Opinion
B220528
11-27-2012
THE PEOPLE, Plaintiff and Respondent, v. JOSE ALFREDO RAMIREZ, Defendant and Appellant.
Carlo A. Spiga and Grace E. Ayers for Defendant and Appellant. Kamala Harris and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County
Super. Ct. No. BA330274)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Perry, Judge. Reversed and remanded.
Carlo A. Spiga and Grace E. Ayers for Defendant and Appellant.
Kamala Harris and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jose Alfredo Ramirez appeals from the judgment entered following his conviction by jury of three counts of attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187), with the finding that he personally discharged a firearm which caused great bodily injury to one of the victims (§ 12022.53, subd. (d)). The jury also concluded appellant committed the crimes with the intent to benefit a criminal street gang. (§ 186.22, subd. (b)(1)(C).) Appellant was sentenced to three consecutive life terms for the attempted murders (he must serve a minimum of 15 calendar years for each term before becoming eligible for parole) and three consecutive 25-year-to-life terms for the firearm enhancement. He appeals, contending trial counsel rendered ineffective assistance, the court erred in permitting the preliminary testimony of a witness to be read to the jury, and his sentence constitutes cruel and unusual punishment. Respondent contends the abstract of judgment fails to accurately reflect the court's imposition of certain fees.
All further undesignated statutory references are to the Penal Code.
On March 16, 2011, a majority of this court affirmed the judgment as modified. On October 17, 2012, the Supreme Court transferred the matter to this court, with directions to vacate our decision and to reconsider it in light of People v. Caballero (2012) 55 Cal.4th 262 (Caballero).We now reverse the judgment and remand the case to the trial court for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Prosecution Case
The three victims, Leonel "Leo" Riera, Shaday "Shady" Martinez, and Jeremy Salazar, members or former member of the City Terrace gang, were fired on while walking near the corner of Ramona Boulevard and Eastern Avenue in Los Angeles on August 18, 2007, at approximately 3:30 p.m. One shot hit Riera in the face, hospitalizing him for a month and leaving him with missing and broken teeth and scars. The shooting occurred near a number of fast food restaurants in an area claimed by City Terrace. The victims were unable or unwilling to identify their assailants.
Three eyewitnesses—Arturo Ochoa, Elizabeth Diaz, and her young son Christopher Lujan—testified that they heard five or six shots that appeared to have been fired from a green car occupied by two Hispanic males. The driver was not wearing a shirt and was somewhat older than the passenger, who appeared to be in his 20's. None of these witnesses could positively identify the men, although Diaz identified appellant in a photographic lineup as looking similar to one of them.
Diaz saw the driver leaning over the passenger in a way that caused her to believe he might be the shooter. Lujan identified another gang member—Garai "Bugzy" Bilbao—as someone who looked similarly shaped to one of the men.
Thirty to 45 minutes prior to the shooting, Deputy Goro Yoshida and his partner stopped a green car not far from where the shooting occurred. Geraghty Lomas gang member Arthur "Arty" Romero was driving; fellow gang member Garai "Bugzy" Bilbao was with him. Romero was not wearing a shirt. The deputies had searched the men and the car and found no weapons or any reason to detain them.
After the shooting, Romero was questioned multiple times and ultimately arrested for the crime. He entered into a plea agreement, agreeing to testify to what happened and to provide information about other crimes in return for a prison term of 7 to 14 years. At trial, Romero, who was 44, confirmed that he had been a long time member of Geraghty Lomas. He said that members of the gang considered City Terrace to be their primary rival. He testified that prior to the shooting he had been driving in the neighborhood with Bugzy Bilbao, when they were stopped by deputies. Shortly after the stop, Romero dropped Bilbao off at the home of another Geraghty Lomas member, Manuel "Topo" Alguin. Romero, a drug addict, left to buy heroin. When he returned, he saw appellant, whom he called "Gallo," and another gang member, Bobby Encinas, leaving in Encinas's car. Romero followed them in the green car. A short distance away, appellant got out of Encinas's car and called to Romero to pull over. He asked Romero to drive him to a fast food restaurant near the corner of Ramona and Eastern, in City Terrace territory. As they neared their destination, appellant showed Romero a gun and said, "I hope we get lucky." They spotted three males who appeared to be gang members. Romero stopped the car and appellant started shooting. As he fired, appellant said, "puro Geraghty."
Romero described the car's color as turquoise.
