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People v. Santana

October 26, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
SERAFIN SANTANA, DEFENDANT AND APPELLANT.



(Super. Ct. No. RIF139207) APPEAL from a judgment of the Superior Court of Riverside County, Mark E. Johnson, Judge.

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Reversed in part, affirmed in part, and remanded for further proceedings.

I. INTRODUCTION

Defendant Serafin Santana appeals his convictions and sentence for attempted mayhem and two counts of assault with a firearm. Santana contends (1) that the trial court erred in instructing the jury on the offense of mayhem, as part of its instruction on the charged offense of attempted mayhem, by specifically telling the jury that "a gunshot wound" could be a "serious bodily injury"; (2) that the trial court erred in failing to instruct the jury sua sponte on the offense of attempted battery resulting in serious bodily injury, as a lesser included offense of attempted mayhem; (3) that the court erred in failing to instruct the jury on three of the four elements of the offense of assault with a firearm; (4) that the court abused its discretion in admitting in evidence testimony from a witness regarding a threat that that witness received from an unknown person who told the witness to tell one of the victims not to come to court; (5) that a juror committed misconduct by failing to promptly disclose that she knew the victim to be a student at the school where she worked as an instructional aide; (6) that the court erred in imposing a concurrent three-year term for a Penal Code*fn2 section 12022.7 great bodily injury enhancement as to the attempted mayhem count because the court had already imposed a 25-year-to-life term for a section 12022.53, subdivision (d) great bodily injury enhancement as to that count; (7) that the court erred in ordering Santana to reimburse the county for fees for the services of his appointed counsel without holding a hearing or determining whether he had the ability to pay those fees; (8) that the abstract of judgment is "a complete mess" and requires correction since it "is a virtual impossibility to discern precisely what the trial court ultimately intended in terms of a final sentencing minute order and complete abstract of judgment"; and (9) that the cumulative prejudice caused by the trial court's numerous errors requires reversal.

We conclude that the trial court erred in failing to properly instruct the jury with respect to the charge of attempted mayhem, and further conclude that this error requires reversal of Santana's conviction for this offense. Since we are reversing Santana's attempted mayhem conviction, we need not consider Santana's claim of error regarding his sentence on that count, nor his request that the court issue a corrected abstract of judgment. With respect to Santana's complaint regarding the court's order requiring him to reimburse the county for fees for his appointed counsel, we instruct the trial court that it must hold a hearing and make the requisite findings before it may enter a similar order after remand. We reject Santana's other claims of error, and therefore affirm Santana's convictions on counts 2 and 3. We remand the case to the trial court for further proceedings as may be necessary given our reversal of his conviction on the attempted mayhem charge.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

On August 12, 2007, Juan Gomez was having a party at his house in Moreno Valley. Santana, Gomez's friend and coworker to whom Gomez referred as "Junior," attended the party with some younger people whom Gomez did not know.

At approximately 2:00 a.m. on August 13, 15-year-old Bryan Vallejo, a neighbor of Gomez's who lived three houses down, was in his front yard with two friends. A group of four or five Hispanic men walked from Gomez's house over to where Vallejo and his friends were congregated. The men had an ice chest with them. One of the men was chubby and had a goatee, and was wearing a blue Dodgers hat and a blue shirt. He was subsequently identified as Santana.

Santana and his friends struck up a friendly conversation with Vallejo and his friend, Andy Ortiz. At one point, one of the men who was with Santana asked Vallejo about the possibility of getting marijuana. Vallejo said that he would try to get some. After Vallejo told the men that he would not be able to get the drugs, the men threw trash on Vallejo's lawn, and an argument ensued. One of the taller men from Santana's group and Vallejo exchanged words, and someone then suggested that the men fight. Santana indicated that they should move up the street. Santana's group, and Vallejo and Ortiz, walked up the street, where Vallejo and the tall man began to fight.

Some of the other men from Santana's group--but not Santana--joined in and began to fight with Vallejo. When Ortiz started to move toward Vallejo, Santana pointed a gun at Ortiz's head and said, " 'This bitch ain't gonna do nothing.' " Santana then hit Ortiz on the back of the head and on the forehead with the gun.

