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Filed 1/26/15 P. v. Orozco CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN CARLOS OROZCO,

Defendant and Appellant.

C073936

(Super. Ct. No. 10F05904)

Sixty-nine-year-old Galen May died from a combination of stab wounds inflicted 

by a screwdriver to his neck and chest, and asphyxia from two plastic bags over his head, 

cinched tightly by a belt. Defendant Juan Carlos Orozco, whose fingerprints were found 

on one of the plastic bags over the victim’s head and who was a possible contributor to 

the DNA on the cord binding May’s ankle, admitted taking the victim’s car and using his 

bank card but insisted the victim was already dead when he entered his apartment,

purportedly to return keys he found by some rocks outside next to the stairs. Rejecting 

the “phantom friend” defense, a jury convicted defendant of special circumstance murder 

during a burglary, robbery, and the infliction of torture; first degree residential burglary;
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first degree robbery; and car theft. The jury found true the allegations defendant had used 

deadly weapons, a screwdriver and a belt, during the commission of the murder.

Defendant concedes that two of the four issues he asserts on appeal are raised only 

for purposes of federal review. The Attorney General concedes sentencing error. Thus, 

the only real issue on appeal is whether the trial court misinstructed the jurors they did 

not have to unanimously agree on the theory of murder. The judgment is modified to 

stay a weapons-use enhancement of one year on two counts pursuant to Penal Code 

section 1170.1 and is affirmed in all other respects.

FACTS

Defendant, a felon, testified at trial that he beat his girlfriend Judith Sepulveda, the 

mother of his two children. He was 6 feet 3 inches tall and weighed 230 pounds. In 

August 2010 Sepulveda worked full time, and defendant was unemployed. They lived in 

the same apartment building as the victim. Fed up in part because defendant failed to 

pick up the children from their after-school program and had watched television and slept 

rather than cleaning the apartment, on the evening of August 25, 2010, she told him to 

leave the apartment. She went to bed but kept her car keys with her. She awoke around 

midnight and saw defendant standing in the living room. She said, “I don’t know what 

you’re doing. I don’t know what you’re up to. I don’t know what you’re on, but you 

need to get out of my house.” There were no witnesses and none of the neighbors heard 

the victim in distress.

Defendant testified that while he was smoking outside his apartment sometime 

between 3:00 a.m. and 5:00 a.m. he saw some keys on the ground, and by clicking on the 

remote device, he determined that they belonged to his upstairs neighbor. Although he 

claimed he did not know his neighbor, he wanted to return the keys, so he walked 

upstairs, only to discover the door ajar and a body on the floor. He went in and touched 

the body to determine if he was dead. At that point, he testified he “got freaked out,” ran 

downstairs, and grabbed a bag of his clothes from his patio; without warning his 
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girlfriend or calling the police, he stole May’s car and drove to the Bay Area, then on to 

Salinas.

Defendant admitted he used the deceased’s bank card to buy gas and other items, 

but he denied knowing the PIN (personal identification number). Yet a surveillance 

camera captured him using an ATM machine and receiving a receipt. A bank official 

testified that the machine would not dispense a receipt unless the PIN had been accurately 

entered. Defendant testified the paper he was holding was a tissue. He also told the jury 

he could not remember what happened to the clothes he was wearing the night of the 

murder, including his shoes and beanie. He sold the stereo and the rims from the tires 

before abandoning the car.

The victim weighed 164 pounds and was 5 feet 9 inches tall. By all accounts, he 

was a fastidious man, yet there were no sheets on his bed when his body was found. His 

friends agreed he would not have slept on a bed without sheets. The apartment was neat 

and tidy. His friends also asserted that the victim consistently kept his wallet in his back 

pocket. Although there were no signs of forced entry, the victim’s wallet, car keys, bank 

card, driver’s license, and credit cards were missing.

The coroner testified that the clustering of the victim’s rectangular puncture 

wounds in four different areas suggested they were inflicted in a frenzy with a standard 

screwdriver. Thirteen of the puncture wounds were to the right-side jawline extending 

down his neck, seven to his chest area, and another six to his abdomen. Three latent 

fingerprints from the outer plastic bag around the victim’s head and a print from a receipt 

positively matched defendant. A criminalist testified she found DNA on the ligature 

around the victim’s ankles. The DNA was a mix from two people, one of whom was the 

victim. The remaining profile fully matched defendant’s at four loci, and several other 

loci were consistent with defendant’s profile.
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DISCUSSION

I

Borrowing an argument successfully raised in People v. Sanchez (2013) 

221 Cal.App.4th 1012 (Sanchez), defendant contends the trial court hopelessly and 

unconstitutionally confused the jurors by instructing them that they need not agree on the 

theory of murder even though they needed to agree on the degree of murder. Defendant 

creatively marshals an array of circumstances that, in his view, led inexorably to potential 

juror confusion, including the order in which the instructions were delivered, the opening 

and closing arguments by counsel, and the surprise introduction of second degree murder 

instructions. We reject his clever, if misguided, attempt to conscript the principles 

enunciated in Sanchez to facts bearing no resemblance to the facts underlying the 

Sanchez analysis.

