with whom she went into the store. She claimed she could not identify defendant as that man. She admitted a prior felony conviction for receiving stolen property.
When defendant was arrested, he had two gashes on his forehead, bruises around one eye, and bruises and swelling on both sides of his head. These injuries appeared "fairly recent . . . ." When the police asked how he had gotten them, he said he had been "jumped" in Bloomington.
Defendant testified at trial. He admitted going to Shawnas house to sell methamphetamine. He had a gun because "selling drugs [is] a risky business . . . ." Garcia was there with a second man. Garcia offered to buy half an ounce of methamphetamine. Defendant said it would cost $500. After trying some of the methamphetamine, Garcia said it was weak. The second man said, "[You] cant go around selling cut because [you]ll get hurt . . . ." Garcia wanted defendant to lower the price. When defendant refused, Garcia said, "[Ill t]ake your shit for selling bunk." The two men started hitting defendant, knocking him to the ground, then "stomping" on his face and head. Defendant pulled out his gun and fired. Garcias friend ran away. Garcia clutched his stomach, then threw the money and the methamphetamine on the ground. Defendant testified, "I picked up my money and ran."
Defendant testified that his nickname was "Little Trigger." He admitted owning the gun and hiding it in the bag. He also admitted lying to the police. He explained that he was "scared," he "didnt think they were going to believe [him]," and he was afraid of getting in trouble for selling drugs.
II
THE SUFFICIENCY OF THE EVIDENCE
Defendant contends the evidence is insufficient to support the attempted murder and robbery convictions. He focuses on the inconsistencies in Garcias statements. He argues: "The various statements made by Garcia were mutually inconsonant, factually disingenuous, and provide insufficient[] credible evidence to sustain the conviction."
"The testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citations.]" (In re Frederick G. (1979) 96 Cal.App.3d 353, 366.) "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it 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.]" (People v. Maury (2003) 30 Cal.4th 342, 403.) "`"To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] . . . [Citation.]" . . . . [Citation.]" (People v. Barnes (1986) 42 Cal.3d 284, 306, quoting People v. Thornton (1974) 11 Cal.3d 738, 754, quoting People v. Huston (1943) 21 Cal.2d 690, 693.)
Garcias account was neither physically impossible nor blatantly false. Indeed, it was not even particularly inconsistent. His testimony at trial was totally consistent with the statement he gave to Officer Campa, except for one thing. At trial, he said he intended to buy half an ounce of methamphetamine; he told Officer Campa he intended to buy a quarter-ounce of methamphetamine. The amount of methamphetamine involved was irrelevant. In any event, defendant admitted that the amount agreed on was half an ounce.
Admittedly, Garcias trial testimony conflicted in several respects with his statement to Officer Contreras. When he gave that statement, however, he was in "extreme pain." Officer Contreras had to ask questions "over and over and over" before getting an answer. Meanwhile, the hospital staff was treating Garcia and administering medication to him. By the time of trial, Garcia did not even remember the interview. Given these circumstances, it is not at all surprising that some of the statements Officer Contreras obtained from Garcia were inaccurate.
Defendant also argues that his own account was "more consonant with reason and logic" that was Garcias. For example, defendant notes that he was relatively small and in the business of drug dealing; he argues that he would not have tried to "burn" two customers much larger than he. We cannot say, however, that this was even unlikely, much less physically impossible. It is not uncommon for drug dealers to try to rob their customers. Defendant admitted that he used methamphetamine; drug dealers and drug users are not the most rational people in the world. It made at least as much sense that defendant would try to rob his customers as that they would try to beat up their supplier. Finally, the size difference is a red herring; obviously, defendant used his gun as an equalizer.
As noted, in his opening brief, defendant argues that Garcias testimony was unworthy of belief. He does not argue that, even if Garcias testimony was credible, there still was insufficient evidence to support the convictions. In his reply brief, however, he argues that there was insufficient evidence of attempted murder because "there is nothing about the manner of the shooting that supports an inference of a preconceived design to kill . . . ." He also argues that there was insufficient evidence of robbery because he had a right to the $500 as the purchase price of the methamphetamine. "`[T]he rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [Citations.] [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26, quoting 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 616, p. 648.) We therefore deem these arguments waived.
Alternatively, even if not waived, they lack merit.
Regarding the attempted murder conviction, defendant challenges only the sufficiency of the evidence of intent to kill. Not even in his reply brief does he challenge the jurys finding that the attempted murder was willful, deliberate, and premeditated. We will limit our discussion accordingly.
