Opinion
H051411
09-17-2024
THE PEOPLE, Plaintiff and Respondent, v. EDWARD RUIZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. C1881624
DANNER, J.
Edward Ruiz returns to this court for a second time following his convictions by jury of crimes he committed in 2018. This court previously reversed the judgment and remanded the matter for resentencing but otherwise affirmed the convictions. (People v. Ruiz (June 24, 2022, H047959) [nonpub. opn.]). The trial court subsequently resentenced Ruiz, and he now appeals from the judgment entered after his resentencing.
The California Rules of Court authorize reference to unpublished California opinions in a narrow set of circumstances not applicable here. (See Cal. Rules of Court, rule 8.1115(b)(1).) However, we may cite to this unpublished decision to explain the factual background of the case. (Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10.)
Appointed counsel for Ruiz has filed a brief asking this court to review the record to determine whether there are any arguable issues on appeal. (See People v. Wende (1979) 25 Cal.3d 436 (Wende).) Ruiz was advised of the right to file a supplemental brief but has not done so. Finding no arguable error that would result in a disposition more favorable to Ruiz, we affirm the judgment.
We do not recount here the facts of Ruiz's underlying offenses, which are described in detail in this court's prior opinion. (People v. Ruiz, supra, H047959.)
On September 24, 2019, the Santa Clara County District Attorney filed a third amended information (information) charging Ruiz with 18 crimes: first degree burglary (Pen. Code, § 460, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), first degree robbery (§ 212.5, subd. (a); count 3), battery causing serious bodily injury (§ 243, subd. (d); count 4), felony false imprisonment (§ 236; count 5), two counts of carjacking (§ 215, subd. (a); counts 6 &8), second degree robbery (§ 212.5, subd. (c); count 7), attempted second degree robbery (§§ 664, 212.5, subd. (c); count 9), taking or unauthorized use of a vehicle with intent to temporarily deprive the owner of title and possession (Veh. Code, § 10851, subd. (a); count 10), attempt to dissuade a witness or victim by use of force or threat of force (§ 136.1, subd. (c)(1); count 11), false imprisonment of a hostage (§ 210.5; count 12), two counts of misdemeanor petty theft (§ 488; counts 13 &14), two counts of misdemeanor resisting, delaying, or obstructing an officer (§ 148, subd. (a)(1); counts 15 &18), misdemeanor possession of controlled substance paraphernalia (Health &Saf. Code, § 11364, subd. (a); count 16), and escape from the lawful custody of an officer (§ 4532, subd. (b)(1); count 17).
Unspecified statutory references are to the Penal Code.
As to count 1, the information further alleged that Ruiz personally used a firearm (§ 12022.5, subd. (a)). As to counts 3, 4, and 5, the information alleged that Ruiz was armed with a firearm (§ 12022, subd. (a)(1)). As to counts 4 and 8, the information alleged that Ruiz personally inflicted great bodily injury (GBI) (§§ 667, 1192.7 [count 4]; §§ 12022.7, subd. (a), 1203, subd. (e)(3) [count 8]). As to count 10, the information alleged Ruiz had previously been convicted of a violation of Vehicle Code section 10851, subdivision (a) (§ 666.5, subd. (a)). Lastly, the information alleged that Ruiz had served seven prior prison terms (prison prior) (§ 667.5, subd. (b)).
A jury found Ruiz guilty of counts 2 through 13, 15, 17, and 18, and found true the allegations attached to counts 3, 4, 5, and 8. The jury found Ruiz not guilty on counts 1 (burglary) and 14 (petty theft). The jury could not reach a unanimous verdict on count 16 (drug paraphernalia possession), which was subsequently dismissed.
In a bifurcated court trial, Ruiz admitted the truth of the prior conviction allegation attached to count 10 and the seven prison prior allegations.
