Filed 2/4/21 P. v. Ortiz CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

MANUEL ORTIZ, JR.,

Defendant and Appellant.

B302347

Los Angeles County

Super. Ct. No. BA467237

APPEAL from a judgment of the Superior Court of Los

Angeles County, Leslie A. Swain, Judge. Affirmed.

Stephen M. Hinkle, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Paul M. Roadarmel, Jr., and Stacy S. 

Schwartz, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

INTRODUCTION

Defendant Manuel Ortiz, Jr., was convicted of murder after 

stabbing a fellow passenger on a city bus. On appeal, he argues 

that the court erred by admitting law enforcement testimony 

identifying him in a surveillance video, by admitting confusing 

DNA evidence, and by imposing fines and fees without 

determining his ability to pay them.

1 We affirm.

BACKGROUND

The morning of April 9, 2018, defendant, carrying a blue 

bag, boarded a Montebello bus. When the bus arrived at one of its 

stops, defendant started stabbing another passenger in the head. 

Defendant fled the bus but left the blue bag behind. The victim, 

later identified as Austin Angelo Zavala, died from his wounds.

Several of defendant’s fellow passengers later identified 

him as the attacker from six-pack photo arrays. A mobile phone 

recovered from defendant at the time of his arrest was found to 

have used cell towers, around the time of the stabbing, within a 

mile of the attack. DNA samples recovered from the blue bag and 

its contents contained DNA from a mixture of individuals, 

including defendant. Fingerprints from a toothpaste box inside 

the bag matched defendant’s.

By information dated March 6, 2019, defendant was 

charged with one count of murder (Pen. Code,2 § 187, subd. (a); 

count 1) with a knife (§ 12022, subd. (b)(1)). The information also 

1 Because we conclude the court did not err, we do not address 

defendant’s claim of cumulative error.

2 All undesignated statutory references are to the Penal Code.
3

alleged four prison priors (§ 667.5, subd. (b)). Defendant pled not 

guilty and denied the allegations.

After a jury trial at which he did not testify, the jury found 

defendant guilty of count 1 and found the weapon allegation to be 

true. Defendant admitted the prison priors and the court found 

them to be true. 

The court sentenced defendant to an indeterminate term of 

26 years to life—25 years to life for count 1 plus one year for the 

deadly-weapon enhancement. The court struck the prison priors.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant argues that the court erred by (1) allowing the 

investigating officer to testify that defendant was the person in 

various surveillance videos, (2) admitting unduly confusing DNA 

evidence, (3) and imposing required court costs at sentencing 

without determining whether defendant had the ability to pay 

them.

1. Detective Ruggerio’s Testimony

During his testimony, Los Angeles Sheriff’s Department 

Detective Timothy Ruggerio, the investigating officer in the case, 

testified about images in several surveillance videos that were 

played for the jury. Although Ruggerio often referred to the 

person in the videos only as “the suspect,” he also identified that 

suspect as defendant numerous times—usually at the prompting 

of the prosecutor. Defendant argues that the court erred in 

allowing Ruggerio to identify him as the person in the 

surveillance videos because Ruggerio had no more insight into 

that question than the jury. We disagree.
4

1.1. Defendant forfeited this issue by failing to object.

The rules of evidence are not self-executing. We may not 

reverse a judgment or verdict based on “the erroneous admission 

of evidence unless: [¶] (a) There appears of record an objection to 

or a motion to exclude or to strike the evidence that was timely 

made and so stated as to make clear the specific ground of the 

objection or motion[.]” (Evid. Code, § 353, subd. (a).) This rule 

exists to give the trial court a concrete legal proposition to pass 

on, to allow the proponent of the evidence an opportunity to cure 

the defect, and to prevent abuse. (People v. Partida (2005) 37 

Cal.4th 428, 434.) 

Defendant concedes that although trial counsel objected to 

Ruggerio’s identification testimony at both the beginning and the 

end of direct examination—and the court sustained those 

objections—she did not object to the myriad other identifications, 

thereby forfeiting his challenge on appeal. Notwithstanding the 

forfeiture, we exercise our discretion to consider the merits of 

defendant’s claim to forestall a later habeas petition on this issue.

(See People v. Williams (1998) 17 Cal.4th 148, 161–162, fn. 6.) 

