P. v. Ramos

Filed 2/3/10 P. v. Ramos CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. James LaPorte, Judge.

David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

On December 20, 2005, defendant Fernando Jose Ramos pled no contest in case No. 05CM4414 to second degree burglary (Pen. Code,  459)^[1]and admitted he was armed with a firearm in the commission of the offense ( 12022, subd. (a)(1)). On January 20, 2006, the court placed defendant on probation for five years and ordered him to serve 139 days in jail. The court also ordered defendant to pay a $200 restitution fine and a $20 court security fee.

On May 15, 2008, a jury convicted defendant in case No. 06CM0288 of assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count 1), and dissuading a witness and victim from reporting a crime ( 136.1, subd. (b)(1); count 2). The jury also found defendant personally inflicted great bodily injury in the commission of the assault ( 12022.7, subd. (a)), and both crimes of assault and dissuading a witness were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)).

On July 2, 2008, the court sentenced defendant in both cases to an aggregate term of 24 years to life as follows: the upper term of four years on count 1, 10 years for the gang enhancement, and three years for the great bodily injury enhancement, and a consecutive term of seven years to life on count 2 in case No. 06CM0288, and a concurrent low term of 16 months in case No. 05CM4414. In case No. 06CM0288, the court also ordered defendant to pay a $400 restitution fine and a $100 court security fee.

Defendant appeals, challenging his conviction of dissuading a witness and raising several issues related to sentencing. We conclude insufficient evidence supports defendants conviction of dissuading a witness and reverse his conviction under count 2. We also conclude the court erred in imposing both the three-year great bodily injury enhancement and the 10-year gang enhancement for defendants assault conviction, and remand the matter for the court to restructure defendants sentence. Finally, we conclude the court erred by imposing a court security fee in the amount of $100 in case No. 06CM0288, and reduce that amount to $20. We find no support, however, for defendants contention the court imposed duplicative restitution fines in case No. 05CM4414.

FACTS

Case No. 06CM0288^[2]

While housed in the Kings County Jail on December 1, 2005, defendant and two other inmates, Matthew Barrera and Ondray Johnson, attacked and severely beat fellow inmate James Nave (also known as Bolo). When the beating stopped, Nave went and pressed an intercom button near the cell door to alert correctional officers. As a result of the attack, Nave suffered extensive bruising, a ruptured eardrum, and kidney injury causing blood to appear in his urine. A gang expert presented testimony to support his opinion that defendant, Barrera, and Johnson were members and/or associates of the South Side Locs Norteno criminal street gang and the crimes in this case were committed for the benefit of the gang.

To prove the crime of dissuading a witness, the prosecution relied on evidence that after Nave pressed the intercom button, he was warned he better not tell. This evidence came from statements made by Nave and fellow inmate, James Wilson, during police interviews near the time of the incident.

The parties stipulated at trial that Nave died of a congenital heart defect around six months after the incident and was thus unavailable to testify. In his taped police interview on December 2, 2005, Nave stated he was lying in bed when Johnson came up and hit him. Barrera simultaneously grabbed his feet and pulled him off the bed. They then started kicking and hitting him as fast as they could for about two minutes.

Nave said that when the attack stopped, I just ran over and hit the button real quick and they said you better not tell, you better not tell. Later in the interview, Nave said that after he got up to hit the button, he heard Johnsonsay, Hes going to tell. Nave told the police that, although defendant had hit and threatened him during the three weeks leading up to the incident, defendant was not involved in the December 1 attack. Rather, it was just the two guys that attacked him and caused his severe injuries.

At the time of trial, Wilson testified reluctantly under subpoena that he really didnt see much of the December 1, 2005, incident; he just saw defendant push Naves feet. He did not see Nave fall out of the bed or what happened next. He lied to the police when he told them he saw three people beat Nave and that it was a brutal beating lasting five minutes. When the police came to his house to question him, he was under the influence of methamphetamine. He told them what they wanted to hear to try to get rid of them.

In contrast to his trial testimony, Wilson told police in the taped interview on December 9, 2005, that he saw three people attacking Nave: I heard a commotion and I turned around there were three people jacking this white boy, who we called Bolo. One of the attackers matched defendants description, having the name Ramos tattooed across his back. Wilson was further questioned in relevant part as follows:

Q. After it was all said and done, and Bolo has been taken out of the room these three guys, w[]ere they saying anything? Did they say anything to you guys about telling the police or jail staff what happened?

A. Um, black dude [Johnson] said he was -- he better not tell.

Q. What did he mean Bolo better not tell?

A. Yeah.

Q. Okay.

A That was just -- that was it.

Q. Did Matt or Ramos say anything about anybody telling or what had occurred?

A. No, uh huh.

DISCUSSION

I. Dissuading a Witness

Defendant contends there was insufficient evidence to support his felony conviction of dissuading a witness. We agree.

