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People v. Ortiz

California Court of Appeals, Third District, Sacramento
Apr 28, 2009
No. C058360 (Cal. Ct. App. Apr. 28, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOSE GONZALEZ ORTIZ, Defendant and Appellant. C058360 California Court of Appeal, Third District, Sacramento April 28, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 05F10654.

SCOTLAND, P. J.

A jury found defendant Jose Gonzalez Ortiz guilty of attempted murder while personally using and firing a gun, which was the proximate cause of great bodily injury (the jury rejected an allegation that the offense was intended to promote a criminal street gang). After denying his new trial motion, the court sentenced defendant to state prison for 32 years to life.

On appeal, defendant contends the pattern instruction on the use of circumstantial evidence to discern intent misled the jury on other issues; the prosecutor in closing argument improperly made a reference to defendant’s failure to testify; the trial court applied an incorrect standard in ruling on the motion for a new trial; and the court failed to give him an opportunity to speak before sentencing. We shall affirm the judgment.

FACTS

The shooting occurred when the victim confronted a group of men whom he thought had “jumped” his 14-year-old nephew and friends and “hit [them] for their bikes.” When the victim asked whether it took all of them to beat up little kids, most of the group apologized and ran away, one of them making reference to the victim’s status as an “OG,” original member of an Asian gang. However, one person said he had a “thumper,” pulled a gun out of his waistband, and fired shots at the victim, hitting him four times.

The victim’s nephew heard the gunshots and saw a man with a long ponytail run away from the victim.

When the shooter was out of sight, the victim heard a car coming; and as a car drove past him, someone yelled, “It’s Franklon,” or “Franklin Boys.”

The victim had been able to see the shooter’s face clearly. It was an August evening, and the victim had “a good five minutes” all together to look at the person who ultimately pulled out a gun and shot him. There was a scar on the right side of the shooter’s face that looked like acne. The victim thought that he recognized the shooter from one or two encounters at the nearby market, and he told this to investigating officers on the night of the shooting (asserting he would recognize the shooter if he saw him again). At trial, the victim expressed absolute certainty that defendant was the shooter.

Some time after the shooting, the victim saw a man at a market putting gas in his car. Thinking the man was the shooter, the victim took down the license plate number and later provided it to the police. (The victim viewed the license plate through a telescope so he would not have to get close to the man.)

Officers traced the license plate number and prepared a photo line-up that included a person associated with the car (but did not include defendant). The victim was unable to identify anyone in the line-up as the shooter.

The victim later spoke with a niece about the shooting. She told him the description of the shooter sounded like a man named “Jose Gonzalez” or “Jose Gomez” (who was the brother of a man she had dated). This information was passed on to the police. Based on this information, officers showed the victim several yearbook pictures with the names concealed, including one of a “Jose Gomez.” The victim was unable to identify any of them as the shooter.

After looking through names in a database, officers came up with defendant’s name (Jose Gonzalez Ortiz) and assembled another photo line-up, which inadvertently included two photographs of defendant. The victim selected the more recent of defendant’s pictures as the shooter. Assembling a correct line-up with the same photograph of defendant that the victim had already selected, officers returned to the victim and explained they had included two pictures of the same person in the previous line-up (without identifying that it was defendant). The victim said he had not noticed any duplication. In the new line-up, the victim once again identified defendant as the shooter.

Neither the nephew nor his friends were able to identify defendant in the photo line-up.

Defendant’s sister testified that defendant had spent the entire day with her in celebration of their brother’s birthday. Defendant eventually left at about 7:00 p.m. and stayed out for the rest of the evening.

Evidence of defendant’s association with a subset of a Latino street gang was introduced. A gang associated with “Franklon” is a different subset of the larger gang. An expert opined it was unlikely that one subset would use the name of another subset.

DISCUSSION

I

In accordance with the pattern instruction on the use of circumstantial evidence to find intent or a particular mental state (CALCRIM No. 225), the court advised the jurors that “[b]efore you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each essential fact... beyond a reasonable doubt,” and “[i]f you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions supports a finding that the defendant did not have the required intent or mental state..., you must conclude that the required intent or mental state was not proved by the circumstantial evidence.”

Defendant argues this instruction “violated due process and the Sixth Amendment by effectively telling the jury that direct evidence did not have to be prove[d] beyond a reasonable doubt.” This is so, he claims, because in his view “it is both obvious, and logical, that by explicitly limiting the quoted principles [in the paragraph above] to circumstantial evidence to prove intent, the instructions logically told the jurors that these principles did not apply to (1) direct evidence of the act or (2) circumstantial evidence of the act.”

