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People v. Ramirez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 11, 2012
B225339 (Cal. Ct. App. Jan. 11, 2012)

Opinion

B225339

01-11-2012

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

Richard M. Doctoroff, 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, Assistant Attorney General, Zee Rodriguez and Viet H. Nguyen, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA334472)

APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford L. Klein, Judge. Affirmed in part and remanded with directions.

Richard M. Doctoroff, 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, Assistant Attorney General, Zee Rodriguez and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Danny Ramirez appeals from the judgment entered following his convictions by jury on count 1 - carjacking (Pen. Code, § 215, subd. (a)) and on count 2 - second degree robbery (Pen. Code, § 211) with personal use of a deadly and dangerous weapon (Pen. Code, § 12022, subd. (b)(2)) and personal infliction of great bodily injury (Pen. Code, § 12022.7, subd. (a)), and with court findings appellant suffered eight prior felony convictions (Pen. Code, § 667, subd. (d)), three prior serious felony convictions (Pen. Code, § 667, subd. (a)), and three prior felony convictions for which he served separate prison terms (Pen. Code, § 667.5, subd. (b)). The court sentenced appellant to prison for 40 years to life. We affirm the judgment in part and remand with directions.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that about 5:40 p.m. on November 18, 2006, appellant carjacked Alfonso Mada's car in Los Angeles and robbed him as follows.

On the above date and time, Mada was seated in the driver's seat of his Cadillac, which was parked outside of a store. Appellant and his companion entered the car. Appellant sat in the front passenger seat. The companion sat in the back seat. Mada did not know either man. Appellant asked for a ride, Mada replied he did not want to give the men a ride, but they aggressively asked him for a ride. Mada, afraid, drove the two men around for 30 to 45 minutes. Appellant gave Mada directions where to drive.

During the drive, appellant suddenly hit Mada in the right eye with a bottle. Mada testified that, as a result, his glasses "went in" but did not break. Appellant robbed Mada of his jewelry. Appellant kept hitting Mada and threatened to kill him. A fight ensued and, during the fight, Mada bit appellant and, as a result, appellant bled everywhere, including on the steering wheel. Mada eventually jumped out of the car and appellant drove it away with his companion inside. Mada's right eyebrow was cut, and eventually his right eye became so swollen he could not use it to see. The wound required about five stitches.

Appellant's DNA was found in blood recovered from the steering wheel. No blood was in the car prior to the present incident. In November 2007, Mada positively identified appellant's photograph in a photographic lineup and identified appellant at his trial. Appellant presented no defense evidence.

ISSUES

Appellant claims (1) he was denied effective assistance of counsel when his trial counsel failed to challenge the identification of appellant at trial following an impermissibly suggestive photographic lineup, (2) he was denied effective assistance of counsel when his trial counsel failed to produce an eyewitness identification expert, (3) the trial court erroneously denied appellant's Romero motion and his sentence was cruel and unusual punishment, and (4) appellant was entitled to custody credits.

DISCUSSION

1. Appellant Was Not Denied Effective Assistance of Counsel by His Trial Counsel's Failure to Challenge the Identification of Appellant at Trial.

a. Pertinent Facts.

The present offenses occurred in November 2006. In November 2007, Los Angeles Police Officer William Eagleson showed Mada a photographic lineup (People's exhibit No. 5) consisting of six photographs including a photograph of appellant. Before showing the lineup to Mada, Eagleson read to him a witness admonition. Eagleson did not tell Mada that there was someone in the photographs that Mada needed to identify or suggest that Mada select a photograph.

The admonition, entitled "Photographic Show-up Admonition" (People's exhibit No. 4) (some capitalization omitted), stated, "In a moment I am going to show you a group of photographs. This group of photographs may or may not contain a picture of the person who committed the crime now being investigated. Keep in mind that hair styles, beards, and mustaches may be easily changed. Also, photographs may not always depict the true complexion of a person[.] It may be lighter or darker than shown in the photo. Pay not [sic] attention to any markings or numbers that may appear on the photos or any other differences in the type or style of the photograph. When you have looked at all the photos, tell me whether or not you see the person who committed the crime. Do not tell other witnesses that you have or have not identified anyone." Appellant initialed the form containing the admonition, thereby indicating he "underst[ood] the admonition read to [Mada] regarding viewing the photos[.]" (People's exhibit No. 4.)

According to Mada, when Eagleson showed the photographic lineup to Mada, Eagleson said, " 'I got some pictures . . . to see if you can recognize the carjacker.' " Eagleson did not tell Mada (1) that Mada had to pick someone, (2) to point at somebody, or (3) " 'that's the guy.' " Mada positively identified appellant's photograph as depicting the culprit.

