Filed 5/29/14 P. v. Ocampo 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,
                                                                       G048314
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. 11CF0868)
         v.
                                                                       OPINION
FRANCISCO DELGADO OCAMPO,

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange County, Daniel

Barrett McNerney, Judge. Affirmed as modified.
                   Robert Booher, under appointment by the Court of Appeal, for Defendant
and Appellant.

                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Tami
Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
                                          *                  *                  *
              A jury convicted 71-year-old Francisco Ocampo of attempted murder
(Pen. Code, §§ 187; 664) for stabbing his neighbor, Marvin Escobar, in the jugular and
upper arm.1 (All further statutory references are to the Penal Code unless noted.) The
jury found true enhancement allegations that Ocampo used a deadly weapon (§ 12022,
subd. (b)(1)) and inflicted great bodily injury (§ 12022.7, subd. (a)), but concluded he did

not act with premeditation and deliberation (§ 664, subd. (a)). The trial court instructed
the jury voluntary intoxication may prevent a person from forming the requisite intent for
murder or from acting with premeditation and deliberation (CALCRIM No. 625), but

Ocampo contends the trial court erred in failing to instruct the jury sua sponte on
voluntary intoxication to the point of unconsciousness (CALCRIM No. 626). He also
argues the trial court erred in granting the prosecutor’s pretrial motion to dismiss an
aggravated assault charge (§ 245, subd. (a)(1)), enabling the prosecutor to proceed only
on an “all or nothing” theory of attempted murder. Ocampo further contends the $240
restitution fine the trial court imposed violated ex post facto protections and, finally, the
Attorney General concedes and we agree Ocampo is entitled to two additional days of
presentence custody credit. As we explain, Ocampo’s substantive claims are without
merit, but he correctly argues he is entitled to an additional day of worktime credit. We

therefore affirm the judgment as modified (§ 1260) to reflect the additional custody and
worktime credits.
                                               I
                    FACTUAL AND PROCEDURAL BACKGROUND
              Around 2:45 p.m. on April 3, 2011, Ocampo passed by the Escobars’
apartment as he drove out of the neighborhood on his way to a pharmacy. He had been

       1       For ease of reference, we use Marvin’s first name in the remainder of the
opinion to distinguish him from his father, Roberto Escobar, a witness.

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friends with both Marvin and Marvin’s father, Roberto, for six to eight years, and he
spoke with them weekly. Roberto was at work that day, but Marvin was outside and
when Ocampo stopped beside him, Marvin joined him to go to the store. Marvin noticed
Ocampo smelled of alcohol, but he was not intoxicated. They stopped at three
pharmacies before finding the cream Ocampo needed, and then Marvin picked up four

large cans of beer at the liquor store.
              They returned to Marvin’s home around 4:30 p.m. and sat outside chatting
for awhile. Each opened a beer, but Ocampo did not like his and when another neighbor

came by, Ocampo went with the neighbor to purchase other beer. They returned with
three tall cans and two 40-ounce bottles of beer. Roberto joined them around 6:00 p.m.
and, after about an hour, he and Marvin walked with Ocampo about a block to Ocampo’s

apartment. Ocampo did not drive home because he had been drinking, and the Escobars
walked with him because he mentioned he felt dizzy, but when they arrived, he invited
them in, gave each a soda, and they all sat down on Ocampo’s couch. Ocampo had an
unknown beverage in his hand, but neither Marvin nor his father noted in their testimony
anything unusual about Ocampo’s behavior. The trio chatted for about a half hour, and
then the Escobars decided it was time to leave.

              As Martin stood up, he noticed Ocampo hurry to the kitchen, where he saw
him retrieve a large butcher knife from a drawer. Roberto had already made his way out
of the apartment, and when Ocampo met Marvin at the apartment’s exterior door, he

asked Ocampo why he had the knife. Ocampo pushed him out the door, stating, “I don’t
care,” and Marvin turned and walked away. He passed by about four apartments before
Ocampo caught him from behind, stabbed him in the neck, and then stabbed him again in




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his arm near his armpit. Roberto came to his son’s aid and disarmed Ocampo, who
retreated inside his apartment and closed the door.
              Marvin was bleeding profusely, and a responding officer initially thought
he was dead because he did not appear to be breathing. Paramedics found him with no
vital signs, but resuscitated him and rushed him to the hospital, where doctors sutured his

jugular vein and a wound on his arm near his armpit. He spent four days in the hospital,
and his treating physician testified he was lucky to have survived.
              Meanwhile, two police officers forced their way into Ocampo’s apartment,

where they found him changing into a new shirt. He told the officers he had consumed
only two large beers that day. He was arrested and charged as noted, and after the jury
reached its verdict, the trial court sentenced Ocampo to nine years in prison. He now

appeals.
                                             II
                                        DISCUSSION
A.     Voluntary Intoxication Causing Unconsciousness Instruction
              Ocampo argues the trial court erred by failing sua sponte to instruct the jury
on unconsciousness due to voluntary intoxication. The trial court must instruct the jury

on the “general principles of law governing the case,” consisting of “those principles
closely and openly connected with the facts before the court, and which are necessary for
the jury’s understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d 524, 531;

accord, People v. Breverman (1998) 19 Cal.4th 142, 154.) This duty includes instructing
the jury on voluntary intoxication causing unconsciousness if substantial evidence
supports the finding. (People v. Ochoa (1998) 19 Cal.4th 353, 423-424.) The evidence

did not support the instruction here.



