P. v. Ramirez
Filed 5/23/13 P. v. Ramirez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOE RAMIREZ, JR.,
Defendant
and Appellant.
B234054
(Los
Angeles County
Super. Ct.
No. KA090622)
APPEAL from a judgment of the Superior
Court of
County, Tia Fisher, Judge. Affirmed.
Jennifer Peabody, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________
Defendant
and appellant, Joe Ramirez, Jr., appeals his conviction for
scene of an accident, hit and run driving, and felon in possession of a loaded
firearm, with enhancements for prior prison terms and fleeing the scene of a
vehicular manslaughter (Pen. Code, §§ 192, subd. (c)(1), 12031
(former), 667.5; Veh. Code, §§ 20001, subds. (a) & (c), 20002).
13 years, 8 months.
The
judgment is affirmed.
Viewed
in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.
1. The
traffic accident.
On
February 22, 2010, Angela
Posada and her boyfriend Gustavo Cesena went to defendant Ramirez’s house in Baldwin
Park. Cesena
and Ramirez were friends. At about 9:00 p.m., Posada, Cesena,
Ramirez and Edward Kim drove in Kim’s Honda Accord to a storage unit in
Walnut. Ramirez and Kim got out. When they returned, they placed something
inside the passenger side door panel of the Accord. Ramirez was now driving with Kim in the front
passenger seat, and Cesena and
Posada in the back. Ramirez took Grand
Avenue to the entrance of the
10 freeway. The on-ramp consisted
of two lanes which then merged into a single freeway lane.
As
Edgar Ferman entered the on-ramp, a Honda Civic driven by Gary Chaboya was in
front of him. Ferman saw Ramirez come
speeding up from behind, move into the right lane in order to pass him, and
then pass Chaboya’s Civic by driving on the shoulder. As Ramirez passed the Civic he sideswiped
it. Chaboya first noticed the Accord
when it hit the passenger side of his car as he was about to enter the
freeway.
Ramirez
accelerated onto the freeway and turned off all the Accord’s lights. Chaboya chased the Accord because he was
angry it had not stopped after hitting his car.
He sped up, trying to read the Accord’s license plate number, but
Ramirez seemed to be trying to evade him by weaving in and out of traffic without
using his turn signals. The Accord veered
toward the Barranca Avenue
exit, but then suddenly merged back onto the freeway, continuing to weave in
and out of traffic and almost hitting other cars. The Accord then veered toward the Citrus
Avenue exit, but it again merged back onto the
freeway, driving almost out of control.
Ferman
saw the Accord switch lanes approximately 12 times, sometimes making one
lane change and sometimes making multiple lane changes. Most of the time the Accord was driving less
than a single car length behind the other cars on the freeway. Chaboya saw the Accord almost collide with
two cars. Posada testified Ramirez was
driving recklessly and extremely fast, and that Cesena
told Ramirez to slow down.
Ramirez
lost control of the Accord when he swerved to avoid a pickup truck. He spun out, hit a cinderblock sound
wall, bounced back onto the freeway, and collided with Chaboya’s Civic. Posada, who had been knocked unconscious by
the collision, awoke to hear Ramirez telling her to hurry up and go. Ramirez and Kim climbed out the car windows
and fled. When Posada tapped Cesena’s
leg to tell him they had to go, there was no response. Then she saw Cesena’s
face had been crushed and she realized he was dead.
2. The
investigation.
Police
found a 190-foot-long debris field at the scene, consisting of vehicle parts
and fluids from Kim’s Accord and Chaboya’s Civic. There was a three-foot wide hole in the sound
wall. Cesena,
who had not been wearing a seat belt, was partially decapitated by the roof of
the Accord and died almost instantaneously.
The distance between the Grand Avenue on-ramp, where Ramirez entered the
freeway, and the location of the crash was about a mile.
