THE PEOPLE, v. RICARDO T. ORELLANA

Filed 12/10/19 P. v. Orellana CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO T. ORELLANA,

Defendant and Appellant.

A154850

(San Francisco County

Super. Ct. No. 227941)

A jury convicted Ricardo T. Orellana of making criminal threats (Pen. Code, § 422); domestic violence (§ 273.5, subd. (a)); assault with force likely to cause great bodily injury (§ 245, subd. (a)(4)); misdemeanor assault (§ 240); and misdemeanor spousal battery (§ 243, subd. (e)(1)). On appeal, he raises numerous challenges to his convictions and a claim of sentencing error. We find no prejudicial error and affirm.

BACKGROUND

A.

Between 2013 and 2017, Orellana and Christina R. were involved in a romantic relationship. They eventually married and had a child. Christina testified Orellana first physically abused her in 2014, when he punched her in the eye after becoming enraged that she had laughed at another man’s jokes. Orellana apologized and Christina accepted his apology. Shortly thereafter, Christina became pregnant. When she was eight months pregnant, the two argued, and Orellana smacked Christina’s face with the back of his hand.

In July 2016, Orellana accused Christina of cheating. Christina testified Orellana put on gardening gloves, remarking that this way he would not leave any marks when he hit her. Orellana pushed Christina to the floor and punched her in the face and chest numerous times. Christina called 911. When a deputy sheriff responded, Christina’s face was swollen and red, her forehead was bruised and gashed, and her shirt was spotted with blood. Christina said she did not want to prosecute.

A few months later, Orellana shoved Christina to the ground and repeatedly punched and slapped her. Christina again called 911 but minimized Orellana’s conduct. When a deputy sheriff arrived, Christina appeared upset but had no visible injuries. Orellana was arrested after he was found hiding in bed, fully clothed.

Christina told Orellana she wanted to end their relationship. Orellana told her that he had been diagnosed with cancer and that his dying wish was to marry. He pledged to be a better father and husband and promised that there would be no further violence. In November 2016, Christina married him. Within a few months, Christina and Orellana moved into his mother’s house. Shortly thereafter, Orellana hit Christina with a broom until his mother intervened. His mother begged Christina not to call the police, and she did not. On another occasion, Orellana shoved Christina against an ironing board and bit her finger.

In the early morning hours of July 19, 2017, Orellana accused Christina of cheating on him. He pulled her out of bed by her ankles and then punched her approximately 20 times on her arms and face as she lay on the floor. When Orellana’s mother intervened, Christina fled with their son to another room. Orellana told Christina, “Get the fuck out of the house.” Christina agreed to leave but told Orellana she needed him to watch their son while she went to work. As she left, Orellana yelled that he was going to kill Christina and her family.

That day, Orellana sent Christina angry and threatening text messages. Christina testified that, in the texts, Orellana threatened to kill her and her family, accused her of cheating, threatened to come to her workplace, and suggested he would take their son away. At the time, Christina knew Orellana was on probation for “[g]un charges.” Christina felt distracted and anxious at work because of Orellana’s continuous calls and texts. When Orellana arrived at Christina’s workplace, her manager called the police.

San Francisco Police Department officers Tupper and Hoge responded. Officer Hoge activated his body camera. The body camera recording was excluded as containing inadmissible hearsay. Tupper testified, after reviewing the body camera footage, that Christina was crying, fidgeting, shaking, and appeared fearful. Her face was bruised and swollen, her arm was also bruised, and she had pain in her jaw, wrist, and hands. Christina told Tupper that Orellana inflicted her injuries. As she spoke with Tupper, she also continuously checked her cell phone. Tupper observed Christina receive several calls from Orellana, as well as from a blocked telephone number. However, Tupper could not see who was sending her text messages. Christina told him it was Orellana. Tupper asked Christina to send screenshots of the texts to him, but she never did.

