From Casetext: Smarter Legal Research

People v. Ramirez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 31, 2012
2d Crim. No. B227672 (Cal. Ct. App. Jan. 31, 2012)

Opinion

2d Crim. No. B227672

01-31-2012

THE PEOPLE, Plaintiff and Respondent, v. EDMUNDO PRIETO RAMIREZ, Defendant and Appellant.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2009009071)

(Ventura County)

Edmundo Prieto Ramirez appeals the trial court's grant of probation following his conviction of five counts of theft from an elderly person. (Pen. Code, § 368, subd. (d).) We affirm.

All further statutory references are to the Penal Code unless stated otherwise.

FACTS AND PROCEDURAL HISTORY

In the spring of 2007, Victoria Klein was a 76-year-old widow living in her longtime Westlake Village home. For many years, Klein had taken in boarders to supplement her income. In 2005, Ramirez rented a room in Klein's home.

We have augmented the appellate record to include the exhibits admitted into evidence at trial. (Cal. Rules of Court, rule 8.155(a).) Exhibit 10 is a copy of Klein's birth certificate.
--------

In 2005, Klein's adult children, Robin Everett and Mark Nolan, noticed that Klein's mental health and personal hygiene were deteriorating. In 2006 and 2007, Nolan began to search for an assisted living home for Klein because he "could see that she was going to need help." Nolan described an incident in 2005, for example, where Klein refinanced her home, obtained $100,000, and paid the entire sum to a contractor who left after performing a small number of the agreed-to improvements. Nolan described his mother as "in and out of lucidity," but not "at all" lucid by April 2007.

Klein's niece, Cynthia Ullmann, noticed Klein's declining mental and physical condition. In December 2006, she visited Klein and saw that she was confused, had difficulty speaking, and was incontinent. Ullmann also assisted Klein by writing checks on Klein's bank account to pay unpaid bills. Klein would sign the checks "whatever way she could." In April 2007, Ullmann visited Klein and found her lying in bed, soiled with waste. On several occasions, Ullmann spoke to her cousins regarding moving Klein to an assisted living home.

In early 2007, Nolan informed Ramirez that Klein would be moving and that her Westlake Village home would be sold. Ramirez became defensive. In later encounters, Ramirez "got in [Nolan's] face," and stated, "I don't like you."

In late May 2007, Nolan went to Klein's home but she was not there. He made a missing person report to the Ventura County Adult Protective Services agency. An agency employee later informed him that Klein and 29-year-old Ramirez had married. Neither Everett nor Nolan knew of Klein's intent to marry Ramirez and neither had been invited to the wedding ceremony. The couple had married on May 19, 2007, at the Little White Wedding Chapel in Las Vegas.

In late May 2007 (following the marriage), Klein informed Everett that she was frightened because Ramirez asked that she consult an attorney. Klein requested Everett's assistance. When Everett arrived at Klein's home, she found her mother disoriented, disheveled, confused, and wearing soiled clothing. There was no food in the home and Klein appeared not to have bathed for days. Ramirez was not present.

Everett took her mother to live with her in Orange County. During the time Klein lived with her daughter, she engaged in odd behavior such as repetitively washing dishes and wiping kitchen counters with banana peels. She was also incontinent and had difficulty speaking. When Everett took her mother to a university hospital for diagnosis of hip and back pain, treating physicians immediately noticed Klein's mental deterioration. Following further medical evaluation, they opined that Klein suffered from moderate to advanced dementia and recommended that she be placed under a conservatorship. During the mental health assessment, Klein informed physicians that she was married happily to a younger man, but could not recall his name or age.

In June 2007, Everett informed her mother that Ramirez was using her bank account and credit cards, including charges for the Las Vegas wedding described on a wedding agreement and a credit card invoice as a drive-through wedding chapel. Everett described her mother as "[v]isibly shaken" by the information. Klein "repeatedly" denied to Everett that she had married Ramirez. Klein later stated to Ventura County Sheriff's Deputy Michael Harris that she did not know Ramirez and that she was not married to him.

Doctor Robert Ghaussy, Klein's longtime treating physician who specialized in family practice, had noted Klein's deteriorating mental state over time and suspected that she suffered from dementia. On February 20, 2007, Ghaussy contacted Nolan and recommended that Klein consult with a physician specializing in dementia. Ghaussy believed that Klein could not care for herself or make financial decisions and was "mentally incompetent."

