Filed 12/18/13 P. v. Solis CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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.
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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.
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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.
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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
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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)
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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.
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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.
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