When contacted by detectives, Romero initially told them that another Geraghty Lomas member—Eric Gonzalez—had told him appellant was the shooter; he did not admit to any personal knowledge of the crime. After being confronted with a tape of a conversation between appellant and an imprisoned gang member, Romero admitted being the driver for appellant. In pretrial interviews with detectives, he said that he was aware appellant had a gun before appellant got in the car.
The prosecution was unable to secure the presence of Eric Gonzalez at trial. Accordingly, his preliminary hearing testimony was read to the jury. At the preliminary hearing, Gonzalez denied being a member of Geraghty Lomas or having any information about the gang, the shooting or appellant's possible involvement. He further testified that he did not remember speaking to detectives or telling them about the events surrounding the shooting. Gonzalez was cross-examined during the hearing. He specifically denied telling detectives that he heard Geraghty Lomas gang member Jorge "Gato" Flores say, "Let's go get them," that he saw appellant leave with "Smiley," "Scarface," or another individual in a white Expedition, or that when appellant and these individuals returned, they took Gonzalez to a location where they said a shooting had occurred, but Gonzalez saw no ambulance, police, or other activity. He also denied telling detectives that the gun he saw appellant holding was an automatic.
The facts related to the prosecution's attempt to locate and subpoena Gonzalez are discussed further below.
After this testimony was read, the prosecution called Detective Eduardo Aguirre. Detective Aguirre testified that he interviewed Gonzalez in September 2007, shortly after the shooting, and that the interview was recorded. Gonzalez told Detective Aguirre that he was a member of Geraghty Lomas, nicknamed "Sneaks." On the day of the shooting, a group of Geraghty Lomas members, including appellant and Romero, met at the home of Topo Alguin and discussed the need to "put in work" for the gang. Romero and appellant did most of the talking. Gonzalez and another gang member went out to get a snack and saw two City Terrace gang members, "Travi" and "Menace." They reported this information back to the Geraghty Lomas members. Flores (Gato) or appellant (Gallo) said, "Let's go get them." Appellant left briefly and returned with a gun. Romero was there when appellant displayed the gun. Gonzalez saw appellant, a gang member nicknamed "Scarface," and another man leave in a small gray car; Romero left separately in a green car. When appellant, Scarface, and the other man returned, Romero was not with them. Appellant bragged about shooting "Menace." Gonzalez was taken by appellant, "Smiley," and another man in a white Expedition to a Burger King restaurant at Ramona and Eastern. Appellant described the shooting that had allegedly occurred a short time earlier, but there was no visible evidence of a shooting.
The prosecution played a recorded telephone conversation between appellant and Primitivo "Little Malo" Tapia, which occurred when Tapia was imprisoned for an unrelated offense. During the conversation, the following exchange occurred: Appellant: "You, you already know what happened to the main enemies?" Tapia: "The, the City Terrace?" Appellant: "Yeah, you know what happened?" Tapia: "What?" Appellant: "[Clears throat] The, the . . . [t]wo guys I got." Tapia: "Nah." Appellant: "[Unintelligible.] [Laughs.]" Tapia: "Hey!" Appellant: "Huh?" Tapia: "Where?" Appellant: "Over there at the Burger King." Tapia: "How many?" Appellant: "Two." Tapia: "Oh really?" Appellant: "Yeah."
The call had been made by Tapia to the residence of "Gato" (Flores), but the speaker identified himself as "Gallo" (appellant's nickname), and Detective Aguirre testified that he recognized appellant's voice on the tape.
Deputy Yoshida arrived at the scene after the shooting. He observed bullet holes in buildings and found a number of bullet fragments. He found no shell casings, indicating that a revolver was used in the shooting. Detectives later searched appellant's family's home and uncovered multiple boxes of ammunition, including bullets of various calibers and shotgun shells.
II. The Defense Case
The defense called multiple witnesses—appellant's father, Jose Ramirez, neighbor Samuel Mendez, and tenants Candido Barrales, Eloina Rojas, and Martin Alejo. They all testified that on the day of the shooting, appellant was helping his father repair rental units by painting a room and repairing a fence, and that he was in their presence until early evening.