Nolan later obtained a conservatorship over Klein and placed her in an assisted living home. Thereafter, he obtained a court decree annulling her marriage to Ramirez on the basis of fraud.

Deputy Harris gathered financial records regarding Klein's credit cards and bank accounts. From April through June 2007, Ramirez purchased restaurant food, supermarket items, a computer, hotel lodging, and automobile products and services using Klein's credit cards and bank debit card. Ramirez's name was on Klein's bank account, having been added to the account near the time of the marriage. Klein's social security deposit was also withdrawn from her bank account approximately one month following her marriage to Ramirez. Klein stated to Harris that he used Klein's credit and bank cards with her permission because they were married. He also stated that he had deposited his funds into Klein's bank account.

The jury convicted Ramirez of five counts of theft from an elderly person. (§ 368, subd. (d).) The trial court suspended imposition of sentence and granted Ramirez 60 months of formal probation with terms and conditions, including 240 days of confinement in county jail. The court also ordered Ramirez to pay various fines and fees.

Ramirez appeals and contends that: 1) there is insufficient evidence of theft; 2) the five counts are but one single criminal offense; 3) the trial court erred by admitting hearsay evidence regarding Klein's statements to others; 4) the trial court erred by refusing to admit evidence of two videotaped interviews with Klein; 5) the trial court erred by admitting evidence that Klein consumed psychotropic medications; 6) the trial court erred by instructing on grand theft by trick (CALCRIM No. 1805); and 7) the trial court erred by instructing that false statements could imply guilt (CALCRIM No. 362).

DISCUSSION


I.

Ramirez argues that there is insufficient evidence that he committed theft prior to the marriage, or that Klein did not consent to the marriage and subsequent financial transactions. He also asserts that there is insufficient evidence of his intent to commit theft.

In reviewing the sufficiency of evidence to support a conviction, we examine the entire record and draw all reasonable inferences therefrom in favor of the judgment to determine whether there is reasonable and credible evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Solomon (2010) 49 Cal.4th 792, 811.) Our review is the same in prosecutions primarily resting upon circumstantial evidence. (Ibid.) We do not redetermine the weight of the evidence or the credibility of witnesses. (People v. Guerra (2006) 37 Cal.4th 1067, 1129, overruled on other grounds by People v. Rundle (2008) 43 Cal.4th 76, 151, itself overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Sufficient evidence and all reasonable inferences therefrom support the judgment. The documentary evidence at trial included pre-marriage charges to Klein's credit card and bank account for automobile services and parts, restaurants, and hotel stays. In summation, the prosecutor pointed out that Klein's accounts historically did not contain such charges but that Ramirez's accounts did. Moreover, Ramirez was defensive and confrontational when Nolan suggested that he move from Klein's home. Ramirez also was behind in his rent payments to Klein. The jury could compare the financial statements of Klein and Ramirez and determine that Ramirez made the pre-marriage expenditures to Klein's accounts.

There is also sufficient evidence and reasonable inferences therefrom that Klein could not consent to the marriage due to moderate to severe dementia. Nolan testified that Klein was not "at all" lucid in the spring of 2007. In April 2007, Ullmann found Klein lying in bed in soiled clothing on a dirty mattress. In December 2006, Klein did not know her daughter's name. Klein's treating physician was concerned that she suffered from dementia and contacted her son in February 2007 to discuss the matter. On many occasions, Klein denied that she was married to Ramirez. She stated to evaluating physicians, however, that she was married but did not know her husband's name or age. Nolan subsequently obtained a conservatorship over Klein as well as a court decree annulling her marriage to Ramirez. In sum, evidence of Klein's deteriorating mental state both before and after the May 19, 2007, marriage permits the reasonable inference that she lacked the capacity to consent to the marriage.

There is also sufficient circumstantial evidence of Ramirez's intent to commit theft from Klein. Ramirez stated to Deputy Harris that he was permitted to access Klein's funds because they were married. Klein had suffered from progressive dementia for several years and lacked the capacity to consent to the marriage or Ramirez's use of her funds. Ramirez was delinquent in his rent payments and Nolan had informed him that Klein was moving to an assisted living home and her Westlake Village home would be sold. The jury could reasonably decide that Ramirez acted with the requisite specific intent to steal from Klein.

II.

