The People v. Ortiz CA2/1

Filed 9/26/13 P. v. Ortiz CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B243537
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA124476)
v.
ERIC JOSE ORTIZ and
RICARDO VELASQUEZ,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County. Dewey
Lawes Falcone, Judge. Affirmed.
Eric Jose Ortiz, in pro. per., and Linn Davis, under appointment by the Court of
Appeal, for Defendant and Appellant Ortiz.
Jeffrey J. Douglas, under appointment by the Court of Appeal, for Defendant and
Appellant Velasquez.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Eric E. Reynolds and
Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Defendants Eric Jose Ortiz and Ricardo Velasquez appeal from the judgments
entered following a jury trial in which they were convicted of two counts of second
degree robbery. Velasquez contends the trial court erred by failing to instruct, sua
sponte, with CALJIC No. 2.05. Appellate counsel for Ortiz filed an opening brief raising
no issues and asking this court to perform an independent review of the record. We
affirm the judgments.
BACKGROUND
About 11:30 p.m. on April 14, 2012, two men got out of a white Jeep Grand
Cherokee and approached Jordy Cabrera and Fabian Quevedo as they were walking
toward Cabrera’s car in Los Angeles. (Date references pertain to 2012.) The two men
demanded that Cabrera and Quevedo hand over their property. Cabrera and Quevedo
later told Deputy Joshua Delfin that each assailant had a gun; one pointed his gun at
Cabrera’s head and the other at Quevedo’s head. Cabrera gave his assailant everything in
his pockets, which included his wallet containing his identification card and the keys to
his car. Quevedo handed over his money and a red Samsung mobile phone. The two
robbers got back inside the Jeep Grand Cherokee and left. Because the robbers had taken
the key to his car, Cabrera decided to wait next to his car, in case they returned to take it.
The white Jeep Grand Cherokee returned, so Cabrera and Quevedo returned to a
party they had attended before the robbery and Cabrera asked his cousin Cesar to go
outside and get the license plate number of the Jeep Grand Cherokee. Cesar did so, and
Cabrera phoned 911 at 12:45 a.m. The recording of the 911 call was played at trial.
Cabrera told the dispatcher two Hispanic men around 20 or 21 years old had pointed a
black gun at his friend and taken Cabrera’s wallet and car keys. Cabrera told the
dispatcher the robbers were in a white Cherokee with gray on the bottom and provided
the license plate of the Cherokee. He also said the Cherokee was “coming back around
the block too. They came, like already four times around the block and they’re still
coming back.” He added, “They’re here right now.” Cabrera later told the dispatcher the
Cherokee had driven away southbound on Compton.
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Deputy Sheriff Joshua Delfin responded to the 911 call and met both Cabrera and
Quevedo at the location of the robbery. Delfin testified that Quevedo said he saw a Jeep
Grand Cherokee drop off two men at the corner, those two men approached him and
Cabrera and ordered them to hand over everything they had, one of the men pointed a
black handgun at Quevedo’s head, Quevedo handed over his money and a red Samsung
mobile phone, and they saw the same vehicle return to the scene. Delfin testified that
Cabrera said a man pointed a gun at his head and took his wallet and car keys. Cabrera
gave Delfin the license plate number and described the vehicle and the suspects. Delfin
broadcast this information to other sheriff’s personnel.
Sergeant Adolfo Barajas heard the broadcast and went out in search of the Jeep
Grand Cherokee. He saw it on Compton Avenue and began following it. After verifying
that the license plate matched what had been broadcast, Barajas called for backup. The
Jeep Grand Cherokee pulled into the parking lot of a McDonalds and was quickly
surrounded by sheriff’s department patrol cars. Velasquez’s brother Alfredo was the
driver, Velasquez was in the front passenger seat, and Ortiz was in the rear seat on the
driver’s side. A deputy conducted a quick search of the Jeep Grand Cherokee and found
a black BB gun under the rear passenger seat.
Delfin took Cabrera and Quevedo to a field showup. Cabrera and Quevedo were
read a field identification admonishment, separated, and shown Velasquez, Ortiz and
Alfredo Velasquez, one at a time. Delfin testified that Quevedo identified Velasquez,
saying, “‘That’s the one that pointed the gun at me and took my property.’” Delfin
further testified that Cabrera identified Ortiz, saying, “‘That’s the one that pointed the
gun at me and took my stuff.’” Delfin also testified that Cabrera and Quevedo each
identified the Jeep Grand Cherokee sheriff’s personnel had stopped as being the vehicle
they had seen at the time of the robbery.
