People v. Saez
| Citation | 189 Cal.Rptr.3d 72,237 Cal.App.4th 1177 |
| Decision Date | 18 June 2015 |
| Docket Number | A138786 |
| Court | California Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jose SAEZ, Defendant and Appellant. |
237 Cal.App.4th 1177
189 Cal.Rptr.3d 72
The PEOPLE, Plaintiff and Respondent
v.
Jose SAEZ, Defendant and Appellant.
A138786
Court of Appeal, First District, Division 1, California.
Filed June 18, 2015
Petition for Rehearing Denied July 14, 2015
Counsel for Appellant: Ozro William Childs, under appointment by the First District Appellate Project.
Counsel for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Catherine A. Rivlin, Supervising Deputy Attorney General, Hanna Chung, Deputy Attorney General.
Opinion
Humes, P.J.
A jury found Jose Saez guilty of attempted murder and found true allegations that the crime was willful, deliberate, and premeditated, that he personally inflicted great bodily injury on the victim, and that he personally used a deadly weapon.1 The trial court found he was the same person convicted of two prior crimes in Wisconsin (the identity finding), and
after the jury found the convictions true, the court ruled that they were serious felonies and strikes.2
On appeal, Saez raises four main categories of arguments. First, he contends the premeditation allegation was improperly tried because it had previously been dismissed under section 995. Second, he contends the premeditation, great-bodily-injury, and identity findings were not supported by sufficient evidence. Third, he contends the identity finding, even if supported by sufficient evidence, violated the Sixth Amendment. Finally, he contends the trial court's determination that one of the Wisconsin convictions—for false imprisonment while armed—was a strike violated state law and the Sixth Amendment.
We affirm in part and reverse in part. We sustain the attempted murder conviction, the great-bodily-injury and identity findings, and one of the strike determinations. But we reverse the premeditation finding because premeditation was improperly realleged after the allegation was dismissed under section 995. And we reverse the determination that the conviction for false imprisonment while armed constituted a strike. Although this determination comported with People v. McGee (2006) 38 Cal.4th 682 [42 Cal.Rptr.3d 899, 133 P.3d 1054] (McGee ), it was incompatible with the more recent United States Supreme Court decision in Descamps v. United States (2013) 570 U.S. –––– [186 L.Ed.2d 438, 133 S.Ct. 2276]
(Descamps ), which makes clear that the Sixth Amendment prohibits a court from increasing a criminal sentence based on facts related to a prior conviction when those facts were not necessarily established by the conviction. Accordingly, we remand for resentencing.
I.
Factual and Procedural Background
On May 6, 2007, Saez assaulted a female victim with a garrote—a wire weapon used for strangulation—on a San Francisco street in broad daylight.3 A witness called the police after seeing Saez “stomping” on the victim as she lay on the sidewalk. Officer James Barber located Saez near the scene and detained him. Saez volunteered that “[t]he bitch was already dead” and was bleeding from her mouth when he came across her.
Officer Barber found a homemade garrote in Saez's jacket pocket. Saez's jacket was bloodstained, and the garrote had hair and skin attached to it.
Later DNA testing established that both the victim's and Saez's blood was on the jacket, and the victim's blood was on the garrote.
Officer Lynn Reilly found the victim where she had been assaulted. Officer Reilly described the victim as having “blood all over her face,” and she noticed blood on a garage door near the victim's head. The officer testified that the victim was unconscious and there was a “gurgling, labored breathing sound coming from her mouth, and there was blood that appeared to be coming out of her left ear.” Sergeant Carolyn Lucas, who was also at the scene, testified that the victim was “either unconscious or barely conscious.”
The victim was taken to the hospital. The attending trauma surgeon, Jan Horn, M.D., testified that when the victim was admitted she had lacerations on her neck, tongue, and fingers, and blood around her nostrils and mouth. She also had fractured bones near her eye socket and cheek, which were consistent with having had her face “stomped” on. Dr. Horn explained that the lacerations on the victim's neck were not very deep, although the victim needed stitches for a wound on one of her fingers. The victim remained in the hospital for two days, during which time she was kept under continuous monitoring and received supplemental oxygen because swelling in her throat threatened to “compromise ... her ability to breathe.” She did not testify at trial, and no evidence was presented about her recovery after she left the hospital.
A felony complaint charged Saez with one count of attempted murder and alleged, in relevant part, that the crime was willful, deliberate, and premeditated, that he personally inflicted great bodily injury, and that he personally used a deadly weapon. After a preliminary hearing, the magistrate found there was sufficient evidence of premeditation and great bodily injury but insufficient evidence of use of a deadly weapon.
The People subsequently filed an information that included the charge of attempted murder with the same accompanying allegations of premeditation, personal infliction of great bodily injury, and, despite the magistrate's ruling, personal use of a deadly weapon. The information also added an allegation that Saez was previously convicted in Wisconsin of armed robbery, a serious felony.
Saez filed a motion under section 995 to dismiss the attempted-murder count and its accompanying allegations. The trial court denied the motion as to the attempted-murder count and deadly-weapon and great-bodily-injury allegations but granted it as to the premeditation allegation. The minute order, however, incorrectly reported that the section 995 “[m]otion is denied.” And despite the court's ruling, the second amended information (the operative
version) included the premeditation allegation. That version also added an allegation that another prior conviction in Wisconsin, for false imprisonment while armed, was also a serious felony.
A jury found Saez guilty of attempted murder and found true the allegations that the crime was willful, deliberate, and premeditated, that he personally inflicted great bodily injury, and that he personally used a deadly weapon. The trial court found that he was the person who had suffered the two prior convictions in Wisconsin, the jury found the prior convictions true, and the court determined that they were serious felonies and strikes. After denying his motion to strike the prior convictions under People v. Superior Court (Romero ) (1996) 13 Cal.4th 497 [53 Cal.Rptr.2d 789, 917 P.2d 628] (Romero motion), the court sentenced Saez to a total term of 39 years to life in prison, comprised of terms of 25 years to life for premeditated attempted murder as a third strike,4 three years for infliction of great bodily injury, one year for use of a deadly weapon, and five years each for the two prior convictions of serious felonies.5
II.
Discussion
A. The Premeditation Allegation Was Improperly Tried Because It Had Previously Been Dismissed by a Judge Other Than the Trial Judge.
Saez contends his conviction for attempted premeditated murder cannot be sustained because the premeditation allegation was dismissed and not properly realleged.6 We agree.
The premeditation allegation had an unusual procedural history. As mentioned above, a magistrate found sufficient evidence of premeditation at the preliminary hearing. The original information was then filed, and Saez brought a motion under section 995 to dismiss parts of it, arguing there was
insufficient evidence that the attempted murder was premeditated, the garrote was a deadly weapon, or the victim sustained great bodily injury. At a hearing on the motion, Judge Cynthia Lee ruled, “The [section] 995 [motion] as to ... premeditation and deliberation will be granted. The [motion] as to the [allegation under section] 12022.7 [infliction of great bodily injury] and the [allegation under section] 12022 [, subdivision (b] )(1) [using a deadly weapon] is denied.” Notwithstanding Judge Lee's oral ruling
granting the motion as to the premeditation allegation, a minute order incorrectly reported that the section 995 “[m]otion is denied.”
Over three years later, the People filed a first amended information that included a premeditation allegation. At a subsequent hearing before a different judge, Judge Anne–Christine Massullo, and with new...
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