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People v. Ramirez

California Court of Appeals, Fourth District, Third Division
Sep 2, 2008
No. G039272 (Cal. Ct. App. Sep. 2, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 05WF2082, William Lee Evans, Judge.

Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

FYBEL, J.

I. Introduction

While driving under the influence of alcohol, Carlos Lenin Ramirez caused an automobile collision that killed his toddler grandson and injured six others including four children. A jury convicted Ramirez of one count of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), one count of driving under the influence and causing bodily injury (Veh. Code, § 23153, subd. (a)), one count of driving with a blood alcohol level of .08 or more and causing great bodily injury (Veh. Code, § 23153, subd. (b)), and five counts of child abuse and endangerment (Pen. Code, § 273a, subd. (a)). The jury found true enhancements for personal infliction of great bodily injury and personal infliction of great bodily injury of a child under five years of ages (Pen. Code, § 12022.7, subds. (a) & (d)) as to all counts to which the enhancements were alleged but one. The trial court sentenced Ramirez to a term of nine years in prison.

Ramirez challenges the conviction on one ground: He argues the trial court erred by permitting Lilia Vasquez, an emergency response social worker, to testify about a statement made to her by Ramirez’s stepdaughter, Yvonne Almaraz, who was a passenger in the van. Ramirez contends the statement does not come within the prior inconsistent statement exception to the hearsay rule, Evidence Code section 1235, because Almaraz’s trial testimony was not inconsistent with her prior statement to Vasquez. We disagree and affirm.

II. Facts

We view the evidence in the light most favorable to the verdict and resolve all conflicts in its favor. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Barnes (1986) 42 Cal.3d 284, 303.)

Around 11:00 p.m. on July 13, 2005, Ramirez, accompanied by Carolina Bernal Hernandez, his partner of 20 years, drove a Plymouth van home from the Garden Grove police station. There, they had picked up Almaraz, Hernandez’s daughter and Ramirez’s stepdaughter. Almaraz, who was eight-months pregnant, had been taken to the station earlier that evening. Also in the van were 13-year-old C.R. (the son of Ramirez and Hernandez), and Almaraz’s children, 13-year-old Eva E., 11-year-old Joaquin E., 11-year-old Hector R., and 23-month-old O.R.

None of the children wore a safety belt. O.R. was not in a child seat but was placed in his sister Eva E.’s lap.

Ramirez drove the van through a red light at the intersection of Euclid Street and Orangewood Avenue and collided with a Honda Accord driven by Michael Nessl, who had been travelling eastbound on Orangewood. Nessl, who was not under the influence of alcohol or drugs, testified his traffic light was green when he drove into the intersection. C.R. told a police officer the traffic light had been red for several seconds before Ramirez drove through it.

A police officer dispatched to the scene found a Honda Accord with substantial front-end damage in the middle of the intersection and a van, also with substantial damage, lying on its side. Several people were sitting on the curb, and several small children had bleeding faces. O.R. had been thrown from the van and was lying motionless. He was pronounced dead at the scene.

Garden Grove Police Officer Juanita Wilson noticed Ramirez had watery and bloodshot eyes, his speech was slurred, and his breath smelled of alcohol. Hernandez later told a police officer Ramirez had been drinking beer that day, but claimed he only had two. Blood tests showed Ramirez had a blood alcohol level of .20 to .21 percent at the time of the collision.

Ramirez did not produce a driver’s license. Instead, he produced a California identification card.

Hernandez was hospitalized for three days. Eva E. was hospitalized for nearly two weeks for a fractured pelvis and had lacerations to her face. Almaraz was hospitalized for multiple fractures to her cervical spine and head lacerations. Joaquin E. was hospitalized for abdominal trauma, head lacerations, bruising, and a contusion. C.R. suffered injuries to his left leg and was hospitalized for several days.

III.

Almaraz’s Statement to Vasquez Was Admissible as a Prior Inconsistent Statement Under Evidence Code Section 1235

Ramirez argues the trial court erred and violated his constitutional rights to due process and a fair trial by permitting Vasquez, an emergency response social worker, to testify that on July 14, 2005, Almaraz told her the traffic light was red and she yelled to Ramirez to stop the van. Ramirez argues that statement does not qualify as a prior inconsistent statement under Evidence Code section 1235 because it was not inconsistent with Almaraz’s trial testimony that she could not recall speaking with Vasquez or telling her the traffic light was red. Alternatively, Ramirez argues his trial counsel was ineffective for not objecting to Vasquez’s testimony.

