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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JOSEPH GARY ORTA, Defendant and Appellant.


Decided: November 17, 2011

Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven E. Mercer, and Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.


Joseph Gary Orta appeals his conviction by jury verdict of first degree murder, a felony in violation of Penal Code section 187, subdivision (a).   He contends the trial court erred in admitting evidence of an uncharged offense.   We find the uncharged offense evidence was improperly admitted under Evidence Code section 1101, subdivision (b); 1  however, we conclude the error was harmless.   We affirm the judgment.


In the morning on February 15, 2008, Eileen Orta's body was found inside her van in the parking lot of the Pomona courthouse.   The left side of Eileen's neck had been cut with a four- to six-inch blade, and her jugular vein and carotid artery had been severed by the wound.   Because the body had been left in the vehicle, the exact time of death could not be determined;  however, the coroner estimated it to be either in the morning or late evening on February 14.

The body was found wrapped in a blanket taken from appellant's father's house.   DNA matching appellant's genetic profile was found in samples obtained from Eileen's body.   There were no defensive wounds.   The toxicology report was negative for alcohol or other substances.

Appellant was arrested.   An information charged him with one count of murder.

At trial, the evidence established the following.   In mid-January 2008, appellant moved into an apartment rented by his cousin, Nicholas Orta, his wife, Eileen, and their child Alina.2  Soon after appellant moved in, he and Eileen began an extra-marital affair.   Nicholas suspected the affair and asked appellant to move out.   Nicholas later told police officers that appellant asked if he could kill Eileen.

Appellant moved out but continued the affair with Eileen.   On the morning of February 12, Eileen drove Nicholas to work in their maroon van.   Later Eileen called her brother Ricky.   She was crying and Ricky could hear appellant's voice in the background.   She told Ricky that appellant was “acting crazy” and had called her a “slut.”   She told Ricky she would call back in thirty minutes, but he did not hear from her.

Later that evening, Eileen was supposed to drive Nicholas home from work.   She did not show up, and he took the bus home.   Eileen was not at their apartment or at her parents' house.   Eileen did not come home that night or the next day.

On February 13, appellant, Eileen, and Alina were at the home of Raul and Connie Sanchez, appellant's stepfather and mother.   The three slept at the house.   The next morning, Raul saw appellant, Eileen, and Alina standing outside of a van parked in front of the house.   Raul testified that he thought the van was grey or light blue, but that he had not seen it before and he could not recall telling police officers about it.   Raul did not see appellant, Eileen, or Alina for the rest of the day.

Each side presented conflicting evidence about the activities of appellant, Eileen, and Alina on February 14, the day Eileen was killed.   The prosecution offered testimony from appellant's cousin, Albert Sandoval.3  Albert testified that around noon, he saw appellant driving Eileen's van in the alley behind Albert's parents' house.   Both appellant and Albert parked in the driveway.   Albert's girlfriend Jacqueline came outside and also saw appellant.   Albert went inside the house for a few minutes, leaving the keys in the ignition.   When he came back outside he saw that appellant was with Alina.   Appellant told Albert that he was watching her.

Albert walked around the van and saw what he believed to be a woman lying down on her back, asleep.   He could only see the woman from her knees down.   He noticed her toenails were painted a bright blue.4

Appellant asked Albert if he could help him drop off Alina, and Albert agreed.   Albert drove Alina in his car while appellant followed.   They drove to appellant's father's house, and appellant went inside for a few minutes but did not drop off Alina.   They then drove to the house of appellant's aunt, Rita Orta. Appellant took Alina into the house.   His aunts, Camilla and Rachel, were at the house.   Albert then left without seeing whether appellant got back into the van.

Later that afternoon, Albert found a bloody knife wrapped in a blue cloth in the trunk of his car.   He gave it to Brenda Olmos to throw away.

Appellant testified that he did not see Albert on February 14.   He stated instead that after they left Raul and Connie's house that morning, Eileen wanted to buy marijuana.   She drove to a park and told appellant to wait with Alina until she returned.   Appellant told her the park was dangerous and he did not want to wait there.   He also told her that if she did not return promptly, he would meet her at the house of his uncle, Albert's father.

Appellant waited with Alina for approximately 20 minutes, when he saw a friend at the park.   Appellant thought his friend's name was David Mejia or Alvarez.   Appellant asked David for a ride.   They drove around the park to look for Eileen and eventually drove to Rita's house, where appellant dropped off Alina.

Appellant's aunt, Camilla, who was at Rita's house when appellant dropped off Alina, testified that she saw appellant arrive in a light blue sedan.   Appellant testified that David's car was a light blue Honda Civic or Accord.

When Rita discovered Alina at her house, she was worried because she had never looked after Alina before and Alina looked disheveled and dirty.   In the evening, she drove to Nicholas's apartment, but he was not home.   Rita called the police.   Police officers located Nicholas and reunited him with Alina.   Nicholas filed a missing person's report for Eileen.   The body was found the following morning.

The jury convicted appellant of first degree murder.   Following his conviction, appellant moved for a new trial on due process grounds because of admission of the prior crime evidence.   That motion was denied.   Appellant was sentenced to an aggregate term of 56 years to life.   This timely appeal followed.


