P. v. Ortiz

Filed 9/19/07 P. v. Ortiz 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Madera County. John W. DeGroot, Judge.

Susan K. Keiser, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Brian Alvarez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Claudio Domingo Ortz attacked his stepson Max Caldern with a rake, breaking the handle over his head and gouging his back with the metal teeth, and clawed his face with his nails. A jury found him guilty of assault with a deadly weapon. ( 245, subd. (a)(1).^[1]) The court sentenced him to the three-year midterm. On appeal, he argues that he was prejudiced by (1) exclusion of evidence of a 17-year-old incident of violence by Caldern, (2) prosecutorial misconduct, (3) denial of his motion for a mistrial, (4) ineffective assistance of counsel, (5) cumulative error, (6) lack of a diagnostic report before sentencing, and (7) denial of probation. We will affirm the judgment.

FACTS

Feeling lonely, Ortz asked Caldern, who was living at the time with his mother and his two sisters in San Jose, to live with him in Madera. Caldern agreed, took a job as an overnight stock man at a big box retailer, and slept during the day.

One morning as Caldern got off work, Ortz asked him to meet at a convenience store to give him some gas money. That was routine. Caldern gave him the money and asked him if he had slept, as he looked as if he had not. The question upset Ortz. Two or three hours later, Ortz arrived home, yelled at Caldern, banged on his door to keep him awake, and told him he wanted him out of the house if he did not help with yard work. Only after Ortz left in the middle of the afternoon did Caldern get any sleep.

After Caldern awoke, he called his mother and talked with her about Ortz. She told him to just hang in there. He went outside and raked leaves. He kept giving Ortz chances because his mother and his sisters were moving away and he had nowhere else to go.

When Ortz returned home that evening, Caldern was still outside raking leaves. Ortz yelled at him, saying its too late and told him to get the fuck out. Caldern thought Ortz looked like a mad man ready to beat the crap out of somebody. Screaming, Ortz grabbed the rake out of Calderns hands, broke the handle over his head and gouged his back with the metal teeth, and clawed his face with his nails. Caldern pushed him away. Ortz fell to the ground. Caldern drove to the police station, where an officer noted a large lump on his head, gouge marks on his back consistent with the points of a metal rake, and gouge marks on his face. The officer called an ambulance to take him to the hospital.

After his wounds were treated, Caldern left the hospital, spent the night at a hotel, and in the morning went back to Ortzs house, where an officer arrested Ortz after seeing Calderns wounds and hearing about the events of the day before. Ortz admitted to the officer that he hit Caldern over the head with a rake, which broke the handle, and that he struck him in the back with the metal part of the rake. The officer testified that Ortz said nothing to him about acting in self-defense and that his investigation showed Ortz, not Caldern, was the aggressor.

After his arrest, Ortz told the officer that he regretted the incident and that he was intoxicated at the time. Before trial, he wrote Caldern a letter telling him youre not going to jail if you confess to attacking me first. Jury will say defendant not guilty and we all go home.

Testifying in his own defense, Ortz denied using profanity and said that after he tried to grab the rake from Caldern the two of them struggled until the handle broke, when Ortz hit him on the head with it, not knowing that its considered a weapon. He testified that he did not recall scratching Calderns face with his nails or seeing marks on his face.

DISCUSSION

1. Evidence of 17-Year-Old Incident of Violence

Ortz argues that he was prejudiced by the courts exclusion of evidence of a 17-year-old incident of violence in which Caldern basically attacked him. The Attorney General argues the contrary.

The prosecutor opposed Ortzs request to admit the evidence and characterized the incident as Calderns pulling Ortz off his mother as the two fought with each other. Ortz, on the other hand, argued that by showing Caldern manhandled him in some way and caused him some injury the evidence was relevant to show size, strength, aggression, and reasonableness of [his] self-defense. The court ruled the evidence inadmissible under Evidence Code section 352: Its just too remote to have any evidentiary value whatsoever.

Relevance, of course, is not the sine qua non of admissibility. The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, 352.) The remoteness of the incident not only diminished the relevance of the evidence but also enhanced the probability of necessitating undue consumption of time and creating substantial danger of confusing the issues and misleading the jury.

