APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. (Super. Ct. No. F09905561)
The opinion of the court was delivered by: Gomes, Acting P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted Ulises Orozco of second degree murder (Pen. Code, § 187, subd. (a))*fn2 and found true an allegation that he used a deadly and dangerous weapon in the commission of the murder (§ 12022, subd. (b)(1)). The court imposed a prison term of 15 years to life with a consecutive one-year term for the weapons use enhancement. On appeal, Orozco contends (1) defense counsel was ineffective when he elicited testimony from Orozco that he had witnessed stabbings in the past, and (2) the trial court's order requiring him to pay a probation report fee pursuant to section 1203.1b was unauthorized. We affirm.
In the early afternoon on September 23, 2009, Valentina Valdovinos Mancilla and Serenio Flores were watering the lawn of their house in Orange Cove when they saw Jesus Horacio Martinez Tapia walk by and Tapia's girlfriend, Daisy Pantoja, drive up and stop next to him in her car. As the two talked through the car's passenger side window, Orozco drove by in a blue truck and parked "very abruptly" on the north side of the street. Tapia told Pantoja to park the car at their nearby apartment. As Pantoja drove into the apartment's driveway, Orozco got out of the truck, pulled out a bat from inside the truck's cab, placed it under his left armpit, pulled out a knife, opened it, and grabbed the bat with his right hand while holding the knife in his left hand.
Orozco ran to Tapia and the two exchanged words. Orozco swung the bat at Tapia while Tapia raised his hands to block the blows. Mancilla saw Orozco do "something" with his other hand, but she did not know what he did. Tapia then fell to the ground and Orozco ran to the truck and got inside. Tapia stood up, ran after Orozco, and grabbed the bed of the truck as Orozco sped away. Tapia turned, walked a short distance, and fell to the ground.
Pantoja testified that when she saw Orozco hitting Tapia with the bat, she quickly backed out of the driveway. As she put her car in drive, she saw Orozco standing over Tapia. Orozco looked at her and then ran toward his truck. Pantoja drove fast towards the men so she could help Tapia. While she thought about trying to hit Orozco with her car, when she saw Tapia get back on his feet she decided not to do so as she thought he was okay. Pantoja slowed the car down, stopped next to Tapia and told him to get in. Tapia opened the car door and collapsed on the street.
When Fresno County Sheriff's Department deputies arrived on the scene shortly thereafter, they found Tapia lying on the street, face up, with bruises and an open laceration on his head, a puncture wound to his left chest area, and a clean cut on the small finger of his left hand. Pantoja's car was parked near Tapia in the middle of the street and Pantoja was standing next to Tapia. Burnout marks, which are caused by tires spinning when a vehicle accelerates fast from a parked position, were on the north side of the street. Tapia died from a single, four and one-half inch deep stab wound to his chest which perforated his heart. He also suffered multiple blunt impacts to the head, abrasions to the back of the head, an abrasion to the right side of the forehead, and a laceration to the top of the head with corresponding hemorrhage. Toxicology results showed traces of marijuana and alcohol in Tapia's blood, neither of which contributed to his death.
Pantoja testified she thought there had been "bad blood" between Orozco and Tapia two to three months before this incident concerning a missing paycheck. Pantoja told police that the day before the incident, Orozco had driven by her aunt's house a couple times and looked in Tapia's direction, and this behavior had been going on over the course of a month. Pantoja believed that at some point before this incident, Tapia wanted to fight Orozco; the fight, however, never occurred because Orozco ran away.
Orozco was arrested later that day at his girlfriend's home in Orange Cove. His blue truck was parked in the driveway. Blood found on the top of the truck bed and door frame on the driver's side matched Tapia's blood. Orozco told the arresting officers where to find the bat and knife. The aluminum bat, which was in plain view, was recovered outside the house. The knife, which was determined to be the murder weapon, was found hidden in the compartment of a trailer at the rear of the property wrapped in green artificial turf. The knife's blade was slightly over four and one-half inches long.
Orozco testified on his own behalf. He explained that he and Tapia had become friends while working together in the fields and when he left the job in June 2009, he understood that Tapia would deliver his last paycheck to him, but he never did. Orozco called the police, who carried out an investigation. After this, the two were no longer friends. On one occasion, Tapia approached Orozco with a metal object, called him a snitch and chased him. Tapia stopped chasing him after Pantoja told him to stop. Tapia then left the area and Orozco left right after him. On two separate occasions following this incident, Tapia threw a rock at Orozco's truck.
On the morning of September 23, 2009, Orozco saw Tapia walking out of the backyard of a friend's house holding a two by four wood plank in one hand. When Tapia saw Orozco, he walked toward Orozco slapping the two by four into the palm of his left hand, called him a snitch and said he wanted to fight. As Orozco drove away in his truck, Tapia threw a rock at it.
Later that day, Orozco saw Pantoja in her car, which was stopped in the middle of the street, with Tapia talking to her through the passenger side window. As Orozco drove by, Tapia lifted his hands and said "what's up." Orozco continued driving, but stopped because he wanted to end the dispute. When he got out of the truck, he had a closed knife in his right front shorts pocket. He retrieved a bat from between the truck's seats because he knew from past confrontations that Tapia had come at him with weapons.
Orozco walked toward Tapia, who started walking toward him. Orozco tried to talk to Tapia, telling him he did not want any more problems; Tapia, however, responded by hitting Orozco with his fists. As Orozco backed up out of reach, Tapia came toward him, socking him in the chest area. Orozco hit Tapia with the bat two or three times on the head, but he did not fall. Orozco saw Pantoja's car heading straight for him. Tapia grabbed the back of Orozco's shirt. Scared that Tapia might try to throw him in front of the car or that the car otherwise would hit him, Orozco, who was still holding the bat, pulled the knife out of his pocket with his left hand, opened it with his left hand, and told Tapia to back up and leave him alone. When Tapia still tried to "reach at" him, he "poked" Tapia with the knife. Orozco denied wanting to kill Tapia. He knew he had stuck a knife in Tapia's chest, but did not know where. Tapia "fell on his knee" and Orozco ran back to the truck. Tapia ran after Orozco and grabbed onto the truck. Orozco gunned the accelerator and sped away.
When Orozco was arrested later that day, he did not know Tapia was dead. By the time the police arrived, he had changed clothes because other people told him to do so, and disposed of the bat and knife. The knife had blood on it, which he washed off. Orozco told police where to find both items. Although he told various lies in official questioning because he "was scared" and "wasn't in the right state of mind," he did not deny his involvement and tried to be truthful. While Orozco told the police he was acting in self-defense and that he knew Tapia did not have any weapons in his hands, he testified at trial that he did not know whether Tapia had any weapons on him when he got out of the truck.
I. Ineffective Assistance of Counsel
Orozco contends he was denied his constitutional right to effective assistance of counsel when his trial counsel elicited testimony from him on cross-examination that he had seen other people stabbed, yet none of them died, and argued from that testimony that malice was not proven.
During the prosecutor's cross-examination of Orozco, he asked Orozco if he would agree, "just generally speaking," that "stabbing someone with a knife is something that could be dangerous to human life" and whether it was correct that "someone could actually die from being stabbed with a knife." Orozco responded, "Yes." The prosecutor ...