P. v. Ramirez
Filed 3/21/13 P. v. Ramirez CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
JOHN VICTOR RAMIREZ,
Defendant and
Appellant.
H038194
(Santa Clara
County
Super. Ct.
No. C1116573)
On the
evening of September 24, 2011,
Guadalupe Medina was selling tacos outside the S & S Market on Tenth
Street at Williams Street
in San Jose. Between 7:00 p.m.
and 7:30 p.m., she saw defendant
John Victor Ramirez and several other men go into the market. Defendant and one of his companions were
Norteno gang members. Alejandro Ortega,
a Sureno gang member, entered the market at about the same time. Inside the market, two of defendant’s
companions made derogatory comments to Ortega, taunted him, and made Norteno
gang challenges. These activities were
captured by the market’s video camera and audio recorder. Defendant could not be seen on the
video.
The men
were in the market for about 10 minutes before Ortega came out followed by the
other men including defendant. The men
moved away from the market into a parking lot next to a nearby restaurant. Medina
heard defendant yelling at Ortega and then she heard three or four
gunshots. Medina
saw that defendant had a gun in his hand and was standing close to Ortega. Ortega had been shot in the buttocks. Medina
saw defendant put the gun into his waistband, go north on Tenth
Street, and enter a house at 441
South Tenth Street.
Medina
called 911. She pointed out to police
officers the house defendant had entered, and a perimeter was set up around the
area of that house. One witness
described the shooter to police as a Hispanic male in his twenties, 180 pounds,
chunky, wearing a black sweater and jeans or khakis. At about 10:00
p.m., one of the officers patrolling the perimeter was approached
by a bystander who told him that a “heavy Hispanic male†wearing dark clothing
was behind the apartment complex at his location “acting suspicious.†This apartment complex was two buildings away
from the house defendant had been seen entering. The bystander reported that he saw the man
“jump over a fence†and “hid[e] behind cars and jump[] over dumpsters.â€
The officer
and the citizen walked toward the apartment complex, and the citizen pointed
out the man he had seen, who was walking toward the carport area. This man, who was Hispanic and wearing dark
clothing, was defendant. Defendant began
“walking out in a fast walk.†The
officer drew his gun and ordered defendant to “get on the ground.†Defendant took a couple more steps, looked
around, and then complied.
After
defendant was detained, the officer observed what he believed were “objective
symptoms of being under the influence†of methamphetamine. He searched defendant’s pockets, found
methamphetamine, and arrested him. Medina
was brought to see defendant, and she identified defendant as the man she had
seen with the gun. Defendant was advised
of his constitutional rights and briefly responded to questions by two
different officers before he was transported to the police station. None of the police officers who dealt with
him observed any signs that he was under the influence of alcohol.
About nine
hours after his arrest, defendant was interviewed at the police
department. He said that the shooting
came about because of a series of prior incidents in which he had been attacked
or intimidated by Sureno gang members.
After those incidents, he obtained a gun. When he and two friends were at the market, a
group of Surenos was verbally harassing them.
Defendant responded by pulling up his shirt and exposing the gun in his
waistband. The Surenos began to run away,
and defendant chased after them. He
pulled out his gun and fired it at the group of Surenos as they ran away. One of the Surenos was “straggling†behind
the others, and this man turned and looked at defendant. Defendant then “focused his gun directly atâ€
that man and fired three or four times.
Meanwhile, defendant’s friend was yelling “Norte.†Defendant and his friend then ran away. Defendant was wearing a red belt and sporting
Norteno gang tattoos at the time of the shooting. Analysis of defendant’s blood did not show
that he was under the influence of methamphetamine or any other stimulant,
although it did show that he was under the influence of alcohol when he was
advised of his rights.
Defendant
was held to answer after a preliminary
examination. He was charged by
amended information with attempted murder
(Pen. Code, §§ 187, 664, subd. (a)) with premeditation and deliberation (Pen.
Code, §§ 187, 189, 664, subd. (a)). The
amended information also included gang (Pen. Code, § 186.22, subd. (b)(1)(C)),
personal use of a firearm (Pen. Code, § 12022.5, subd. (a)), infliction of
great bodily injury (GBI) (Pen. Code, § 12022.7, subd. (a)), and
intentional discharge of a firearm causing GBI (Pen. Code, § 12022.53, subd.
(d)) enhancement allegations.
Defendant
moved to suppress his statements and other evidence on the grounds that his
detention and arrest were unlawful. The
court found that the detention and arrest were lawful and denied the
motion. Defendant also sought to
suppress his statements on the ground that his waiver of his
voluntary, and intelligent and his statements were not voluntary. He argued that the police station
interrogation occurred too long after the advisements and waiver to not require
new advisements and a new waiver.
Defendant also argued that he was too intoxicated at the time of the
advisements to make a voluntary waiver.
Finally, he argued that his statements were involuntary because the
officers had lied to defendant and promised him leniency. The court found that the waiver was knowing,
voluntary, and intelligent, that the time lapse did not require readvisement,
and that defendant’s statements were not involuntary. Defendant also moved to dismiss under Penal
Code section 995, but the court denied the motion.
Just before
jury selection was to begin, defendant entered into a
plead guilty to the attempted murder count and admit the gang allegation, the
GBI allegation, and the personal use allegation in exchange for dismissal of
the remaining allegations and an agreed prison term of 21 years. Defendant waived his rights and entered his
plea and admissions. The court imposed
the agreed term and dismissed the remaining allegations. Defendant timely filed a notice of appeal and
obtained a certificate of probable cause.
The court awarded the victim $640 in restitution for lost wages.
Appointed
appellate counsel has filed an opening
brief which states the case and the facts but raises no issues. Defendant was notified of his right to submit
written argument on his own behalf but has failed to avail himself of the
opportunity. Pursuant to
have reviewed the entire record and have concluded that there are no arguable
issues on appeal.
The
judgment is affirmed.
_______________________________
Mihara,
J.
WE CONCUR:
_____________________________
Premo, Acting P. J.
_____________________________
Grover, J.