DISCUSSION
I. Ineffective Assistance of Counsel
During the cross-examination of Detective Aguirre, defense counsel elicited testimony that the detective had listened to a number of taped telephone calls made by Tapia from prison, in addition to the one with appellant introduced by the prosecution. Counsel apparently had before him an affidavit for a search warrant in which Detective Aguirre had said that "Gato" had admitted in one such conversation shooting "three members of trash." Over the prosecutor's objection, defense counsel sought to have the information about Gato's statement put before the jury through Detective Aguirre's testimony. During a bench conference, counsel indicated that he had asked the detective about the statement previously and that the detective had said "yeah, [I] heard it." The prosecutor commented: "I think what the warrant says is something to the effect that Gato says, 'We got three trash at the Burger King,' which could very well mean the gang, not him personally." (Italics added.) The court pointed out that although the hearsay statement appeared to be a declaration against penal interest, there had been no showing of the speaker's unavailability. The court asked what efforts had been made to subpoena "Gato." Defense counsel did not respond. The court ruled that the evidence was inadmissible. The matter did not arise again, and the jury was never informed of the tape or its contents. Appellant, relying solely on this interchange, contends that trial counsel was incompetent.
"Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the assistance of counsel. [Citations.] The ultimate purpose of this right is to protect the defendant's fundamental right to a trial that is both fair in its conduct and reliable in its result. [Citations.] [¶] Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to 'the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.' [Citations.]" (People v. Ledesma (1987) 43 Cal.3d 171, 215, quoting United States v. De Coster (D.C.Cir. 1973) 487 F.2d 1197, 1202.) In order to establish ineffective assistance of counsel sufficient to overturn a conviction, the defendant must show: "(1) deficient performance under an objective standard of professional reasonableness and (2) prejudice under a test of reasonable probability of an adverse effect on the outcome. [Citation.]" (People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. omitted, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Appellant contends that defense counsel was incompetent for failing to investigate Gato's alleged statement that he "'got'" the "'three trash at the Burger King.'" He contends that counsel should have located and interviewed Gato and, if possible, secured his testimony at trial. We conclude that the current record does not support the contention that trial counsel was deficient.
There can be no dispute that defense counsel may be deemed incompetent for failing to adequately investigate when he or she receives a promising lead, particularly where it involves information suggesting someone other than the defendant committed the charged crime. (See, e.g., In re Thomas (2006) 37 Cal.4th 1249, 1262, quoting 1 ABA Stds. for Crim. Justice (2d ed. 1982 supp.) std. 4-4.1 [finding counsel incompetent for failing to investigate witness's statement that she saw another man arguing with victims shortly before their deaths]; People v. Bess (1984) 153 Cal.App.3d 1053, 1060 [concluding counsel's failure to interview witnesses who supported defendant's innocence was unreasonable].) However, where a defendant alleges incompetent investigation or presentation of evidence by trial counsel, he or she must demonstrate that the overlooked evidence would have been exculpatory in some fashion. (In re Noday (1981) 125 Cal.App.3d 507, 522.) Put another way, the defendant "must show us what the trial would have been like, had he been competently represented, so we can compare that with the trial that actually occurred and determine whether it is reasonably probable that the result would have been different." (In re Fields (1990) 51 Cal.3d 1063, 1071; accord, In re Hardy (2007) 41 Cal.4th 977, 1025.) In addition, the defendant must establish that counsel's actions were not based on a strategic decision. (See In re Thomas, supra, 37 Cal.4th at p. 1264, fn. 4 [explaining that "not . . . every decision to curtail investigation in an area based on the improbability of finding evidence is ineffective assistance" and that generally "it is for counsel to decide what leads are or are not worth exploring"].) "'"[If] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.'" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266, quoting People v. Wilson (1992) 3 Cal.4th 926, 936.)
Here, the record is not only silent as to the reasons for counsel's actions, it is not clear that there was a promising lead requiring further investigation or, if there was, that counsel failed to investigate it. Defense counsel described Gato's statement as claiming personal credit for "getting" the rival gang members, but the prosecutor stated that Gato used the words "we got," indicating he was referring to a crime committed by the gang, rather than by him personally. We cannot resolve this dispute, as neither the transcript of the conversation nor the detective's affidavit describing it is in our record. Moreover, there is nothing in the record to indicate that counsel failed to contact or interview Gato when he received the information. Finally, assuming counsel did not contact Gato or, having done so, made the decision to refrain from calling him to testify, the decision may have been made for strategic reasons based on all the information known to counsel. "'To sustain a claim of inadequate representation by reason of failure to call a witness, there must be a showing from which it can be determined whether the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him.'" (In re Noday, supra, 125 Cal.App.3d at p. 522, quoting People v. Hill (1969) 70 Cal.2d 678, 690-691.) Where the record is silent as to the reasons for particular actions of trial counsel, an appeal is not the proper vehicle for determining competency. (People v. Bess, supra, 153 Cal.App.3d at p. 1059; People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267 ["A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding."].) In short, the record before us does not support appellant's claim of ineffective assistance of counsel.
