P. v. Ortega
Filed 1/9/13 P. v. Ortega
CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SIX
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS FERNANDO ORTEGA,
Defendant and Appellant.
2d
Crim. No. B232205
(Super.
Ct. No. 2007045229)
(Ventura County)
Luis
Fernando Ortega appeals the judgment following his conviction for
circumstance allegation that the murder was committed while lying in wait to be
true. (§ 190.2, subd.
(a)(15).) The jury also found
allegations to be true that the murder was committed for the benefit of, at the
direction of, or in association with a criminal
street gang (§ 186.22, subd. (b)(1)), and that a principal personally
discharged a firearm (§ 12022.53, subd. (e)(1)). Ortega was sentenced to life without the
possibility of parole for the offense, plus 25 years to life for the firearm
enhancement. Sentence for the gang
enhancement was stayed.
Ortega
contends the trial court erred by excluding evidence of third party
culpability, and by admitting prejudicial gang evidence. He also claims
regarding polygraph test evidence. We
affirm.
FACTS
Sofia
N. and her family lived in a Newbury Park, California, condominium. Juan Nabte lived at the same residence as a
boarder. Ortega lived within walking
distance of the Nabte residence.
Nabte
and Ortega were members of rival criminal street gangs. Nabte was a member of the Tocas gang and Ortega
was a member of the Mara Salvatrucha (MS-13) gang. Fernando Chaclan, Luis Lima and Jenny Patino
were also members of MS-13. Sofia was
not a member of MS-13 but was present when Jenny Patino was "jumped
into" the gang and was Ortega's former girlfriend. There had been conflict between Lima and
Nabte before the murder.
During
the evening of November 4, 2007, Sofia was with Ortega at Ortega's
residence. Between 10:30 and 11:00 p.m.,
Ortega and Chaclan walked Sofia to her home.
A group of people were celebrating Nabte's 21st birthday in the
residence. Approximately five minutes
after leaving Sofia at her home, Ortega telephoned her and asked her to go
upstairs to her bedroom and stay away from the people who were drinking at the
Nabte party. Sofia told Ortega that
Nabte was standing outside the residence.
In a second telephone call, Ortega confirmed that Sofia had gone
upstairs. Shortly thereafter, Nabte was
fatally shot by Ortega when Nabte was outside his residence smoking a
cigarette.
Chaclan
and Lima were with Ortega on the street at the time of the shooting and acted
as "lookouts" for Ortega. Lima
brought the .22-caliber rifle with which Nabte was shot. Jenny Patino saw Ortega, Chaclan and Lima
running to the front of Nabte's residence. She also saw that Lima was carrying a
rifle. After the shooting, Ortega, Lima
and Chaclan ran away. Patino helped
dispose of the rifle and attempted to create an alibi for Ortega.
Ortega,
Lima, Chaclan, and Patino were arrested.
Lima was charged with and convicted of first degree murder. As the result of plea agreements, Chaclan and
Patino were convicted of being accessories after the fact. (§ 32.)
They also admitted gang enhancement allegations. As part of their plea agreements, Chaclan and
Patino agreed to testify against Ortega.
At trial, Chaclan testified that he, Ortega and Lima discussed who would
shoot Nabte and Ortega volunteered to do so.
Patino testified that Ortega admitted to her that he shot Nabte for
"MS," Ortega's gang.
DISCUSSION
No Error in Exclusion of Third Party Culpability
Evidence
Ortega
contends the trial court erred by excluding evidence of third party
culpability. He argues that evidence
showed another person threatened Nabte hours before the shooting and had a
motive to commit the murder.
A
criminal defendant has the right to
present evidence that a third party is responsible for committing a charged
offense if the evidence, like any other evidence, is relevant and its probative
value is not substantially outweighed by the risk of undue prejudice. (People
v. Hall (1986) 41 Cal.3d 826, 833-834; Evid. Code, §§ 350, 352.) Third party culpability evidence need not be
"'substantial proof of a probability' that the third person committed the
act," but only "capable of raising a reasonable doubt of defendant's
guilt." (Hall, at p. 833; see also People
v. Lewis (2001) 26 Cal.4th 334, 372.)
The "rule does not require 'that any evidence, however remote, must
be admitted to show a third party's possible culpability . . . . [E]vidence of
mere motive or opportunity to commit the crime in another person, without more,
will not suffice to raise a reasonable doubt about a defendant's guilt:
linking the third person to the actual perpetration of the crime.'" (
in People v. Kaurish (1990) 52
Cal.3d 648, 685.) We review the trial
court's decision to admit or exclude third party culpability evidence under the
abuse of discretion standard. (
577-578.)
Alejandra
Robles was in a romantic relationship with Nabte at the time of the
murder. Ortega proffered evidence that a
man named Ricardo Gutierrez previously had fathered two children with
Robles. On the day of the murder, when
Robles brought the children to visit Gutierrez, Gutierrez tried to reconcile
with Robles. Robles stated that she had
no interest in reconciliation. Gutierrez
angrily told Robles that he could find out where Nabte lived and that she and
her boyfriend would "die one day."
