P. v. Ramirez
Filed 4/9/12 P. v. Ramirez CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
GEMMA JAYDE RAMIREZ,
Defendant and Appellant.
G045040
(Super. Ct. No. 08HF2221)
O P I N I O N
Appeal from a judgment
of the Superior Court
of
County, James Patrick Marion, Judge. Affirmed.
Richard Schwartzberg,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L.
Garland, Assistant Attorney General, Collette C. Cavalier and Steve Oetting,
Deputy Attorneys General, for Plaintiff and Respondent.
*
* *
A
jury convicted defendant Gemma Jayde Ramirez of
664; all further statutory references are to this code) and domestic battery
with corporal injury (§ 273.5, subd. (a)).
As to count 1, it also found true allegations she used a deadly weapon
(§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§
12022.7, subd. (e)).
Prior to trial,
defendant moved to suppress evidence, including the knife used in committing
the crimes. The court denied the
motion.
After the jury found her
guilty of all charges, defendant, with new counsel, moved for a new trial on
the basis the verdict was not supported by substantial evidence and she
received ineffective assistance when trial counsel failed to present testimony
from a Battered Women’s Syndrome (BWS) expert.
The court denied the motion and sentenced her to nine years in
prison.
Defendant contends the
court erred in denying her motion to suppress evidence and her counsel was
ineffective because they did not present expert testimony on BWS. Finding no error, we affirm the judgment.
FACTS
After dating for about
six months, Michael Jump moved in with defendant. The relationship soured and verbal,
nonviolent, arguments ensued.
Following one argument,
defendant caused Jump to be arrested for allegedly pulling a knife on her. When Jump returned to the apartment a week
later after being released from jail, the relationship was tense and he told
her he wanted to break up. Defendant
became hysterical and Jump left the apartment.
He returned shortly after midnight
and found defendant lying outside in the street screaming hysterically.
Jump convinced defendant
to go inside the apartment, where she remained hysterical and appeared drunk
and medicated. Jump stated he did not
want to fight anymore, walked to the bedroom and fell asleep.
Jump awoke to find a
butcher knife protruding from his
by the bed. Defendant said, “You are
never going to leave me.” Jump took the
knife out and threw it on the ground.
Feeling faint from the loss of blood Jump grabbed defendant to prevent
her from stabbing him again and called 911.
Jump opened the door for
police when they arrived, then collapsed on the floor. Defendant got up from the floor without
assistance and was arrested. Police
followed the trail of blood from the hallway into the bedroom searching for
potential additional injured victims and found a bloody knife by the side of
the bed, as well as blood on the bed sheets.
DISCUSSION
Warrantless Search
At the hearing on
defendant’s motion to suppress evidence, police officer Jason Hatton testified
that upon responding to a domestic disturbance call at defendant’s apartment,
Jump opened the door with blood on the front of his shirt. Jump stated his girlfriend had stabbed him
and was lying in the hallway and that the knife was somewhere in the apartment. Hatton had Jump lie down and checked on
defendant’s condition. Defendant told
him she was not injured and that the blood on her was from Jump’s injury, which
occurred during a struggle in which she had grabbed the knife and stabbed him
out of fear for her life.
Hatton followed the
trail of blood from defendant to the bedroom to ensure no one else was injured
in the apartment. The blood trail led
around to the opposite side of the bed and to a knife lying in plain
sight. The area next to the bed where
Hatton found the knife, approximately five feet wide, was large enough to
conceal a person and he had to walk a few steps into the room before he saw the
knife. He walked to the far side of the
bed to check for other injured persons lying where he could not see.
During
cross-examination, Hatton acknowledged he had been to the apartment a few weeks
earlier and had no information additional adults or children lived there. On the night of the stabbing, he had arrested
and handcuffed defendant before walking seven to eight feet into the bedroom to
find the knife.
The court denied the
motion to suppress. It reasoned the fact
Hatton had been to the apartment a few weeks earlier and knew only defendant
and Jump lived there did not mean no one else was present, as oftentimes other
people are involved in domestic disputes.
According to the court, it would be a dereliction of his duties for
which Hatton could be fired if he had left without following the blood trail to
see if anyone else was injured. Because
“[a]nybody can be hiding under the bed or hiding hurt near the bed” and Hatton
was unable to see from the doorway, the court found exigent circumstances
justified walking around to the far side of the bed where Hatton saw the knife.
Defendant challenges
this ruling, contending “the facts articulated by police at the hearing did not
justify a ‘protective sweep’” because there was no evidence the officer “knew
or even believed there were others in the house.” She notes Jump was being cared for, defendant
was handcuffed in the hallway, and Hatton’s interviews with Jump and defendant
a few weeks earlier disclosed no information anyone else lived there. The contention lacks merit.