Ramirez contends that there is insufficient evidence of five separate and distinct counts of grand theft. (People v. Bailey (1961) 55 Cal.2d 514, 519 [defendant may be convicted of separate counts of grand theft from the same person if evidence establishes offenses are separate, distinct, and not committed pursuant to one intention or plan]; People v. Tabb (2009) 170 Cal.App.4th 1142, 1145-1150 [same].) He points out that each count involves one or more acts of theft from Klein and the dates of the thefts overlap.

Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the factual circumstances of each case. (People v. Bailey, supra, 55 Cal.2d 514, 519.) "[A] defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan." (Ibid.) The Bailey rule of "single-intent-and-plan" has been applied consistently in theft cases. (People v. Tabb, supra, 170 Cal.App.4th 1142, 1149 [jury expressly found that thefts occurring over a three-month period were a single overall plan].)

The evidence here sufficiently establishes that Ramirez committed five separate acts of theft, each exceeding $400. (§ 368, subd. (d).) Count 1 concerns Ramirez's use of Klein's two credit cards for his personal expenses, automobile products, and the Las Vegas wedding. Count 2 concerns a May 4, 2007, check card purchase for $471.75, at "Pep Boys," an automotive products store. Count 3 concerns pre-marriage ATM withdrawals and other check card purchases, and Count 4 concerns post-marriage check card purchases. Count 5 concerns a check Ramirez wrote on Klein's bank account for $1,128 to pay a witness at the Las Vegas wedding. Evidence here suggests opportunistic takings over a two-month period whenever Ramirez's need for money arose, as well as takings by a variety of methods - check cards, ATM withdrawals, credit card charges, and bank checks. (People v. Jaska (2011) 194 Cal.App.4th 971, 985 [defendant used many methods to embezzle money].) Ramirez has not established as a matter of law that the only reasonable conclusion from the evidence is that he acted pursuant to one intention and plan. (Ibid.)

III.

Ramirez argues that the trial court erred by admitting evidence of Klein's statements to her adult children and other witnesses because the evidence is inadmissible hearsay. He asserts the error is prejudicial, pointing to the absence of expert medical opinion regarding her dementia.

We review the evidentiary rulings of the trial court, including rulings regarding hearsay evidence, for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) Hearsay evidence is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).)

The trial court did not err in admitting evidence of Klein's statements because the statements were not offered to prove the truth of the matter stated. (People v. Cooper (2007) 148 Cal.App.4th 731, 744-745 [statements of elderly woman admissible as evidence of her mental state].) Evidence of Klein's statements was relevant to establish her mental functioning and, ultimately, her lack of capacity to consent to marriage or to Ramirez's use of her bank and credit cards. Moreover, the trial court instructed the jury concerning the limited use of Klein's statements made to family members and others. (CALCRIM No. 303.) We presume that the jury followed the instruction. (People v. Alexander (2010) 49 Cal.4th 846, 921.)

IV.

Ramirez contends that the trial court abused its discretion by excluding evidence of two videotaped recordings involving Klein. The first recording involved Klein and Ramirez, and the second recording involved Klein, Ramirez, and an Adult Protective Services social worker, Mark Roady. Ramirez asserts that the recordings are non-hearsay evidence of Klein's mental state.

Prior to ruling that the videotaped recordings were inadmissible, the trial court viewed the recordings. It then determined that the recordings contained inadmissible hearsay evidence. The court also commented that one recording involved Klein being "led" by Ramirez during the interview and that the recording was "difficult to watch."

The trial court did not abuse its discretion by excluding evidence of the videotaped interviews with Klein. (People v. Waidla, supra, 22 Cal.4th 690, 725 [standard of review of evidentiary rulings].) The court noted that Ramirez appeared to coach Klein during the interviews; the Adult Protective Services social worker testified that Ramirez "interjected his opinions throughout [the] interview." Ramirez's self-serving hearsay statements are not admissible evidence. (People v. Gurule (2002) 28 Cal.4th 557, 605.) "Defendant was free to present this information by taking the stand himself. To allow him to present this evidence through admission of the [videotaped recordings] would have allowed him to present favorable evidence without subjecting himself to cross-examination." (Ibid.)

V.

