People v. Ormonde CA2/6 ( 2013 )

Filed 2/25/13 P. v Ormonde CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 SIX
THE PEOPLE, 2d Crim. No. B233566
(Super. Ct. No. 1349406)
Plaintiff and Respondent, (Santa Barbara County)
v. ORDER MODIFYING OPINION
AND DENYING REHEARING
SCOTT TOSTE ORMONDE, [NO CHANGE IN JUDGMENT]
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on January 31, 2013, be modified as
follows:
1. On page 7, the second full paragraph beginning with "Chavez's and Negrete's
testimony was adequately corroborated" is deleted and the following paragraph is
inserted in its place:
Chavez's and Negrete's testimony was adequately corroborated by
other evidence connecting Ormonde with narcotics sales. Officers found a
room with a couch, a television set, and marijuana growing in the closet, like
the room described by Chavez where the sales took place. A police officer
found a "secondary cell phone with a picture of one of our GPS trackers on
it." The photo of the GPS device tended to connect Ormonde with the
narcotic sales network. It was a walkie-talkie type phone, the type Chavez
and Negrete said he used to set up sales transactions. "Unusual" phone calls
were coming in on the phone. "The direct connect was going off. It was
alerting." When the officer clicked the alert button to make it stop, he heard
a male voice say, "Primo." This corroborated Chavez' testimony that
Ormonde used different names with different phones, conduct that is
consistent with the sale of narcotics. Ormonde had changed his phone
multiple times, as Chavez said they did to avoid detection. The jury rejected
Ormonde's innocent explanations. False and contradictory statements of a
defendant in relation to the charge against him are themselves corroborative
evidence. (People v. Santo (1954) 43 Cal.2d 319, 327.)
There is no change in judgment.
Ormonde's petition for rehearing is denied.
2
Filed 1/31/13 P. v. Ormonde CA2/6 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX
THE PEOPLE, 2d Crim. No. B233566
(Super. Ct. No. 1349406)
Plaintiff and Respondent, (Santa Barbara County)
v.
SCOTT TOSTE ORMONDE,
Defendant and Appellant.
Scott Toste Ormonde appeals from the judgment after conviction by jury
for the sale of a controlled substance (methamphetamine) (Health & Saf. Code, § 11379,
subd. (a)) for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)),1
and street terrorism (§ 186.22, subd. (a)). The trial court imposed and suspended a five-
year prison sentence on terms and conditions including one year in county jail.
Ormonde contends his conviction must be reversed because there was not
sufficient evidence to corroborate the testimony of his accomplices that he distributed
methamphetamine from May through August of 2009 or that he actively participated in
a street gang during that time period. We affirm.
1 All statutory references are to this code unless otherwise stated.
FACTUAL AND PROCEDURAL HISTORY
George Arturo Chavez testified that he was a member of the West Park
criminal street gang and dealt methamphetamine in 2008 and 2009. Ormonde was his
supplier and also a West Park member.
Ormonde would "front" the drugs to Chavez. Chavez said he would pick
up methamphetamine from Ormonde in various places, including Ormonde's home on
West Pershing Street. Chavez saw other West Park members dealing with Ormonde at
Ormonde's home. Chavez' profits, "[m]ostly went to them," but Chavez took home
about $5,000 to $8,000 per month. Chavez said the narcotics dealing was "really all
about money," and it was important to supply the gang with money. From their profits,
West Park was expected to pay "taxes" to the umbrella gang, Surenos (or "Mexican
Mafia"), but Chavez paid taxes only for awhile. Ormonde did not put in "hard core,"
work for the gang.
To avoid detection, Chavez and Ormonde used "walkie-talkie" type
phones and code words. The code words made it sound "like a business." For example,
Chavez would say he needed "some work" or "boxes" when he needed drugs. He would
say he had "time sheets to turn in," if he had money for Ormonde. They used prepaid
phones so they could not be linked to a name and they changed their phones whenever a
dealer was caught. Ormonde told Chavez he should always "just get rid of" the drugs
immediately and "don't have nothing on you," if caught.
