Opinion
F040845.
7-8-2003
THE PEOPLE, Plaintiff and Respondent, v. OSCAR OCHOA OBAD, Defendant and Appellant.
Andrew Cappelli, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Mathew K. Chan and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.
On February 13, 2002, the district attorney filed an information in the Kern Superior Court charging appellant Oscar Ochoa Obad with possession of a firearm by a convicted felon (Pen. Code, § 12021, subd. (a)(1)) (count 1), and receiving stolen property (§ 496, subd. (a)) (count 2). It was further alleged that appellant served a prior prison term for a felony offense, subjecting him to enhanced punishment pursuant to section 667.5, subdivision (b). Finally, the information alleged that the same prior conviction was a serious or violent felony, subjecting appellant to the provisions of sections 667, subdivisions (b)-(i), and 1170.12, subdivisions (a)-(e) (the three strikes law).
Further statutory references are to the Penal Code unless otherwise indicated.
A jury trial began on May 13, 2002. The following day, the jury found appellant guilty on count 1 and not guilty on count 2. After a bifurcated court trial on the prior conviction allegations, the court found the allegation that appellant suffered a prior conviction subjecting him to the provisions of the three strikes law to be true, and the prior prison term allegation to be not true. On June 11, 2002, the court sentenced appellant to state prison for a term of six years, composed of the upper term of three years doubled pursuant to section 667, subdivision (e). Appellant filed a timely notice of appeal.
On appeal, appellant contends that he was denied his constitutional right to effective assistance of counsel because his attorney failed to object to a police officer being deemed an expert and to the prosecutors argument which he contends misrepresented the officers testimony. We disagree with appellants contentions and will affirm the judgment.
FACTS
In January 2002, appellant lived with his mother, Maria Soledad Ochoa, at 132 Fremont. Ochoa testified at trial that on January 14, she was standing in the house about eight to ten feet from appellant when she saw him holding "something in his hands" that "looked like a pistol." Ochoa testified she couldnt be sure it was a pistol because she was nervous and appellant was holding it in his hands. The object Ochoa saw was "more or less ... between a gray color and black." A few minutes later, appellant, who was wearing a white shirt, blue pants and possibly a baseball cap, left the house with the object in his hand. Ochoa called the police.
Olga Garza, a public safety dispatcher at the local police department, received a call at approximately 1:30 p.m. on January 14, 2002. According to Garza, the caller, who identified herself as Maria Ochoa, stated that she was calling because her son Oscar had left the residence and he had a gun.
Officer Jeff Nacua of the local police department responded to Ochoas house about 1:30 p.m. As Officer Nacua drove up, he saw appellant walking at a normal pace from an alley behind 130 Fremont toward that residence. Appellant was cradling an object with both hands. Officer Nacua lost sight of appellant for about four seconds as appellant walked behind a fence. Then, Officer Nacua saw appellant walk away.
Officer Nacua took custody of appellant in the alley. Officer Nacua went to the spot where appellant had briefly disappeared from view. He discovered a pistol sitting on top of a small plant located next to the foundation, and near the door, of the house at 130 Fremont, about 10 feet away from where appellant reappeared. It was a black Beretta .380-caliber automatic pistol. The sky was overcast; it was cool and about 40 degrees outside. The ground was damp near where Officer Nacua found the pistol, and there were water droplets on the plant the pistol was laying on, but the pistol was completely dry and not "obviously cold" to the touch. Officer Nacua testified that he felt if the pistol had been there a significant time, it would also be very cold and have droplets of water on it. Officer Nacua, however, did not personally know how long the pistol had been there. The pistol was loaded, with a live round in the chamber and a full magazine. No fingerprints were found on the gun.
Immediately after recovering the pistol, Officer Nacua spoke with Ochoa through fellow officer Raul Alvizo, who was acting as an interpreter. Officer Nacua showed the gun to Ochoa, and Officer Alvizo asked her if it was the same gun appellant had when she saw him. She said, "yes, thats the gun he had." Officer Alvizo testified Ochoa did not appear hesitant when she said it was the same gun. At trial, Ochoa testified that she didnt know if the gun the officers brought "was the same one or if it wasnt." When asked if she told the officers it was the same object she saw in appellants hands earlier, Ochoa testified that since she did not see the object "very well," she couldnt tell if "it would have been the same one or not." Ochoa testified the gun the officers showed her looked "more or less" similar to the object she saw appellant holding in the house, and that she was nervous when the police showed her the gun. Ochoa testified she told police "I wasnt sure because I hadnt seen it well, I hadnt seen it close up, so I wasnt sure if it was the one he had or not."
Appellant was advised of his Miranda rights and agreed that Officer Nacua could speak to him about the incident. He denied having a gun and told Officer Nacua he never went onto the property at 130 Fremont Street.
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
Neither Emelda Gamboa, who lived at 130 Fremont Street, nor Alfred Moreno, who lived at 128 Fremont Street and owned the houses at 130 and 132 Fremont, which he rented out, knew how a gun might have come to be on the property. Moreno testified that about 1:30 p.m. on January 14, he saw someone running close to the exit of the gate by the alley. Moreno could not recall what the person was wearing, but thought it might have been "dark clothes at the time, maybe a blue, a black, but nothing positive."
Officer Nacua checked the serial number on the gun and discovered it was registered to George Becerra, who lived in the same town as appellant. Becerra had reported the gun stolen some four months before. He did not know who took it, and he did not know appellant.