In February 2020, the trial court sentenced Ruiz to an aggregate term of 22 years in prison. The court selected count 8 (carjacking) as the principal term and imposed the upper term of nine years, consecutive to a three-year term for the attached GBI enhancement. In addition, the court imposed the following terms for the remaining counts: a consecutive term of one year and four months for count 3 (robbery), plus a consecutive four-month term for the attached firearm enhancement; a consecutive term of one year for count 4 (battery), plus a consecutive four-month term for the attached firearm enhancement; a consecutive term of one year and eight months for count 6 (carjacking); a concurrent, three-year term for count 7 (robbery); a concurrent, three-year term for count 9 (attempted robbery); a concurrent, three-year term for count 10 (taking or unauthorized use of a vehicle); a consecutive term of three years for count 11 (witness or victim dissuasion); a consecutive term of one year and eight months for count 12 (false imprisonment); and a consecutive term of eight months for count 17 (escape). The court stayed the punishments for count 2 (one year for assault with a firearm) and count 5 (two years for felony false imprisonment), under section 654. The trial court imposed concurrent 60-day jail terms on the three misdemeanor convictions (counts 13, 15, &18). The court ordered victim restitution and various fines and fees, including a $129.75 criminal justice administration fee to the City of San Jose (former Gov. Code, § 29550 et seq.). Lastly, although not mentioned on the record at the sentencing hearing, according to the court clerk's minute order and abstract of judgment, the court struck the punishment for the seven prison prior enhancements.
On appeal, this court reversed the conviction for assault with a firearm (count 2) for insufficient evidence. (People v. Ruiz, supra, H047959.) This court consequently vacated Ruiz's sentence and remanded the matter for full resentencing with directions. With respect to the application of section 654, this court directed the trial court on remand to apply section 654 when resentencing Ruiz on counts 6 (carjacking) and 7 (robbery). This court further decided the trial court properly imposed unstayed sentences on counts 9 and 11 because section 654 does not apply to those counts. This court also noted several errors in the abstract of judgment. (People v. Ruiz, supra, H047959.)
Upon remand, the parties filed new sentencing briefs in the trial court. The People requested that the court impose an aggregate sentence of 22 years and that the court impose the aggravated term on count 8 (carjacking). In support, the People requested that the court "receive records of conviction" that would document Ruiz's nine prior felony convictions, including convictions for section 245, subdivision (a)(1) (assault by means likely to produce great bodily injury) and five prior convictions for Vehicle Code section 10851 (vehicle theft). The People asserted that these records would show that Ruiz had served six prior prison terms, either in state prison or in county jail pursuant to section 1170, subdivision (h). The People contended that these certified records justified imposition of the aggravated term of nine years on count 8, based on California Rules of Court, rules 4.421(b)(2) [the defendant's prior convictions as an adult are numerous or of increasing seriousness] and 4.421(b)(3) [the defendant has served a prior term in prison or county jail under section 1170, subd. (h)]. The People contended that the trial court could, consistent with current law, impose the aggravated term pursuant to section 1170, subdivision (b)(3), which provides "Notwithstanding paragraphs (1) and (2), the court may consider the defendant's prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury."
In his sentencing memo, Ruiz requested the trial court impose an aggregate sentence of five years. Ruiz attached documentation to the memorandum showing his successful participation in prison programs.
Ruiz argued that amendments to section 1385, subdivision (c) created a rebuttable presumption in favor of dismissing enhancements and that the court should dismiss Ruiz's enhancements. The California Supreme Court has subsequently rejected this reading of section 1385. (People v. Walker (2024) 16 Cal.5th 1024, 1029 [construing the "plain language" of section 1385, subdivision (c)(2) to provide that "absent a finding that dismissal would endanger public safety, a court retains the discretion to impose or dismiss enhancements provided that it assigns significant value to the enumerated mitigating circumstances when they are present"].)
In response, the district attorney filed a reply memorandum detailing Ruiz's crimes of conviction and the significant harm they had caused the four victims.
On August 25, 2023, the trial court conducted an in camera hearing on Ruiz's request that the trial court appoint substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. After hearing from Ruiz and his appointed counsel, the court denied the motion.
At the resentencing hearing on September 15, 2023, Ruiz initially requested another Marsden hearing. The trial court asked Ruiz whether he had any new information to convey since the prior Marsden hearing, and Ruiz answered in the negative. The court did not conduct a further Marsden hearing. Ruiz confirmed he was not requesting to represent himself. Upon the request of the People, the trial court admitted certified records of Ruiz's convictions. The court also heard arguments from the parties, remarks made personally by Ruiz, and a statement from one of the victims.