Ormonde told Chavez to have someone standing ready to take over from
Chavez in case of arrest, so the "money keeps coming back." Chavez named a close
friend, Alejandro Negrete, to stand by. A San Diego Mexican Mafia member who was
involved in the drug distribution was arrested, and Ormonde "immediately shut
everything down . . . where he held drugs. Shut everything down for two weeks."
When Ormonde told everyone to "shut everything down" they had to "clean up[],"
which meant "wherever the house or that location was at . . . [n]o fingerprints, baggies,
anything . . ." because the dealer "would be able to cooperate."
2
Ormonde never revealed his methamphetamine source to Chavez, but he
always had as much as Chavez needed. Chavez testified that Ormonde and Luis
Magana were "working together" and "very close."
Chavez was arrested in April 2009 with a quarter pound of
methamphetamine. He had three phones with him. When Chavez testified against
Ormonde, he was awaiting sentencing on federal methamphetamine trafficking charges.
He faced 5 to 40 years in federal prison. There was no promise of leniency, but he
hoped the U.S. Attorney would recommend a sentence of less than 5 years based on his
cooperation against Ormonde.
After Chavez' arrest, Negrete took over as planned. Negrete also testified
against Ormonde. Negrete was a member of West Park and had West Park tattoos.
Ormonde was a West Park member in good standing. Ormonde's moniker was "Crazy
Legs." Luis Magana was also a member of West Park.
Between April 2009 and August 2009, Ormonde supplied Negrete with
eight to ten pounds of methamphetamine, and Negrete made $50,000 to $80,000 in
profit. Ormonde "fronted" Negrete the first quarter pound of methamphetamine. They
did not know each other well. Negrete picked up the drugs from Ormonde at a house on
Pershing Street in a room that had a couch and television set in it. Marijuana was
growing in the closet. Ormonde kept the drugs in a red tool box.
Negrete sent some of his profits to other West Park members who were in
custody so they could purchase things from the commissary, buy and sell drugs, and
make more money. He used the rest for "partying, cars, kids, [and] the homies."
Ormonde had a "walkie-talkie" phone and they used code words. Negrete
would ask to pick up "a gasket" (an ounce), or "a pump" (a pound) and Ormonde would
tell him to "show up at the shop," meaning the house on Pershing Street. Ormonde told
Negrete to have a person standing by to take over if Negrete were arrested. Negrete
said that Ormonde called "all of us being in prison part-timers because we come out of
prison, work for a little bit, get busted selling drugs and go back to prison."
3
Negrete said that Luis Magana's twin brother, Jose, was above Ormonde
in the distribution chain and sold to Ormonde. The cash went to Luis Magana, who was
high in the ranks.
Negrete was arrested in August 2009 with about eight ounces of
methamphetamine and a firearm. Negrete pled guilty to two felony charges. He
received a lenient sentence based on his cooperation in a wiretapped phone call with
another person in the organization. Later, in exchange for testimony against Ormonde
and a co-defendant, the District Attorney "agreed just to make that [conviction]
disappear." Negrete was released from custody and was deported to Mexico with
relocation money. He returned under a visa to testify at trial.
One week before Negrete was arrested, he received a message from
another member of the organization who had found a Global Positioning System (GPS)
tracking device on his truck. Negrete checked his car and found one there too. Negrete
said, "We stopped doing everything we were doing."
In October 2009, officers searched Ormonde's home on Pershing Street.
They found a walkie-talkie type phone that contained a photograph of a GPS tracking
device. In February and March of 2010, Drug Enforcement Agency (DEA) agents
recorded phone calls between several people in the organization. Most were very brief
and vague. Two males talked about "Scottie" getting "snitched on" and "laying low,"
but still having "shit." In two phone calls between Ormonde and Luis Magana, they
discussed meeting in Bakersfield.
On May 6, 2010, police officers searched the Pershing Street house again.
