Opinion
F079490
02-11-2020
THE PEOPLE, Plaintiff and Respondent, v. AMADO RAMIREZ ORTIZ, Defendant and Appellant.
Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. MCR057437A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Madera County. Joseph A. Soldani, Judge. Athena Shudde, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and Snauffer, J.
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STATEMENT OF APPEALABILITY
This is an appeal from a judgment that finally disposes of all the issues between the parties. (Cal. Rules of Court, rule 8.204(a)(2)(B).) It follows a judgment of conviction after a jury trial and is authorized by Penal Code section 1237 and rule 8.304 of the California Rules of Court.
All unlabeled statutory references are to the Penal Code.
STATEMENT OF THE CASE
On April 12, 2019, the Madera County District Attorney filed a third amended information charging Amado Ramirez Ortiz with second-degree robbery (§ 211; counts 1, 2 & 4); attempted second-degree robbery (§§ 664/211; count 3); and possession of a controlled substance, a misdemeanor (Health & Saf. Code, § 11377, subd. (a); count 5). Counts 1, 2 and 4 further alleged that Ortiz personally used a firearm or personally used and discharged a firearm in the commission of the offenses. (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b)-(c).)
Case No. MCR059096 had previously been consolidated into No. MCR057437A by court order on August 24, 2018. --------
On April 15, 2019, Ortiz was arraigned. He entered a plea of not guilty to the substantive offenses and denied all the special allegations.
Ortiz was tried by a jury. On April 24, 2019, he was found guilty as charged and all special allegations were found true.
On May 22, 2019, Ortiz was sentenced to 37 years and eight months in prison, calculated as follows:
• on count 4, robbery, the principal term: the upper term of five years, enhanced by 20 years for the firearm use allegation;Sentence on the remaining allegations was imposed and stayed. On the misdemeanor possession offense in count 5, probation was denied and Ortiz was sentenced to county jail for 364 days, with credit for time served.
• on each of counts 1 and 2, robbery, consecutive terms of one year (one third the three-year middle term), plus three years and four months for the firearm use enhancement (one-third of 10 years); and
• on count 3, attempted robbery, a consecutive term of eight months, enhanced by three years and four months for the firearm use allegation.
Ortiz filed a timely notice of appeal on June 14, 2019.
STATEMENT OF FACTS
Prosecution Case
1. Count 1
On August 26, 2017, at approximately 11:00 a.m., J.S. was inside her truck on D Street in Madera when Ortiz approached her. He asked if she could jump start his car, which was parked around the corner. J.S. agreed and Ortiz entered her vehicle.
When J.S. did not see Ortiz's vehicle after two turns, she told him to get out of the car. Ortiz responded by lifting his shirt and showing her a gun in his waistband. He told her she would go wherever he told her to go.
Scared, J.S. tried to get out of her car. Ortiz grabbed her arm and told her he would kill her if she moved. He removed the semiautomatic gun from his waistband and demanded money. J.S. gave him her wallet containing "maybe $86"; Ortiz grabbed the wallet and exited the truck. He again told J.S. not to move.
Within a half an hour, J.S. drove to the police station and reported the incident. About a month later, J.S. selected Ortiz's picture from a photographic array and identified him as the person who entered her truck and pointed the gun at her.
2. Count 2
On August 27, 2017, between 2:40 p.m. and 3:20 p.m., V.S. was working alone at a cellular phone store in Madera when a male with a bandana covering his face entered the store, pointed a long, gray gun at her, and demanded all the money in the cash register. V.S. gave the man the $100 to $104 in the cash register. The man took the money, told V.S. not to call the police, and walked out of the store. Shortly after the man left, a gray car sped away from the front of the store. V.S. did not see the man enter the car. She called the police.
The incident was captured on the store's surveillance video system.
3. Count 3
On August 28, 2017, at approximately 5:00 p.m., a man wearing a "sweater [with] a hat" and black eyeglasses entered a market in Madera, pointed a long-nosed gun at the clerk, T.A., and demanded money. The man spoke English, which is not T.A.'s native language. T.A. raised his hands in the air.
The man left the store without any money. He entered a brownish colored Nissan occupied by other people and the vehicle drove away.
The store's surveillance system recorded the incident.
4. Count 4
On September 7, 2017, at approximately 9:26 a.m., a blue Nissan Altima drove up to the front of a different market in Madera and two masked men exited the vehicle and entered the market. One of the men pointed a gun at the owner, M.M., and demanded all the money in the register. When M.M. put his hands up, he grazed his hand with the gun. It was not loaded. As soon as the gunman racked a round, M.M. opened the register and gave the gunman the contents, between $1,800 and $2,000. The gunman demanded more money and M.M. said he did not have any more. The gunman said he would kill M.M. if he did not give him more money. M.M. told the man to go ahead and shoot him. The gunman fired. The bullet went into the wall.
The incident, which lasted 20 to 30 seconds, was captured on the store's surveillance camera system.
Police found a 9-millimeter shell casing on the floor by the cash register and a bullet hole in the wall behind the casing. Although only a fragment of a bullet was recovered, the bullet strike was consistent with a 9-millimeter bullet.
A few weeks later, M.M. identified Ortiz as the gunman by selecting his picture out of a photographic array.
5. Count 5
Ortiz was arrested on November 8, 2017, following a vehicle stop. Inside the car's ashtray was .712 grams of methamphetamine, a usable quantity.
6. Police Investigation
After the first two robberies, the Madera Police Department posted portions of the surveillance videos on the department's Facebook page, asking for the public's assistance in identifying the robbers. On September 13, 2017, an anonymous caller provided a location of the possible suspects. That location, on Bilbao Court, was near all the robberies, which occurred within a two mile radius of each other.
During the ensuing surveillance at Bilbao Court, Detective Hector Garibay made contact with R.I. R.I. said Ortiz was the person depicted in the video stills from the first market and the cellular store. R.I. also identified Ortiz's vehicle as a gray or silver Nissan Altima. R.I. said Ortiz and his brother stayed on R.I.'s property, living in the Nissan. They entered his house occasionally to use the facilities.
However, at trial, R.I. recalled talking to police and seeing some pictures, but did not recall having identified Ortiz in any of the pictures, or identifying Ortiz's vehicle, or explaining Ortiz's living arrangements. R.I.'s failure of recollection was impeached by Detective Garibay's testimony regarding his prior statements.
The long-barreled handgun used in the robberies of the first market and the cellular store was not the same gun as used in the robbery of the second market.
Defense Case
Testifying on his own behalf, Ortiz denied having committed any of the robberies. He admitted having been in the second market and having seen M.M.; he had been there over 50 times because he drove his wife there to cash her checks. He also had been at the first market on various occasions.
Ortiz denied owning a Nissan Altima. Although he was stopped in 2012 while driving a Nissan Altima, the car belonged to his cousin. He previously owned a 2006 Chevy Colorado. About a month before his arrest he bought a BMW Z4. At the time of the robberies, he lived in the house on Bilbao Court with his wife. He had a rental agreement to live there.
Ortiz denied owning any firearms in the United States. On cross-examination, he admitted that his mother had a .22-caliber handgun in Mexico.
On cross-examination, Ortiz denied that he was depicted in any video stills from the second market. Ortiz said the person in the video with the gun looked like his brother. He also denied he was the person in the first market's video surveillance.
APPELLATE COURT REVIEW
Ortiz's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating Arias was advised he could file his own brief with this court. By letter on October 4, 2019, we invited Arias to submit additional briefing. To date, he has not done so.
After independently reviewing the entire record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.