The offer of proof also included an assertion that Gutierrez telephoned
Robles later in the day and Nabte answered the telephone. Gutierrez threatened Nabte directly over the
telephone, stating: "I can go one on one with you, but you're not gonna
survive."
In its
motion to exclude the evidence of Gutierrez's possible culpability in the
murder, the prosecutor stated that Gutierrez told police he had nothing to do
with the Nabte murder. He claimed he was
with his new girlfriend at the time. The
girlfriend corroborated his story. The
prosecutor argued that there was no eyewitness or physical evidence placing
Gutierrez at the crime scene, and the offer of proof included no reference to
evidence that Gutierrez had access to a firearm or actually knew where Nabte
lived.
The
trial court excluded the evidence on the ground that there was no evidence
linking Gutierrez to the actual perpetration of the murder and, based on a
search warrant covering Gutierrez's residence, there was some evidence
excluding Gutierrez as a suspect. We
conclude that the trial court did not abuse its discretion in so ruling.
Ortega
was unable to produce any evidence linking Gutierrez to the murder. His offer of proof included no evidence that
Gutierrez was at or near the scene of the murder when the shooting
occurred. Moreover, there was overwhelming
evidence that Ortega shot Nabte and that Chaclan and Lima assisted Ortega at
the time of the shooting and Patino provided assistance after the crime was
committed. There is no suggestion that
any other individuals were involved with the crime, or that Gutierrez had any
contact with Ortega, Chaclan, Lima or Patino at any time before or after the
murder.
>
Evidence
that Gutierrez threatened Robles and Nabte would have shown anger over a
perceived betrayal but not a plan or intent to commit murder. Such evidence would indicate a possible
motive to kill but it does not constitute "'. . . direct or circumstantial
evidence linking [Gutierrez] to the actual perpetration of the
crime.'" (People v. Kaurish, supra, 52 Cal.3d at p. 685;
Ortega's theory that a threat based on jealousy escalated into murder is
pure speculation.
Ortega separately argues
that exclusion of third party culpability evidence violated his federal
constitutional right to present a defense.
We disagree. Application of the ordinary rules of evidence, including ruling
under Evidence Code section 352, does not infringe on a defendant's
constitutional right to present a defense.
(People v. Fudge (1994) 7 Cal.4th 1075, 1102–1103; People v.
Hall, supra, 41 Cal.3d at p. 834.)
No
Ineffective Assistance Regarding Reference to Polygraph Test
Fernando Chaclan and
Jenny Patino entered into plea agreements giving them use immunity in return
for a promise to testify truthfully.
Chaclan's agreement included a provision that he would "participate
and provide truthful information to law enforcement in any additional
investigative interview or polygraph examination conducted with [him] as part
of the case against Luis Ortega."
Patino's agreement had a virtually identical provision. The plea agreements were admitted into evidence
in their entirety without objection by defense counsel.
Ortega does not
challenge their admission generally, but asserts that
the plea agreements should have been redacted to eliminate the reference to
polygraph examinations. He contends that
defense counsel's failure to request such a redaction constitutes ineffective
assistance of counsel. We disagree.
To prevail on an
ineffective assistance of counsel claim, an appellant must demonstrate that
trial counsel's representation fell below an objective standard of
reasonableness and that the deficient representation prejudiced appellant. (Strickland
v. Washington (1984) 466 U.S. 668, 687.)
On appeal, there is a strong presumption that counsel's conduct falls
within the range of reasonable professional assistance, and we accord great
deference to counsel's reasonable tactical choices including decisions
regarding objections to evidence. (
703; see also People v. Weaver (2001)
26 Cal.4th 876, 931.) When the reasons
for counsel's decisions do not appear in the record, we will find ineffective
assistance of counsel only if there could be no conceivable reason for
counsel's acts or omissions. (
"'"demonstrable reality," not simply speculation.'" (People
v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
We conclude that there was no ineffective assistance of counsel in this
case.
Evidence Code section
351.1 provides in pertinent part that, absent a stipulation, "the results of a polygraph examination, the opinion of a polygraph
examiner, or any reference to an offer to
take, failure to take, or taking of a polygraph examination, shall not be
admitted into evidence in any criminal proceeding . . . ." (Italics added.) Accordingly,
an objection to the plea agreements that Chaclan and Patino had agreed to take
polygraph examinations may have been meritorious. Because a request for redaction could be made
outside the presence of the jury, we see no particular tactical reason for
counsel's decision not to object.
Counsel may have concluded that no benefit would accrue by making the
objection because the reference to polygraph examinations was brief and there
is nothing in the record that any polygraph examination was ever given or
requested.
