P. v. Orozco

Filed 3/14/07 P. v. Orozco CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William Lee Evans, Judge. Affirmed as modified.

Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Jose Othon Orozco of attempted murder (Pen. Code,  664, 187, subd. (a))[1], being an active gang member with a concealed firearm ( 12025, subds. (a)(2) & (b)(3)), street terrorism ( 186.22, subd. (a)), and possession of a firearm by a felon ( 12021, subd. (a)(1)), and found, inter alia, he committed attempted murder for the benefit of a criminal street gang and possessed a firearm as a felon for the benefit of a criminal street gang. On appeal Orozco contends (1) the prosecutor improperly cross-examined him; (2) insufficient evidence supported the allegation he committed any of his crimes for the benefit of a criminal street gang; (3) the court erroneously instructed the jury on flight after a crime; and (4) the court erroneously failed to award him presentence custody credit. We agree Orozco is entitled to presentence custody credit. In all other respects, we affirm the judgment.

FACTS

On the evening of January 2, 2004, Rafael Renteria, his girlfriend (Juana Rivas), and her 12-year-old daughter parked their vehicle near their residence. As Renteria left the vehicle and started walking, two men came from an apartment across the street and stopped him. One man asked Renteria where he was from; Renteria replied [he] lived there and he wasnt from anywhere. The man said his nickname was Tito, he was from Monos and just got out of jail, he did not recognize Renteria, and Renteria should be careful. Renteria asserted he had lived there for about three or four years and never had problems with anyone; he advised the man to confirm this with a resident named Leo. As Renteria raised his right arm to point toward Leos apartment building, the man shot him, saying, Monos. The shooter pointed the gun at Rivas and her daughter sitting in the vehicle before lowering the gun and walking away with his companion between two apartment buildings.

Rivas went to Renteria, applied pressure to his wound, and phoned 911. The responding officer found Renteria laying on the ground in the middle of the street screaming and a woman holding him in her arms crying. Renteria had wounds on his right chest, and . . . right shoulder blade. The chest wound went through his right lung and was life threatening.

The day before the shooting, Renteria had seen the shooter shirtless and noticed tattoos up to his neck. At the hospital after the shooting, Renteria chose Orozcos photograph from two separate photo lineups.[2] Rivas first identified a third party as the shooter, although her daughter shook her head no. Later, at the police station, Rivas identified Orozco as the shooter from a six-pack of photographs (and also subsequently identified him in court).

Four days after the shooting, at approximately 5:00 a.m., an officer discovered Orzoco lying on a reclined seat inside a van with the interior dome light on. The van was parked in front of its owners home. Backup officers arrived and ordered Orozco out of the vehicle; Orozco did not comply for a good 15 minutes. Orozco finally came out; he told the police, If I had a gun I would have shot you mfer. At trial he testified he was mad when he made that statement and was just blurt[ing] off.

Detective Victor Rubalcava, a four and one-half year veteran of the La Habra gang unit and presently assigned to a unit targeting the most hardened gang criminals for four north Orange County cities, was called to testify as a gang expert. A gangs guns are passed around between gang members and, once used in a crime, are hidden from discovery by law enforcement. If a local civilian replies noncommittally when asked by a gang member, Where are you from?, the gang member may react violently. If a gang member shoots at an innocent civilian, the gang member most likely intends to kill the person. Orozco, the Monoss leader at the time of Rubalcavas testimony, has tattoos showing his Monos affiliation, goes by the moniker, Tito, and does not hesitate to come out and deal with the situation . . . in front of him, whether it be verbal or violent. The Monos gang has committed homicide, assault with [a] deadly weapon, auto theft . . . , petty thefts, [and] fighting against other gangs. Rubalcava testified about (and the prosecutor submitted certified court documents regarding) two Monos members guilty pleas, respectively, to felony charges of auto theft committed for the gangs benefit and assault with a deadly weapon causing great bodily injury committed for the gangs benefit. More than 10 crimes had been committed by Monos members for the gangs benefit since its inception through the year 2004 and things are still happening to this day. Rubalcava opined Monos was a criminal street gang on January 2, 2004, Orozco was an active participant and the gangs leader, and the January 2 shooting was done to benefit and promote the gang.

