Filed 12/18/13 P. v. Solis CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE,
Plaintiff and Respondent,

v.
OSCAR SOLIS,
Defendant and Appellant. 2d Crim. No. B235384 (Super. Ct. No. BA341563) (Los Angeles County)

Oscar Solis appeals from the judgment following his conviction by jury of first degree murder (Pen. Code, §§ 187, subd. (a), 189) 1 and attempted murder (§§ 664/187, subd. (a)). The ju ry found multiple personal firearm use allegations to be true. (§ 12022.53, subds. (b), (c) & (d).) Appellant moved for a new trial. The trial court denied his motion and sentenced him to prison for 84 years to life. Appellant contends he was denied the effective assistan ce of counsel. He also contends, and respondent agrees, the abstract does not accurately reflect the judgment. We affirm but direct the trial court to correct errors in abstract of judgment form CR292 and to prepare an abstract of judgment form CR290.

1 All statutory references are to the Pe nal Code unless otherwise stated. There were two trials in this matter; the first ended in a mistrial when the jury could not reach a verdict.2 FACTUAL AND PROCEDUR AL BACKGROUND Prosecution Evidence Omar Sorroza-Garcia (Sorroza) knew Da vid Juarez for several years. They were business partners who manufactured (c ooked) and sold methamphetamine. Juarez obtained pseudoephedrine, an essential me thamphetamine ingredient, from different suppliers, including Daniel Rodriguez, wh o lived with appellant. Juarez paid pseudoephedrine suppliers from proceeds of sa les of the resultant methamphetamine. After Rodriguez died, Juarez found another supplier. Juarez also cooked meth amphetamine for appellant to sell. Sorroza knew appellant, but had no business relationship with him. On one occa sion, Juarez burned a batch of methamphetamine he cooked using pseudoephedrine supplied by appellant. The product was not fit to sell. Appellant accus ed Juarez of selling the product and falsely claiming it was burned, and they engaged in an ongoing dispute. Appellant called to complain with such frequency that Juarez eventually stopp ed answering his calls. Otylynda Delgado, his common-law wife, would answer and tell appellant Juarez was not home. Juarez's neighbor, Horacio Smiley, sometimes worked as his armed bodyguard. Smiley went to Juarez's reside nce in early 2003, when appellant was due there. Appellant arrived with two men, incl uding his constant companion, Calvin Belloso (Oso). Appellant demanded that Juarez pay him, or give him Juarez's truck. Smiley separated appellant and Juarez to prevent a p hysical altercation. Smiley also displayed a gun, and told appellant to leave. Appellant complied. Juarez later told Delgado appellant had threatened his life. Juarez bought a g un and never left the house without it. On a subsequent occasion, Juarez wa s meeting appellant at a rest aurant. Smiley accompanied Juarez, and observed a pistol and an AK-47 rifle in appellant's parked car. On March 16, 2003, Juarez drove hi s car, with Sorroza in the front passenger seat. They picked up Smiley and to ok him to his apartmen t at the corner of Jefferson and West Boulevards. Juarez waite d in his car with Sorroza while Smiley was inside.3 A gray primer-colored Camaro IROC approached and stopped on West Boulevard, next to Juarez's ca r. Both cars faced north, w ith the Camaro's passenger side next to the driver's side of Juarez's car. Sorroza and Juarez stayed in his car. Something that felt like a metal bat or baton hit Sorroza' s back. It was a bullet. Sorroza leaned forward, looked toward the Camaro, saw a flas h, and heard shots fi ring toward Juarez's car. Sorroza saw and recogni zed the shooter, appellant, in the front passenger seat. Appellant yelled, "mother fucker," and the Camaro sped away. Juarez slumped in the driver's seat, with blood flowing from the le ft side of his head. Despite his wounded back, Sorroza ran to Juarez's home, a few doo rs away. He told Delgado and Juarez's father, Jose Juarez, that he and Juarez were shot. Jose and Delgado ran to Juarez. Upon hearing multiple gunshots, Smile y looked outside and saw the gray Camaro before it sped away. Smiley ran outsid e, removed his shirt, applied it to Juarez's head, and yelled for help. Ju arez's sister, Bertha Juarez , ran to Juarez and applied pressure to his wound. Juarez was not responsive. At trial, Sorroza identified appellant as the shooter. Appellant vigorously attacked Sorroza's