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People v. Ramirez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Apr 25, 2018
G054725 (Cal. Ct. App. Apr. 25, 2018)

Opinion

G054725

04-25-2018

THE PEOPLE, Plaintiff and Respondent, v. JESSIE ANTONIO RAMIREZ, Defendant and Appellant.

William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CF2258) OPINION Appeal from a judgment of the Superior Court of Orange County, Craig L. Griffin, Judge. Affirmed. William Paul Melcher, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Defendant Jessie Antonio Ramirez was convicted of second degree robbery and simple assault. On appeal, he contends that the trial court erred by denying his pretrial motion under Penal Code section 995 on the ground that there was insufficient evidence to hold him to answer to gang sentencing enhancement allegations. (All further statutory references are to the Penal Code.) Defendant argues that he suffered prejudice when the jury heard evidence of his membership in a criminal street gang.

We affirm. There was ample evidence presented at the preliminary hearing supporting the trial court's decision to hold defendant to answer on the gang sentencing enhancement allegations. The jury's ultimate not true findings on those allegations does not prove the allegations were improperly given to the jury to decide.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The facts in this section are drawn from testimony presented at the trial. Testimony from the preliminary hearing, which was challenged in defendant's section 995 motion, is presented separately in the discussion section.

On September 29, 2015, at about 7:30 p.m., Victor Vasquez, Sigifredo Loaiza, José Villa Gutierrez, and Victor Millian were vaping at a Thornton Park picnic table. Defendant and two other men approached the group; defendant asked if they had any marijuana and where they were from. Vasquez understood defendant to be asking about gang affiliation. Vasquez told defendant none of them was in a gang; at that point, Vasquez feared for his and his friends' safety because defendant was being aggressive and appeared to be a gang member. Loaiza was wearing a t-shirt with a Santa Ana city logo; defendant asked where he got the shirt and where he was from. Loaiza believed defendant was "hitting him up" and felt intimidated by defendant. Gutierrez also believed defendant was being aggressive and also felt intimidated. One of the men with defendant told Vasquez, Gutierrez, Loaiza, and Millian that defendant was on drugs and had a gun.

Defendant took the vape pen and two bottles of e-cigarette liquid off the picnic table and placed them in his pocket. Vasquez did not try to get his property back because he "didn't want to mess around with [defendant] because . . . his friend stated that he had a gun on him" and because Vasquez felt threatened by defendant. Gutierrez did not try to take the items back because he was "[r]eally scared" and thought defendant would hurt them.

Defendant began walking towards the parking lot, but turned around and said to Loaiza, "Fuck that, foo. I'm going to kill you." Millian and Gutierrez then left together for Gutierrez's car in the parking lot while Loaiza and Vasquez walked together in the opposite direction.

In the parking lot, defendant approached a passing minivan and yelled "[h]and over the keys" as he tried to open the driver's side door. The driver refused and told defendant she had her kids in the car. Defendant yelled back "[t]his is my hood" or "[g]et out of my hood." A man driving a separate car intervened, but was beaten up by defendant and his companions.

Santa Ana Police Officer Collin Reedy arrived at the scene and interviewed Vasquez, Gutierrez, Loaiza, and Millian. Gutierrez provided Reedy with a license plate number of the vehicle in which defendant left. Reedy traced the vehicle to a nearby apartment complex. Reedy made contact with defendant at the complex and detained him for identification. Defendant told Reedy, "I didn't take anything forcefully from them." Defendant was arrested after being identified by Vasquez, Gutierrez, Millan, and Loaiza as the person who took the vape pen and e-cigarette liquid bottles.

Santa Ana Police Detective Gerardo Zuniga testified that he had come into contact with defendant in 2012 while Zuniga was assigned to the Gang Suppression Unit. Zuniga again contacted defendant in connection with the investigation of this case. At that time, defendant was wearing an "M" belt buckle. During a search of defendant's home, Zuniga uncovered a photograph of defendant making an "M" shape with his hands, and clothing in the colors associated with the Middle Side criminal street gang (Middle Side). These indicia of gang membership led Zuniga to determine that defendant was a member of Middle Side; Zuniga issued a STEP notice to defendant.

When a police officer gives someone a STEP notice, the officer reads the definition of a criminal street gang found in the Penal Code, lists the primary activities of street gangs, and asks the person to sign the notice.

