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People v. Orozco

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
A130137 (Cal. Ct. App. Jan. 31, 2012)

Opinion

A130137

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. RUBEN CERVANTES OROZCO, Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Napa County Super. Ct. No. CR150748)

People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey),held that facts underlying charges dismissed in a negotiated plea may not, absent contrary agreement (now called a "Harvey waiver"), be used to impose adverse sentencing consequences unless those facts are transactionally related to an admitted offense, and People v. Martin (2010) 51 Cal.4th 75, 82 (Martin), recently extended that limitation to facts used to impose conditions of probation.

This appeal by Ruben Orozco involves his threatening a police officer who came to his residence in response to his domestic violence against his nine-year-old daughter, Jane Doe, and his sister L.G., Doe's long-time caretaker. Charged with resisting Officer William Hernandez (Pen. Code, § 69), threatening and dissuading L.G. from reporting a crime (§§ 422, 136.1, subd. (b)(1)), threats, dissuading, battery, and child cruelty as to Doe (§§ 422, 136.1, subd. (b)(1), 242, 273a, subd. (b)), and three serious-felony allegations (§ 1192.7, subd. (c)), Orozco entered a plea of no contest to felony resisting the officer in exchange for dismissal of the other counts and allegations, and probation with a year-long jail term.

All unspecified section references are to the Penal Code.

Orozco claims a Harvey violation in that the court issued a no-contact probation condition for not only the admitted victim Hernandez (and an unrelated victim from an other event negotiated in the plea bargain), but also L.G. and Doe, the victims of the dismissed charges. This was done without an express Harvey waiver as to them, but the court imposed the condition, over defense objection, on a finding that the dismissed counts were transactionally related. Orozco does not attack the validity of his plea, and has not secured a certificate of probable cause to do so (§ 1237.5; People v. French (2008) 43 Cal.4th 36, 45), but claims lack of record support for the transactionally-related finding and so seeks to strike the condition as to L.G. and Doe. The People claim support for the finding but urge, at the outset, that the issue is waived.

BACKGROUND

We recite some procedural background here but reserve the facts of the offenses for discussion of the transactional relationship.

A plea form signed by the parties and court on September 21, 2010, reflects the plea terms. Apparently following directions on the form to initial only those paragraphs that applied to his plea, Orozco initialed some, and the rest have "Xs" placed after them. Among the initialed parts, paragraph 17 reads: "I understand I have the right to appeal the judgment of the court by filing a notice of appeal with the clerk of this court within . . . 60 days of the day I am sentenced for a felony. I am entitled to a free lawyer and transcript on appeal." Paragraph 3 advises, "I understand that if the Court refuses to follow this plea bargain then I will be allowed to withdraw my plea[ of] no contest and enter a not guilty plea," and then specifies these terms in handwriting: "3 years formal probation, no immediate state prison, 364 days jail, a portion of which may be served in residential treatment program [RTP] with standard RTP probation terms, if included as a term of probation. Defendant] waives time credits thru Sept 17, 2010. Waiver of appeal. Defendant] agrees to a no-contact term of probation regarding Maria Mora. Prosecution will not file event - 14 (Restraining order violation)" (Italics added.)

Paragraph 4, titled "Harvey Waiver," is uninitialed, as if inapplicable, but this is not entirely accurate. That part of paragraph 17 calling for a no-contact term of probation for Maria Mora was a Harvey waiver, for Harvey applies not only to facts concerning dismissed charges, but also facts concerning "uncharged" offenses (People v. Calhoun (2007) 40 Cal.4th 398, 407, fn. 5; Harvey, supra, 25 Cal.3d at p. 758), which was the case here as to Maria Mora, the victim in a charge not brought. Orozco's trial counsel correctly referred, at sentencing, to the Mora term as a Harvey waiver. Orozco does not challenge the inclusion of Mora but correctly notes that the Harvey-waiver box, even if it had been initialed, did not specify any dismissed counts on a line reading, "List Counts and/or Cases Dismissed." Thus there is no written Harvey waiver as to dismissed counts involving his daughter and sister.