Mada acknowledged at trial that, prior to appellant's preliminary hearing, Los Angeles Police Officer Carlos Olmos told Mada that "they had the person." Appellant's preliminary hearing was held on October 22, 2009, and Mada identified appellant at the preliminary hearing. Mada also identified appellant at trial. Appellant made no requests for a corporeal lineup.

b. Analysis.

Appellant claims he was denied effective assistance of counsel when his trial counsel failed to challenge the identification of appellant at trial following an impermissibly suggestive photographic lineup. We disagree.

To determine whether an identification procedure is unduly suggestive, we ask whether anything caused the defendant to stand out from others in a way that would suggest the witness should select the defendant. (People v. Carpenter (1997) 15 Cal.4th 312, 367 (Carpenter). An identification procedure is unfair which suggests, in advance of the witness's identification, the identity of the person suspected by the police. (People v. Ochoa (1998) 19 Cal.4th 353, 413.) Appellate courts review independently any trial court ruling that a pretrial identification procedure was not unduly suggestive. (People v. Avila (2009) 46 Cal.4th 680, 698.)

A defendant has the burden of showing that the identification procedure was so unfair that it violated the defendant's due process rights. (People v. Sanders (1990) 51 Cal.3d 471, 508.) In deciding whether an extrajudicial identification is so unreliable as to violate a defendant's due process rights, we must ascertain (1) whether the identification procedure was unduly suggestive and unnecessary and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances. (Carpenter, supra, 15 Cal.4th at pp. 366-367.)

If a defendant anticipates that an in-court identification may be suggestive, the defendant has a readily available remedy to avert any prejudice expected to result from the courtroom showup procedure: the defendant may demand that a corporeal lineup be conducted prior to any in-court identification. (People v. Green (1979) 95 Cal.App.3d 991, 1003-1004.) Due process requires in an appropriate case that a defendant, upon timely request therefor, be afforded a pretrial corporeal lineup in which witnesses to the alleged criminal conduct can participate. The right to a lineup arises, however, only when eyewitness identification is shown to be a material issue and there exists a reasonable likelihood of a mistaken identification which a lineup would tend to resolve. (Evans v. Superior Court (1974) 11 Cal.3d 617, 625.)

In the present case, we have reviewed the photographic lineup at issue (People's exhibit No. 5). It is a black and white photocopy which depicts six males in two rows of three males each. Appellant's photograph is photograph No. 5, i.e., the bottom center photograph. The appearance of the males is consistent with their being of Hispanic origin. They appear generally to be of the same age and to have the same complexion and build. They are all wearing full mustaches and, except perhaps for one male, they are all, including appellant, wearing short hair. As compared with the other photographs, appellant's face occupies more of his photograph, making his face appear somewhat larger than the faces of the others.

Nonetheless, there is no requirement that a defendant in a photographic lineup be surrounded by others who are nearly identical in appearance. Nor is a photographic lineup considered unconstitutional simply because of the fact, if true, that one suspect's photograph is much more distinguishable from others. (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) Prior to Mada's photographic identification of appellant, Eagleson read to Mada a witness admonition. It indicated, inter alia, that Mada was not to pay attention to any differences in the type or style of the photographs. The photographic lineup in the present case was not impermissibly suggestive.

As respondent notes, appellant, citing to page 665 of the reporter's transcript, asserts in his opening brief that "According to Mada, before police showed him the photographic lineup, police also may have told Mada that they 'had' the man." (Italics added.) During cross-examination at trial, Mada testified that, prior to appellant's preliminary hearing, Olmos told Mada that "they had the person." The following pertinent colloquy from page 665 of the reporter's transcript later occurred during said cross-examination: "Q Did [two officers] tell you the same thing before the officers came to your home and showed you the photos? [¶] A I don't remember that conversation. [¶] Q They may have? [¶] A They may have, yeah." (Italics added.)

Moreover, appellant's DNA placed him in Mada's car. Mada testified appellant was in the front passenger seat. Mada drove him around for 30 to 45 minutes, then fought with him in the car, giving Mada a good opportunity to view appellant. Appellant's DNA was found on the steering wheel where, according to Mada, appellant had bled during the fight. Mada identified appellant at his preliminary hearing and at trial. Appellant did not request a corporeal lineup at any time. Appellant does not dispute the sufficiency of the evidence supporting his convictions or, in particular, the sufficiency of the identification evidence. Mada's identification of appellant during the photographic lineup was reliable under the totality of the circumstances.

The record sheds no light on why counsel failed to act in the manner challenged, counsel did not fail to provide an explanation after being asked to provide one, and we cannot say there simply could have been no satisfactory explanation. Indeed, appellant's counsel reasonably might have refrained from challenging the photographic lineup because he believed it was not impermissibly suggestive and Mada's identification of appellant during the photographic lineup was reliable in any event. Appellant's ineffective assistance claim fails. (See People v. Slaughter (2002) 27 Cal.4th 1187, 1219 (Slaughter); People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).)

