P. v. Ramirez

Filed 2/5/09 P. v. Ramirez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Aaron H. Katz, Judge. Affirmed.

A jury convicted Francisco Javier Ramirez of animal cruelty. (Pen. Code,  597, subd. (a).) The jury also found true allegations Ramirez had personally used a firearm to commit the offense. (Id., 12022.5, subd. (a).) In a separate proceeding, the trial court found Ramirez's prior juvenile adjudication for robbery qualified as a prior strike conviction. (Id., 667, subds. (b)-(i).) The trial court sentenced Ramirez to 14 years in prison, consisting of the middle term of two years for animal cruelty, doubled to four years for the prior strike conviction, plus the upper term of 10 years for the firearm enhancement.

Ramirez appeals, arguing the trial court violated his constitutional rights by admitting the preliminary hearing testimony of an unavailable witness, by using his prior juvenile adjudication as a prior strike conviction, and by imposing an upper term sentence for the firearm enhancement. We affirm the judgment.

FACTUAL BACKGROUND

Ramirez was the boyfriend of David Zavala's stepdaughter, Lorena Toscano. One evening Zavala arrived home and found officers from the Escondido police and fire departments there because Toscano had been injured. Based on information obtained from Toscano about the cause of her injuries, the police department issued a probable cause pickup for Ramirez.

Zavala's wife subsequently told Zavala that Ramirez had threatened to kill Toscano. Because of this threat, Zavala put one of his dogs in a corral outside next to Toscano's bedroom window. Later that evening, while Zavala was across the street at a neighbor's house, he heard a gunshot. He went back to his house and saw Ramirez run from the corral, get into the passenger side of a white pickup truck, and leave. He found his dog lying dead inside the corral. The dog had been killed by a gunshot to the head. Police found a .22 caliber shell casing just outside the corral near the dog's remains.

DISCUSSION

I

Admission of Preliminary Hearing Testimony of Unavailable Witness

At the preliminary hearing, Zavala testified against Ramirez and defense counsel cross-examined him. After the preliminary hearing, during a discussion about scheduling the trial, the prosecutor informed the trial court Zavala was planning to leave on a trip in a few weeks and would not return for a few months. The prosecutor anticipated Zavala would need to change his trip plans depending on the trial date. Once the trial court set the trial date, the prosecutor asked the trial court to order Zavala back on that date. By then, the Spanish language interpreter who had assisted Zavala with his preliminary hearing testimony had left the courtroom. After the prosecutor informed the trial court Zavala's wife spoke English,[1] the trial court orally ordered Zavala to return for trial. The trial court also provided the information to Zavala in writing.

Zavala did not appear for trial as ordered. The trial court issued a bench warrant and trailed the trial for three days. When Zavala still did not appear, the prosecution moved to admit Zavala's preliminary hearing testimony because he was an unavailable witness.

The trial court conducted an evidentiary hearing to determine whether Zavala was, in fact, unavailable. According to the evidence presented at the hearing, John Diaz, a prosecution investigator, attempted to contact Zavala at his last known address approximately one month after the preliminary hearing and five days after Zavala had originally planned to leave on his trip. Diaz was told Zavala was out-of-town. Several days later, Diaz contacted Zavala's employer and learned Zavala had been discharged for failing to report to work.

Diaz then contacted Zavala's wife. She stated Zavala went to Honduras the previous week because of a family emergency and she expected him to be gone for some time. As Zavala's last known cell phone number was out of order or had been disconnected, Diaz asked Zavala's wife for Zavala's current phone number. She stated she did not have a current phone number. She also expressed doubt Zavala could be reached because he was driving to Honduras and she did not believe he had arrived there yet. Diaz asked Zavala's wife to try to contact Zavala and have him call Diaz collect so Diaz could explain that he needed to appear in court for the trial. Zavala's wife promised she would do so, but Diaz never received any word from Zavala.

