Filed 6/20/17 P. v. Ortega CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

v.

ROSMAN ORTEGA,

Defendant and Appellant.
D068920



(Super. Ct. No. SCD235496)

APPEAL from a judgment of the Superior Court of San Diego County, Peter C. Deddeh, Judge. Affirmed.
Laura P. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, Stacy Tyler, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted Rosman Ortega of the first degree murder of Jesus Enriquez (Pen. Code, § 187, subd. (a); count 1) and attempted murder of Jesus's sister, Isabel
(§§ 664, 187, subd. (a); count 2). It found true allegations as to both counts that Ortega was a principal and that at least one principal used a firearm, causing great bodily injury or death to a person (§12022.53, subds. (d), (e)(1)), and Ortega intentionally and personally discharged a firearm, causing great bodily injury or death to a person
(§ 12022.53, subd. (d)). It also found true that Ortega committed count 1 for the benefit of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)) and that he committed count 2 in a willful, deliberate, and premeditated manner (§ 189). The court sentenced Ortega to 82 years to life in state prison as follows: 25 years to life each on count 1 and its firearm use allegation plus seven years on count 2, and 25 years on count 2's gun use allegation.
Ortega contends: (1) insufficient evidence supported the count 2 verdict, as no evidence showed he had the intent to commit attempted murder; (2) the trial court erroneously admitted into evidence certain statements he made to his wife, Susan Lakoske, in violation of the marital communication privilege; (3) the court erroneously excluded certain impeachment evidence, thus violating his constitutional rights to confrontation, cross-examination, due process, and a fair trial; and (4) the court's comments to the jury minimized the jury instructions' importance. Finding no error, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution's Case
On May 31, 2007, Reuben Rodriguez, also known by the moniker "Wacko", a member of the City Heights Juniors street gang, was fatally shot by a rival gang member. As a result, Ortega, who also belonged to the City Heights Juniors gang, became emotionally upset.
Isabel testified about the June 6, 2007 incident involving Jesus's death: She was driving a car accompanied by Jesus, who was 20 years old and belonged to the Diego Azteks gang in San Diego. Although Isabel was stopped at a red light, Jesus suddenly screamed at her to go. She turned around and saw a man wearing dark clothing, gloves, and a bandana covering his face standing at her car's passenger window and pointing a semiautomatic gun at Jesus. The man shot Jesus and afterwards pointed the gun at Isabel. But he ran away without shooting at her. Jesus died from the gunshot wounds. Isabel's legs and right hand were wounded. After she received surgery, she initially could not walk, write or type; therefore, she was forced to quit work and school. She later recovered. Three other witnesses who were stopped at the intersection where the crimes occurred, testified that a man wearing dark clothes got close to Isabel's car and fired several gunshots into the car. The person got back into a vehicle that sped away.
San Diego County Sheriff's officers recovered five expended .45-caliber shell casings and bullets from the crime scene, and a sixth casing from Isabel's vehicle. A bullet was recovered from Jesus's autopsy. The gun used in the crime was a .45-caliber Ruger, a semiautomatic weapon whose magazines could carry only seven bullets. Based on analysis of DNA found on one of the casings, Ortega could not be excluded as a DNA contributor.
Claudia Garcia, Rodriguez's widow, testified that at the viewing of Rodriguez's body she was distraught, and Ortega told her that he had killed Jesus, who had killed Rodriguez. At the end of July 2007, Garcia told detectives about Ortega's confession.
Lakoske testified she knew some members of Ortega's gang, including Jesus. Earlier on the day of the crimes, some of Ortega's fellow gang members briefly visited Ortega's apartment two separate times. The first time, they gave him a .45-caliber Ruger; the second time, they told him they knew the whereabouts of "this fool" who had killed Rodriguez, and asked if he wanted to "go along and take care of this fool." Ortega got dressed in dark clothing and gloves, took the gun and left with them.
Ortega and his companions returned to the apartment in a rush approximately two hours later. He tossed his jacket to Lakoske, telling her to "wash it or just do something with it." He proceeded to wash his hands. He later told her the jacket needed washing because it had gun powder on it. Lakoske asked him what they had done, and he answered, "We took care of this fool." Ortega went outside and chatted with his companions, who stayed at the apartment for approximately two hours. From inside the apartment, Lakoske overhead one of them say to Ortega, "I didn't want to see that fool die." Ortega replied, "Fuck that fool."
At one point, Ortega went inside the apartment and Lakoske asked him what they had done. Ortega said he had "shot that fool," referring to Jesus. According to Lakoske, Ortega told her: "They were following the victim in the car, and that they pulled up right beside them, that [Ortega] got out and walked around the vehicle" and "shot [Jesus] point blank in his chest." Ortega specified that they followed the victim's car on Skyline Drive, and the shooting happened on Canton Drive. Ortega told Lakoske that "there was a female driving and that he didn't want to shoot her at first, but then he started—he thought about witnesses. And he just told [Lakoske] that he shot her in the leg, or somewhere on the bottom." Lakoske originally was incredulous about the incident, but that night she saw the news report about it. Ortega described the shooting to Lakoske as "wacko for a wacko."
Lakoske testified that after this incident, Ortega became very popular and more respected in his gang. She later helped him dispose of the gun. She admitted she previously was convicted of possession of cocaine for sale and robbery. She also had used methamphetamine; however, she had been clean and sober since February 2014.
A medical examiner testified that Jesus had suffered six separate gunshot wounds, and he had exit wounds for each of the bullets. Five of those bullets could have hit someone seated to Jesus's left during the incident. One bullet was lodged in Jesus's arm. The medical examiner concluded Jesus's death was a homicide.

