People v. Oates

• Decision Date: 24 April 2002
• Docket Number: No. E029354.,E029354.
• Citation: 119 Cal.Rptr.2d 140,97 Cal.App.4th 1172
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jimmie Lee OATES, Defendant and Appellant.

119 Cal.Rptr.2d 140

97 Cal.App.4th 1172

The PEOPLE, Plaintiff and Respondent, v. Jimmie Lee OATES, Defendant and Appellant.

No. E029354.

Court of Appeal, Fourth District, Division 2.

April 24, 2002.

Review Denied June 3, 2002.

Petition for Review Denied Ordered Stricken July 24, 2002.

Review Granted July 24, 2002.

John L. Dodd, under appointment by the Court of Appeal, Tustin, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney

General, Gary W. Schons, Senior Assistant Attorney General, Lora Fox Martin and Steven T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GAUT, J.

Defendant Jimmie Lee Oates and two companions drove into hostile gang territory and fired two shots at a group of six rival gang members. Gustavo Barrera was shot in the leg, resulting in its amputation.

Defendant appeals judgment entered following his conviction by jury of five counts of attempted premeditated murder (counts 1, and 3 through 6);¹ mayhem (count 2);² and possession of a firearm by a felon (count 8).³ The jury also found true the enhancement allegations that a principal personally used and discharged a firearm, which caused great bodily injury,⁴ and that the offenses were committed to benefit a criminal street gang.⁵ Defendant admitted the truth of the allegation that he had previously suffered a prior strike.⁶

The jury deadlocked on, and the court dismissed, the enhancement allegations that defendant personally inflicted great bodily injury⁷ and discharged a firearm from a motor vehicle, causing great bodily injury.⁸

The court sentenced defendant to an aggregate indeterminate prison term of 85 years to life plus a determinate term of 20 years, consisting of consecutive prison terms of 30 years to life on count 1 for attempted murder of Barrera; 30 years to life on count 5 for attempted murder of Manuel Castrejon; 25 years to life for a count 1 enhancement under section 12022.53, subdivision (d); and 20 years for a count 5 enhancement under section 12022.53, subdivision (c).

1. Factual and Procedural Background

During the afternoon of September 11, 1999, members of the North Side Ontario gang (NSO), including Gustavo Barrera, Victor Mendoza, and Walter Ramirez, entered East Side Ontario gang (ESO) territory. The NSO and ESO are rival gangs. Defendant is a member of ESO. Mendoza got into a fistfight with an individual associated with the ESO.

After the fight, the NSO members went to Antoinette Acuna's home to visit her son, NSO member, Manuel Castrejon. Acuna's home was in NSO territory, on Calaveras Street. At around 10:00 p.m., Mendoza, Barrera, Castrejon, Ramirez, and Jose Gonzalez socialized outside on Calaveras Street. A white car and a dark green car drove down Calaveras Street and momentarily stopped in front of the group of NSO members. An occupant in the green car, on the passenger side, fired at the NSO group. The first bullet hit Barrera in the leg. The NSO members fled for cover as a second bullet passed by Barrera's head. The two cars then sped off.

Around 10:00 p.m. that night, California Highway Patrol Officer Wilkening observed a dark green car speeding on the 10 freeway in Ontario. With his emergency lights activated, Wilkening chased the car. When the car slowed down, upon exiting the freeway, he observed the three occupants. Wilkening saw defendant in the front passenger seat. The car eventually stopped and Wilkening saw the occupants flee from the car. Wilkening chased after and apprehended defendant. Defendant acknowledged he was a passenger in the car. The other two occupants were also apprehended and identified as ESO gang members.

Early the next morning, after searching the route taken by the green car, an officer found a .44-caliber handgun lying on the shoulder of the freeway. Two cartridges had been fired and four live rounds remained in the gun cylinder. One of defendant's fingerprints was found on the gun.

Detective Giallo testified that Castrejon told him two days after the shooting and during a photographic lineup that defendant fired the shots from the front passenger seat. But Castrejon also initially told Giallo the shots came from the right rear passenger door.