The Jeep Grand Cherokee was impounded and Detective Chris Mezzano searched
it more thoroughly at the impound yard. Mezzano testified he found $139 in cash inside
a change purse on the front passenger seat, a red Samsung mobile phone beneath the
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center console, and a black wallet containing Cabrera’s identification card in the cargo
area of the vehicle. Mezzano returned the wallet and ID to Cabrera and the phone and
cash to Quevedo.
Mezzano spoke to Cabrera and Quevedo by phone on April 15. Mezzano testified
that Quevedo told him he was walking with Cabrera to Cabrera’s car when he heard men
running up behind him. Quevedo turned and saw two men. The man in front of
Quevedo was a male Hispanic in his early twenties, about five feet eight inches or five
feet nine inches tall with a “fat build” and dark complexion. Quevedo also described the
man’s clothing. The man pointed a handgun at Quevedo’s head and said, “‘Give me your
shit,’” then began to pat down Quevedo’s shirt and pants pockets. Quevedo told to
Mezzano that the person who robbed him was the person he identified in the showup.
Mezzano was not asked what Cabrera told him.
At trial, less than three months after the robberies, Cabrera and Quevedo testified
they did not remember or were unsure of various matters, such as whether the robbers
had guns, what property had been taken, whether the robbers had gotten out of or into a
particular vehicle, or what kind of vehicle it was. Cabrera testified he intentionally
looked down, not at the faces of the robbers, and thus could not identify anyone. Cabrera
denied telling Delfin that he saw the robbers get out of a white Jeep Grand Cherokee and
did not remember saying one of the robbers pointed a gun at his head. He ultimately
admitted telling Delfin that after the robbery he saw the robbers run back and get into a
white Jeep Grand Cherokee. After Cabrera reviewed the transcript of his 911 call, he
recalled seeing a black gun in the hand of one robber. Cabrera testified he told the
deputies at the showup that one person they showed him might be the person who robbed
him, but he was not sure. Cabrera did not identify either defendant at the preliminary
hearing or at trial, but identified the wallet found in the Jeep Grand Cherokee as his and
agreed that the vehicle depicted in a photograph of the Jeep Grand Cherokee looked like
the one he had seen the robbers run toward. Cabrera testified on direct that he did not
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“want to be” at trial, and explained on cross-examination that this was due to “[f]ear” and
a dislike of courts.
Quevedo testified he just went home after the robbery, but he returned to the area
after law enforcement arrived and answered “one question” they asked him. He denied
telling a deputy that he handed over $200 because he was fearful. He further denied
telling a deputy that the two assailants got out of, and later returned to, a white Jeep
Grand Cherokee while the driver remained inside that vehicle, and that he later saw the
same vehicle return to the area. Quevedo did not remember making other statements
about the robbery and did not recognize the mobile phone depicted in the prosecution’s
photographic exhibits. Quevedo admitted his mobile phone and some of his money were
returned at a later time, but he did not have the phone with him at trial. Quevedo denied
identifying anyone or the vehicle at the field showup and claimed he told the deputies he
could not identify anyone. He did not identify either defendant at the preliminary
hearing or at trial. Quevedo also did not want to testify at trial or the preliminary hearing.
Quevedo testified on cross-examination by Velasquez that before the preliminary hearing
some “police detectives” said to him, “‘Come on, man. Just say it was them and help us
out.’” On cross-examination by Ortiz, Quevedo denied anyone said that to him, and
instead testified that someone said, “Just ‘help us out,’ and to tell the truth.” Quevedo
also denied telling a defense investigator that he felt pressured by “the police.”
Mezzano testified that he spoke with Cabrera and Quevedo on the day of the
preliminary hearing, and both told him they were “fearful of coming to court.” When he
served them with subpoenas, they both said they did not want to come to court.
Joseph Linares, an investigator for Ortiz, testified he interviewed Cabrera and
Quevedo by phone on May 31. Counsel for Ortiz asked Linares to “characterize”
Cabrera’s “demeanor” or willingness to cooperate. Linares responded that Cabrera was
“very cooperative” and “said he wanted to talk to me.” Cabrera told Linares it was dark
during the robbery and he intentionally looked at the ground during the robbery and
avoided looking at the robbers’ faces. He was thus unable to identify them, and he told
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the sheriff’s deputies this. Counsel for Ortiz asked, “[D]id you specifically ask Mr.
Cabrera at my direction about an incident that occurred at court in May at the time of the
preliminary hearing?” Linares said he did. Counsel asked if Cabrera told “the police”
“at that time” that he could not identify anyone and that he did not want to come to court.
Linares answered “Yes” to both questions. Linares further testified that Cabrera “said
that he felt that the police pressured him to make an identification. He also—I asked him
if he felt that he was being pressured by either the arrestees or their family. He said he
was not.”