Defense Case
Ortega's older sister testified that he always wore glasses. Nathan Cooper, an ophthalmologist, testified that in 2013, he evaluated Ortega at the defense's request and concluded Ortega needed eyeglasses because he was nearsighted. Dr. Cooper agreed with the prosecutor's statement that someone who is nearsighted can see a human body from a distance of three or four feet.
Blaine Kern, director of a DNA lab, testified that the DNA found on a shell casing (exhibit 43) was "very weak low level sample," and came from two individuals. The prosecution asked Kern: "Based on your training and experience and the analysis that you did, would you agree or disagree with the assumptions of the San Diego Sheriff's crime lab for population generated for [exhibit] 43?" Kern stated that he disagreed.
DISCUSSION
I.
Sufficient Evidence Supported the Attempted Premeditated Murder Conviction
Ortega does not challenge his conviction for murdering Jesus, conceding that "the shooter clearly intended to kill Jesus." Instead, Ortega argues based on Lakoske's testimony that he did not intend to kill Isabel but only shoot her legs.
" 'The standard of appellate review for determining the sufficiency of the evidence is settled. On appeal, " 'we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.]" [Citation.] In conducting such a review, we " 'presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.]" [Citations.] "Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence." ' " (People v. Harris (2013) 57 Cal.4th 804, 849.) "If our review of the record shows that there is substantial evidence to support the judgment, we must affirm, even if there is also substantial evidence to support a contrary conclusion and the jury might have reached a different result if it had believed other evidence." (People v. Riley (2015) 240 Cal.App.4th 1152, 1165-1166.)
The crime of attempted murder includes the element of a specific intent to kill. (People v. Visciotti (1992) 2 Cal.4th 1, 56.) "Intent to unlawfully kill and express malice are, in essence, 'one and the same.' [Citation.] To be guilty of attempted murder . . . , defendant had to harbor express malice toward th[e] victim. [Citation.] Express malice requires a showing that the assailant ' " 'either desire[s] the result [i.e., death] or know[s], to a substantial certainty, that the result will occur.' " ' " (People v. Smith (2005) 37 Cal.4th 733, 739 (Smith).)
Whether the defendant harbored the specific intent to kill may be inferred from the facts and the circumstances surrounding the act. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.) Thus, the nature of an assault, the weapon chosen, the manner in which the weapon was used, the actual consequences of the assault, including the nature of the wound, can all provide evidence of the intent to kill necessary for attempted murder. (See id. at p. 946.) For example, firing a gun toward a victim at close range "in a manner that could have inflicted a mortal wound had the bullet been on target is sufficient to support an inference of intent to kill." (Id. at p. 945.) That "the victim may have escaped death because of the shooter's poor marksmanship [does not] necessarily establish a less culpable state of mind." (Ibid.) In addition, "even if the shooting was not premeditated, with the shooter merely perceiving the victim as 'a momentary obstacle or annoyance,' the shooter's purposeful 'use of a lethal weapon with lethal force' against the victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill." (Smith, supra, 37 Cal.4th at p. 742.)
Viewing the evidence in the light most favorable to the judgment as we must, there was sufficient evidence to support the attempted murder conviction. From a close range, Ortega targeted Jesus who was a passenger in the limited confines of a car. Ortega unloaded his weapon, firing seven bullets. All but one of the bullets passed through Jesus. It was reasonable to conclude that Isabel, seated immediately to Jesus's left, would also be hit by a bullet. In fact, the medical examiner testified that was possible based on Jesus's exit wounds. Isabel actually suffered severe bullet wounds requiring surgery. Lakoske testified that Ortega recognized that Isabel would be a witness to his crime, and therefore he also had to shoot her. Crediting Lakoske's testimony, Ortega's purposeful use of a lethal weapon against the victims permits us to infer he intended to kill Isabel, whom he could have regarded as a "momentary obstacle or annoyance." (Smith, supra, 37 Cal.4th at p. 742.)
