State v. Saiz

• Decision Date: 14 July 2000
• Docket Number: No. 82,756.,82,756.
• Citation: 269 Kan. 657,7 P.3d 1214
• Parties: STATE OF KANSAS, Appellee, v. ISAAC D. SAIZ, Appellant.
• Court: Kansas Supreme Court

269 Kan. 657

7 P.3d 1214

STATE OF KANSAS, Appellee, v. ISAAC D. SAIZ, Appellant.

No. 82,756.

Supreme Court of Kansas.

Opinion filed July 14, 2000.

Michael C. Brown, of Michael C. Brown, P.A., of Mulvane, argued the cause and was on the brief for appellant. Elizabeth L. Reimer, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

ABBOTT, J.:

This is a direct appeal by the defendant, Isaac D. Saiz, from his convictions for first-degree murder, two counts of attempted murder, and discharge of a firearm at an occupied building.

Highly summarized, Saiz claims he was entitled to an instruction on aggravated assault and challenges the sufficiency of the evidence on his crimes and sentences.

On July 21, 1998, Saiz, Jesse Lozano, Thomas Estrada, and Daniel Medrano were riding in Medrano's car and drinking. Saiz, Lozano, Estrada, and Medrano were all members of a Hispanic gang called the Vato Loco Boys. The Vato Loco Boys' territory was the north central side of Wichita. Saiz threw a bottle out of the window, but it did not break. Medrano backed up the car to get the bottle and in the process backed into a parked car.

Medrano and Saiz got out of the car, walked to Oscar Torres' house, and told him that the Suriano 13's, a rival Hispanic gang, had rammed Medrano's car. The Surianos' territory is south Wichita in an area known as Planeview. Medrano and Saiz wanted Torres to help them retaliate against the Surianos.

Later in the evening, Saiz, Medrano, Estrada, and Lozano were at Everett McGinnis' home where Medrano told McGinnis and several others that Medrano's car had been damaged by the Surianos. Saiz, Estrada, and Lozano backed up Medrano's lie. The group talked about retaliation and decided to drive to Planeview and shoot some Surianos. Saiz, Medrano, Lozano, McGinnis, Rodrigo Chavez, Alitta Castro, Estrada, and Torres got in Torres' father's Lincoln and drove to Planeview. Torres drove and Saiz sat in the front passenger seat. The group took two weapons, a .22 caliber rifle and a .20 gauge shotgun.

Saiz retrieved the shotgun out of the trunk when they arrived in Planeview. The group saw two teenagers sitting on the back of a red car in front of a residence on Dunham street. Fourteen-year-old Manuel Galvan III and his friend Ricky Delorea were "hanging out" near Galvan's mother's red car in front of his house when the Lincoln approached about 10:30 that night. Galvan was sitting on the trunk and Delorea was standing nearby. Galvan's father, mother, and 13-year-old brother were inside the house. Galvan's S-year-old brother Antonio was outside near the porch playing with his German shepherd puppy. Galvan and Delorea noticed the Lincoln driving slowly down the street with its lights off and saw the passenger window rolled down and a shotgun protruding from the car. Someone in the Lincoln yelled, "Pudo Loco Boys," which means "nothing but Vato Loco Boys." Saiz successfully fired the shotgun three times. Two unspent shotgun shells were ejected from the shotgun at some point, as Saiz did not know how the automatic shotguns worked. Galvan yelled "duck" before any of the shots were fired and crouched down behind his mother's car. Delorea got underneath the car and was not hit. One shot hit the windshield of the car and another shot hit the roof of the car, deflected off, and hit the house. The third shot was a direct shot that hit Antonio. Antonio was hit by 22 pellets of shot, 8 passing through his scalp and 14 penetrating his skull and brain, causing his death.

Medrano tried to shoot the .22 rifle but it never fired. After shooting Antonio, Saiz told the others in the car that he "got them." Bragging, he said, "Man, I got them. I got them." Saiz and Medrano wanted to go back to the house to shoot some more because Medrano's rifle had not fired during the drive-by shooting.

Wichita Police Officer Patrick Phipps was patrolling in the Planeview area that evening. He received a call about the shooting and stopped the Lincoln. Officers found the .20 gauge shotgun in the back seat on the floorboard of the Lincoln.

