Opinion
G052036
05-12-2017
THE PEOPLE, Plaintiff and Respondent, v. GABRIEL OROZCO, Defendant and Appellant.
Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12NF3903) OPINION Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed. Gordon S. Brownell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Gabriel Orozco of first degree murder with special circumstances and active participation in a criminal street gang. The jury found true sentence enhancement allegations for committing murder for the benefit of, at the direction of, or in association with a criminal street gang, and personally discharging a firearm causing death and personal use of a firearm. Orozco admitted five prior prison term allegations.
The court sentenced Orozco to life without the possibility of parole (LWOP) for murder, plus 25 years to life for use of a firearm causing death. The court imposed a concurrent two-year term for active participation in a criminal street gang. The court struck the five prior prison terms and the gun use and gang enhancements for sentencing purposes.
Orozco argues the court committed reversible error and violated his constitutional right to present a defense by excluding certain impeachment evidence. To the extent his trial attorney forfeited the constitutional claim, Orozco also asserts he received the ineffective assistance of counsel. Finally, Orozco challenges the court's imposition of a $500 parole revocation fine. We find no error and affirm the judgment.
FACTS
1. Background
In 2011, Kimberly Park and David Zickman lived together in an apartment in Garden Grove. Zickman sold all kinds of drugs, but primarily marijuana. He also spent a lot of time at the Gardens Casino in Hawaiian Gardens.
In the early morning hours of December 3, Ronald Latham drove by an unoccupied house on Dogwood Avenue in Anaheim and something in the driveway caught his attention. Latham stopped his car to investigate and found Zickman's body.
Zickman died from a single gunshot wound to the back and the resultant internal bleeding. The bullet retrieved from Zickman's body was analyzed by a forensic scientist at the Orange County Crime Lab. The bullet was badly damaged, which made the forensic analysis difficult, but the analyst concluded it was a lead cast bullet, probably fired from an undersized nine-millimeter semiautomatic pistol, or a .38-caliber firearm.
Latham called 911. When Anaheim Police Detective Julissa Trapp arrived on the scene she noticed Zickman was wearing socks, but no shoes, and he did not have a watch, wallet, or telephone.
Around midnight, Anaheim Police Sergeant Nathan Stauber found Zickman's silver Lexus in Pico Rivera. Officers watched the Lexus from 2:00 a.m. until about 7:30 a.m. when a Chevy Impala parked nearby. The Impala's driver, Jose Gomez, got out of his car and into the Lexus. He started the ignition and moved the car a short distance before getting out of the Lexus and returning to the Impala.
Although Gomez tried to drive away, he was quickly detained. Police officers searched Zickman's Lexus and found blood on the backseat. A search of Gomez's home led to the discovery of cell phone information connecting Gomez with Zickman, Orozco, and Jessica Gutierrez, Orozco's girlfriend.
In 2012, Orozco, Gutierrez, and George Ramirez were arrested in connection with the crime. At the time of his arrest, Orozco was carrying a loaded, nine-millimeter semiautomatic handgun. The barrel of his gun "looked like it had been drilled or altered." However, comparisons of bullets fired from this gun and the bullet recovered from Zickman's body were inconclusive.
Trapp advised Orozco of his Miranda (Miranda v. Arizona (1966) 384 U.S. 436) rights. Orozco waived his rights and told Trapp he met Zickman in a casino. They had seen each other a few times and smoked marijuana together. Orozco admitted he "used to pick weed off the dude." Orozco sold methamphetamine, and they once talked about exchanging some of Orozco's methamphetamine for Zickman's marijuana.
Orozco told Trapp he had not seen Zickman for about three months. When Trapp informed Orozco about Zickman's murder, Orozco responded, "Well hopefully you can explain to me what happened." Orozco also told Trapp, "if you think that I have some type of involvement in what happened with [Zickman], you know, you're wrong." Orozco admitted he had been an active participant in a street gang at one time, but he had come to realize it was "just a bunch of nonsense" during his incarceration.
From Orozco's confiscated cell phone, detectives found text messages to Zickman, including one from December 3.
2. Accomplice Testimony
Ramirez, a member of Southside Whittier criminal street gang, agreed to testify for the prosecution in exchange for his guilty plea to voluntary manslaughter, admission of a gang enhancement, and a six-year sentence.