They found a room that had a couch and television set in it. Marijuana was growing in
the closet. In a bedroom closet they found a "West Park 13" jersey. In a nightstand,
they found a notice to Ormonde about the vehicle registration cancellation for a 1991
Honda. In a dresser, they found photos of Ormonde with West Park gang members
making gang hand gestures. They did not find any narcotics, scales, packaging
materials, "pay/owe" sheets, or large sums of cash. They did not find a red tool box.
4
On May 11, 2010, officers searched the home of Luis Magana in
Bakersfield and found $491,520 in cash. It was packaged in envelopes and most of it
was hidden in a crawl space above a child's bedroom. In the driveway was an
inoperable 1991 Honda that was registered to Ormonde. The keys were in a bedroom.
Only the Honda linked Ormonde to Magana's residence. Magana told officers that he
did not know Ormonde to be a drug trafficker.
Magana later forfeited the money and pled guilty to possessing more than
$100,000 in proceeds of methamphetamine transactions. (Health & Saf. Code,
§ 11370.6.) As part of his plea agreement, Magana said he had no information helpful
to Ormonde's defense.
Magana testified at trial and did not directly implicate Ormonde. The
court limited his examination pursuant to the 5th Amendment because he was still
facing federal charges. Magana said that he and Ormonde were in touch by phone in
2009 and 2010 and that Ormonde visited him in Bakersfield. He and Ormonde had
been friends since high school. He said he bought the Honda from Ormonde but had
not changed the registration because it could not pass a smog check.
DEA special agent Edward Allan Talbot offered the opinion that a drug
trafficking organization existed in 2009 involving Luis Magana, Jose Magana, Negrete
and Chavez, and that it was linked to the West Park Gang. Santa Maria Police
Detective Mark Streker testified as a gang expert and offered the opinion that Ormonde
was an active member and active participant of West Park during the alleged
distribution of methamphetamine. Streker said that West Park is a criminal street gang.
Its primary activities include murder, drug dealing, and possessing weapons and
firearms, among other things. He described prior methamphetamine selling activities by
three members. He testified that in the last five years, gang members have not been
openly admitting their gang affiliation. He said it is common for gang members to sell
narcotics to members of rival gangs. A member can elevate his stature by helping other
gang members make money. A gang will not normally allow someone who is not a
member to have the gang's tattoos.
5
Ormonde testified that he did not sell drugs and was not involved in any
drug trafficking organization. He was a member of West Park as a teenager, and got
tattoos when he was in high school, but he was not an active member after he graduated
in 1997. He served four years in the Navy after high school. He got the jersey before
he went into the Navy. He forgot about it. The photos that officers found were from his
youth. He and Luis Magana spoke about every two or three weeks and saw each other
socially about once a year. Ormonde said he lived from paycheck to paycheck in 2008
through 2010 and his aunt had to help him pay rent. Ormonde grew marijuana in his
closet for personal use and had a medical marijuana "card." He acknowledged that he
had two phones. The prepaid phone was his business line for car polishing and
tattooing businesses. He offered an invoice for car polishing equipment. He offered
Navy records that showed he had the West Park tattoos in 1997. He offered proof of
lawful employment in 2009 and 2010. He had no prior criminal record.
Three witnesses testified on Ormonde's behalf about his lack of gang
activity and his frugal, family oriented lifestyle. Both said he had changed his phone
numbers.
Ormonde moved to dismiss pursuant to section 1181 and moved for a new
trial on the grounds that there was no independent evidence to corroborate Negrete and
Chavez's testimony and that there was not sufficient evidence that Ormonde actively
participated in a street gang in 2009. The court denied the motions.
DISCUSSION
Corroborating Evidence of Drug Trafficking (§ 1111)
Corroborating evidence, independent from accomplice testimony,
reasonably tended to connect Ormonde with the commission of the charged narcotics
sales.
Section 1111 provides that accomplice testimony must be corroborated by
"such other evidence as shall tend to connect the defendant with the commission of the
offense; and the corroboration is not sufficient if it merely shows the commission of the
offense or the circumstances thereof." Section 1111 codifies common law concerns
6
about the reliability of accomplice testimony (People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 303) and legislative concerns that an accomplice "is deemed to have a
particularly compelling motive to lie." (People v. Vines (2011) 51 Cal.4th 830, 883.)
