P. v. Ramirez

Filed 2/6/09 P. v. Ramirez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

A jury convicted defendant Ricky Ramirez of eight counts arising out of his forcible sexual attack on an acquaintance. On appeal, he raises four claims of error: 1) No substantial evidence supports more than two counts of digital penetration; 2) propensity evidence should not have been admitted; 3) his sentence was imposed in violation of the Sixth Amendment; and 4) the trial court made an improper dual use of facts in sentencing. We agree that two counts must be reversed for lack of evidence. We shall modify the sentence and otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Because of the limited nature of defendants appellate challenges, we need not recite all of the facts and procedure.

As relevant, the amended information alleged assault likely to cause great bodily injury (Pen. Code, 245, subd. (a)(1; count 1), genital penetration ( 289, subd. (a)(1); counts 2-5), anal penetration ( 289, subd. (a)(1); counts 6-8), forcible oral copulation ( 288a, subd. (c)(2); count 9), and forcible rape ( 261, subd. (a)(2); count 10). It alleged four prison terms ( 667.5, subd. (b), and three aggravating factors, consisting of great violence, planning, and poor performance on probation and parole.

The prosecutor moved to admit evidence of defendants prior sexual assaults, under Evidence Code section 1108. Defendant opposed the motion, which was granted. At trial, the People introduced evidence defendant raped two women and a girl in three incidents occurring in 1989, 1999, and 2001.

In 2006 Karen J. lived with David B., whom she had met at a methadone clinic. Defendant and his girlfriend Lou Lou sometimes stayed overnight at their apartment. However, in 2005 defendant was arrested in Karens apartment and when she learned defendant was a registered sex offender, he was not allowed to stay there anymore. Karen used heroin with defendant a couple of times before and a couple of times after he had been arrested, for a total of four-five times.

On the evening of April 12, 2006, defendant came to the apartment without notice, which was unusual, and suggested they cop some heroin, at his expense. Karen had probably already used rock cocaine with David before defendant arrived. She was also taking prescription medications, Prozac, Seroquel, Valium, Klonopin and Darvocet. He drove her to a Cal Expo parking lot, by a tunnel, on the back side of the lot. Defendant tried to touch her breast, and after she said no, all of a sudden I got hit, and the seat went back, and he was on top of me. When she refused his demand to disrobe he struck her again in the neck area. He kept hitting me in my face and stuff the whole time he was hitting me. She tried to get out of the car but the doors were locked. He touched her vagina but she did not remember if he inserted his fingers into it when she was in the passenger seat. He forced her to take his penis into her mouth. He raped her in the passenger seat, then he moved to the drivers seat and placed her on top of him, again raping her. While she had been in the passenger seat, with her legs up, he put something in her rectum. When he finished the assault and they prepared to leave, the car would not start because he had left the radio on. Defendant called a friend to jump the car, and then drove Karen to her apartment.

David testified that when Karen returned to their apartment that night, she was crying and screaming, and bleeding, from her nose, and she had a mark under her eye and behind her ear and said defendant raped her.

The next morning, after speaking with her sister, Karen called her probation officer and later spoke with the police and went to the hospital. Samples taken from the victims vaginal area matched defendants DNA.

After reading a copy of a statement she had made to Detective Alisa Buckley, Karen testified as follows:

Q. After having reviewed that do you remember whether or not the defendant, in fact, had placed his fingers into your vagina, if so, how many times?

A. I dont remember how many times, but I know he did.

Q. Okay. Do you remember if it was more than one time or just one time?

A. Im sure more.

Karen testified she was sleepy when she spoke with Detective Buckley on April 14, 2006, and felt like she was having a nervous breakdown. She also felt sleepy when she next spoke with Detective Buckley four days later, and testified she had had trouble sleeping.