1.2. The testimony was properly admitted.

Lay opinion testimony is admissible if it is both rationally 

based on the perception of the witness and helpful to a clear 

understanding of the witness’s testimony. (Evid. Code, § 800.) As 

relevant here, a person who did not witness a crime may identify 

a defendant from photographs and surveillance videos if the 

person has personal knowledge of the defendant’s appearance 

and the testimony will assist the trier of fact in resolving the 

identity issue. (People v. Leon (2015) 61 Cal.4th 569, 600–601 

(Leon); People v. Ingle (1986) 178 Cal.App.3d 505, 513 (Ingle); 
5

People v. Mixon (1982) 129 Cal.App.3d 118, 128 (Mixon); People v. 

Perry (1976) 60 Cal.App.3d 608, 614–615 (Perry).) The degree of a 

witness’s personal knowledge of a defendant’s appearance goes to 

the weight, rather than to the admissibility, of the opinion. (Leon, 

at p. 601.) 

We review a trial court’s admission of lay opinion 

identification testimony for abuse of discretion. (People v. 

Thompson (2010) 49 Cal.4th 79, 128–130.) We will not disturb 

the court’s evidentiary rulings “except on a showing the ... court 

exercised its discretion in an arbitrary, capricious, or patently 

absurd manner that resulted in a manifest miscarriage of justice 

[citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)

In both Mixon and Perry, the robbery victims could not 

clearly see the robbers during the crime and thus could not 

identify them in surveillance videos or in-person lineups. In 

Perry, the court held that a police officer’s identification of the 

defendant as one of the two robbers seen on a surveillance film of 

the crime was admissible as lay opinion testimony because the 

officer was familiar with the defendant from numerous contacts 

over the previous five years. (Perry, supra, 60 Cal.App.3d. at 

p. 610.) Similarly, in Mixon, the court held that an officer’s 

identification of the defendant as the person seen in surveillance 

photographs taken during the commission of the robbery was an 

admissible lay opinion because the officer had “previously 

acquired familiarity with [the defendant’s] features.” (Mixon, 

supra, 129 Cal.App.3d at pp. 131–132.) In both cases, the officers’ 

identifications were based on their personal knowledge of the 

defendants from contacts before the robbery; this helped the 

juries because each defendant had altered his appearance before 

trial. (Mixon, at p. 130; Perry, at p. 613.)
6

In Ingle, the defendant argued that a robbery victim’s 

testimony that the defendant was the person in a surveillance 

video of the crime was inadmissible because the victim had not

seen the defendant before the robbery. Relying on Perry and 

Mixon, the Ingle court rejected that contention. The Ingle court 

observed: “It is now clearly established that lay opinion testimony 

concerning the identity of a robber portrayed in a surveillance 

camera photo of a robbery is admissible where the witness has 

personal knowledge of the defendant’s appearance at or before 

the time the photo was taken and his testimony aids the trier of 

fact in determining the crucial identity issue. [Citations.]” (Ingle, 

supra, 178 Cal.App.3d at p. 513.) Accordingly, “it was entirely 

appropriate” for the robbery victim to testify “based upon her 

personal observations and perceptions at the time the robbery 

occurred, that the person portrayed as the robber in the 

videotape was the defendant.” (Id. at p. 514.) The victim’s 

observation of the robber during the crime was sufficient. 

In Leon, the California Supreme Court extended these 

holdings by ruling that a testifying officer could identify a 

defendant in surveillance footage even if the officer had not seen 

him before the crime; all that was required was that the officer be 

“familiar with defendant’s appearance around the time of the 

crimes.” (Leon, supra, 61 Cal.4th at p. 601.) In that case, the 

testifying officer first met the defendant the day after the 

robbery, when the defendant was arrested. (Ibid.) Because it was 

“undisputed” that the officer “was familiar with defendant’s 

appearance around the time of the crimes,” questions about “the 

extent of [the officer’s] familiarity with defendant’s appearance 

went to the weight, not the admissibility, of his testimony. 

[Citation.] ... Moreover, because the surveillance video was 
7

played for the jury, jurors could make up their own minds about 

whether the person shown was defendant.” (Ibid.)

Here, the stabbing occurred on April 9, 2018. Ruggerio 

arrested defendant three days later, on April 12, 2018. Although 

the surveillance video in this case was unusually clear,3

defendant was wearing a cap and sunglasses that helped obscure 

his face. More importantly, defendant’s appearance had changed 

in the 15 months between the stabbing and his trial. Since 

defendant had been in custody, his complexion was far lighter

than it had been. He’d also shaved off his beard, cut his hair, and 

gained weight. And, as defendant notes, other witnesses—who 

were not shown six-pack photo arrays until months later—had 

trouble identifying him. Accordingly, because Ruggerio’s 

“testimony was based on his relevant personal knowledge and 

aided the jury, the court did not abuse its discretion by admitting 

it.” (Leon, supra, 61 Cal.4th at p. 601.)

