Opinion
A168362
04-30-2024
THE PEOPLE, Plaintiff and Respondent, v. MARTIN STEVAN RAMIREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. Nos. SCR752501-1, MAN-CR-2023-4220)
HITE, J. [*]
Martin Stevan Ramirez appeals from his sentence of three years and eight months in state prison after a revocation hearing. Ramirez's appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) summarizing the facts and procedural history and asking this court to independently review the record to identify any issues warranting review. Ramirez was advised of his right to file a supplemental brief but has failed to do so.
Finding no arguable issues on appeal, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 1, 2022, Ramirez pled no contest to three felony counts of violating Penal Code section 487, subdivision (c). Ramirez also admitted one prior felony conviction within the meaning of sections 667, subdivisions (d) and (e), and 1170.12, subdivisions (b) and (c). In addition, he admitted an aggravating sentencing factor alleged in the amended information that his prior convictions were numerous or of increasing seriousness. Ramirez's plea agreement provided that if his Romero motion were denied, his three-year upper term sentence for violating section 487, subdivision (c) would be doubled. However, if the Romero motion were granted, the trial court would sentence Ramirez to probation, which would include his participation in and completion of the Delancey Street residential treatment program, and would require him to waive any credits that he would be entitled to while in the program.
All undesignated statutory references are to the Penal Code unless otherwise stated.
See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Ramirez was advised of his rights in court and signed a written plea form acknowledging and waiving his constitutional and statutory rights. The trial court accepted the no-contest pleas and admissions.
On August 12, 2022, the trial court granted Ramirez's Romero motion and ordered the prior serious felony conviction admitted during the plea stricken for purposes of sentencing. On this same date, the trial court sentenced Ramirez to formal probation for a period of two years based on standard terms and conditions, including the placement in Delancey Street and a waiver of 170 actual days and 170 conduct credits. The trial court granted the People's motion to dismiss the remaining counts, allegations, and enhancements. ~(1CT 57)~
On December 19, 2022, a petition for revocation of probation was filed on the grounds that Ramirez had left Delancey Street two weeks after arriving and had not contacted the probation department. On December 20, 2022, the trial court summarily revoked Ramirez's probation and issued a bench warrant for his arrest.
On June 6, 2023, Ramirez was returned in custody to Sonoma County Superior Court from a section 1381 demand. A second petition for revocation of probation was filed on the grounds that Ramirez had been arrested on April 11, 2023, in San Joaquin County and subsequently convicted of a violation of section 487, subdivision (c), and sentenced to 16 months in state prison. On June 9, 2023, the trial court summarily revoked Ramirez's probation and recalled the warrant previously issued.
Penal Code section 1381 states in relevant part: "Whenever a defendant has been convicted, in any court of this state, of the commission of a felony or misdemeanor and has been sentenced to and has entered upon a term of imprisonment in a state prison . . . for a period of more than 90 days . . . and has entered upon his or her term of commitment, and at the time of the entry upon the term of imprisonment . . . there is pending, in any court of this state, . . . any criminal proceeding wherein the defendant remains to be sentenced, the district attorney of the county in which the matters are pending shall bring the defendant . . . for sentencing within 90 days after the person shall have delivered to said district attorney written notice of the place of his or her imprisonment or commitment and his or her desire to be brought . . . for sentencing unless a continuance beyond the 90 days is requested or consented to by the person, in open court, and the request or consent entered upon the minutes of the court in which event the 90-day period shall commence to run anew from the date to which the consent or request continued . . . sentencing."
On July 11, 2023, the trial court revoked and terminated Ramirez's probation as unsuccessful. Based on its review of the probation report and the initial negotiated disposition, the trial court found that Ramirez had admitted a sentencing factor in aggravation and stipulated to the upper term, and that the factors in aggravation outweighed the factors in mitigation. Based on these findings, the trial court sentenced Ramirez on count 3, a violation of section 487, subdivision (c), to the aggravated term of three years in state prison. The trial court imposed three-year terms for counts 4 and 5, violations of section 487, subdivision (c), but stayed them pursuant to section 654.
The trial court then resentenced Ramirez in the unrelated San Joaquin County case to a consecutive term of eight months in state prison (one-third the middle term of two years on the § 487, subd. (c), conviction). The total sentence was three years and eight months in state prison. The trial court imposed fines, fees, and assessments, including the $300 parole revocation fine pursuant to section 1202.45, but stayed that fine pending successful completion of parole. The trial court awarded Ramirez 14 days of actual credit and 14 days of conduct credit for a total of 28 days of presentence custody credit pursuant to section 4019.
On January 17, 2024, in response to a request by Ramirez's counsel pursuant to section 1237.1 and People v. Fares (1993) 16 Cal.App.4th 954, an amended abstract of judgment was filed reflecting Ramirez's credit for having served 92 actual days in custody in the San Joaquin County case.
Section 1237.1 states, "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court, which may be made informally in writing. The trial court retains jurisdiction after a notice of appeal has been filed to correct any error in the calculation of presentence custody credits upon the defendant's request for correction."
On July 11, 2023, Ramirez filed a timely notice of appeal.
DISCUSSION
Ramirez's counsel filed his Wende brief on March 13, 2024. We have received no supplemental filing from Ramirez. Ramirez's notice of appeal is from a final judgment after his no-contest pleas and is based on the sentence or other matters occurring after the pleas pursuant to section 1237 and California Rules of Court, rule 8.304(b)(2)(B). An order revoking probation is appealable as an order made after judgment affecting the substantial rights of the party. (§ 1237, subd. (b); People v. Vickers (1972) 8 Cal.3d 451, 453, fn. 2.) The trial court's probation hearing and sentence were appropriately supported by the evidence and without any indication of an abuse of discretion. After reviewing the entire record on appeal pursuant to Wende, supra, 25 Cal.3d 436, we find no issues requiring further briefing.
DISPOSITION
The judgment is affirmed.
We concur.
BROWN, P. J., GOLDMAN, J.
[*] Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.