Detective Buckley testified that when she interviewed Karen on April 14, 2006, Karen had multiple bruises [a]nd overall just to me looked like she had been beaten up. The interview was not finished that day and was continued on April 18, 2006. In the April 14 interview, it was almost impossible to keep Karen conscious. Her eyelids were droopy, her eyes would roll back into her socket. She would drool, she would slump over the chair to the point where her head would almost hit the table, so it was very, very difficult to interview her. Detective Buckley would hit the table to wake Karen up and Karens sister would shake her, but that would only arouse her for 10, 15 seconds before Karen would nod off. Detective Buckley thought Karen was nodding off on heroin, though Karen denied having used heroin recently. Karen did manage to tell Buckley that she had smoked rock cocaine about two hours before she saw defendant. She also used Darvocet for pain and Seroquel as a sleeping aid. She said defendant took her to Cal Expo and told her he could do whatever he wanted. He stuck fingers into her vagina to see if she was wet and said she was.

In the second interview, conducted four days later on April 18, 2006, Karen told Detective Buckley more details:

Q. Did she tell you how many times he placed . . . his fingers in her vagina?

A. She guessed that it was probably about four to five, five times?

The question mark in the quotation is how the reporters transcript reads. It may be a typographical error or it may indicate Detective Buckleys inflection.

During this interview, too, Karens behavior was the same as far as droopy eyelids, nodding off, not being able to stay awake, drooling, slumping over in her seat. Again Detective Buckley had to bang the table or have Karens sister shake her, to keep her alert for a short while before she would nod off again, and again Detective Buckley believed Karen was under the influence of heroin.

At the close of the Peoples case, defendant moved to acquit on two counts of genital penetration, in part because Karen did not remember how many times things had happened and her statements to Detective Buckley while nodding off on heroin were unreliable. The trial court denied the motion based on Karens statements to Detective Buckley.

Defendant testified he had had sex with Karen four to five times in the past and the sex that night was consensual. He had traded heroin for sex with her before. Karen was kind of mad because after the sex defendant was not able to get the drugs she expected. He claimed the sex with the girl in 1989 and the woman in 2001 was consensual, and denied having sex with the woman (his aunt) in 1999.

Christopher Kelly testified defendant called him to jump his battery at Cal Expo. He saw a woman in the car who was smoking a cigarette, said hi to Kelly, and she was smiling and uninjured.

During closing arguments the prosecutor elected the use of a finger for the four genital penetration counts. Defense counsel argued that Karens statements to Detective Buckley were unreliable because she was on drugs.

The jury convicted defendant of felony assault, four counts of genital penetration, one count of anal penetration, forcible oral copulation and forcible rape; the jury acquitted defendant of two anal penetration counts.

Over a defense objection, the trial court declined to submit the aggravating allegations to the jury, in light of the then-recent decision in People v. Sandoval (2007) 41 Cal.4th 825(Sandoval). In a bifurcated trial, the court found true the four prior prison term allegations.

The trial court sent defendant to prison for 64 years and defendant timely appealed.

DISCUSSION

I. Sufficiency of the Evidence

Defendant argues no solid evidence shows he penetrated the victims vagina with his fingers more than two times. We agree.

We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that the accused committed the offense. (In re RyanD. (2002) 100 Cal.App.4th 854, 859; see People v. Barnes (1986) 42 Cal.3d 284, 303-304.) The evidence must be of ponderable legal significance . . . reasonable in nature, credible, and of solid value[.] (Estate of Teed (1952) 112 Cal.App.2d 638, 644, quoted with approval by People v. Johnson (1980) 26 Cal.3d 557, 576.)

It is said that [t]o warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear[.] (People v. Ozene (1972) 27 Cal.App.3d 905, 910, disapproved on another point in People v. Gainer (1977) 19 Cal.3d 835, 844, 851-852.)

The trial court should have granted defendants motion to acquit on two genital penetration counts, because the People did not introduce solid, credible, evidence to support four counts.

We put aside the evidence that the victim had rock cocaine and several other drugs in her system during the assault. The problem is she never testified that defendant put his finger in her vagina more than twice, nor did she make a clear pretrial statement that he had done so.

There were essentially three pieces of evidence:

First, the victim testified that she did not remember how many times defendant put his fingers in her vagina, and when refreshed by reading a statement, testified it was more than one time. That supports two counts, but no more.

Second, Detective Buckley testified the victim told her She guessed that it was probably about four to five times. Guess work is not substantial evidence. (See People v. Raley (1992) 2 Cal.4th 870, 891 (Raley).)