We are unconvinced by Ortega's argument that because he did not target Isabel, he lacked the intent to commit attempted murder. A person can be guilty of attempted murder if the person purposely creates a kill zone intending to kill, not a specific target, but anyone present within the kill zone. (People v. Stone (2009) 46 Cal.4th 131, 140 [describing, as an example, a terrorist who places a bomb on a commercial airliner intending to kill as many people as possible without knowing or caring who they are].) Similarly, when a defendant fires a gun at a group of people with the intent to kill a primary target in that group, a charge of attempted murder of someone else in the group can be sustained if " 'the nature and scope of the attack, while directed at a primary victim, are such that we can conclude the perpetrator intended to ensure harm to the primary victim by harming everyone in that victim's vicinity.' " (People v. Bland (2002) 28 Cal.4th 313, 329-330.)
The kill zone theory typically applies where a defendant uses a means of lethal force that is designed to kill not only the target, but necessarily or inevitably another individual or group of individuals around the target. (E.g., People v. Bland, supra, 28 Cal.4th at pp. 330-331 [firing a "flurry of bullets" at a fleeing car containing the driver and passengers]; Smith, supra, 37 Cal.4th at pp. 736-737 [firing a single bullet through the rear windshield at two individuals in the car within the direct line of fire]; see also People v. Leon (2010) 181 Cal.App.4th 452, 464 [upholding two counts of attempted murder convictions of defendant who fired into the rear taillight of a vehicle with two victims both seated directly in his line of fire].) Here, the jury could reasonably conclude that Jesus was Ortega's primary target, but by creating a kill zone encompassing Isabel, Ortega had a concurrent intent to kill her by his act of firing seven bullets in a vehicle in which the two victims were side by side and in his line of fire.
II.
The Marital Privilege Did Not Bar the Challenged Aspects of Lakoske's Testimony
Ortega contends that under Evidence Code sections 980 and 917, "[t]he following statements, made in confidence by [him] to his wife, should have been excluded: 1) [his] order to [her] to wash his jacket; 2) his statement, 'We took care of this fool,' and later statement that he 'had shot that fool[;]' [3)] [his] explanation they were following the victim on Skyline Drive, pulled up right beside the car on Canton, [he] got out, walked around the car, then shot the victim [ ], point blank in the chest; [4)] that there was a female driving, and he didn't want to shoot her at first, but then he thought about witnesses and shot her in the leg[;] and finally [5)] his statement referring to the crime as 'a Wacko for a Wacko[.]' " (Internal citations omitted.)
Ortega moved in limine to exclude Ortega's statements to Lakoske under the marital communication privilege. After reviewing a transcript of Lakoske's grand jury testimony, the court denied the motion, reasoning that Ortega had made incriminatory statements to his fellow gang members, which Lakoske had overheard. Therefore, Ortega's separate statements to her regarding his involvement in the crime were not protected by the marital privilege.
As a general matter, the claimant of the confidential marital communication privilege has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the claim. Evidence Code section 980 states: "Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital or domestic partnership relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he or she claims the privilege and the communication was made in confidence between him or her and the other spouse while they were spouses."
"To make a marital communication ' "in confidence," one must intend nondisclosure [citation] and have a reasonable expectation of privacy.' [Citation.] Both factors must be shown before invocation of the marital privilege will be honored." (People v. Von Villas (1992) 11 Cal.App.4th 175, 220-221 (Von Villas).) The marital communication privilege is waived if the holders of the privilege, without coercion, have "disclosed a significant part of the communication" or have "consented to disclosure made by anyone." (Evid. Code, § 912, subd. (a); see Von Villas at p. 223 [marital communications privilege waived by couple "speaking very loudly to one another" in prison visiting area because they knew or should have known third parties were present].) Because privileges "prevent the admission of relevant and otherwise admissible evidence," they "should be narrowly construed." (People v. McGraw (1983) 141 Cal.App.3d 618, 622.)