A
tow truck driver transported the Accord to a storage yard. At the yard, the driver heard the ringing of
a cell phone from inside the Accord. He
saw a cell phone on the front passenger seat and a handgun inside a passenger
door panel.
3. Prior
conduct evidence.
On
December 11, 2008, Baldwin Park Police Officer Jorge Huerta saw two motorcycles
exit the 10 freeway and roll through a stop sign. Huerta turned on his emergency lights to
initiate a traffic stop. One of the
motorcycles stopped but the other one, which was being driven by Ramirez, kept
going. With Huerta chasing him, Ramirez
drove 80 to 100 mph, ran red lights and a stop sign, and crossed double
yellow lines into oncoming traffic.
Ramirez finally lost control of the cycle when he tried to avoid a
collision with another vehicle at an intersection. He hit a parked car, flipped over, and then
ran off. Huerta caught him a block and a
half from the accident scene.
4. Sentencing.
The
jury acquitted Ramirez of murder, but convicted him of
scene of an accident and possession of a concealed loaded firearm by a
felon. Defense counsel urged the trial
court to impose something less than the maximum possible sentence, which was
13 years, 8 months in prison, plus 6 months in county jail,
arguing Ramirez had taken part in a substance abuse treatment program while
incarcerated, that Cesena’s death had resulted from unusual circumstances
because Ramirez was being chased down the freeway by Chaboya, and that none of
Ramirez’s prior convictions involved violence. The prosecutor asked the trial court to impose
the maximum term. Cesena’s father told
the court he and his wife had forgiven Ramirez.
The
trial court announced it would impose the maximum term because of Ramirez’s
prior “reckless, evasive, dangerous driving,†and the fact his “conduct
[this time] could have resulted in the death of anyone who was out there
on the road that night . . . from a public safety standpoint . . .
.†While acknowledging Chaboya had been
chasing Ramirez down the freeway, the trial court said Ramirez “had options,
and those options included not going [on], pulling over . . . .†The court also noted Ramirez’s record of
parole violations.
The
trial court imposed an upper term of six years for the gross vehicular
manslaughter conviction, enhanced by a consecutive five-year term for having
fled from the accident scene. (Veh.
Code, § 20001, subd. (c).) To
this principal term, the court added a consecutive term of eight months for the
felon in possession of a firearm conviction, and two consecutive one-year terms
for the prior prison term enhancements.
This amounted to a total prison term of 13 years and 8 months.
1. The trial court erred by not striking the
prior prison term enhancements.
2. The trial court erred by imposing an
aggravated term on the gross vehicular manslaughter conviction.
3. Ramirez was entitled to additional
presentence custody credits.
1. Prior
prison term enhancements were properly imposed.
Ramirez
contends the trial court abused its discretion by imposing, rather than
striking, two prior prison term enhancement sentences (§ 667.5). This claim is meritless.
“The
enhancement language in section 667.5 is mandatory unless the additional term
is stricken,†and “a section 667.5, subdivision (b) prior prison term
enhancement may be stricken pursuant to section 1385,
subdivision (a). [Citations.]†(People
v. Garcia (2008) 167 Cal.App.4th 1550, 1561.) “[A] court’s failure to dismiss or strike a
prior conviction allegation is subject to review under the deferential abuse of
discretion standard.†(
374.)
“In
reviewing for abuse of discretion, we are guided by two fundamental
precepts. First, ‘ “[t]he burden is
on the party attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary.
[Citation.] In the absence of
such a showing, the trial court is presumed to have acted to achieve the
legitimate sentencing objectives, and its discretionary determination to impose
a particular sentence will not be set aside on review.†’ [Citations.]
Second, a ‘ “decision will not be reversed merely because
reasonable people might disagree. ‘An
appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.’ †’ [Citations.]
Taken together, these precepts establish that a trial court does not
abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.â€
(People v. Carmony, supra, 33
Cal.4th at pp. 376-377.)
