People v. Ortega

• Decision Date: 18 May 1984
• Docket Number: Cr. 5986
• Citation: 156 Cal.App.3d 63,202 Cal.Rptr. 657
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Adelita ORTEGA et al., Defendants and Appellants. (F000827).

Page 657

202 Cal.Rptr. 657

156 Cal.App.3d 63

The PEOPLE, Plaintiff and Respondent, v. Adelita ORTEGA et al., Defendants and Appellants.

Cr. 5986 (F000827).

Court of Appeal, Fifth District, California.

May 18, 1984.

Certified for Partial Publication. ¹

Hearing Denied Aug. 9, 1984.

[156 Cal.App.3d 65] Quin Denvir, State Public Defender, Sacramento, under appointment by the Court of Appeal, Anna Jovanovich and Roy Dahlberg, Deputy State Public Defenders, Sacramento, and James F. Johnson and Bruce S. Wiener, San Francisco, under appointments by the Court of Appeal, for defendants and appellants.

John K. Van de Kamp, Atty. Gen., Charles P. Just and Shirley A. Nelson, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

OPINION

ZENOVICH, Acting Presiding Justice.

In this case, appellants Amado Ochoa, Armando Ochoa and Adelita Ortega were convicted by a jury of robbery (count I, Pen.Code, § 211) and four counts of assault with a deadly weapon (counts II, IV, V and VI, Pen.Code, § 245, subd. (a)). The jury further found that appellants Amado Ochoa and Armando Ochoa personally used a firearm in the commission of all five offenses (Pen.Code, § 12022.5) and that they were armed with a firearm in the commission of the robbery in count I (Pen.Code, § 12022, subd. (a)). The jury also found that appellant Adelita Ortega was armed with a firearm in the commission of the robbery in count I (Pen.Code, § 12022, subd. (a)). The jury also returned its verdict as to appellant Armando Ochoa's two prior felony convictions, finding them to be true. In addition, the jury returned its verdict as to one prior felony conviction of appellant Amado Ochoa, finding it also to be true. For reasons hereinafter stated, we affirm the convictions.

PROSECUTION CASE

On June 11, 1981, at about midnight, Amado Ochoa (Amado) and a man named Larry entered the Torres Brothers Bar and ordered a beer. A few minutes later, Armando Ochoa (Armando) and Adelita Ortega (Adelita) entered. Armando was armed with a sawed-off rifle or shotgun and he ordered everyone to lie down on the floor. Virginia Hernandez was tending bar that night and had charge of the cash registers. When she heard the command, she immediately obeyed. While on the floor, she saw feet moving and heard the noise of the registers being opened, which had previously been closed. When the incident was over, she got up, saw the registers were open and empty and that her purse, which she usually kept close by, was missing. She did not see her purse again until a few days later at the Mendota police station. During this time, Hernandez also heard two shots fired.

Eloisa Martinez saw a man near the front door of the bar with a rifle or shotgun. She also saw another man with a weapon, but did not get a good look at either of them. One of them said that this was a holdup and everyone was to get down on the floor, so Eloisa hit the floor immediately because she was standing right by him. She heard two or three shots after she fell to the floor. As the men were leaving, she heard one of them state, "If you know Clemente, tell him we're not finished with him yet!"

Guadalupe Martinez was an employee of the Torres bar but was there the night of June 11, 1981, as a customer. She observed Amado and a man with light hair walk to the bar and order two beers. A few minutes later, Armando entered the bar carrying a pillow case and a "sawed- down rifle." Armando took out a shotgun and ordered everyone to the floor. Before she got down, Guadalupe saw a fight ensue involving Armando and another customer and also heard Amado yell for the 38-caliber gun for assistance. She heard three shots fired.

Isidoro Jimenez was a customer at the Torres bar on June 11, 1981, and was admittedly somewhat drunk. When he heard the command, Jiminez refused to obey. A man holding a small gun insisted that Jimenez lie down on the floor and Jiminez responded by punching him. They fought for several minutes, during which time the gun went off and the other individual called for assistance from his companions. Finally, the man with the gun asked Jiminez to please lie down and Jimenez then complied, having been asked politely. His opponent then stood Jimenez up, shook his hand and congratulated him in the Spanish equivalent for having a lot of guts. Jimenez was unclear as to whether any demand for money was ever made of him.

