Opinion
B198951
8-8-2008
THE PEOPLE, Plaintiff and Respondent, v. JOSE ANTHONY OROZCO, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, and Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
A jury convicted Jose Anthony Orozco of two counts of attempted premeditated murder, with a finding as to one count that he had personally discharged a firearm and caused great bodily injury, and with a finding as to the other count that he had personally discharged a firearm. The jury found that both attempted murders had been committed for the benefit of a criminal street gang. The trial court sentenced Orozco to state prison for an aggregate term of 55 years to life, plus 20 years. We affirm.
FACTS
On October 20, 2004, Mario Calles and Freddy Hernandez (the victims) went to the Lankershim Food Mart in North Hollywood. While Calles and Hernandez were inside the store, Hernandez talked to Orozco and a male with "Angel" tattooed on his neck. After buying beverages, Calles and Hernandez left the store in Calless car.
Orozco and Angel got into Orozcos car and followed after Calles and Hernandez. When Calles stopped his car at a red light, Orozco stopped his car slightly behind and on the passenger side of Calless car. Orozco began "mad-dogging" Calles, and the male with the "Angel" tatoo began "mad-dogging" Hernandez. Orozco called Calles and Hernandez "little bitches," and Hernandez started laughing. At that point, Orozco pulled out a handgun and fired three or four shots at Calless car. One bullet cut Hernandezs scalp and another bullet struck Hernandez in the hand.
During the ensuing investigation of the shooting, police retrieved a surveillance videotape from the Lankershim Food Mart. Los Angeles Police Department Detectives Daniel Fournier and Joe Esquivel reviewed the videotape. Detective Fournier recognized Orozco; Detective Esquivel recognized Orozcos companion as Johnny Otoya.
The day after the shooting, Detective Fournier showed Hernandez two "six-pack" photograph lineups. In one lineup, Hernandez identified Orozcos photograph as the shooter. In the other lineup, Hernandez identified Otoyas photograph as the passenger in Orozcos car. Detective Fournier separately showed Calles two photograph lineups, and Calles also identified Orozco as the shooter, and Otoya as the passenger.
In March 2006, the People filed an amended information charging Orozco and Otoya with two counts of premeditated murder, with a variety of firearm enhancements alleged as to both defendants. The information further alleged that both defendants had committed the attempted murders to benefit a criminal street gang, and that Otoya had a prior strike conviction as well as convictions for which he had served prior prison terms. At a trial in March and April 2006, a jury acquitted Otoya, and could not reach a verdict on Orozco.
At Orozcos retrial during the summer of 2006, the prosecution presented substantial evidence establishing the facts summarized above. In addition to the evidence establishing the crimes, the prosecution presented the testimony of a gang expert, Los Angeles Police Department Officer Gary Pugliese, who explained the nature and criminal characteristics of Orozcos gang, the North Hollywood Boys, and offered his opinion that the shooting had been committed to benefit the gang. In his defense, Orozco called Johnny Otoya, who, as noted above, had been acquitted at the first trial. Otoya testified that he had been the shooter, and that he had shot at the victims car because he believed they were going to shoot at Orozcos car.
On August 17, 2006, the jury returned a verdict finding Orozco guilty of the attempted premeditated murder of Hernandez (count 1), with findings that he had personally discharged a firearm and caused great bodily injury, personally discharged a firearm, and personally used a firearm, and that the crime had been committed to benefit a criminal street gang. The jury also returned a verdict finding Orozco guilty of the attempted premeditated murder of Calles (count 2), with findings that he had personally discharged a firearm, and personally used a firearm, and that the crime had been committed to benefit a criminal street gang.
The trial court sentenced Orozco to state prison to an aggregate term of 55 years to life, plus 20 years, as follows: as to count 1, the court imposed a term of 15 years to life, plus 25 years for the finding that he had personally discharged a firearm and caused great bodily injury; as to count 2, the court imposed a consecutive term of 15 years to life, plus 20 years for the finding that he had personally discharged a firearm. The trial court stayed the sentences on the remaining enhancements.
