Opinion
D072667
07-26-2018
THE PEOPLE, Plaintiff and Respondent, v. RICARDO RAMIREZ, Defendant and Appellant.
Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JCF34130) APPEAL from a judgment of the Superior Court of Imperial County, Poli Flores, Jr., Judge. Affirmed. Pauline E. Villanueva, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
While on probation for a 2014 domestic violence incident involving his then-wife (Victim 1) to which he pleaded no-contest, Ricardo Ramirez was arrested in 2017 for another domestic violence incident involving his new wife (Victim 2). Ramirez appeals from a judgment entered after the trial court revoked his probation in the 2014 matter based on the 2017 incident, and sentenced him to 16 months in county prison. Appointed appellate counsel filed a brief presenting no argument for reversal, but inviting this court to review the record for error in accordance with People v. Wende (1979) 25 Cal.3d 436 (Wende). Ramirez has not responded to our invitation to file a supplemental brief. After having independently reviewed the entire record for error as required by Anders v. California (1967) 386 U.S. 738 (Anders) and Wende, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Underlying Conviction
Stemming from a domestic violence incident in late 2014 involving Victim 1, Ramirez was charged with inflicting corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), false imprisonment by violence (§ 236), and interference with a wireless communication device to prevent the summoning of assistance (§ 591.5). As part of a plea agreement, Ramirez pleaded no-contest to the false imprisonment charge in exchange for dismissal of the remaining charges.
Statutory references are to the Penal Code unless otherwise noted.
In a presentencing interview with the probation officer, Ramirez described the underlying incident. He "found text messages in his wife's cell phone of her texting with another man," which caused him to "los[e] control of his emotions." Ramirez "admitted kicking her, breaking her prescription sunglasses, and breaking his wife's cell phone as he threw it to the ground." Victim 1 told the probation officer "she was diagnosed with severe depression . . . as a result of the incident."
The trial court placed Ramirez on three years' formal probation, subject to "standard d[omestic] v[iolence] terms." One condition required that Ramirez obey all federal, state, and local laws.
Probation Revocation Proceedings
In early 2017, the People filed a petition for revocation of Ramirez's probation, asserting he violated the terms of his probation by committing another instance of domestic violence during which he inflicted corporal injury on a cohabitant, falsely imprisoned the victim, and resisted a peace officer (§ 148). The People also filed a new criminal case charging Ramirez with these offenses.
Officer Alfonso Martinez of the Westmoreland Police Department was the sole witness at the probation revocation hearing, which, by agreement, also served as the preliminary hearing on the new charges. After 10:00 p.m. on January 7, 2017, dispatch sent the officer to an apartment complex in response to a call regarding "a female being battered." When Officer Martinez arrived on scene, the neighbor who had called the police informed him she had been sleeping in her bedroom when she heard the neighbors (Ramirez and Victim 2) arguing; "it got physical"; and she could hear Victim 2 "getting thrown against the wall." After about 15 or 20 minutes of this, the neighbor finally called the police when she heard Victim 2 "shou[ting] out 'suéltame,' which in English means 'let me go.' "
As Officer Martinez approached Ramirez's apartment unit, he heard an adult female crying loudly inside. After repeatedly identifying himself as a police officer and directing Ramirez to open the door, Martinez kicked in the front door and entered the apartment unit with his gun drawn.
Inside, the officer observed Ramirez standing about an arm's length from Victim 2 in an interior hallway. Ramirez was positioned between Victim 2 and the hallway entrance such that "he was preventing her movement" so "she couldn't come to the door." Victim 2 was crying hysterically and shielding her face with her hands. Officer Martinez asked Ramirez at least seven times to come to the door. After the seventh or eighth request, Ramirez finally complied. The officer then ordered Ramirez to get on his knees and put his hands behind his back. When Ramirez still had not complied after being instructed four or five times to do so, Officer Martinez "had to use force" to take Ramirez into custody. The officer took Ramirez to a patrol car, where a responding deputy monitored Ramirez.
Officer Martinez returned to Victim 2, who was crying and hyperventilating. The officer observed she had fresh bruises on her right wrist, fresh scratches and bruises on her right forearm, and redness on her right cheek. The officer photographed Victim 2's injuries, and the photos were introduced as exhibits at the hearing.
Victim 2 told Officer Martinez what had just happened. She and Ramirez had been drinking beer; he accused her of cheating; when she denied it, he slapped her; he grabbed her by the legs and dragged her off the bed, causing her to fall to the floor; she ran to the bathroom, where the argument continued and Ramirez slapped her again; and she slapped back in self-defense. Victim 2 said a similar incident had happened once before in Mexico, but Officer Martinez did not recall when that incident occurred.