Saiz was charged with first-degree murder, felony first-degree murder, one count of criminal discharge of a firearm at an occupied building, and two counts of attempted first-degree murder. The inherently dangerous felonies used to support the felony murder charge were attempted first-degree murder and/or criminal discharge of a firearm. He was 16 years old at the time of the crimes but tried as an adult. At trial, Saiz asked the court to give an instruction on aggravated assault as a lesser included offense of the two attempted murder charges, which the trial court refused. The jury found Saiz guilty of first-degree murder on both theories of premeditation and felony murder. The jury also found Saiz guilty of two counts of attempted murder and one count of criminal discharge of a firearm at an occupied building. Pursuant to K.S.A. 21-4635, the court found that aggravating circumstances existed (Saiz knowingly and purposely created a risk of death to more than one person), which outweighed the mitigating factor of Saiz' age at the time he committed the crimes. Saiz was sentenced to a term of life imprisonment/hard 40 for first-degree murder. Saiz was sentenced to 49 months for criminal discharge of a firearm at an occupied building and to 194 months for each of the two attempted first-degree murder convictions. The sentences run consecutively.

Saiz moved for a mistrial, based upon the trial court's refusal to give an instruction on aggravated assault as a lesser included offense of the two attempted first-degree murder charges. The trial court denied the motion.

Saiz raises five issues on appeal: (1) whether the trial court erred in refusing to give an instruction on aggravated assault as a lesser included offense of attempted first-degree murder; (2) whether there was sufficient evidence to support his convictions for attempted first-degree murder; (3) whether there was sufficient evidence to support his conviction for first-degree murder; (4) whether there was sufficient evidence to support the court's finding of an aggravating circumstance when considering whether to impose a hard 40 sentence; and (5) whether the trial court's finding of one aggravating circumstance outweighed a mitigating circumstance in sentencing him to a hard 40 sentence. We affirm.

I. LESSER INCLUDED OFFENSE

Saiz argues that the trial court erred in refusing to give an instruction on aggravated assault as a lesser included offense of attempted first-degree murder.

Recently, the Court of Appeals discussed lesser included offenses and specifically addressed important legislative changes, stating:

"Prior to July 1, 1998, the appellate courts of this state have held that a trial court has an affirmative duty to instruct a jury on any lesser included offense supported by the evidence. State v. Butler, 25 Kan. App.2d 35, 38, 956 P.2d 733,rev. denied 265 Kan. 886 (1998). This rule applied even though no such instruction was requested. It applied even though no one had ever argued or even suggested that a particular offense might be a lesser included offense of that with which defendant was charged. The fact that no one had suggested it before or that no one had requested such an instruction did not prevent us from reversing the trial court for failing to give a lesser included offense instruction that was raised as an afterthought. The net result is that we have been forced time and time again to consider lesser included offense claims that were never brought to the attention of the trial court. See State v. Hickles, 261 Kan. 74, 83, 929 P.2d 141 (1996).

"The legislature has taken a significant step to eliminate the problems discussed above. K.S.A. 1999 Supp. 22-3414(3) became effective July 1, 1998. L. 1998, ch 185, § 3. That statute provides in pertinent part as follows:

`No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.'" State v. Brooker, 27 Kan. App.2d 396, 398, 4 P.3d 1180 (2000)

.

The crimes in this case occurred on July 21, 1998. Therefore, in order for Saiz to preserve this issue for appeal, he must have asserted at the trial level that an instruction for aggravated assault was warranted. Saiz sought an instruction for aggravated assault as a lesser included offense of attempted murder; thus, the issue was properly preserved for appeal.

The question is not, however, whether an instruction on aggravated assault was warranted, but whether aggravated assault is a lesser included crime of attempted murder. If it is not, then the trial court did not err in refusing to give such an instruction. The question of whether a crime is a lesser included offense is a question of law over which we have unlimited review. State v. Belcher, 269 Kan. 2, 4, 4 P.3d 1137 (2000); see State v. Menalenhall, 18 Kan. App.2d 380, 381, 855 P.2d 975 (1993).

This court recently addressed the issue of lesser included offenses in Belcher. We stated:

"We apply [State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988),

] to decide whether a particular crime is a lesser included offense of another crime. The Fike court admitted that language in K.S.A. 21-3107(2)(d), `a crime necessarily proved if the crime charged were proved,' in terms of interpretation and application was `most troublesome.' 243 Kan. at 367. See Comment, Simplifying the Issue?: State v. Fike and the Doctrine of Lesser Included Offenses In Kansas, 45 Kan. L. Rev. 1463 (1997). The implementation of 21-3107(2)(d) and...