2. The DNA Evidence

Defendant contends the court abused its discretion by 

admitting unduly confusing DNA evidence. We disagree.

2.1. Legal Principles and Standard of Review

Only relevant evidence is admissible. (Evid. Code, § 350.) 

Relevant evidence is “evidence, including evidence relevant to the 

credibility of a witness or hearsay declarant, having any tendency 

in reason to prove or disprove any disputed fact that is of 

consequence to the determination of the action.” (Evid. Code, 

§ 210.) The trial court has discretion to exclude relevant evidence 

3 Contrary to defendant’s assertion, the video, which we have reviewed,

was neither grainy nor blurry.
8

“if its probative value is substantially outweighed by the 

probability that its admission will (a) necessitate undue 

consumption of time or (b) create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.” 

(Evid. Code, § 352.) 

We review a court’s decision to admit or exclude evidence 

for abuse of discretion. (People v. Rodriguez, supra, 20 Cal.4th at 

pp. 9–10.)

2.2. Proceedings Below

At defense counsel’s request, the court held a hearing 

outside the jury’s presence to determine “whether or not there 

[was] sufficient basis to render an opinion from the [DNA] sample 

that was taken from the [blue] bag.”

Sheriff’s Department crime lab analyst Kenneth Takigawa 

testified that in 2018, he tested DNA recovered from the strap of 

the blue bag defendant left behind on the bus. The sample 

contained a mixture of DNA from at least four people. Defendant 

was one possible contributor.

In 2019, the Sheriff’s Department crime lab adopted 

STRmix, software that interprets DNA using probabilistic 

genotyping, a different methodology than the lab had previously 

used. Takigawa used the new software to reinterpret the results. 

Because the new methodology is more sensitive, this time,

Takigawa discovered that the sample contained a mixture of five 

contributors rather than four. But the Sheriff’s Department lab 

isn’t validated to interpret findings containing so many 

contributors, so the new results were inconclusive. Takigawa 

stressed that the earlier result wasn’t wrong; it was just achieved 

using a different analytical method.
9

Based on this testimony, the court held that although the 

“jurors are going to be challenged by this,” the DNA evidence 

from the original test was admissible because the results from 

that test remained valid.

Later, in front of the jury, Takigawa testified that he 

initially identified at least three contributors on Gatorade bottles 

found in the blue bag but could draw no conclusions about the 

identities of those contributors. But when the tests were re-run 

using STRmix, the more sensitive test, both Gatorade bottles had 

identifiable three-contributor patterns in which defendant was 

one of the contributors.

As for the DNA sample taken from the handle of the blue 

bag, Takigawa testified that he initially identified four 

contributors, with defendant as one possible contributor. But 

when he re-ran the test using STRmix, the number of 

contributors increased to five, and no interpretation was possible 

due to complexity. Takigawa explained to the jury that the newer 

testing method did not invalidate the earlier findings.

2.3. The DNA evidence was not unduly confusing.

Defendant argues that the DNA evidence was too confusing 

and contradictory to be admitted, and that the court’s ruling 

allowed the prosecution to rely on the evidence that supported its 

case while disregarding the evidence that undermined it. We 

disagree. The results were not inconsistent, as defendant claims. 

They were simply different—and the differences were easily 

explained by the increased sensitivity of the STRmix 

methodology. 

Before adopting STRmix, Takigawa determined that 

defendant was one of four contributors to the DNA mixture on 

the handle of the blue bag. But the STRmix software was able to 
10

detect a fifth contributor—and the lab’s policies don’t allow it to 

analyze such complex results. Defendant wasn’t excluded from 

the mixture the second time; the sample was simply inconclusive.

For the Gatorade bottles, however, STRmix allowed 

Takigawa to determine that defendant contributed to each 

sample, a conclusion the earlier test was not sensitive enough to 

reach. Again, defendant had not been excluded under the earlier, 

less sensitive methodology; the results were simply inconclusive.