The People introduced into evidence 132 pages of photographs an investigator took (three months later) of text messages on Christina’s phone. Although his phone number was not independently verified, Christina testified that all of the texts came from Orellana’s phone number, on July 19, 2017, and that she did not alter any of the texts.

In particular, Orellana texted Christina, “u went to work to show your co workers and the cops u rat yes u did because i got a call about a report made . . . wow blood your done.” Christina understood this text to mean Orellana was threatening to kill her because she was a “snitch.” She took a similar meaning from the following message: “Wash your hands of me ok. Wash your hands wow but remember its death to we part.” Orellana also texted Christina, “Wat ever blood u got wat u wanted to drive me insane well if cops come im going all the way out so if they kill me with my son its because your a bitch ass rat and i will have some one come for you and your whole family.” Finally, Orellana texted Christina, “U think after all I put into you im going to let u fuck other people fuck u bitch u will die before.” Christina panicked because she feared Orellana would kill her and her children.

Orellana was arrested a few weeks later. Although she denied moving back in with him before his arrest, Christina admitted continuing a sexual relationship “to keep up an appearance.” Christina also talked with Orellana frequently, via telephone, while he was in jail. During one recorded call, Christina replied affirmatively when Orellana asked, “Did [a police officer] get the text messages?” Orellana then said, “I don’t know what the fuck I’m gonna do now, man.” Orellana continued, “if they got all that crap, . . . [i]t’s gonna give me a lot of time.”

In another recorded call, Christina told Orellana, “I will never be with you ever again. [¶] . . . [¶] . . . [C]uz you beat the shit out of me in front of our son and you fucking terrorized me for the last 5 years . . . You’re gonna fucking waste your fucking life in there.” Orellana responded, “I love you too, [Christina]. Sorry about everything. I miss you and my son.” Orellana later admitted: “I truly am sorry. . . Yeah I get it you hope and you want me to fucking reap the consequences of bad and wrong, blood, I get it. Hey if that’s what God wants, that’s what God wants. If I die today, it’s cool. Cuz I deserve it.”

B.

The People also presented testimony from a San Francisco Police Officer who, on August 16, 2012, responded to a report of domestic violence between Orellana and Roxana R. Roxana said Orellana punched her in the face several times, knocking her to the ground, and then choked her to the point she lost consciousness. Roxana was crying and scared. Her face was swollen, her neck was red, and her leg was bruised.

Sharon E. also testified that she dated Orellana about 13 years before trial. In January 2007, approximately three to four months after they broke up, Orellana came to her door and would not leave. Sharon filed a police report. Although Sharon initially equivocated, she ultimately testified her report to police, that Orellana threatened to kill her, was true. At the time, she was afraid of him and eventually left the country because he followed her, showed up at her work, and called her numerous times a day. He never physically harmed her.

C.

San Francisco Police Sergeant Kevin Rightmire testified, for the defense, that Christina emailed him, in August 2017, screenshots of the texts reportedly sent on July 19, 2017. Rightmire noticed a discrepancy between his copy of the emails and a defense exhibit. The content was the same but the date reflecting when they were printed was different. On cross-examination, Christina also acknowledged one message was entirely missing from the defense exhibit.

Orellana’s mother denied observing any violence on July 19, 2017. The following day, Christina returned to Orellana’s mother’s house, where she stayed with Orellana until he was arrested.

D.

The jury returned guilty verdicts on one count of felony criminal threats (§ 422; count one), two counts of domestic violence (§ 273.5, subd. (a); counts two and five), one count of assault with force likely to cause great bodily injury (§ 245, subd. (a)(4); count three), and one count of misdemeanor spousal battery (§ 243, subd. (e)(1); count four). With respect to count six, Orellana was acquitted of the charged offense (assault likely to cause great bodily injury) but convicted of the lesser included offense of misdemeanor assault (§ 240). The trial court sentenced Orellana to a total term of four years and eight months in prison.

DISCUSSION

A.

Orellana contends the jury’s receipt of extrinsic evidence during deliberations amounts to prejudicial jury misconduct. We disagree.

1.