On appellate review of an Evidence Code section 352 ruling, the deferential abuse of discretion standard governs. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) By that standard of review, the record shows no abuse of discretion. The question whether the courts ruling rendered his trial so fundamentally lacking in fairness as to violate due process governs Ortzs constitutional claim. The record answers that question in the negative, so we reject his due process argument as well. (See People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3 (Sanders); Jammal v. Van de Kamp (9th Cir. 1991) 926 F.2d 918, 919-920 (Jammal).)

2. Motions in Limine

Ortz argues that the prosecutor committed prosecutorial misconduct not only by questioning Caldern about Ortzs drug use, despite a contrary ruling on a motion in limine, but also by knowingly presenting and arguing false evidence about Calderns character for nonviolence. The Attorney General argues the contrary.

First, we turn to the issue of evidence of Ortzs drug use. Before trial, he acknowledged his intent to defend on the ground of self-defense but nonetheless sought to exclude as highly prejudicial and without foundation the evidence of allegations by members of his family that he used narcotics. The prosecutor argued that Ortzs drug use was relevant to Calderns fear of him and made the following offer of proof:

On the date in question [Caldern], in observing [Ortz] when he was attacked, he believe[d] that [Ortz] was either under the influence of alcohol and/or drugs or combination thereof. This is only his opinion based upon 30 years of knowing [Ortz] and ongoings [sic] in the house. (Italics added.)

On the basis of the prosecutors offer of proof, the court ruled admissible the evidence of Calderns opinion based onprior experience that Ortz on the day in question was under the influence of alcohol or drugs or both. (Italics added.) Moments later, the court added: Well, lets leave it to being under the influence of alcohol and/or drugs previously and not get into specifics because then we get into a wide range of character issues. (Italics added.)

At trial, the prosecutor asked Caldern what he meant when he testified he did not know what he was getting into when he moved to Madera to live with Ortz. Caldern replied, The past two years I didnt didnt know [Ortz] was heavily into drugs. Ortz objected. The court sustained the objection. The prosecutor asked, Have you seen drugs in the house? Caldern replied, In the past two years, yes, I have. Again Ortz objected. The court sustained the objection and, out of the presence of the jury, explained to the prosecutor that the order allowing the admission of evidence of Ortzs drug use referred only to the day of the attack. It was improper character evidence, the court stated. The prosecutor apologized for the misunderstanding.

Ortz moved for a mistrial, arguing that the jury might have been prejudiced already. The court denied the motion on the grounds that striking the answer and admonishing the jury will take care of any error. The court immediately admonished the jury that a question asked a witness is not evidence and that an order sustaining an objection to a question also strikes the answer. So we had two questions, two answers, and the answers are stricken. You are to disregard the question and the answer.

In reliance on People v. Haskett (1982) 30 Cal.3d 841 (Haskett), Ortz argues that the prosecutor used deceptive or reprehensible methods to attempt to persuade the jury. (Id. at p. 866.) We disagree. The prosecutors offer of proof, the courts ruling, and the courts later comments all conflated Calderns observations of Ortz in the past with his opinion about Ortz on the day of the charged crime. Since the record shows no prosecutorial misconduct, Haskett is inapposite.

So the question before us is whether prejudice ensued from the prosecutors misunderstanding the scope of the courts ambiguous ruling on his own equally ambiguous offer of proof. The court sustained both of Ortzs objections, struck both of Calderns answers, and admonished the jury to disregard the questions and the answers alike. In the absence of a contrary showing, jurors are presumed to correlate, understand, and follow the courts instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Ortz admitted to the officer that he struck Calderns head and back with the rake but uttered nary a word about self-defense. Yet before trial he urged Caldern to admit that he initiated the violence. Caldern suffered injuries to his face, head, and back, but Ortz suffered none at all. Since his defense of self-defense was inherently implausible, the record answers in the negative the question before us. (Cf. People v. Turner (1990) 50 Cal.3d 668, 688.)

Second, we turn to the issue of evidence of Calderns character for nonviolence. On the basis of the courts exclusion of evidence of a 17-year-old incident of violence (ante, part 1), Ortz argues that the prosecutor knowingly presented and argued false evidence about his character:

Q Now, did you attack [Ortz] on [the day in question]?

