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People v. Ramon

California Court of Appeals, Sixth District
Sep 12, 2008
No. H032773 (Cal. Ct. App. Sep. 12, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. RAMON ANDREW DIAZ, Defendant and Appellant. H032773 California Court of Appeal, Sixth District September 12, 2008

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. No. CC759946

BAMATTRE-MANOUKIAN, ACTING P.J.

Defendant Ramon Andrew Diaz was charged by information with possession of cocaine base for sale (Health & Saf. Code, § 11351.5). The information further alleged that defendant had a prior strike conviction (Pen. Code, §§ 667, subds. (b)-(i), 1170.12), and had served a prison term therefor (§ 667.5, subd. (b)). Defendant filed a motion to suppress evidence seized during a search of his person on March 3, 2007 (§ 1538.5), and the prosecutor filed opposition to the motion. The evidence presented at the hearing on the motion on September 4, 2007, is as follows.

All further statutory references are to the Penal Code.

San Jose Police Officer Jeffrey Yates testified that a few days before March 3, 2007, a man had approached him at a particular laundromat when he was on an unrelated stop, and had told him to watch the area for drug sales. Thereafter, the officer patrolled the area and conducted surveillance. While he was in full uniform in a marked patrol car around 6:29 p.m., on March 3, 2007, he saw two men and a woman sitting at a bus stop about 50 feet from the laundromat who did not get on any of the buses that stopped there. One of the men was defendant.

Officer Yates watched as defendant, the other man at the bus stop, and a third man who had approached them on foot, walked to the laundromat. They were not carrying anything and they stayed inside for less than a minute. Defendant and the third man did not return to the bus stop, but the second man did. Because the officer believed the men’s activity was consistent with drug sales, he contacted the man and woman at the bus stop. While Officer Yates was at the bus stop, he saw defendant walk towards the bus stop but turn around when he saw the officer and then walk away. Officer Yates asked Officer Drago, who had arrived to assist Officer Yates, to contact defendant. Officer Drago drove his patrol car after defendant. By the time Officer Yates arrived at their location, which was about 200 feet away, Officer Drago’s patrol car was parked without its emergency lights on and defendant was sitting on the curb, handcuffed.

Officer Yates learned upon his arrival that defendant was on parole. The officer searched defendant and found eight pieces of crack cocaine in a cigarette box. The officer believed that the cocaine was possessed for sale.

Officer Michael Drago testified that Officer Yates asked him to stop defendant, who was walking away from them. Officer Drago drove his patrol car to about 10 to 15 feet in front of defendant, pulled to the side of the street without turning on his spotlight, emergency lights or siren, got out of the car, and said, “Hey, you mind if I talk to you?” The officer did not tug on or touch defendant’s jacket. Defendant stopped and spoke to the officer; defendant did not make any effort to leave. The officer routinely asks people if they are on probation or parole, and defendant stated that he was on parole for assault on a peace officer. Concerned for his safety, the officer asked defendant if he had anything illegal or dangerous on his person. Defendant responded that he was wearing his friend Abu’s jacket. The officer initiated a records check of defendant and then conducted a pat search of defendant and handcuffed him. At some point, dispatch confirmed that defendant was on parole and subject to search terms. Once Officer Yates arrived, he took over the investigation. Officer Yates searched defendant and found contraband inside a cigarette case that had been inside his jacket pocket.

The officer could not recall whether it was before or after he handcuffed defendant.

Defendant testified that he saw and heard Officer Yates asking people at a bus stop about him as he passed by the stop. Defendant had previously been at the bus stop and had momentarily gone into the laundromat with two males, one of whom had been at the bus stop with him. Defendant continued walking down the street towards another bus stop and saw Officer Drago pull over to the curb. Defendant looked down and continued walking as the officer stepped out of his patrol car. The officer shined his flashlight at defendant, reached out and tugged defendant’s jacket, and said, “ ‘Can you step over here? I’d like to ask you a few questions.’ ” When defendant looked up, the flashlight was in his eyes. The officer immediately asked defendant if he was on probation or parole. Defendant did not feel that he was free to leave. He does not remember whether or not he told the officer that he was wearing Abu’s jacket because he was under the influence at the time.

The court denied the motion to suppress on October 23, 2007, finding that the incident at issue was a consensual encounter.

On October 30, 2007, defendant pleaded no contest to the drug charge and admitted the priors with the understanding that he would be filing a Romero motion.

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

Defendant was released from custody on bail on or about February 6, 2008, but a bench warrant issued after he failed to appear for a scheduled hearing on February 29, 2008. He was taken into custody on March 9, 2008.

On March 20, 2008, defendant’s counsel filed a Romero motion on defendant’s behalf that did not include a discussion of defendant’s personal or social history, as defendant “was unable [to] or could not provide” the information to counsel. Counsel also filed a motion to continue the sentencing hearing set for March 21, 2008. At the March 21, 2008 hearing, the prosecutor opposed the motion for a continuance and the court denied the motion.

Defendant moved to withdraw his plea, contending that he thought that there was an agreement that he would receive no more than six years in state prison. The court stated that the transcript of the plea indicated that the parties and the court were “all under the similar understanding that under common sentencing practices that it should not be more than a six year case.” The court then heard statements from defendant and three witnesses who spoke on defendant’s behalf. After considering defendant’s current offense, his past criminal history, and his prospects, the court denied the Romero motion. After stating that it did not need to “hear . . . the motion to withdraw, because the Court doesn’t intend to go over the six years,” the court sentenced defendant to six years in state prison, which is double the mitigated term, and struck the additional punishment for the prison prior.

Defendant filed a timely notice of appeal and a request for a certificate of probable cause. The trial court denied the request for a certificate of probable cause. We appointed counsel to represent defendant in this court. Appointed counsel has filed an opening brief which states the case and facts but raises no issue. We notified defendant of his right to submit written argument in his own behalf within 30 days. That period has elapsed and we have received no response from defendant. Pursuant to People v. Wende (1979) 25 Cal.3d 436, and People v. Kelly (2006) 40 Cal.4th 106, we have reviewed the entire record and have concluded that there is no arguable issue on appeal.

The judgment of March 21, 2008, is affirmed.

WE CONCUR: MIHARA, J., DUFFY, J.


Summaries of

People v. Ramon

California Court of Appeals, Sixth District
Sep 12, 2008
No. H032773 (Cal. Ct. App. Sep. 12, 2008)
Case details for

People v. Ramon

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. RAMON ANDREW DIAZ, Defendant and…

Court:California Court of Appeals, Sixth District

Date published: Sep 12, 2008

Citations

No. H032773 (Cal. Ct. App. Sep. 12, 2008)