In his brief, appellant states that defense counsel "made no apparent effort to contact, investigate, or seek testimony" from Gato, citing the interchange at trial. (Italics added.) At trial, counsel did not state whether he sought further information from Gato.
II. Unavailability of Gonzalez
As discussed, Gonzalez was not present at trial. His preliminary hearing testimony was read to the jury over appellant's objection. Before admitting the prior testimony, the court held a hearing to determine whether the prosecutor exerted due diligence to obtain Gonzalez's presence at trial. Appellant contends the court erred in concluding that adequate efforts had been made.
The evidence presented at the due diligence hearing established that securing Gonzalez's presence at the preliminary hearing had been difficult, as neither he nor his mother wanted him to testify. Both expressed anger and fear to Detective Aguirre, who had been tasked with keeping track of Gonzalez and securing his presence in court. On one occasion, when Detective Aguirre attempted to serve Gonzales, he refused to take the subpoena. For a period, the court placed Gonzales in custody to ensure he would appear. By the time of the preliminary hearing, he was not in custody. He appeared at the hearing after the court issued a body attachment.
Gonzalez was 14 at the time of the hearing.
Between the preliminary hearing and the trial, Detective Aguirre attempted to keep track of Gonzalez by visiting his neighborhood and school. During this period, he occasionally saw Gonzalez. On August 20, 2009, approximately 14 months after the preliminary hearing and one month before trial, Detective Aguirre appeared at Gonzalez's home and was told by Gonzalez's grandmother that Gonzalez and his mother had moved several months earlier and were living in Crocket, Texas. The detective confirmed with Gonzalez's school that he was no longer enrolled and checked to determine if he was in custody or had died. The detective also checked social services to determine whether Gonzalez or his mother were receiving aid of any kind and law enforcement records to determine whether he was wanted in any jurisdiction. All these searches were negative. On September 3, Detective Aguirre returned to the last known address where he had previously spoken to Gonzalez's grandmother. A man identifying himself as Gonzalez's uncle accused the detective of "bringing heat" to the family and said that because of his prior visit, the grandmother had moved as well.
Jury selection began September 17, 2009.
On September 7, Detective Aguirre through "departmental resources" and the district attorney's office acquired a specific address for Gonzalez's mother in Longview, Texas. On September 11, he contacted the Longview Police Department, which sent an officer to the address. The officer spoke with Gonzalez's mother. She told the officer that Gonzalez was not home. The officer obtained her cell phone number. Detective Aguirre called the number and left messages, but none were ever returned. On the day of the due diligence hearing (September 15), the prosecutor reported that he had faxed a subpoena to the office of the district attorney for the Texas county where the address was located. An investigator went to the address and made an attempt to contact the family to serve the subpoena, but no one answered the door.
Evidence Code section 1291, subdivision (a)(2) provides that former testimony is not rendered inadmissible by the hearsay rule if (1) "the declarant is unavailable as a witness" and (2) "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." Under Evidence Code section 240, subdivision (a)(5), a witness is unavailable when he or she is "[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process."
"The term '[r]easonable diligence, often called "due diligence" in case law, "'connotes persevering application, untiring efforts in good earnest, efforts of a substantial character.'"'" (People v. Herrera (2010) 49 Cal.4th 613, 622, quoting People v. Cogswell (2010) 48 Cal.4th 467, 477.) To establish due diligence and unavailability, "the prosecution must show that its efforts to locate and produce a witness for trial were reasonable under the circumstances presented." (People v. Herrera, supra, at p. 623.) "Considerations relevant to the due diligence inquiry 'include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness's possible location were competently explored.'" (Id. at p. 622, quoting People v. Wilson (2005) 36 Cal.4th 309, 341.) "The prosecution is not required 'to keep "periodic tabs" on every material witness in a criminal case.'" (People v. Wilson, supra, 36 Cal.4th at p. 342, quoting People v. Hovey (1988) 44 Cal.3d 543, 564.) Moreover, the prosecution is not required, "absent knowledge of a 'substantial risk that [an] important witness would flee,'" to take preventative measures to stop a witness from disappearing. (Wilson, supra, at p. 342.)