The authority on which he relies is inapposite. People v. Vann (1974) 12 Cal.3d 220 (hereafter Vann) involved the failure to instruct on the presumption of innocence and the burden of proof beyond a reasonable doubt. (Id. at pp. 225-227.) Rejecting the People’s argument that the instruction involving circumstantial evidence could fill this lacuna, the Supreme Court noted that that instruction was expressly limited to circumstantial evidence and “the instant case depended in large part on direct evidence.” (Id. at p. 226.) Thus, an “instruction which requires proof beyond a reasonable doubt only as to circumstantial evidence, rather than importing a need for the same degree of proof where the crime is sought to be established by direct evidence, might with equal logic have been interpreted by the jurors as importing the need of a lesser degree of proof where the evidence is direct and thus of a higher quality.” (Id. at pp. 226-227; accord People v. Crawford (1997) 58 Cal.App.4th 815, 823-825 (hereafter Crawford).)

Here, the jury did not operate in the same vacuum as did the juries in Vann and Crawford. The jurors in this case were given instructions on the presumption of innocence and the application of the reasonable doubt standard to all elements of the People’s case. This dispels the possibility feared by Vann and Crawford.

Defendant’s brief also contains “See generally” citations to People v. Dewberry (1959) 51 Cal.2d 548 (hereafter Dewberry) and People v. Salas (1976) 58 Cal.App.3d 460 (hereafter Salas). They, too, are inapposite. Dewberry held that the “failure of the trial court to instruct on the effect of a reasonable doubt as between any of the included offenses, when it had instructed as to the effect of such doubt as between the two highest offenses, and as between the lowest offense and justifiable homicide, left the instructions with the clearly erroneous implication that the rule requiring a finding of guilt of the lesser offense applied only as between first and second degree murder.” (Dewberry, supra, 51 Cal.2d at pp. 556-557.) Salas involved an instruction on circumstantial evidence limited to the specific intent required for robbery. The Court of Appeal did not believe that a jury would understand on its own that the principle requiring the inference to be inconsistent with any conclusion pointing to innocence also applied to the specific intent required for the infliction of great bodily injury. (Salas, supra, 58 Cal.App.3d at pp. 474-475.)

As for the other principle involved in the instruction on circumstantial evidence, defendant does not articulate how there can be more than one “conclusion” to be drawn from direct or circumstantial evidence of an act. The jury simply decides whether an act is established beyond a reasonable doubt. Being told that the jury must choose the conclusion which would favor defendant’s innocence does nothing more than restate the presumption of innocence and the prosecutor’s burden of proof beyond a reasonable doubt. To the extent defendant suggests the principle of reasonable doubt should have been explicitly tied to a particular fact, this is a type of pinpoint instruction that he had the burden to request. (See People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.)

In short, no reasonable jury would have interpreted the trial court’s instructions as defendant suggests, and the instruction on circumstantial evidence did not mislead the jury in performing its evaluation of other evidence.

II

Seizing upon a pronoun in a stray remark in the course of the prosecutor’s closing argument, defendant contends that reversible error occurred in the form of comment on his failure to testify at trial. (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106].) We disagree.

Discussing the alibi testimony of defendant’s sister, who the prosecutor conceded was “credible and believable,” the prosecutor argued that the witness was simply incorrect in her recollection of the exact time defendant left her company. The prosecutor affirmed that defendant “has absolutely no burden whatsoever. They do not have to put on any witnesses.... But once the defense does introduce the evidence, you treat it just like any other evidence.” Since the witness stated that defendant went out with friends after visiting with her, the prosecutor asked: “Where are those people? Who was he with? Where were they? What were they doing? [¶] If he had three, four, five friends that he was hanging out playing poker with that night, don’t you think they would have come in here and told you that? If he had three, four, five friends that are out in the neighborhood in Oak Park messing with a bunch of kids when he gets involved in a shooting, maybe they wouldn’t. [¶] And maybe that’s why he doesn’t come. You bet if they’re sitting around at Chuck-E-Cheese or playing poker hanging out at somebody’s house even having beers, you would have heard from them.” (Emphasis added.)

In defendant’s view, “he doesn’t come” was a direct reference to him and his failure to testify. We are not persuaded; instead, a reasonable jury would have understood that the prosecutor’s use of the word “he” applied to the purported alibi witnesses who were not called to testify on defendant’s behalf. Indeed, it would not make sense to have referred to defendant’s failure to “come,” rather than to “take the stand,” when he was present at trial.

There was no prosecutorial misconduct.

The claim of error also fails because there was no objection raised at trial, and no request for an admonition. The stray word “he” in a chorus of “theys” was not so egregious that an objection and request for an admonition would have been irremediable. (People v. Panah (2005) 35 Cal.4th 395, 462; People v. Mincey (1992) 2 Cal.4th 408, 446.) And, in light of the context of the prosecutor’s argument, defense counsel was not ineffective for failing to object and request an admonition to cure an inference that a reasonable jury would not have made. (See People v. Lopez (2008) 42 Cal.4th 960, 966.) In any event, considering the evidence presented against defendant, we are satisfied beyond a reasonable doubt that the stray word was harmless.

