People v. Orellana, B292481

CourtCalifornia Court of Appeals
PartiesTHE PEOPLE, Plaintiff and Respondent, v. ELMER ORELLANA, Defendant and Appellant.
Docket NumberB292481
Decision Date10 December 2019

THE PEOPLE, Plaintiff and Respondent,
v.
ELMER ORELLANA, Defendant and Appellant.

B292481

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE

December 10, 2019


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Los Angeles County Super. Ct. No. NA102911

APPEAL from a judgment of the Superior Court of Los Angeles County, James D. Otto, Judge. Affirmed.

The Law Offices of Michelle T. LiVecchi-Raufi and Michelle T. LiVecchi-Raufi, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

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A jury convicted defendant and appellant Elmer Orellana of the voluntary manslaughter of Jesus Pimentel. The jury found true an allegation that Orellana used a knife in the killing. On appeal, Orellana contends the trial court violated his confrontation clause rights by admitting the testimony of a deputy coroner who had not personally conducted Pimentel's autopsy. Orellana also argues the court erred in instructing the jury on false statements and flight, and that those form instructions misstate the law. Finally, Orellana asserts he was entitled to a hearing on his ability to pay a court fine and fees. We find no error and affirm Orellana's conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

1. Pimentel is stabbed to death

Around 7:45 p.m. on the evening of October 25, 2015, Ery Reyes was walking down Maine Avenue in Long Beach. A man—later identified as Jesus Pimentel—came out of a nearby alley, holding the left side of his chest with both hands. Reyes saw blood. Pimentel told Reyes someone had stabbed him. Pimentel asked Reyes for help. Pimentel fell to the ground.

Reyes called 9-1-1. Pimentel "started to lose his breathing, and his eyes went backwards." Reyes began to press on Pimentel's chest. As instructed by the 9-1-1 operator, Reyes got a towel and put it on Pimentel's wound.

Long Beach Police Officer Kalid Abuhabwan and his partner Sergeant Robert Ryan arrived at the scene around 7:49 p.m. Abuhabwan and Ryan saw Pimentel, unconscious, lying on his back with a stab wound on the left side of his chest. Abuhabwan saw a large pool of blood. Abuhabwan relieved Reyes of his life-saving efforts and continued to apply pressure to Pimentel's wound until paramedics arrived and took him to the hospital. Officer Ernesto Perez searched the area and found an eight and a half-inch butcher knife.

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In the meantime, around 8:22 p.m. that night, Officers Juan Ortiz and Robert Torres went to the area of Anaheim Street and Cedar Avenue in Long Beach in response to a "person with a knife" call. Ortiz started walking toward a taco restaurant. Orellana came out of the restaurant and walked toward the officers. In response to Ortiz's question, Orellana said he had a knife in his satchel. The officers arrested Orellana.1

Pimentel died. An autopsy revealed he had suffered "copious bleeding" after a knife or sharp instrument "incised" his heart and left lung.

2. Orellana tells detectives his version of what happened

About two weeks after the homicide, detectives interviewed Orellana in an interrogation room at the jail. Detective Oscar Valenzuela—who speaks Spanish—interpreted for his fellow detectives and Orellana. Orellana told the detectives that, on the afternoon of the day in question, he saw "a whole bunch of guys" sitting in the park, "throwing gang signs." Orellana had found two knives in a trash bin.

At some point Orellana went to a nearby laundromat. When he returned to the park, it was starting to get dark. The same group was still there. They started saying they were Sureños, from Barrio Pobre and 18th Street. A man Orellana

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knew as "Snide" arrived with another man. Orellana referred to Snide as "the person . . . that allegedly . . . passed away" and "the one who died," meaning Pimentel.

Orellana had found a cell phone and he showed it to Pimentel. Pimentel asked Orellana if he was selling the phone and Orellana said yes. Pimentel offered to pay Orellana in methamphetamine but Orellana said he wanted cash. Pimentel agreed to give Orellana $40 for the phone.

Pimentel had Orellana follow him to a nearby table. Another man there, whom Pimentel called his "homeboy," told Orellana "to get lost from the park." If he didn't, the man said, "they were gonna kill me." Pimentel—who by that time had the phone—told Orellana "to consider it a loss." Pimentel's gang member friends "started kicking [Orellana] out" of the park, saying if they saw him again they'd kill him. "[T]hey kept acting . . . as if they had a weapon" and "insulting" Orellana. Orellana admitted, however, that he never saw Pimentel with a weapon.