The week before trial, Diaz again tried unsuccessfully to contact Zavala by calling his last known cell phone number and the phone numbers of his family members. Diaz also contacted Zavala's former employer to see if Zavala had returned to work, but he had not. Zavala had no other known addresses and Diaz determined through a database search that Zavala was not in custody.

Based on this evidence, the trial court found the prosecution had exercised reasonable diligence to secure Zavala's attendance at trial and granted the prosecution's motion to admit Zavala's preliminary hearing testimony. Ramirez contends the trial court erred because the prosecution did not establish it had exercised reasonable diligence to prevent Zavala from becoming unavailable. We conclude this contention lacks merit.

A witness's prior testimony is constitutionally admissible against a defendant in a criminal trial if the witness was subject to cross-examination by the defendant and the witness is unavailable. (Crawford v. Washington (2004) 541 U.S. 36, 59; People v. Wilson(2005) 36 Cal.4th 309, 340.) Before the trial court can find a witness unavailable, the prosecution must demonstrate it exercised reasonable diligence to secure the witness's attendance at trial. (Evid. Code,  240, subd. (a)(5), 1291; People v. Wilson, at pp. 340-341.) Relevant considerations include the importance of the witness's testimony, whether the prosecution commenced the search for the witness in a timely manner, and whether the prosecution competently explored leads to the witness's whereabouts. (People v. Wilson, at p. 341.) On appeal, we independently review the trial court's determination. (People v. Cromer (2001) 24 Cal.4th 889, 901.)

Here, the focus of the parties' dispute is on the timeliness of the prosecution's efforts to ensure Zavala attended the trial. Since the prosecution knew Zavala had been planning to leave on an extended trip prior to the trial date, Ramirez contends the prosecution should have contacted Zavala before his planned departure date and taken steps, such as requesting a material witness bond, to prevent Zavala from leaving. However, the prosecution is not required to take steps to prevent a material witness from disappearing unless the prosecution knows there is a substantial risk the witness will flee. (People v. Wilson, supra, 36 Cal.4th 309 at p. 342.) There is no evidence in this case the prosecution knew, or even suspected, Zavala would proceed with his travel plans notwithstanding the trial court's order for him to appear at trial. To the contrary, it is apparent from the preliminary hearing transcript the prosecution believed Zavala would postpone his travel plans until after the trial. This belief was not inherently unreasonable since Zavala was a cooperative witness and he was the owner of the dog Ramirez killed.

Ramirez further contends the prosecution did not do enough to ensure Zavala received and understood the trial court's order for him to appear at trial. Instead of relying on Zavala's wife to translate, Ramirez contends the prosecution should have requested the Spanish language interpreter return to the courtroom. While this might have been preferable, we cannot conclude it was essential here. Nothing in the record from the preliminary hearing suggests the trial court or the parties had any concerns about relying on Zavala's wife to translate or any concerns about Zavala's receipt, understanding, or willingness to comply with the trial court's order. In addition, it is clear from Zavala's wife's trial testimony that she understands and speaks sufficient English to have translated the trial court's order for Zavala. More importantly, there is nothing in the record to suggest Zavala's failure to appear at trial was because he did not receive or understand the trial court's order. Accordingly, we conclude the trial court properly admitted Zavala's preliminary hearing testimony at trial.

II

Use of Juvenile Adjudication as a Prior Strike Conviction

Ramirez contends the trial court's use of his prior juvenile adjudication as a prior strike conviction violated his federal constitutional rights because there is no right to a jury trial in juvenile proceedings. The California Supreme Court has granted review on this issue. (People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847.) Until the Supreme Court provides further guidance, we agree with those courts that have concluded a prior juvenile adjudication may constitutionally be used as prior strike conviction notwithstanding the lack of a right to a jury trial in juvenile proceedings. (See, e.g., People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1079; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; People v. Fowler (1999) 72 Cal.App.4th 581, 585.)

