P. v. Ramirez

Filed 8/26/08 P. v. Ramirez CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Ismael Ramirez appeals from an order revoking probation and sentencing him to the upper term of five years in state prison. He contends that insufficient evidence supports the trial court's finding that he violated probation. We affirm.

Procedural and Factual Background

In September of 2006, Ramirez pled no contest to inflicting corporal injury upon his cohabitant, K.B. He also admitted the special allegation that he had suffered a prior misdemeanor conviction for domestic violence. (Pen. Code, 273.5, subds. (a) & (e).)^[1] Pursuant to the plea agreement, he was placed on three years probation on terms and conditions that included: (1) paying restitution in the amount of $784.87 to a former girlfriend (condition No. 5); (2) not changing his place of residence, nor leaving the County of Santa Barbara or the State of California without the permission of the probation officer (condition No. 14); and (3) not molesting, annoying, threatening, stalking or striking K.B. (condition No. 34).

In March of 2007, Ramirez was charged with violating his probation by failing to comply with the above three conditions and by violating the terms of a protective order issued in September of 2006, directing him to "not annoy, harass, strike, threaten, sexually assault, batter, stalk, destroy personal property of, or otherwise disturb the peace of [K.B.]"

At the probation violation hearing, K.B. testified that she and Ramirez had been dating since 2002. In late 2006, the couple lived together for a few months in the same house as Ramirez's mother and three sisters. On January 1, 2007, about two months after Ramirez was placed on probation, he and K.B. went to Las Vegas for three days to get married. In mid-January, K.B. threatened to tell Ramirez's probation officer that he left the state without permission. In response, according to K.B., Ramirez threatened to have his sisters "kick [her] ass" so he could avoid going to jail for doing so himself. K.B. was frightened because she did not get along with one of his sisters. On at least 10 occasions, he called K.B. a "bitch," "slut," or "stupid" when he was angry at her.

On January 25, 2007, K.B. came home from work. She testified she rejected Ramirez's sexual advances by telling him "No," and pushing him away multiple times. Ramirez tried to encourage K.B. to have sex and pulled down her pants. He pushed her onto the bed and held her hands above her head. K.B. repeatedly told him she did not want to have sex, but he told her that he was her "husband so [she] should not refuse to have sex with him." Although she did not want to have sex, K.B. eventually "went along with it and didn't want to fight him anymore."

The next day, she told Ramirez that she planned to go out with a friend (Ruelas) that night. Ramirez got mad and told K.B. that she "shouldn't be going out because [she] was married." Ramirez then pulled K.B. toward him because he wanted to have sex. K.B. told him "no," but he pushed her onto the bed, pulled off her pants, and had sex with her while she cried.

K.B. moved in with her mother around January 29, 2007. A few days later, K.B. told her mother that Ramirez had "forced her to have sex when she didn't want to." At her mother's urging, K.B. reported the incidents to the police.

K.B. admitted that the couple "used to roughhouse" during sex. Several witnesses, including Ramirez's mother, his sisters, Ruelas, and Ruelas's boyfriends refuted numerous aspects of K.B.'s testimony regarding the alleged sexual assaults.

The trial court found that Ramirez had violated his probation by traveling to Las Vegas without the permission of his probation officer, by forcing K.B. to engage in sexual intercourse against her will, and by subjecting her to verbal abuse.

The trial court observed that K.B. was an immature 20-year old, whose credibility "was seriously eroded by her own testimony, conduct, and the testimony of nearly every other witness excluding her mother." The court also questioned appellant's family's credibility, commenting that the bias of his mother and sisters in his favor was obvious, even though the court accepted "much of their testimony as true." The court believed that K.B.'s testimony about the sexual assaults was supported by her mother, whom the court found to be "the most credible of all the witnesses who testified in the case." The court stated: "The quality of [her mother's] calm and subdued responses to questions, without any hint of malice toward the defendant on either direct or cross-examination, persuaded the Court that [K.B.] had reluctantly and accurately reported to her mother that 'her husband had sex with her when she didn't want to. . . .'" The court concluded that K.B. had exaggerated the magnitude of the sexual assaults, but not the fact that they happened. The court found the prosecution had not proven by a preponderance of the evidence that Ramirez threatened to have his sisters attack K.B.

The trial court noted that, with regard to the events of January 26 and 27, a finding that Ramirez violated the conditions of probation did not depend upon proof that he had raped K.B. The court reasoned: "He was ordered, pursuant to Condition No. 34, to refrain from molesting and annoying her; further, the Protective Order issued concurrently pursuant to the provisions of Penal Code section 136.2, directed [Ramirez] to refrain from annoying, harassing . . . sexually assaulting, battering . . . or otherwise disturbing the peace of [K.B.]. His act of 'forcing himself on her,' a phrase used repeatedly by [K.B.], constituted violations of both the Probation Order and Protective Order. He molested and annoyed her, and he harassed, sexually assaulted, battered or otherwise disturbed her peace. She wanted to go out and party with her friends; he wanted her to stay home and engage in sexual intercourse with him."

At the sentencing hearing, the trial court revoked Ramirez's probation and sentenced him to the upper term of five years in state prison. In imposing the upper term, the court noted Ramirez's disrespect for the court and its orders, his unsuccessful performance on probation for his prior misdemeanor conviction for domestic violence, and his failure to accept responsibility for his behavior.

DISCUSSION

Ramirez contends the evidence was insufficient to support the trial court's finding that he violated the terms of his probation. He argues that because the court found K.B. was not credible, it was unreasonable for the court to infer the truthfulness of K.B.'s account based solely on the credibility of the mother. We disagree. The trial court did not reject K.B.'s entire testimony and there was evidence of other violations.

The trial court may revoke probation "if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation . . . ." ( 1203.2, subd. (a).) The trial court has broad discretion in determining whether a probationer has violated probation. (People v. Rodriguez (1990) 51 Cal.3d 437, 443.) Only in a very extreme case should an appellate court interfere with the discretion of the trial court in determining whether to deny or revoke probation. (Ibid., citing People v. Lippner (1933) 219 Cal. 395, 400.)

Where, as here, "the trial court was required to resolve conflicting evidence, review on appeal is based on the substantial evidence test. Under that standard, our review is limited to the determination of whether, upon review of the entire record, there is substantial evidence of solid value, contradicted or uncontradicted, which will support the trial court's decision. In that regard, we give great deference to the trial court and resolve all inferences and intendments in favor of the judgment. Similarly, all conflicting evidence will be resolved in favor of the decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849, fns. omitted.) "[I]t is the exclusive province of the trial judge . . . to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.]" (People v. Jones (1990) 51 Cal.3d 294, 314.)

Contrary to Ramirez's contention, substantial evidence supports the trial court's finding that he violated the terms of his probation. He concedes he violated condition No. 14 by leaving the county and state without the permission of his probation officer. This violation alone is sufficient to warrant revocation of probation. The record also supports the court's finding that he violated condition No. 34, as well as the terms of the protective order, when he forced himself on K.B., molested, annoyed, threatened, and harassed her, or otherwise disturbed her peace. We do not reweigh the evidence on appeal. The trial court assessed the credibility of the witnesses and believed that K.B. was sexually battered, molested, harassed, or annoyed. The court's findings were reasonable and within its discretion. (People v. Rodriguez, supra, 51 Cal.3d at pp. 443, 447.)

The judgment (order revoking probation) is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

George C. Eskin, Judge

Superior Court County of Santa Barbara

______________________________

Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Taylor Nguyen, Deputy Attorney General, for Plaintiff and Respondent.

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^[1]All statutory references are to the Penal Code.