"Evidence of a defendants intent `must usually be derived from all the circumstances of the attempt, including the defendants 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.]" (People v. Villegas (2001) 92 Cal.App.4th 1217, 1225, fn. omitted [Fourth Dist., Div. Two], quoting People v. Chinchilla (1997) 52 Cal.App.4th 683, 690, quoting People v. Lashley (1991) 1 Cal.App.4th 938, 945.)
In People v. Lee (1999) 20 Cal.4th 47, the Supreme Court held: "The evidence that defendant quarreled with his wife, the quarrel escalated into shoving and pushing, defendant broke off the argument, went to another room and obtained a loaded gun, and that gun was fired at close range while in contact with the victims head, is clearly sufficient to support an inference that defendant retrieved and fired the gun with the intent to kill his wife." (Id. at p. 58.)
Similarly, in People v. Lashley, supra, 1 Cal.App.4th 938, the appellate court held: "Defendants conduct prior to the shooting, which included a threat to do bodily harm, combined with the testimony that he took aim before firing, and the seriousness of the victims injuries constitutes substantial evidence on the issue of intent." (Id. at p. 945.)
Here, defendant initiated a verbal and physical quarrel — i.e., he yelled, "[Y]ou be mother fucking," and hit Garcia. He then shot Garcia in the stomach from close range. After shooting, he said, "Give me your fucking money." This is a far cry from, "Oops," or, "Im sorry, that was an accident." Obviously, the shooting itself was intentional. As in Lee and Lashley, the quarrel, followed by the intentional firing of a potentially fatal shot from close range, constitutes sufficient evidence of intent to kill.
Arguably, defendants demand for money suggests an intent to rob rather than to kill. Nevertheless, the jury could reasonably find that defendant shot Garcia with the intention of killing him and taking his money. After all, if defendant intended only to rob, he could have just threatened Garcia with the gun; he did not have to fire. The fact that, when he saw that Garcia was still alive (for the time being), he asked him to hand over his money does not disprove intent to kill. "There is nothing inherently illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill." (People v. Lashley, supra, 1 Cal.App.4th at p. 945.)
Regarding the robbery conviction, defendant essentially asserts a "claim of right" defense. "The claim-of-right defense provides that a defendants good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery." (People v. Tufunga (1999) 21 Cal.4th 935, 938.) We may assume, without deciding, that defendants money-for-methamphetamine scenario involves a claim to specific currency, which could support a claim-of-right defense, rather than an attempt to collect a debt, which could not. (See generally id. at pp. 950-956.) Even if so, according to Garcia, defendant attacked him on sight. Defendant had neither the time nor the inclination to give him any methamphetamine. Also, there was no evidence that the police found any methamphetamine at the scene or on Garcia. The jury could infer that defendant had no good faith belief that he was entitled to the $500.
We conclude that there was sufficient evidence to support both convictions.
III
THE ADMISSION OF DEFENDANTS
PRIOR JUVENILE ADJUDICATION TO IMPEACH
Defendant contends the trial court erred by allowing the prosecution to impeach him with a prior juvenile adjudication.
A. Additional Factual and Procedural Background.
In 1994, when defendant was 15, he had a juvenile adjudication for driving or taking a vehicle without the consent of the owner. (Veh. Code, § 10851, subd. (a).)
Before defendant testified, defense counsel stated: "In reference to the 10851, the unlawful driving and taking of a vehicle, I would object to its admissibility based on the fact that my client was fifteen when it occurred and . . . the amount of time between now and then, which is about eight years . . . . And the fact that I think it would prejudice the jury . . . ."
The prosecutor responded: "[A] theft certainly goes to moral turpitude. It is a felony conviction. . . . [A]ll the civilian witnesses thus far that have testified have had their own set of at least one felony conviction. [It would be] cloaking the defendant in unnecessary innocence or lack of a record. Weve already cleaned up everything else with regards to gang allegations or any methamphetamine that was found at the time of his arrest. I think we should . . . at least be allowed to impeach him as to his prior conduct."
The trial court overruled the objection: "Well, a prior juvenile adjudication, its not a conviction for purposes of felony convictions, but it is prior conduct which under Wheeler is allowed if the Court makes a 352 analysis and finds that its more probative than prejudicial. Its not unduly old, eight years prior. 10851 conduct, theft-related conduct is highly relevant to the issue of credibility. Its not the same charge as hes charged in the current case. It will not take up [an] undue amount of time . . . . I dont find that its unduly prejudicial. Very probative on the issue of credibility.