Third, even if in some cases a statement framed as a guess might be enough, the statement would have to be one that reasonably inspires confidence. (Raley, supra, 2 Cal.4th at p. 891.) We are not inspired with confidence in Karens pretrial statements. Karen was practically unconscious both times she spoke with Detective Buckley. There was no basis to doubt Detective Buckleys testimony about Karens condition: In each interview she was under the influence of heroin, nodding off and slumping to the table, and was able to keep talking by the employment of extraordinary means, with Detective Buckley pounding the table and Karens sister shaking her; even with these efforts, she would only stay awake for 10-15 seconds at a time before nodding off again.

It was under such conditions that Karen guessed defendant put his finger in her vagina four to five times. We cannot sustain criminal convictions based on such evidence. We lack any confidence that Karen knew what she was saying as she drifted into and out of consciousness. Therefore, even if in some contexts a statement phrased as a guess might be enough, it is not enough in this case.

Two of the four counts of genital penetration must be reversed for lack of evidence. The trial court imposed upper terms of 8 years on each of the four genital penetration counts and there is no basis to conclude the reversal of two of those counts would change the trial courts evaluation of the other counts. Instead of remanding, we will modify the judgment by striking the sentences for counts 4 and 5, reducing defendants total sentence from 64 to 48 years. (Pen. Code, 1260.)

II. Propensity Evidence

Defendant contends the trial court should not have admitted evidence of his past alleged sexual attacks because Evidence Code section 1108, which authorized such evidence in this case, violates due process.

Defendant explicitly concedes that we are bound to reject his claim, but states he raises it now in order to preserve it for federal review. Based on existing precedent, we reject his claim. (People v. Falsetta (1999) 21 Cal.4th 903; People v. Fitch (1997) 55 Cal.App.4th 172.)

In a prejudice argument defendant makes a stray assertion that it was particularly inflammatory that appellant had raped a 14 year old during one assault and his aunt during another. We do not construe this as a claim that the evidence was unduly prejudicial under Evidence Code section 352, and if it were intended as such we would deem the claim forfeited because it was not separately headed and clearly argued. (See People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5; People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)

III. Sixth Amendment

Defendant raises several challenges to his sentence based on Sixth Amendment principles as articulated in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham).

We address his claims seriatim. But we first note that defendant concedes the propriety of upper terms imposed on the seven sexual crimes, in part due to his recidivism. For completeness we note that the probation report shows that defendant was born in 1966. He became a ward in 1981 at age 15 for attempted burglary and possession of burglary tools, but escaped within the month. In 1982 he committed a robbery. As an adult, his first felony conviction was a commercial burglary in 1990. His second felony case resulted in convictions for sexual battery, statutory rape and false imprisonment. In 1994-1995 he picked up a couple of misdemeanors, hit and run and vehicle theft. His third felony case was in 1998 for failing to register as a sex offender. His fourth felony case was in 2001, for possession of stolen property. His fifth and sixth felonies were in 2003-2004, both for failing to register as a sex offender. Because defendant did not contest the accuracy of the probation report, we presume it is accurate. (People v. Evans (1983) 141 Cal.App.3d 1019, 1021 (Evans).)

1. Defendant contends the upper-term sentence on count 1 (felony assault) is infirm because the reasons given were not found true by the jury and were not based on recidivism. This was the principle term, and the trial court imposed the upper term because the victim was vulnerable due to her size, drug addiction and the fact she was trapped in the defendants car in an unknown remote location[.]

When a defendants recidivism justifies an upper-term sentence, that is, makes him legally eligible for such a sentence, the fact the trial court states other reasons does not transgress the Sixth Amendment. (People v. Stuart (2008) 159 Cal.App.4th 312, 314.) Further, the alleged error would be harmless beyond a reasonable doubt. The jury believed the victims story over defendants. There is no basis to conclude the jury would have rejected the victims testimony about the remote location defendant lured her to (a deserted Cal Expo parking lot) and the fact that he locked the doors of the car, preventing her from escaping. A person who has been driven to a deserted area and locked in a car is obviously and indisputably vulnerable. (Sandoval, supra, 41 Cal.4th at p. 842.) A properly instructed jury would have found the victim was vulnerable, therefore any error was harmless. (See People v. Baughman (2008) 166 Cal.App.4th 1316, 1323 (Baughman).)

