Filed 5/22/15 P. v. Carranza CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049152

         v.                                                            (Super. Ct. No. 11CF2429)

MARTIN OCHOA CARRANZA,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, John
Conley, Judge. Affirmed.
                   Melissa Hill, under appointment by the Court of Appeal, for Defendant and
Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Eric Swensen and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and
Respondent.
              Appellant Martin Ochoa Carranza was convicted of attempted premeditated
murder for shooting his ex-wife twice while she was seated in a car with her new
boyfriend. Although the facts show the shooting was part of a preconceived murder plan,
appellant argues there is insufficient evidence he acted with premeditation. He also
contends the trial court erred in refusing to let him reopen his case after the jury began its
deliberations. Finding these arguments unavailing, we affirm the judgment.
                                           FACTS
              After 21 years of marriage, appellant and Maria Espinoza separated in
October 2010. The separation was Espinoza’s idea, and appellant was not happy about it.
After Espinoza agreed to meet with him in late 2010, he implored her to give him another
chance. When Espinoza said no, he showed her a gun and told her he had planned on
killing her earlier that day while she was leaving work. Appellant told Espinoza their
adult son Martin had talked him out of it. He also told her that if she went forward with
the divorce, he was not going to accept it. Espinoza did not waver, and their divorce
became final in January 2011.
              Afterward, Espinoza often noticed appellant following her in his car. One
time while she was driving home from work, appellant passed her on the freeway. As he
went by, he held up his fingers in the shape of a gun, which frightened Espinoza.
              In April 2011, appellant and Martin were at Espinoza’s house working on
appellant’s car. Espinoza was not there at the time and had not given appellant
permission to be at her home. However, appellant went into her house, forcibly entered
her locked bedroom, and stole a personal item from her closet. Later that night, appellant
peppered Espinoza with harassing phone calls while she was out celebrating her birthday.
Appellant wanted to know who Espinoza was with, but she told him it was none of his
business. The next morning, Espinoza discovered someone had let the air out of her car
tires. Suspecting it was appellant, she obtained a temporary restraining order against him
the following day.

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              The order became permanent in May 2011, but two months later, Espinoza
noticed appellant as she was leaving work one day. As she was getting into her car,
appellant drove by, and she asked him if he was following her. Appellant left the scene
without answering the question.
              A few weeks later, in August 2011, appellant invited Espinoza’s brother-in-
law, Renato Vasquez, over for a few beers. While they were drinking, appellant asked
Vasquez if Espinoza was seeing anyone. By then, Espinoza had started dating her
coworker Luis Gonzalez, but Vasquez said he didn’t know anything about Espinoza’s
social life. Appellant became upset and said he was going to take revenge on Espinoza
for all the bad things she had done to him. He also told Vasquez to tell his wife to say
goodbye to Espinoza, because she was not going to be seeing her anymore. Vasquez
urged appellant not to do anything drastic, but appellant said he had already made up his
mind. He claimed the police were never going to catch him either, because he was going
to flee or kill himself after taking his revenge on Espinoza. Although Vasquez thought
appellant was drunk when he made these statements, he told his wife about them when he
got home.
              Appellant acted on his threats one month later, on September 2, 2011. Per
her usual routine, Espinoza got up and got ready for work at around four o’clock that
morning. After picking up coworker Maria Padilla in her car, Espinoza drove to
Gonzalez’s apartment to get him. When she arrived there, she scooted over to the front
passenger seat, Gonzalez entered the driver’s seat, and Padilla got in the back. They were
buckling their seatbelts and getting ready to head out when appellant suddenly appeared
on the driver’s side of their car with a gun.
              Accounts differ as to what happened next. According to Espinoza,
appellant fired a shot outside the car and entered the backseat next to Padilla. Holding
his gun to the back of Gonzalez’s head, appellant ordered him to start driving, but
Gonzalez didn’t obey. Appellant then turned his attention to Espinoza and said, “I told

