P. v. Ryan
Filed 7/18/13 P. v. Ryan CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RALPH MONTECINO RYAN,
Defendant and Appellant.
D062266
(Super. Ct.
No. FSB055511)
APPEAL from
a judgment of the Superior Court
of
Bernardino County, Arthur Harrison, Judge. Affirmed.
Rodger P.
Curnow, 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, Melissa Mandel and Eric
A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury
convicted Ralph Montecino Ryan of murdering James Ramirez and found true
several enhancements. This court
reversed the judgment and remanded the matter to allow Ryan's newly retained or
appointed counsel a reasonable opportunity to fully investigate and present a
new trial motion. (People v. Ryan (May 27,
2009, D054601) [nonpub. opn.] (Prior Opinion).) After the trial court denied Ryan's new trial
motion, Ryan sought relief in a petition for
received ineffective assistance because his counsel filed the motion without
reviewing the trial transcripts. (
court to appoint new counsel and allow counsel to present a new trial
motion. (Ibid.) Ryan subsequently
requested release of personal juror identifying information and moved for a new
trial. The trial court denied both
motions.
Ryan
appeals, contending (1) the trial court abused its discretion in denying his
request for juror information and in failing to order an evidentiary hearing,
(2) the trial court erred in denying his new trial motion because there was a
reasonable probability of a different outcome based upon newly discovered
evidence, (3) the trial court erred in excluding evidence of the victim's
methamphetamine impairment, and (4) there was insufficient evidence to support
his murder conviction. We reject these
contentions and affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
We adapt
this introductory factual statement from our Prior Opinion:
"The witnesses gave varying
testimony and some recanted their earlier statements to police when they
testified at trial; however, viewed in the light most favorable to the
judgment, the evidence was as follows.
"West
Side Verdugo is a large Hispanic criminal street gang in San
Bernardino with a number of cliques, including the Lil
Counts gang, which has a long-standing rivalry with the Florencia 13 gang. [Ryan and Henry Ruiz (together defendants)]
are West Side Verdugo and Lil Counts gang members and victim Ramirez had an affiliation
with Florencia 13.
"Ramirez
lived in an apartment complex located on Fairfax Drive,
an area controlled by the Lil Counts gang.
At about 2:00 or 3:00 a.m. on April 20, 2005, Ramirez was sitting in a chair inside the
downstairs apartment of Araseli Ochoa with Mario Chan, sisters Tabitha and
Samantha Ferguson, a Lil Counts gang member known as Joker and several other
people. They were all either, drinking
or smoking marijuana and methamphetamine.
When Ochoa was younger, she considered herself to be a member of the
West Side Verdugo gang.
"Chan
left the apartment and then walked back inside, followed by the two
defendants. Each defendant had a Bud
Light beer bottle in one hand and a gun in the other hand. Ruiz slapped Ramirez and told him that
outsiders did not belong; defendants then fired at Ramirez, killing him, and
ran outside.
"Defendants
were charged with first degree murder, personally discharging a firearm causing
great bodily injury or death and personally and intentionally using and
discharging a firearm resulting in death during the commission of a crime. It was also alleged that they committed the
crime for the benefit of a gang and that Ruiz had suffered a prior felony
conviction.
"The
matter proceeded to trial and a jury heard testimony that about two weeks
before the shooting, Ochoa had an altercation with Ruiz because Ruiz did not
want Ramirez in her house. The jury also
learned that Chan had heard defendants engage in rival gang conversation with
Ramirez and that Ruiz and Ramirez had threatened each other.
"Marco
Granado, a gang expert for the San Bernardino Police Department, testified that
a person openly identifying himself as a Florencia 13 member living in a
Lil Counts neighborhood such as Fairfax
would need to be addressed by Ruiz as the "shot-caller" for the Lil
Counts gang. He also testified that
people are often afraid to testify against members of West Side Verdugo or Lil
Counts because of possible retaliation against themselves or their family,
including death. When asked why some
witnesses appeared reluctant to identify Ryan, Granado explained that when gang
assaults occur in front of witnesses who are also gang members, the witnesses
might implicate the person who actually committed the assault, but try to
protect any other gang members with that person.
"An
autopsy revealed that Ramirez suffered a scalp abrasion and had been struck by
three bullets, one of which penetrated his heart and lungs. Inside Ochoa's apartment, police recovered
several .380 caliber cartridge casings, which a ballistics expert determined
had been fired from a single weapon.
Police also recovered a loaded nine millimeter cartridge that appeared
to have come from a different weapon.
Police found a carton containing Bud Light bottles behind a nearby
carport and two similar bottles inside Ochoa's apartment. One of the bottles inside the carton
contained Ryan's fingerprints. The
police also found more Bud Light bottles when they searched Ruiz's living room
and bedroom.