                                             4
              The trial court instructed the jury on voluntary intoxication generally, as
follows: “You may consider evidence, if any, of the defendant's voluntary intoxication
only in a limited way. You may consider that evidence only in deciding whether the
defendant acted with an intent to kill, or the defendant acted with deliberation and
premeditation. [¶] A person is voluntarily intoxicated if he becomes intoxicated by

willingly using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You may
not consider evidence of voluntary intoxication for any other purpose.” (CALCRIM

No. 625, original italics.)
              Ocampo asserts the trial court was required to instruct the jury on voluntary
intoxication causing unconsciousness (CALCRIM No. 626) because potential

unconsciousness explained his actions.2 According to Ocampo, “the only theory that
makes sense of the evidence is that appellant blacked out and, for whatever reason,



       2       CALCRIM No. 626 provides: “Voluntary intoxication may cause a person
to be unconscious of his or her actions. A very intoxicated person may still be capable of
physical movement but may not be aware of his or her actions or the nature of those
actions. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] When a
person voluntarily causes his or her own intoxication to the point of unconsciousness, the
person assumes the risk that while unconscious he or she will commit acts inherently
dangerous to human life. If someone dies as a result of the actions of a person who was
unconscious due to voluntary intoxication, then the killing is involuntary manslaughter.
[¶] Involuntary manslaughter has been proved if you find beyond a reasonable doubt
that: [¶] 1. The defendant killed without legal justification or excuse; [¶] 2. The
defendant did not act with the intent to kill; [¶] 3. The defendant did not act with a
conscious disregard for human life; [¶] AND [¶] 4. As a result of voluntary intoxication,
the defendant was not conscious of (his/her) actions or the nature of those actions. [¶]
The People have the burden of proving beyond a reasonable doubt that the defendant was
not unconscious. If the People have not met this burden, you must find the defendant not
guilty of [attempted murder].” (First italics added.)

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thought that he had to stab Marvin.” Reasoning from the absence of a motive, however,
is not itself evidence that the defendant was in an unconscious state. Put another way,
defendant’s approach is conclusory rather than based in evidence of unconsciousness, as
required to support giving the instruction.
                No evidence suggested Ocampo was unconscious. He answered the

responding officers intelligibly, telling them he only consumed two beers and, even
assuming he underreported his alcohol intake, nothing in the evidence suggests he was
unaware of his surroundings. He appeared to have made up his mind to commit the

crime, stating ominously, “I don’t care” when Marvin asked why he was holding the
knife. There was no evidence he did not realize it was a knife or that he flailed wildly
with it in an unconscious fashion.

                Instead, he left his apartment, tracked his victim down, stabbed him in the
jugular, removed the knife, and stabbed him again. He then retreated to his apartment
and changed his clothes. (See People v. Kimble (1988) 44 Cal.3d 480, 497 [flight reflects
consciousness of guilt].) Ocampo was not required to testify to explain his actions, but
on the evidence presented, nothing suggested he was unaware of his actions and therefore
the trial court was not required to instruct the jury on unconsciousness due to

intoxication.

B.     Dismissal of Aggravated Assault Charge
                Ocampo contends the trial court erred in granting the prosecutor’s request

to dismiss the aggravated assault charge on the eve of trial. He insists the trial court
misunderstood the scope of its discretion under section 1385, which allows the court in
the interest of justice to decline a prosecutor’s dismissal request. According to Ocampo,

the trial court revealed its misapprehension of the scope of its discretion by explaining in



                                              6
rejecting Ocampo’s opposition to the dismissal: “I’m unaware of any legal authority . . .
that would give the court the prerogative of requiring the prosecution to proceed on
charges that it doesn’t want to proceed on.” Ocampo relies on the principle that reversal
is required when a trial court misunderstands the scope of its discretion, even if its
decision was reasonable. (See, e.g., Perko’s Enterprises, Inc. v. RRNS Enterprises (1992)

4 Cal.App.4th 238, 245.)
              The trial court was not mistaken. While it is true that dismissal under
section 1385 is a judicial function (People v. Superior Court (Romero) (1996) 13 Cal.4th

