Filed 2/25/13 P. v Ormonde
CA2/6
NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
SCOTT TOSTE ORMONDE,
Defendant and Appellant.
2d
Crim. No. B233566
(Super.
Ct. No. 1349406)
(Santa
Barbara County)
ORDER
MODIFYING OPINION
AND
DENYING REHEARING
[NO
CHANGE IN JUDGMENT]
THE COURT:
It
is ordered that the opinion filed herein on January 31, 2013, be modified
as follows:
1. On page 7, the second full paragraph
beginning with "Chavez's and Negrete's testimony was adequately
corroborated" is deleted and the following paragraph is inserted in its
place:
Chavez's
and Negrete's testimony was adequately corroborated by other evidence
connecting Ormonde with narcotics sales.
Officers found a room with a couch, a television set, and marijuana
growing in the closet, like the room described by Chavez where the sales took
place. A police officer found a
"secondary cell phone with a picture of one of our GPS trackers on
it." The photo of the GPS device
tended to connect Ormonde with the narcotic sales network. It was a walkie-talkie type phone, the type
Chavez and Negrete said he used to set up sales transactions. "Unusual" phone calls were coming
in on the phone. "The direct
connect was going off. It was alerting." When the officer clicked the alert button to
make it stop, he heard a male voice say, "Primo." This corroborated Chavez' testimony that
Ormonde used different names with different phones, conduct that is consistent
with the sale of narcotics. Ormonde had
changed his phone multiple times, as Chavez said they did to avoid
detection. The jury rejected Ormonde's
innocent explanations. False and
contradictory statements of a defendant in relation to the charge against him
are themselves corroborative evidence. (People
v. Santo (1954) 43 Cal.2d 319, 327.)
There is no change in judgment.
Ormonde's petition for rehearing is
denied.
>
Filed 1/31/13 P. v. Ormonde CA2/6 (unmodified version)
NOT TO BE PUBLISHED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 SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
SCOTT TOSTE ORMONDE,
Defendant and Appellant.
2d
Crim. No. B233566
(Super.
Ct. No. 1349406)
(Santa
Barbara County)
Scott Toste Ormonde
appeals from the judgment after conviction by jury for the sale of a controlled
substance (methamphetamine) (Health & Saf. Code, § 11379, subd. (a))
for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)),
(a)). The trial court imposed and
suspended a five-year prison sentence on terms and conditions including one
year in county jail.
Ormonde contends his
conviction must be reversed because there was not sufficient evidence to corroborate
the testimony of his accomplices that he distributed methamphetamine from May
through August of 2009 or that he actively participated in a street gang during
that time period. We affirm.
FACTUAL
AND PROCEDURAL HISTORY
George Arturo Chavez
testified that he was a member of the West
Park criminal street gang and dealt
methamphetamine in 2008 and 2009.
Ormonde was his supplier and also a West
Park member.
Ormonde would
"front" the drugs to Chavez.
Chavez said he would pick up methamphetamine from Ormonde in various
places, including Ormonde's home on West Pershing
Street.
Chavez saw other West Park
members dealing with Ormonde at Ormonde's home.
Chavez' profits, "[m]ostly went to them," but Chavez took home
about $5,000 to $8,000 per month. Chavez
said the narcotics dealing was "really all about money," and it was
important to supply the gang with money.
From their profits, West Park
was expected to pay "taxes" to the umbrella gang, Surenos (or
"Mexican Mafia"), but Chavez paid taxes only for awhile. Ormonde did not put in "hard core,"
work for the gang.
To avoid detection,
Chavez and Ormonde used "walkie-talkie" type phones and code
words. The code words made it sound
"like a business." For
example, Chavez would say he needed "some work" or "boxes"
when he needed drugs. He would say he
had "time sheets to turn in," if he had money for Ormonde. They used prepaid phones so they could not be
linked to a name and they changed their phones whenever a dealer was
caught. Ormonde told Chavez he should
always "just get rid of" the drugs immediately and "don't have
nothing on you," if caught.