Orozco filed a timely notice of appeal.
DISCUSSION
I.
Orozco contends his convictions must be reversed because the trial court improperly allowed the prosecutor to question the Peoples gang expert about Orozcos criminal history. We disagree.
A.
Los Angeles Police Detective Gary Pugliese was the Peoples final witness. He testified as a gang expert, and explained on direct examination the criminal activities of the North Hollywood Boys gang, including murder, attempted murder, carjacking and drug dealing. Detective Pugliese testified that he had investigated crimes committed by members of the North Hollywood Boys gang.
On cross-examination, Orozcos counsel asked Detective Pugliese whether he agreed that not every member of the North Hollywood Boys had committed murder, attempted murder, carjacking or drug dealing. Detective Pugliese agreed. Orozcos counsel also asked Detective Pugliese whether Orozco had ever been arrested for murder, attempted murder, carjacking or drug dealing. Detective Pugliese answered no.
The issue was revisited the next court day, and the court reiterated its ruling. As the court explained, the subject of Orozcos criminal history had been "opened up" by defenses questions which gave the impression that Orozco had "no part" in any of the criminal activities of the North Hollywood Boys gang.
B.
Orozco contends he did not open up the subject of his criminal history on cross-examination, and that this means the trial court erred when it overruled his objections to the prosecutors questions about his criminal history. The required result, concludes Orozcos argument, is reversal of both of his convictions. We find no error, and find no prejudice.
The extent of redirect examination of a witness is a matter within the trial courts discretion. (People v. Cleveland (2004) 32 Cal.4th 704, 745.) A trial court abuses its discretion when its decision is arbitrary or capricious or exceeds the bounds of reason, all the circumstances being considered. (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.) We simply cannot say the trial courts ruling exceeded the bounds the reason.
In our view, the trial court accurately concluded that Orozcos questions to Detective Pugliese — whether by design or by happenstance — gave the impression that Orozco had never actively participated in any criminal activities, notwithstanding his relationship with the North Hollywood Boys gang. Faced with this state of the evidence, the trial court did not capriciously or arbitrarily permit the prosecutor an opportunity to rebut the inference created by the defenses questions.
We also find the error, if any, to have been harmless under any standard of review. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836; Chapman v. California (1967) 386 U.S. 18, 24; People v. Samuels (2005) 36 Cal.4th 96, 113 [admission of character evidence against a defendant reviewed under Watson standard].) There was no dispute there was a shooting. There was no dispute Orozco was the driver of the car from which the shots were fired. The shots came from outside the passenger side of the victims car, from the location where Orozco had stopped his car. Both victims made unequivocal and consistent identifications of Orozco as the shooter. There was no dispute that Orozco was a member of the North Hollywood Boys gang. Detective Pugliese testified extensively on the criminal activities of the North Hollywood Boys gang, and his chronology of Orozcos criminal history was only a small part of his testimony. With or without the evidence of Orozcos criminal history, we do not view this as a close case.
Orozcos argument that he must have been convicted based on the evidence of his criminal history (because his first jury could not reach a decision) is supported by nothing more than speculation. Orozco has not pointed us to anything in the record which might tend to support his suggestion that a different result may have been reached had the jury not heard the evidence of his criminal history.
II.
Orozco contends his convictions must be reversed because the trial court improperly excluded one of his defense witnesses. We disagree.
A.
The prosecutions final witness, Detective Pugliese, completed his testimony on Thursday afternoon, August 10, 2006. The court was dark on Friday, August 11th. On Monday morning, August 14, the prosecutor advised the trial court that she had just received notice from Orozco that he intended to call a previously undisclosed witness, Raul Castaneda.