Ramirez testified he met Orozco through their mutual membership in Southside Whittier and mutual friends. For about three years, Ramirez and Orozco spent every day together playing video games in the various motel rooms they rented. At night, they went to the Gardens Casino. According to Ramirez, Orozco lost thousands of dollars at the casino about a week before Zickman's murder.
In the afternoon of December 2, Orozco picked up Ramirez and drove to a Wal-Mart parking lot. Orozco asked Ramirez for $50 to buy some marijuana from Zickman. Orozco told Ramirez, "it was just going to be a setup." Ramirez had no money so Orozco took him home. Orozco told Ramirez to come to his motel room later, and he asked Ramirez to bring his .44-caliber revolver. Ramirez assumed Orozco was planning a robbery.
Around 8:00 p.m., Ramirez went to Orozco's motel room. Gutierrez was there, and she was texting Zickman to arrange a marijuana purchase. Orozco wanted her to flirt with Zickman and have him meet her at a restaurant. Orozco explained that he wanted to force Zickman to go to his apartment where Orozco thought Zickman kept his money and drugs. Ramirez told Orozco he would bring his gun and provide backup for "a piece of the action."
As planned, Orozco and Ramirez drove separate cars to a bar where Gutierrez and Zickman were to meet. While they waited, Ramirez became anxious and called Orozco. Eventually, they saw Zickman drive his silver Lexus into the parking lot with Gutierrez in the passenger seat.
Gutierrez and Zickman went inside the bar. Meanwhile, Ramirez walked around outside, smoked some cigarettes, and bought a bottle of water at a convenience store. After about 30 minutes, Gutierrez and Zickman came out of the bar and got into Zickman's Lexus.
Orozco moved his car to block their path. He got out of his car and walked toward the Lexus pointing a nine-millimeter gun with a distinctive orange sight at the passenger compartment. Orozco told Ramirez to drive his car and follow them. Gutierrez got into the driver's seat of Zickman's Lexus while Orozco, gun in hand, directed Zickman into the back seat and got in himself.
Ramirez followed Gutierrez while she drove Zickman's Lexus up and down Beach Boulevard for a while. Eventually, they stopped at what Ramirez later discovered was Zickman's sister's apartment. Ramirez parked and got out of his car. As he approached Zickman's Lexus, Ramirez heard Gutierrez yell, "What's the fucking pin number?" Orozco yelled at Ramirez to get back in his car, and Ramirez complied.
The two cars returned to traversing the length and breadth of Beach Boulevard. However, as they were stopped at a red light, Ramirez saw Zickman open the back seat passenger door of the Lexus and try to escape. Ramirez heard a gunshot just before the light turned green. The cars took off and Ramirez tried to follow the Lexus, but he lost sight of it at another red light.
Ramirez decided to call Orozco. When Orozco answered the phone, Ramirez heard arguing in the background, and then Gutierrez said, "Babe, you shot him in the back." Ramirez found the Lexus, and Orozco directed him to follow them. The cars drove in tandem into a residential neighborhood Ramirez did not recognize. Gutierrez eventually pulled into the driveway of a residence on Dogwood Avenue in Anaheim. Orozco and Ramirez pulled Zickman out of the backset of the Lexus, barely alive and making gurgling noises, and left him, shoeless, in the driveway.
Ramirez drove home and got rid of his .44-caliber gun. He contacted Orozco, and Orozco told Ramirez they would meet later at the home of another Southside Whittier gang member, Becky Zuniga. Orozco wanted Ramirez to take Zickman's Lexus, but Ramirez refused. However, at Orozco's insistence, Gutierrez took the SIM (subscriber information module) card out of Zickman's cell phone and destroyed it. Later, Orozco gave Gomez, another Southside Whittier gang member, some money and methamphetamine to get rid of Zickman's Lexus.
After smoking methamphetamine, Ramirez asked Orozco for a ride back to Zickman's sister's apartment complex to retrieve his car. Orozco told Ramirez to leave his car and report it stolen. Ramirez did not like this idea and Zuniga later gave him a ride to get it. Orozco initially gave Ramirez the nine-millimeter gun to dispose of, but Orozco took it back. A day or two after the murder, Ramirez saw a newspaper article about a body found in Anaheim and he recognized the neighborhood.