Ormonde told Chavez to
have someone standing ready to take over from Chavez in case of arrest, so the
"money keeps coming back."
Chavez named a close friend, Alejandro Negrete, to stand by. A San Diego Mexican Mafia member who was
involved in the drug distribution was arrested, and Ormonde "immediately
shut everything down . . . where he held drugs.
Shut everything down for two weeks." When Ormonde told everyone to "shut
everything down" they had to "clean up[]," which meant
"wherever the house or that location was at . . . [n]o fingerprints,
baggies, anything . . ." because the dealer "would be able to
cooperate."
Ormonde never revealed
his methamphetamine source to Chavez, but he always had as much as Chavez
needed. Chavez testified that Ormonde
and Luis Magana were "working together" and "very close."
Chavez was arrested in
April 2009 with a quarter pound of methamphetamine. He had three phones with him. When Chavez testified against Ormonde, he was
awaiting sentencing on federal methamphetamine trafficking charges. He faced 5 to 40 years in federal prison. There was no promise of leniency, but he
hoped the U.S. Attorney would recommend a sentence of less than 5 years based
on his cooperation against Ormonde.
After Chavez' arrest,
Negrete took over as planned. Negrete
also testified against Ormonde. Negrete
was a member of West Park
and had West Park
tattoos. Ormonde was a West Park
member in good standing. Ormonde's
moniker was "Crazy Legs." Luis
Magana was also a member of West Park.
Between April 2009 and
August 2009, Ormonde supplied Negrete with eight to ten pounds of
methamphetamine, and Negrete made $50,000 to $80,000 in profit. Ormonde "fronted" Negrete the first
quarter pound of methamphetamine. They
did not know each other well. Negrete
picked up the drugs from Ormonde at a house on Pershing
Street in a room that had a couch and television
set in it. Marijuana was growing in the
closet. Ormonde kept the drugs in a red
tool box.
Negrete sent some of his
profits to other West Park
members who were in custody so they could purchase things from the commissary,
buy and sell drugs, and make more money.
He used the rest for "partying, cars, kids, [and] the homies."
Ormonde had a
"walkie-talkie" phone and they used code words. Negrete would ask to pick up "a
gasket" (an ounce), or "a pump" (a pound) and Ormonde would tell
him to "show up at the shop," meaning the house on Pershing
Street.
Ormonde told Negrete to have a person standing by to take over if
Negrete were arrested. Negrete said that
Ormonde called "all of us being in prison part-timers because we come out
of prison, work for a little bit, get busted selling drugs and go back to
prison."
Negrete said that Luis
Magana's twin brother, Jose, was above Ormonde in the distribution chain and
sold to Ormonde. The cash went to Luis
Magana, who was high in the ranks.
Negrete was arrested in
August 2009 with about eight ounces of methamphetamine and a firearm. Negrete pled guilty to two felony
charges. He received a lenient sentence
based on his cooperation in a wiretapped phone call with another person in the
organization. Later, in exchange for
testimony against Ormonde and a co-defendant, the District Attorney
"agreed just to make that [conviction] disappear." Negrete was released from custody and was
deported to Mexico
with relocation money. He returned under
a visa to testify at trial.
One week before Negrete
was arrested, he received a message from another member of the organization who
had found a Global Positioning System (GPS) tracking device on his truck. Negrete checked his car and found one there
too. Negrete said, "We stopped
doing everything we were doing."
In October 2009,
officers searched Ormonde's home on Pershing Street. They found a walkie-talkie type phone that
contained a photograph of a GPS tracking device. In February and March of 2010, Drug
Enforcement Agency (DEA) agents recorded phone calls between several people in
the organization. Most were very brief
and vague. Two males talked about
"Scottie" getting "snitched on" and "laying low,"
but still having "shit." In
two phone calls between Ormonde and Luis Magana, they discussed meeting in Bakersfield.
On May 6, 2010, police officers searched the Pershing
Street house again. They found a room that had a couch and
television set in it. Marijuana was
growing in the closet. In a bedroom
closet they found a "West Park 13" jersey. In a nightstand, they found a notice to
Ormonde about the vehicle registration cancellation for a 1991 Honda. In a dresser, they found photos of Ormonde
with West Park
gang members making gang hand gestures.