During an ensuing discussion, Orozcos counsel explained that, because the court had "allow[ed] certain things to come into evidence" during Detective Puglieses testimony, the defense intended to call Castaneda to testify about Orozcos "behavior and conduct" in the 2003-2004 time period, as well as to testify that it was not Orozco on the Lankershim Food Marts surveillance videotape. Orozcos counsel added that he had chosen not to call Castaneda to testify about the videotape at the previous trial, but now felt that Castanedas testimony had become relevant due the courts rulings and Detective Puglieses testimony about Orozcos criminal history. When the trial court asked whether one of the witnesses used during the prior trial could be used in lieu of Castaneda, Orozcos counsel answered that those witnesses were not familiar with Orozcos "family activities."
After listening to the argument, the trial court ruled that Castaneda would not be permitted to testify because the defense had failed to comply with its discovery obligations. The court expressly found that there was "[a]bsolutely no reason" for the late disclosure of Castaneda, and that the failure to disclose Castaneda had been "willful and intentional." The court further noted that the majority of Castanedas proposed testimony would be "cumulative" to testimony, which could be provided by other defense witnesses.
B.
Assuming the trial court erred by excluding Castaneda from testifying, we find the error harmless under any standard of review. (Cf People v. Watson, supra, 46 Cal.2d 818, 836; Chapman v. California, supra, 386 U.S. 18, 24; People v. Jackson (1993) 15 Cal.App.4th 1197, 1203-1204 [the exclusion of a witness due to a discovery violation did not infringe on defendants constitutional rights].) Orozcos arguments that Castanedas proposed testimony regarding Orozcos "family life" was critical to his defense are not persuasive. On the contrary, the record supports the trial courts observation that other witnesses could have provided (and later did provide) much of the same information. Defense witness James Meza testified that he had known Orozco for about twelve years, and had seen Orozco three or four times a month in 2003 through October 2004. Johnny Otoya testified that he socialized with Orozco and his family. We see no reason to reverse Orozcos convictions based on any error associated with Castanedas nontestimony.
III.
Orozco contends his convictions must be reversed because the trial court improperly allowed the prosecutor to question Johnny Otoya about his acquittal at the first trial. We disagree.
A.
As noted above, Otoya fell on the proverbial sword at Orozcos second trial, testifying that he had been the shooter. Otoya, of course, faced no repercussions from his testimony in light of his acquittal at the first trial. As the prosecutor argued when the issue of Otoyas testimony arose, Otoyas acquittal explained why he had "nothing to fear by taking the stand and taking the blame for the crime . . . . It shows that he can get up there, take the blame, hopefully allow his friend to walk and he has got nothing to worry about as far as being prosecuted for this crime." The prosecutor analogized the situation to a grant of immunity. The trial court agreed with the prosecutors argument, and ruled that Otoya could be questioned about his acquittal in the first trial.
On direct examination by Orozcos counsel, Otoya testified: " . . . I came in here to tell the truth. Its not fair that my friend gets prosecuted for something he didnt do. I am the one that did this and I cant, you know, see somebody else go to jail for something they didnt do." On cross-examination, in response to the prosecutors questions, Otoya conceded (1) he and Orozco had been charged and tried in an earlier case; (2) he did not tell anyone at that time that Orozco was innocent; (3) he had not said anything earlier on behalf of his friend, Orozco, even though he was now professing concern about protecting him; (4) he wanted the first jury to believe that he was innocent; (5) he knew that the first jurys verdict meant that he would not have to face any charges based on his testimony.
B.
The trial court did not err in allowing the prosecutor to challenge Otoyas credibility with evidence of his prior acquittal. The prosecution and the defense may, of course, present evidence relevant to the credibility of a witness, subject to the rules of evidence. (People v. Harrison (2005) 35 Cal.4th 208, 229.) The trial courts evidentiary decisions are reviewed for abuse of discretion. (Id. at pp. 229-230.) In determining the credibility of a witness, the trier of fact may take into consideration any matter that has a tendency in reason to prove or disprove the truthfulness of the witnesss testimony, including the existence of a motive for his testimony. (People v. Harris (2005) 37 Cal.4th 310, 337; see also Evid. Code, § 780.)