The
Attorney General argues, “Nothing about appellant’s history or the instant
offenses warranted the trial court to strike appellant’s prior prison term
enhancements in furtherance of justice.
Appellant’s criminal history spans his entire adulthood and into his
minority.†According to the probation report, Ramirez’s record has been
pervasive, including: a sustained
juvenile petition for battery (§ 242) in 1998; a theft conviction
(§ 484) in 1999; conviction on two counts of burglary (§ 459) in
2004; a subsequent probation violation on the burglary convictions resulting in
a prison sentence; a 2006 conviction for possession of controlled substance
paraphernalia (Health & Saf. Code, § 11364); a parole violation in
January 2007; a parole violation in December 2007; a 2008 felony
conviction for taking a vehicle without the owner’s consent (Veh. Code,
§ 10851) resulting in a two-year prison term. Ramirez subsequently violated parole and was
returned to prison. In 2010, Ramirez was
convicted of evading a police officer in a reckless manner (Veh. Code,
§ 2800.2).
title="">[3] He was on parole at the time he committed the
instant offense.
Ramirez
argues the trial court should have stayed imposition of the two prior prison
term enhancements because, although his conduct was grossly negligent and had
resulted in a death, he “did not intend to kill Cesena and was very remorseful
for causing the death of his friend.
More importantly, Mr. Cesena’s family forgave appellant for his
conduct . . . . [and Ramirez] had no prior history of violence
or assaultive conduct as an adult. He
was 29 years old at the time of the offense. . . . [H]is criminal history was not significant or
extensive and clearly showed no indication of a predisposition toward violent
conduct. [¶] Moreover, while in custody, appellant had
sought to better himself and made changes to increase his success on the
outside.â€
But
a lack of prior assaultive crimes would not be particularly relevant because it
is clear Ramirez had no intention of harming Cesena. What is relevant, however, is the fact
Ramirez was convicted in 2010 for evading a police officer by means of reckless
driving. The incident giving rise to
this conviction occurred a mere 14 months before the present incident, in
which it is clear Ramirez’s reckless driving while trying to flee the scene of
his hit-and-run offense directly resulted in Cesena’s death. We do not see why Ramirez’s age, 29 years old
at the time of the offense, should be viewed as a mitigating factor; he was
surely old enough to know better.
Furthermore, it appears Cesena’s entire family had not, in fact,
forgiven Ramirez. Although Cesena’s
father and mother told the trial court they forgave him, Cesena’s father also
said “not everybody feels the same way we do,†an apparent reference to another
family member.
title="">[4]
The
trial court did not abuse its discretion by refusing to strike the two prior
prison term enhancement terms.
2. Upper
term on vehicular manslaughter conviction was proper.
Ramirez
contends the trial court erred by imposing an aggravated term on count 2,
his conviction for gross vehicular
manslaughter. This claim is
meritless.
a.
Background.
The
probation report found no mitigating factors and the following aggravating
factors: the crime involved great bodily
harm; Ramirez had served a prior prison term; Ramirez was on parole when the
crime was committed; and, Ramirez’s prior performance on probation and parole
had been unsatisfactory.
The
trial court explained its decision to impose an aggravated six-year term on
count 2 by noting Ramirez’s recent conviction for “reckless, evasive,
dangerous driving,†and the fact his “conduct could have resulted in the death
of anyone who was out there on the road that night . . . from a
public safety standpoint . . . of dangerousness.†The trial court noted Ramirez “has also had
violations of parole, has not been compliant with terms and conditions that
have been set for him in the past.â€
b. Legal
principles.
