This post examines an opinion the California Court of Appeals –First District issued in People v. Orozco, 2015 WL 916230 (2015). The court begins by explaining that Joseph Orozco “appeals his convictions for one count of continuous sexual abuse of a child in violation of Penal Code section 288.5, subdivision (a) and two counts of lewd acts on a child in violation of Penal Code section 288, subdivision (a). ” People v. Orozco, supra.
The court went on to explain that
[o]n April 3, 2012, the state filed a first amended information (Super. Ct. Humboldt County, 2012, No. CR1200518) charging defendant with one count of continuous sexual abuse of a child in violation of Penal Code section 288.5, subdivision (a), based on his conduct with Jane Doe 2 (count 2) and one count of lewd acts on a child in violation of Penal Code section 288, subdivision (a) for his conduct with Jane Doe 1 (count 1). A second information filed on April 10, 2012 (Superior Court of Humboldt County, 2012, No. CR1201243) charged defendant with another count of lewd acts on a child in violation of Penal Code section 288, subdivision (a) for his conduct with Jane Doe 3 (count 3).
People v. Orozco, supra.
tried on all three counts before a jury. The jury deliberated for approximately 12 hours over the course of three and half days and returned a verdict of guilty on all counts on April 8, 2013.
[He] was sentenced to a term of six years on the continuous sexual abuse count and to consecutive terms of two years each on the two lewd act counts, for a total sentence of 10 years.
People v. Orozco, supra.
The court then outlined the facts in the case, as proven by the prosecution at trial:
Defendant worked at Hoopa Valley Elementary School (Hoopa Elementary) as an instructor in the after-school program. He was charged with several instances of child abuse for his contact with Jane Doe 1, Jane Doe 2, and Jane Doe 3.
A. Jane Doe 1
Jane Doe 1, who was 10 years old at the time of trial, testified she knew defendant from the after-school program at Hoopa Elementary. She related she would sit on defendant's lap when she wanted to use the computer. Defendant would touch her legs and he licked her feet. He touched her below the waist in `the privacy.’ She testified that he rubbed her private areas more than once. She said she would ask him to stop or `pull him off.’ He would also touch and slap her bottom. She testified she told the police interviewer defendant had touched her friends in `the wrong way.’ She saw him touch Jane Doe 3 and another girl. She testified she called defendant a pervert and told Jane Doe 2 he was a pervert. Jane Doe 1's mother testified that her daughter told her defendant `touched me in my private parts, Mommy.’
The district attorney investigator testified he found a picture collage containing a picture of Jane Doe 1 in defendant's room. Jane Doe 1 stated she never gave defendant a picture of herself.
B. Jane Doe 2
Jane Doe 2 was 11 years old when she testified at trial. She described a time when defendant took her to the teachers' lounge. It was just the two of them, and defendant asked her to give him a hug. She then described: `He stuck his fingers straight down my shirt’ to her chest. She pulled his hands out and `blocked’ off her chest. Defendant then told her: `Don't be shy.’ She said that she walked out of the room and felt scared. She called her mother and went home.
Jane Doe 2's mother testified that on the day of the incident, she received a call from her daughter asking to come home from the after-school program. Her daughter told her that she never wanted to go back to the program. She told her mother about the incident and her mother reported the incident to the school.
Nena Hames, defendant's supervisor at the after-school program, testified that defendant would have Jane Doe 2, whom they called `Tiny,’ come sit on his lap during homework time and he gave her massages.
C. Jane Doe 3
Jane Doe 3, who was 10 years old at the time of trial, testified she sat on defendant's lap and played games on his computer. She stated the defendant touched her more than once on her butt, crotch, and thighs. She recounted defendant would move his hands on her crotch area. She acknowledged she told Jane Doe 1 defendant touched her inappropriately and Jane Doe 1 told her to `keep your mouth shut.’ . . .
People v. Orozco, supra. Other school employees testified that they had seen Orozco engaged in problematic touching and other conduct with female students. People v. Orozco, supra. And an investigator for the District Attorney’s office testified that he found child pornography on Orozco’s computer. People v. Orozco, supra. Orozco took the stand and denied engaging in inappropriate conduct with Jane Does 1 and 2 (among other things). People v. Orozco, supra.
