P. v. Ortiz
Filed 8/9/13 P. v. Ortiz CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
RAFAEL ORTIZ,
Defendant and Appellant.
B245601
(Los Angeles
County
Super. Ct.
No. KA096879)
APPEAL from
a judgment of the Superior Court
of
County, Bruce Marrs, Judge.
Affirmed.
Tomas
Requejo for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, appellant was convicted of
(a).) Appellant contends the trial court
failed to excuse a juror for cause and there was insufficient evidence to
support the judgment. His contentions
are meritless.
I. FACTS
A. Prosecution
Appellant
was a captain with the Los Angeles Fire Department and a reserve deputy with
the Los Angeles Sheriff’s Department. On
December 30, 2011, a
baggie of cocaine fell from the area of his waistband and landed on the ground
as he walked through the sheriff’s department.
The baggie was eventually found by a sheriff’s deputy. Surveillance video showed the floor clear of
debris prior to appellant’s entry into the area.
After a
sheriff’s deputy spoke to appellant about the issue, appellant contacted Andrew
Grzywa—the battalion fire chief in charge of his unit. Appellant told Grzywa that the sheriff’s
department had taken his credentials because a controlled substance may have
fallen from his pocket at the sheriff’s station. Appellant said the baggie containing the
substance could have been something he collected when participating in an
arrest. However, three days later he
called Grzywa and changed his story.
Grzywa described appellant’s second explanation as follows: “[A] few months
prior . . . he got into . . . his own
personal vehicle, and discovered a small baggie of what he believed to be
cocaine. At that point in time, he
explained . . . that . . . one of his
sons had been driving the vehicle, along with one of his friends, and it was
after his son had been driving the vehicle that he discovered the
cocaine.â€
B. Defense
Appellant had the authority to arrest people while he was
on duty. His supervisor at the sheriff’s
department as well as three additional witnesses, i.e., a reserve deputy, a
battalion chief, and a firefighter, attested to appellant’s positive character
traits such as dependability, honesty and trustworthiness.
II. DISCUSSION
A.
Juror No. 3
After the
jury was empanelled but prior to opening statements, Juror No. 3
telephoned the clerk. The juror stated
to the clerk that he did not live “full time†in Pomona
(Los Angeles County)
and that he lived part of the time in Chino
(Riverside County). The trial court’s notes, as well as the
notes of both attorneys, reflected Juror No. 3 indicated during voir
dire that his “area of residence†was Pomona.
Defense
counsel stated: “I’m not waiving any
defect in him sitting as a juror. Maybe
the court might want to inquire of him just to make the record clean. Up to this point, the record has been clean,
absent his representation to the clerk this morning. I’m kind of confused as to what he’s trying
to tell us.†The trial court appeared to
interpret these comments as a motion to excuse the juror for cause. The court stated: “He told us he was a resident of Pomona
[and] he was certainly summoned through that Pomona
residence to be here, and he appeared.
[¶] So I’m going to deny the
motion to discharge him at this point.
However, why don’t you put a little note on your trial record, [defense
counsel], and when we get down to the end, before they come back with a
verdict, maybe even before they go out, I will let you renew your motion. [¶] . . . [¶] That way you can do a little more
research . . . .â€
Appellant
claims the trial court had a sua sponte obligation to conduct an additional
inquiry with the juror because, in appellant’s view, the court was given notice
that there may be good cause to discharge him.
He maintains the trial court’s failure to pursue the matter further
warrants reversal of the judgment.
Appellant is incorrect.
“The
decision whether to investigate
the possibility of juror bias,
incompetence, or misconduct—like
the ultimate decision to retain
or discharge a juror—rests
within the sound discretion of
the trial court. [Citation.]
The court does not abuse its discretion simply because it fails to investigate any and all new information obtained about a juror during trial. [¶]
[A] hearing is required only where the court possesses information
which, if proven to be true, would constitute
‘good cause’ to doubt a juror's ability to perform his duties
and would justify his removal
from the case. [Citations.]†(People v. Ray (1996) 13 Cal.4th 313,
343.)
It is true
that the people who “reside†outside the trial court’s jurisdiction are not
qualified to sit as jurors. (Code Civ.
Proc, § 203(a)(4).) In the context of
the election laws we have observed:
“‘[T]he residence of a person is that place in which the person’s
habitation is fixed for some period of time, but wherein he or she does not
have the intention of remaining.’
[Citation.] Thus, ‘[a]t a given
time, a person may have more than one residence.’ [Citation.]â€
(People v. Superior Court (Wright)
(2011) 197 Cal.App.4th 511, 515,
original italics (Wright).) Appellant has not argued that the reference
to the juror’s residence in the Code of Civil Procedure has a different meaning
than the ordinary commonsense definition recognized in Wright. Indeed, there is no
reasonable basis to define “residence†differently in this case.
The court
did not have information which, if proven to be true, would constitute good
cause to excuse Juror No. 3.
Because Juror No. 3 indicated during voir dire that he resided
within the jurisdiction of the trial court, it was inconsequential that he
possibly had an additional residence outside the jurisdiction of the
court. The existence of an additional
residence in a city outside of Los Angeles
County did not render him
unqualified to serve. Thus, the absence
of further inquiry into the juror’s alternate residence did not amount to an
abuse of discretion.
B. Sufficiency of the
Evidence
“The elements of [possession of cocaine]
are: actual or constructive possession
with knowledge of the presence of the drug and its narcotic character. [Citations.]
The elements may be established by circumstantial evidence and any
reasonable inference drawn from such evidence.
[Citations.]†(
1337, 1347-1348; see Health & Saf. Code, § 11350, subd. (a).)
“In reviewing a challenge to the sufficiency
of the evidence, we do not determine the facts ourselves. Rather, we ‘examine the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citations.] We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases
in which the prosecution relies primarily on
‘[I]f the circumstances reasonably justify the jury’s findings, the
judgment may not be reversed simply because the circumstances might also
reasonably be reconciled with a contrary finding.’ [Citation.]
We do not reweigh evidence
or reevaluate a witness’s credibility.
[Citation.]†(
overruled on a different point in People
v. Rundle (2008) 43 Cal.4th 76, 151.)
Appellant
argues there was insufficient evidence he possessed the cocaine because “no one
could say unequivocally where the baggie originated from.†He also maintains there was “no evidence†he
knew the substance was present.
Appellant’s argument is unpersuasive.
Appellant
admitted to his superior that he possessed what he believed to be cocaine. Initially he said it may have been the result
of an arrest; then he claimed it was recovered from his son’s vehicle. Both of his explanations constitute strong
evidence he possessed cocaine and that he knew of its presence on his person. Testimony indicated the video showed the
baggie falling from near appellant’s waistband to a debris-free floor. Based on appellant’s statements and the
testimony of the deputies, a reasonable trier of fact could have concluded the
prosecution established the elements of possession and presence.
III. DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR,
J.
We concur:
MOSK,
Acting P.J.
KRIEGLER,
J.
erroneously denied his motion to discharge the juror. Thus, we decline to address respondent’s
argument that this claim is forfeited.
of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