Theresa Huerta testified for the defense that Orozco came to her house around 4:30 or 4:45 p.m. on January 2, 2004, ate dinner (during which time they heard sirens), then left around 7:00 or 7:30 p.m.

Orozco testified on his own behalf. He first claimed the Monos gang when he was 12 or 13 years old and committed his first violent crime at age 18 when he shot at an occupied house, a crime he committed for the benefit of the Monos gang. He served a prison term of six years for that crime. Since his release from prison, he had committed no violent crimes and no crimes for the benefit of Monos, but only parole violations such as being out on the corner . . . where [he lives]. He had been sent back to prison three times for violating parole by associating with gang members, testing positive for methamphetamine, and not reporting to his parole officer. He had also been arrested for being under the influence of heroin and for resisting arrest. Orozco defined the term respect as used in the gang culture as follows: Where we live . . . there is a lot of bullies and people that want to pick on you or act like theyre better than you. You dont let that happen. Monos members never commit crimes to gain respect in the community. Orozco knew of no Monos member who had sold drugs for the gang or stolen a car for the purpose of a drive-by shooting. He lied to the police by saying he was with his girlfriend, Marina, when the shooting took place. The reason he did not tell the police he was at the Huerta house, an admitted known hangout for Monos gang members, at the time of the shooting was to avoid a parole violation.

DISCUSSION

The Prosecutor Properly Cross-examined Orozco

Orozco contends the prosecutor improperly cross-examined him on subjects (such as violent past incidents and alleged Monos gang members) irrelevant to the instant case and not raised during direct examination. He argues such questions exceeded the scope of permissible cross-examination, were prejudicial, and violated his privilege against self-incrimination. Specifically, Orozco challenges the prosecutors queries concerning: (1) an incident involving a rival gang (the Peewees) where he rode a bicycle and shot a handgun when he was 12 years old, (2) an incident where Orozco, as a juvenile armed with a baseball bat, went with other persons to a rival gang house and yelled for a rival gang member to come out, and (3) various friends and relatives of Orozco who were in prison or on probation or had been killed or injured in gang-related activity. As discussed post, the prosecutor properly cross-examined Orozco; therefore, we need not address Orozcos further contention defense counsel rendered ineffective assistance by failing to object to such questions.

A witness may be cross-examined upon any matter within the scope of the direct examination. (Evid. Code,  773.) [W]hen a defendant takes the stand and makes a general denial of the crime with which he is charged the permissible scope of cross-examination is very wide. (People v. Saddler (1979) 24 Cal.3d 671, 679 [defendant denied crime by presenting alibi defense].) [C]ross-examination does not have to be confined to a mere categorical review of the matters, dates, or times mentioned in the direct examination . . . . (People v. Lanphear (1980) 26 Cal.3d 814, 834, disapproved on another point in People v. Balderas (1985) 41 Cal.3d 144, 188.) A defendant cannot limit the cross-examination to the precise facts concerning which he testifies. (People v. Cooper (1991) 53 Cal.3d 771, 822.) Cross-examination may be employed to elicit any information that may tend to overcome, qualify, or explain the testimony given by a witness on direct examination [citation] as well as to test his accuracy, recollection, knowledge or credibility. (People v. Butler (1967) 65 Cal.2d 569, 575, disapproved on another point in People v. Tufunga (1999) 21 Cal.4th 935, 938.)

With these precepts in mind, we consider the two incidents involving Orozcos gun- and bat-wielding activity as a juvenile. Evidence of these incidents contradicted Orozcos assertion on direct examination that he committed his first and only violent crime when he was 18 years old; therefore, the prosecutors questions concerning the incidents came within the scope of direct examination. Orozco argues the admission of other crimes evidence must be scrutinized with great care. But evidence of an unrelated offense may be introduced through cross-examination if it refutes a defendants statement made on direct examination. (People v. Harris (1981) 28 Cal.3d 935, 953.) Thus, evidence of Orozcos prior gang activity impeached his testimony on direct examination and was relevant to his motive for attempted murder. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)