Appellate courts "review the trial court's resolution of disputed factual issues under the deferential substantial evidence standard [citation], and independently review whether the facts demonstrate prosecutorial good faith and due diligence [citation]." (People v. Herrera, supra, 49 Cal.4th at p. 622.) Here, the facts are not in dispute, and our independent analysis convinces us that the prosecution acted in good faith and with due diligence to secure Gonzalez's presence at trial. The prosecutor was on notice of Gonzalez's reluctance to testify. However, there was nothing to suggest that he would flee the area in which his home, school, and family were located. Given the circumstances, the prosecutor's conduct was reasonable. Detective Aguirre kept tabs on Gonzalez following the preliminary hearing and attempted to contact him to secure his presence. The detective timed his attempt so that it occurred in advance of trial, but not so far in advance as to encourage him to formulate a plan of escape. (Cf. People v. Diaz (2002) 95 Cal.App.4th 695, 707 [in finding due diligence, court credited gang officer's testimony that based on his experience and specific knowledge of the witness, giving advance warning by serving a subpoena prior to trial, "would merely ensure that she would leave the area [on the day of trial] to avoid testifying"].) When Detective Aguirre learned that Gonzalez had unexpectedly left the state, the detective was diligent in locating him and attempting to secure his cooperation. Thereafter, the prosecutor was diligent in attempting to have him subpoenaed by out-of-state authorities. That all these efforts failed is not indicative of a lack of diligence but of the witness's determination and calculated effort, supported by his family, to avoid testifying.
Citing People v. Cromer (2001) 24 Cal.4th 889, appellant contends that allowing 14 months to elapse before trying to contact Gonzalez was unreasonable. In Cromer, the prosecutor learned within two weeks of a June preliminary hearing that a key witness had disappeared, but made no attempt to locate her until December. After receiving promising information that the witness was living in San Bernardino with her mother, the prosecutor made only a single effort to find the witness or speak with her mother. In its independent evaluation of the facts, the Court of Appeal found this did not represent reasonable diligence, and the Supreme Court affirmed. (Id. at pp. 904-905.) Here, in contrast, the witness did not leave the area until a few months before trial, and the prosecutor had no reason to believe he would leave or knowledge that he had left until Detective Aguirre spoke with the grandmother in August. Once the prosecutor learned of the boy's disappearance, diligent efforts were made to locate him, and he was located. Unfortunately, by that time, it was too late to secure the presence of the recalcitrant witness.
Appellant contends that more diligent efforts to secure Gonzalez's presence were necessary because he was a "key" witness, "central[]" to the prosecution's case. We find no basis to assume that had Gonzalez appeared, he would have done anything other than repeat his performance at the preliminary hearing, denying all knowledge of Geraghty Lomas, the shooting, or appellant. Defense counsel had already cross-examined Gonzalez at the hearing and attempted to persuade him to repeat those portions of the statement to the detectives that were helpful to appellant—that Gato Flores, not appellant, had said, "Let's go get them"; that he never saw appellant in the green car; that he never saw Romero and appellant together; that the gun appellant displayed was an automatic; and that although appellant bragged about committing a shooting, the location to which Gonzalez was taken showed no signs of a prior shooting.
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III. Appellant's Sentence Must Be Recalculated
In Caballero, the Supreme Court reversed the juvenile defendant's 110 years to life sentence. The court wrote: "Consistent with the high court's holding in Graham [v. Florida (2010)] 560 U.S. ___ , we conclude that sentencing a juvenile offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the Eighth Amendment." (Caballero, supra, 55 Cal.4th at p. 268.) As appellant's parole eligibility date, given the three consecutive life sentences and the 25-year-to-life terms for the firearm enhancements that were imposed, will not arise in his lifetime, the sentence must be vacated.
Although the Caballero court set forth the factors the trial court should consider in resentencing a juvenile, such as his or her age at the time of the crime and whether the offender was a direct perpetrator, it declined to provide trial courts with a "precise timeframe" for an appropriate sentence, noting that "every case will be different." (Caballero, supra, 55 Cal.4th at p. 269.)
On remand, the trial court must fashion a sentence that gives appellant "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." (Graham v. Florida, supra, 560 U.S. at p. ___ ; Caballero, supra, 55 Cal.4th at p. 269.) This is not to say that appellant should not receive a sentence commensurate with the senseless violent shooting that he personally committed, which disfigured one of the victims. However, the sentence cannot foreclose the possibility that appellant may someday, within a reasonable timeframe considering his age and circumstances, have the opportunity to convince a parole board that he no longer poses a danger to society.
DISPOSITION
The judgment is reversed and the matter is remanded for the trial court to resentence appellant in a manner consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J. We concur:
WILLHITE, Acting P. J.
MANELLA, J.