Gutierrez also entered into an agreement with the prosecution. In exchange for her truthful testimony, Gutierrez plead guilty to voluntary manslaughter and received an eight-year sentence.
Gutierrez's testimony duplicated Ramirez's to some extent. She testified Orozco met Zickman at a casino, and she verified Ramirez's statement about Orozco losing a lot of money, around $2,000, a week before the murder. Gutierrez said she knew Orozco wanted her help to rob Zickman, and he was going to use exchanging methamphetamine for marijuana as the lure.
On December 2, Orozco and Gutierrez drove to Zickman's sister's apartment. Orozco told Gutierrez to flirt with Zickman. After their purchase, Gutierrez and Orozco returned to Orozco's motel room. There, Gutierrez told Orozco she had seen several jars of marijuana in the apartment.
When Ramirez showed up, he and Orozco spent several minutes in the bathroom smoking methamphetamine. Eventually, Orozco told Gutierrez to text Zickman and say she wanted to hang out with him. Zickman drove Gutierrez to the bar in his Lexus. After about 20 minutes inside the bar, Zickman and Gutierrez came outside and Gutierrez signaled Ramirez and Orozco. Orozco blocked Zickman's Lexus and forced him into the backseat of the car at gunpoint. Orozco told Gutierrez to drive back to Zickman's sister's apartment.
During the drive, Orozco pointed a gun at Zickman and repeatedly demanded Zickman give him everything he had. A frightened Zickman said he had nothing at his sister's apartment, and he offered Orozco his car, wallet, and jewelry. Zickman explained he was just a small time drug dealer. Gutierrez suggested Zickman give Orozco "whatever you have" while she drove around.
When they got to the apartment, Orozco demanded Zickman take him inside, but Zickman refused. Then, Orozco told Gutierrez to drive away. As they were stopped at a red light on Beach Boulevard, Gutierrez saw Zickman open the rear passenger door and stick one leg out. Gutierrez heard a shot and realized Orozco had shot Zickman, and Orozco pulled Zickman's leg into the car and shut the car door. Gutierrez heard Zickman cry out, "You shot me," and "I can't breathe."
Orozco directed Gutierrez to drive to a hospital, but Zickman died while they were driving around. At some point, Ramirez called Orozco. Gutierrez remembered saying something like "you shot him." Orozco told Gutierrez to keep driving. Eventually, they found an empty house on Dogwood Avenue. She pulled into the driveway and parked. Ramirez parked on the street. Orozco and Ramirez pulled Zickman's body out of the car and left it in the driveway.
Using Zickman's Lexus, Gutierrez drove Orozco to Zuniga's house where Orozco used a rag to clean the inside of the car. She saw one of Zickman's shoes in the backseat. When Gomez arrived, Orozco persuaded him to get rid of the Lexus. Gutierrez remembered Zickman's phone being destroyed, but she could not recall who did it. Later, Orozco and Gutierrez went back to Orozco's motel room. She also saw Orozco using a power drill on the barrel of his nine-millimeter gun.
At the time of her arrest, Gutierrez denied knowing anything about Zickman's murder and gave a false alibi. However, after Gutierrez decided to cooperate with police, she received the following text message from Orozco: "Now, you are my enemy bitch. I told you already, Ima treat you just like that one dude. Watch. It's about that time. God bless you." Gutierrez interpreted the message as a threat to kill her just like he killed Zickman. 3. Expert Witness Testimony
An expert witness gathered cell tower information and text logs for the cell phone numbers associated with Orozco, Zickman, Gutierrez, Ramirez, and Gomez. According to the records, Ramirez's cell phone used a cell tower near Orozco's motel at around 5:30 p.m., on December 2. Gutierrez's phone used the same cell tower to contact Zickman at about 7:00 p.m.
Around 11:45 p.m., Gutierrez called Zickman using a cell tower near the bar. Orozco's cell phone pinged a cell tower near the bar. Zickman's phone used the same cell tower around midnight, but a call he received an hour later went unanswered.
After midnight, Gutierrez's phone used a tower near Zickman's sister's apartment. Orozco's phone called Ramirez and used the same cell tower.
Around 1:20 a.m., on December 3, Ramirez called Orozco and both their cell phones used a tower near the Dogwood Avenue residence. At 1:40 a.m., Ramirez's cell phone pinged a cell tower near Orozco's motel. At around 2:30 a.m., Gutierrez's cell phone used the same cell tower. Gomez's cell phone received a text with the license plate number of Zickman's Lexus, which Gomez texted to a third person.