DISCUSSION


Waiver

The People's waiver claim poses alternative arguments that Orozco is barred from raising his issue by either (1) making a Harvey waiver on the record or (2) waiving his right to appeal. These are questions nuanced by circumstances that, at the time of the plea in September 2010, and the sentencing in October 2010, Harvey's application to probation conditions was a question still pending before the Supreme Court in Martin. Thus it is urged by the People that, while Orozco did argue below that the plea did not expressly cover the issue and that there was, in any event, no transactional relationship between the admitted and dismissed counts, Orozco's waiver of appeal effectively did embrace the issue. Both sides expected that Martin would address the issue and posed facts on the transactional-relation question very much like those in this case. Also, Orozco stated on the record at sentencing, after all of the argument about the issue, that he agreed to comply with the no-contact order as modified to include L.G. and Doe, and the prosecutor's intent to seek such protection all along had been evident. A motion for a restraining order had been filed before the plea change; the prosecutor alternatively proposed protection for L.G. and Doe under a so-called CLETS order (see § 136.2); and the prosecutor felt strongly enough about the need to protect L.G. and Doe that she asked the court, if it did not include them, to allow Orozco to withdraw his plea.

Given the relative complexity of this issue, we find it expedient to assume purely for sake of argument that the issue is not waived, and proceed to the issue transactional relationship.

Transactional Relationship

Facts. On March 10, Orozco was staying at the home of L.G., her husband and two children, and her niece, Doe. L.G. had allowed Orozco to stay there a couple of days after his release from custody, when he had nowhere to go. L.G. was at her volunteer job helping a mother take care of a disabled child that day and picked Doe up from school around 4:30 or 5:00 p.m. When they arrived home, Orozco was drunk and had gotten a report from the school about Doe interrupting and not following rules. He started screaming at Doe and kept up the abuse all evening. From her room, L.G. heard Orozco screaming at and berating Doe, out of control, telling Doe to shut up if she tried to respond, not letting her go to sleep at bedtime (despite advice from L.G.), and having her stay up to do math problems. Orozco had trouble doing the problems himself and spoke to himself about them, "acting like a soldier." He threatened to put Doe in a military school. L.G. feared that Orozco would harm her and saw that the child was afraid. L.G. feared for herself as well, for she overheard Orozco tell Doe that if she called the cops, hospital or anyone, he would kill Doe and "get all of us." Defendant added that if L.G. did anything, "I will kill her, too, because I am your father and I can do whatever I want with you." L.G. had been threatened by Orozco on past occasions with never seeing Doe again, for despite having cared for Doe most of the child's life, L.G. had no legal guardianship or custody rights.

Orozco acted "like a crazy man," looking through papers and screaming. L.G. tried to get him to stop so her children could sleep, but he kept raging until about 10:00 p.m. when he seemed to grow tired. L.G. did not call the police, but lay awake all night. She checked on Doe several times to make sure she was alright and saw also that Orozco slept through the night.

L.G. left for work around 6:00 a.m., noticing nothing unusual then, but later hearing from her brother-in-law, Guillermo, whose next-door residence shared a common wall with hers and who was concerned about Doe. Doe had gone to school, and L.G. went to the school around 10:00 or 10:30 a.m. to make sure Doe was alright. Doe told her that Orozco had hit her on the butt and arms with a belt after L.G. left, and that she was too afraid to go home if her father was there. Doe looked frightened—pale and with dry lips. Returning home, L.G. learned from Guillermo that he heard Orozco constantly yelling and screaming, and noises that he could not tell were Orozco hitting Doe or just hitting a wall. L.G. found her front door locked and had to rouse Orozco to open it. He was so drunk he could barely walk, and the house a mess, with papers and other items on the floor, chairs thrown outside the laundry room, things in the tub, beer cans on the floor, and a stench of alcohol. Orozco offered to pick things up, but L.G. told him to leave them since he could barely stand. An argument ensued when she asked him to keep his voice down so the children would not hear him screaming. She told him that she would "call the cops," and did so. He reacted by grabbing a cup of coffee and throwing it to the floor in anger, where it broke and splashed, and by throwing to the floor a car seat and then a cushion from the couch.

L.G. left the house, and Orozco followed her outside. He lay face down on the ground, saying he would make it easy for the cops. He stayed on his stomach and put his arms behind his back, but "kept saying that's fine, call whoever you want but I'll come back and get you." He was still on the ground when police came and asked him what he was doing. He said: "[C]an you see, I'm making your job easy." Asked what he meant by that, he responded: "[D]id you hear me, I'm making your job easier."

Officer Hernandez arrived at the residence around 12:00 noon, responding as a cover officer to a call about an intoxicated subject who was cursing and screaming at his family. Before arriving, he heard Officer Lee report being out in front of the residence with the subject, who had "proned himself out already." When Hernandez asked Orozco if he had any weapons, Orozco replied, "[F]uck you, fuck your mother, pinche tu madre." Hernandez handcuffed him and, when Officer Wilson arrived, placed Orozco in the back seat of Wilson's patrol car given his erratic behavior. Just before being placed in the car, Orozco looked at Hernandez and told him he was going to kill him. Then after he was in the car, Orozco started banging his head on the plastic and metal partition.