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you that I was going to kill you if you were not mine again.” He also told Espinoza that
“if [she] was not going to be his, [she] was not going to be anyone’s.”1 Espinoza begged
appellant not to hurt her, but he pointed the gun at her forehead and pulled the trigger.
Anticipating the shot, Espinoza raised her right arm for protection, and the bullet struck
her arm. She told appellant she was injured and not to shoot again, but he did. As
before, appellant fired while pointing the gun at Espinoza’s forehead. This time,
Espinoza raised her left arm, and the bullet hit her between her shoulder and her elbow.
                  The shots prompted Gonzalez to exit the vehicle and confront appellant in
the back seat. As they were struggling for the gun, Gonzalez hit appellant’s hand, and he
dropped the weapon. Gonzalez then turned and started to run away, but appellant
grabbed the gun and shot him twice in the legs.2
                  By the time Gonzalez was shot, Espinoza and Padilla had exited the car.
However, appellant pointed his gun at Padilla, so she ducked back into the backseat.
Appellant followed her inside the car and told her, “You’re going to die, too, you
daughter of a whore.” Padilla grabbed appellant’s gun, and while they were struggling
for the weapon, a shot went off, hitting appellant in the leg. Then appellant told Padilla
to get out of the car because he was going to kill her. Fearing for her life, Padilla ran
behind some bushes with Espinoza. While they were hiding, appellant asked Espinoza to
tell him where she was, so he could kill her. He also put the gun in his own mouth at one
point. However, rather than firing anymore shots, appellant got into Espinoza’s car and
drove away.
                  As appellant was driving, he reloaded his gun with six more bullets. He
thought about going to Tijuana, but his gunshot wound was too painful, so he called the
police and surrendered at a gas station. When the police examined Espinoza’s car, they

         1        Gonzalez testified he heard appellant tell Espinoza something to the effect that she was “fucked”
and about to die.
         2        While Gonzalez testified appellant shot him while he was trying to run away, Espinoza testified
appellant shot Gonzalez while he was lying on the ground.


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discovered numerous bullet holes in the vehicle and a loaded .357 revolver on the
floorboard near the driver’s seat. The police also searched appellant’s car, which was
found about a mile from Gonzalez’s apartment. The vehicle contained ammunition for a
.357 revolver, a wig, binoculars, and note cards reflecting locations where Espinoza had
been on certain dates in the preceding months.
              After waiving his Miranda rights, appellant told investigators he merely
intended to scare the victims. Asked why he brought along a loaded gun to do so, he
said, “I was desperate. I love [Espinoza] a lot . . . and I can’t control myself.” While
admitting that he planned on confronting Espinoza and that he did in fact shoot her and
Gonzalez, appellant claimed he only wanted to frighten, not kill, them.
              At trial, appellant changed his story and denied shooting anyone. He told
the jury the gun went off while he and Padilla were struggling for the weapon, and
although he was holding the gun at the time, Padilla is the one who exerted force on the
trigger and caused the weapon to go off. Appellant also denied making any threatening
statements during the incident. In fact, he claimed he never threatened, followed or
harassed Espinoza. Asked to explain all of the times he ran into her following their
separation, appellant said their meetings were sheer coincidence. He said the reason he
confronted Espinoza with a gun on the day of the shooting is because he was planning on
moving to Texas the next day and just wanted to talk to her one more time before he left.
              The jury did not believe him. While it acquitted him of attempting to
murder Padilla and stealing Espinoza’s car and was unable to decide whether he
attempted to murder Gonzalez, it convicted him of attempting to murder Espinoza with
premeditation and deliberation. The jury also found appellant guilty of three counts of
making a criminal threat, domestic battery with corporal injury, stalking in violation of a
restraining order and misdemeanor violation of a protective order. In addition, the jury
found true allegations appellant used a firearm, discharged a firearm that caused great
bodily injury, and inflicted great bodily injury under circumstances involving domestic

