Filed 3/11/22 P. v. Orozco CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
| THE PEOPLE,
Plaintiff and Respondent,
v.
HECTOR OROZCO,
Defendant and Appellant.
| B310073
(Los Angeles County Super. Ct. No. SA024705) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Yvette Verastegui, Judge. Affirmed.
Christopher Lionel Haberman, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
In 1996, the Los Angeles County District Attorney charged defendant and appellant Hector Orozco (defendant) and two co-defendants with robbery and two counts of assault with a deadly weapon causing great bodily injury (Pen. Code,[1] § 245, subd. (a)(1)). Defendant was found guilty of robbery and one of the assault with a deadly weapon counts. The trial court found true allegations defendant had served prison terms for three prior felony convictions, and sentenced him to six years in prison. Another panel of this court affirmed the judgment in an unpublished opinion. (People v. Rodarte (Mar. 20, 1998, No. B107475) [nonpub. opn.].)
In October 2020, defendant moved to vacate his conviction and sentence pursuant to section 1473.7(a)(2), citing newly discovered evidence.[2] Defendant’s motion stated he watched an episode of the television show “City Confidential” and learned Detective Linda Brown (Brown), the lead detective in his case, had been found guilty of attempted voluntary manslaughter. Defendant further argued he read People v. Brown (2000) 83 Cal.App.4th 1037, the opinion that affirmed Brown’s conviction and sentence, and learned Brown lied to detectives, committed misdemeanors, engaged in a course of denial and cover-ups, and destroyed evidence in her own case, all while working on the case against defendant. Defendant claimed he was innocent and asserted Brown fabricated evidence in his case.
The trial court denied defendant’s motion. The court acknowledged information regarding Brown’s conviction for attempted voluntary manslaughter might be new information learned by defendant, but the court found it was not sufficient to qualify as newly discovered evidence of actual innocence. The court further found, based on the facts as summarized in the unpublished opinion affirming defendant’s conviction, that there was no evidence Brown influenced either of defendant’s victims who identified defendant as the perpetrator of the crimes of conviction.
Defendant noticed an appeal from the denial of his section 1473.7 motion. This court appointed counsel to represent him and, after reviewing the record, defendant's attorney filed a brief raising no issues. We invited defendant to personally submit a supplemental brief, and defendant submitted an eight page brief arguing Brown’s unethical conduct warrants interviewing the crime victims to determine if Brown coerced their testimony. Defendant further contends his appointed attorney filed a brief raising no issues because his compensation is not sufficient to warrant further work, and argues communications from his attorney indicate the attorney has newly discovered evidence he has not proffered to the court for the same reason. Defendant’s brief attached letters from defendant’s attorney as exhibits.
The points defendant raises in his supplemental brief do not demonstrate he is entitled to relief. Section 1473.7(e)(1) provides a court “shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief specified in subdivision (a).” Defendant moved under section 1473.7(a)(2), and thus needed to establish by a preponderance of the evidence that “[n]ewly discovered evidence of actual innocence exists that requires vacation of the conviction or sentence as a matter of law or in the interests of justice.” Even assuming the information defendant more recently learned about Brown was new information, it is not newly discovered evidence—and certainly not evidence of actual innocence—pertaining to defendant’s case. Defendant’s assertion that his appointed attorney has new evidence he refuses to present because he is not being sufficiently compensated is unfounded. There is nothing in the record that suggests defendant’s attorney discovered new evidence of defendant’s actual innocence.
DISPOSITION
The order denying defendant’s motion is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
[1] Undesignated statutory references that follow are to the Penal Code.
[2] Defendant also filed a Petition for Writ of Habeas Corpus asserting the same substantive arguments in August 2020. The trial court denied his habeas petition.