Counsel for Ortiz asked Linares to “describe” Quevedo’s “demeanor” or
willingness to cooperate. Linares responded that Quevedo was cooperative and said, “‘I
just want to tell the truth.’” Linares testified that Quevedo also said it was dark during
the robbery, he was unable to identify anyone, and he told the sheriff’s deputies this.
Counsel asked, “[D]id you again, specifically at my request, ask about the incident that
occurred at the courthouse in May at a time just prior to his preliminary hearing
testimony?” Linares said he did, then testified that Quevedo said he told two deputies or
detectives in a little interview room “that he could not identify them, and that he didn’t
want to testify.” Quevedo told Linares one of the detectives said, “‘Come on man. Just
say it was them and help us out. You can help take them off the street because they’ll do
it again.’” Linares further testified that Quevedo said he felt pressured by “the police,”
but “did not feel pressured at any time by the family or the arrestees.”
Velasquez and Ortiz were tried together by a single jury. The jury convicted each
of two counts of second degree robbery. Ortiz waived a jury trial on allegations he had
suffered a prior serious felony conviction within the scope of Penal Code section 667,
subdivision (a) (undesignated statutory references are to the Penal Code) and the “Three
Strikes” law and had served a prior prison term within the scope of section 667.5,
subdivision (b)(1). The court found the strike and section 667, subdivision (a) allegations
true, but made no mention of the section 667.5, subdivision (b)(1) allegation. The court
sentenced Ortiz to a second strike term of six years for the robbery of Quevedo, a
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consecutive subordinate term of two years for the robbery of Cabrera, and a five-year
serious felony enhancement. The court sentenced Velasquez to three years for the
robbery of Quevedo and a consecutive subordinate term of one year for the robbery of
Cabrera.
DISCUSSION
1. Failure to instruct sua sponte with CALJIC No. 2.05
Velasquez contends that the trial court was required to instruct, sua sponte, with
CALJIC No. 2.05, or a comparable limiting instruction. CALJIC No. 2.05 states, “If you
find that an effort to procure false or fabricated evidence was made by another person for
the defendant’s benefit, you may not consider that effort as tending to show the
defendant’s consciousness of guilt unless you also find that the defendant authorized that
effort. If you find defendant authorized the effort, that conduct is not sufficient by itself
to prove guilt, and its weight and significance, if any, are for you to decide.”
Velasquez premises this contention on the following cross-examination of Linares
by the prosecutor. Linares testified he was not at the preliminary hearing. The
prosecutor then asked, “And you were not there to see what crowds were outside in the
outside waiting area and what crowds are inside the preliminary hearing courtroom?”
Linares agreed he was not. Over a relevance objection by Velasquez, the prosecutor
asked, “You were not able to see how many friends, supporters, or family members from
the defense side was [sic] at that courtroom; were you?” Linares agreed he was not. The
prosecutor asked, “And, yet, you are able to say that you believe that they’re being
cooperative, and that they just didn’t want to testify?” Linares replied, “That’s what they
told me.” The prosecutor then asked, “And since you weren’t there at that preliminary
hearing, you weren’t able to see that in fact Fabian was actually being called out by one
of the family members; isn’t that true?” Velasquez and Ortiz objected, with the latter
noting that the question assumed facts not in evidence. The court directed the prosecutor
to reframe her question. She asked, “When you talked to Mr. Quevedo about the
preliminary hearing, and you said that he was in an interview room, he was talking to
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detectives when he says, ‘I can’t identify anyone,’ did he indicate to you that someone
had called him a snitch?” Neither defendant objected, and Linares replied, “No.” After
again confirming that Linares was not present at the preliminary hearing, the prosecutor
asked, “And did Mr. Fabian Quevedo or Jordy Cabrera indicate to you that they’re afraid
of retaliation? Did they indicate this to you?” Linares responded, “No.”
On redirect examination, Linares reiterated that he had asked Quevedo and
Cabrera “whether they had received any pressure from any of the suspects or their
families,” and they had said that only “the police” pressured them.
Outside of the presence of the jury, Velasquez made a motion for a mistrial based
upon the prosecutor “testifying in the form of a question as to an incident that occurred at
preliminary hearing that the victim or victims were called snitches by somebody
allegedly related to the defendants—one or both defendants. I think that’s improper
given the fact that no evidence was offered to that effect.” The trial court denied the
motion for mistrial.