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violence. The trial court sentenced appellant to life in prison with the possibility of
parole, plus 25 years to life.
                                 Sufficiency of the Evidence
              Appellant argues there is insufficient evidence to support the jury’s finding
that, in attempting to kill Espinoza, he acted with premeditation and deliberation. We
strongly disagree.
              Courts traditionally look at three categories of evidence in determining
whether there is sufficient evidence to support a finding of premeditation and
deliberation: 1) Planning, 2) motive and 3) the manner in which the killing or attempted
killing occurred. (People v. Anderson (1968) 70 Cal.2d 15.) These categories are
intended “to aid reviewing courts in assessing whether the evidence is supportive of an
inference that the killing [or attempted killing] was the result of preexisting reflection and
weighing of considerations rather than mere unconsidered or rash impulse. [Citation.]”
(People v. Perez (1992) 2 Cal.4th 1117, 1125.) We must remember “premeditation can
occur in a brief period of time. ‘The true test is not the duration of time as much as it is
the extent of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .’ [Citations.]” (Id. at p. 1127.)
              In reviewing appellant’s claim, we must also keep in mind the standard of
review for assessing the sufficiency of the evidence to support a criminal conviction is
“highly deferential.” (People v. Lochtefeld (2000) 77 Cal.App.4th 533, 538.) Our task is
to “review the entire record in the light most favorable to the judgment to determine
whether it contains substantial evidence . . . from which a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Lindberg
(2008) 45 Cal.4th 1, 27.) In so doing, we do not reweigh the evidence or reevaluate the
credibility of the witnesses who testified at trial; rather, “[w]e presume in support of the
judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,

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reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.]” (Ibid.) “The conviction
shall stand ‘unless it appears “that upon no hypothesis whatever is there sufficient
substantial evidence to support [it].”’ [Citation.]” (People v. Cravens (2012) 53 Cal.4th
500, 508.)
              Turning this standard of review on its head, appellant argues the evidence
shows that, in attacking Espinoza, he only intended to use the gun to hold her captive in
the car long enough to talk to her and persuade her to reconcile with him. And even if he
did intentionally fire several shots at Espinoza, “the evidence as a whole
overwhelming[ly] suggests that he did so pursuant to a rash impulse.” This
characterization of the evidence is based on an isolated review of the record. It presumes
everything appellant testified to at trial was true even though the jury rejected his version
of events. As explained above, we are not at liberty to second-guess the jury’s decision
in that regard. Instead, we must draw all factual inferences in favor of the judgment
below.
              Doing so paints a very incriminating picture of appellant’s intent. He
stalked and harassed Espinoza for several months before the shooting. He said he was
not going to accept their divorce but instead make her pay for leaving him. He acquired a
gun and contemplated shooting her outside her workplace. Then, in an early morning
surprise attack, he confronted her with a loaded gun while she was with her new
boyfriend. During the attack, he said he was going to kill Espinoza because he couldn’t
have her and proceeded to fire two shots at her head at point blank range. When that
didn’t do the trick, he went looking for Espinoza and asked her to tell him where she was
hiding so he could finish the job. He also shot her boyfriend twice and threatened to kill
Padilla before fleeing the scene and contemplating a run for the border.
              Even though appellant was emotionally distraught at the time of the
shooting, and the evidence regarding the event was conflicting in some respects, there

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was substantial evidence from which the jury could reasonably conclude appellant carried
out a preconceived plan to kill Espinoza on the morning of the shooting. Indeed,
appellant’s words and actions clearly indicate the shooting was the result of preexisting
reflection as opposed to a rash impulse. It could easily have been filed as a “lying in
wait” case. We are powerless to disturb the jury’s finding he committed attempted
premeditated murder.
                                Reopening of Appellant’s Case
              Appellant also contends the trial court abused its discretion and violated his
constitutional rights by denying his request to reopen his case so he could admit into
evidence the gun he used in the shooting. Although the jury requested access to the gun
during its deliberations, we do not believe the trial court erred in refusing to allow
appellant to reopen his case.
              As explained above, appellant testified the gun went off while he and
Padilla were struggling for the weapon, and he did not intend to fire any of the shots.
Based on this testimony, defense counsel argued the shooting was largely Padilla’s fault
because, by grabbing appellant’s gun, she inadvertently caused the weapon to go off.
              Anticipating this theory, the prosecutor called police officer and firearms
expert Rocky Edwards as a witness at trial. Edwards testified he examined the .357
revolver that was recovered from Espinoza’s vehicle after the shooting and determined it
was in proper working order. He also determined the gun, which was marked as People’s
exhibit 54, has a trigger pressure of 9 pounds in the double-action position, and 3.64
pounds when in single-action mode. As Edwards explained, the gun also has a safety
feature that prevents it from firing if something inadvertently hits the hammer or the
trigger. He said, “There’s only one way to fire this revolver, and that’s to pull the
trigger.” (Italics added.)
              During Edwards’ testimony, he handled the gun while explaining all of its
various features to the jury. However, the parties agreed that instead of admitting the gun