2. Defendant contends the trial courts decision to sentence under the harsher scheme of Penal Code section 667.6, subdivision (c), instead of the normal scheme provided by Penal Code section 1170.1, subdivision (a), was improper. The former scheme calls for full-term consecutive sentences, while the latter generally requires that one-third the midterm be imposed when the trial court applies Penal Code section 669 to order counts to be served consecutively.

Because defendant was on parole at the time, the trial court concluded all the counts would run consecutively. The trial court separately determined to impose the harsher full term consecutive sentencing scheme. As reasons for this sentencing choice, the trial court cited defendants violation of a position of trust, premeditation and planning, including the false promise of drugs to get the victim in a vulnerable position, and the threats and other acts disclosing a high degree of cruelty, viciousness, and callousness separate and above what was involved in count one.

We reject the claim that these reasons do not support the sentencing choice because the question whether to impose consecutive sentences does not implicate the Sixth Amendment.

Penal Code section 667.6 authorizes a trial court to impose full term consecutive sentences when the defendant has been convicted of two or more predicate offenses. Under subdivision (c), the trial court has discretion to impose a full term consecutive sentence in lieu of the term provided in Section 1170.1 for each violation of a specified offense if the crimes involve the same victim on the same occasion. ( 667.6, subd. (c).) If the crimes occur on multiple occasions or involve multiple victims, the trial court must impose full term consecutive sentences. (Pen. Code, 667.6, subd. (d).)

In People v.Black (2007) 41 Cal.4th 799, the California Supreme Court reaffirmed an earlier holding that imposition of consecutive terms does not implicate a defendants Sixth Amendment right to a jury trial. (Id. at pp. 820-823.) Nothing in the high courts decisions . . . suggests that they apply to factual determinations that do not serve as the functional equivalent of an element of a crime. (Id. at p. 821.) The decision to impose consecutive sentences under Penal Code section 669 is discretionary and there is no presumption in favor of concurrent sentences. While the trial court may consider aggravating and mitigating factors in the exercise of its discretion, there is no requirement that imposition of consecutive terms be justified by reliance on an aggravating factor. (Id. at p. 822.)Black concluded that whether to impose consecutive terms is a sentencing decision[] made by the judge after the jury has made the factual findings necessary to subject the defendant to the statutory maximum sentence on each offense and does not implicate[] the defendants right to a jury trial on facts that are the functional equivalent of elements of an offense. (Id. at p. 823.)

In our view this reasoning applies equally to the decision to impose full-term consecutive sentences under section 667.6. People v. Groves (2003) 107 Cal.App.4th 1227, albeit decided before Cunningham, concluded that imposition of consecutive sentences under section 667.6 does not implicate the Sixth Amendment. The trial court may impose full term consecutive sentences as a matter of discretion based solely upon the jurys verdicts finding a defendant guilty of predicate offenses. Because a defendant who is convicted of two or more predicate offenses is eligible for the more stringent sentencing scheme, the imposition of full term consecutive sentences does not constitute an increase in the maximum possible sentence. (Grove, supra, 107 Cal.App.4th at pp. 1230-1232; see also People v. Retanan (2007) 154 Cal.App.4th 1219, 1227-1228.)

We agree, and conclude the Sixth Amendment did not apply to the trial courts decision to impose the harsher sentencing scheme. The jury verdicts demonstrated that defendant committed multiple crimes against the same victim, making him eligible for the harsher scheme. No more was required.

3. Defendant contends the aggravating factors alleged in the amended information were not submitted to the jury, thus depriving defendant of due process.

When the amended information was filed, some prosecutors had developed a prophylactic practice of alleging sentencing factors, in order to comply with Cunningham, and this court upheld that practice in a published decision. (Barragan v. Superior Court (2007) 148 Cal.App.4th 1478, 1482-1484.)

However, before the matter in this case was submitted to the jury for decision, the California Supreme Court decided Sandoval, supra, 41 Cal.4th 825. In reliance on Sandoval, over defense objection, the trial court concluded that there was no basis to submit the aggravating factors to the jury. We agree with the trial court.