Ramon Aguirre was also a customer at the Torres bar on the night of June 11, 1981. He had gone to the bathroom and, when he came out, Amado told him to raise his hands but Ramon did not obey and continued walking. He then observed Armando, armed with a 12-gauge shotgun, near the entrance to the bar. Ramon also saw a third armed man in the bar--this man armed with a 38-caliber gun--but Ramon was unable to identify him. Ramon had a pool cue in his hand and Armando ordered him to drop it and to drop to the floor himself. Someone also ordered him to surrender his wallet. Ramon, refusing to comply with any of these orders (except to drop the pool cue), simply walked out the door and left the bar.

After leaving the bar, Ramon saw a patrol car passing, flagged down Officer Juan Amador and told him that some "friends" were "scaring the women" at the Torres bar.

DEFENSE CASE

Appellants Armando and Amado did not testify in their own defense. However, Adelita did testify that, in the early morning hours of June 11, 1981, she transported five undocumented workers from Mexico to Mendota, where she was to deliver them to a man named Clemente. When Adelita turned the men over to Clemente in Mendota, he refused to pay her for the job. Instead, he placed a gun at Adelita's head, started feeling her body and threatened to rape and kill her if she did not leave. Clemente also took some money from Adelita's purse.

Upset by the experience, Adelita phoned and then drove to the nearest friends she had, the Ochoa family in Los Angeles. On her way, she received a traffic citation. When she arrived, Amado and Armando were there and also a friend, Oscar Gudino. Later, another friend, Larry, also came to the Ochoa house. Then she and her four friends returned to Mendota to look for Clemente.

When they did not find Clemente at his home, they went looking for him at the Torres bar. Larry and Amado entered the bar first. Then Adelita and Armando entered. While they were all in the bar, a fight broke out between Amado and one of the customers in the bar and appellants heard noises like gun shots. Then she and three men ran out of the bar, jumped into a red car and attempted unsuccessfully to elude the police.

DISCUSSION

I ²

II

Appellants contend that the trial court erred in denying their motion for mistrial based on the prosecution's systematic exclusion of Hispanic jurors.

Whether the objection in this case, made in the form of a motion for mistrial after the jury was sworn, was timely appears to be an issue of first impression. Under People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748, we believe the proper time for a jury selection motion is clearly during the selection process itself--in the form of a motion for a new jury panel--so that any prejudice can be eliminated early in the proceedings and the selection process may start anew.

During the voir dire of members of the jury panel when called to the jury box, the prosecution excluded potential jurors Ester Perez, Diane Sauceda, Glenda Contreras, Aurora Macias and Paula Zapaia. When the jury selection process concluded and after the jury was sworn, the attorney for codefendant Oscar Gudino immediately moved for a mistrial on the basis that persons of Hispanic background were systematically excluded from the jury. All appellants joined in this motion. The court denied the motion on two grounds: (1) The prosecution rebutted the prima facie showing of systematic exclusion, and (2) the motion for mistrial, having been made after the jury had been sworn, was untimely.

Article 1, section 16 of the California Constitution provides in pertinent part that "Trial by jury is an inviolate right and shall be secured to all...." Implicit in this guarantee is the right to a trial by an impartial jury. (People v. Wheeler, supra, 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748.) An essential prerequisite of an impartial jury is that it be drawn from "a representative cross-section of the community ...." (Ibid.; Taylor v. Louisiana (1975) 419 U.S. 522, 530, 95 S.Ct. 692, 697, 42 L.Ed.2d 690.)

" 'This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; ... But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups.' " (People v. Wheeler, supra, 22 Cal.3d at p. 268, 148 Cal.Rptr. 890, 583 P.2d 748, quoting Thiel v. Southern Pacific Company (1946) 328 U.S. 217, 220, 66 S.Ct. 984, 985, 90 L.Ed. 1181.)

A party is granted peremptory challenges to remove individual jurors from the jury panel whom the party believes have some "specific bias" or partiality which does not rise to the level required for a challenge for cause. The exercise of peremptory challenges on the grounds of "specific bias" may be "predicated on a broad spectrum of evidence suggestive of juror partiality." (People v. Wheeler, supra, 22 Cal.3d at p. 275, 148 Cal.Rptr. 890, 583 P.2d 748.) However, the peremptory challenges must be exercised in a manner that is "essentially neutral with respect to the various groups represented on the venire: ..." (Id., at p. 276, 148 Cal.Rptr. 890, 583 P.2d 748.) The use of peremptory challenges to remove prospective jurors solely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds violates the right to trial by a jury drawn from a representative cross-section of the community guaranteed by ...