People v. Orozco CA1/1

Filed 2/22/21 P. v. Orozco CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A158507 v. SELSO ELYSAO OROZCO, (Sonoma County Super. Ct. No. SCR721077-1) Defendant and Appellant.

After defendant Selso Elysao Orozco entered an open plea of no contest to several charges and admitted multiple firearm enhancements, the trial court sentenced him to 23 years in state prison. On appeal, defendant contends that because his attorney was not present at his postconviction, presentence interview, his constitutional rights against self-incrimination and to counsel were violated. Alternatively, he maintains he received ineffective assistance of counsel when his attorney failed to attend the interview. We affirm.

1

BACKGROUND1 Defendant was charged in an 11-count amended complaint2 based on events occurring over a three-day period in October 2018. Prior to the preliminary hearing, defendant entered an open plea of no contest to the charges—leaving sentencing to the discretion of the court. He also admitted various firearm allegations and admitted he had suffered a prior prison sentence and conviction. The court then set the matter for sentencing, ordered a presentence report, and informed counsel of the time period for filing sentencing memoranda. In defendant’s interview with probation, defendant and the probation officer “reviewed the crime reports,” and defendant made several statements regarding the crimes, which were summarized in the probation officer’s report and submitted to the court for consideration at sentencing. Among other things, defendant stated “he did not recall much, if any, of the circumstances” of the crimes because he was “ ‘blacking out a lot at that time.’ ” He acknowledged his drug addiction and stated “these crimes were

1 We relate only those facts relevant to the issues on appeal. Because defendant pled no contest before the preliminary hearing, any relevant facts related to the convictions are taken from the presentence probation report. 2 Defendant was charged with one count of felony first degree automated teller machine robbery (Pen. Code, § 211—count 1), five counts of felony second degree robbery (id., § 211—counts 2-4, 7-8), two counts of felony child endangerment (id., § 273a, subd. (a)—count 5-6), one count of felony possession of a firearm by a felon (id., § 29800, subd. (a)(1)—count 9), one count of felony possession of ammunition (id., § 30305, subd. (a)(1)—count 10), and one count of misdemeanor identity theft (id., § 530.5, subd. (a)— count 11). It was further alleged as to counts 1 through 4, 7, and 8 that defendant personally used a firearm pursuant to Penal Code sections 12022.53, subdivision (b) and 1203.06, subdivision (a)(1) and as to counts 5 and 6 pursuant to Penal Code section 12022.5, subdivision (a). The complaint also alleged defendant had suffered a prior conviction and prison sentence.