People v. Ortez

THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO ANTONIO ORTEZ, Defendant and Appellant.

B311885

California Court of Appeals, Second District, Second Division

December 30, 2022

NOT TO BE PUBLISHED

Order Filed Date 12/9/22

APPEAL from an order of the Superior Court of Los Angeles County No BA451111. Eleanor J. Hunter, Judge.

Caneel C. Fraser, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.

ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on December 9, 2022, be modified as follows:

On page 14, before the first paragraph, the following two paragraphs are added:

The People urge that the absence of jury findings as now required by Assembly Bill No. 567 is harmless error because appellant's criminal history is undisputed and is part of the record, and because "it is evident beyond a reasonable doubt that the jury would have found that Lodge was a particularly vulnerable victim." But the evidence supporting the characterization of the victim as "particularly vulnerable"-consisting of an eyewitness's description of the victim as "mentally disabled" based on her observation that he was yelling and moving in an abnormal manner, and the fact that he was at the store with an assistant-was neither undisputed nor established beyond a reasonable doubt. The People's argument also ignores that the third factor the trial court cited- namely appellant's "leadership" capacity-was not found by the jury, admitted by the defendant, or otherwise not subject to debate.

Along similar lines, the People urge that any noncompliance with Assembly Bill No. 124 is harmless because the record does not show that appellant does not fall into any of the categories of mitigating circumstances. However, this argument ignores that the record is silent because appellant had no reason to develop evidence on these categories because Assembly Bill No. 124 did not yet exist at that time. Thus, while we agree with the People that sentencing errors can sometimes be harmless, we disagree that the errors in this case were harmless.

This modification does not change the judgment.

Respondent's petition for rehearing is denied.

LUI P. J. HOFFSTADT, J. BENKE, J. ^[*]

LUI P. J.

Francisco Antonio Ortez appeals the judgment following a jury trial in which he was convicted of battery with infliction of serious bodily injury (Pen. Code,^[1] § 243, subd. (d); count 4) and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 5). Appellant waived a jury trial on the prior conviction allegations and the trial court found the prior serious felony and strike conviction allegations true.^[2] The court denied appellant's request to dismiss the strike, and declined to exercise its discretion to strike the prior serious felony conviction for purposes of the five-year enhancement under section 667, subdivision (a)(1).

Appellant was sentenced to state prison for an aggregate term of 14 years 4 months, consisting of the upper term of four years on count 4, doubled to eight years pursuant to the Three Strikes law (§§ 1170.12, subd. (b) &667, subds. (b)-(j)), plus five years for the section 667, subdivision (a)(1) enhancement, and eight months on count 5, doubled to 16 months pursuant to the Three Strikes law.

Appellant contends the trial court violated his federal constitutional rights to due process and his rights under the Sixth Amendment by impliedly finding that count 4 constituted a serious felony and imposing the five-year enhancement under section 667, subdivision (a). We disagree. For purposes of imposition of the enhancement under section 667, subdivision (a)(1), the jury's finding that appellant inflicted serious bodily injury qualified as a jury finding of infliction of great bodily injury. We therefore find no error in the trial court's imposition of the five-year enhancement under section 667, subdivision (a)(1). However, we agree with appellant that Senate Bill No. 567 and Assembly Bill No. 124, amending section 1170, subdivision (b) to limit imposition of the upper term and to require imposition of a low term sentence under certain circumstances, apply retroactively to this case and require remand to the trial court for resentencing. Finally, we agree with the parties that, on remand, appellant is entitled to correction of his presentence custody credits.

FACTUAL BACKGROUND

On October 9, 2016, Joshua Lodge and his home assistant Eva went to a grocery store on Slauson Avenue in Los Angeles. Eva went shopping inside the store and Lodge waited outside smoking a cigarette. While he was waiting, Lodge saw appellant point a chrome .357 revolver at two boys nearby. Lodge was unarmed but tried to intervene and yelled at appellant to leave the boys alone. Appellant then turned and brandished the gun at Lodge. Swearing, appellant told Lodge he was in a gang and threatened to "pop" him. He walked over to Lodge and asked," 'Do you have a problem with me?'" Lodge responded," 'No. I'm not from a gang.'" Lodge asked appellant to leave him alone and told him he wanted nothing to do with him.