The corroborating evidence required by section 1111 "may be slight and
entitled to little consideration when standing alone. However, it must tend to implicate
the defendant by relating to an act that is an element of the crime. It need not by itself
establish every element, but must, without aid from the accomplice's testimony, tend to
connect the defendant with the offense." (People v. Nelson (2011) 51 Cal.4th 198, 218.)
We are bound by the trier of fact's determination on the issue of corroboration "unless
the corroborating evidence should not have been admitted or does not reasonably tend
to connect the defendant with the commission of the crime." (Ibid.)
Chavez's and Negrete's testimony was adequately corroborated by other
evidence connecting Ormonde with narcotics sales. Officers found a room with a
couch, a television set, and marijuana growing in the closet, like the room described by
Chavez where the sales took place. Ormonde had a walkie-talkie type phone. It was the
type Chavez and Negrete said he used to set up sales transactions. Ormonde had
changed his phone, as Chavez said they did to avoid detection. The jury rejected
Ormonde's innocent explanations. False and contradictory statements of a defendant in
relation to the charge against him are themselves corroborative evidence. (People v.
Santo (1954) 43 Cal.2d 319, 327.) The corroborating evidence is slight, but it tends
reasonably to connect Ormonde with the narcotics sales described by Chavez and
Negrete.
Evidence to Support Conviction for Street Terrorism (§ 186.22, subd. (a))
Ormonde's conviction for street terrorism was supported by substantial
evidence. To sustain a conviction for violation of section 186.22, subdivision (a) there
must be evidence that the defendant "actively participate[d]" in a criminal street gang.2
2 Section 186.22, subdivision (a) provides, "Any person who actively participates
in any criminal street gang with knowledge that its members engage in or have engaged
in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in
7
Ormonde contends there was insufficient evidence of his participation here. But proof
of "active participation," is sufficient if the evidence establishes that the defendant's
involvement with the gang is "more than nominal or passive." (People v. Castenada
(2000) 23 Cal.4th 743, 745.) It is not necessary that the defendant devote all, or a
substantial part, of his time and efforts to the gang. (Id. at p. 752.)
Ormonde had West Park and Surenos tattoos. He acknowledged he knew
about the gang and its illegal activities. Chavez and Negrete each testified that
Ormonde was a member of West Park in 2009. Chavez, who was an "enforcer,"
testified that Ormonde had not disclaimed membership. They testified that Ormonde
knew they were members when they were dealing drugs with him. Chavez and Negrete
said they saw other West Park members at Ormonde's house in 2008 or 2009. Their
testimony was corroborated by the West Park jersey found in Ormonde's closet in 2010,
by phone calls that year linking Ormonde with other West Park members, and by
Ormonde's West Park and Surenos tattoos.
That the main purpose of the drug operation was to make a profit is
immaterial. It also assisted the gang. Chavez explained that the main purpose was to
make a profit because it was important to supply the gang with money. Younger
members fought and "tagged," while more senior members sold drugs and made money.
That people were involved who were not West Park members, is also
immaterial. Chavez testified that some of his subdealers were members of Northwest,
an "enemy," but they all claimed under Surenos and, "when it came to dealing drugs and
money," West Park would supply Northwest. The gang expert testified that this was not
an uncommon practice among rival gangs.
It was within the jury's purview to reject Ormonde's explanation that he
was no longer a West Park member, that he forgot about the jersey, that he intended to
any felonious criminal conduct by members of that gang, shall be punished by
imprisonment in a county jail for a period not to exceed one year, or by imprisonment in
the state prison for 16 months, or two or three years."
8
have his gang tattoos removed, and that he associated with West Park members only
because they were his friends. We will not disturb the jury's credibility findings.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
9
Kay S. Kuns, Judge
Superior Court County of Santa Barbara
______________________________
Arielle Bases, 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, James William
Bilderback II, Supervising Deputy Attorney General, Tita Nguyen, Deputy Attorney
General, for Plaintiff and Respondent.
10