Santa Ana Police Officer Jorge Lopez of the Gang Suppression Unit testified as a gang expert. Lopez testified that traditional Hispanic gangs in Santa Ana are "generational and primarily . . . territorial," operating within and claiming a certain geographic area of the city. Lopez testified that violence is an important aspect of gang subculture; the more violent or frequent the crimes committed by the gang or one of its members, the more respect and status the gang gets in the community and the more respect and status the member gets within the gang. Gang members "hit-up" or confront rival gang members by saying "where are you from" as a challenge and as a show of disrespect. Gang members also tell non-gang members "get out of my hood," to instill fear and as a claim of territory.

Lopez testified that the Middle Side's principal criminal activities are narcotics sales, possession of firearms, robberies, assaults, and graffiti. In Lopez's opinion, based on a hypothetical arising from facts similar to those in this case, the crimes of robbery, assault, and attempted carjacking would have been committed for the benefit of and to promote Middle Side. Lopez further opined that the individual gang member involved in such hypothetical crimes would benefit by having his status elevated within the gang.

A felony complaint was filed alleging second degree robbery (§§ 211, 212.5, subd. (c); count 1), and attempted carjacking (§§ 664, subd. (a), 215, subd. (a); count 2). The complaint also alleged that defendant (1) committed the charged crimes for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of that gang (§ 186.22, subd. (b)(1)), (2) had a prior strike conviction (§§ 667, subds. (d) & (e)(1), 1170.12, subds. (b) & (c)(1)), and (3) had previously been convicted of a serious felony (§ 667, subd. (a)(1)). After a preliminary hearing, defendant was held to answer to all charges and sentencing enhancements.

A felony information added a charge of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3).

A jury found defendant guilty of count 1; not guilty of count 2; and not guilty of count 3, but guilty of the lesser included offense of simple assault. The jury found the gang enhancements to be not true. After a bifurcated bench trial, the trial court found the prior conviction allegations true. The trial court sentenced appellant to state prison for a total of nine years—the low term of two years for robbery (doubled due to the prior conviction), six months for assault (to be served concurrently), and a five-year enhancement for the serious prior felony.

DISCUSSION

I.

BACKGROUND AND STANDARD OF REVIEW

After the preliminary hearing, defendant filed a section 995 motion arguing that the evidence presented at the hearing was insufficient to support the gang enhancement allegations. The trial court denied defendant's motion. On appeal, defendant argues the court erred by denying the motion, resulting in the admission of prejudicial gang evidence at trial.

Under section 995, a defendant may move to set aside the information due to the insufficiency of the evidence presented at the preliminary hearing. (§ 995; Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 269.) An information will not be set aside if there is "'"some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it."'" (People v. Arjon (2004) 119 Cal.App.4th 185, 193.)

On appeal, we directly review the trial court's decision, made after the preliminary hearing, that there was cause to believe defendant was guilty of a public offense, and we ignore the trial court's ruling on the section 995 motion. (People v. Bautista (2014) 223 Cal.App.4th 1096, 1101.) "'"Our task is to determine whether the magistrate, acting as a person of ordinary prudence, could conscientiously entertain a reasonable suspicion that the defendant committed the crime charged. [Citation.] To that end, we draw every legitimate inference supported by the competent evidence and refrain from substituting our judgment for that of the magistrate. If the record demonstrates some showing of every element of the charge [citation], we must affirm the magistrate's ruling denying the motion to set the charge aside."'" (People v. Kongs (1994) 30 Cal.App.4th 1741, 1748; see People v. Osband (1996) 13 Cal.4th 622, 690.)

The complaint charged defendant with second degree robbery and attempted carjacking. Both offenses were allegedly committed for the benefit of, at the direction of, or in association with Middle Side, with the specific intent to promote, further, and assist in criminal conduct by members of that gang within the meaning of section 186.22, subdivision (b)(1).

II.

PRELIMINARY HEARING TESTIMONY

At the preliminary hearing, Reedy testified that he interviewed Vasquez on the night of the incident. Vasquez told him that defendant had approached Vasquez and his friends and asked Loaiza "where he was from." Defendant asked the group "[w]hat were they doing at the park." Defendant then grabbed a vape pen and two e-cigarette liquid bottles belonging to Vasquez and placed them in his pocket. Vasquez told Reedy he was too afraid to ask for his property back because defendant and his companions "appeared to be gang members," and one of the companions told Vasquez that defendant "was tweaked out, and that he had a gun on him and not to do anything." Vasquez also told Reedy that as defendant was walking away, Vasquez heard a woman scream, "What are you doing? I have kids in the car," to which someone, who Vasquez believed was defendant, replied, "This is mine. Get the fuck out of my hood."