A [On the day in question], no, I didnt.

Q Have you ever attacked him?

A No.

Q Now, he is claiming this is self defense, that you hit him first or you threatened him?

A I didnt threaten him nor did I hit him first.

Q Did you at any time on that day after he struck you with the rake, did you hit him?

A No, I did not.

Q You pushed him down at one point; is that right?

A Yes.

Q That was to get away from him?

A Yes.

Ortz made no objection to Calderns testimony. In argument to the jury, the prosecutor made the following brief comment about his testimony:

[Caldern] said he never hit [Ortz]. He pushed him, said he didnt hit [him], wouldnt have hit [him].

The Attorney General seeks to invoke the general rule that in the absence of a timely objection appellate review of a claim of prosecutorial misconduct is forfeited. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1253.) Ortz argues that the general rule is inapplicable since no admonition could have cured the harm, even if he had made a timely objection, so a miscarriage of justice ensued. (People v. Green (1980) 27 Cal.3d 1, 34, overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, and People v. Martinez (1999) 20 Cal.4th 225, 233-237, as stated by People v. Dominguez (2006) 39 Cal.4th 1141, 1155.)

The record belies Ortzs argument. Only if he reasonably believed that he was in imminent danger of suffering bodily injury, reasonably believed that the immediate use of force was necessary to defend against that danger, and used no more force than was reasonably necessary to defend against that danger was his defense of self-defense legitimate. (CALCRIM No. 3470.) The prosecutor argued to the jury only the events of the day in question, nothing about the events of 17 years ago. Not surprisingly, the jury deliberated less than an hour before finding him guilty. As noted above, his defense of self-defense was inherently implausible. On that record, the question and answer he now challenges was harmless.

Finally, since the tangential references to Ortzs drug use and Calderns character for nonviolence did not render the trial so fundamentally lacking in fairness as to violate due process, our rejection of both of his arguments on the basis of state law negates the federal constitutional grounds of those arguments as well. (See Sanders, supra, 11 Cal.4th at p. 510, fn. 3; Jammal, supra, 926 F.2d at pp. 919-920.)

3. Motion for Mistrial

On the basis of the prosecutors questions and Calderns answers about Ortzs drug use, Ortz argues that the courts denial of his motion for a mistrial was an abuse of discretion. The Attorney General argues the contrary.

A ruling denying a motion for a mistrial is reviewable on appeal for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) After sustaining Ortzs objections to Calderns testimony, the court struck and admonished the jury to disregard not only Calderns answers but also the prosecutors questions. A motion for a mistrial presupposes error plus incurable prejudice. (People v. Gatlin (1989) 209 Cal.App.3d 31, 38.) Since no prejudice ensued from the jurys hearing those questions and answers (ante, part 2), the requisite showing for relief on appeal ipso facto is lacking.

4. Assistance of Counsel

Ortz argues that his attorney rendered ineffective assistance of counsel by failing to move for a mistrial and by failing to introduce rebuttal evidence after Caldern replied in the negative to the prosecutors question whether he had ever attacked Ortz. The Attorney General argues the contrary.

By guaranteeing access to counsels skill and knowledge and implementing the constitutional right to an ample opportunity to meet the case of the prosecution, the right to counsel protects the due process right to a fair trial. (Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland).) The requisite showing for relief on appeal is that the attorneys performance fell below an objective standard of reasonableness and prejudiced the defense. (Id. at pp. 687-692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.) A reviewing court can adjudicate the issue solely on the issue of prejudice without evaluating the attorneys performance. (Strickland, supra, at p. 697.) We will do so here.

As noted above, the prosecutors question (Have you ever attacked him?) and Calderns answer (No.) were harmless (ante, part 2), so ipso facto the absence of a motion for a mistrial and of rebuttal evidence were equally harmless. As the law neither does nor requires idle acts, so an attorney has no duty to make a futile request. (Civ. Code, 3532; see People v. Anderson (2001) 25 Cal.4th 543, 587.) Ortzs ineffective assistance of counsel argument is meritless.

