People v. Solis CA2/6 ( 2013 )


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  • Filed 12/18/13 P. v. Solis 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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. B235384
    (Super. Ct. No. BA341563)
    Plaintiff and Respondent,                                               (Los Angeles County)
    v.
    OSCAR SOLIS,
    Defendant and Appellant.
    Oscar Solis appeals from the judgment following his conviction by jury of
    first degree murder (Pen. Code, §§ 187, subd. (a), 189)1 and attempted murder
    (§§ 664/187, subd. (a)). The jury found multiple personal firearm use allegations to be
    true. (§ 12022.53, subds. (b), (c) & (d).) Appellant moved for a new trial. The trial court
    denied his motion and sentenced him to prison for 84 years to life. Appellant contends he
    was denied the effective assistance of counsel. He also contends, and respondent agrees,
    the abstract does not accurately reflect the judgment. We affirm but direct the trial court
    to correct errors in abstract of judgment form CR292 and to prepare an abstract of
    judgment form CR290.
    1 All statutory references are to the Penal Code unless otherwise stated. There
    were two trials in this matter; the first ended in a mistrial when the jury could not reach a
    verdict.
    FACTUAL AND PROCEDURAL BACKGROUND
    Prosecution Evidence
    Omar Sorroza-Garcia (Sorroza) knew David Juarez for several years. They
    were business partners who manufactured (cooked) and sold methamphetamine. Juarez
    obtained pseudoephedrine, an essential methamphetamine ingredient, from different
    suppliers, including Daniel Rodriguez, who lived with appellant. Juarez paid
    pseudoephedrine suppliers from proceeds of sales of the resultant methamphetamine.
    After Rodriguez died, Juarez found another supplier.
    Juarez also cooked methamphetamine for appellant to sell. Sorroza knew
    appellant, but had no business relationship with him. On one occasion, Juarez burned a
    batch of methamphetamine he cooked using pseudoephedrine supplied by appellant. The
    product was not fit to sell. Appellant accused Juarez of selling the product and falsely
    claiming it was burned, and they engaged in an ongoing dispute. Appellant called to
    complain with such frequency that Juarez eventually stopped answering his calls.
    Otylynda Delgado, his common-law wife, would answer and tell appellant Juarez was not
    home.
    Juarez's neighbor, Horacio Smiley, sometimes worked as his armed
    bodyguard. Smiley went to Juarez's residence in early 2003, when appellant was due
    there. Appellant arrived with two men, including his constant companion, Calvin Belloso
    (Oso). Appellant demanded that Juarez pay him, or give him Juarez's truck. Smiley
    separated appellant and Juarez to prevent a physical altercation. Smiley also displayed a
    gun, and told appellant to leave. Appellant complied. Juarez later told Delgado appellant
    had threatened his life. Juarez bought a gun and never left the house without it. On a
    subsequent occasion, Juarez was meeting appellant at a restaurant. Smiley accompanied
    Juarez, and observed a pistol and an AK-47 rifle in appellant's parked car.
    On March 16, 2003, Juarez drove his car, with Sorroza in the front
    passenger seat. They picked up Smiley and took him to his apartment at the corner of
    Jefferson and West Boulevards. Juarez waited in his car with Sorroza while Smiley was
    inside.
    2
    A gray primer-colored Camaro IROC approached and stopped on West
    Boulevard, next to Juarez's car. Both cars faced north, with the Camaro's passenger side
    next to the driver's side of Juarez's car. Sorroza and Juarez stayed in his car. Something
    that felt like a metal bat or baton hit Sorroza's back. It was a bullet. Sorroza leaned
    forward, looked toward the Camaro, saw a flash, and heard shots firing toward Juarez's
    car. Sorroza saw and recognized the shooter, appellant, in the front passenger seat.
    Appellant yelled, "mother fucker," and the Camaro sped away. Juarez slumped in the
    driver's seat, with blood flowing from the left side of his head. Despite his wounded
    back, Sorroza ran to Juarez's home, a few doors away. He told Delgado and Juarez's
    father, Jose Juarez, that he and Juarez were shot. Jose and Delgado ran to Juarez.
    Upon hearing multiple gunshots, Smiley looked outside and saw the gray
    Camaro before it sped away. Smiley ran outside, removed his shirt, applied it to Juarez's
    head, and yelled for help. Juarez's sister, Bertha Juarez, ran to Juarez and applied
    pressure to his wound. Juarez was not responsive.