Ramirez's counsel objected on hearsay grounds to Officer Martinez's recitation of Victim 2's statement. The court overruled the objection, finding the statement fell within the excited utterance exception to the hearsay rule. (Evid. Code, § 1240.)
Officer Martinez also testified about his post-Miranda conversation with Ramirez. When asked why he did not open the door when commanded, Ramirez responded, " 'I was trying to calm her down.' " When asked to explain Victim 2's injuries, Ramirez "stayed quiet. He just looked at [Officer Martinez]."
Miranda v. Arizona (1966) 384 U.S. 436. --------
During argument, defense counsel noted Victim 2 had not testified. Counsel expressed his belief that "her testimony is absolutely necessary" because, without it, the court was left with only Officer Martinez's hearsay. Defense counsel cautioned the court to "very carefully determine whether" this violated Ramirez's right of confrontation as elucidated in Crawford v. Washington (2004) 541 U.S. 36.
In response, the prosecutor argued Officer Martinez's testimony reflected his firsthand observations of the aftermath of the domestic violence incident, which constituted circumstantial evidence of a probation violation. This was further supported by the similarity of this incident to the underlying 2014 incident. Alternatively, the prosecutor argued Officer Martinez was a percipient witness to Ramirez's act of resisting arrest, which was an independent basis for finding a probation violation.
At the end of the hearing, the trial court found Ramirez had violated his probation conditions by engaging in domestic violence and resisting arrest, revoked probation, and set a sentencing hearing. As to the domestic violence and false imprisonment allegations, the court relied on Officer Martinez's firsthand observations of the scene and Victim 2's physical and emotional condition. The court noted Victim 2's statement merely "corroborate[d] the officer's observations." Notably, the court found that "even if you excise the statement she made, there's still enough evidence to sustain the petition for purposes of the violation of probation."
The court was also "satisfied that Count 3 [resisting arrest] also was committed by [Ramirez] for purposes of the violation of probation. [¶] This was a situation where he did resist arrest. The officer responded quickly, enters the premises, the fight is ongoing, and the defendant didn't comply with his commands at a certain point."
Sentencing
At the subsequent sentencing hearing, the court considered the probation department's report, a transcript of Victim 1's testimony about the underlying 2014 incident, and Victim 1 made an in-person victim impact statement. The trial court denied Ramirez further probation and sentenced him to the low term of 16 months in county prison.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings in the trial court. Counsel presented no argument for reversal but invited this court to review the record for error in accordance with Wende, supra, 25 Cal.3d 436.
Counsel has identified the following issue that "might arguably support the appeal" (Anders, supra, 386 U.S. at p. 744):
"Whether the trial court erred in overruling appellant's objection and admitting [Victim 2]'s [sic] statements to Officer Martinez in the violation of probation hearing; whether any such error was prejudicial in light of Officer Martinez's testimony."
After we received counsel's brief, we gave Ramirez an opportunity to file a supplemental brief. He has not responded.
A review of the record pursuant to Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, including the issue suggested by counsel, has disclosed no reasonably arguable appellate issue. Probation revocation proceedings are not governed by confrontation clause principles but, rather, by due process principles. (People v. Johnson (2004) 121 Cal.App.4th 1409, 1411 ["Probationers' limited right to confront witnesses at revocation hearings stems from the due process clause of the Fourteenth Amendment, not from the Sixth Amendment."].) Thus, testimonial hearsay is admissible on a showing of witness unavailability or a finding of other good cause. (People v. Arreola (1994) 7 Cal.4th 1144, 1159-1160.) Confrontation clause principles are likewise inapplicable in sentencing proceedings. (See People v. Cain (2000) 82 Cal.App.4th 81, 86 ["California courts have repeatedly held that the defendant does not have a Sixth Amendment right of confrontation at the sentencing stage of a criminal prosecution."].) Erroneous admission of testimonial hearsay is subject to review for prejudicial error. (Arreola, at p. 1161.)
Even assuming the court erred by allowing Officer Martinez to testify about the contents of Victim 2's statement without the court first finding she was unavailable (or that other good cause existed to allow testimonial hearsay), the error was harmless under any standard. First, the trial court expressly stated its finding of a probation violation premised on the new domestic violence incident was not dependent on Victim 2's statement to Officer Martinez. Second, the court stated its finding of a probation violation was independently supported Ramirez's act of resisting arrest. Substantial evidence supports both findings, and neither finding is arbitrary or capricious.
Ramirez has been adequately represented by counsel on this appeal.
DISPOSITION
Affirmed.
HALLER, Acting P. J. WE CONCUR: O'ROURKE, J. AARON, J.