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Court of Appeal:
Failed Tactical Decision Didn’t Render Lawyer Ineffective
Justice Wiley Says Counsel’s Decision Not to Oppose Admission of Co-Defendant’s Confession Can’t Be Faulted, Explaining That Criminal Defense Lawyer Must Take a ‘Long Shot’ When It’s the ‘Only Shot’ Feasible
By a MetNews Staff Writer
A man convicted of murder and attempted murder has failed in his effort to persuade Div. Eight of the Court of Appeal for this district that he was denied the effective assistance of counsel at trial because the lawyer did not object to the admission into evidence of a confession by the actual shooter.
Justice John Shepard Wiley Jr. authored the opinion which says the trial performance of San Clemente attorney Michael R. Balmer II. who represented defendant Michael Orozco, “was, at the very least, competent.”
On appeal, Orozco’s appointed lawyer, Patricia S. Lai of San Jose, faulted Balmer for not seeking suppression of the confession, which had been ruled inadmissible at the preliminary hearing.
“But this experienced trial lawyer was following a careful defense strategy that was Orozco’s best defense,” Wiley said of Balmer’s representation, adding:
“On the record at trial, Orozco personally agreed with his lawyer’s plan. His appellate argument to the contrary is not even 20-20 hindsight, for even in hindsight Orozco’s appeal fails to identify some better strategy than the one his trial lawyer pursued.”
As Wiley sized it up:
“Orozco’s trial problem was not a faulty trial lawyer. The problem was overwhelming proof of guilt. This challenging situation left his experienced attorney searching for the least bad way to cope with what was, for Orozco, a disastrous predicament of his own making.”
Prosecution’s Evidence
The triggerman, Martinez Garibo, fired from a vehicle owned by Orozco. In incidents minutes apart, he shot two members of a rival gang, one fatally.
Orozco was present at the time of both crimes, when police arrived, he attempted to conceal a gun and a cartridge magazine.
Wiley wrote:
“Faced with this tsunami. Orozco’s attorney decided the best hope was to argue Orozco was too intoxicated to form a criminal intent: that he was too drunk to drive his own car. The Martinez Garibo confession gave some, albeit slim, support for the argument Orozco was asleep in a drunken stupor the whole time.
“On appeal, Orozco’s appellate counsel identifies no better approach to the case. No superior alternative is apparent to us.
“This defense theory was the least unattractive approach among even less plausible alternatives. It was the best reaction to a bad situation.
“It is effective assistance of counsel to take a long shot when it is your only shot.”
Conspiracy Conviction
While Wiley’s opinion upholds Orozco’s convictions of murder and attempted murder and Los Angeles Superior Court Judge Roger Ito’s sentence of 22 years to life in prison, it reversed a conviction for conspiracy to commit murder. The sentence on that count was suspended.
The justice declared:
“The trial court ordered the addition of this count on the day of trial, but the preliminary hearing gave Orozco no proper notice of the new charge.”
He recited that “[a] defendant… cannot be prosecuted for an offense not shown by the evidence at the preliminary hearing or not arising out of the transaction upon which the commitment was based.”
With Garibo’s confession suppressed at the preliminary hearing, he explained, there was no evidence presented of Orozco having entered into an agreement with any of three other gang member with whom he met to commit or try to effect a homicide. Wiley remarked that “no evidence supported the notion that, each and every time one gang member meets others, they inevitably murder someone.”
Balmer commented yesterday:
“I appreciate that the court recognized the dire straits posed by the evidence in this case. I also appreciate the recognition that Mr. Orozco received the best defense possible under the circumstances.”
The case is People v. Orozco, 2025 S.O.S. 2455.
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