We do not find the trial courts ruling beyond the bounds of reason. On the contrary, Otoyas acquittal was extremely relevant in our view on the issue of Otoyas truthfulness. Evidence of his acquittal explained why Otoya might exculpate Orozco and declare himself to have been the shooter.
Orozcos attempt to create a constitutional issue is not persuasive. The evidence of Otoyas acquittal did not render Orozcos trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439.)
IV.
For the reasons explained above, we reject Orozcos contention that his convictions must be reversed because the cumulative errors discussed above deprived him of his constitutional rights to due process and a fair trial. We have rejected Orozcos assignments of error, and, for this reason, find his trial was not fundamentally unfair.
V.
Orozco contends the jurys finding that he discharged a firearm and caused great bodily injury must be reversed because the evidences does not support the finding that victim Hernandez suffered "great bodily injury." We disagree.
A.
In addressing a defendants claim of insufficient evidence on appeal, the reviewing court must consider the evidence in a light most favorable to the judgment, and presume the existence of every fact in support of the judgment. (People v. Gaut (2002) 95 Cal.App.4th 1425, 1430.) The testimony of a single witness is sufficient to support a jurys verdict. (People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) The jurys assessment of the credibility of the witnesses is binding on the reviewing court. (People v. Huston (1943) 21 Cal.2d 690, 693.)
B.
During the prosecutions case, Hernandez testified that Calles drove him to Valley Presbyterian Hospital after the shooting. Hernandez testified that he received stitches on his head and a splint for his hand. The stitches remained in Hernandezs head for about one month, and he wore the splint for three weeks. Hernandez testified that his wounds caused him "a lot of pain," that he continued to experience "pain" in his hand, and had "problems" using his hand. During the defense case, Dr. Deborah Volk testified that she treated Hernandez at the hospital for two "linear scalp lacerations," and a "circular opening between the thumb and the index finger," with an "exit wound" on the palm. The lacerations were approximately five inches long and "moderately deep." Dr. Volk offered her opinion that the Hernandezs scalp wounds were "[m]ild to moderate" injuries, and that his hand wounds were "[m]oderate."
C.
The evidence summarized above is sufficient to sustain the jurys finding of great bodily injury. Penal Code section 12022.7, subdivision (f), defines great bodily injury as "a significant or substantial physical injury." This definition does not require a victim to suffer permanent or prolonged or protracted disfigurement, or impairment or loss of bodily function. (People v. Escobar (1992) 3 Cal.4th 740, 750.)
The type of gunshot wounds suffered by Hernandez are sufficient to support the jurys finding of great bodily injury. (People v. Wolcott (1983) 34 Cal.3d 92, 107-108 [gunshot wounds for which victim who was treated and released and who went to work the next day]; People v. Mendias (1993) 17 Cal.App.4th 195, 205-206 [gunshot wound to thigh for which victim was treated and released the next day]; People v. Lopez (1986) 176 Cal.App.3d 460, 463-465 [gunshot wounds to two victims, one into the "right cheek of the hip" and the other through the thigh].)
Orozco contends the jurys great bodily injury finding must be reversed because Dr. Volk, "[t]he only medically trained witness [at trial], described Hernandezs injuries as `moderate, at worst." Assuming there is a difference between Dr. Volks use of the word "moderate" on the one hand, and the statutory language of "significant or substantial" on the other hand, we reject Orozcos implicit proposition that a doctors testimony is binding on a jury. No authority is offered in support of this proposition, and we decline to limit the jurys fact-finding role by imposing such a limitation. The cases support the conclusion that a jury is within its fact-finding prerogative to consider gunshot wounds that require medical treatment and hospitalization to constitute great bodily injury.
DISPOSITION
The judgment is affirmed.
We concur:
COOPER, P. J.
RUBIN, J. --------------- Notes: With regard to Orozcos first trial, the record shows that, when the trial court inquired about the jurys deadlock (without disclosure of which way the jurors were leaning), the jury foreman indicated that the jurors were deadlocked 10-2.