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into evidence, the court would just admit a picture of the gun. Therefore, when Edwards
finished his testimony, he took the gun back to the police department for safekeeping.
And when it came time to admitting the People’s exhibits, the parties stipulated that, for
purposes of exhibit 54, the actual gun would be replaced with a photo of the weapon.
              During deliberations, the jury sent the court a note that read, “We, the jury
in the above entitled action request the following: Test gun trigger pressure; jurors would
like to hold & feel the weight of the gun to test theories of defense. Would request lock
taken off, /s/ Juror # 105, Foreperson.”
              In meeting with counsel to discuss the note, the court stated it would not be
proper for the jury to “test” the gun because that would amount to creating new evidence.
Defense counsel agreed with that, but he argued the jurors should be allowed to hold the
gun so they could get a feel of the actual weapon that appellant used during the alleged
offenses. He claimed this made sense because there had been testimony about trigger
pull weights, Padilla grabbing the gun, and the possibility of “accidental discharges.”
               The prosecutor opposed letting the jury examine the gun. Since the gun
was only used for demonstrative purposes during the trial, she argued it would be
improper for the jury to attempt to recreate what either the expert or appellant did with
the weapon. Indeed, she argued that allowing the jury to “conduct trigger pressure tests
[with the gun] without any basis, and not being able to recreate exactly what happened,
[would be] very dangerous.”
              During the hearing, the court also expressed concern about the procedural
posture of the case. Since the gun was never admitted into evidence, and the jury had
already begun deliberating, the court surmised a stipulation would be required to allow
the defense to reopen its case and admit the gun into evidence. Defense counsel
disagreed, claiming the court had the legal authority to allow a party to reopen its case at
any time. However, in the end, the court simply did not feel comfortable doing that.
After denying appellant’s request to reopen, the court told the jury, “Before the

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completion of the testimony in this case, both sides agreed that a picture [of People’s
Exhibit 54 would] be substituted for the actual weapon. The weapon itself was not made
an exhibit and was returned to the police department. [¶] This means that the weapon is
not available to the jury, and the court cannot comply with this request.”
              Generally speaking, a stipulation is not required to allow a party to reopen
its case after jury deliberations have begun. Rather, “[t]he decision to reopen a criminal
matter to permit the introduction of additional evidence is a matter left to the broad
discretion of the trial court.” (People v. Jones (2012) 54 Cal.4th 1, 66.) However, in this
case, the issue was complicated by the fact the parties had previously stipulated the gun
would not be introduced into evidence. A court cannot undo a stipulation simply because
one party has become unsatisfied with its terms. “To do so ‘strays from the judicial
restraint essential to a rational judicial process.’ [Citation.]” (DVD Copy Control Assn.,
Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 725.) Restraint is needed in this
situation because the parties often rely on the effect of a stipulation in deciding how to
put on their case. In this particular instance, it simply would not have been fair to the
prosecution to reopen an issue that it reasonably believed was put to rest by virtue of the
parties’ agreement.
              In any event, it is clear the trial court did not rely solely on the lack of a
stipulation in denying appellant’s request to reopen his case. Although the court did
express some concern about that issue, it heard arguments and carefully assessed all of
the pertinent circumstances in ruling on appellant’s request. In particular, the court
considered what restrictions apply when a jury is reviewing evidence during
deliberations, whether the jury in this case might be inclined to use the gun to create new
evidence, and whether, for practical and fairness reasons, it was simply too “late to . . .
reopen the case” for purposes of introducing the gun into evidence. As to the fairness
issue, even defense counsel acknowledged that when, as here, the parties enter into a