But first we must summarize the most basic principles guiding our review of 

alleged instructional error. “A defendant challenging an instruction as being subject to 

erroneous interpretation by the jury must demonstrate a reasonable likelihood that the 

jury understood the instruction in the way asserted by the defendant. [Citations.]” 

(People v. Cross (2008) 45 Cal.4th 58, 67-68.) To determine whether there is a 

reasonable likelihood the jury misconstrued or misapplied the law, we must consider the 

jury instructions as a whole, the entire record of the trial, and the arguments of counsel. 

(People v. Carrington (2009) 47 Cal.4th 145, 192; People v. Kelly (1992) 1 Cal.4th 495, 

525-526.) We credit the jurors with both intelligence and common sense, and will 

assume they do not abandon either virtue during trial. (People v. Coddington (2000) 

23 Cal.4th 529, 594, overruled on other grounds in Price v. Superior Court (2001) 

25 Cal.4th 1046, 1069, fn. 13.) Our review is de novo. (People v. Shaw (2002) 

97 Cal.App.4th 833, 838.)

Jury unanimity is guaranteed by the due process clauses of the federal and state 

Constitutions. (People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1588.) The 
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unanimity instruction eliminates the danger a criminal defendant will be convicted 

without the jurors agreeing on a single offense. (People v. Melhado (1998) 

60 Cal.App.4th 1529, 1534.) As a result, the trial court must instruct sua sponte on 

unanimity. (People v. Riel (2000) 22 Cal.4th 1153, 1199.)

The Attorney General has no quarrel with these fundamental principles. Indeed,

she contends the jury was instructed on unanimity. She further contends there is no 

reasonable likelihood the jury misconstrued or misapplied the unanimity requirement 

given the instructions as a whole, the theories upon which the case was tried, and the 

arguments of counsel. She insists that Sanchez, supra, 221 Cal.App.4th 1012 bears no 

resemblance to the case before us. We agree.

The jury was instructed on alternate theories of murder, including murder with 

malice aforethought and felony murder, as well as the different degrees of murder. 

(CALCRIM Nos. 500, 520, 521, 540A, 548, 549.) Recognizing that the prosecution had 

pursued alternate theories, the trial court instructed the jury as follows: “The defendant 

has been prosecuted for murder under two theories: (1) malice aforethought, and 

(2) felony murder. [¶] Each theory of murder has different requirements, and I will 

instruct you on both. [¶] You may not find the defendant guilty of murder unless all of 

you agree that the People have proved that the defendant committed murder under at least 

one of these theories. You do not all need to agree on the same theory.” And the court 

further instructed the jury on the nuances of both theories as promised.

There is, of course, a critical distinction between theories of murder and degrees. 

While the jurors need not agree on a specific theory of murder, they must unanimously 

agree on the degree. (Pen. Code, § 1157.) In that vein, the court instructed the jurors that 

“[i]f you decide that the defendant committed murder, it is murder of the second degree 

unless the People have proved beyond a reasonable doubt that it is murder of the first 

degree.” (CALCRIM No. 520.) Similarly, the court explained that “[t]he People have 

the burden of proving beyond a reasonable doubt that the killing was first degree murder 
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rather than a lesser crime. If the People have not met this burden, you must find the 

defendant not guilty of first degree murder.” (CALCRIM No. 521.) Of particular 

significance, the court expressly instructed the jurors with CALCRIM No. 640 that they 

must unanimously agree on whether the murder was in the first or second degree. The 

court reiterated the necessity for unanimity with CALCRIM No. 3550, again instructing 

them that “[y]our verdict on each count and any special findings must be unanimous. 

This means that, to return a verdict, all of you must agree to it.”

