P. v. Ortiz CA2/5 ( 2013 )

Filed 8/9/13 P. v. Ortiz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B245601
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA096879)
v.
RAFAEL ORTIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce
Marrs, Judge. Affirmed.
Tomas Requejo for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, appellant was convicted of possession of cocaine. (Health
& Saf. Code, § 11350, subd. (a).) Appellant contends the trial court failed to excuse a
juror for cause and there was insufficient evidence to support the judgment. His
contentions are meritless.
I. FACTS
A. Prosecution
Appellant was a captain with the Los Angeles Fire Department and a reserve
deputy with the Los Angeles Sheriff‟s Department. On December 30, 2011, a baggie of
cocaine fell from the area of his waistband and landed on the ground as he walked
through the sheriff‟s department. The baggie was eventually found by a sheriff‟s deputy.
Surveillance video showed the floor clear of debris prior to appellant‟s entry into the
area.
After a sheriff‟s deputy spoke to appellant about the issue, appellant contacted
Andrew Grzywa—the battalion fire chief in charge of his unit. Appellant told Grzywa
that the sheriff‟s department had taken his credentials because a controlled substance may
have fallen from his pocket at the sheriff‟s station. Appellant said the baggie containing
the substance could have been something he collected when participating in an arrest.
However, three days later he called Grzywa and changed his story. Grzywa described
appellant‟s second explanation as follows: “[A] few months prior . . . he got into . . . his
own personal vehicle, and discovered a small baggie of what he believed to be cocaine.
At that point in time, he explained . . . that . . . one of his sons had been driving the
vehicle, along with one of his friends, and it was after his son had been driving the
vehicle that he discovered the cocaine.”
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B. Defense
Appellant had the authority to arrest people while he was on duty. His supervisor
at the sheriff‟s department as well as three additional witnesses, i.e., a reserve deputy, a
battalion chief, and a firefighter, attested to appellant‟s positive character traits such as
dependability, honesty and trustworthiness.
II. DISCUSSION
A. Juror No. 3
After the jury was empanelled but prior to opening statements, Juror No. 3
telephoned the clerk. The juror stated to the clerk that he did not live “full time” in
Pomona (Los Angeles County) and that he lived part of the time in Chino (Riverside
County). The trial court‟s notes, as well as the notes of both attorneys, reflected
Juror No. 3 indicated during voir dire that his “area of residence” was Pomona.
Defense counsel stated: “I‟m not waiving any defect in him sitting as a juror.
Maybe the court might want to inquire of him just to make the record clean. Up to this
point, the record has been clean, absent his representation to the clerk this morning. I‟m
kind of confused as to what he‟s trying to tell us.” The trial court appeared to interpret
these comments as a motion to excuse the juror for cause. The court stated: “He told us
he was a resident of Pomona [and] he was certainly summoned through that Pomona
residence to be here, and he appeared. [¶] So I‟m going to deny the motion to discharge
him at this point. However, why don‟t you put a little note on your trial record, [defense
counsel], and when we get down to the end, before they come back with a verdict, maybe
even before they go out, I will let you renew your motion. [¶] . . . [¶] That way you can
do a little more research . . . .”
Appellant claims the trial court had a sua sponte obligation to conduct an
additional inquiry with the juror because, in appellant‟s view, the court was given notice
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that there may be good cause to discharge him. He maintains the trial court‟s failure to
pursue the matter further warrants reversal of the judgment. Appellant is incorrect.
“The decision whether to investigate the possibility of juror bias, incompetence, or
misconduct—like the ultimate decision to retain or discharge a juror—rests within the
sound discretion of the trial court. [Citation.] The court does not abuse its discretion
simply because it fails to investigate any and all new information obtained about a juror
during trial. [¶] [A] hearing is required only where the court possesses information
which, if proven to be true, would constitute „good cause‟ to doubt a juror's ability to
perform his duties and would justify his removal from the case. [Citations.]” (People v.
Ray (1996) 13 Cal.4th 313, 343.)
It is true that the people who “reside” outside the trial court‟s jurisdiction are not
qualified to sit as jurors. (Code Civ. Proc, § 203(a)(4).) In the context of the election
laws we have observed: “„[T]he residence of a person is that place in which the person‟s
habitation is fixed for some period of time, but wherein he or she does not have the
intention of remaining.‟ [Citation.] Thus, „[a]t a given time, a person may have more
than one residence.‟ [Citation.]” (People v. Superior Court (Wright) (2011) 197
Cal.App.4th 511, 515, original italics (Wright).) Appellant has not argued that the
reference to the juror‟s residence in the Code of Civil Procedure has a different meaning
than the ordinary commonsense definition recognized in Wright. Indeed, there is no
reasonable basis to define “residence” differently in this case.
The court did not have information which, if proven to be true, would constitute
good cause to excuse Juror No. 3. Because Juror No. 3 indicated during voir dire that he
resided within the jurisdiction of the trial court, it was inconsequential that he possibly
had an additional residence outside the jurisdiction of the court. The existence of an
additional residence in a city outside of Los Angeles County did not render him
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unqualified to serve. Thus, the absence of further inquiry into the juror‟s alternate
residence did not amount to an abuse of discretion. 1
B. Sufficiency of the Evidence
“The elements of [possession of cocaine] are: actual or constructive possession
with knowledge of the presence of the drug and its narcotic character. [Citations.] The
elements may be established by circumstantial evidence and any reasonable inference
drawn from such evidence. [Citations.]” (People v. West (1990) 224 Cal.App.3d 1337,
1347-1348; see Health & Saf. Code, § 11350, subd. (a).)
“In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we „examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—evidence that is
reasonable, credible and of solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.‟ [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence . . . . [Citation.] „[I]f the circumstances
reasonably justify the jury‟s findings, the judgment may not be reversed simply because
the circumstances might also reasonably be reconciled with a contrary finding.‟
[Citation.] We do not reweigh evidence or reevaluate a witness‟s credibility. [Citation.]”
(People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on a different point in People
v. Rundle (2008) 43 Cal.4th 76, 151.)
Appellant argues there was insufficient evidence he possessed the cocaine because
“no one could say unequivocally where the baggie originated from.” He also maintains
there was “no evidence” he knew the substance was present. Appellant‟s argument is
unpersuasive.
1 Appellant does not argue the trial court erroneously denied his motion to discharge the
juror. Thus, we decline to address respondent‟s argument that this claim is forfeited.
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Appellant admitted to his superior that he possessed what he believed to be
cocaine. Initially he said it may have been the result of an arrest; then he claimed it was
recovered from his son‟s vehicle. Both of his explanations constitute strong evidence he
possessed cocaine and that he knew of its presence on his person. Testimony indicated
the video showed the baggie falling from near appellant‟s waistband to a debris-free
floor. Based on appellant‟s statements and the testimony of the deputies, a reasonable
trier of fact could have concluded the prosecution established the elements of possession
and presence.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR, J. 
We concur:
MOSK, Acting P.J.
KRIEGLER, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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