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People v. Ramirez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 23, 2012
F061072 (Cal. Ct. App. Jan. 23, 2012)

Opinion

F061072 Super. Ct. No. F10900348

01-23-2012

THE PEOPLE, Plaintiff and Respondent, v. IVAN RAMIREZ, Defendant and Appellant.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Robert H. Oliver, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and George M. Hendrickson, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Ivan Ramirez was convicted after bifurcated jury trial of shooting at an inhabited dwelling (count 1), unlawfully possessing a firearm (count 3) and actively participating in a criminal street gang (count 4). A gang enhancement attached to count 1 was found true. (Pen. Code, §§ 246, 12021, subd. (e), 186.22, subds. (a), (b)(1).) He was sentenced to 15 years to life imprisonment.

Penal Code section 12021 was repealed January 1, 2012.

Unless otherwise specified all statutory references are to the Penal Code.

Appellant challenges the adequacy of the corpus delicti supporting count 1 and the sufficiency of the evidence proving count 3. We find that the evidence adequately supports these convictions and will affirm.

FACTS

On the evening of January 24, 2010, Densey Machado drove appellant and another friend to a party in Reedley. Appellant was armed with a handgun. He wore a blue and white sports jersey and a pair of black pants.

Cindy Garcia drove to the party separately. About 10 minutes after her arrival, she drove appellant, Machado and another man to La Buena Market (the market). A house was situated next door to the market. Camillo Vasquez lived in the house with members of his family. Vasquez has Norteno gang tattoos and associates with Nortenos. Garcia waited in the car while the men purchased some beer and then drove them back to the party.

Later that evening, Garcia drove appellant back to the market to purchase some cigarettes. She parked in front of the house. Garcia testified that Victor Lara was sitting with another man in the front yard of the house and that both men were Nortenos. Lara was wearing a burgundy-colored shirt. Garcia waited in the car while appellant went inside the market. When appellant walked back to the car the "two guys started telling [appellant] stuff." One of the men approached appellant and asked, "Where are you from?" Appellant replied, "What's up, ese?" The other man picked up a baseball bat and walked toward appellant. Lara told Garcia to "get him out of there." Appellant had given his gun to a party guest so he got in the car and Garcia drove back to the party. A short time later, appellant retrieved his gun and asked Machado to give him a ride to the store.

A security guard who was standing near the store saw a four-door "white car with chrome rims" approaching and then heard the sound of gunfire. Vasquez was inside the house with several family members. He heard three or four noises that sounded like exploding fireworks. Vasquez told police officers that he went outside and saw a vehicle leaving that was "white and had chrome rims."

A few minutes later, police officers stopped a four-door white sedan driven by Machado. Appellant was the only passenger. A Sig Sauer 9-millimeter semi-automatic pistol (the pistol) was found under the driver's seat. There was an empty magazine in the pistol and one unfired round in the chamber. The gun's hammer was back. The security guard identified appellant to the police as the passenger of the white vehicle he saw earlier that evening.

Two nine-millimeter cartridge cases were found in the street in front of the house about 20 to 30 feet apart. A firearm examiner testified that one of the cartridge cases definitely was fired from the pistol and the other cartridge case probably was fired from the pistol.

Machado and appellant were interviewed by the police that evening. Appellant told the officers that he asked Machado to drive him to the store because the guys "disrespected" him in front of "one of [his] girls." He told Machado to stop the car. He got out of the car and "shot the house." Appellant was not sure if he hit the house. He fired two rounds and thought the bullets would have hit in the "[f]ront center" of the house. He did not know if anyone was outside at that time. Appellant got back into the car and Machado "peeled out and got out of there."

The police interviews with appellant and Machado were recorded and played for the jury (exhibits 33 & 45). Transcripts of the interviews were provided to the jury (exhibits 34 & 45A).

Machado told the police officers that he asked appellant why he wanted to go to the store and appellant replied, "Because some, some guy just start looking at me." "There was one guy outside of the house" when they arrived at the store. Appellant told Machado to stop the car and Machado slowed down. Machado said that appellant put the gun "out the window" and "he shoot him and we take off." Machado said "[t]here was one guy outside of the house" when appellant fired the gun. Appellant aimed the gun at "the corner in the house" closest to the store. Machado thought the bullets would have hit "[t]here in the house." Machado also said that before appellant fired the gun he said "fucking and Busters" and "that's when he shoot 'em." The word "Buster" is slang term for a Norteno. Machado thought that when they were pulled over by the police appellant put the gun under the driver's seat. At trial, Machado testified that appellant got out of the car and fired once into the air.

A gang expert testified, inter alia, that appellant was a Sureno. Based on a hypothetical, he opined that the shooting was committed in retaliation and that it benefitted the Surenos.

Appellant testified that he informally dropped out of the Surenos after his release from the California Youth Authority in December 2008. Appellant said that he fired two shots into the air to scare the men who had disrespected him. Appellant testified that he falsely told the police he fired at the house to insulate Machado from any criminal culpability.

