P. v. Orozco
Filed 2/26/13
P. v. Orozco CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARGARITO OROZCO,
Defendant and
Appellant.
F062311
(Super.
Ct. No. BF127437A)
APPEAL
from a judgment of the Superior Court of
Kern County. Sidney P. Chapin,
Judge.
Kari
E. Hong, under appointment by the Court of Appeal, for Defendant and Appellant.
Office
of the State Attorney General,
Sacramento, California, for Plaintiff and Respondent.
On August 16, 2010, appellant, Margarito Orozco, pled no
contest to driving with a suspended license (count 2/Veh. Code, §
14601.1). On February 17, 2011, after a
bench trial, the court found Orozco guilty of being a felon in possession of ammunition
(count 1/Pen. Code, § 12316, subd. (b)(1)) and found true three prior prison
term enhancements (Pen. Code, § 667.5, subd. (b)).
On March 18, 2011, the court
sentenced Orozco to an aggregate five-year term, the mid-term of two years on
the substantive offense and three one-year prior prison term enhancements. Following independent review of the record
pursuant to
(Wende), we affirm.
FACTUAL AND PROCEDURAL HISTORY
On March 30, 2009, just after
midnight, Bakersfield Police Officer Allen Ronk was on patrol with Officer Dean
Barthelmes when he stopped a car driven by Orozco because it had a license
plate that belonged to a different vehicle and the registration tag on the
plate was expired. When Ronk asked Orozco
for his driver’s license, Orozco informed him that it was suspended. After running Orozco’s license and confirming
that it was suspended, Officer Ronk impounded the vehicle and conducted an
.22-caliber cartridges on top of the center console and two more on the front
passenger’s floorboard just right of the console. Underneath the front passenger seat Ronk
found a .357 sig semiautomatic magazine.
After he was arrested, Orozco told Ronk that earlier that day he had
been shooting rabbits with his friends and that he took the ammunition because
he was going to destroy it.
On October 28, 2010, the prosecutor
filed an information charging Orozco with driving with a suspended license with
priors, possession of ammunition by a felon, and three prior prison term
enhancements.
On August 16, 2009, Orozco pled no
contest to driving with a suspended license.
On August 17, 2010, a jury
convicted Orozco of being a felon in possession of ammunition.
On August
18, 2010, the court found true the three prior prison term enhancements.
On
September 7, 2010, Attorney Gregory Mitts substituted in as counsel of record
for Orozco.
On October
13, 2010, Attorney Mitts filed a motion
for a new trial alleging, in pertinent part, that Orozco was denied the
effective assistance of counsel by his trial counsel’s failure to file a motion
to suppress.
On October
29, 2010, the court granted Orozco’s motion for a new trial and vacated the
jury’s guilty verdict.
On January
31, 2011, Orozco filed a motion to suppress.
On that date, the court heard and denied the motion.
On February
2, 2011, Orozco waived his right to a jury
trial and the parties stipulated to a bench trial on the felon in
possession charge and that the charge would be submitted to the court on the
reporter’s transcript and the documentary
evidence from the jury trial. The
parties also stipulated that the court would redetermine the truth of the
enhancements based on the prison package that the prosecutor had previously
presented to prove those enhancements.
On February
17, 2011, the court found Orozco guilty of being a felon in possession of
ammunition and it again found true the three prior prison term
enhancements.
On March
18, 2011, the court sentenced Orozco to an aggregate five-year term, the middle
term of two years on the substantive offense and three one-year prior prison
term enhancements.
Orozco’s appellate counsel has
filed a brief which summarizes the facts, with citations to the record, raises
no issues, and asks this court to independently review the record. (Wende,
supra, 25 Cal.3d 436.) However, in a document filed on May 29, 2012,
Orozco cites several alleged contradictions
between the trial testimonies of Officer Ronk and Officer Barthelmes to contend
that they support a reversal of the trial court’s denial of his suppression
motion. There is no merit to this
contention.
“[I]n reviewing the trial court’s
suppression ruling, we consider only the evidence that was presented to the
trial court at the time it ruled.
[Citation.]†(
78, fn. 18.)
Officer Ronk was the only witness
at the hearing on Orozco’s suppression motion.
Further, the alleged contradictions were contained in the officers’
trial testimonies which the court did not consider in ruling on Orozco’s
suppression motion. Therefore, we cannot
consider them in determining whether the court abused its discretion when it
denied Orozco’s motion.
[t]he trial court, not the reviewing court, ‘is vested with the power to judge
the credibility of the witnesses, resolve any conflicts in the testimony, weigh
the evidence and draw factual inferences in deciding whether a search is
constitutionally unreasonable.’ [Citation.] ‘The uncorroborated testimony of a single
witness is sufficient to sustain a conviction, unless the testimony is
physically impossible or inherently improbable.’ [Citation.]
To reject the statements given by a witness whom the trial court has
found credible, either they must be physically impossible or their falsity must
be apparent without resorting to inferences or deductions. [Citation.]
When two or more inferences can reasonably be deduced from the facts as
found, a reviewing court is without power to substitute its deductions for
those of the trier of fact.
[Citation.]†(
v. Duncan (2008) 160
Cal.App.4th 1014, 1018.)
Further, an “officer may conduct a
warrantless inventory
search
of [an] impounded vehicle.†(
v. Schmitz (2012) 55
Cal.4th 909, 922, fn. 10.)
During the hearing on Orozco’s
suppression motion, Officer Ronk testified that he discovered the ammunition in
Orozco’s vehicle during an inventory search of the vehicle prior to it being
impounded. It is clear from the trial
court’s denial of Orozco’s motion that the trial court believed Officer Ronk’s
testimony, which was neither physically impossible nor patently false. Thus, we conclude that the court did not err
when it denied Orozco’s motion to suppress.
Further, following an independent
review of the record we find that no reasonably arguable factual or legal
issues exist.
DISPOSITION
The judgment is affirmed.
Poochigian, Acting P.J., Detjen, J., and Franson, J.