They did not find any narcotics, scales, packaging materials,
"pay/owe" sheets, or large sums of cash. They did not find a red tool box.
On May 11, 2010, officers searched the home of Luis
Magana in Bakersfield and found
$491,520 in cash. It was packaged in
envelopes and most of it was hidden in a crawl space above a child's
bedroom. In the driveway was an
inoperable 1991 Honda that was registered to Ormonde. The keys were in a bedroom. Only the Honda linked Ormonde to Magana's
residence. Magana told officers that he
did not know Ormonde to be a drug trafficker.
Magana later forfeited
the money and pled guilty to possessing more than $100,000 in proceeds of
methamphetamine transactions. (Health
& Saf. Code, § 11370.6.) As
part of his plea agreement, Magana said he had no information helpful to
Ormonde's defense.
Magana testified at
trial and did not directly implicate Ormonde.
The court limited his examination pursuant to the 5th Amendment because
he was still facing federal charges. Magana
said that he and Ormonde were in touch by phone in 2009 and 2010 and that
Ormonde visited him in Bakersfield. He and Ormonde had been friends since high
school. He said he bought the Honda from
Ormonde but had not changed the registration because it could not pass a smog
check.
DEA special agent Edward
Allan Talbot offered the opinion that a drug trafficking organization existed
in 2009 involving Luis Magana, Jose Magana, Negrete and Chavez, and that it was
linked to the West Park Gang. Santa
Maria Police Detective Mark Streker testified as a gang expert and offered the
opinion that Ormonde was an active member and active participant of West
Park during the alleged
distribution of methamphetamine. Streker
said that West Park
is a criminal street gang. Its primary
activities include murder, drug dealing, and possessing weapons and firearms,
among other things. He described prior
methamphetamine selling activities by three members. He testified that in the last five years,
gang members have not been openly admitting their gang affiliation. He said it is common for gang members to sell
narcotics to members of rival gangs. A
member can elevate his stature by helping other gang members make money. A gang will not normally allow someone who is
not a member to have the gang's tattoos.
Ormonde testified that
he did not sell drugs and was not involved in any drug trafficking
organization. He was a member of West
Park as a teenager, and got tattoos
when he was in high school, but he was not an active member after he graduated
in 1997. He served four years in the
Navy after high school. He got the
jersey before he went into the Navy. He
forgot about it. The photos that
officers found were from his youth. He
and Luis Magana spoke about every two or three weeks and saw each other
socially about once a year. Ormonde said
he lived from paycheck to paycheck in 2008 through 2010 and his aunt had to
help him pay rent. Ormonde grew
marijuana in his closet for personal use and had a medical marijuana
"card." He acknowledged that
he had two phones. The prepaid phone was
his business line for car polishing and tattooing businesses. He offered an invoice for car polishing
equipment. He offered Navy records that
showed he had the West Park
tattoos in 1997. He offered proof of
lawful employment in 2009 and 2010. He
had no prior criminal record.
Three witnesses
testified on Ormonde's behalf about his lack of gang activity and his frugal,
family oriented lifestyle. Both said he
had changed his phone numbers.
Ormonde moved to dismiss
pursuant to section 1181 and moved for a new trial on the grounds that there
was no independent evidence to corroborate Negrete and Chavez's testimony and
that there was not sufficient evidence that Ormonde actively participated in a
street gang in 2009. The court denied
the motions.
DISCUSSION
Corroborating Evidence of Drug Trafficking (§ 1111)
Corroborating evidence,
independent from accomplice testimony, reasonably tended to connect Ormonde
with the commission of the charged narcotics sales.
Section 1111 provides
that accomplice testimony must be corroborated by "such other evidence as
shall tend to connect the defendant with the commission of the offense; and the
corroboration is not sufficient if it merely shows the commission of the
offense or the circumstances thereof."