On appeal, we review the entire record to determine whether it contains evidence that is reasonable, credible and of solid value on the basis of which any rational trier of fact could have found appellant guilty beyond a reasonable doubt. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We view the evidence in the light most favorable to the judgment and presume in support of the judgment every fact the trier could reasonably deduce and infer from the evidence. (Ibid.)

Section 136.1, subdivision (b) provides, in relevant part: [E]very person who attempts to prevent or dissuade another person who has been the victim of a crime or who is witness to a crime from doing any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in state prison: [] (1) Making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge.

There was no evidence in this case that defendant said anything or engaged in any conduct that could be construed as an attempt to dissuade Nave from reporting the December 1, 2005, assault. As noted above, the prosecution relied on evidence Nave was warned he better not tell to establish the crime of dissuading a witness. But the evidence did not show defendant made this statement. When Nave told the police, they said I better not tell, he had just been referring to Barrera and Johnson. (Italics added.) According to Naves recollection, defendant was not involved in the December 1 incident. Although there was substantial evidence defendant did, in fact, participate in the assault, it does not necessarily follow that he also participated in the subsequent warning to Nave not to tell, which formed the basis of a separate crime.

Nor was there any evidence that defendant aided and abetted the crime of dissuading a witness. A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime. [Citations.] (People v. Campbell (1994) 25 Cal.App.4th 402, 409.) [N]either presence at the scene of a crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its commission. [Citations.] However, [a]mong the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense. [Citation.] (Ibid.)

The jury here was instructed on principles of aiding and abetting (Judicial Council of Cal. Crim. Jury Instns. (2007-2008), CALCRIM No. 401), and the prosecutor argued:

[I]f Mr. Johnsons the only one who uttered those words better not tell, the threat to not report this. The question is was Mr. Ramos aiding and abetting in that? And when you look at it in the context of what happened, the three of them just beating him up, certainly. And in the context of the threats that occurred up to that point, absolutely. Is he promoting that? Yes, it is the gang culture. Is he aiding it, is he facilitating it by the implied enforcement of violence? Sure, so it will apply on that concept as well as on the 136. And again, if all he did is aid and abet, you find him guilty, because that is equally culpable under the law as the person who actually utters the statement or throws the punch or the kick.

Although the factors highlighted by the prosecutor were relevant to the question of defendants culpability as an aider and abettor, the prosecutor pointed to and we have found no evidence of any specific action or advice taken by defendant that aided, promoted, encouraged, or instigated the commission of the crime by Johnson.^[3] Evidence of defendants participation in past threats and violence against Nave, his participation in the current assault, and the gang evidence certainly increased the likelihood that defendant had knowledge of Johnsons unlawful purpose in uttering the warning not to tell. But there was no evidence defendant played a supporting role in the commission of the crime of dissuading a witness. The statement followed and was separate from the assault. Defendants mere presence when the statement was made was insufficient by itself to establish he aided and abetted the crime of dissuading a witness.

Because there was insufficient evidence defendant committed the crime of dissuading a witness, either directly or as an aider and abettor, his conviction under count 2 must be reversed. In light of our decision to reverse count 2, we need not reach defendants alternative contention that principles of collateral estoppel require reversal of his conviction because this court reversed Johnsons conviction of the same crime for insufficient evidence in a separate appeal.^[4] Defendants claim of sentencing error in connection with count 2 is also moot.

II. Great Bodily Injury and Gang Enhancements

Defendant contends that in sentencing him for his conviction of assault by means of force likely to produce great bodily injury under count 1, the court erred in imposing the great bodily injury enhancement under section 12022.7, subdivision (a) in addition to the gang enhancement under section 186.22, subdivision (b)(1)(C). We agree.

Section 12022.7, subdivision (a) provides: Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.

Section 186.22, subdivision (b)(1)(C) provides a ten-year enhancement [i]f the felony is a violent felony, as defined in subdivision (c) of Section 667.5. For the assault conviction under count 1, defendant was subject to the section 186.22, subdivision (b)(1)(C) enhancement because section 667.5, subdivision (c)(8) defines a violent felony to include [a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 .

Recently, in People v. Rodriguez (2009) 47 Cal.4th 501 (Rodriguez), the California Supreme Court held that when a defendant is convicted of a violent felony within the meaning of section 667.5, subdivision (c)(8), based on the defendants use of a firearm under section 12022.5, the court cannot impose both the section 12022.5 enhancement and the section 186.22, subdivision (b)(1)(C) enhancement. Such multiple punishment violates section 1170.1, subdivision (f), which provides in relevant part that [w]hen two or more enhancements may be imposed for ... using ... a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. ( 1170.1, subd. (f); Rodriguez, supra, 47 Cal.4th at pp. 508-509.)

Applying the Supreme Courts reasoning in Rodriguez, the court of appeal in People v. Gonzalez (2009) 178 Cal.App.4th 1325, 1327-1328, 1330-1332 (Gonzalez) concluded that imposition of both the three-year great bodily injury enhancement and the 10-year gang enhancement violated section 1170.1, subdivision (g). Section 1170.1, subdivision (g) provides, in relevant part: When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense.