The exhibits admitted by the trial court at the resentencing hearing do not appear in the record on appeal. However, Ruiz's "rap sheets" appear as attachments to the materials the probation department prepared in anticipation of Ruiz's sentencings and are included in the record on appeal. They confirm that Ruiz has numerous prior felony and misdemeanor convictions.
It appears that the original judge was determined to be unavailable at the time of resentencing.
At the conclusion of the resentencing hearing, the trial court sentenced Ruiz as follows: on count 8 (carjacking), the court imposed the aggravated term of nine years. In justifying imposition of the aggravated term, the court stated, "The court is imposing the upper term of nine years, finding aggravating factors per [California] Rule[s] of Court[, rule] 4.421(b)(2) &(3), that's prior convictions-prior prison convictions. There is an aggravating factor under [rule] 4.421(b). That is conduct that creates a danger to society. It's also [rule] 4.421(b)(5), poor or unsatisfactory performance on probation, and the additional factor under [rule] 4.425(a)(2), separate acts of violence and increasing acts of violence." Ruiz did not object to the trial court's use of these factors in support of the imposition of the aggravated term. On count 8, the court also imposed a three-year term for the enhancement under section 12022.7, subdivision (a) (personal infliction of great bodily injury), for a total term of 12 years on that count.
On count 9 (attempted robbery), the trial court imposed the middle term of two years, to be served concurrently. On count 10 (taking or unauthorized use of a vehicle), the court imposed the three-year, middle term pursuant to section 666.5, subdivision (a), to be served concurrently. On count 11 (witness or victim dissuasion), the court imposed the full middle term of three years, to be served consecutively, pursuant to section 1170.15. On count 3 (robbery), the court imposed 16 months (one-third of the middle term), plus four months (one-third of the one-year term) for the enhancement under section 12022, subdivision (a)(1), for a total term of one year, eight months, to be served consecutively. On count 4 (battery), the court imposed one year (one-third of the middle term), to be served consecutively. The court did not impose any additional time for the section 12022.7 enhancement pursuant to section 12022.7, subdivision (g), but it did impose four additional months (one-third of the one-year term) for the enhancement under section 12022, subdivision (a)(1), for a total term of one year, four months on count 4. On count 5 (felony false imprisonment), the court imposed the middle term of two years, plus one year for the enhancement under section 12022, subdivision (a)(1), for a total term of three years, stayed under section 654 as to count 4. On count 6 (carjacking), the court imposed 20 months (one-third of the middle term), to run consecutively. On count 7 (robbery), the court imposed the full middle term of three years, stayed pursuant to section 654 as to count 6. On count 12 (false imprisonment), the court imposed one year, eight months (one-third of the middle term), to be served consecutively. On count 17 (escape), the court imposed eight months (one-third of the middle term), to run consecutively. In total, the court imposed an aggregate term of 22 years-the same sentence Ruiz had received at his first sentencing.
The trial court gave Ruiz updated custody credits of 760 actual days and 177 good conduct days pursuant to section 2933.1, for a total of 937 days on counts 5, 7, 8, 9, 10, 13, and 15. On count 18, the court gave Ruiz 603 actual days and 144 good conduct days pursuant to section 29331 for a total of 747 days The court did not award any custody credits on counts 3, 4, 6, 11, 12, and 17 because they were imposed consecutively The court also awarded 1,303 actual days of postsentence custody credits, with the California Department of Corrections and Rehabilitation to calculate conduct creditsOn the misdemeanor counts 13, 15, and 18, the court denied probation, imposed a jail sentence of 60 days, concurrently with all other counts, and deemed those sentences served. The court waived fees and fines and ordered the restitution that had previously been ordered.
On February 8, 2024, Ruiz's appellate counsel wrote a letter to the superior court noting that the abstract of judgment prepared following Ruiz's resentencing did not include the 1,303 additional days of actual credits. Counsel requested that the court issue a corrected abstract of judgment, which it subsequently did.
The court vacated the previously imposed sentence on count 2 (assault with a firearm) and dismissed that count of conviction for insufficient evidence as ordered by this court. (People v. Ruiz, supra, H047959.) The court ordered various corrections to the abstract of judgment that had been noted in this court's previous opinion. (Ibid.)
II. DISCUSSION
We have reviewed the record under Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to Ruiz. We therefore affirm the judgment.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: Greenwood, P. J. Grover, J.