5. Cumulative Error

Ortz argues that cumulative error prejudiced him. The Attorney General argues the contrary. Our review of the record shows no cumulative error requiring reversal of the judgment. (See People v. Heard (2003) 31 Cal.4th 946, 982; People v. Bradford (1997) 15 Cal.4th 1229, 1344.) A defendant is entitled to a fair trial but not a perfect one. (Lutwak v. United States (1953) 344 U.S. 604, 619.) Ortz received the fair trial to which he was entitled.

6. Diagnostic Report

Ortz argues that the court committed an abuse of discretion by not ordering a section 1203.03 diagnostic report before sentencing. The Attorney General argues the contrary.

The statute provides that if the court concludes that a just disposition of the case requires a diagnostic report the court may order one. ( 1203.03, subd. (a).) Only if not ordering a report before sentencing exceeds the bounds of reason does the court commit an abuse of discretion. (People v. Harris (1977) 73 Cal.App.3d 76, 85.)

Before imposing sentence, the court read and considered the probation report, which chronicled in detail Ortzs alcohol, drug, and health problems. (Cf. People v. Peace (1980) 107 Cal.App.3d 996, 1000-1002.) The court specifically noted his bipolar disorder as a circumstance in mitigation. That record shows no abuse of discretion in sentencing Ortz without a section 1203.03 diagnostic report. (See People v. Swanson (1983) 142 Cal.App.3d 104, 110-111.)

7. Denial of Probation

Ortz argues that the court committed an abuse of discretion by not granting him probation. The Attorney General argues the contrary.

At the probation and sentencing hearing, the court noted that Ortzs use of a deadly weapon presumptively made him statutorily ineligible for probation and found that the case was not an unusual one in which the interest[s] of justice would best be served if he were granted probation. ( 1203, subd. (e)(2).) He challenges the denial of probation with the criteria for determining whether the statutory presumption against probation can be overcome. (Cal. Rules of Court, rules 4.413(b)^[2][[T]he court shall apply the criteria in subdivision (c) to evaluate whether the statutory limitation on probation is overcome.], 4.413(c)(2)(i) [The defendant participated in the crime under circumstances of great provocation, coercion, or duress not amounting to a defense, and the defendant has no recent record of committing crimes of violence.], 4.413(c)(ii) [The crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation.], 4.413(c)(iii) [The defendant is youthful or aged, and has no significant record of prior criminal offenses.] (italics added).) The criteria in the rule are in the conjunctive, not the disjunctive. The language of the rule is not to be read expansively. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1227.)

Nothing in the record warrants a finding that Ortz suffered great provocation, coercion, or duress not amounting to a defense (Cal. Rules of Court, rule 4.413(c)(i)), that there was a high likelihood that [he] would respond favorably to mental health care (Cal. Rules of Court, rule 4.413(c)(ii)), or that he was youthful or aged (Cal. Rules of Court, rule 4.413(c)(ii)). Quite to the contrary, the record shows, and the court found, that the crime was a vicious, unprovoked attack on a vulnerable victim by a person who posed a risk of future violence due to well documented drug abuse and bipolar disorder if he were not incarcerated. Ortiz was a 45-year-old offender neither youthful nor aged.

Even though the court had the authority to use additional criteria to overcome the presumptive statutory ineligibility for probation (Cal. Rules of Court, rule 4.408(a)), Ortz fails to persuade us that the court committed an abuse of discretion by not finding that unique facts involving a dysfunctional family, in which [he] was only one of the players, overcame the presumption. Nor is his argument at all compelling that hitting Caldern with a rake was not particularly vicious. Since the presumption was not overcome, the rule of court governing a grant of probation in a case without the presumption never came into play. (Cal. Rules of Court, rule 4.414; see People v. Superior Court (Soon Ja Du) (1992) 5 Cal.App.4th 822, 831.)

The burden of showing that the order denying probation was irrational or arbitrary falls on the party challenging the order on appeal. (See Soon Ja Du, supra, 5 Cal.App.4th at p. 831.) Without the requisite showing, the reviewing court will apply the presumption that the court acted to achieve legitimate sentencing objectives and will not disturb the ruling at issue on appeal. (Ibid.) That is so here.

DISPOSITION

The judgment is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Wiseman, Acting P.J.

_____________________

Levy, J.

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

^[2]Cited are the versions of the rules in effect at the time (until January 1, 2007).