P. v. Osorio



Filed 6/3/11 P. v. Osorio CA2/3



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, Plaintiff and Respondent, v. MARLON OSORIO, Defendant and Appellant.

B221000 (Los Angeles County Super. Ct. No. LA053852)

APPEAL from a judgment of the Superior Court of Los Angeles County, Curtis B. Rappe, Judge. Affirmed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.


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Marlon Osorio appeals the judgment entered following his conviction by jury of two counts of first degree murder and ten counts of attempted willful, deliberate and premeditated murder arising out of four separate shooting incidents. (Pen. Code, §§ 187, 664/187.)[1] As to each count, the jury found Osorio acted for the benefit of a criminal street gang and that he personally discharged a firearm, causing death or great bodily injury. (§§ 186.22, subd. (b)(1), 12022.53, subd. (d).) The jury found true a multiple murder special circumstance (§ 190.2, subd. (a)(3)) and, with respect to the two counts of murder, found Osorio intentionally killed the victim while actively participating in a criminal street gang (§ 190.2, subd. (a)(22)).
Osorio claims he was identified based on unduly suggestive pretrial identification procedures, he should have been provided counsel at a live lineup, and the trial court should have excluded from evidence his admission of gang membership and his possession of a knife at the time of his arrest.
We reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Vanowen Street shooting.
On August 6, 2006, at approximately 9:00 p.m., Jose Urquilla went to his cousin's apartment complex on Vanowen Street to lay some cable. Urquilla telephoned his cousin from the gate at the entrance to the complex. While waiting for the gate to open, Urquilla saw two male Hispanics dressed in gang attire attempting to climb the wall around the parking area. When the gate opened, Urquilla drove behind the building and parked. As Urquilla removed tools from his van, he saw the same two individuals walk past his van and approach a Chevrolet Impala occupied by an individual talking on a cell phone.
The two Hispanic males also walked past Urquilla's cousin, Cesar Guardado, as Guardado went to his car to get tools. Guardado heard a gun loading, turned and saw that one of the males had a semiautomatic handgun. Guardado called a warning to Urquilla, then ran into the building. Urquilla turned and saw that one of the males, whom he identified as Osorio, had a black semiautomatic that resembled the gun in evidence. Urquilla heard the males ask the individual in the Chevrolet where he was from and immediately thereafter heard gunshots.
The males ran toward a DMV building east of the apartment complex. A security camera on the DMV building captured video of an individual in a white shirt running to a red vehicle at 9:06 p.m.
On August 30, 2006, and on September 12, 2006, Urquilla was shown three photographic lineups but he made no identifications. On October 3, 2006, Detective Martin Mojarro showed Urquilla two photographic lineups.[2] Urquilla identified Osorio in People's No. 44. Urquilla wrote Osorio â€