After striking Ortiz with the gun, Santana ran toward Vallejo, and Ortiz yelled out, "He ha[s] a gun." Vallejo was hit with an object that felt like metal. Vallejo decided to get on the ground. He curled up in a fetal position, and the men continued to beat him. The men then ran off and got into a white Cadillac that was parked nearby.

At some point, Santana was the only one of his group who was still outside of the Cadillac. He walked toward Vallejo, who was lying on the ground, and, using a small black revolver, shot Vallejo in the leg multiple times. After shooting Vallejo, Santana ran across the street and got into a green or blue car, which then drove away.

Ortiz ran over to Vallejo and told him that he had been shot. Vallejo did not initially believe Ortiz. Ortiz helped Vallejo as he attempted to stand up. Vallejo's leg felt numb, and he realized he had in fact been shot. Ortiz saw blood "everywhere," including on Vallejo and on the ground underneath him.

Vallejo was taken to the hospital and treated for his injuries. He had been shot three times in the leg and buttock area. The wounds were through-and-through wounds, i.e., each had an entry and exit point, and they required no stitches. However, Vallejo experienced pain when he changed the bandages. In addition, for a period of time he needed a cane to walk, and had to wear slippers. Walking and sitting caused him pain, and he was unable to play football when he returned to school.

Gomez knew that there had been a shooting on the night of the party because someone ran to Gomez's backyard and said that "someone got shot in the front." On the night of the shooting, Gomez told a police officer that he believed that "Junior" had been the shooter, and explained that "Junior" was a coworker of his in Rialto.*fn3 "Junior" was Santana's nickname. The next day, Gomez spoke with Vallejo, and Vallejo described the person who had shot him. Gomez recognized the description, and believed that the shooter had been Santana. Vallejo had told Gomez that the shooter had that said he was from Rialto, and Gomez only knew one person from Rialto--Santana. Gomez also told Vallejo that in the past, he had seen Santana carrying a revolver.

The following Monday, Gomez spoke with Santana at work and asked Santana why Santana had shot his friend. Santana denied being the shooter.

Police officers executed a search warrant at Santana's residence. A bag containing 50 live .38-caliber bullets was found in the garage.

In September 2007, Vallejo identified Santana in a photographic lineup. Vallejo said that he was 80 percent sure of his identification of Santana as the person who shot him. Ortiz was also shown a photographic lineup. He, too, identified Santana as the shooter, although he wrote on the back of the paper with the photographs on it that he was only "pretty sure."

After Santana was arrested, a man whom Gomez did not know showed up at Gomez's workplace and asked Gomez, "Are you Juan, Juan Gomez?" The man then told Gomez to tell Vallejo not to show up in court. This incident frightened Gomez, and caused him to "have second thoughts about what [he was] going to testify to."

B. Procedural background

The Riverside County District Attorney filed an amended information on March 9, 2009, charging Santana with one count of attempted mayhem as to Vallejo (§§ 203 & 664, subd. (a)(2); count 1) and two counts of assault with a firearm as to Vallejo and Ortiz (§ 245, subd. (a)(2); counts 2 & 3). With respect to count 1, it was also alleged that Santana personally used a firearm resulting in great bodily injury (§ 12022.53, subd. (d)), and that he personally inflicted great bodily injury (§ 12022.7). As to count 2, the information alleged that Santana personally inflicted great bodily injury (§ 12022.7) and personally used a firearm (§ 12022.5). With respect to count 3, the information alleged that Santana personally used a firearm (§ 12022.5).

A first trial ended in a mistrial when the jury was unable to reach a verdict. A second jury found Santana guilty on all counts, and found true all of the enhancement allegations.

The trial court sentenced Santana to 25 years to life, plus four years four months in state prison.

Santana filed a timely notice of appeal on August 18, 2009.

III. DISCUSSION

A. The trial court prejudicially altered the instruction on mayhem

1. Additional background

The trial court instructed the jury with a modified version of CALCRIM No. 460, pertaining to the charge of attempted mayhem, as follows:

"The defendant is charged in Count 1 with attempted mayhem.