Orozco also testified about “his computer equipment”, explaining that
he had nine operational hard drives. He maintained he never purposefully downloaded child pornography onto his hard drives. He conceded he contacted a fan site for tennis player Maria Sharapova for some video of a tennis championship via a file sharing service but, when he downloaded the video, he also inadvertently copied certain child pornography. When he discovered the images of child pornography, he tried deleting the photos. He stated they would not, however, `stay erased.’ He believed his computer had a virus and continued to try to erase the child pornography. He then `wiped’ the hard drive but the child pornography reappeared.
On cross-examination, [Orozco] denied creating any of the folders on his computer that contained child pornography. He challenged the claim one of the images named `Tiny’ had any connection to Jane Doe 2. On cross-examination, [Orozco] attempted to explain why the images of child pornography were detailed on more than one hard drive.
[Orozco] stated he `wiped’ the hard drive to remove the images. After deleting the content of the hard drive, he then had to reinstall the operating system. The prosecutor asked: `So you wiped this hard drive, then you reinstall the software, and these digital images reappear on your computer, Mr. Orozco?’ [Orozco] responded: `Yes.’
[Orozco] explained that he researched viruses and came across a process called remote access transmission (RAT). The prosecutor asked: `So your research indicated that these digital images may have reappeared on this wiped hard drive because of this RAT acronym?’ Defendant responded: `That came closest to any explanation . . . I could find.’ [Orozco], however, admitted the data showed that the images were viewed multiple times.
The prosecutor asked [Orozco] about his research regarding RAT. [He] responded: `[W]hat I understand . . . is that . . . a remote computer user, which we'll call the hacker, can gain access to another user's computer.’ The prosecutor then asked [Orozco] if he understood that RAT requires software on the computer to allow for remote access and [he] said yes. The prosecutor then asked: `And why is it that this RAT, Remote Access Transmission software [,] was not found on that hard drive, Mr. Orozco, if the reason why these pictures mysteriously appeared on your hard drive was because you must have had this RAT?’ [Orozco] responded: `I—I can't explain that.’ On recross-examination, the prosecutor again asked why no software that would enable transmission was found on the hard drive and [Orozco] responded he did not know what was on the hard drive.
On redirect examination, defense counsel asked what part of a computer is attacked by RAT. [Orozco] explained that RAT required `some sort of software to have been installed,’ and he may have inadvertently installed the software while downloading what he believed to be video segments.
People v. Orozco, supra.
Orozco made several arguments on appeal, as to why his conviction should be overturned, but this post only examines one of them. People v. Orozco, supra. He claimed the prosecutor committed misconduct in his closing argument “by commenting on facts not in evidence during closing argument.” People v. Orozco, supra. The Court of Appeals began its analysis of Orozco’s argument by explaining that
[i]n closing argument, the prosecutor discussed the child pornography found on [Orozco’s] computer. He stated that [Orozco] presented his theory that the images were transferred to his computer by RAT, `[b]ut there's no software on that hard drive that indicates such a RAT was ever installed, which is what it would require, by Mr. Orozco's own admission, for this RAT to work. Somehow, that software would have to be on that hard drive that Mr. Orozco wiped and then reinstalled completely with the software from the system—from the software manufacturers.’
He went on to argue the defendant was asking the jury to believe someone repeatedly, over a prolonged period of time, accessed his computer and downloaded images of child pornography. Defense counsel did not object.
In his closing argument, defense counsel addressed the prosecutor's statements about RAT on the hard drive: `And [the prosecutor] said, “Well, why wasn't that found on the hard drive?” And Mr. Orozco was—I believe stated that this is something you could find in the modem. It doesn't have to be the hard drive. And what he did, Mr. Orozco, is got rid of the computer that actually had that modem after trying to erase the pornography.’
People v. Orozco, supra. Orozco’s lawyer did not object to the prosecutor’s comments, so Orozco argued that his lawyer’s failure to object constituted ineffective assistance of counsel. People v. Orozco, supra. As Wikipedia explains,
[i]neffective assistance of counsel is a claim raised by a convicted criminal defendant that their attorney's performance was so ineffective that it deprived them of the constitutional right guaranteed by the Assistance of Counsel Clause of the Sixth Amendment to the United States Constitution. Having the benefit of counsel or assistance of counsel means that the criminal defendant has had a competent attorney representing them.