in-court id entification. He stressed that Sorroza did not name appellant as the shooter until 2007, although detectives had questio ned Sorroza in March 2003, and February 2004. Before 2007, So rroza informed detectives of the ongoing dispute between Juarez and appellant, and So rroza identified a photograph of appellant. In 2007, when detectives telephoned him in Mexico, Sorroza said he knew who shot Juarez. In subsequent discussions, Sorro za provided more de tails and ultimately identified appellant as the person who shot him and Juarez. In addition, Sorroza identified a photograph of Oso as someone who resembled the person who drove the Camaro during the shooting. So rroza further informed detectiv es that he and Juarez once rode in that Camaro. Delgado testified that Os o and appellant were almost always together. She further testified she saw Sorroza at the hospital after the shooting. He told her that one of the shooters reminded him of Oso.4 Ismael Caneal testified that in 2 003, he owned a gray 1987 Camaro Z28 IROC. Caneal's brother kept a set of keys to that Camaro in his house. Caneal's niece and her boyfriend or husban d, Oso, visited Caneal's brother at that house. Juarez remained in the hospital for about a month after the shooting and never regained consciousness. He di ed from two fatal gunshot wounds. Defense Evidence Starr Sachs, a retired Los Angeles Police Department firearms analyst, reviewed the bullets and bullet fragments rec overed at the shooting scene. She concluded that guns of at least two different ca libers were used in the shooting. Appellant called Torrance Police Depart ment Detective Charlie Fisher to impeach Sorroza. His testimony follo ws in the discussion below. New Trial Motion Appellant filed a motion for new tria l, claiming he was deprived of the effective assistance of counsel. Th e trial court denied that motion.
DISCUSSION Ineffective Assistance of Counsel To show ineffective assistance of co unsel, the defendant must establish (1) that counsel's representation fell below an obj ective standard of reasonableness, and (2) a reasonable probability that, but for counsel's errors, the defe ndant would have achieved a more favorable result. ( Strickland v. Washington (1984) 466 U.S. 668, 687-694; People v. Holt (1997) 15 Cal.4th 619, 703 .) A reasonable probability is a probability sufficient to undermine confidence in the outcome. ( People v. Williams (1997) 16 Cal.4th 153, 214–215.) "[A] court need not determine whether counsel' s performance was deficient before examining the prejudi ce suffered by the defendant as a result of the alleged deficiencies . . . . If it is eas ier to dispose of an ineffec tiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed." ( In re Fields (1990) 51 Cal.3d 1063, 1079.) Appellant has failed to establish suffi cient prejudice to support his ineffectiveness claims.5 A. Impeachment of Sorroza Appellant argues that trial counsel was ineffective because he did not present wiretap evidence which implicated Sorr oza in a drug conspiracy. We disagree. At the time of trial, Sorroza was in custody, facing drug conspiracy charges in San Diego, and his attorney advised him not to testify at appellant's trial. The drug conspiracy charges are not related to th is case. Sorroza admitted his ongoing involvement in manufacturing and selling methamphetamine, but claimed he was unaware of the facts underlying the drug conspi racy charges. He expressly denied he was involved in a conspiracy to distribute methamphetamine. Trial counsel impeached Sorroza with testimony from Detective Fisher, a member of the task force that investigated and arrested Sorro za, and other participants in the charged drug conspiracy. On April 8, 2010, Fisher sa w Sorroza drive Mario Vasquez to a restaurant where Vas quez got into a Nissan Maxima . Vasquez drove the Nissan away, and Sorroza followed him briefly. On the same evening, the police arrested Vasquez, impounded the Nissan, and recove red 23 pounds of methamphetamine. The Nissan also contained handwritten notes, with Sorroza's alias ("Borrego") and a telephone number. Appellant recognizes that Sorroza "u ndermined his reliab ility as a witness" by repeatedly telling "police that he could no t identify the shooter" for years after Juarez died, and identified him only when Sorroza "wan ted assistance in legally moving back to the United States." Appellant also acknowle dges that "Sorroza's