Although “‘“searches and
seizures inside a home without a warrant are presumptively unreasonable,”’”
“the warrant requirement is subject to certain exceptions.” (Brigham
City, Utah v. Stuart (2006) 547
U.S. 398, 403 [126 S.Ct. 1943, 164 L.Ed.2d 650].) One such exigency allowing police to enter a
home without a warrant exists “‘when they have an objectively reasonable basis
for believing that an occupant is seriously injured or imminently threatened
with such injury.’ [Citation.] “‘The need to protect or preserve life or
avoid serious injury is justification for what would be otherwise illegal
absent an exigency or emergency.’”
[Citation.] ‘“‘There is no ready
litmus test for determining whether such circumstances exist, and in each case
the claim of an extraordinary situation must be measured by the facts known to
the officers.’”’ [Citation.] On appeal, we uphold the trial court’s factual
findings if they are supported by substantial evidence, but review
independently its determination that the search did not violate the Fourth
Amendment. [Citation.]” (People
v. Troyer (2011) 51 Cal.4th 599, 605.)
“The “‘emergency aid
exception’” to the warrant requirement ‘does not depend on the officers’
subjective intent or the seriousness of any crime they are investigating when
the emergency arises.’ [Citation.] Rather, the exception ‘requires only “an
objectively reasonable basis for believing” [citation] that “a person within
[the house] is in need of immediate aid.”’
[Citation.] ‘We are to approach
the Fourth Amendment . . . with at least some measure of
pragmatism. If there is a grave public
need for the police to take preventive action, the Constitution may impose
limits, but it will not bar the way.’
[Citation.]” (
Here, the trail of blood
from defendant to the bedroom provided Hatton with an objectively reasonable
basis for believing someone else might be injured and in need of emergency
aid. (See People v. Troyer, supra,
51 Cal.4th at pp. 607-608, 611 [holding bloodstains on door plus other
circumstances justified search; also citing cases finding “blood on the landing
in front of the apartment and on the door constituted ‘some reasonable
basis . . . to associate the emergency with the inside of
apartment 3L’” and “while blood on the defendant’s shirt could have been his
own, a reasonable officer could also have inferred that another party had been
injured after some sort of struggle with the defendant”]; Tamborino v. Superior Court (1986) 41 Cal.3d 919, 923 [search held
justified where officers saw blood stains outside apartment and defendant
covered in blood, and heard strange noises coming from within];
755, overruled on another ground in People
v. Devaughn (1977) 18 Cal.3d 889, 896, fn. 5 [warrantless entry justified
where officers knew of one victim of gunshot wound and saw bloodstains on fence
and porch of house and what appeared to be bloodstains on the floor inside the
house].)
Because the officer’s
warrantless entry in this case was justified under the emergency aid doctrine,
we need not address defendant’s argument the facts did not support a
“protective sweep” to ensure the safety of the responding officers. As a result, the cases she relies on are
inapposite. (See Maryland v. Buie (1990) 494 U.S. 325 [110 S.Ct. 1093, 108 L.Ed.2d
276]; People v. Celis (2004) 33
Cal.4th 667; People v. Ormonde (2006)
143 Cal.App.4th 282.)
Defendant maintains the
prosecution’s opposition to the motion to suppress “was predicated on the
protective sweep doctrine.” But her
citation to the record shows the written opposition argued both that the search
was proper to “look around for additional victims as well as to make a
protective sweep to look for possible hidden
assailants . . . .”
In any event, at the hearing on the suppression motion the prosecutor
focused on the officer’s decision to look for possible victims based on the
blood trail into the bedroom.
Ineffective Assistance of Counsel
Defendant argues her
counsel was ineffective because they failed to call an expert on BWS. To prevail on this claim, defendant must show
counsel’s performance, when viewed objectively, fell below prevailing
professional standards and was prejudicial.
(Strickland v. Washington
(1984) 466 U.S. 668, 687 [104 S.Ct. 2052, 80 L.Ed.2d 674].) “‘Reviewing courts defer to counsel’s
reasonable tactical decisions in examining a claim of ineffective assistance of
counsel [citation], and there is
a
“strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.”’
[Citations.]” (
925.)
“‘“[I]f the record on
appeal sheds no light on why counsel acted or failed to act in the manner
challenged[,] . . . unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.]
A claim of ineffective assistance in such a case is more appropriately
decided in a habeas corpus proceeding.
[Citations.]” (
Cal.4th 264, 266-267.)
Defendant concedes the
record does not disclose the reason why counsel did not call a BWS expert. Accordingly, we reject the claim on
appeal. Although defendant filed a
petition for writ of habeas corpus, it has been severed from the appeal and we
do not address it.
DISPOSITION
The judgment is
affirmed.
RYLAARSDAM,
ACTING P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.