DISCUSSION

I. The People Adequately Proved the Corpus Delicti of Count 1.

Section 246 states, in pertinent part, that any person "who shall maliciously and willfully discharge a firearm at an inhabited dwelling house" is guilty of a felony. Appellant argues the People failed to prove the corpus delicti of the crime of shooting at an inhabited dwelling as charged in count 1 because, apart from appellant's pretrial statement to the police, there is no evidence proving that he fired at the house. We are not convinced.

This contention also failed in the trial court. Appellant's section 1118.1 motion challenging the corpus delicti supporting count 1 was denied after argument.

The corpus delicti rule, which has its roots in the common law, "is intended to ensure that [a criminal defendant] will not be falsely convicted, by his or her untested words alone, of a crime that never happened. [Citations.]" (People v. Alvarez (2002) 27 Cal.4th 1161, 1169 (Alvarez).) In California, the corpus delicti rule "generally requires the prosecution to prove 'the body of the crime itself independent of a defendant's extrajudicial statements." (People v. Sapp (2003) 31 Cal.4th 240, 303; Alvarez, supra, 27 Cal.4th at pp. 1170-1171.) "The independent proof may be circumstantial and need not be beyond a reasonable doubt, but is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible. [Citations.]" (Alvarez, supra, 27 Cal.4th at p. 1171.)

Appellant premises his argument that the People failed to prove he fired at the house on the assertion that Machado told the police officers that "appellant got out of Machado's vehicle with the firearm and fired shots into the air." Appellant's summary of Machado's statements to the police is incomplete. Although Machado initially told the police that appellant got out of the car and fired the gun into the air, he eventually told the officers that appellant put the gun out of one of the car's window and fired at the house. During the course of the interview, Machado told the officers that when they arrived at the street a guy was standing by the house and appellant said "Busters," put the gun out the window, aimed it at the house and fired it. Machado told the officers that he thought the bullets would have hit "[t]here in the house."

In addition to Machado's pretrial statement to the police that appellant aimed at the house, the corpus delicti of count 1 was further proved by the following evidence: (1) two cartridge casings found 20 to 30 feet apart in front of the house; (2) Vasquez testified that he was inside the house when he heard the shots; (3) Vasquez had Norteno tattoos and associated with Nortenos; and (4) Garcia testified that the two men who confronted appellant were Nortenos and they had been sitting in the front yard of the house. When this evidence is considered together with Machado's pretrial statements, it sufficiently proves the corpus delicti of the crime of shooting at an inhabited dwelling.

In the midst of this argument, appellant asserts the jury was likely misled when it was instructed with CALCRIM No. 359, which sets forth the corpus delicti rule. However, appellant correctly acknowledged that People v. Reyes (2007) 151 Cal.App.4th 1491, 1498, upheld the wording of CALCRIM No. 359 so this instruction "is not objectionable."

Appellant also speculates that the jury was likely misled into finding him guilty of count 1 despite proof of the corpus delicti because of an alleged misstatement by the prosecutor during the rebuttal closing argument. Since we have already concluded the record contains evidence proving the corpus delicti of the crime of shooting at an inhabited dwelling, this interrelated contention necessarily fails. In any event, an objection to the allegedly misleading argument was not interposed below. Also, appellant did not present to this court either a prosecutorial misconduct claim or an ineffective assistance claim based on defense counsel's failure to object below. If appellant had raised such claims, they would not have succeeded because the alleged misconduct was forfeited (People v. Cook (2006) 39 Cal.4th 566, 606), and appellant was not prejudiced (In re Jackson (1992) 3 Cal.4th 578, 604).

II. Count 3 is Supported by Substantial Evidence.

A. Facts.

In connection with count 3, the information alleged appellant suffered a prior juvenile adjudication on March 6, 2006, for violating sections 246.3 and 186.22, subdivision (b)(1).

During the in limine hearing before jury selection, the court and counsel discussed how to handle appellant's prior convictions during trial. The court granted appellant's request to bifurcate trial of the prior conviction allegations. Then defense counsel said, "There's also the issue of status on Count three." The court asked, "Status?" Defense counsel replied, "It's alleged that he was in possession of a firearm having a prior conviction or adjudication as a juvenile felony. We would be prepared to stipulate to that." The prosecutor replied that "the People have no objection to accepting the stipulation." Then the prosecutor stated, "I believe there is probably at least three or four bases for which at least the facts of that prior case would come before the jury's attention in either event as it relates to other counts. We don't know if that affects counsel's position." Defense counsel replied, "That's an entirely different issue. We have to deal with that before this trial starts, bringing in facts of prior adjudications or any prior situation."