Acuna testified that shortly before the shooting, she went outside and saw her son and friends congregated two house down from hers. A light colored car and a dark colored car turned onto Calaveras Street, and slowed down as they passed her son's group. An individual opened the front passenger door of the dark colored car and shot two or three times at the group. The first shot may have ricocheted off the ground before hitting Barrera's leg. When the police interviewed Acuna, out of fear of retaliation, she initially said she could not identify the shooter but then told the police defendant was the shooter and identified him during an in-field lineup conducted the night of the shooting. She also identified defendant at trial as the shooter.

2. Aggravated Mayhem

Defendant contends there was insufficient evidence to support his aggravated mayhem conviction under section 205. He claims that evidence that he used a powerful firearm and modified bullets was insufficient. Defendant argues there was merely evidence of an indiscriminate attack or a general intent to kill rather than any evidence establishing defendant harbored a specific intent to maim Barrera.

"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears `that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citations.]"⁹ In applying the same standard to a conviction based primarily on circumstantial evidence, we uphold the jury's verdict if reasonably justified by the circumstances, even if a contrary finding might also reasonably be reconciled with the circumstances.

Aggravated mayhem is a specific intent crime that requires proof that the defendant intended to cause the victim permanent disability or disfigurement.¹⁰ "[S]pecific intent may be inferred from the circumstances attending an act, the manner in which it is done, and the means used, among other factors."¹¹ The evidence is insufficient to prove specific intent where it shows no more than an "indiscriminate attack" upon the victim.¹² But evidence of a directed and controlled attack may provide substantial evidence of an intent to disable or disfigure permanently.¹³

In People v. Ferrell, the court concluded the defendant shot the victims in a deliberate and controlled manner sufficient to support an aggravated mayhem conviction. The defendant went to the victim's house and pointed a gun at the victim and her parents. When the victim's father moved toward the defendant, she shot him in the knee. The defendant then shot the victim in the neck from about two feet away. The court noted, "[i]t takes no special expertise to know that a shot in the neck from close range, if not fatal, is highly likely to disable permanently." ¹⁴ Therefore, based on the calm and deliberate manner of the defendant's shooting, the court held there was substantial evidence to support the aggravated mayhem conviction.

While in the instant case, the shooting occurred at a greater distance than in Ferrell, there was nevertheless sufficient evidence that defendant shot Barrera in a deliberate, directed, and controlled manner. The car defendant was riding in stopped in front of Barrera and his companions. Defendant opened the car door, aimed at Barrera, and fired two shots with a high powered gun containing modified bullets. The first shot hit Barrera's leg. Defendant fired a second shot at Barrera's head but missed. Defendant then sped away in the green car.

A reasonable inference could be made that defendant was aiming at Barrera, with the intent to permanently disable, if not kill him, and this was not a random, indiscriminate attack. While defendant may not have known Barrera's identity when shooting at him, due to poor lighting and distance factors, there was sufficient evidence he intended to shoot and maim or kill an NSO member, and targeted Barrera for that purpose.

Substantial evidence supported defendant's conviction for aggravated mayhem.

3. Attempted Murder

Defendant contends there was insufficient evidence supporting defendant's convictions for five counts of attempted murder. Defendant was convicted of attempting to murder Barrera and his four companions, Mendoza, Ramirez, Castrejon, and Gonzalez. Defendant argues that he fired two shots at Barrera and therefore he cannot be found guilty of attempting to murder all five individuals, particularly since Barrera's companions were standing a substantial distance from Barrera. Defendant claims there was thus insufficient evidence to support his convictions for more than two counts of attempted murder and, therefore, this court must reverse three of the five attempted murder convictions.

Murder is defined in section 187, subdivision (a) as "the unlawful killing of a human being ... with malice aforethought." In order to prove attempted murder, there must be sufficient evidence of intent to commit the murder "plus a direct but ineffectual act toward its commission." ¹⁵

Implied malice is insufficient to support an attempted murder conviction. "[T]he evidence must demonstrate a deliberate intention unlawfully to kill a fellow human being." ¹⁶

Evidence of such intent, while rarely direct evidence, may include circumstantial evidence "derived from all the circumstances of the attempt, including the defendant's actions. [Citation.] The act of firing toward a victim at a close, but not point blank, range `in a manner that could...