Competence is defined as reasonable professional assistance and is defined in part by prevailing professional norms and standards. In order to prevail on a claim that he received ineffective assistance, a criminal defendant must show two things:
1. Deficient performance by counsel.
2. Resulting prejudice, in that but for the deficient performance, the result of the proceeding would have differed.
The Court of Appeals began its analysis of Orozco’s ineffective assistance of counsel argument by explaining that a lawyer
may not state or assume facts in argument that are not in evidence. (People v. Cash (California Court of Appeals for the 4th District 2002) 28 Cal.4th 703. . . . `[W]e accord counsel great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence.’ (People v. Cash, supra). A prosecutor's “`argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom.’” (People v. Edwards (California Court of Appeals for the 4th District 2013) 57 Cal.4th 658, quoting People v. Harrison (California Court of Appeals for the 4th District 2005) 35 Cal.4th 208.) . . .
In People v. Valencia, the prosecutor stated in closing argument that defendant had failed to demonstrate he was under the influence of methamphetamine when he committed the murder. (People v. Valencia, (California Court of Appeals for the 4th District 2008) 43 Cal.4th 268) Defendant argued this misstated the evidence because at the time of his arrest, his blood tested positive for methamphetamine. There was, however, no evidence defendant was under the influence at the time of the killing, supporting the prosecutor's theory of the case. People v. Valencia, supra. Whether defendant had supported his theory that he was under the influence of drugs was open to debate. `The prosecutor was entitled to argue defendant had not shown these facts; defense counsel was entitled to argue the opposite. The comments came within the wide range of permissible discussion of the evidence.’ People v. Valencia, supra. . . .
People v. Orozco, supra.
The Court of Appeals then applied these principles to this case, explaining that in
closing argument, the prosecutor stated that [Orozco’s] theory was the child pornography was transferred to his computer by RAT, but there was no software on the hard drive indicating RAT. The prosecutor's argument was based on the fact [Orozco] had presented no evidence of RAT software on his computer and could offer no credible explanation how the pornography got there.
It was [Orozco] who raised the issue of RAT in his testimony. He explained that he researched viruses and came across a process called RAT. The prosecutor asked: `So your research indicated that these digital images may have reappeared on this wiped hard drive because of this RAT acronym?’ [Orozco] responded: `That came closest to any explanation . . . I could find.’ The prosecutor asked [Orozco] about his research about RAT. [Orozco] responded: `[W]hat I understand about RAT is that—that a remote computer user, which we'll call the hacker, can gain access to another user's computer.’
The prosecutor then asked [Orozco] if he understood that RAT requires software on the computer to allow for remote access and [he] said yes. The prosecutor asked: `And why is it that this RAT, Remote Access Transmission[,] software was not found on that hard drive, Mr. Orozco, if the reason why these pictures mysteriously appeared on your hard drive was because you must have had this RAT?’ [Orozco] responded: `I—I can't explain that.’ The prosecutor again asked why no software that would enable transmission was found on the hard drive and [Orozco] responded that he did not know what was on the hard drive.
People v. Orozco, supra.
The Court of Appeals explained that Orozco
argues that the prosecutor's statement that there was no RAT software on the computer was not based on the evidence. [Orozco] contends neither the government's expert nor [he] testified to this fact. The prosecutor was merely relying on his own questions during cross-examination. The prosecutor stated in closing argument there was no RAT software installed on the hard drives.
It is true [that District Attorney investigator and computer forensic examiner] Richard Grimm did not testify directly to this fact, but the district attorney's argument is a reasonable inference from his testimony. It was also an appropriate conclusion to be drawn from [Orozco’s] testimony. [He] testified that he wiped the hard drive and reinstalled the operating system, which would have eliminated all the software, including the RAT. [Orozco] raised the theory of the RAT in his defense and the prosecutor could properly comment there was no evidence before the jury of RAT software on the hard drives.
We conclude the prosecutor's statement was a reasonable inference from the evidence and did not constitute misconduct.
People v. Orozco, supra. For these and other reasons, the Court of Appeals affirmed Orozco’s conviction. People v. Orozco, supra.