Appellant argues the trial court erred in admitting other crime evidence pursuant to Evidence Code section 1101, subdivision (b), over his objection, and that the evidence should have been excluded under Evidence Code section 352.

A. Pretrial Proceedings

Pursuant to section 1101, subdivision (b), the prosecutor filed a motion in limine to introduce evidence of a prior assault conviction suffered by appellant.   The evidence showed that appellant, who was intoxicated at the time, and Raul had an argument in December 2001.   Raul grabbed appellant and appellant responded by slashing him multiple times with a box cutter.   Raul sustained injuries to his head, ribs, back, and the left side of his neck.   Appellant pleaded guilty to assault with a deadly weapon and served six years in prison.

The prosecutor argued this evidence was admissible to prove identity.   The two incidents, she asserted, were sufficiently similar because in each the victim was a family member related to the appellant by marriage, both attacks involved a knife, and both victims sustained cuts to the front left side of their necks which were almost identical in location and size.

Over appellant's objection, the court ruled this evidence was admissible.   The court stated, “[g]iven the facts as I understand them to be in our particular case, I think it would help the jury to learn of the defendant's prior activities, not for the purpose of proving that he is, in fact, the perpetrator, that will have to be proved by other means, but as a corroborative evidence relating to absence of mistake or accident, common scheme or plan, and knowledge of the danger to the victim or the opportunity to do serious harm.”   The court granted appellant's request for a continuing objection.

Prior to Raul's testimony, the court held a hearing pursuant to section 402.   The prosecutor stated that Raul was going to testify about details of the assault.   Defense counsel objected and argued that Raul sustained wounds all over his body and thus the assault was not sufficiently similar to the charged offense to be admissible.   The court ruled that Raul's testimony was admissible to show intent, common scheme or plan, and absence of mistake.

The prosecutor also sought to introduce two photographs of Raul's neck wound, taken after the attack, to show that the wounds sustained by Raul and Eileen were similar.   Appellant objected and argued that the photographs were cumulative and inflammatory.   The court ruled the photographs could be admitted, stating that Raul Sanchez's verbal description of where he was cut on the neck would be insufficient because the jury would have to compare this to photographic evidence of Eileen's neck wound.   The court reasoned that this kind of comparison would be unduly complicated, and that the photographs were not unduly prejudicial because, while there was a “little bit of leakage” depicted, the amount was not “very much at all for a neck wound in that location.”   The court gave a limiting instruction (CALJIC No. 2.50) immediately preceding Raul's testimony about the assault, instructing the jury to consider Raul's testimony for the limited purpose of showing intent, motive, knowledge, or common scheme or plan.   The prosecutor also introduced a certified copy of appellant's conviction as an exhibit.

Appellant testified at trial.   On direct examination he testified that he had told Eileen about the assault against Raul and his prison term.   He also testified that Raul had hit him in the past and he used the box cutter in self-defense only after Raul grabbed him.   On cross examination the prosecution further inquired about what he told Eileen about the assault.

In closing arguments, the prosecutor again mentioned the prior assault and resulting conviction.   She stated “[w]e know that there was a prior stabbing between the defendant and Raul Sanchez.   And we know that because we heard from both the defendant and we heard from Raul. And the court instructed you on what you can consider that stabbing for․  Ladies and gentlemen, when you go back into the jury room, look at these photographs.   Look at the two stab wounds.   Look at the similarities between them.   The defendant stabbed Raul Sanchez in his neck and other places.   Raul Sanchez didn't die.   He stabbed Eileen Orta one time in the neck, and Eileen died.   And you can consider this prior stabbing to prove his intent to kill.”

The prosecutor referenced the assault again in her closing:  “[Appellant] told you that he stabbed Raul because Raul came after him and held him in a wrestling position.   Ladies and gentlemen, you saw Raul come into this courtroom, [he is] not a big guy.   The defendant [weighs] 260 to 270 [pounds].   And so the defendant had to pull out a box cutter and start slicing Raul Sanchez in the neck and in the body and in the head because he was being held in a wrestling position.   Does that even make sense to you?   Just on their body types, Raul is not a big guy.   The defendant, however, is.”

B. Analysis

Section 1101, subdivision (a) provides “evidence of a person's character or a trait of his or her character ․ is inadmissible when offered to prove his or her conduct on a specified occasion.”   Subdivision (b) of the section creates an exception when evidence of a prior criminal act is “relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake ․ ) other than his or her disposition to commit such an act.”

Appellant argues the court erred in admitting evidence of his assault against Raul. We review that ruling under the abuse of discretion standard.  (People v. Ewoldt (1994) 7 Cal.4th 380, 405) While the prior assault was admitted to show intent, absence of mistake or accident, common scheme or plan, knowledge, and opportunity, respondent here only argues that it was admissible for intent and common scheme or plan.   Accordingly, we address admissibility only on these grounds.