DNA evidence is inherently challenging, but courts 

regularly rely on juries to understand it—and Takigawa’s 

testimony was not markedly more confusing than the usual DNA 

evidence. As such, we hold that the court did not abuse its 

discretion in admitting the evidence.

3. Defendant forfeited his challenge to the fines and fees; 

counsel was not ineffective for failing to object. 

At sentencing, the trial court imposed a $300 restitution 

fine (§ 1202.4, subd. (b)), $30 court facilities assessment (Gov. 

Code, § 70373), and $40 court security fee (§ 1465.8). Citing 

Dueñas, in which our colleagues in Division Seven held that the 

restitution fine and court fees may not be imposed on a defendant 

who lacks the ability to pay them, defendant asks us to strike the 

restitution fine and fees. (See People v. Dueñas (2019) 30 

Cal.App.5th 1157.) 

Because Dueñas became final before he was sentenced in 

this case, we conclude defendant has forfeited this claim by 

failing to raise the issue below. (See People v. Aguilar (2015) 60 

Cal.4th 862, 864.) Nevertheless, defendant contends counsel 

provided constitutionally defective representation in failing to 

object. We disagree.
11

Under either the federal or state Constitution, the 

“benchmark for judging any claim of ineffectiveness must be 

whether counsel’s conduct so undermined the proper functioning 

of the adversarial process that the trial cannot be relied on as 

having produced a just result.” (Strickland v. Washington (1984) 

466 U.S. 668, 686 (Strickland).) To establish ineffective 

assistance of counsel, defendant must satisfy two requirements. 

(Id. at pp. 690–692.) 

First, he must show his attorney’s conduct was “outside the 

wide range of professionally competent assistance.” (Strickland, 

supra, 466 U.S. at p. 690.) Then, he must demonstrate that the 

deficient performance was prejudicial—i.e., there is a reasonable 

probability that but for counsel’s failings, the result of the 

proceeding would have been different. (Id. at p. 694.) “It is not 

sufficient to show the alleged errors may have had some 

conceivable effect on the trial’s outcome; the defendant must 

demonstrate a ‘reasonable probability’ that absent the errors the 

result would have been different.” (People v. Mesa (2006) 

144 Cal.App.4th 1000, 1008.) 

Claims of ineffectiveness must usually be “raised in a 

petition for writ of habeas corpus [citation], where relevant facts 

and circumstances not reflected in the record on appeal, such as 

counsel’s reasons for pursuing or not pursuing a particular trial

strategy, can be brought to light to inform” the inquiry. (People v. 

Snow (2003) 30 Cal.4th 43, 111.) “There may be cases in which 

trial counsel’s ineffectiveness is so apparent from the record that 

appellate counsel will consider it advisable to raise the issue on 

direct appeal. There may be instances, too, when obvious 

deficiencies in representation will be addressed by an appellate 
12

court sua sponte.” (Massaro v. United States (2003) 538 U.S. 500, 

508.) But those cases are rare.

Typically, if “the record does not shed light on why counsel 

acted or failed to act in the challenged manner, we must reject 

the claim on appeal unless counsel was asked for and failed to 

provide a satisfactory explanation, or there simply can be no 

satisfactory explanation. [Citations.]” (People v. Scott (1997) 15 

Cal.4th 1188, 1212.) These arguments should instead be raised 

on collateral review. (People v. Mendoza Tello (1997) 15 Cal.4th 

264, 266–267.)

To be sure, defendant was represented by the public 

defender in this case, and “public defender clients, all of whom 

have already been financially evaluated and found indigent by 

the court, are legally entitled to a presumption of indigence for 

most purposes. [Citation.]” (People v. Rodriguez (2019) 34 

Cal.App.5th 641, 645.) But “the Legislature has also recognized 

that a defendant’s financial circumstances may change.” (Ibid.)

And defendant’s ability to pay the $370 at issue here is 

fundamentally different than his ability to pay for a lawyer to 

represent him; assets that are insufficient to hire counsel may 

well be sufficient to pay the minimum fine and fees imposed in 

this case. Although the record before us contains no evidence on 

that point, defense counsel may have had information indicating 

that an ability-to-pay objection would be untenable. As such, 

because “the record does not shed light on why counsel” failed to 

object to the fine and fees in this case, we conclude defendant has 

not established that counsel was ineffective for failing to do so. 

(People v. Scott, supra, 15 Cal.4th at p. 1212.)
13

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J.

WE CONCUR:

EDMON, P. J.

DHANIDINA, J.