We turn to the prosecutors line of inquiry concerning Orozcos friends and relatives imprisoned or otherwise impacted by gang activity. These questions came within the scope of Orozcos direct examination testimony that he was not an active Monos member in January 2004, but rather was an O.G. (an original gangster  i.e. older person), was never there anymore, spent his time working and having problems with his girlfriend and kids, and knew only 10 or 15 Monos gang members at that time, all of whom were in the 30- to 33-year-old age range.[3] The prosecutors questions concerning Orozcos friends and relatives refuted the foregoing assertions by Orozco and tested his credibility. For example, the prosecutor queried Orozco about a photo taken at his birthday party in 2002 or 2003 showing him with his then 16-year-old nephew (later imprisoned for attempted murder) and another 16-year-old Monos member (also convicted of attempted murder). The prosecutors queries also related to Orozcos direct examination testimony he did not know of any Monos member who had stolen a car to commit a drive-by shooting and that Monos members never commit crimes to gain respect in the community. Thus, the prosecutor asked Orozco about a Monos member who had been shot doing a drive-by. Like the questions about Orozcos prior gang activity, the prosecutors questions regarding Orozcos friends and relatives served to impeach his testimony on direct examination and were relevant to the knowledge and active participation elements of the street terrorism charge.

Accordingly, the prosecutors questions did not exceed the scope of permissible cross-examination and afford no basis for reversal.

Substantial Evidence Supported the Jurys Finding Orozco Committed Crimes for the Benefit of the Monos Gang

The jury found that Orozco committed the attempted murder and possessed a firearm as a felon for the benefit of a criminal street gang ( 186.22, subd. (b).)[4] A criminal street gang is defined in the statute, inter alia, as an ongoing organization, association, or group of three or more persons whose primary activities are the commission of one or more of the crimes specified in section 186.22, subdivision (e). ( 186.22, subd. (f).) Orozco contends insufficient evidence showed the Monos engaged in a primary activity of committing the specified predicate crimes. He asserts Rubalcava failed to opine regarding the primary activities of the Monos gang and there was a lack of proof that [Monos members] consistently and repeatedly have committed criminal activity listed in the gang statute . . . . Thus, he concludes the evidence was insufficient to show the Monos are a criminal street gang for whose benefit he committed his crimes and therefore the gang enhancement must be reversed.

We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence  that is, evidence which is reasonable, credible, and of solid value  such that a reasonable trier of fact could find . . . . the gang enhancement true. (People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224 [this standard of review applies to a claim of insufficiency of the evidence to support a gang enhancement].) We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Catlin (2001) 26 Cal.4th 81, 139.)

To qualify as a criminal street gang, the Monos must be shown to have committed one or more of the predicate crimes as a primary activity. The commission of such crimes must be one of the gangs chief or principal occupations, as opposed to an occasional event. (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.) A gangs primary activities may be proved by (1) a gang experts testimony or (2) evidence of past or present criminal acts by gang members, showing the members consistently and repeatedly have committed criminal activity listed in the gang statute. (Id. at pp. 323-324.)

Here, the requisite primary activity of the Monos gang was shown by expert testimony and past criminal acts. Rubalcava opined, without objection, that the Monos gang was a criminal street gang. As noted, the statutory definition of a criminal street gang includes the requirement that the gang have as one of its primary activities the commission of any of the enumerated predicate offenses. And based on a hypothetical which mirrored the facts of this case, Rubalcava also testified that in his opinion the crime described in the hypothetical would be a crime committed for the benefit of the gang. This testimony, received without objection, is by itself evidence which is reasonable, credible, and of solid value  such that a reasonable trier of fact could find . . . . the gang enhancement true. (People v. Johnson, supra, 26 Cal.3d 557, 578.)

Moreover, Rubalcava testified that Monos gang members engaged in numerous crimes such as homicide, assault with a deadly weapon with great bodily injury, automobile theft, attempted murder, and drive-by shooting offenses listed in section 186.22, subdivision (e). When asked whether numerous meant more than ten, Rubalcava replied, Oh, yes. Rubalcava specified the names of perpetrators of five of these criminal acts and the People submitted certified court documents as to two offenses. Although Rubalcava did not specifically use the term primary activity, the import of his testimony was clear: The Monos engaged in the commission of statutorily enumerated crimes as a chief occupation.