Los Angeles County Sheriff's Department Detective Ivania Farias testified as the prosecution's gang expert. According to Farias, Southside Whittier is an ongoing criminal street gang in the City of Whittier. In 2011, the gang had approximately 230 members and the primary activities of Southside Whittier was the commission of murder, assault with a deadly weapon, vehicle thefts, narcotic sales and transportation, and gun possession.
Farias testified Ramirez was a member and active participant in Southside Whittier at the time of the murder. She had the same opinion of Orozco. In 2011, Farias had personally contacted Orozco, and Orozco claimed membership in Southside Whittier and the gang moniker "Dopey." As for Gutierrez, Farias said Gutierrez became a Southside Whittier associate when she became Orozco's girlfriend.
Farias opined Orozco was an active participant in Southside Whittier in December 2011 based on her personal contacts with him, and her background, training, and experience. Moreover, because Orozco murdered Zickman with other Southside Whittier gang members and associates, and fled to a Southside Whittier gang member's home to dispose of Zickman's car, Farias also opined Zickman's murder was at the benefit of, at the direction of, or in associate with Southside Whittier.
Although Farias did not know Gomez personally, he was reportedly a member of the Notorious criminal street gang in Bell Gardens, and he used the moniker "Lefty." At the time of the murder, however, he lived in Southside Whittier's claimed territory.
Zickman had no known link to any criminal street gang. 4. Defense
Orozco testified on his own behalf. He admitted to prior felony convictions for possession of drugs for sale, conspiracy to sell drugs, and car theft. He also admitted past membership in Southside Whittier, but Orozco testified he was not an active gang member in December 2011.
Orozco denied having a plan to rob Zickman. He denied having a gun during the robbery. When asked what he thought might have happened, Orozco said he had no idea how Zickman got shot in the back. Orozco explained the gun in his possession at the time of his arrest had been purchased after the murder. He denied tampering with the gun. Orozco also denied giving Zickman's car to another gang member, and taking Zickman's personal possessions, or smashing Zickman's phone.
Orozco met Gutierrez a few years before the murder. Orozco liked to gamble and hang out at casinos. He met Zickman at the Gardens Casino about a month before the murder. Zickman invited Orozco to smoke marijuana. As they sat in Zickman's car and talked, Orozco and Zickman learned they were both drug dealers.
During the afternoon of December 2, Orozco went with Gutierrez to Zickman's sister's apartment to drop off methamphetamine and pick up marijuana. Orozco involved Gutierrez to "test" Zickman by seeing how he would interact with her. Gutierrez drove from Orozco's motel room to Zickman's apartment. She left Orozco at a nearby laundromat while she went inside the apartment. The transaction took longer than Orozco expected, and he called Zickman. Gutierrez got the marijuana, and she and Orozco returned to their motel room.
On the way back to the motel, Orozco asked Gutierrez what had taken her so long. Orozco testified his "intuition was telling me something wasn't right, as far as . . . infidelity." When Orozco kissed Gutierrez, he smelled alcohol on her breath, but she said he was "crazy or something."
Later, Gutierrez told Orozco she was going to go out for drinks with her cousins, and she was texting a lot. Ramirez came over, and he and Orozco smoked methamphetamine while Gutierrez put on makeup.
Orozco told Ramirez he thought Gutierrez was cheating on him, and he followed her when she left the motel room. Orozco lost sight of her car in traffic, but he later saw her in Zickman's Lexus. Orozco followed Zickman's car to the bar parking lot. Ramirez drove his own car to the parking lot and parked next to Orozco.
Gutierrez and Zickman went into the bar and came out after about 30 minutes. They got into Zickman's Lexus. Orozco and Ramirez followed in their separate cars. Gutierrez drove Zickman's Lexus to an apartment complex. Gutierrez and Orozco parked nearby. Orozco watched the Lexus for about 10 minutes. Meanwhile, Zickman and Gutierrez smoked marijuana, and Zickman started to paw Gutierrez.