While the jury was instructed on second degree murder, presumably as a lesser 

included offense, the case was tried exclusively on various theories of first degree 

murder. Thus, the court explained that defendant could be found guilty of first degree 

murder if the jurors found he premeditated the murder, tortured the victim, or committed 

the murder during a robbery or burglary. Both the prosecutor and defense counsel argued 

that the murder was murder in the first degree. The prosecutor told the jury that “[i]n this 

case a first degree murder is alleged.” She concluded: “So those are, again, the decisions 

you have to make about the murder. You determine malice aforethought, express or 

implied malice. That gets you to a murder. Then you determine if first degree. There 

are the three theories: Premeditated and deliberate, torture intended, which caused death, 

and felony murder. You determine your uses, personal use. And then you determine

those specials: Commission of burg., commission of robbery and murder involving 

infliction of torture with an intent to kill, okay.”

Defense counsel echoed the prosecutor. He argued, “This is an all-or-nothing 

case. Either he killed him or he didn’t.” Discussing degrees of murder, he told the jury, 

“There’s different levels, different assignments of responsibility. That’s not this case. 

Either Mr. Orozco did this, or he didn’t do it.”

No one argued that defendant should be convicted of second degree murder, nor 

did the jurors inquire about second degree murder. The jury found defendant guilty of 
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first degree murder and found true both felony-murder special circumstances and the 

torture-murder special circumstance.

The trial of Cesar Sanchez was very different. He, unlike defendant, was not 

alleged to be the perpetrator. (Sanchez, supra, 221 Cal.App.4th at p. 1014.) He was 

prosecuted on separate theories of aiding and abetting: (1) first degree felony murder if 

the murder was committed during the course of a kidnapping, and (2) second degree 

murder if the murder was the natural and probable consequence of an assault. (Id. at 

p. 1019.) The prosecutor requested instructions on both degrees of murder, which, unlike 

our case, coincided with the separate theories of murder (ibid.), and argued both theories 

(first and second degree murder) to the jury (id. at p. 1022).

The factual circumstances of the murder in Sanchez were far more susceptible to 

different degrees of murder. In Sanchez, the victim was shot and killed following a 

dispute over drugs and money. (Sanchez, supra, 221 Cal.App.4th at p. 1014.) Many 

people were involved in the dispute. (Id. at pp. 1016-1017.) Under one scenario 

presented by the prosecution, the defendant aided and abetted others who targeted the 

victim for an assault, and the murder was the natural and probable consequence of that 

assault. Under that scenario, the defendant was guilty of second degree murder. (Id. at 

p. 1022.) Under the prosecution’s second scenario, the defendant aided and abetted the 

others in kidnapping the victim, and he was murdered in the course of the kidnapping. If 

the jury accepted this version of the facts, the defendant was guilty of first degree felony 

murder. (Ibid.)

Following instructions, the jury requested more information on the difference 

between first and second degree murder and, in particular, a definition of second degree 

murder. (Sanchez, supra, 221 Cal.App.4th at pp. 1022-1023.) The court, as here, 

instructed the jurors pursuant to CALCRIM No. 548 that they did not need to agree on 

the same theory of murder. (Sanchez, at p. 1023.) But in Sanchez, unlike the case before 

us, the two different theories also constitute two different degrees of murder. Sanchez 
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argued the instruction negating the need for unanimity as to the theory of guilt conflicted 

with the instruction requiring unanimity on the degree of murder. (Id. at p. 1019.) He 

asserted that if the jury followed the clarifying instruction negating unanimity, all of the 

jurors might have agreed the defendant committed murder, but it could not be determined 

whether they unanimously agreed he committed murder in the first degree. (Ibid.)

The Court of Appeal agreed and reversed the judgment. The court explained: 

“Unanimity was required in this case as to the theory of guilt as a result of different 

theories supporting different degrees of murder. The prosecutor understood the need for 

unanimity at the time he requested instructions on natural and probable consequences, 

specifically telling the trial court the jury could return a verdict of murder in the first or 

second degree, depending on what theory they unanimously agreed upon.” (Sanchez, 

supra, 221 Cal.App.4th at p. 1025.) But the court’s supplemental instruction in response 

to the jury query undermined the notion of unanimity. The court concluded, “There is no 

way to determine, on the record presented, whether the jury followed the instruction 

during deliberations stating unanimity was not required, or the earlier instruction pursuant 

to CALCRIM No. 640, which set forth a different approach to the verdict forms on both 

degrees of murder.” (Sanchez, at p. 1025.)

In this case, the prosecution charged and tried the case as first degree murder. 

Although the prosecution presented different theories of first degree murder, it did not 

present evidence or argue to the jury that defendant might have committed murder in the 

second degree. In contrast to Sanchez, the different theories of guilt for murder did not 

support different degrees of murder. Defendant does not challenge the principle that a 

jury need not agree on the theory of first degree murder, only that it must agree on the 

degree. Based on the entire record of this trial, including all of the instructions and 

argument of counsel, we conclude there is no reasonable likelihood the jurors would have 

misconstrued the instructions in the manner suggested by defendant. That is to say, there 
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is no reasonable likelihood that the jurors did not unanimously agree defendant was 

guilty of murder in the first degree.