Pimentel asked Orellana if he wanted a beer. Pimentel went to buy the beer and Orellana waited in an alley for him to return. Eventually Pimentel said to Orellana, "Let's go." Orellana followed Pimentel to an area behind some apartments. Pimentel told Orellana if he didn't leave, his "homies were gonna come kill me." Pimentel was "acting as if he had a . . . weapon" and "sort of wanting to come at" Orellana. Orellana reached into his bag and "grabbed the knife." When Orellana "saw that [Pimentel] was gonna . . . knock [him] out from a single blow," Orellana stabbed Pimentel. Orellana told the detectives, "I reacted first and stabbed him." Then Orellana "took off running."

3. Orellana's conviction and sentence

The jury convicted Orellana of voluntary manslaughter as a lesser crime to murder. The jury found true the allegation that, in the commission of the crime, Orellana personally used a deadly

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and dangerous weapon. The trial court sentenced Orellana to 12 years in the state prison: the upper term of 11 years for the offense and one additional year for the weapon use. The court imposed a restitution fine of $300, a court operations assessment of $40, and a criminal conviction assessment of $30.2 The court stayed a parole revocation restitution fine of $300. Orellana's counsel did not object to the fine or any of the fees.

DISCUSSION

1. The trial court did not violate Orellana's confrontation clause rights

Orellana contends the trial court—in admitting the testimony of a deputy coroner who did not perform Pimentel's autopsy—improperly admitted testimonial, case-specific hearsay. We disagree.

a. The testimony of deputy medical examiner Dr. Pedro Ortiz

On the first day of trial, the prosecutor told the court he had learned only several days earlier that the coroner who performed the autopsy on Pimentel's body, Dr. Poukens, was "absen[t]." So, the prosecutor said, he planned to call a substitute coroner. Defense counsel filed a motion "to exclude testimony related to the autopsy report from any medical examiner or pathologist who was not present at the autopsy."3 The trial court denied the motion, stating, "Under California law, that has been held to be nontestimonial."

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Dr. Pedro Ortiz testified he had been a deputy medical examiner at the Los Angeles County coroner's office for 28 years. Ortiz had performed about 7,000 autopsies. Ortiz had read the file for Pimentel's autopsy. It included an anatomic summary and 40 photographs of the autopsy.

Ortiz defined stab wounds and "sharp instrument injuries" for the jury. He also defined defensive wounds, and testified he did not see any in the photographs of Pimentel's body. As the prosecutor displayed for the jury a photograph of the body, Ortiz pointed out the "sharp force injury" as well as the suture wound and other marks of "the therapeutic interventions" by medical personnel. Testifying about a close-up photograph of Pimentel's chest, Ortiz estimated the stab wound was about one inch long and a quarter inch wide. Ortiz stated that—based on his review of the file, reports, and photographs—in his opinion Pimentel died "as a result of being stabbed in the chest," adding, "He experienced copious bleeding after the heart and left lung were incised by the knife or the instrument." Ortiz testified he "looked to [Dr. Poukens's] conclusion" then "made [his] own conclusion."

On cross-examination Ortiz testified Pimentel had amphetamine (the metabolite of methamphetamine) as well as "the active component" of marijuana in his system. The court sustained the prosecutor's relevance objection to defense counsel's question about "the [e]ffects that amphetamine and methamphetamine have on the body."

b. The controlling authorities

The Sixth Amendment to the federal Constitution gives a criminal defendant the right to confront and cross-examine adverse witnesses. (People v. Lopez (2012) 55 Cal.4th 569, 576.) In the seminal case of Crawford v. Washington (2004) 541 U.S. 36, the high court held the Sixth Amendment "bars the admission at trial of a testimonial out-of-court statement against a criminal

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defendant unless the maker of the statement is unavailable to testify at trial and the defendant had a prior opportunity for cross-examination." (Lopez, at pp. 576, 580-581.) Crawford declined to provide a comprehensive definition of "testimonial," and the high court has not articulated one on which a majority of the justices agree. (People v. Sanchez (2016) 63 Cal.4th 665, 687 (Sanchez); People v. Leon (2015) 61 Cal.4th 569, 602-603 (Leon).) But it is clear a testimonial statement has two " 'critical components' ": it must be made with some degree of formality or solemnity, and its primary purpose must pertain in some way to a criminal prosecution. (People v. Edwards (2013) 57 Cal.4th 658, 705; Leon, at...

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