An investigator for the district attorney's office in Napa County interviewed L.G. and Doe. L.G. had not been home at the time, but Doe related what occurred the morning of the 11th. Orozco had called her a bitch and said he was going to shoot and stab her. He slapped her once with an open hand, threatened to slap her across the face with the belt and buckle, and was striking the wall with the belt buckle. Doe picked up a telephone, but Orozco yelled that he would kill her if she tried to call the police. Frightened, Doe ran next door and hid in her cousin's bedroom. She had also experienced prior incidents where Orozco struck her.

Analysis. The arguments on appeal are essentially as they were below. Orozco argues that his admitted offense of resisting Officer Hernandez was not transactionally related to the dismissed counts—his earlier threats and assaultive behavior against Doe and L.G. The People disagree, consistent with the prosecutor's explanation below that she sought no Harvey waiver for the dismissed counts as part of plea because it was unnecessary—that the counts were transactionally related. The court agreed with the People's position. So do we.

The section 69 charge, as amended on motion of the prosecutor when the no-contest plea was entered, was that Orozco "did unlawfully attempt by means of threats to deter and prevent Officer Hernandez, who was then and there an executive officer, from performing a duty imposed upon such officer by law."
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We review a court's imposition of any probation condition deferentially, for abuse of discretion. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120-1121; People v. Leon (2010) 181 Cal.App.4th 943, 949.) Tailored to a finding of transactional relation, our review is for "facts from which it could at least be inferred that some action of the defendant giving rise to the dismissed count was also involved in the admitted count." (People v. Beagle (2004) 125 Cal.App.4th 415, 421 (Beagle).) The term transactionally related, as used by Harvey and its progeny, stems from a sentencing court's authority and duty to consider facts " 'relating to the crime' " (Harvey, supra, 25 Cal.3d at p. 758, quoting Cal. Rules of Court, former rule 421(a), now rule 4.421(a)), and use of the word "transactionally" seems meant to distinguish a relationship based on facts from one based on similar legal elements (People v. Birks (1998) 19 Cal.4th 108, 119).

Cited precedent is of little value on our facts. Several cases are well summarized in the Beagle decision, where no sufficient relationship was found between an admitted drug possession and police discovery of an illegal weapon (nunchakus) in another room during the same search. (Beagle, supra, 125 Cal.App.4th at pp. 418, 421-423, and cases discussed.) The closest case factually is our high court's decision in Martin where, as here, the admitted count was for resisting arrest and dismissed counts were for domestic abuse leading to that arrest (Martin, supra, 51 Cal.4th at pp. 77-78), but the court found a Harvey waiver and thus no need to reach the transactional-relation question (id. at p. 82).

Various facts in combination support a transactional relationship here. Orozco's plea of no contest established that Officer Hernandez was acting in the course of his duty when threatened by Orozco (see fn. 2, ante), and he was present in response to a report of domestic violence against Doe and L.G. Such a relationship could certainly become too attenuated with the passage of time, but here the abuse as to Doe had preceded the arrest by just a few hours, and it was part of a drunken rampage that had lasted for 18 hours with the only apparent break being when Orozco fell asleep. When L.G. arrived home that morning after talking to Doe at her school about the abuse, Orozco was on the same rampage, with new physical violence of throwing a coffee cup, chair and cushion onto the floor in response to her calling the police, just minutes before the arrival of Hernandez. The court could reasonably infer that L.G., in making that call, still had in mind Orozco's threats from the evening before to kill her if she ever called the police. Further, a police report as summarized in a presentence report before the court when it made its finding indicated that Orozco was screaming at L.G. when the officers arrived and was giving a statement to them when Orozco began striking his head against a Plexiglas partition separating the front and back seats of the patrol car. The court could reasonably view the head banging as ongoing threats against L.G.

Orozco seems to suggest that the threats against Doe, several hours earlier, were too remote in time, but it would have made no sense on these facts to issue a no-contact order as to L.G. and not Doe, who lived in the same residence and was a victim of the same drunken rampage, as well as direct physical abuse.

The finding of a transactional relationship is supported.

DISPOSITION

The judgment is affirmed.

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Kline, P.J.
We concur:

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Lambden, J.

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Richman, J.


Summaries of

People v. Orozco

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
A130137 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Orozco

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RUBEN CERVANTES OROZCO, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Jan 31, 2012

Citations

A130137 (Cal. Ct. App. Jan. 31, 2012)