Afraid that appellant was going to shoot him, Lodge walked inside the store to find help. The security guard simply told him to go back outside. Lodge left the store, but then reentered to find Eva. Appellant handed his gun to his companion and followed Lodge into the store. Appellant asked Lodge," 'What the fuck did you say?'" Lodge responded loudly," 'You're fucking with the kids.'" Appellant then punched Lodge on the side of his head, knocking him out. Lodge fell to the floor and remained unconscious for five to 10 minutes.

After hitting Lodge, appellant walked quickly out of the store. He and his companion joined another person waiting in a van and drove away.

When Lodge regained consciousness on the floor inside the store, he had a lump on his head where appellant had struck him.

DISCUSSION

I. The Trial Court Did Not Err in Imposing the Five-year Enhancement Under Section 667, Subdivision (a)(1)

Appellant contends the trial court improperly imposed the five-year enhancement under section 667, subdivision (a)(1) because, in the absence of a finding by the jury that he inflicted great bodily injury, the current offense does not qualify as a serious felony. We disagree. In order to convict appellant under section 243, subdivision (d) as charged in count 4-battery with infliction of serious bodily injury-the jury was required to find that appellant inflicted serious bodily injury. For purposes of imposing the section 667, subdivision (a)(1) enhancement, that finding is equivalent to a finding of great bodily injury. (People v. Sloan (2007) 42 Cal.4th 110, 117 (Sloan); People v. Johnson (2016) 244 Cal.App.4th 384, 391-392 (Johnson).)

A. Applicable legal principles

Section 667, subdivision (a)(1) provides for the imposition of a five-year sentence enhancement for a prior serious felony conviction where the current conviction is also a serious felony. (People v. Arnett (2006) 139 Cal.App.4th 1609, 1613 (Arnett).) Subdivision (a)(4) of section 667 defines "serious felony" to mean any "serious felony listed in subdivision (c) of Section 1192.7." Section 1192.7, subdivision (c) in turn identifies 42 offenses as serious felonies, including "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice." (§ 1192.7, subd. (c)(8).) For an offense specifically enumerated as a serious felony in section 1192.7, subdivision (c), "the question whether that conviction qualifies as a serious felony is entirely legal." (People v. Kelii (1999) 21 Cal.4th 452, 456.) On the other hand, to the extent imposition of the section 667, subdivision (a)(1) enhancement turns on a factual inquiry as to whether the conduct underlying the crime qualifies the offense as a serious felony, any such facts must be tried to the same fact finder which decided the defendant's guilt of the charged crime. (§ 969f, subd. (a); Apprendi v. New Jersey (2000) 530 U.S. 466, 490; People v. Gallardo (2017) 4 Cal.5th 120, 123, 134; Arnett, at p. 1613; People v. Bautista (2005) 125 Cal.App.4th 646, 655.)

Great bodily injury is defined to mean "a significant or substantial physical injury." (§ 12022.7, subd. (f).)" 'It is an injury that is greater than minor or moderate harm'" (People v. Wyatt (2012) 55 Cal.4th 694, 702), but it "need not be so grave as to cause the victim' "permanent," "prolonged," or "protracted"' bodily damage" (People v. Cross (2008) 45 Cal.4th 58, 64). Indeed, "some physical pain or damage, such as lacerations, bruises, or abrasions is sufficient for a finding of 'great bodily injury.'" (People v. Washington (2012) 210 Cal.App.4th 1042, 1047.) Similarly, section 243, subdivision (f)(4) defines "serious bodily injury" to mean" 'a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.'" (People v. Wade (2012) 204 Cal.App.4th 1142, 1147-1148.)

"California courts have long held that 'serious bodily injury,' as used in section 243, and 'great bodily injury,' as used in section 12022.7, are essentially equivalent." (Johnson, supra, 244 Cal.App.4th at p. 391; People v. Santana (2013) 56 Cal.4th 999, 1008 [terms "serious bodily injury" and "great bodily injury" are essentially...