Before trial, the trial court excluded the recording from Officer Hoge’s body camera on the ground it contained inadmissible hearsay regarding the July 19 assault. After a verdict was reached, a juror revealed to counsel that the jury had, in fact, received and viewed the body camera recording during deliberations. Orellana filed a motion for new trial (§ 1181, subd. 2), arguing the jury’s receipt of extrinsic evidence was prejudicial because the defense was denied the opportunity to cross-examine Christina regarding her statements and demeanor in the video. In a supporting declaration, the juror stated the jury viewed approximately three minutes of the recording, including depictions of Christina discussing the assault earlier in the morning, “receiving threatening text messages from . . . Orellana in real time,” and reading some of those messages aloud. The trial court denied the motion without an evidentiary hearing.

We independently review the trial court’s denial of a new trial motion asserting juror misconduct. (People v. Gamache (2010) 48 Cal.4th 347, 396 (Gamache).)

2.

It was undisputedly error for the jury to receive a recording excluded from evidence. The question is whether the error was sufficiently prejudicial to require a new trial. (Gamache, supra, 48 Cal.4th at p. 396.) Orellana argues that the incident amounts to jury misconduct, which would trigger a presumption of prejudice. (Id., at p. 397.) We reject this argument.

Nothing in the record suggests any juror obtained extrinsic evidence from sources outside the court. Rather, the trial court reasonably inferred court personnel inadvertently included a court exhibit, from an earlier Evidence Code section 402 hearing, with the exhibits admitted into evidence during trial. No presumption of prejudice arises. (Id. at pp. 398-399; People v. Cooper (1991) 53 Cal.3d 771, 836 [“When . . . a jury innocently considers evidence it was inadvertently given, there is no misconduct”].) Nor does a jury’s innocent consideration of evidence it was inadvertently given constitute constitutional error. (People v. Clair (1992) 2 Cal.4th 629, 669, fn. 10.) “The situation is the same as any in which the court erroneously admits evidence . . . There has been merely ‘an error of law . . . such as . . . an incorrect evidentiary ruling.’ ” (Cooper, supra, 53 Cal.3d at p. 836; accord, Gamache, supra, 48 Cal.4th at p. 397.) Accordingly, Orellana must demonstrate a reasonable probability that, in the absence of the error, he would have obtained a more favorable result. (People v. Jackson (1996) 13 Cal.4th 1164, 1213-1214.)

He has not done so. The jury heard Christina testify about the events that she discussed during the body camera footage, saw photographs of Christina’s injuries, and read the text messages. The jury also heard Officer Tupper testify extensively about his observations of Christina’s demeanor on July 19, 2017, as well as her then ongoing receipt of threatening text messages. Tupper specifically told the jury that he refreshed his recollection by watching the challenged recording. A three-minute segment of the video would not have changed the result.

Even without viewing the body camera recording, the jury would have been highly skeptical of Orellana’s version of events—i.e., Christina was lying to control Orellana and obtain sole custody of their child. Christina’s testimony was corroborated by Tupper’s testimony, photographs of her injuries, independent witness testimony regarding Orellana’s prior instances of domestic violence, and the admissions Orellana made in recorded jail calls. There was no reasonable probability of a more favorable outcome. Even if we assume the stricter standard of prejudice for federal constitutional error applies (Chapman v. California (1967) 386 U.S. 18, 24), we would conclude the error was harmless beyond a reasonable doubt. (See Gamache, supra, 48 Cal.4th at pp. 399-402 [jury’s inadvertent receipt of video harmless when video was cumulative or not particularly prejudicial in light of overwhelming evidence].)

B.

Orellana next contends the prosecutor committed prejudicial misconduct by eliciting testimony the court had excluded. The trial court disagreed, and we find no abuse of discretion. (See People v. Alvarez (1996) 14 Cal.4th 155, 213.)

1.