    At trial, Sorroza identified appellant as the shooter. Appellant vigorously
    attacked Sorroza's in-court identification. He stressed that Sorroza did not name
    appellant as the shooter until 2007, although detectives had questioned Sorroza in March
    2003, and February 2004. Before 2007, Sorroza informed detectives of the ongoing
    dispute between Juarez and appellant, and Sorroza identified a photograph of appellant.
    In 2007, when detectives telephoned him in Mexico, Sorroza said he knew who shot
    Juarez. In subsequent discussions, Sorroza provided more details and ultimately
    identified appellant as the person who shot him and Juarez. In addition, Sorroza
    identified a photograph of Oso as someone who resembled the person who drove the
    Camaro during the shooting. Sorroza further informed detectives that he and Juarez once
    rode in that Camaro.
    Delgado testified that Oso and appellant were almost always together. She
    further testified she saw Sorroza at the hospital after the shooting. He told her that one of
    the shooters reminded him of Oso.
    3
    Ismael Caneal testified that in 2003, he owned a gray 1987 Camaro Z28
    IROC. Caneal's brother kept a set of keys to that Camaro in his house. Caneal's niece
    and her boyfriend or husband, Oso, visited Caneal's brother at that house.
    Juarez remained in the hospital for about a month after the shooting and
    never regained consciousness. He died from two fatal gunshot wounds.
    Defense Evidence
    Starr Sachs, a retired Los Angeles Police Department firearms analyst,
    reviewed the bullets and bullet fragments recovered at the shooting scene. She concluded
    that guns of at least two different calibers were used in the shooting.
    Appellant called Torrance Police Department Detective Charlie Fisher to
    impeach Sorroza. His testimony follows in the discussion below.
    New Trial Motion
    Appellant filed a motion for new trial, claiming he was deprived of the
    effective assistance of counsel. The trial court denied that motion.
    DISCUSSION
    Ineffective Assistance of Counsel
    To show ineffective assistance of counsel, the defendant must establish (1)
    that counsel's representation fell below an objective standard of reasonableness, and (2) a
    reasonable probability that, but for counsel's errors, the defendant would have achieved a
    more favorable result. (Strickland v. Washington (1984) 
    466 U.S. 668
    , 687-694; People
    v. Holt (1997) 
    15 Cal.4th 619
    , 703.) A reasonable probability is a probability sufficient
    to undermine confidence in the outcome. (People v. Williams (1997) 
    16 Cal.4th 153
    ,
    214–215.) "[A] court need not determine whether counsel's performance was deficient
    before examining the prejudice suffered by the defendant as a result of the alleged
    deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of
    lack of sufficient prejudice, . . . that course should be followed." (In re Fields (1990) 
    51 Cal.3d 1063
    , 1079.) Appellant has failed to establish sufficient prejudice to support his
    ineffectiveness claims.
    4
    A. Impeachment of Sorroza
    Appellant argues that trial counsel was ineffective because he did not
    present wiretap evidence which implicated Sorroza in a drug conspiracy. We disagree.
    At the time of trial, Sorroza was in custody, facing drug conspiracy charges
    in San Diego, and his attorney advised him not to testify at appellant's trial. The drug
    conspiracy charges are not related to this case. Sorroza admitted his ongoing
    involvement in manufacturing and selling methamphetamine, but claimed he was
    unaware of the facts underlying the drug conspiracy charges. He expressly denied he was
    involved in a conspiracy to distribute methamphetamine.
    Trial counsel impeached Sorroza with testimony from Detective Fisher, a
    member of the task force that investigated and arrested Sorroza, and other participants in
    the charged drug conspiracy. On April 8, 2010, Fisher saw Sorroza drive Mario Vasquez
    to a restaurant where Vasquez got into a Nissan Maxima. Vasquez drove the Nissan
    away, and Sorroza followed him briefly. On the same evening, the police arrested
    Vasquez, impounded the Nissan, and recovered 23 pounds of methamphetamine. The
    Nissan also contained handwritten notes, with Sorroza's alias ("Borrego") and a telephone
    number.
    Appellant recognizes that Sorroza "undermined his reliability as a witness"
    by repeatedly telling "police that he could not identify the shooter" for years after Juarez
    died, and identified him only when Sorroza "wanted assistance in legally moving back to