Sandoval created a judicial remedy for the Sixth Amendment defects in the Determinate Sentence Law (DSL) identified by the United States Supreme Court in Cunningham. Sandoval explicitly concluded that application of these changes to the DSL did not transgress ex post facto principles or deny due process of law. (Sandoval, supra, 41 Cal.4th at pp. 853-857.) Sandoval did not require referring sentencing factors to the jury. Accordingly, the trial court correctly concluded that Sandoval made it unnecessary to submit the aggravating factors to the jury.

Because we reject defendants claim, we need not address his argument that had we accepted the claim, a retrial on the aggravating factors would be barred by double jeopardy principles.

4. Defendant contends he was entitled to be sentenced according to the law in effect at the time of his crimes. This claim would be ripe if and only if we had found a prejudicial Sixth Amendment error, which we have not.

5. Defendant contends the judicial remedy created by Sandoval violates due process. Defendant concedes the latter claim is foreclosed by Sandoval, but he wishes to preserve it for further review. He has preserved the claim. We reject the claim. (Sandoval, supra, 41 Cal.4th at pp. 853-857; see Baughman, supra, 166 Cal.App.4th at p. 1323, fn. 2.)

IV. Dual Use of Facts

Defendant contends the trial court improperly imposed four one-year prison term enhancements when it also in part used the facts of those cases to impose the upper terms on the sexual counts. Generally, the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. ( 1170, subd. (b); see Cal. Rules of Court, rule 4.420(c).)

The trial imposed the upper terms for the sexual offenses as follows:

Im selecting the high term for the sex offenses of eight years for each count because of the following, separate and additional aggravating factors:

The defendants prior convictions are numerous.

Second, the defendants prior performance on probation and parole were unsatisfactory, and, third, the defendant has engaged in violent conduct which indicates a serious danger to society.

I want to specifically note that on page 15 one of the aggravating factors the probation cites is (b)(3), the defendant has served five state prison commitments. I am not using that, factor in any way of justifying the consecutive sentencing or any of the terms involved because he will be punished for those prior state prison commitments in a different way.

The trial court in part used defendants numerous convictions to impose the upper terms, but stated it was not using the fact of his prison commitments. A recent case holds that a prior prison term is not distinct from a prior conviction for purposes of sentencing in this circumstance. (People v. McFearson (2008) 168 Cal.App.4th 388 (McFearson); but see People v. Hurley (1983) 144 Cal.App.3d 706, 709-710 [contra].)

We need not decide whether McFearson was correctly decided, because in a case involving an improper dual use of facts, the error will be found harmless where It is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error. (People v. Avalos (1984) 37 Cal.3d 216, 233; see People v. Osband (1996) 13 Cal.4th 622, 728-729 (Osband).) This is a case where any error was harmless.

In this case, the trial court found no mitigating factors. As stated earlier, because no objection was lodged to the probation report, we presume it is accurate. (Evans, supra, 141 Cal.App.3d at p. 1021.) It shows that defendant has five convictions other than the four that resulted in prison term enhancements, specifically, a misdemeanor weapon possession, a felony second degree burglary, a misdemeanor hit and run, a misdemeanor vehicle theft and a felony sex offender registration violation. Thus, there were numerous convictions apart from those that supported the prison terms. Further, the trial court found two other aggravating factors, namely, defendants poor performance on probation and parole, and his evident danger to society. A single aggravating factor will support an upper-term sentence. (Osband, supra, 13 Cal.4th at p. 728.) Given the valid aggravating factors and the lack of mitigating circumstances, it is not reasonably probable that the trial court would have imposed anything less than the upper terms, or that it would have stricken any of the prison term enhancements, in order to impose a lighter sentence. Accordingly, even if we agreed with defendants claim of an improper dual use of facts, the error would be harmless.

DISPOSITION

Counts 4 and 5 are reversed for lack of evidence and the sentence is modified by striking the terms imposed for those counts, reducing the total state prison sentence from 64 to 48 years. As so modified the judgment is affirmed. The trial court is directed to prepare and forward to the Department of Corrections and Rehabilitation a new abstract of judgment consistent with this opinion.

BLEASE , Acting P. J.

We concur:

DAVIS , J.

HULL , J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com