2. Appellant Was Not Denied Effective Assistance of Counsel by His Trial Counsel's Failure to Produce An Eyewitness Identification Expert.

Appellant claims he was denied effective assistance of counsel because his trial counsel failed to produce an eyewitness identification expert. We reject the claim.

The decision as to whether to call witnesses is a matter of trial tactics and strategy which a reviewing court generally may not second-guess. (Cf. People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) The record sheds no light on why counsel allegedly failed to act in the manner challenged, counsel did not fail to provide an explanation after being asked to provide one, and we cannot say there simply could have been no satisfactory explanation.

In fact, based on the record in this case, and in light of our Discussion in part one above, appellant's trial counsel reasonably could have refrained as a tactical matter from presenting testimony from an eyewitness identification expert. We also note the court, using CALCRIM No. 226, instructed the jury on factors to be considered when evaluating the credibility of a witness. The court also, using CALCRIM No. 315, instructed the jury on factors to be considered when evaluating the credibility of eyewitness testimony identifying a defendant. Appellant's ineffective assistance claim fails. (See Slaughter, supra, 27 Cal.4th at p. 1219; Ledesma, supra, 43 Cal.3d at pp. 216-217.)

3. Appellant's Romero Motion Was Properly Denied.

a. Pertinent Facts.

The probation report reflects appellant was born in 1962, and uses 13 aliases, six birthdates, and multiple social security numbers. The report also reflects that from 1981 through 2002, inclusive, appellant suffered a total of 12 convictions, served three prison terms, repeatedly committed offenses while on probation, repeatedly violated probation, and was returned to prison for violating parole. Because his convictions are numerous, we list them in the footnote below.

Below we give the date and/or year of appellant's prior conviction, specify the offense, and, in parenthesis, specify the case number (where appropriate) and the disposition. We also indicate whether said prior conviction served, in the present case, as a strike (hereafter, S), as a basis for a Penal Code section 667, subdivision (a) prior serious felony conviction (hereafter, SF) enhancement, and/or as a basis for a Penal Code section 667.5, subdivision (b) (hereafter, PT) enhancement: 1981, petty theft (three years' probation); 1983, petty theft (three years' probation); 1985, receiving stolen property (three years' probation); 1987, petty theft with a prior, and burglary (three years' probation); April 23, 1987, burglary and receiving stolen property (case No. C63311; three years' probation; as to the burglary: S, SF, & PT). In case No. C63311, appellant, in October 1987, was found in violation of probation, and probation was reinstated. In December 1988, appellant was found in violation of probation, probation was revoked, and appellant was sentenced to prison for six years. Appellant was released on parole in June 1991. Continuing: on April 23, 1987, Health and Safety Code section 11550, subdivision (a) (three years' probation); 1988, first degree burglary (case No. C70591; prison sentence stayed pending completion of sentence in case No. C63311; S & SF); 1992, three counts of second degree robbery with weapon use (case No. F16401; 14 years in prison; S, SF, PT). In case No. F16401, in August 2000, appellant was returned to prison for a parole violation. (The trial court in the present case found appellant suffered three additional robbery convictions in case No. F16401.) Continuing: 2002, possessing heroin in jail (case No. SS012003A; four years in prison; PT). On an undisclosed date, appellant suffered a conviction for violating Vehicle Code section 10851.

The probation report also indicated as follows. The current offenses were serious. Appellant's criminal history of convictions for serious and/or violent felonies, resulting in multiple prison commitments, demonstrated the threat he posed to society. The probation officer recommended imprisonment of appellant for the "high-base" term.

During the sentencing hearing on June 10, 2010, the People asked the court to sentence appellant to prison for 47 years to life, arguing, inter alia, that in the present case appellant had inflicted great bodily injury upon an elderly person. Appellant asked the court to strike all of the strikes and sentence him to prison. He argued he was 48 years old and a functional life sentence would not serve the public interest, the strikes were old, he pled no contest to the 1992 robberies, and those robberies occurred during a single incident in which no one was injured. He also argued as follows. Appellant had not had strikes since 1992. His 1987 burglary merely involved theft of a radio from an apartment. No one was injured during the 1987 and 1988 residential burglaries. Appellant's conduct in the present case was not de minimus but he did not have a history of assaultive behavior.

The court indicated as follows. Appellant's involvement in the prior offenses was not minimal. He was not relatively young when the prior offenses occurred. The strikes occurred in three separate cases. Appellant did not lead a blameless life after his strikes. The prior robberies and present offenses involved acts of violence presenting a serious danger to the public. Appellant had a significant criminal record. He had been imprisoned several times, and had received lengthy prison terms. The court denied appellant's Romero motion.

b. Analysis.