A. Almaraz’s Trial Testimony and Prior Statement to Vasquez

During the prosecutor’s direct examination of Almaraz, she denied telling Vasquez the light was red when Ramirez drove into the intersection:

“Q [the prosecutor] In terms of as you were headed towards the intersection of Euclid and Orangewood did you see the intersection as you were approaching?

“A [Almaraz] No.

“Q Do you remember seeing a car enter that intersection before the incident that occurred at that intersection?

“A No. [¶] . . . [¶]

“Q Do you remember telling a social worker that you saw the traffic light was red and you yelled to your stepfather ‘stop’?

“A No.

“Q No?

“A No.

“Q Did you tell the social worker that you saw the traffic light was red and yelled to your stepfather to stop?

“A No.”

On cross-examination, Almaraz claimed she was not paying attention to the color of the traffic light when the collision occurred because she was eating and feeding the children. She affirmed she did not see whether the light was red or green.

On redirect, Almaraz denied speaking with the social worker about the collision:

“ . . . Q [the prosecutor] Ms. Almaraz, isn’t it true you spoke with social worker Lilia Vasquez on July 14th, 2005 regarding this incident?

“A No. [¶] . . . [¶]

“ . . . Q And isn’t it true you told her that you saw the traffic light was red?

“A No. [¶] . . . [¶]

“Q And isn’t it true you told her that you yelled out to your stepfather as a result of seeing the red light to stop?

“A No.

“Q Did you tell that to any social worker?

“A No.”

The prosecutor called Vasquez to testify about her conversation with Almaraz. The court determined Vasquez’s testimony was not privileged. Without objection, Vasquez testified she was an emergency response social worker for Orange County Social Services Agency and spoke with Almaraz on July 14, 2005. Vasquez testified: “[Almaraz] said that her and her . . . stepfather were arguing and then she glanced up as they approached the intersection. She looked up and noticed that the light was red and had yelled to her stepfather to stop.”

B. Almaraz’s Trial Testimony Was Inconsistent with the Prior Statement Made to Vasquez.

Under Evidence Code section 1235, a statement made by a witness that is inconsistent with the witness’s trial testimony is admissible to prove the truth of the matter asserted in the statement if the witness was given the opportunity to explain or deny the statement, or the witness has not been excused from giving further testimony. (People v. Sapp (2003) 31 Cal.4th 240, 296.) Normally, a witness’s inability to recall an event is not inconsistent with the witness’s prior statement describing the event, unless the witness’s claim to lack of memory is deliberate or evasive. (Ibid.)

A trial court’s decision to admit evidence under an exception to the hearsay rule is reviewed for abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.)

Ramirez contends Almaraz’s prior statement was not inconsistent with her trial testimony because Almaraz testified she could not recall talking to Vasquez about the collision, could not recall telling Vasquez the traffic light was red, and could not recall telling Vasquez she yelled to Ramirez to stop the van. To the contrary, a fair reading of all of Almaraz’s testimony is that Almaraz denied speaking to Vasquez about the collision, denied telling Vasquez the traffic light was red, and denied yelling to Ramirez to stop the van. On cross-examination, Almaraz testified she was not paying attention to the color of the traffic light, not that she could not recall what the color was. Almaraz’s prior statement to Vasquez that the traffic light was red and that Almaraz yelled at Ramirez to stop the van was inconsistent with that testimony. The trial court therefore did not abuse its discretion in permitting Vasquez to testify about Almaraz’s statement to her.

Because Almaraz’s prior statement to Vasquez was admissible under Evidence Code section 1235, we do not address Ramirez’s contention his trial counsel was ineffective for not objecting to Vasquez’s testimony.

IV. Disposition

The judgment is affirmed.

WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.


Summaries of

People v. Ramirez

California Court of Appeals, Fourth District, Third Division
Sep 2, 2008
No. G039272 (Cal. Ct. App. Sep. 2, 2008)
Case details for

People v. Ramirez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CARLOS LENIN RAMIREZ, Defendant…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Sep 2, 2008

Citations

No. G039272 (Cal. Ct. App. Sep. 2, 2008)