Immediately after committing the crimes, Ortega stayed in the apartment yard and openly discussed the crime with his friends, such that Lakoske could overhear them. They discussed Ortega's shooting of Jesus, and Ortega's reaction to one of his companion's unease with the killing. Therefore, Ortega had no reasonable expectation of privacy when he separately discussed the same matters with Lakoske. He waived the privilege by his disclosure, and he could not have intended to restrict his disclosure of confidential information. Even assuming arguendo the trial court erred by admitting Lakoske's testimony, we conclude the error was harmless under any standard; certainly under the test set forth in People v. Watson (1956) 46 Cal.2d 818 (see Von Villas, supra,10 Cal.App.4th at p. 268 [decision to admit or exclude evidence lies within discretion of trial court and erroneous decisions are tested under Watson harmless error standard] ), but even under the more rigorous test set forth in Chapman v. California (1967) 386 U.S. 18 (see Neder v. United States (1999) 527 U.S. 1, 18 ["Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?"] ).
Arguably the most incriminating portion of Lakoske's challenged testimony related to Ortega telling her that during the incident he realized Isabel was a potential witness, and decided to shoot Isabel's legs. That testimony goes directly to Ortega's intent. However, we conclude that even if this testimony were excluded from the trial, the conviction for attempted murder would be unaffected. As our analysis above shows, Ortega's intent is inferred from the facts and the circumstances surrounding the act and under the kill zone theory he had a concurrent intent to kill both Jesus and Isabel. Separately, any possible prejudice to Ortega from his telling Lakoske to wash his jacket because it had gunpowder on it was undermined by other evidence linking him to the crime, including his attire, the fact he was given the gun used in the crime, his DNA found on the bullet casings connected him to the crime, and testimony that he and his friends discussed that he was the shooter.
III.
Impeachment Evidence Was Properly Excluded
Ortega contends the court erroneously excluded impeachment testimony that he had proffered regarding Lakoske's past conduct, thus violating his constitutional right to confrontation, cross-examination, due process, and a fair trial. Ortega specifically contends Lakoske committed crimes of moral turpitude as her "receipt of benefits while failing to declare outside income constituted a basis for a charge of welfare fraud. . . . Similarly, her conversion of [his] Supplemental Security Income checks to her own use constituted a basis for a charge of forgery or theft." (Italics omitted.)
During Lakoske's cross-examination, Ortega's counsel asked her whether "from 2007 to 2013 [she had received] Aid for Families with Dependent Children." The prosecutor objected without specifying any grounds, and the court sustained the objection without explanation.
"[W]e review the ruling, not the court's reasoning, and, if the ruling was correct on any ground, we affirm." (People v. Geier (2007) 41 Cal.4th 555, 582.) We conclude that under Evidence Code section 352, the court did not err in exercising its discretion to exclude evidence whose "probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Evidence is probative if it has a tendency in reason to prove or disprove any disputed fact. (People v. Prince (2007) 40 Cal.4th 1179, 1237.) Under Evidence Code section 352, evidence is not prejudicial merely because it harms a party's position or helps the other party's position. (People v. Scott (2011) 52 Cal.4th 452, 490.) Relevant evidence can properly have that effect. (Ibid.) Rather, evidence is prejudicial under Evidence Code section 352 when it uniquely tends to evoke an emotional bias against a party while having only slight probative value on the issues. (People v. Carter (2005) 36 Cal.4th 1114, 1168.) Alternatively stated, evidence is unduly prejudicial and should be excluded when it is of such a nature as to inflame the emotions of the trier of fact so that it uses the information not to logically evaluate the relevant issues, but to instead reward or punish one party because of an emotional reaction. (Scott, at p. 491.)
An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. We will not reverse a court's ruling on such matters unless it is shown the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (See People v. Vargas (2001) 91 Cal.App.4th 506, 545, 543 [trial courts "have wide discretion in determining the relevancy of evidence"; no abuse of discretion under Evidence Code section 352 unless the court " ' "exceeds the bounds of reason, all of the circumstances being considered" ' "].)
Here, the trial court's rulings fell within the permissible exercise of its discretion. To have permitted defense counsel to pursue the matter of Lakoske's purportedly improper receipt of government assistance would have required a time-consuming trial within a trial because witnesses to her actions would have been called to testify. Further, there was no constitutional violation because ordinary rules of evidence generally do not infringe on the right to present a defense. (People v. Gurule (2002) 28 Cal.4th 557, 620 [argument that restricted cross-examination violated rights to confrontation, due process, and a fair trial rejected]; accord, People v. Abilez (2007) 41 Cal.4th 472, 503 [discretionary evidentiary ruling did not violate right to present a defense]; People v. Cunningham (2001) 25 Cal.4th 926, 999 [exclusion of defense evidence on a subsidiary point is not a deprivation of due process].)