The prosecutor did not mention any intimidation at the preliminary hearing during
her opening statement or her arguments to the jury. After both defendants argued that
Quevedo and Cabrera had not identified them at the showup and the deputies had
fabricated evidence against them, the prosecutor argued, “[S]omething happened between
the time of April 14th to the time of the prelim. What I submit to you is that the victims
had time to think about it. They got scared. And I think that it is understandable to be
scared. It is not unreasonable to be scared.”
The California Supreme Court has “consistently held that where, as here, a
defendant fails to request an instruction, a trial court ‘generally [has] no duty to instruct
on the limited admissibility of evidence. [Citation.]’” (People v. Valdez (2012) 55
Cal.4th 82, 139 (Valdez) [no sua sponte duty to give limiting instruction regarding
witnesses’ fear of testifying]; see also People v. Riccardi (2012) 54 Cal.4th 758, 824
[“Generally speaking, absent a request, the trial court has no duty to give an instruction
limiting the purpose for which evidence may be considered”].)
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Velasquez relies upon language in People v. Collie (1981) 30 Cal.3d 43 (Collie),
in which the Supreme Court concluded that the trial court had no duty to instruct sua
sponte on the limited admissibility of evidence of past criminal conduct, but postulated a
limited hypothetical exception to the general rule: “Neither precedent nor policy favors a
rule that would saddle the trial court with the duty either to interrupt the testimony sua
sponte to admonish the jury whenever a witness implicates the defendant in another
offense, or to review the entire record at trial’s end in search of such testimony. There
may be an occasional extraordinary case in which unprotested evidence of past offenses
is a dominant part of the evidence against the accused, and is both highly prejudicial and
minimally relevant to any legitimate purpose. In such a setting, the evidence might be so
obviously important to the case that sua sponte instruction would be needed to protect the
defendant from his counsel’s inadvertence. But we hold that in this case, and in general,
the trial court is under no duty to instruct sua sponte on the limited admissibility of
evidence of past criminal conduct.” (Id. at p. 64.)
This is not the extraordinary case hypothesized in Collie. As the court stated in
Valdez, supra, 55 Cal.4th at page 139, “Defendant’s reliance on Collie fails because the
evidence of the witnesses’ fear was more than minimally relevant to a legitimate
purpose—supporting the witnesses’ credibility—and was not ‘a dominant part of the
evidence against’ defendant. [Citation.] Therefore, the trial court did not err in failing to
instruct, sua sponte, on the evidence’s limited admissibility.” Although the form of some
of the prosecutor’s questions of Linares may have been objectionable, Velasquez
challenges only the trial court’s failure to instruct sua sponte. As stated in Collie, supra,
30 Cal.3d at page 64, “Neither precedent nor policy favors a rule that would saddle the
trial court with the duty” to so instruct.
In addition, the trial court’s failure to instruct sua sponte with CALJIC No. 2.05
was harmless because there was no evidence supporting the instruction. The jury was
instructed that it must decide all questions of fact from the evidence received at trial.
(CALJIC No. 1.03.) No evidence received at trial showed that someone made “an effort
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to procure false or fabricated evidence . . . for the defendant’s benefit.” Accordingly, if
the trial court had instructed with CALJIC No. 2.05, the jury would not have been able to
apply it. The jury was instructed that statements of the attorneys were not evidence, and
it should “not assume to be true any insinuation suggested by a question asked a witness.
A question is not evidence and may be considered only as it helps you to understand the
answer.” (CALJIC No. 1.02.) We presume the jury followed this instruction and did not
treat the prosecutor’s references to one of the victims being called a snitch or called out
by the family of one of the defendants as evidence. (People v. Williams (2010) 49
Cal.4th 405, 469.)
2. Ortiz’s Wende appeal
As noted, counsel for Ortiz filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende), raising no issues and asking this court to perform an independent
review of the record. Ortiz then filed a supplemental brief that appears to contend that
unspecified hearsay evidence was improperly admitted and that the case should have
been dismissed because “the police” told the victims to point out defendants even after
the victims said defendants were not the culprits.
Testimony by Delfin and Mezzano regarding the victims’ prior statements was
properly introduced as a prior inconsistent statement after the victims denied making
such statements and claimed not to recall details of the crimes. Although Linares’s
testimony regarding the victims’ statements regarding their identifications, or lack
thereof, supported an inference of improper conduct by sheriff’s personnel, Delfin’s
testimony regarding the identifications supported an inference that the victims actually
identified the defendants at the field showup. Accordingly, we reject Ortiz’s contentions.
We have examined the entire record and are satisfied that Ortiz’s attorney has
fully complied with his responsibilities and that no arguable issues exist. (People v. Kelly
(2006) 40 Cal.4th 106, 109–110; Wende, supra, 25 Cal.3d at p. 441.)
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DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
JOHNSON, J.
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