Before trial, the trial court ruled Christina could testify Orellana was on probation, at the time of the charged offenses, for a gun offense because the evidence was highly probative with respect to her fear on receipt of the text messages. The trial court also granted Orellana’s motion to exclude references to “halfway houses, incarceration, prison, or anything to that effect.” The court ordered the prosecutor to convey the ruling to Christina.

Three incidents are at issue. First, during the People’s direct examination of Christina, the prosecutor asked her about her living arrangements in 2013. She testified Orellana lived with her, in December 2013, but that changed a few months later when Orellana “was sentenced to turn himself into a halfway house.” The trial court sustained a defense objection, struck Christina’s answer, and instructed the jury to disregard her answer. Before the jury, the prosecutor admitted he had not had “a discussion” with Christina and a recess was taken. After the recess, the prosecutor confirmed the situation had been remedied.

The second incident occurred the following day when Christina testified about the morning of July 19, 2017:

“THE WITNESS: At one point in time, [Orellana] told me in the living room before we had left, he had told us that this girl that he had cheated on me with . . . that she had told him that I tried to get him murdered and that she was going to come for me and she was going to kill me and my family.

“[THE PROSECUTOR]: And who was this person?

“A. A girl that he was incarcerated with.”

The trial court again struck Christina’s answer and instructed the jury to disregard it. When the jury left the courtroom, Christina confirmed the prosecutor had told her “[n]ot to speak about times that [Orellana] was incarcerated” but said she did not understand how to follow that instruction and also answer truthfully. The prosecutor stated he had not intended to elicit such information and understood the trial court’s ruling. The court clarified with Christina how to follow its order.

The third incident occurred on cross examination, when, in response to a question from defense counsel, Christina again mentioned Orellana’s prior incarceration. The trial court ordered Christina’s answer stricken and instructed the jury to disregard it.

The trial court instructed the jury it could only consider evidence of Orellana’s probation for the limited purpose of evaluating Christina’s mental state for count one and not for any other purpose. The jury was also instructed “not to consider stricken testimony for any purpose.” The trial court denied Orellana’s subsequent motion for a new trial, finding the prosecutor did not intentionally violate its order.

2.

The trial court reasonably found the prosecutor unintentionally elicited inadmissible evidence. (See People v. Valdez (2004) 32 Cal.4th 73, 125 “[A] prosecutor engages in misconduct by intentionally eliciting inadmissible testimony”].) Christina’s fleeting references to incarceration and a halfway house were not directly responsive to the prosecutor’s questions, and the prosecutor explained his delay in conveying the trial court’s order to Christina was inadvertent (he forgot about the instruction in the course of trying to calm down the witness, who was upset for unrelated reasons). And, of course, Christina’s answers to questions asked by defense counsel cannot form the basis of prosecutorial misconduct. (See People v. Navarette (2003) 30 Cal.4th 458, 507-508.) We agree that the record before us does not demonstrate prosecutorial misconduct under state or federal law. (See People v. Davis (2009) 46 Cal.4th 539, 612.)

Moreover, any error was harmless. (See People v. Crew (2003) 31 Cal.4th 822, 839.) The jury was properly instructed to disregard any stricken testimony. We presume the jury complied. (People v. Mendoza (2007) 42 Cal.4th 686, 702.) The instruction was sufficient to cure any prejudice from the fleeting references to a halfway house and incarceration. (See People v. Avila (2006) 38 Cal.4th 491, 573-574 [prompt admonishment cured prejudicial effect of witness testimony that defendant was recently in prison].) “It is only in the exceptional case that ‘the improper subject matter is of such a character that its effect . . . cannot be removed by the court’s admonitions.’ ” (People v. Allen (1978) 77 Cal.App.3d 924, 935 (Allen).) Unlike in Allen and the other cases Orellana cites (see, e.g. People v. Ozuna (1963) 213 Cal.App.2d 338, 342), the evidence of Orellana’s guilt was overwhelming. It is not reasonably probable Orellana would have received a more favorable result in the absence of the error.

C.

