P v. Orozco

P v. Orozco

Filed 8/28/08 P v. Orozco CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, Plaintiff and Respondent, v. LEOPOLDO OROZCO, Defendant and Appellant.

B199685 (Los Angeles County Super. Ct. No. NA 070546)

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles D. Sheldon, Judge. Affirmed.

Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

_

A jury convicted Leopoldo Orozco of trespassing, false imprisonment, making criminal threats, and assault. The trial court placed him on probation for three years. He appeals, challenging both the admission of certain evidence and the trial courts oral paraphrasing of the jury instructions. We affirm.

BACKGROUND

The information charged defendant with one count of residential burglary in violation of Penal Code section 459^[1](count 1), one count of false imprisonment by violence in violation of section 236 (count 2), one count of making criminal threats in violation of section 422 (count 3), one count of battery in violation of section 242 and subdivision (b) of section 243 (count 4), and one count of vandalism in violation of section 594, subdivision (a) (count 5). He pleaded not guilty. The trial court granted defendants motion to set aside the information as to count 5, pursuant to section 995.

A jury found defendant guilty on counts 2 and 3, not guilty on count 1 but guilty of the lesser included offense of trespassing, and not guilty on count 4 but guilty of the lesser included offense of assault. The court placed him on probation for three years under specified terms and conditions, including anger management counseling and 20 days of community service.

The evidence introduced at trial showed the following facts: Eliana Orozco is the sister of defendant Leopoldo Orozco. On May 18, 2006, she was living with her parents, her sister, her cousin Carlos Gonzalez, and her brothers Leopoldo, Osvaldo, Marco, and Omar. At approximately 5:30 p.m., her boyfriend Omar Gonzalez picked her up at her home.^[2] The couple drove to a motel, and Eliana sent her sister a text message saying that she would not be returning home.

At about 10:30 p.m., Omar Gonzalez telephoned a friend named Carlos Cazares, told him that Eliana had run away from home, and asked if he and Eliana could come to Cazaress house the next morning rather than stay at the motel. Cazares told him they could, and Omar Gonzalez said they would be there at 8:30 a.m. Omar Gonzalez also asked Cazares not to tell Elianas brothers where he and Eliana were.

Approximately 30 minutes later, Cazares received a call from Omar Orozco, who asked if Cazares had recently heard from Eliana or Omar Gonzalez. Cazares said he had not. Cazares then immediately called Omar Gonzalez and left him a message describing his conversation with Omar Orozco and asking the couple to arrive at 9:30 the next morning instead of 8:30.

Around 1:00 a.m., Omar Orozco knocked on the door of Cazaress studio apartment. When Cazares opened the door, he saw that Omar Orozco was accompanied by two men he later learned were Elianas brothers Osvaldo and Leopoldo. Uninvited, Osvaldo and Leopoldo started to enter through the open door. When Cazares tried to push them back, they forced their way inside.

Leopoldo pulled a stun gun out of his jacket pocket, motioned with it as if he were going to stun Cazares, and yelled Wheres my sister, dog? Cazares told the brothers that they could look around his apartment but that Eliana was not there. Osvaldo, Leopoldo, Omar Orozco, and Elianas cousin Carlos, who had arrived with Leopoldo and his brothers, searched the apartment but found no one. Cazares then asked them to leave, but Leopoldo said they were going to stay until 8:30 the next morning, when Eliana and Omar Gonzalez were due to arrive. Osvaldo told Cazares that he would not be permitted to leave.

Osvaldo and Leopoldo then backed Cazares up against the refrigerator. Leopoldo was still holding the stun gun in his hand. Leopoldo told Cazares that they had heard the message Cazares left for Omar Gonzalez, in which Cazares reported his conversation with Omar Orozco. Leopoldo said he was going to shoot Cazares in the kneecaps with a 9 millimeter handgun, and he also said he was going to get the Mexican mafia to shoot [Cazaress] apartment up. Both Osvaldo and Leopoldo repeatedly demanded that Cazares tell them where Eliana and Omar Gonzalez were. When Cazares continued to insist that he did not know, Leopoldo stunned him with the stun gun, but Cazares batted it away with his hand.