Most obviously, the jury gave no indication it was confused by the unanimity 

instructions or the differences between first and second degree murder. Second, the 

instructions, when taken as a whole, distinguished first from second degree murder and 

specifically instructed the jurors they must all agree on the degree. In a case tried on the 

exclusive theory that the perpetrator of May’s murder, either by premeditation, torture, or 

in the course of the commission of a felony, was guilty of a first degree murder and the 

only issue was whether that perpetrator was or was not defendant, there is no reasonable 

likelihood the jurors would have disregarded the unanimity instruction as to degree 

simply because they were not required to agree on the specific theory of first degree 

murder. Third, we reject defendant’s far-fetched notion that the order in which the 

instructions were delivered, particularly when second degree murder was not argued at 

trial, hopelessly confused the jurors. The jurors were also instructed that some of the 

instructions might not apply and to follow only those instructions that did apply to the 

facts as they found them. (CALCRIM No. 200.) As pointed out above, we continue to 

have faith in the intelligence and common sense of jurors and their ability to apply those 

instructions applicable to the facts as they determine them to be. Simply put, the dangers 

posed in Sanchez, where the different theories of murder were synonymous with the 

different degrees of murder, are not presented when the different theories were only as to 

first degree murder and the case was not tried or argued as second degree murder. There 

was no instructional error because there was no reasonable likelihood the jury 

disregarded the unanimity requirement when determining the degree of the murder.

II

Defendant raises two issues to preserve them for federal review but acknowledges 

they have been resolved against him by the California courts.
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First, defendant asserts the trial court erred by instructing the jury that motive is 

not an element of murder by torture, an instruction that negates the element of sadistic 

purpose in the first degree murder by torture instruction. The California Supreme Court 

rejected the identical contention in People v. Whisenhunt (2008) 44 Cal.4th 174, 218. 

The court explained, “ ‘Motive describes the reason a person chooses to commit a crime. 

The reason, however, is different from a required mental state such as intent or malice.’ 

[Citation.]” (Ibid.) We echoed the Supreme Court in People v. Hamlin (2009) 

170 Cal.App.4th 1412, recalling, “[M]otive is not an element of the crime of murder by 

torture, even though one of the essential elements of that crime is that the prohibited act 

be committed with the intent to cause pain for a specific purpose.” (Id. at p. 1453.)

Second, defendant contends the felony-murder special circumstances are 

unconstitutional because they do not adequately narrow the class of persons subject to a 

sentence of life in prison without the possibility of parole. Defendant concedes that the 

California Supreme Court has consistently rejected the claim that felony-murder special 

circumstances do not adequately narrow the class of persons subject to the death penalty. 

(People v. Gamache (2010) 48 Cal.4th 347, 406; People v. Pollock (2004) 32 Cal.4th 

1153, 1195.) Moreover, even the federal narrowing principle does not apply to life 

without parole sentences, but only to sentences of death. (Harmelin v. Michigan (1991) 

501 U.S. 957, 995-996 [115 L.Ed.2d 836, 865].) Under California law, defendant’s claim 

fails.

III

The Attorney General agrees with defendant that one of the one-year weapon 

enhancements imposed for counts one and three must be stayed pursuant to Penal Code 

section 1170.1. Section 1170.1, subdivision (f) provides, in part: “When two or more 

enhancements may be imposed for being armed with or using a dangerous or deadly 

weapon or a firearm in the commission of a single offense, only the greatest of those 

enhancements shall be imposed for that offense. . . .” In People v. Jones (2000) 
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82 Cal.App.4th 485, 492-493 the Court of Appeal found the trial court’s imposition of 

two sentence enhancements for using two different weapons to accomplish a single crime 

violative of section 1170.1, subdivision (f). Similarly, here the jury found defendant used 

a screwdriver and a belt, and the trial court erroneously imposed two weapon 

enhancements as to counts one and three. We agree with the parties that pursuant to the 

express terms of section 1170.1, one of the two one-year enhancements imposed for each

count must be stayed.

DISPOSITION

We modify the judgment to stay one weapons-use enhancement each on counts 

one and three. The trial court is directed to prepare an amended abstract of judgment and 

to send a certified copy thereof to the Department of Corrections and Rehabilitation. In 

all other respects, the judgment is affirmed.

 RAYE , P. J.

We concur:

 BUTZ , J.

 DUARTE , J.