The parties stipulated at trial that appellant had been previously convicted of a felony.
DISCUSSION
Appellant claims he was deprived of effective representation when his trial attorney failed to object to Officer Nacua being deemed an expert when he testified on redirect examination that, based on his training and experience, and his 17 years as a police officer, it was not possible that the gun could have been outside more than a day, because in his experience, "if you leave an item outside in the moisture, that ... same item will have usually the same amount of moisture that surrounds everything else." Appellant also claims his trial attorney was ineffective because he failed to object to the prosecutors statement during closing argument that "it had looked, in the officers professional opinion, as though the gun was placed there immediately," which he contends misrepresented this testimony. According to appellant, his trial attorneys alleged inadequate representation deprived him of what was certain to be a more favorable outcome.
Officer Nacuas testimony was:
"Q. Based upon your training and experience, 17 years as a law enforcement officer, is it possible that that gun could have been there more than a day?
"A. No, sir.
"Q. And why is that, based upon your training and experience?
"A. Ive seen in the past if you leave an item outside in the moisture, that that same item will have usually the same amount of moisture that surrounds everything else.
"Q. The surrounding area where the gun was found, it had this moisture?
"A. Yes, sir.
"Q. Part of the area or all of the area?
"A. The whole general area.
"Q. And this gun, did it have any moisture on it?
"A. No, it did not."
At the prosecutions request, and without objection by defense counsel, the jury was instructed with respect to Officer Nacuas testimony on this point with CALJIC No. 2.80: "A witness who has special knowledge, skill, experience, training, or education in a particular subject has testified to certain opinions. Any such witness is referred to as an expert witness. In determining what weight to give to any opinion expressed by an expert witness, you should consider the qualifications and believability of the witness, the facts or materials upon which each opinion is based, and the reasons for each opinion. [P] An opinion is only as good as the facts and reasons on which it is based. If you find that any fact has not been proved or has been disproved, you must consider that in determining the value of the opinion. Likewise, you must consider the strengths and weaknesses of the reasons on which it is based. [P] You are not bound by an opinion. Please give each opinion the weight you find it deserves. You may disregard any opinion if you find it to be unreasonable."
Appellant was not denied effective assistance of counsel because appellant has not shown that he was prejudiced by counsels failure to object either to Officer Nacuas testimony or the prosecutors statement during closing argument. For this reason, we need not discuss whether counsels conduct was deficient. (In re Jackson (1992) 3 Cal.4th 578, 604, 835 P.2d 371, disapproved on other grounds inIn re Sassounian (1995) 9 Cal.4th 535, 545, fn. 6, 887 P.2d 527 [no need to take a position on the quality of appellants representation because he suffered no prejudice]; People v. Riel (2000) 22 Cal.4th 1153, 1175, 998 P.2d 969 [to succeed on a claim of ineffective assistance of counsel, defendant must show counsels performance was deficient when reviewed by an objective standard of reasonableness under prevailing professional norms and defendant must show prejudice, i.e., that it is reasonably probable, but for counsels failings, the result would have been more favorable to defendant].)
We note that arguably, Officer Nacuas testimony was admissible as the opinion of a lay witness. (People v. Farnam (2002) 28 Cal.4th 107, 153 ["A lay witness may testify to an opinion if it is rationally based on the witnesss perception and if it is helpful to a clear understanding of his testimony"].) Moreover, the prosecutors comment on Officer Nacuas testimony was arguably a fair comment on the evidence. (People v. Hill (1998) 17 Cal.4th 800, 819, 952 P.2d 673 [prosecutor is given "wide latitude" during argument and may make a vigorous argument as long as it amounts to a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom].) However, even if the testimony was not admissible, and the prosecutors comment constituted misconduct, there is no reasonable probability that the result would have been different.
The evidence of guilt on the charge of possession of a firearm by a convicted felon was very strong. Appellants mother called the police because appellant had left the house with a gun. Shortly thereafter, Officer Nacua saw appellant cradling an object in both hands. Appellant went behind a fence. After appellant reappeared and Officer Nacua took him into custody, Officer Nacua went to the spot where appellant disappeared from view and found a gun laying on a small plant. Appellants mother confirmed, without hesitation, the gun was the one appellant had when he left their home.
While, as appellant points out, Ochoa testified at trial that she was not certain the object appellant had in his hands was a gun and that she told the officers she wasnt sure if the gun they showed her was "the one he had," it is clear that Ochoa was a reluctant witness who did not want to be in court testifying against her son. Significantly, Ochoa never testified that the object in appellants hand could have been anything other than a gun, and essentially admitted that the object was a gun when she testified that she wasnt sure if the gun the officers showed her was "the one he had." Although Moreno testified he saw someone running close to the alley, he only saw the persons body and did not remember what the person was wearing. While no fingerprints were found on the gun, Officer Nacua testified that it is "common practice for people who commit crimes to wipe the gun clean." Appellant certainly would have been able to do so, even though Officer Nacua believed appellant was out of his view for only four seconds.
In sum, appellant has failed to establish that, if objections to Officer Nacuas testimony and the prosecutors characterization of that testimony had been made and sustained, it was not reasonably probable appellant would have achieved a more favorable outcome. Thus appellants claim of ineffective assistance of counsel fails.
DISPOSITION
The judgment is affirmed.