“ ‘Sentencing
courts have wide discretion in weighing aggravating and mitigating factors
[citations], and may balance them against each other in “qualitative as well as
quantitative terms†[citation] . . . . We must affirm unless there is a clear
showing the sentence choice was arbitrary or irrational.’ [Citations.]â€
(People v. Avalos (1996)
47 Cal.App.4th 1569, 1582.) A
single aggravating factor supported by substantial
evidence is sufficient to impose either an upper term or a consecutive
term. (People v. Osband (1996) 13 Cal.4th 622, 732; People v. Jones (2009) 178 Cal.App.4th 853, 863, fn. 7 [only
single aggravating factor needed to impose aggravated term].) “A fact is aggravating if it makes
defendant’s conduct distinctively worse than it would otherwise have
been.†(People v. Zamarron (1994) 30 Cal.App.4th 865, 872.)
c. Threat
of great bodily injury.
California
Rules of Court, rule 4.421, provides:
“Circumstances in aggravation include factors relating to the crime and
factors relating to the defendant.
[¶] (a) Factors relating to
the crime, whether or not charged or chargeable as enhancements include
that: (1) The crime involved great
violence, great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness; . . .â€
Ramirez
contends the trial court improperly relied on the threat of great bodily injury
as an aggravating factor. He correctly
points out this factor could not have been properly based on the injury to
Cesena because gross vehicular manslaughter, by definition, involves the death
of a human being. “Bodily harm resulting
in death is an element of felony vehicular manslaughter. Reliance
upon that fact alone is improper when trying to aggravate a term of
imprisonment.†(People v. McNiece (1986) 181 Cal.App.3d 1048, 1061,
disapproved on other grounds in People v.
Flood (1998) 18 Cal.4th 470, 490, fn. 12 and People v. McFarland (1989) 47 Cal.3d 798, 804-805.)
However,
it was proper to aggravate Ramirez’s sentence based on the risk of harm he
posed to other motorists on the road that night, as well as to his passengers
other than Cesena. In
1354, the defendant had been convicted of kidnapping during a carjacking,
evading an officer with reckless driving, and carrying a firearm in a
vehicle. During sentencing, the trial
court said “the entire population of people on the freeway at the time,
including the police officers chasing them and the individuals in the car, were
put at risk . . . .†(
held that, based on this statement, the trial court “could have cited as
reasons for imposing the upper . . . term†both California Rules of
Court, rule 4.421(a)(1) (offense involved high degree of callousness) and
rule 4.421(b)(1) (conduct was extremely dangerous to society). (People
v. Ortiz, supra, at p. 1373.)
public was exposed would have, by itself, constituted an adequate ground for
imposing the upper term.†(
Ramirez
asserts: “The trial court’s reliance on
the threat of great bodily harm to
others in the vehicle or on the freeway at the time of the collision was
unjustified . . . . where
the defendant did not intend to do anyone any harm.†He argues:
“The presence of the word ‘or’ in subdivision (a)(1) of
rule 4.421, where that subdivision states ‘[t]he crime involved
. . . threat of great bodily harm or
other acts disclosing a high degree of cruelty, viciousness, or callousness’
further suggests the requirement of an actual malicious intent to do great
bodily harm. The concepts of cruelty and
viciousness clearly require an intent to harm.
There was no evidence . . . appellant had any intent to do
harm to anyone. Thus, this subdivision
was inapplicable.â€
We
disagree. Ramirez is ignoring the third
alternate term provided by this rule:
“or other acts disclosing a high degree of cruelty, viciousness, or
an intent to do harm, “callousness†does not because, in this context, it means
a disregard or lack of sympathy for others.
That is, it connotes bringing about an unintentional harm because the
defendant was indifferent to the risk of causing harm to others (See, e.g.,
Cal.App.4th 539, 558 [noting “callous†is typically defined as “insensitive,
indifferent or unsympatheticâ€].) In this
case, Ramirez drove erratically, recklessly and dangerously down a crowded
stretch of freeway. His driving posed a
danger to other vehicles, as well as to the other passengers in his own car
apart from Cesena. Ramirez’s conduct was
certainly callous.
d. Ramirez’s
prior dangerous driving.