497, 514-515), that does not change the fact that prosecuting crimes is solely an executive
office and the prosecutor’s prerogative. Ocampo asserts the trial court was required to
deny dismissal of the charge in the interest of justice to prevent an “all or nothing”

dilemma for the jury. He recognizes aggravated assault (§ 245, subd. (a) [assault with a
deadly weapon]) is not a lesser included offense of attempted murder. (People v. Parks
(2004) 118 Cal.App.4th 1,6; see People v. Dixie (1979) 98 Cal.App.3d 852, 856
[observing murder may be committed without committing an assault with a deadly
weapon or by means of force likely to cause great bodily injury, for example by
withholding food from an invalid]. Because of this, Ocampo contends it was unfair to

present the jury with the stark choice of convicting him of attempted murder or acquitting
him entirely, without consideration of aggravated assault as a lesser related offense.
              But instruction on lesser related offenses is not required as a matter of due

process. (Hopkins v. Reeves (1998) 524 U.S. 88; accord, People v. Birks (1998)
19 Cal.4th 108, 134-136 (Birks) [criminal defendant not “entitle[d] to instructions on
lesser offenses which are not necessarily included in the charge”], overruling People v.

Geiger (1984) 35 Cal.3d 510.) The prosecutor therefore may charge the case as she



                                              7
chooses and risk acquittal if the jury finds she has not met her burden of proof. As the
Supreme Court explained in Birks, it is the prosecutor’s “sole discretion to determine
whom to charge with public offenses and what charges to bring.” (Birks, at p. 134.) It
therefore follows that the trial court did not err in granting the prosecutor’s dismissal
request here.

C.     Credits
                The Attorney General concedes Ocampo is entitled to two additional days
of presentence custody credit to include the day he was taken into custody and the day of
sentencing. (People v. Lopez (1992) 11 Cal.App.4th 1115, 1124.) He is therefore
entitled to 741 days of custody credit from April 3, 2011 to April 12, 2013. The trial
court also awarded Ocampo 110 days of worktime credit, calculated at 15 percent

(§ 2933.1) on 739 days of presentence custody credit. The Attorney General contends the
two additional days of presentence custody credit should not yield an additional day of
worktime credit, since worktime credit is calculated at 15 percent. But 15 percent of
741 days is 111.15 days, not the 110 days of worktime credit the trial court awarded. In
sum, Ocampo is entitled to 741 days of presentence custody credit and 111 days of
worktime credit, which is three more days of total credit than the trial court awarded.

We modify the judgment accordingly. (§ 1260.)

D.     Ex Post Facto
                Ocampo argues the trial court violated the prohibition against ex post facto
punishment (U.S. Const., art. I, § 10; Cal. Const., art. I, § 9) by imposing a restitution fine
of $240 instead of $200. Section 1202.4 provided for a restitution fine between $200 and
$10,000 when Ocampo committed his offense. He infers from his request for the
minimum fine that the trial court intended to impose the statutory minimum, but


                                              8
mistakenly selected the $240 figure from the newly amended versions of sections 1202.4
and 1202.45. The claim is forfeited, however, because Ocampo did not object, and the
$240 amount is not otherwise appealable as an unauthorized sentence. (People v. Nelson
(2011) 51 Cal.4th 198, 227; People v. Scott (1994) 9 Cal.4th 331, 354.)
               Even overlooking the forfeiture, Ocampo’s claim fails. He relies on Peugh

v. United States (2013) 569 U.S. __, 133 S.Ct. 2072, where the federal sentencing
guidelines at the time of the defendant’s fraud offense recommended a 37 to 46 month
prison term, but the trial court sentenced him to 70 months consistent with a new

guideline range of 70 to 87 months. The high court explained that “applying amended
sentencing guidelines that increase a defendant’s recommended sentence can violate the
Ex Post Facto Clause, notwithstanding the fact that sentencing courts possess discretion

to deviate from the recommended sentencing range.” (Id. at p. 2082, italics added.) But
the court also explained the “touchstone” for an ex post facto violation “is whether a
given change in law presents a ‘“sufficient risk of increasing the measure of punishment
attached to the covered crimes.”’ [Citations.] The question when a change in law creates
such a risk is ‘a matter of degree’ . . . .” (Ibid.)
               The de minimus $40 amount here does not implicate ex post facto

concerns. As our Supreme Court has explained, this constitutional safeguard is based on
a policy of “fair warning” (In re Ramirez (1985) 39 Cal.3d 931, 938) “to prevent
unforeseeable punishment” (People v. Snook (1997) 16 Cal.4th 1210, 1221). The

$240 amount was well within the applicable range of punishment and not so different in
degree from $200 to trigger the ex post facto bar.




                                                 9
                                             III
                                      DISPOSITION
              The judgment is modified (§ 1260) to reflect presentence custody credit of
741 days and worktime credit of 111 days. As modified, the judgment is affirmed. The
trial court is directed to correct the abstract of judgment accordingly and to forward a

copy of the corrected abstract to the Department of Corrections and Rehabilitation.




                                                   ARONSON, ACTING P. J.

WE CONCUR:



FYBEL, J.



THOMPSON, J.




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