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stipulation about how certain evidence is going to be treated, there are reasons for, and
consequences that flow from, that decision.
              Given everything that was said and discussed at the hearing on this issue,
we are not persuaded to appellant’s point of view the trial judge’s focus on the lack of a
second stipulation indicates he did not realize he had discretion in this regard. We are not
convinced he thought he was somehow barred from weighing the request to re-open.
Still, we must decide whether, in exercising its discretion to deny appellant’s motion to
reopen, the court abused its discretion by acting in an “arbitrary, capricious, or patently
absurd manner that resulted in a miscarriage of justice.” (People v. Avitia (2005) 127
Cal.App.4th 185, 193.) We think not.
              “In determining whether a trial court has abused its discretion in denying a
defense request to reopen, the reviewing court considers the following factors: ‘(1) the
stage the proceedings had reached when the motion was made; (2) the defendant’s
diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury
would accord the new evidence undue emphasis; and (4) the significance of the
evidence.’” (People v. Jones (2003) 30 Cal.4th 1084, 1110.)
              Addressing these factors, appellant argues it is immaterial his request to
reopen came at a late stage of the proceedings, because the relevancy of the gun did not
become apparent until the jury asked to see it during deliberations. We disagree. How
the gun went off was a central issue throughout the trial. That is why the prosecution
called firearms expert Edwards to explain the characteristics of the gun and how much
pressure it would take to pull the trigger. This testimony had obvious relevance to
appellant’s claim the gun went off accidentally while he and Padilla were struggling for
the weapon. Yet, rather than seeking to have the gun admitted into evidence, defense
counsel agreed that Edwards could take the gun with him after testifying and that a photo
of the gun would suffice for evidentiary purposes. Because the significance of the gun
was known during the trial, the timing and diligence factors support the trial court’s

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ruling. (Compare People v. Monterroso (2004) 34 Cal.4th 743, 779 [the denial of a
request to reopen will be upheld if “the evidence the defense sought to offer at reopening
was indisputably available during the trial”] with People v. Frohner (1976) 65
Cal.App.3d 94 [trial court erred in refusing request to reopen where evidence sought to be
admitted was not available until jury deliberations had begun] and People v. Newton
(1970) 8 Cal.App.3d 359, 383 [same].)
              As for the significance of the gun and whether the jury would have given it
undue emphasis, it is clear the weapon was an important piece of evidence in the case, in
light of appellant’s claims that he did not intentionally shoot anyone and that Padilla
somehow caused the gun to go off. The jury obviously felt that handling the gun and
testing its trigger pressure would help them assess the validity of those claims. However,
there’s always the potential for problems when jurors conduct their own experiments on
evidence during deliberations. While jurors are free to critically examine evidence and
use it “according to its nature” to help them decide disputed issues in the case, they are
not free to conduct experiments that result in “the acquisition of new evidence[.]”
(People v. Collins (2010) 49 Cal.4th 175, 243-244.)
              In ruling on appellant’s request to reopen, the trial court was rightfully
worried the jury might use the gun to create new evidence. Even defense counsel
acknowledged that was a legitimate concern, considering the jury wanted to “test” the
gun’s trigger pressure. At one point, the court did contemplate allowing the jurors to
handle the gun and “pull the trigger a few times.” But, as the prosecution noted, it would
have been impossible for the jury to replicate the circumstances under which appellant
fired the weapon, so there would have been little value in allowing the jury to do that.
All things considered, we do not believe the trial court abused its discretion in denying
appellant’s request to reopen his case to admit the gun into evidence. Nor did the denial
infringe appellant’s constitutional right to a fair trial or to present a defense.



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              In any event, it would be pure speculation to presume appellant would have
benefited from allowing the jury to examine the weapon. Appellant assumes the jurors
would have been more inclined to accept his accident defense had they been allowed to
handle his gun, but it is just as likely their examination of the weapon would have hurt his
case. Suffice it to say, appellant has failed to show the requisite reasonable probability of
prejudice as opposed to a mere possibility of harm. (People v. Mena (2012) 54 Cal.4th
146, 162; People v. Watson (1956) 46 Cal.2d 818, 836.) Considering as well there was
overwhelming evidence appellant attempted to murder Espinoza in a premeditated
fashion, we conclude any error in denying appellant’s request to reopen his case to admit
the gun was manifestly harmless.
                                      DISPOSITION
              The judgment is affirmed.



                                                  BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



THOMPSON, J.




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