    the United States." Appellant also acknowledges that "Sorroza's credibility was seriously
    challenged at trial" and Sorroza "was a convicted robber and drug trafficker" who
    "admitted manufacturing methamphetamine for several years." Nonetheless, appellant
    claims the wiretap evidence was critical because it documented Sorroza's involvement in
    illegal activities near the time of trial, "when his credibility was being judged."
    The wiretap evidence was not critical. It is not reasonably probable that the
    outcome of appellant's trial would have been more favorable if counsel had introduced
    Sorroza's wiretapped statements. The wiretap evidence was largely cumulative to
    Fisher's testimony describing appellant's participation in the drug conspiracy. In denying
    5
    the new trial motion, the trial court cited several reasons the jury would reject Sorroza's
    testimony regarding the recent drug conspiracy: "As far as cross-examination, including
    the recordings from the DEA, I can't imagine based on what I heard and the way
    [Sorroza] was cross-examined about the . . . incident in San Diego County, that anybody
    had even the slightest doubt he was lying. He was completely lying . . . . The officer's
    testimony was completely credible. [Sorroza's] denials were ridiculous. And I don't
    think it would have made any difference if [defense counsel] had played the tapes and I
    don't think there's any reasonable possibility any of the jurors thought for a second that
    [Sorroza] was truthful when he denied his involvement in the new drug case." Appellant
    has failed to meet his burden of establishing a reasonable probability that, but for
    counsel's failure to impeach Sorroza with his wiretapped statements, he would have
    achieved a more favorable result.
    B. Failure to Challenge Testimony Regarding the Killing of Rodriguez
    Appellant contends that the prosecutor's references to the Rodriguez murder
    suggested he was involved in Rodriguez's death. As appellant acknowledges, "the
    evidence at [the second] trial did not directly link [him] to the Rodriguez murder." It is
    not reasonably probable that appellant's trial would have resulted in a more favorable
    outcome if counsel had challenged the evidence of the Rodriguez killing.
    Abstract of Judgment
    The jury convicted appellant of murder and found true the allegation that
    the murder was willful, deliberate, and premeditated. It also convicted him of attempted
    murder but found the allegation that the attempted murder was willful, deliberate, and
    premeditated to be "not true." The trial court sentenced appellant to prison for 84 years to
    life, including a 25 years to life indeterminate term for murder, with a 25 years to life
    firearm enhancement, and a consecutive 9-year determinate term for attempted murder.
    The form CR-292 abstract of judgment, however, does not accurately
    reflect this result. First, box 1 indicates appellant was convicted of "willful, deliberate,
    premeditated" attempted murder in count 2. He was not. Box 1 should indicate appellant
    was convicted only of attempted murder in count 2 (§ 664, subd. (a)). Second, box 6(c)
    6
    states appellant was sentenced to prison for an indeterminate term of nine years to life.
    He was not. He was sentenced to a nine-year determinate term. Box 6(c) should be
    blank. Third, box 7 is blank. Box 7 should indicate appellant received a determinate
    term. Consequently, the superior court file requires a separate, additional form (CR290)
    for the determinate nine-year term imposed for count 2. We direct the superior court
    clerk to prepare abstract of judgment forms CR290 and CR292 which accurately record
    the sentence imposed by the trial court.
    DISPOSITION
    The trial court is directed to prepare abstract of judgment forms CR290 and
    CR292 which correctly reflect both the determinate and indeterminate terms of
    appellant's sentence, as described in this opinion. Thereafter, the clerk shall forward
    these forms to the Department of Corrections and Rehabilitation. Otherwise, the
    judgment is affirmed.
    NOT TO BE PUBLISHED.
    PERREN, J.
    We concur:
    GILBERT, P. J.
    YEGAN, J.
    7
    William Sterling, Judge
    Superior Court County of Los Angeles
    ______________________________
    John P. Dwyer, 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, Supervising Deputy Attorney General, Douglas L. Wilson, Deputy Attorney
    General, for Plaintiff and Respondent.
    8
    

Document Info

Docket Number: B235384

Filed Date: 12/18/2013

Precedential Status: Non-Precedential

Modified Date: 10/30/2014