Leopoldo and his confederates continued to ask about Elianas whereabouts and eventually demanded that Cazares call Eliana and Omar Gonzalez on their cell phone. Leopoldo told Cazares to ask Eliana and Omar Gonzalez to come over immediately, rather than in the morning, and not to reveal that Leopoldo and the others were there. Cazares complied but was unable to reach Eliana and Omar Gonzalez, so he left them several voicemail messages. Leopoldo continued to get more upset.

Cazares then suggested that Leopoldo and his confederates leave and try to find the hotel at which Eliana and Omar Gonzalez were staying. Osvaldo agreed and told Omar Orozco and Carlos to stay in the apartment to watch Cazares while Osvaldo and Leopoldo left to try to find the hotel. Approximately one hour after Osvaldo and Leopoldo left, Omar Orozco received a phone call informing him that Osvaldo and Leopoldo had found Eliana and Omar Gonzalez. At approximately 3:00 a.m., Omar Orozco and Carlos left Cazaress apartment.

Leopoldo, Osvaldo, Omar Orozco, and Carlos Gonzalez were arrested on June 8, 2006, at their home. The arresting officers searched the residence and found a 9 millimeter handgun and a Thunderstun stun gun.

In her testimony at trial, one of the arresting officers stated that in a post-arrest interview, Leopoldo admitted that he had entered Cazaress apartment and that he was upset about his sister and got loud and confronted [Cazares] about him lying. Leopoldo at first denied bringing a stun gun to the apartment but later admitted having one in his back pocket. He then denied but later admitted taking the stun gun out of his pocket, though he repeatedly changed his explanations of why he took it out (i.e., in order to take out his cell phone, in order to take out his cigarettes and lighter, or just to show it). He also admitted that he may have clicked the stun gun when he was outside Cazaress apartment.

Osvaldo testified for the defense. He claimed that when he, Leopoldo, Omar Orozco, and Carlos Gonzalez arrived at Cazaress apartment, Cazares was real friendly and invited them in. Osvaldo testified that, while at the apartment, he told Cazares that if anything happened to Eliana, Osvaldo was going to kick [Cazaress] butt, and Leopoldo said the same thing. He also testified that he never saw a stun gun taken out while he was in the apartment and that, to his knowledge, the stun gun was not discharged while he was there.

DISCUSSION

I. Evidentiary Error

Before trial, Leopoldo moved in limine to exclude evidence that he had broken the windows of Omar Gonzalezs car when he found it at the hotel where Eliana and Omar Gonzalez were staying. The prosecution argued that the evidence would be relevant to proving Leopoldos intent if the defense presented evidence that Leopoldo and his confederates were only concerned for their sisters safety. The trial court directed the prosecution not to refer to the broken windows during opening statements, but the court reserved ruling on the defense objection. The court ultimately overruled defense objections and allowed Cazares to testify that Omar Gonzalez told him that two of Elianas brothers broke the windows on his car. The court also allowed the arresting officer who interviewed Leopoldo to testify, again over defense objections, that Leopoldo told her that he had broken the windows of Omar Gonzalezs car. On appeal, Leopoldo argues that the admission of the evidence was erroneous.