We reject Orellana’s argument that a unanimity instruction was required. (See People v. Russo (2001) 25 Cal.4th 1124, 1132, 1135 [court has sua sponte duty to give unanimity instruction when evidence shows more than one discrete act to support single charged offense and prosecutor makes no election].)

The People concede Orellana was charged with one count of criminal threats, but the text messages contain multiple threatening statements. They contend no unanimity instruction was required because the prosecutor focused, in opening statement and closing argument, on one particular statement.

A prosecutor can elect a particular unlawful act in closing argument by “ ‘tying each specific count to specific criminal acts’ ” (People v. Brown (2017) 11 Cal.App.5th 332, 341), but to do so the prosecutor’s “statement must be made with as much clarity and directness as would a judge in giving instruction.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.) We agree the prosecutor’s election was sufficiently clear that the culminating text (“you will die before”) was the charged act and the other text messages merely provided context. A unanimity instruction was not required.

D.

Orellana has forfeited his argument that the text messages were not authenticated. During pretrial motions, defense counsel moved to exclude screen shots of text messages on hearsay, relevance, and inadequate authentication grounds. After the trial court indicated at least some of the messages were admissible over the first two objections, defense counsel failed to obtain a ruling on the latter objection. Instead, defense counsel stated, “I do oppose the admission, but I accept the Court has ruled that there is admissible information in here. So in light of the Court’s ruling, . . . should any of the text be admitted, . . . it is our joint request with the People that all of them be admitted.” All the text messages were admitted in evidence without further objection.

Orellana is correct that a court’s “sufficiently definite and express ruling” on a motion in limine preserves a claim for appeal. (People v. Thompson (2016) 1 Cal.5th 1043, 1108.) But he did not obtain one. Orellana thereby failed to preserve his authentication argument for appeal. (See People v. Ramos (1997) 15 Cal.4th 1133, 1171 [when trial court does not rule on an objection in limine, objecting party is “ ‘obligated to press for such a ruling and to object . . . until he obtain[s] one’ ”].)

E.

We reject Orellana’s alternative position that his criminal threats conviction is not supported by substantial evidence. (See People v. Toledo (2001) 26 Cal.4th 221, 227-228; § 422.) Even an ambiguous statement may be found to be a criminal threat if the circumstances clarify its meaning. (In re George T. (2004) 33 Cal.4th 620, 635 (George T.); People v. Butler (2000) 85 Cal.App.4th 745, 753.) Evidence that the defendant previously subjected the victim to violence is “thoroughly germane” to whether a particular statement will be taken as a threat and whether the victim was in a state of sustained fear. (People v. Garrett (1994) 30 Cal.App.4th 962, 967.) Unlike the poet in George T., Orellana did not couch his words in an inherently ambiguous artistic expression directed at no one in particular. Instead, Orellana directly told Christina that she would “die before” he “let” her sleep with other men. He told her this shortly after accusing her of cheating, forcibly dragging her onto the floor, repeatedly punching her, verbally threatening her life, and sending her dozens of hostile text messages. They may have been physically separated at the time he sent the text messages, but Orellana appeared at Christina’s work that very afternoon. Christina was scared Orellana would kill her. Substantial evidence supports the verdict. (See In re David L. (1991) 234 Cal.App.3d 1655, 1659 [“climate of hostility” supports inference person making threat intended victim to feel threatened].)

F.

Orellana maintains the trial court abused its discretion by admitting Sharon E.’s testimony regarding uncharged domestic violence. We disagree.

1.

Evidence of prior criminal acts is ordinarily inadmissible to show a defendant’s disposition to commit such acts. (Evid. Code, § 1101, subd. (a).) However, the Legislature has created an exception in cases involving domestic violence (Evid. Code, § 1109, subd. (a)(1)). Evidence Code section 1109, subdivision (a)(1) provides: “Except as provided in subdivision (e) . . . , in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” Subdivision (e) of Evidence Code section 1109 provides: “Evidence of acts occurring more than 10 years before the charged offense is inadmissible under this section, unless the court determines that the admission of this evidence is in the interest of justice.”