cr edibility was seriously challenged at trial" and Sorroza "was a c onvicted robber and drug trafficker" who "admitted manufacturing methamphetamine for se veral years." Nonetheless, appellant claims the wiretap evidence was critical be cause it documented Sorroza's involvement in illegal activities near the time of trial, "w hen his credibility wa s being judged." The wiretap evidence was not critical. It is not reasonably probable that the outcome of appellant's trial would have been more favorable if counsel had introduced Sorroza's wiretapped statemen ts. The wiretap evidence was largely cumulative to Fisher's testimony describing appe llant's participation in the dr ug conspiracy. In denying6 the new trial motion, the trial court cited se veral reasons the jury would reject Sorroza's testimony regarding the recent drug conspiracy : "As far as cross-examination, including the recordings from the DEA, I can't imag ine based on what I heard and the way [Sorroza] was cross-examined ab out the . . . incident in Sa n Diego County, that anybody had even the slightest doubt he was lying. He was completely lyin g . . . . The officer's testimony was completely credib le. [Sorroza's] denials were ridiculous. And I don't think it would have made any difference if [defense co unsel] had played the tapes and I don't think there's any reasonable possibility any of the ju rors thought for a second that [Sorroza] was truthful when he denied his in volvement in the new drug case." Appellant has failed to meet his burde n of establishing a reasonabl e probability that, but for counsel's failure to impeach Sorroza with his wiretapped statements, he would have achieved a more favorable result. B. Failure to Challenge Testimon y Regarding the Killing of Rodriguez Appellant contends that the prosecuto r's references to the Rodriguez murder suggested he was involved in Rodriguez's d eath. As appellant acknowledges, "the evidence at [the second] trial di d not directly link [him] to th e Rodriguez murder." It is not reasonably probable that appellant's tria l would have resulted in a more favorable outcome if counsel had cha llenged the evidence of the Rodriguez killing. Abstract of Judgment The jury convicted appellant of murd er and found true the allegation that the murder was willful, deliberate, and premedita ted. It also convicted him of attempted murder but found the allegation that the a ttempted murder was willful, deliberate, and premeditated to be "not true." The trial court sentenced appella nt to prison for 84 years to life, including a 25 years to life indeterminat e term for murder, w ith a 25 years to life firearm enhancement, and a consecutive 9-year determinate term for attempted murder. The form CR-292 abstract of judgment, however, does not accurately reflect this result. First, box 1 indicates appellant was convicted of "willful, deliberate, premeditated" attempted murder in count 2. He was not. Box 1 should indicate appellant was convicted only of attempted murder in co unt 2 (§ 664, subd. (a)). Second, box 6(c)7 states appellant was sentenced to prison for an indeterminate term of nine years to life. He was not. He was sentenced to a nine-yea r determinate term. Box 6(c) should be blank. Third, box 7 is blank. Box 7 shou ld indicate appellant received a determinate term. Consequently, the superior court file requires a separate, additional form (CR290) for the determinate nine-year term imposed fo r count 2. We direct the superior court clerk to prepare abstract of judgment form s CR290 and CR292 which accurately record the sentence imposed by the trial court.
DISPOSITION The trial court is directed to prep are abstract of judgment forms CR290 and CR292 which correctly reflect both the determinate and indeterminate terms of appellant's sentence, as described in this opinion. Thereafter, the clerk shall forward these forms to the Department of Correc tions and Rehabilitation. Otherwise, the judgment is affirmed. NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.8 William Sterling, Judge Superior Court County of Los Angeles

________________ ______________

John P. Dwyer, under appointment by the Court of Appeal, for Defendant and Appellant
Kamala D. Harris, Attorney Genera l, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney Ge neral, Margaret E. Maxwell, Supervising Deputy Attorney General, Douglas L. Wilson, Deputy Attorney General, for Plain tiff and Respondent.