Gonzalez explained:

We find the Supreme Courts reasoning in Rodriguez persuasive and squarely applicable to the present case. Similar to subdivision (f) of section 1170.1, subdivision (g) of the same section prohibits the imposition of more than one enhancement for the infliction of great bodily injury on the same victim in the commission of a single offense . Here, appellants infliction of great bodily injury to a single victim subjected him to a three-year enhancement under section 12022.7, subdivision (a). The same infliction of great bodily injury to the same victim also turned appellants underlying assault offense into a violent felony under section 667.5, which subjected him to a 10-year enhancement under section 186.22, subdivision (b)(1)(C). In other words, the trial court imposed two enhancements for appellants infliction of great bodily injury on the same victim in the commission of a single offense. Under the reasoning articulated in Rodriguez, we conclude the trial court should have imposed only the greatest of those enhancements as required by section 1170.1, subdivision (g). [Citation.] (Gonzalez, supra, 178 Cal.App.4th at pp. 1331-1332.)

We agree with Gonzalez and apply it here to find the courts imposition of both the three-year great bodily injury enhancement and the 10-year gang enhancement violated section 1170.1, subdivision (g), and only the greatest of those enhancements may stand. The proper remedy is to reverse the trial courts sentence and remand the matter to allow the court to restructure the sentence so as to not violate section 1170.1, subdivision (g). (Rodriguez, supra, 47 Cal.4th at p. 509; Gonzalez, supra, 178 Cal.App.4th at p. 1332.) Because section 1170.1, subdivision (g) is dispositive, we need not address [defendants] additional arguments that imposition of both sentence enhancements violated section 654. (Gonzalez, supra, 178 Cal.App.4th at p. 1332.)

III. Court Security Fee

The court imposed a court security fee of $100 in case No. 06CM0288. We accept respondents concession that the fee must be reduced under section 1475.8, subdivision (a)(1), which, at the time of sentencing, provided: To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . Since we reverse defendants conviction on count 2, leaving his conviction on count 1, the $100 court security fee in case No. 06CM0288 must be reduced to $20. We note the abstract of judgment reflects an aggregate court security fee in the amount of $120 for both case No. 05CM4414 and case No. 06CM0288. After the court security fee is reduced to $20 in case No. 06CM0288, the abstract of judgment should reflect an aggregate amount of $40 for both cases.

IV. Restitution Fine

Defendant contends the court erred by imposing a second $200 restitution fine in case No. 05CM4414 when it sentenced him on July 2, 2008. Finding no record of any error, we reject defendants contention.

Section 1202.4 requires the court to impose a restitution fine in every case where a person is convicted of a crime. ( 1202.4, subd. (b).) Further, when a defendant is granted probation and a restitution fine is imposed, the restitution fine survives if probation is subsequently revoked. (People v. Chambers (1998) 65 Cal.App.4th 819, 822.)

Here, all the record shows is that in case No. 05CM4414, the court ordered defendant to pay a $200 restitution fine when it sentenced him in that case on January 20, 2006. There is nothing in the record indicating that defendant ever paid this amount. The court did not orally impose an additional restitution fine at the July 2, 2008, sentencing hearing but only imposed a restitution fine for case No. 06CM0288 in the amount of $400. And the abstract of judgment lists only one restitution fine for case No. 05CM4414 in the amount of $200, and one restitution fine for case No. 06CM0288 in the amount of $400.

It is presumed that official duty has been regularly performed. (Evid. Code,  664.) Further, [t]he appellant has the burden of establishing error and, lacking an adequate record, a reviewing court will presume the evidence supports the judgment. [Citation.] (In re Angel L. (2008) 159 Cal.App.4th 1127, 1137.)

Applying these principles to this case, we reject defendants contention that the court erred at his July 2, 2008, sentencing hearing by imposing a second restitution fine in case No. 05CM4414.

DISPOSITION

Defendants conviction of dissuading a witness under count 2 is reversed and the court security fee is reduced from $100 to $20 in case No. 06CM0288. The sentence is reversed, and the matter is remanded for resentencing so as not to violate section 1170.1, subdivision (g), in accordance with the views expressed in this opinion. The trial court is directed to prepare an amended abstract of judgment and to forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

_____________________

HILL, J.

WE CONCUR:

_____________________

CORNELL, Acting P.J.

_____________________

POOCHIGIAN, J.

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^[1] Further statutory references are to the Penal Code unless otherwise indicated.

^[2] We have omitted a recitation of the facts underlying case No. 05CM4414, as unnecessary to our resolution of the issues on appeal.

^[3] We assume for arguments sake only the evidence was sufficient to establish Johnson committed the crime of dissuading a witness.

^[4] We grant defendants motion to take judicial notice of the record in the appeal from Johnsons 2007 judgment of conviction, our case No. F052915. (Evid. Code,  452, subd. (d) [records of a California court may be judicially noticed].) We note defendant and Johnson were charged together but tried separately, and somewhat different evidence was presented at both trials.