III

Imposition of Upper Term Sentence for Firearm Enhancement

Ramirez contends the trial court's imposition of an upper term sentence for the firearm enhancement violated his federal constitutional rights under Cunningham v. California (2007) 549 U.S. 270, 127 S.Ct. 856 and Blakely v. Washington (2004) 542 U.S. 296 because, although the trial court based its decision in part on his recidivism, the trial court also based its decision in part on facts not found to be true by the jury or admitted by him. Ramirez acknowledges this contention is not tenable under the California Supreme Court's decisions in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825. He also acknowledges we are bound by these decisions. (Auto Equity Sales, Inc. v. Superior Court of Santa (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

I CONCUR:

NARES, J.

HUFFMAN, J., concurring and dissenting.

I concur in both the holding and the reasoning in the majority opinion, with the exception of part II, Use of Juvenile Adjudication as a Prior Strike Conviction. I believe the use of such adjudications as strikes is unconstitutional and I therefore dissent from the majority's approval of their use.

The majority opinion recognizes that the issue presented in this case is currently pending before the California Supreme Court. In the absence of other direction by the Supreme Court the majority elects to rely on the weight of California authority that permits the use of juvenile adjudications as strike priors. Certainly the majority is correct that the majority of the California Courts of Appeal have permitted such adjudications to be used as strike priors. It is also true that our Supreme Court will ultimately provide direction on this issue and that the California courts will be required to follow that direction. Pending contrary direction from the Supreme Court, I feel compelled to express my view that the use of juvenile adjudications as strike priors is contrary to federally protected rights because those adjudications are made in a system that denies the juveniles the right to jury trial. In my view the use of such adjudications to dramatically enhance future adult offenses is neither fair nor constitutional.

In Cunningham v. California (2007) 549 U.S. 270, the Supreme Court held that California's determinate sentencing law (the DSL), which allowed a judge to impose a sentence above the statutory maximum based on a fact that was neither found by a jury nor admitted by the defendant, violated the right to jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, the Cunningham court concluded that in this respect, the DSL ran afoul of the rule set forth in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

With respect to the exception for a prior conviction, the Apprendi court noted that this exception, set forth in Almendarez-Torres v. United States (1998) 523 U.S. 224, "represent[ed] at best an exceptional departure from the historic practice" (Apprendi, supra, 530 U.S. at p. 487) that required a jury to determine "the truth of every accusation" based on proof beyond a reasonable doubt. (Id.at p. 477, quoting and citing United States v. Gaudin (1995) 515 U.S. 506, 510; italics added in Apprendi.) The Apprendi court further observed that at the time the Constitution was drafted, the common law did not distinguish between an "element" of a felony offense and a "sentencing factor." (Apprendi, supra, at p. 478.)

Allowing that Almendarez-Torres may have been "incorrectly decided" under the reasoning of Apprendi, supra, 530 U.S. at page 488, the Apprendi court did not overrule the holding in Almendarez-Torres, but stressed that "[b]ecause Almendarez-Torres had admitted the three earlier convictions for aggravated felonies ― all of which had been entered pursuant to proceedings with substantial procedural safeguards of their own ― no question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact was before the Court." The Apprendi court further explained: "Both the certainty that procedural safeguards attached to any 'fact' of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that 'fact' in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a 'fact' increasing punishment beyond the maximum of the statutory range." (Apprendi, supra, at p. 488.)

Apprendi, supra, 530 U.S. 466,thus makes clear that the Almendarez-Torres exception, which allows a judge to use the fact of a prior conviction to increase a defendant's sentence, is based on the assumption that the prior conviction was obtained in proceedings in which the defendant was afforded procedural safeguards that include a right to jury trial.

Because Ramirez's sentence is based on a prior juvenile adjudication obtained in proceedings in which he was not afforded the procedural safeguards that the Apprendi court cited as determinative to the continuing viability of Almendarez-Torres, I would conclude that Ramirez's sentence is unconstitutional.

HUFFMAN, J.

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[1] We note from the record Zavala's wife testified at trial without the assistance of an interpreter.