Gutierrez drove the Lexus back onto the street, and Orozco and Ramirez followed. Eventually, Gutierrez drove into a residential area. Orozco went around the block and then parked 10 or 20 feet behind Zickman's car. Orozco thought he saw Zickman "doing the same thing he was trying to do over at the apartments." Orozco testified he got out of his car, walked up to the passenger side of Zickman's car, confronted Zickman and Gutierrez, and told them to get out of the car.
Zickman got out of the car, and Orozco said something like, "'What the fuck is going on right here man.'" "'I just met you, dude, and you're trying to hook up with my girl?'" Zickman responded, "'It is what it is,'" and a wrestling match ensued. At some point, Orozco pushed Zickman and Zickman fell and hit his head on the street.
Gutierrez walked away as Ramirez drove up. Ramirez got out of his car and told Orozco, "I got this. Just go get Jessica." Orozco left Zickman's body to look for Gutierrez. He found her and they drove back to Whittier together. They decided to go to Zuniga's apartment because someone needed to pick up Gutierrez's car at Zickman's apartment. When Ramirez arrived at Zuniga's apartment in Zickman's Lexus, Orozco told Ramirez to take it back.
Orozco and Ramirez went back to Orozco's motel room. Orozco testified he sent Zickman a text on December 6, and he asserted Trapp was the first person to tell him Zickman was dead. When asked about the text message he sent to Gutierrez calling her an enemy, Orozco testified he sent the text on the day she threw "the hair iron thing" at him, split his eye, and chipped a tooth. Orozco said they sometimes had heated exchanges, but he never hit Gutierrez.
DISCUSSION
1. Exclusion of Evidence
a. Background
At a pretrial hearing, the court and counsel discussed potential issues concerning two confidential informants, Pareda and Cuevas. Trapp, the lead investigator in the case, tasked them with eliciting information from Ramirez and Orozco during their incarceration. The informants talked to Ramirez in an area of the jail's exercise yard equipped with recording devices, and he told them about the murder.
Defense counsel believed the informants threatened Ramirez to get him to "open up and start talking about his involvement in this killing." Counsel believed the informants worked on Ramirez by representing they were "higher-ups in the Mexican Mafia," and counsel wanted to question the informants about any threats they made to Ramirez before the recording started.
Counsel explained, "So, even though I don't have those same kind of implied and not so implied threats on tape with Ramirez, it's my position that's [the informants] MO [modus operandi], that's how they were dealing with the people in this case, that is the informants. [¶] And though I don't have any police report or any transcript that says they made those kinds of threats, it's my belief that they did. And I would intend to put the informants on the stand to ask them questions about any interaction with Ramirez that is not caught on tape. But also to put on the kind of threats they made to my client to show that's how they were operating, and to be able to argue to the jury that's why they must have had those kind of communications with Ramirez, and that's why Ramirez started to talking to them."
Counsel asserted Zickman had been paying taxes to the Mexican Mafia for his drug sales, which meant anyone who killed him was in trouble. In counsel's estimation, Ramirez just told the informants what they wanted to hear.
The prosecutor objected on relevancy and Evidence Code section 352 grounds. Plus, the prosecutor represented she had no intention of introducing Orozco's statements to the informants at trial. On the other hand, Ramirez was an important prosecution witness. Nevertheless, the prosecutor argued the defense offer of proof failed to demonstrate the informants' testimony would be relevant and admissible.
At the Evidence Code section 402 hearing, Ramirez testified he was transferred to the Orange County jail from the Los Angeles County jail in July 2012. Trapp contacted Ramirez during the booking process. She told him she was a homicide detective from Anaheim, and she would be back to talk to him the next day. Ramirez knew she was going to talk to him about Zickman's murder.
As Ramirez sat in the jail's holding tank, he "just started talking" to three other inmates. After he got dressed and went into the recreation area, Ramirez talked to two of the three, Pareda and Cuevas. Ramirez introduced himself as, "Gordo," from Southside Whittier. One of the two men identified himself as "Big Boy" from West Side La Mirada. The second said he was from West Side Rebels. Ramirez had the impression they were Mexican Mafia.
The inmates talked about Trapp's visit and the charges against Ramirez. Pareda and Cuevas told Ramirez he was in trouble, but they never said anything about Zickman's death. Ramirez denied either one threatened him. In fact, he thought the informants were cool. Ramirez blamed Orozco for his incarceration, and he hoped the informants would help him "get rid of [Orozco]."