Ramirez
argues the trial court improperly relied on his history of reckless, evasive or
dangerous driving because “[i]t is improper to impose the upper term based on
facts which are an inherent part of the charged offense.†According to California Rules of Court, rule
4.420(d), a “fact that is an element of the crime . . . may not be
used to impose a greater term.†But Ramirez’s
prior reckless driving is not an element of gross vehicular manslaughter. Section 192, subdivision (c)(1),
defines gross vehicular manslaughter as “driving a vehicle in the commission of
an unlawful act, not amounting to felony, and with gross negligence; or driving
a vehicle in the commission of a lawful act which might produce death, in an
unlawful manner, and with gross negligence.â€
CALCRIM No. 592 provides:
“To prove that the defendant is guilty of gross vehicular manslaughter,
the People must prove that: [¶] 1 The defendant (drove a
vehicle/operated a vessel); [¶] 2 While (driving that vehicle/operating
that vessel), the defendant committed (a/an) (misdemeanor[,]/ [or]
infraction[,]/ [or] otherwise lawful act that might cause death); [¶]
3 The defendant committed the (misdemeanor[,]/ [or] infraction[,]/ [or]
otherwise lawful act that might cause death) with gross negligence; [¶] AND [¶]
4 The defendant’s grossly negligent conduct caused the death of another
person.â€
Ramirez’s
conduct of speeding down the 10 freeway at night with his lights off, while
making erratic lane changes and engaging in other reckless driving techniques,
constituted gross negligence.
e. Ramirez’s
“options†other than to continue driving.
Ramirez
argues the trial court erred in relying on the fact he had “options†other than
to continue driving down the freeway.
Ramirez asserts this constituted using an element of the offense to
aggravate his sentence because “the crime could not have been committed without
appellant first making a decision to continue driving, rather than pulling over
while he was being chased by Chaboya. It
was appellant’s decision to continue driving which led to his commission of
gross vehicular manslaughter. Thus, the
fact that he continued to drive at speeds in excess of the posted speed limits
and make unsafe lane changes was an essential element of the charged
offense. Had appellant stopped, there
would have been no crash and no crime.â€
Ramirez
is reading too much into the trial court’s comment, which was an apparent
response to defense counsel’s argument the trial court should “consider a
factor in mitigation related to the circumstances of this crime which was that
it was committed because of an unusual circumstance, that being the driving of
Mr. Chaboya behind Mr. Ramirez on the date of the incident which was
dangerous driving as well, and I would argue somewhat of a provocation. And I’d ask the court to consider that factor
in mitigation.†The trial court was
apparently rejecting this “provocation†argument on the ground Ramirez could
have simply pulled over rather than trying to outrun Chaboya.
3. Ramirez
was not entitled to additional presentence custody credits.
Ramirez
contends the failure to award him additional days of presentence custody credit
in accordance with the newest version of section 4019 violated his equal
protection rights. However, he has
conceded in his reply brief that,
after the recent decision in People v.
Brown (2012) 54 Cal.4th 314, this contention is meritless. Brown
concluded a prior version of section 4019 applied prospectively only and
that prospective application did not violate equal protection. (See People
v. Ellis (2012) 207 Cal.App.4th 1546, 1551 [concluding “
equally to current section 4019â€].)
DISPOSITION
The
judgment is affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
KLEIN,
P. J.
We
concur:
KITCHING, J.
ALDRICH, J.
name="_ftn1" title="">[1]
All further references are to
the Penal Code unless otherwise specified.
name="_ftn2" title="">[2]
Cesena’s father said: “What I would say on behalf of
. . . his mother and I, not everybody feels the same way we do is we
forgive him. My son would forgive him
because he was a real good friend of his.â€
“And he loved his friend. And I
just wish he wouldn’t have left him like an animal tossed on the side of the
road. I wish he would have stood
there and been a man and did what he had to do, but I’m not hateful towards him
and we don’t feel that my son would want us to be.â€