Such
a conclusion may have been reasonable, but we consider the importance of a
objection as pertaining to the issue of prejudice from counsel's failure to
object. We conclude that Ortega fails to
establish prejudice as the required second prong of an ineffective assistance
of counsel claim. Cases that have held
admission of polygraph evidence to be error concerned more significant
evidence. In
(2011) 52 Cal.4th 610, our Supreme Court held that it was error to admit
evidence that a witness had taken and failed a polygraph test, but that the
error was harmless under the circumstances.
(At p. 664.)
by Ortega,
polygraph examination. The trial court
excluded evidence of the results, but allowed a police detective to testify
that the witness had offered to take the examination. (Id. at p. 389.) The appellate court concluded that admitting
the detective's testimony was error and prejudicial because there was a "serious danger . . . that one or more jurors concluded
that [the witness] passed the polygraph examination and that she was,
therefore, worthy of belief." (Id. at p. 390.)
Ortega also cites
F.2d 1059, where, similar to the instant case, the court concluded that the
trial court erred in not redacting a polygraph examination clause from the plea
agreement. The court, however, emphasized
that the prejudice to the defendant resulted from the prosecution's prejudicial
use of the unredacted plea agreements, not its mere admission into
evidence. (Id. at p. 1072.) The court stated that the prosecution, through argument,
tied "the substantive value of . . . the witnesses'
promises always to be truthful with the mechanical effectiveness of the
polygraph. The Government argued at
length, vigorously and effectively, that the jury could believe the testimony
given by the three main witnesses because the binding force of the plea-bargain
guaranteed their veracity. It was not
simply that those persons could be counted on, as manifest by their character,
to keep their bargain, but that the contract contained a mechanism to keep them
honest. In that linkage lay the
operative core of the plea agreements and their forensic value." (Ibid.)
Here,
there were no polygraph examinations given, and no argument by the prosecution
regarding the polygraph provision in the plea agreements or even any mention of
a polygraph examination. There was no
evidence or argument that the polygraph reference influenced or gave any
heightened credibility to the witness testimony.
Ortega contends the
trial court erred in allowing the prosecution's gang expert to testify that he
had seen a photograph of Ortega in which he was holding a sawed-off shotgun and
flashing an MS-13 gang sign. He argues
that the testimony was cumulative and that its probative value was
substantially outweighed by the potential for prejudice. (Evid. Code, § 352.) He also argues that the evidence was
prohibited propensity evidence. (Evid.
Code, § 1101.) We disagree. The evidence was admissible to support the
opinion of the prosecution gang expert that Ortega was a gang member and that
the charged offense was gang related.
To establish the gang
enhancements alleged in this case, the prosecution had
to prove the charged offense was committed "for the benefit of, at the
direction of, or in association with [a] criminal street gang, with the
specific intent to promote, further, or assist in any criminal conduct by gang
members." (§ 186.22, subd.
(b)(1).) Evidence that the defendant was
a member of a gang, including photographs indicating his or her gang
affiliation, is admissible to show that the underlying offense is gang
related. (People v. Valdez (2011)
201 Cal.App.4th 1429, 1433–1434, 1437 [photograph of defendant making gang
signs and other content from MySpace page properly admitted to explain gang
motive for crime]; People v. Garcia (2008) 168 Cal.App.4th 261, 276-278
[photographs of defendants making gang signs and holding shotgun properly
admitted to prove intent].)
Here,
the gang sign shown in the photograph tended to establish that Ortega was a
member of the MS-13 gang. The shotgun
shown in the photograph tended to establish the violent nature of criminal
street gangs and that the murder was gang related. In addition, it must be emphasized that the
photograph itself was not admitted into evidence. Surely, any inflammatory impact the
photograph would have was reduced in the gang expert's descriptive
testimony. In any event,
admitted "did
not rise to the level of evoking an emotional bias against the defendant as an
individual apart from what the facts proved." (People v. Zepeda (2008) 167 Cal.App.4th 25, 35,
italics added.)
Ortega
relies heavily on People v. Barnwell (2007)
41 Cal.4th 1038, a murder case, in which a victim was shot with a handgun. In Barnwell,
the trial court admitted testimony from a police
officer showing that a year before the murder defendant possessed another
handgun similar to the murder weapon. (
that the only relevance of possession of a weapon unrelated to the underlying
charges is to show a propensity or disposition toward violence. (Id. at
pp. 1056-1057.) Barnwell is inapposite.
There were no gang allegations or gang evidence in the case, and the
only purpose for the disputed evidence was to show a propensity to carry a
gun. Here, the shotgun evidence was
admitted as proof that the shooting was committed for the benefit of a criminal
street gang.
The
judgment is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We
concur:
GILBERT, P. J.
YEGAN, J.
Rebecca
S. Riley, Judge
Superior
Court County of Ventura
______________________________
Richard
E. Holly, 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, Margaret E. Maxwell, Theresa A.
Patterson, Deputy Attorneys General, for Plaintiff and Respondent.
name="_ftn1" title="">[1] All statutory references are to the Penal Code unless otherwise stated.