Ramirez said he did not usually talk to other Sureño gang members about what was going on with him. However, Ramirez had seen the informants' tattoos and heard them name important players in the Mexican Mafia. Ramirez "figured they were real dudes," and he thought they had some pull or authority. Ramirez said he was happy to see them because he thought they had enough juice to get Orozco.
After Ramirez testified, defense counsel asserted the informants had acted like police officers by promising to help Ramirez get Orozco. Thus, the defense "should be allowed to ask them questions about their involvement, and statements that they may have made that Ramirez either has forgotten or is not telling us about." Defense counsel wanted to question the informants about "what exactly they told Ramirez back in the holding cell before they got to the yard and before the tape started playing."
Defense counsel conceded there was no evidence the informants made any threats to Ramirez. To the contrary, Ramirez denied any threats were made. Nevertheless, defense counsel wanted to question the informants about their use of intimidation and threats to obtain confessions in this and other cases to establish a custom and habit. Counsel said Orozco and Gutierrez told him they had been threatened and intimidated by the informants, and counsel believed the informants used the same tactics with Ramirez.
The prosecutor argued Orozco failed to prove the relevance of the informants' testimony. (Evid. Code, § 210 [only relevant evidence is admissible].) In the prosecutor's estimation, there was simply no evidence to support defense counsel's hunch the informants used intimidation, threats, or promises to obtain Ramirez's statement. Moreover, under Evidence Code section 352, the presentation of the evidence would cause an undue consumption of time and confuse the jury.
The court denied the motion without prejudice. The court deemed Ramirez a credible witness, and Ramirez said the informants had not used threats or intimidation to get him to talk. As the court explained, "[t]o put the [informants] up right now would be a fishing expedition . . . [w]e have no evidence of custom or habit. [¶] . . . [¶] So, at this point the court is finding under [Evidence Code section] 352, the lack of custom and habit, and the real danger of confusing the jury with Mexican Mafia and all this other stuff, the court will excluded it."
The issue arose again midtrial after Ramirez's testimony. Outside the presence of the jury, the prosecutor told the court part of Ramirez's contact with the informants had not been recorded. According to the prosecutor, all the cases involving Pareda and Cuevas had been reviewed by other deputies in the district attorney's office out of an abundance of caution, but there was no evidence Pareda and Cuevas made routine use of threats, promises, or intimidation to obtain incriminating statements.
The revelation prompted defense counsel to renew his motion to examine the informants. He asserted questioning the informants could lead to valuable impeachment evidence against Ramirez.
The court disagreed: "Well, first of all, as an overview, it's very delicate for a court to say the defense cannot present a witness, and the court does that very, very rarely. Though I thought . . . Ramirez was generally credible in the [Evidence Code section] 402, he is a little less credible now with the inconsistencies that the defense has shown. But the problem is, in respect to the impeachment, we already have the tape. And he has admitted to most of the [inconsistent] statements on the tape.
"So, as far as impeachment, and the People are willing to stipulate, if you want that, that what's -- the statements attributed to him were accurate. So, I don't see it for impeachment.
"As far as a kind of custom or habit of threatening, he was credible, in my opinion, in terms of the testimony of no evidence of threats, or he was not threatened. He didn't feel threatened. The tape, of course, shows no evidence of threats. It's the old pros helping the greenhorn, as I put it before. [Ramirez's] conversation with him, with the [informants] is three months later. So, it's a kind of slightest possible showing of custom or habit.
"The court will find under [Evidence Code section] 352 if there is very slight relevance, it still opens a can of worms of new people, long records, other cases, and what have you. And it's really -- I don't mean this disrespectfully -- a fishing expedition, in the hopes that the [informants] will say oh, yeah, we threatened him. Which seems very remote, given the kind of people we're dealing with.
"So, the court will reluctantly exclude the testimony of the two [informants]."
b. Standard of Review for Asserted Evidentiary Errors
Orozco challenges the court's denial of his motion to question the informants on statutory and constitutional grounds. Such challenges are generally reviewed for abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) A trial court's ruling will not be overruled "'except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (Ibid.)
Under Evidence Code section 352, the court retains broad discretion to exclude even relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
The court's ruling was not arbitrary or capricious. In fact, the court spent considerable time pondering the issue. Orozco's problem lies with defense counsel's offer of proof. Counsel had nothing more than a hunch the informants threatened Ramirez to get him to talk. On the other hand, Ramirez testified the informants had not used threats or intimidation. In fact, he wanted to talk to them so they would help him get Orozco. So the informants' testimony had little if any relevance.