Assuming arguendo that the trial court erred, however, the error was not prejudicial. Leopoldo seems to argue that the error is reversible per se because it rose to the level of a federal due process violation by depriving him of his right to a fair trial. Leopoldo cites no authority, however, for the proposition that the erroneous admission of character evidence is reversible per se, and we are aware of none. On the contrary, [i]f a defendant was convicted following a trial, at which he or she was represented by counsel and could present evidence and argument before an impartial judge and jury, and the court did not direct a verdict for the prosecution, there is a strong presumption that any other errors that may have occurred are subject to harmless error analysis rather than reversible error per se. (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error,  21, p. 475.) In particular, [t]he admission or exclusion of evidence in violation of the common law and statutory rules is normally treated as a procedural error, which calls for reversal of the judgment only if a miscarriage of justice resulted. (Id.,  26, p. 480.) The case law treats the improper admission of other crimes of the defendant as subject to harmless error analysis under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836. (See, e.g., People v. Moten (1991) 229 Cal.App.3d 1318, 1327.) Leopoldo offers no reason why we should apply a different standard here, and we are aware of none.

It is not reasonably probable that Leopoldo would have obtained a more favorable result if the trial court had excluded the evidence that he broke the windows of Omar Gonzalezs car. The jury convicted Leopoldo of false imprisonment and making criminal threats, acquitted him of burglary but convicted him of trespassing, and acquitted him of battery but convicted him of assault. The prosecution presented powerful evidence that Leopoldo was guilty of the crimes of which he was convicted, including Leopoldos own admissions that he went to Cazaress apartment equipped with a stun gun, got loud and confronted Cazares about lying, took out the stun gun, and may have clicked it. Even Osvaldo testified that Leopoldo threatened to kick [Cazaress] butt. It is not reasonably probable that Leopoldo would have obtained a more favorable result in the absence of the erroneously admitted evidence.

II. Paraphrasing of the Jury Instructions

Leopoldo argues that the trial court prejudicially erred by orally paraphrasing the bulk of the jury instructions instead of reading them verbatim. We conclude that insofar as the court committed any errors, they were not prejudicial.

It is generally presumed that the jury was guided by the written instructions. [Citations.] The written version of jury instructions governs any conflict with oral instructions. [Citations.] Consequently, as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions. [Citations.] (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113.) Leopoldo does not argue that the court failed to provide the jury with complete and accurate written instructions. For that reason and on the basis of our analysis, post, of Leopoldos specific claims of error, we conclude that Leopoldo has not identified any flaws in the oral instructions that, taken individually or collectively, warrant reversal.

First, Leopoldo points out that in paraphrasing CALJIC No. 2.02, the court told the jury: However, do not find a defendant guilty of the crimes charged in count 1 and 3 . . . unless the proved circumstances are not consistent with the theory that the defendant had [the required] intent or mental state, but cant be reconciled with any other rational conclusion. The courts paraphrase, taken literally, erroneously instructed the jury that (1) Leopoldo must be acquitted on counts 1 and 3 if the jury concluded that the circumstances were consistent with Leopoldos having the required mental state for those counts, and conversely (2) Leopoldo could be convicted on counts 1 and 3 if the jury concluded that the circumstances were not consistent with Leopoldos having the required mental state for those counts.

We conclude that the courts error was harmless. Because of its conditionality (unless) and two negatives (do not find and are not consistent), the courts paraphrase would have been very difficult to understand when heard. Also, the literal meaning of the paraphrasethat the jury must acquit if Leopoldo had the required mental state, but could convict if he lacked itis obviously absurd, even to a layperson. For both of those reasons, it is extremely unlikely that any jurors (1) understood the literal meaning of the paraphrase, (2) thought the literal meaning of the paraphrase correctly stated the law, and consequently (3) relied on it rather than on the written instructions, which the paraphrase expressly contradicted. Rather, if any juror was logically adept enough to parse the paraphrase and grasp its literal meaning, such a juror surely would have concluded that either the judge had misspoken or the juror had misheard, and the juror could and would have consulted the written instructions for confirmation. Again, Leopoldo concedes that the jury received a complete set of written instructions, and he does not challenge their accuracy.