"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant took a direct but ineffective step toward committing the crime of mayhem; "AND

"2. The defendant intended to commit mayhem.

"A direct step requires more than merely planning or preparing to commit mayhem or obtaining or arranging for something needed to commit mayhem. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to commit mayhem. It is a direct movement towards the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.

"To decide whether the defendant intended to commit mayhem, please refer to the separate instructions that I will give you on that crime.

"The defendant may be guilty of attempt even if you conclude mayhem was actually completed."

The court also instructed the jury on the offense of mayhem, using a modified version of CALCRIM No. 801, as follows:

"To prove that the defendant is guilty of mayhem, the People must prove that the defendant caused serious bodily injury when he unlawfully and maliciously disabled or made useless part of someone's body and the disability was more than slight or temporary.

"Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else.

"A serious bodily injury means a serious impairment of physical condition. Such an injury may include a gunshot wound." (Italics added.)

2. Analysis

Santana contends that the trial court's instruction on mayhem was argumentative and created an imbalance in the prosecution's favor by stating that a serious bodily injury "may include a gunshot wound."*fn4 He points out that the court's instruction improperly directed the jury's attention to the evidence of the existence of the gunshot wounds, as opposed to the severity of any of Vallejo's wounds, which, he asserts is the actual focus of CALCRIM No. 801. Santana argues that the instruction tended to direct a verdict in favor the prosecution by suggesting to the jury that it needed to find only that Santana inflicted a gunshot wound in order to find him guilty of mayhem, rather than requiring the jury to focus on whether Santana intended that Vallejo suffer a disabling injury as a result of the gunshot wounds to his leg.

CALCRIM No. 801, the instruction pertaining to mayhem, proposes the following instructional language:

"The defendant is charged [in Count ____] with mayhem [in violation of Penal Code section 203].

"To prove that the defendant is guilty of mayhem, the People must prove that the defendant caused serious bodily injury when (he/she) unlawfully and maliciously:

"[1. Removed a part of someone's body(;/.)]

"[OR]

"[2. Disabled or made useless a part of someone's body and the disability was more than slight or temporary(;/.)]

"[OR]

"[3. Permanently disfigured someone(;/.)]

"[OR]

"[4. Cut or disabled someone's tongue(;/.)]

"[OR]

"[5. Slit someone's (nose[,]/ear[,]/[or] lip)(;/.)]

"[OR]

"[6. Put out someone's eye or injured someone's eye in a way that so significantly reduced (his/her) ability to see that the eye was useless for the purpose of ordinary sight.]

"Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else.

"[A serious bodily injury means a serious impairment of physical condition. Such injury may include[, but is not limited to]: (protracted loss or impairment of function of any bodily member or organ/a wound requiring extensive suturing/[and] serious disfigurement).]

"[_________ is a serious bodily injury.]

"[A disfiguring injury may be permanent even if it can be repaired by medical procedures.]" (CALCRIM No. 801.)

The Bench Notes that accompany this sample instruction contain the following directives for the trial court: "Whether the complaining witness suffered a serious bodily injury is a question for the jury to determine. If the defendant disputes that the injury suffered was a serious bodily injury, use the first bracketed paragraph. If the parties stipulate that the injury suffered was a serious bodily injury, use the second bracketed paragraph." (CALCRIM No. 801, Bench Notes.)

The trial court appropriately selected the first bracketed paragraph, since Santana had not entered into any stipulation with respect to the seriousness of the intended injury. However, the trial court failed to follow the instructions provided in the Guide for Using Judicial Council of California Criminal Jury Instructions (Guide) in setting forth the language of that first bracketed paragraph. The Guide, which instructs users on how to complete the instructions when alternatives and/or options are provided for in the text, states,

"When the user must choose one of two or more options in order to complete the instruction, the choice of necessary alternatives is presented in parentheses thus: When the defendant acted, George Jones was performing (his/her) duties as a school employee.

"The instructions use brackets to provide optional choices that may be necessary or appropriate, depending on the individual circumstances of the case: [If you find that George Jones threatened or harmed the defendant [or others] in the past, you may ...


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