Plus, even assuming the informant's testimony had some relevance, the court's discretion includes the broad authority to control the presentation of proposed impeachment evidence '"'"to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.' [Citation.]"' [Citation.]" (People v. Mills (2010) 48 Cal.4th 158, 195.)
In this case, any questioning of the informants would have consumed an unknown amount of time, and presented the real possibility any evidence adduced would have confused the jury. There was no abuse of discretion and thus no evidentiary error.
c. Violation of Constitutional Rights
Orozco also asserts the court's evidentiary ruling violated his constitutional right to due process and a fair trial. The Attorney General argues forfeiture due to defense counsel's failure to object on constitutional grounds at trial. Orozco responds the failure to object was ineffective assistance of counsel.
We have found no error in the court's exclusion of what is at best marginally relevant impeachment evidence. The routine and proper application of state evidentiary law does not impinge on a defendant's due process rights. (People v. Hovarter (2008) 44 Cal.4th 983, 1010.) Nor does the exclusion of marginally relevant impeachment evidence "contravene a defendant's constitutional rights to confrontation and cross-examination." (People v. Brown (2003) 31 Cal.4th 518, 545.)
As stated in Delaware v. Fensterer (1985) 474 U.S. 15, 20, "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish."
Our resolution of the evidentiary issue dispenses with Orozco's ineffective assistance of counsel claim too. Defense counsel is not required to make futile objections. (People v. Anderson (2001) 25 Cal.4th 543, 587.)
4. Parole Revocation Fine
The court imposed a sentence of life without the possibility of parole for murder (count 1), an indeterminate term of 25 years to life for the gun enhancement (Pen. Code, § 12022.53, subd. (d); all further statutory references are to the Penal Code), and a determinate term of two years for active participation in a criminal street gang (§ 186.22, subd. (a); count 2). The court also imposed a $500 restitution fine (§ 1202.4, subd. (b)) and a $500 parole revocation fine (§ 1202.45), which becomes effective if Orozco receives parole and his parole is revoked.
Section 1202.45 imposes a mandatory duty on the trial court to impose a parole revocation fine equal to the restitution fine whenever the "'sentence includes a period of parole.'" (People v. Smith (2001) 24 Cal.4th 849, 853.)
Section 1202.45, subdivision (a) provides: "In every case where a person is convicted of a crime and his or her sentence includes a period of parole, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4." --------
Orozco argues the court lacked discretion to impose a parole revocation fine because under the court's sentence he will never be eligible for parole. He cites and relies on People v. Oganesyan (1990) 70 Cal.App.4th 1178, 1183-1185 (Oganesyan), but his reliance is misplaced.
In Oganesyan, the appellate court found a parole revocation fine inapplicable where the only sentence imposed was LWOP. (Oganesyan, supra, 70 Cal.App.4th at p. 1183.) The court reasoned the defendant's "overall sentence" did not "presently" allow for parole, and there was no evidence it ever would. (Id. at p. 1185.) Under those circumstances, the court believed the Legislature could not have intended the statue to apply "under such unlikely circumstances." (Ibid., fn. 3.)
But Oganesyan is inapplicable when the defendant receives a sentence of death or LWOP, in addition to other determinate prison terms imposed under sections 1170, subdivision (h), or 1168. (People v. Brasure (2008) 42 Cal.4th 1037, 1075 (Brasure); § 3000, subd. (a)(1) ["sentence resulting in imprisonment in the state prison pursuant to Section 1168 or 1170 shall include a period of parole supervision or postrelease community supervision, unless waived, or as otherwise provided in this article"].)
In this case, the court imposed an LWOP sentence in addition to terms imposed under sections 1170 and 1168. Orozco's determinate sentences carried with them the possibility of a period of parole. Thus, the court was required to impose the section 1202.45 parole revocation restitution fine. (Brasure, supra, 42 Cal.4th at p. 1075 [the defendant "is in no way prejudiced" by assessment of a fine that will become payable only if the defendant actually begins serving a period of parole and his parole is revoked].)
DISPOSITION
The judgment is affirmed.
THOMPSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.