Appellant claims the trial court erroneously denied his Romero motion to dismiss his strikes. We disagree. The court presided at appellant's jury trial on the present offenses and at his court trial on the prior conviction allegations. The court heard argument of counsel on appellant's Romero motion.

(People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).)

In light of the nature and circumstances of appellant's current offenses and the strikes, and the particulars of his background, character, and prospects, appellant cannot be deemed outside the spirit of the Three Strikes law as to the strikes, and may not be treated as though he previously had not suffered them. (Cf. People v. Williams (1998) 17 Cal.4th 148, 161-164 (Williams).) We have considered appellant's current arguments. For example, the mere age of the strikes did not require the trial court to strike them, particularly where, as here, appellant did not live a legally blameless life after his commission of the offenses underlying the strikes, but before his commission of the present offenses. (Cf. People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) We hold the trial court's order denying appellant's Romero motion was not an abuse of discretion. (Cf. Williams, supra, at pp. 158-164; People v. DeGuzman (1996) 49 Cal.App.4th 1049, 1054-1055; People v. Askey (1996) 49 Cal.App.4th 381, 389.)

Appellant also claims his sentence constituted cruel and unusual punishment under the federal and California Constitutions. However, we have set forth the pertinent facts and conclude appellant's sentence did not violate constitutional proscriptions against cruel or unusual punishment. (Cf. People v. Romero (2002) 99 Cal.App.4th 1418, 1421-1433; People v. Mantanez (2002) 98 Cal.App.4th 354, 358-367; People v. Ayon (1996) 46 Cal.App.4th 385, 396-401; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828; People v. Ingram (1995) 40 Cal.App.4th 1397, 1412-1417; Lockyer v. Andrade (2003) 538 U.S. 63, 70-77 ; Ewing v. California (2003) 538 U.S. 11, 20-31 .)

Because we have addressed the merits of appellant's cruel and unusual punishment claim, there is no need to decide whether he waived the issue by his failure below to object on those grounds. (See People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7.)

4. Remand Is Appropriate to Permit an Award of Precommitment Credit.

The court sentenced appellant to prison for 40 years to life. This consisted of, inter alia, 25 years to life pursuant to the Three Strikes law for carjacking, plus a five-year term for each of the three Penal Code section 667, subdivision (a) enhancements. The court later stated, "I don't believe [appellant] gets custody credits on this type of sentence."

Respondent effectively concedes appellant's claim that the trial court was obligated to award appellant custody and conduct credit. Respondent asserts the matter must be remanded to permit the trial court to award the credit. We agree the matter must be remanded.

At first blush, it would appear appellant is entitled to a total of 350 days of precommitment credit. However, we note the probation report reflects appellant suffered a conviction for violating Vehicle Code section 10851. Although the case number for that prior conviction, case No. 87CM12716, might suggest he was convicted in 1987 for that offense, the report also states, pertaining to that prior conviction, "date of arrest/conviction not indicated." (Capitalization omitted.)

Appellant was arrested in this case on August 10, 2009, and sentenced on June 10, 2010, a total of 305 days, inclusive. Absent any other consideration, this would appear to result in 305 days of custody credit (cf. People v. Bravo (1990) 219 Cal.App.3d 729, 731) and 45 days of conduct credit (cf. People v. Ramos (1996) 50 Cal.App.4th 810, 816-817; People v. Smith (1989) 211 Cal.App.3d 523, 527; Pen. Code, §§ 667.5, subd. (c)(9) & (17), 2933.1, subds. (a) & (c)).
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If appellant served a prison term in case No. 87CM12716 while in presentence custody for the present offense, that fact might impact whether he was entitled to presentence custody for the present offense. (See In re Rojas (1979) 23 Cal.3d 152, 154.) Appellant acknowledges he has separately requested the trial court to award custody credits. We will remand the matter to permit the trial court to award appellant's custody and conduct credits, if any. We express no opinion as to whether, under the circumstances of this case, appellant is entitled to receive precommitment credit or, if he is, how many days of custody credit and/or conduct credit he should receive.

DISPOSITION

The judgment is affirmed, except that the matter is remanded with directions to the trial court to determine whether appellant is entitled to precommitment credit and, if so, to award same consistent with this opinion. The trial court is also directed to forward to the Department of Corrections an amended abstract of judgment reflecting any such award.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.


Summaries of

People v. Ramirez

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Jan 11, 2012
B225339 (Cal. Ct. App. Jan. 11, 2012)
Case details for

People v. Ramirez

Case Details

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

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

Date published: Jan 11, 2012

Citations

B225339 (Cal. Ct. App. Jan. 11, 2012)