"I do find that the probative value outweighs the prejudicial effect and will allow Mr. Ortega to be impeached with the conduct should he testify. [You will h]ave to couch it in phrases of[, `I]snt it true that [in] whatever year it was you took a car without the permission of the owner or drove a car without the permission of the owner,[] something along those lines."
In light of the trial courts ruling, when defendant testified on direct, defense counsel asked him:
"Q Now, . . . you have a conviction for . . . driving a vehicle without the owners permission; is that correct?
"A Yes, it is.
"Q And . . . the driving occurred back . . . around 94; is that correct?
"A Yes, 94.
"Q And you were sentenced to . . . C.Y.A. in about 1996?
"A 1996. [¶] . . . [¶]
"Q You were a juvenile at that time?
"A Juvenile, yes."
B. Analysis.
This court addressed the use of prior juvenile adjudications to impeach in People v. Lee (1994) 28 Cal.App.4th 1724. The facts in Lee are very similar to those here. There, over the defendants objection, the trial court allowed the prosecution to impeach him with prior juvenile adjudications for grand theft, as a misdemeanor, and burglary, as a felony. (Id. at p. 1738.)
We began by noting that People v. Wheeler (1992) 4 Cal.4th 284 had "abrogated the rule that defendants could be impeached by felony convictions only" and had held instead that "criminal trial courts may, in their discretion, admit conduct showing dishonesty or moral turpitude for impeachment." (People v. Lee , supra, 28 Cal.App.4th at p. 1739.)
Next, we noted that: "In People v. Sanchez (1985) 170 Cal.App.3d 216, 218 . . . , the court held it was clear error to allow juvenile adjudications to be used for impeachment because juvenile adjudications are not criminal proceedings and do not result in criminal convictions. In People v. Jackson (1986) 177 Cal.App.3d 708, 711-713 . . . , the court held that article I, section 28 of the California Constitution did not change the rule. The court based its ruling on Welfare and Institutions Code section 1772, subdivision (a) which states, `Every person honorably discharged from control by the Youthful Offender Parole Board who has not, during the period of control by the authority been placed by the authority in a state prison shall thereafter be released from penalties and disabilities resulting from the offense or crime for which he or she was committed . . . . The Jackson court interpreted the term `penalties and disabilities to include use of the offense or crime for impeachment in a later proceeding. (177 Cal.App.3d at pp. 711-713.)" (People v. Lee, supra, 28 Cal.App.4th at p. 1739, fn. omitted; see also Welf. & Inst. Code, § 1179, subd. (a) ["[a]ll persons honorably discharged from control of the Youthful Offender Parole Board shall thereafter be released from all penalties or disabilities resulting from the offenses for which they were committed"].)
We then held, however, that: "Jackson is distinguishable on the facts. In Jackson, the parties stipulated that `a valid order of dismissal had been entered as to appellants prior convictions pursuant to [Welfare and Institutions Code] section 1772. (People v. Jackson, supra, 177 Cal.App.3d at p. 711.) For Welfare and Institutions Code section 1772 to apply, there must have been an honorable discharge by the Youthful Offender Parole Board. Here, the record is silent on that issue." (People v. Lee, supra, 28 Cal.App.4th at p. 1739.)
Finally, we held that: "[U]nder Wheeler, at least in cases which do not fall under Welfare and Institutions Code section 1772, the prosecution may introduce prior conduct evincing moral turpitude even if such conduct was the subject of a juvenile adjudication, subject, of course, to the restrictions imposed under Evidence Code section 352 and other applicable evidentiary limitations." (People v. Lee, supra, 28 Cal.App.4th at p. 1740.) We therefore accepted the Peoples argument that: "[T]he trial court did not permit the impeachment with prior juvenile adjudications. . . . [T]he court stated that the conduct underlying such offenses could come in under Wheeler." (Id. at pp. 1739-1740, fn. omitted, second italics added.)
Applying these principles here, we reject defendants contention for three reasons.
First, in conformity with Lee, the trial court allowed defendant to be impeached with the conduct underlying his juvenile adjudication, as opposed to the adjudication itself. For example, it limited counsel to asking defendant whether he in fact took or drove a car without the permission of the owner.
Second, defendant never offered to prove that he was honorably discharged. As in Lee, because the record is silent on this point, we can hardly say that the trial court violated Welfare and Institutions Code section 1772.