Orozco contends the evidence was insufficient to show the Monos consistently and repeatedly engaged in criminal acts because Rubalcava did not testify as to the date of each offense. (In his opening brief, Orozco points out the Monos have existed as a street gang for about twenty years.) But a gangs offenses need not be evenly spread over the life of the gang in order to support a primary activity finding. (People v. Vy, supra, 122 Cal.App.4th at pp. 1225-1226 [the fact that [the gangs] level of criminal activity lay dormant for most of its existence does not preclude a finding that it was a gang under the enhancement statute, where there was evidence of consistent and repeated criminal activity during a short period before the subject crime].) As of the time of trial, Rubalcava had served with the La Habra Police Departments gang unit for four and one-half years. The jury was entitled to infer that his intimate knowledge of the criminal activities of the Monos gang was acquired during that period, and thus accurately reflected the activities of the gang at the time Orozco committed his crimes.

Accordingly, we reject Orozcos assertion that the evidence was insufficient to sustain a finding that the primary activities of the Monos gang were the statutorily enumerated predicate offenses. Orozco raises no other challenge to the finding he committed his offenses for the benefit of a criminal street gang. Thus, there is no basis to overturn that finding.

The Court Properly Instructed the Jury with CALJIC No. 2.52 (Flight After a Crime)

Orozco contends the court erred by instructing the jury with CALJIC No. 2.52. The court gave the instruction as follows: The [flight] of a person [immediately] after the commission of a crime, is not sufficient in itself to establish [his] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.

Defense counsel objected to the flight instruction, arguing Orozco walked leisurely away from the scene and there was no police chase or run down. The prosecutor argued Orozco did not just casually walk away after gunning down the victim, given Orozcos belief he would be wanted by parole. The court noted Orozco did not return to his house after the shooting.

Section 1127c directs a trial court to instruct the jury with CALJIC No. 2.52 where evidence of flight of a defendant is relied upon as tending to show guilt . . . . The instruction is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) [T]he facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt. (People v. Mason (1991) 52 Cal.3d 909, 941.) Although flight does not require the physical act of running or escape to a distant haven, it does entail the purpose to avoid being observed or arrested. (People v.Visciotti (1992) 2 Cal.4th 1, 60.)

Here, the evidence supported the giving of the instruction. Rivas testified that immediately after the shooting, the shooter pointed the gun at her and her daughter, then he and his companion walked away between two apartment buildings. If believed, such testimony showed Orozco immediately left the scene of the shooting and did not try to check on or seek help for the person he had just shot. Orozco testified he did not go home on the evening of January 2 because he thought he had a [parole] violation coming for something (he had not thought about for what). Based on this testimony, the jury could reasonably infer Orozco stayed away from his home because he had shot Renteria. The evidence was sufficient to warrant instructing the jury to determine whether flight occurred, and, if so, what weight to accord such flight. [Citation.] Moreover, the instruction given adequately conveyed the concept that if flight was found, the jury was permitted to consider alternative explanations for that flight other than defendants consciousness of guilt. (People v. Bradford, supra, 14 Cal.4th at p. 1055.) The court did not err by giving the flight instruction.

Orozco is Entitled to 121 Days of Presentence Custody Credit

As both Orozco and the People agree, Orozco is entitled to 121 days of presentence custody credit.

DISPOSITION

The judgment is modified to grant Orozco 121 days of presentence custody credit. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, we affirm the judgment.

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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[1] All statutory references are to the Penal Code unless otherwise stated.

[2] When asked to identify Orozco in court, Renteria could not look in Orozcos direction, paused, and began to cry because he was afraid the Monos would kill him, as they had threatened to do. Ultimately, Renteria did identify Orozco in court as the man who shot him.

[3] Rubalcava testified the Monos gang had about 40 active members out of a total of 120 in January 2004.

[4] Pursuant to section 1385, subdivision (c)(1), the court struck punishment in the interest of justice on the gang enhancement attached to the attempted murder count. The court imposed a three-year midterm sentence on the gang enhancement attached to the possession of a firearm count but stayed execution of sentence on both the firearm possession and the gang enhancement pursuant to section 654. The court adopted a sentencing scheme, not challenged on appeal, that resulted in a prison term of 30 years to life. Thus, in the absence of a reversal and acquittal of the attempted murder count and its associated gun enhancement, Orozcos argument with respect to the gang enhancement, which resulted in only a three-year stayed sentence, is of interest mainly for academic reasons.