Section 1111 codifies common law concerns about the reliability of
accomplice testimony (People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 303) and legislative concerns that an
accomplice "is deemed to have a particularly compelling motive to
lie." (People v. Vines (2011) 51 Cal.4th 830, 883.)
The corroborating
evidence required by section 1111 "may be slight and entitled to little
consideration when standing alone.
However, it must tend to implicate the defendant by relating to an act
that is an element of the crime. It need
not by itself establish every element, but must, without aid from the
accomplice's testimony, tend to connect the defendant with the
offense." (People v. Nelson (2011) 51 Cal.4th 198, 218.) We are bound by the trier of fact's
determination on the issue of corroboration "unless the corroborating
evidence should not have been admitted or does not reasonably tend to connect
the defendant with the commission of the crime." (Ibid.)
Chavez's and Negrete's
testimony was adequately corroborated by other evidence connecting Ormonde with
narcotics sales. Officers found a room
with a couch, a television set, and marijuana growing in the closet, like the
room described by Chavez where the sales took place. Ormonde had a walkie-talkie type phone. It was the type Chavez and Negrete said he
used to set up sales transactions.
Ormonde had changed his phone, as Chavez said they did to avoid
detection. The jury rejected Ormonde's
innocent explanations. False and
contradictory statements of a defendant in relation to the charge against him
are themselves corroborative evidence. (
327.) The corroborating evidence is
slight, but it tends reasonably to connect Ormonde with the narcotics sales
described by Chavez and Negrete.
Terrorism (§ 186.22, subd. (a))
Ormonde's conviction for
street terrorism was supported by substantial evidence. To sustain a conviction for violation of
section 186.22, subdivision (a) there must be evidence that the defendant
"actively participate[d]" in a criminal street gang.
evidence of his participation here. But
proof of "active participation," is sufficient if the evidence
establishes that the defendant's involvement with the gang is "more than
nominal or passive." (
743, 745.) It is not necessary that the
defendant devote all, or a substantial part, of his time and efforts to the
gang. (Id. at p. 752.)
Ormonde had West
Park and Surenos tattoos. He acknowledged he knew about the gang and
its illegal activities. Chavez and
Negrete each testified that Ormonde was a member of West
Park in 2009. Chavez, who was an "enforcer,"
testified that Ormonde had not disclaimed membership. They testified that Ormonde knew they were
members when they were dealing drugs with him.
Chavez and Negrete said they saw other West
Park members at Ormonde's house in
2008 or 2009. Their testimony was
corroborated by the West Park
jersey found in Ormonde's closet in 2010, by phone calls that year linking
Ormonde with other West Park
members, and by Ormonde's West Park
and Surenos tattoos.
That the main purpose of
the drug operation was to make a profit is immaterial. It also assisted the gang. Chavez explained that the main purpose was to
make a profit because it was important to supply the gang with money. Younger members fought and
"tagged," while more senior members sold drugs and made money.
That people were
involved who were not West Park
members, is also immaterial. Chavez
testified that some of his subdealers were members of Northwest, an
"enemy," but they all claimed under Surenos and, "when it came
to dealing drugs and money," West
Park would supply Northwest. The gang expert testified that this was not
an uncommon practice among rival gangs.
It was within the jury's
purview to reject Ormonde's explanation that he was no longer a West
Park member, that he forgot about
the jersey, that he intended to have his gang tattoos removed, and that he
associated with West Park
members only because they were his friends.
We will not disturb the jury's credibility findings.
DISPOSITION
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We
concur:
YEGAN, J.
PERREN, J.
Kay S. Kuns, Judge
Superior
Court County
of Santa Barbara
______________________________
Arielle Bases, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, James William Bilderback II,
Supervising Deputy Attorney General, Tita Nguyen, Deputy Attorney General, for
Plaintiff and Respondent.
unless otherwise stated.
"Any person who actively participates in any criminal street gang with
knowledge that its members engage in or have engaged in a pattern of criminal
gang activity, and who willfully promotes, furthers, or assists in any
felonious criminal conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year, or by
imprisonment in the state prison for 16 months, or two or three years."