At oral argument, counsel for Ortega argued that the prosecution had the burden of proof — or, more accurately, the burden of production (Evid. Code, § 110) — on the existence or nonexistence of an honorable discharge. It should be apparent, even before any analysis, that this is not the law. Otherwise, a felony conviction would never be admissible to impeach absent evidence that the conviction had not been the subject of a pardon, a certificate of rehabilitation, or expungement. (See Evid. Code, § 788.) Moreover, by resolving the issue against the defendant where the record was silent, Lee necessarily held that the party opposing admission has the burden of production on this issue. (See also People v. Field (1995) 31 Cal.App.4th 1778, 1786 [treating expungement as a matter to be shown by the party opposing admission of prior felony conviction to impeach].)
Counsel for Ortega relied on Evidence Code section 403, subdivision (a)(1), which provides that, when the relevance of evidence turns on the existence of a preliminary fact, the proponent has the burden of producing evidence of the preliminary fact. The applicable Evidence Code section, however, is section 405, not section 403. "If the disputed preliminary fact is whether a pardon or some similar relief has been granted to a witness convicted of a crime, the judges determination is made under [Evidence Code s]ection 405." (Assem. Com. on Judiciary com., reprinted at 29B pt. 1 Wests Ann. Evid. Code, supra, foll. § 405, p. 375.)
Under Evidence Code section 405, the burden of producing evidence is allocated "as implied by the rule of law under which the question arises." (Evid. Code, § 405, subd. (a).) A prior conviction will only rarely have been the subject of a pardon, certificate of rehabilitation, expungement, honorable discharge, or similar. Moreover, when it has been, the party calling the witness is more likely to know that, and to have access to evidence of it. These factors favor placing the burden of production on the party calling the witness. (See Aydin Corp. v. First State Ins. Co. (1998) 18 Cal.4th 1183, 1193.)
Regardless of whether Evidence Code section 403 or 405 applies, evidence of a juvenile adjudication, standing alone, raises a presumption that it has not been honorably discharged. A judgment is presumed valid. Thus, a defendant who challenges a prior conviction as unconstitutional has the burden of producing evidence. (Curl v. Superior Court (1990) 51 Cal.3d 1292, 1303-1304.) Moreover, a judgment is entitled to a presumption of continuing validity. (See Civ. Code, § 3547 ["[a] thing continues to exist as long as is usual with things of that nature"].) For example, "[a] judgment . . . is presumed to correctly determine or set forth the rights of the parties . . . ." (Evid. Code, § 639.) A juvenile adjudication gives the People a right to impeach and the juvenile a "right" to be impeached. A party who challenges the use of a prior juvenile adjudication to impeach has the burden of producing evidence to rebut this presumption.
Third, defendant waived his present contention by failing to object on the same grounds at trial. (Evid. Code, § 353, subd. (a).) Although his counsel did not cite Evidence Code section 352, plainly he was invoking its underlying principles. He never objected based on Welfare and Institutions Code section 1772.
Once again, at oral argument, counsel for Ortega suggested that our waiver holding is inconsistent with our alternative holding that Ortega had the burden of production. Not so. No matter which party had the burden, Ortega had to make a timely and specific objection. (Evid. Code, § 353, subd. (a).) The only difference is that, if the prosecution had the burden and failed to meet it, the trial court would have had to sustain the objection; but if Ortega had the burden and failed to meet it, the trial court would have had to overrule the objection. As there was no such objection, Ortega cannot prevail.
As defendant concedes, driving or taking a vehicle without the consent of the owner involves moral turpitude. (People v. Lang (1989) 49 Cal.3d 991, 1011; People v. Rodriguez (1986) 177 Cal.App.3d 174, 178, and cases cited.) We conclude that defendant has failed to demonstrate that the admission of evidence that he committed this offense was reversible error.
IV
THE ABSTRACT OF JUDGMENT
Defendant contends the abstract of judgment is erroneous. The People concede the error.
The trial court sentenced defendant to a total of 34 years to life on count 1 (including all related enhancements), and a total of 30 years to life on count 2 (including all related enhancements). However, it stayed the sentence on count 2 (including enhancements). (Pen. Code, § 654.) Accordingly, the total sentence was 34 years to life.
The abstract of judgment fails to reflect that one 25-year enhancement to count 2 was stayed. Accordingly, it erroneously reflects a total sentence of 59 years to life.
We will direct the trial court to correct the abstract.
V
DISPOSITION
The judgment is affirmed.
The trial court is directed to amend the abstract of judgment as indicated in part IV of this opinion, and to forward a certified copy of the amended abstract to the Department of Corrections. (Pen. Code, §§ 1213, 1216.)
We concur: RAMIREZ P.J. HOLLENHORST J.