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.
Orozco was
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.
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