Reedy also testified that he interviewed Gutierrez, who confirmed that defendant asked Loaiza "where he was from." Gutierrez interpreted that question as defendant "being aggressive, asking him what gang he was from." Gutierrez saw defendant take Vasquez's vape and e-cigarette liquid bottles and put them in his pocket; Gutierrez did not try to get the property back because defendant was "tweaked out" and had a gun.

Reedy later detained defendant. While in the patrol car, defendant spontaneously said, "I didn't take anything by force."

At the hearing, Lopez testified that he had at least 15 years of experience as a peace officer dealing with gangs and gang members in one way or another. Throughout his career, Lopez had talked to over 1,000 gang members or gang associates and had testified more than 20 times as a gang expert. His current assignment was to review all police reports involving crimes with a gang connection to determine whether a gang sentencing enhancement should be alleged. When Lopez makes a recommendation regarding the filing of gang sentencing enhancement allegations, he considers the following: (1) police reports where an individual has been contacted and identified as a gang member; (2) field interview cards; (3) STEP notices; and (4) certified court documents regarding convictions of gang members.

A field interview card is a card with information about gangs obtained during an interview with a suspected gang member or associate. The card includes the following: the date and time of the interview, the reason for the contact, and personal information about the person interviewed, including name, address, place of employment, home phone number, cell phone number, type of car owned, and description of tattoos. --------

Lopez had contacted more than 500 gang members in his previous work as a gang suppression officer. He was assigned to investigate the criminal activity of specific gangs and had served as an agent in the execution of many gang-related search warrants. He had also assisted in conducting parole and probation searches of admitted or suspected gang members, and had recovered gang indicia and contraband that suggested the individuals were committing crimes for the benefit of a criminal street gang.

Lopez was familiar with the gangs in Santa Ana, the most prevalent of which are traditional Hispanic street gangs. These gangs tend to be territorial and generational, and often wear specific colors or sports memorabilia as a sign of gang membership. Lopez had investigated "[w]ell over 150" gang crimes in Santa Ana, and had read more than 200 police reports relating to Santa Ana criminal street gangs.

Before working in Santa Ana, Lopez had worked in the men's central jail in Los Angeles where he was responsible for interviewing inmates regarding their gang affiliation to prevent rival gang member assaults within the jail. In that capacity, he spoke with many admitted and suspected gang members and learned about the crimes they committed, how they committed those crimes, and how to identify gang tattoos.

Lopez testified regarding his familiarity with the definition of a criminal street gang in the Penal Code and with street gang culture. Lopez explained the meaning of respect, disrespect, and intimidation within a gang, and described the meaning of the term "hit up."

Lopez was aware of Middle Side; he had investigated at least five crimes committed by that gang's members, and reviewed more than 20 reports regarding such crimes. Lopez had spoken with other officers regarding the gang, and had spoken with members and associates of the gang regarding "aspects of the criminal street gang culture." Lopez testified that, as of September 2015, Middle Side was an ongoing group or association with three or more members that used common identifying signs and symbols, and engaged in a pattern of criminal activity. The gang's primary activities included felony possession of firearms and the sales of narcotics.

Lopez also testified he was familiar with defendant based on a background investigation he had conducted, reports he had reviewed, and he had contact with defendant in another case. Based on Lopez's personal knowledge of defendant's gang membership and defendant's admission thereto, gang indicia he had discovered at defendant's home, reports he had read, the facts of this case, and a court-certified document related to a previous conviction, Lopez opined that defendant was an active member of Middle Side in September 2015. Further, Lopez opined that, based on a hypothetical set of facts mirroring the facts of this case, the crimes were committed for the benefit of or to promote, further, or assist in criminal conduct by a criminal street gang.

This evidence was more than sufficient to hold defendant to answer for the gang sentencing enhancement allegations; the trial court did not err in denying the section 995 motion. The additional testimony to which defendant cites on appeal does not affect our analysis. Although the crimes in this case took place outside Middle Side's claimed territory, Lopez testified gang members commit crimes outside of their claimed territories. While defendant attempts to argue that Lopez's opinion was based solely on the fact defendant "hit up" Loaiza, a review of Lopez's full testimony at the preliminary hearing, as detailed ante, shows this is not true.

DISPOSITION

The judgment is affirmed.

FYBEL, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.


Summaries of

People v. Ramirez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Apr 25, 2018
G054725 (Cal. Ct. App. Apr. 25, 2018)
Case details for

People v. Ramirez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JESSIE ANTONIO RAMIREZ, Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Apr 25, 2018

Citations

G054725 (Cal. Ct. App. Apr. 25, 2018)