“Even if the evidence is admissible under [Evidence Code] section 1109, the trial court must still determine, pursuant to [Evidence Code] section 352, whether the probative value of the evidence is substantially outweighed by the probability the evidence will consume an undue amount of time or create a substantial danger of undue prejudice, confusion of issues, or misleading the jury.” (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.) The “prejudice” referenced in Evidence Code section 352 “ ‘applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’ ” (People v. Karis (1988) 46 Cal.3d 612, 638.) We review the trial court’s exercise of discretion under Evidence Code section 352 for abuse of discretion. (People v. Thomas (2012) 53 Cal.4th 771, 806.)

2.

In pretrial motions, the People moved to admit evidence of Orellana’s uncharged domestic violence against Sharon E., pursuant to Evidence Code section 1109. Orellana opposed the motion, arguing the evidence was unduly prejudicial because it was remote in time and did not involve physical violence. The trial court concluded the uncharged acts were admissible, explaining, “there is more probative value than prejudice.”

3.

“Relevant factors in determining prejudice include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent were the prior acts, and whether the defendant had already been convicted and punished for the prior offense(s).” (People v. Rucker (2005) 126 Cal.App.4th 1107, 1119.)

Here, the trial court reasonably found the evidence was highly probative because Sharon E., who was an independent witness, reported Orellana made a similar death threat when their romantic relationship ended. This tended to corroborate Christina’s account. The evidence involving Sharon E. was less inflammatory than the evidence underlying the charged crimes. Sharon E.’s testimony was brief and there was little risk the jury would confuse the incidents.

In his reply brief, Orellana argues the uncharged instances of domestic violence against Sharon E. were too remote to be admissible, citing Evidence Code section 1109, subdivision (e). Although defense counsel noted the uncharged incidents were remote, defense counsel did not argue the evidence was presumptively inadmissible under Evidence Code section 1109, subdivision (e). (See People v. Johnson (2010) 185 Cal.App.4th 520, 539.) By waiting until his reply brief on appeal to raise the issue, Orellana forfeited any argument that the trial court failed to make the required interest of justice determination. (See Evid. Code, § 353; People v. Partida (2005) 37 Cal.4th 428, 435 [“[a] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct”].) Orellana has shown no abuse of discretion.

G.

Orellana argues the cumulative effect of trial errors requires reversal. We have rejected all but one of Orellana’s arguments on the merits. The errors identified or assumed, for the sake of argument, were harmless whether considered individually or collectively.

H.

Finally, Orellana argues the trial court abused its sentencing discretion by declining to reduce his criminal threats conviction, a so-called wobbler (a crime that can be a misdemeanor or a felony; see § 422, subd. (a)), to a misdemeanor. Orellana does not persuade us the trial court’s decision was irrational or arbitrary. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Defense counsel filed a sentencing brief requesting the court reduce Orellana’s criminal threats conviction to a misdemeanor. In support, defense counsel argued the nature of his offense was mitigated because the threat was not followed by violence, it was made “in the heat of a protracted argument,” and was conveyed via text message while he and Christina were physically separated. Orellana also argued he had taken responsibility for the offense because he thereafter ceased threatening Christina. Finally, Orellana argued that because he would be sentenced for three other felonies, it was not necessary (from a public safety perspective) to add a strike conviction to his record.

The People opposed a reduction, noting Orellana had repeatedly physically abused Christina, including on the morning of July 19. Similarly, the probation report indicated Orellana had expressed no remorse; denied an anger management problem; had an extensive criminal history; and had committed the instant offenses while on probation.

Contrary to Orellana’s assertion, the record shows the trial court considered his offense, his character, and the public interest. (See Alvarez, supra, 14 Cal.4th at p. 978.) The trial court denied the motion to reduce, stating, “all the circumstances presented at this trial justify the felony treatment.” We cannot say the trial court abused its discretion.

DISPOSITION

The judgment is affirmed.

_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

SIMONS, J.

A154850

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