Moreover, in the context of the entire trial, the excluded evidence's probative value was minimal. As Ortega concedes, other impeachment testimony in the record portrayed Lakoske in an unsavory light. Specifically, Lakoske admitted helping Ortega dispose of a gun used in the crime; she also previously used drugs, and was convicted of drug-related and other crimes. Thus even without the challenged testimony, we conclude the jury had sufficient basis for evaluating Lakoske's credibility and viewing her testimony with caution.
IV.
The Court's Comments Regarding the Jury Instructions
Ortega contends that by commenting twice on its duty to give the jury instructions the trial court made statements contrary to law and minimized the instructions' importance. Ortega concedes he did not object to the comments but contends his claim is cognizable on appeal because the court committed structural error.
While instructing the jury, the court interjected: "In these instructions that we read to you, I think I told you at the beginning of trial, I am reminding you that we are required to do this. It's not something that we relish or that we particularly want to do, but we are required by law to read them to you and then we give them to you for you to read again if you choose to do so." Next, before closing arguments, the court told the jury: "Okay. You all survived that. I see couple people [sic] nodded off. I almost nodded off. So we're going to come back at 12:00 and this will be much more interesting because you will hear from the attorneys. At 1:30. I am so spaced out from reading these instructions. So come before 1:30 and you will hear from the attorneys and be much more interesting [sic] than me reading the jury instructions. I guarantee."
We conclude the contention is forfeited because "objections to noninstructional statements or comments by the trial court must be raised at trial or are waived on appeal." (People v. Anderson (1990) 52 Cal.3d 453, 468.) In any event, the claim also fails on the merits under the controlling authority of People v. Pinholster (1992) 1 Cal.4th 865. The appellant in that case objected to these statements by the trial court: "This is the time in the trial of the guilt phase of this matter for the court to read you the instructions. I am required by law to read these to you. It is not one of the real interesting and exciting ways to spend a morning, but it is of utmost importance. [¶] As I say, it is also required by law. [¶] You will find these instructions somewhat complex. Let me tell you in advance that I am going to give these instructions to you prior to your going into the jury room to deliberate. So when you do go into the jury room to deliberate, you will have the exact copy from which I have read. So you might want to consider the possibility of not taking notes during these readings because you will have the exact instructions in there. [¶] If it helps you to remember and focus on what we are doing here to take notes, obviously you are free to do that. [¶] In my 16 years of dealing with criminal law in one part of it or another, I have never encountered a situation where it was necessary to give this many instructions. The most instructions that I have ever given . . . is probably half this many." (Id. at p. 953.)
The California Supreme Court dismissed appellant's challenge to the court's comments: "Both the trial court and the prosecutor commented to the jury on the length and complexity of the jury instructions. Defendant complains these comments produced basic misapprehensions about the importance of the jury instructions, in violation of his state and federal constitutional rights to due process, fundamental fairness, an unbiased jury, and a reliable determination of penalty." (People v. Pinholster, supra,1 Cal.4th at
p. 953.) It ruled, "There is absolutely no merit to defendant's complaint that the italicized language . . . suggested that the jury was not expected to bother to understand or follow the instructions, in violation of his rights to due process, fundamental fairness and an unbiased jury. It is patently clear the court was soliciting the jury's patience and assiduity in trying to understand the volume of instructions." (Ibid.) Likewise here, the court was merely soliciting the jury's forbearance with the lengthy instructions, and contrasting his reading of the instructions with the more engaging closing arguments. There was no error.




DISPOSITION
The judgment is affirmed.


O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


DATO, J.