III

Defendant filed a motion for a new trial that protested the exclusion of certain expert testimony, the knowing use of obvious perjury, and the inability of the evidence to support the accuracy of the victim’s identification of defendant beyond a reasonable doubt. At the hearing on judgment and sentence, the trial court announced it had “read and considered the written motion,” and invited argument. After brief remarks from both counsel, the court ruled that “in terms of the sufficiency of the evidence [it] has reviewed the evidence independent of the jury’s finding. The Court makes the specific finding that the evidence presented to this jury was legally sufficient for the conviction. [¶] In terms of the perjured testimony, that is denied. [¶] In terms of any error in terms of the Court’s in[-]limine[] ruling[,] that is denied.” (Emphasis added.)

Parsing “sufficient” from “legally,” defendant asserts that the court failed to articulate any findings regarding the weight of the evidence or credibility. He claims it therefore applied the improper substantial-evidence standard of review.

The argument borders on the frivolous. The trial judge was a jurist with substantial experience in criminal adjudications. Absent affirmative evidence to the contrary, it is inconceivable that he would apply the wrong standard in the ruling on a motion for a new trial. (Evid. Code, § 664.) The court’s remarks cannot be contorted into any such indicia of error where they expressly mention its independent review of the evidence.

IV

After denying the motion for a new trial, the court asked counsel if either of them wished to comment before it imposed sentence. Both declined. After it finished imposing sentence and advising defendant of his appeal rights, the court asked defense counsel “do you have anything?” When he answered in the negative, the prosecutor left the courtroom. Defense counsel then said defendant “has a statement that he wants to make.” The court apologized: “I’m sorry, I didn’t realize you had a statement.” Defendant then addressed the court: “First thing first. I thank God for everything [H]e has done in our lives. My sympathy goes out to the victim and his family for everything they have suffered. We all must know that I did not shoot the victim. He’s mistaken me for somebody else. I’ve never seen the victim in my life. [¶] I’ve been falsely prosecuted and be[en] falsely convicted. But I forgive the victim and the prosecutor and I forgive everybody that was set against me in this courtroom. [¶] I have no hatred for or even feelings for anyone here today. But I forgive from the bottom deepest part of my heart everyone that came against me. But I say once again, it is not me. You have the wrong guy. I am innocent. I am innocent, your Honor.” The court thanked him and then remanded him to the sheriff.

Under California statutes, a defendant has the right only to make a sworn statement (subject to cross-examination) in mitigation of punishment before the imposition of sentence, which is forfeited when a defendant does not attempt to assert it before imposition of sentence. (People v. Evans (2008) 44 Cal.4th 590, 597-598, 600 (hereafter Evans).) This does not offend the federal Constitution’s provisions for due process. (Id. at p. 600.)

Defendant contends the trial court violated his federal right to due process by inadvertently overlooking his personal protestations of innocence until after imposition of sentence. He purports to distinguish Evans as failing to consider the component of due process that “protects those procedures rooted in the common law” (of which allocution is one (Evans, supra, 44 Cal.4th at pp. 595-597)), relying on an intermediate federal court’s ruling that specifically limited its reach to the refusal of a request to speak before sentencing. (Boardman v. Estelle (9th Cir. 1992) 957 F.2d 1523, 1528-1530.) However, the United States Supreme Court has ruled that a failure to ask a defendant appearing with counsel whether he has any remarks bearing on sentencing does not implicate any constitutional concerns. (Hill v. United States (1962) 368 U.S. 424, 428 [7 L.Ed.2d 417, 421].) Therefore, we reject defendant’s claim of constitutional error.

In any event, the deprivation of this right--if any exists--can be found harmless. (Boardman v. Estelle, supra, 957 F.2d at p. 1530.) Here, the trial court had affirmed the validity of defendant’s conviction, after its independent review of the evidence, immediately before its imposition of sentence. Thus, we conclude that hearing defendant personally attest to his innocence prior to the imposition of judgment would not have led the court to impose a different sentence.

DISPOSITION

The judgment is affirmed.

We concur: RAYE, J., BUTZ, J.


Summaries of

People v. Ortiz

California Court of Appeals, Third District, Sacramento
Apr 28, 2009
No. C058360 (Cal. Ct. App. Apr. 28, 2009)
Case details for

People v. Ortiz

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSE GONZALEZ ORTIZ, Defendant…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 28, 2009

Citations

No. C058360 (Cal. Ct. App. Apr. 28, 2009)