Second, Leopoldo argues that the trial courts paraphrase of CALJIC No. 3.31 misinstructed the panel on the critical issue of intent because the court failed to tell the jury where the required specific intent was defined in the instructions. We disagree. In orally paraphrasing CALJIC No. 3.31 (concerning the concurrence of the required act and the required specific intent for counts 1 and 3), the court did omit the sentence, The specific intent required is included in the definitions of the crimes or allegations set forth elsewhere in these instructions. Omission of that sentence did not misinform the jury about anything, and both the written instructions and the courts oral paraphrases left no doubt about where the descriptions of the required specific intent were to be found. Indeed, after the court paraphrased CALJIC No. 3.31, the courts very next words were, Now, Im going to define the crimes.

Third, Leopoldo points out that the court neither read nor paraphrased CALJIC No. 17.52 and CALJIC No. 17.53. CALJIC No. 17.52 is the separation admonition, which instructs the jurors not to deliberate or discuss any aspect of the case when in recess. The court had already given the jurors such an admonition at various points in the trial, and the admonition was largely incorporated in the courts paraphrase of CALJIC No. 1.03. Leopoldo does not explain how he could have been prejudiced by the courts failure to repeat the admonition specifically in connection with CALJIC No. 17.52. CALJIC No. 17.53 similarly admonishes the alternate jurors not to discuss the case or form any opinions about it unless and until they are substituted for some of the 12 original jurors. Again, Leopoldo fails to explain how he could have been prejudiced by the omission, because no alternate jurors substituted for the original jurors.

Fourth, Leopoldo argues that the court insinuated to the jury that the panel should reach a quick verdict and that the panel was expected [to] do so by 4:15 p.m. on the day the jury began deliberating. We have reviewed the cited portion of the transcript, and we disagree with Leopoldos characterization. The court had initially informed the jury that the trial was expected to last four days. It ran to five days, and the court apologized to the jurors and expressed the hope that no additional days would be required. The court also explained that if the jury for any reason did not reach a verdict that afternoon, they would have to come back the next day to continue deliberating. But the court did not suggest to the jurors that they ought to reach a quick verdict . . . by 4:15 p.m., and the court emphasized that the jurors should engage in a free and open discussion (e.g., they should let people have whatever input they want to give as youre discussing the case) and that each juror must make up his or her own mind (The people and the defendant are entitled to the individual opinion of each juror. So you must each consider the evidence for the purpose of reaching verdicts . . . . You must decide the case for yourself.)

Fifth, Leopoldo argues that the courts use of colloquial paraphrases rather than the formal language of the printed instructions violated the courts duty to maintain the serious decorum required in a criminal jury trial. Leopoldo cites no authority for the proposition that the courts mere use of colloquial language constitutes error (let alone prejudicial error), and we are aware of none.

Sixth and finally, Leopoldo points out that the court instructed the jury, [Y]ou follow what I tell you is the law. And Im telling you that now[.] Leopoldo argues on that basis that the court told the jury to follow the courts oral instructions, which, for the reasons already discussed, Leopoldo claims were flawed and incomplete. We again disagree with Leopoldos construction of the courts remarks and believe that no reasonable juror would have adopted it either. Before the remarks Leopoldo quotes, the court told the jury, The law requires that I read these instructions to you. However, you should know that what I am reading from, you will have in the jury room in case you want to look up something. So you will have those there. When the court later told the jury to follow what I tell you is the law, the court was saying only that the jurors should not rely on anything said about the law by the attorneys during their arguments, but rather should rely on the courts instructions. Thus, viewed in context, the courts statement that the jurors should follow what I tell you is the law was correct and innocuous. No reasonable juror would have thought that the court was saying that the courts oral instructions controlled over the written instructions that the court also provided.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, P. J.

NEIDORF, J.^*

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^[1] All subsequent statutory references are to the Penal Code unless otherwise indicated.

^[2] We will generally use only first names to refer to the individuals involved in the events underlying this prosecution, because several of them share last names. As necessary, we will use last names to distinguish defendants brother Omar Orozco from Elianas boyfriend Omar Gonzalez. And we will refer to victim Carlos Cazares by his last name, to distinguish him from Elianas cousin Carlos Gonzalez.

^* Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.