Ramirez asserts that the trial court erred by permitting Roady, the Adult Protective Services social worker, to testify that Klein consumed Xanax, a psychotropic medication, and she had previously taken Aricept, an Alzheimer's disease medication. He points out that he objected to the testimony on hearsay grounds. (Evid. Code, § 1200, subd. (a).) Ramirez contends the error is prejudicial because the evidence implies or suggests that Klein suffered from Alzheimer's disease.

Assuming that the trial court erred by not sustaining Ramirez's hearsay objection, the error is not prejudicial. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1313 [erroneous admission of hearsay evidence assessed by whether it is reasonably probable defendant would have obtained a more favorable result if evidence had been excluded].) Ramirez elicited testimony from Doctor Ghaussy that in 2005 he suspected that Klein was in the early stage of Alzheimer's disease. Ghaussy also testified on direct examination that in 2006 another physician had prescribed Xanax, a psychotropic medication, for Klein. Thus, Roady's testimony was in large part cumulative of Ghaussy's testimony as Klein's treating physician. Any error is harmless.

VI.

Ramirez contends that the trial court erred by instructing over defense objection with CALCRIM No. 1805, regarding grand theft by trick: "To prove that the defendant is guilty of [grand theft by trick], the People must prove that: [¶] 1. The defendant obtained property that he knew was owned by someone else; [¶] 2. The property owner or the owner's agent consented to the defendant's possession of the property because the defendant used fraud or deceit; [¶] 3. When the defendant obtained the property, he intended to deprive the owner of it permanently . . . ." He asserts that insufficient evidence supports an instruction regarding use of fraud or deceit to obtain Klein's property, and that the error is prejudicial.

The trial court did not err in instructing with CALCRIM No. 1805. The trier of fact could have inferred that Klein was lucid at times and consented to Ramirez's taking of her property because he used fraud or deceit to persuade her that he was acting in her best interests. In any event, instruction on an unsupported theory is prejudicial only "if that theory became the sole basis of the verdict of guilt." (People v. Guiton (1993) 4 Cal.4th 1116, 1130 [reviewing court should affirm judgment unless review of entire record affirmatively demonstrates a reasonable probability that the jury found defendant guilty solely on an unsupported theory].) Here the prosecutor's theory at trial rested on Klein's lack of capacity to consent to the marriage and Ramirez's taking of her property. The prosecutor briefly mentioned larceny by trick, the jury did not question the court regarding the instruction, and the instruction played little role in summation. Moreover, the judgment is supported by sufficient evidence of grand theft by larceny. (§ 484; CALCRIM. No. 1800.)

VII.

Ramirez argues that the trial court erred by instructing over defense objection with CALCRIM No. 362: "If the defendant made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself." He asserts that his statements to Deputy Harris do not support this instruction, and the error is prejudicial because the instruction led the jury to believe he made a false or misleading statement.

It is well settled that false statements concerning incriminating circumstances constitute evidence that may support an inference of consciousness of guilt. (People v. Flores (2007) 157 Cal.App.4th 216, 221.) CALCRIM No. 362 and its predecessor instruction, CALJIC No. 2.03, have long applied where a defendant makes incriminating statements regarding his criminal activity. (Ibid.) The instructions do not compel the drawing of inferences and require the jury to first determine if a defendant has made a false or misleading statement. (Ibid.)

The trial court did not err by instructing with CALCRIM No. 362. Ramirez informed Deputy Harris that he had permission to withdraw funds from Klein's bank account and that he made deposits of his funds into her account. In regard to the latter assertion, the jury could examine Klein's bank statements and determine whether Ramirez's statement regarding his deposits was false. In any event, CALCRIM No. 362 does not direct the drawing of inferences and it cautions that evidence of false statements is not sufficient in itself to establish guilt.

Finally, we reject Ramirez's claims of cumulative error. "A defendant is entitled to a fair trial, not a perfect one." (People v. Mincey (1992) 2 Cal.4th 408, 454.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

PERREN, J.

Jeffrey G. Bennett, Judge Superior Court County of Ventura

John Derrick, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Baine P. Kerr, Deputy Attorney General, for Plaintiff and Respondent.


Summaries of

People v. Ramirez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX
Jan 31, 2012
2d Crim. No. B227672 (Cal. Ct. App. Jan. 31, 2012)
Case details for

People v. Ramirez

Case Details

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

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

Date published: Jan 31, 2012

Citations

2d Crim. No. B227672 (Cal. Ct. App. Jan. 31, 2012)