In People v. Ewoldt, the Supreme Court discussed the relationship between the purpose for which prior offense evidence was offered and the degree of similarity required between the prior and current offense.   For intent, “the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.”   [Citations.]’  [Citation.]”  (People v. Ewoldt, supra, 7 Cal.4th at p. 402.)   Evidence of a common design or plan is admissible to establish that the defendant committed the act alleged.  (Id. at p. 403.)  “To establish a common design or plan, the evidence must demonstrate not merely a similarity in the results, but ‘ “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.”  [Citation.]’  [Citation.]”  (People v. Balcom (1994) 7 Cal.4th 414, 423–424.)

The assault does not support an inference that the appellant harbored the same intent or that the two incidents were manifestations of a common scheme or plan.   The attack followed a heated argument in which Raul grabbed appellant.   Appellant, who was intoxicated at the time, inflicted multiple wounds over Raul's upper body, including his head, back, ribs, and neck.   This type of attack does not suggest that the placement of the neck wound was deliberate.   Instead, the frenzied nature of the assault suggests that appellant sought to cut Raul wherever he could, including his neck.

In contrast, the attack on Eileen was very precise.   She sustained one single cut to her neck, which severed both her jugular vein and carotid artery.   This type of injury, as argued by the prosecutor at trial, suggests that the wound was deliberately inflicted upon her neck to kill her.   Also, Eileen had no defensive wounds, suggesting that the attack did not follow a fight.

Moreover, no reasonable jury could have concluded that appellant slashed Eileen's neck but lacked the requisite intent to kill.  (People v. Balcom, supra, 7 Cal.4th at pp. 422–423.)   Thus, the evidence of the uncharged offense was “cumulative regarding an issue that was not reasonably subject to dispute.”  (People v. Ewoldt, supra, 7 Cal.4th at p. 406.)   We hold that the court abused its discretion by admitting evidence of appellant's prior assault conviction under section 1101, subdivision (b).

The court also should have excluded the evidence under section 352 because its prejudicial impact outweighed its probative value.  Section 352 provides:  “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ․ create substantial danger of undue prejudice.”

Prior crime evidence is inherently prejudicial.  (Ewoldt, supra, 7 Cal.4th at p. 404.)   Here, Raul testified to the assault in detail and photographs of his injuries also were admitted.   This evidence was highly prejudicial and its admission created a substantial danger of inflaming the jury.   Moreover, the probative value of the evidence was low.   Intent to kill was an issue not reasonably subject to dispute, and there were significant dissimilarities between the prior crime and the charged offense.   Accordingly, the evidence also was inadmissible under section 352.

When uncharged offense evidence is improperly admitted, we apply the harmless error standard under People v. Watson (1956) 46 Cal.2d 818.  (People v. Malone (1988) 47 Cal.3d 1, 22.)   Under the Watson standard, the erroneous admission of this evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded.  (People v. Malone, supra, at p. 22.)

Here, the prosecutor offered other substantial evidence that appellant committed the murder.   Albert testified that he saw a woman's body with blue painted toenails, lying on her back, in the back of Eileen's van.   Responding police officers corroborated the facts about the position of the body and the painted toenails.   Albert's testimony about his activities on February 14 was also corroborated by other witness testimony.   The level of detail to which he testified created an inference that he had first-hand knowledge and reinforced his credibility.   Albert's testimony, coupled with the forensic evidence, was strong evidence of appellant's guilt, making it less probable that the jury would have reached a more favorable decision for the appellant had the prior crime evidence been excluded.  (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1021–1022.)

Moreover, the court limited the prejudicial impact of the evidence by instructing the jury on the limited relevance of the prior crime both immediately preceding Raul's testimony and after each side had rested.   While the prosecutor mentioned the evidence during her closing argument, she also noted its limited relevance.   In the absence of evidence to the contrary, we presume that jurors abided by limiting instructions.  (People v. Waidla (2000) 22 Cal.4th 690, 725.)

Finally, the jury was informed that appellant pleaded guilty and served a prison term for the assault, which reduces the likelihood that the jury punished appellant for the uncharged offense.   While the uncharged offense evidence should not have been admitted, we are satisfied that it was not reasonably probable that appellant would have achieved a better result if it had been excluded.   We thus conclude the error was harmless.


The judgment is affirmed.


We concur:


FN1. All further code citations are to the Evidence Code, unless otherwise indicated..  FN1. All further code citations are to the Evidence Code, unless otherwise indicated.

FN2. Because many of the parties share the same surname, we will refer to individuals by first name for ease of reference..  FN2. Because many of the parties share the same surname, we will refer to individuals by first name for ease of reference.

FN3. Albert Sandoval was in custody for his involvement in an unrelated murder.   After he offered information about this case, he was offered a plea of no contest to being an accessory after the fact in that case..  FN3. Albert Sandoval was in custody for his involvement in an unrelated murder.   After he offered information about this case, he was offered a plea of no contest to being an accessory after the fact in that case.

FN4. When the body was discovered, the position of the body matched Albert's description and the toenails were painted purple.   These details were not released to the public..  FN4. When the body was discovered, the position of the body matched Albert's description and the toenails were painted purple.   These details were not released to the public.


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