Appellant testified that in 2006 he suffered a juvenile adjudication "for negligently discharging a firearm, and [he] admitted the gang enhancement." Appellant testified that this adjudication was the result of a plea bargain and he was confined to the California Youth Authority in punishment for this crime. The crime occurred during a confrontation with rival gang members. Appellant said he was armed with a shotgun and fired it in the air. Also, appellant admitted that he possessed a firearm on the evening of January 24, 2010, and that he knew he would be charged with a crime if he was caught with the firearm.

The gang expert testified about the facts of appellant's 2006 juvenile adjudication and certified court documents regarding appellant's juvenile adjudication were introduced during the expert's testimony.

During the instructional conference, the court and counsel discussed CALCRIM No. 2511, which instructs on possession of a firearm by a person prohibited due to conviction when there has been a stipulation of the conviction. The court stated there was a stipulation to count 3 so the instruction needed to be modified. The court discussed the portion of the instruction that should be redacted and said, "... [A]ll of that is out down to the defendant and People stipulated." Defense counsel replied, "Correct." Defense counsel also agreed with the court's statements that the jury would be instructed not to "speculate about or discuss the nature of the conviction," and not to "consider this fact except for the limited purpose of this stipulation." Then the court stated, "We had this discussion yesterday." Defense counsel replied, "I wrote limited purpose as referred to in other instructions." Then the prosecutor said, "That's my recollection as well."

The jury was instructed, in relevant part, "The defendant and the People have stipulated, or agreed, that the defendant was previously convicted of a felony. This stipulation means that you must accept this fact as proved." It was also instructed that evidence concerning the juvenile adjudication was admitted for the limited purposes of motive, specific intent to benefit a gang, and knowledge that his actions would benefit a gang.

B. Appellant's stipulation for purposes of count 3 that he suffered a qualifying prior conviction was a legally adequate substitute for evidence.

Appellant argues the conviction on count 3 must be reversed because "the prosecutor neglected to either present evidence in open court of a stipulation between the parties to th[e] effect, or introduce proof to be considered on the question whether appellant was a person prohibited from possession of a firearm as alleged." In appellant's view, a stipulation is not an effective substitute for evidence unless the prosecutor "elicit[s] and offer[s] the proposed stipulation as evidence in open court" while the jury is present. Appellant contends that because the prosecutor did not present evidence in open court before the jury of the parties' stipulation that appellant suffered a prior qualifying felony for purposes of section 12021, subdivision (e), the stipulation was not an effective substitute for evidence on this element of the crime charged in count 3.

Appellant's argument is not persuasive. A stipulation is a binding agreement between the parties and is a substitute for proof by evidence. (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 142; Greatorex v. Board of Administration (1979) 91 Cal.App.3d 54, 58.) "Unless the trial court, in its discretion, permits a party to withdraw from a stipulation [citations], it is conclusive upon the parties, and the truth of the facts contained therein cannot be contradicted." (Palmer v. City of Long Beach, supra, 33 Cal.2d at pp. 141-142.)

Appellant cites no authority holding that a stipulation to an element of an offense must be entered into by the parties in the presence of the jury during the evidentiary portion of the trial, or authority holding that a stipulation is ineffective if the court instructs the jury that a stipulation has been entered into by the parties as part of its closing instructions. None of the cases cited by appellant involved a challenge to the validity of a stipulation based upon an alleged procedural error similar to the facts in this case. For example, People v. Valentine (1986) 42 Cal.3d 170, which is relied upon by appellant, actually held that the trial court committed reversible error by refusing to accept a stipulation to a prior conviction as an element of a charged offense and thereafter admitting evidence of the nature of the prior offense. (Id. at pp. 173, 182-183.) And People v. Newman (1999) 21 Cal.4th 413, another case relied upon by appellant, held that the trial court was not required to advise the defendant of his trial rights before accepting a stipulation that he was previously convicted of an unspecified felony. (Id. at p. 415.) In the absence of persuasive authority, we reject appellant's position on this issue.

The record shows the parties stipulated that appellant suffered a prior qualifying juvenile adjudication for purposes of section 12021, subdivision (e). The jury was instructed that appellant stipulated to this element of the crime. This stipulation was a legally sufficient substitute for evidentiary proof of the prior qualifying conviction or juvenile adjudication. Accordingly, we reject appellant's challenge to the sufficiency of the evidence supporting the guilty verdict on count 3.

In light of the valid stipulation, it is not necessary to determine if the record contained substantial evidence proving that appellant's 2006 juvenile adjudication was a qualifying offense for purposes of section 12021, subdivision (e).
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DISPOSITION

The judgment is affirmed.

__________________

LEVY, Acting P.J.
WE CONCUR: __________________
GOMES, J.
__________________
DAWSON, J.


Summaries of

People v. Ramirez

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT
Jan 23, 2012
F061072 (Cal. Ct. App. Jan. 23, 2012)
Case details for

People v. Ramirez

Case Details

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

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: Jan 23, 2012

Citations

F061072 (Cal. Ct. App. Jan. 23, 2012)