"Ruiz
testified in his own defense. He claimed
that on the evening of April 19, he went to a club with Ryan, his wife and
other friends and that he got home at about 2:00
the following morning. He then went to
another friend's house after his wife fell asleep. Ruiz admitted knowing Ramirez, but claimed he
had no "problems" with him and did not know who killed him or
why. He denied being a
"shot-caller" or an active gang member. He claimed that he had been drinking with Ryan
in the early morning hours of April 20 and that was why Ryan's fingerprints
were found on a bottle. He admitted that
after the murder he left his apartment, never went back and avoided law
enforcement until police found him a couple months later.
"[A]
jury found defendants guilty as charged and found all enhancement allegations
to be true, except the allegations that Ryan had personally and intentionally
discharged a firearm resulting in death.
The trial court sentenced Ryan to state prison for a total term of
50-years-to-life and imposed certain restitution fines."
DISCUSSION
I. Request
for Release of Juror Information
A. Background
Ryan moved
to disclose personal juror information.
He supported his motion with a declaration from his counsel. In that declaration, counsel stated that
"[w]hile investigating the case, reviewing the transcripts and speaking to
all those with direct knowledge of what occurred during the jury trial, it was
brought to [his] attention that [Ryan] has claimed one of the jurors fell
asleep during his trial. This suggests
juror partiality and concealment of such partiality during voir dire and during
the trial." Ryan offered a
"proposed letter from judge to jurors" which asked the jurors to
respond as to whether they were willing to discuss their jury service with
Ryan's attorney.
The trial court denied Ryan's request
for juror information, stating it was "going to exercise [its] discretion
because of the nature of the case, the conduct that was part of the case,
conduct in front of a number of other witnesses, [and] the possibility of
intimidation towards jurors." The
court also noted that it was "confident jurors were not sleeping to any
great extent" and Ryan's request amounted to a "fishing
expedition."
B. Analysis
Ryan argues
the trial court abused its discretion in denying his request for juror
information and failing to order an evidentiary hearing. We reject this argument.
A criminal defendant may petition
for access to personal juror identifying information—their names, addresses and
telephone numbers—when the sealed information is "necessary for the defendant
to communicate with jurors for the purpose of developing a motion for new trial
or any other lawful purpose." (Code
Civ. Proc., § 206, subd. (g).) The
petition must be supported by a declaration that includes facts sufficient to
establish good cause for the release of the information. (Code Civ. Proc., § 237, subd. (b).) If the court determines the petition and
supporting declaration establish a prima facie showing of good cause for
release of the juror information, the court must set a hearing, unless the
record establishes a compelling interest against disclosure. (Ibid.)
To demonstrate good cause, a
defendant must make a sufficient showing " 'to support a reasonable belief that jury misconduct
occurred.' " (People
v. Jones (1998) 17 Cal.4th 279, 317.)
The alleged misconduct must be " 'of such a character as is likely to have influenced
the verdict improperly.' " (People
v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Good cause does not exist where the
allegations of jury misconduct are speculative, conclusory, vague, or
unsupported. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.) We review an order denying a request for
personal juror identifying information for abuse of discretion. (People
v. Jones, at p. 317.)
Here, Ryan
contends he made a prima facie showing of good cause based on the declaration
from his counsel. However, counsel's
declaration consisted solely of a vague, conclusory and unsupported statement
that Ryan had claimed at some point that a juror fell asleep during his trial. Ryan did not provide any details to support a
reasonable belief that misconduct occurred, such as at which point during the
proceedings the juror allegedly fell asleep, for how long or who observed the
behavior. Further, Ryan's counsel failed
to indicate how he learned that a juror fell asleep. Instead, he merely stated, "[I]t was
brought to [his] attention."
Notably, Ryan did not provide a supporting declaration regarding his
claim. Under these circumstances, we
conclude the trial court acted well within its discretion in denying Ryan's
request for juror information because Ryan did not establish a prima facie
showing of good cause. Absent a prima
facie showing of good cause, the trial court was not required to hold a
hearing.
Lastly, we
reject Ryan's claim that the trial court applied an improper standard or failed
to make a finding on whether Ryan established "good cause." The trial court stated Ryan's request
amounted to a "fishing expedition" and set forth compelling reasons
for nondisclosure, including jurors' concerns for their safety and possible
intimidation. Based on our review of the
record, we find no indication that the trial court utilized an incorrect
standard in considering Ryan's request.
II. Newly
Discovered Evidence
A.
Background
During
trial, Ruiz's counsel sought to introduce evidence that Justin Kirk, a
West Side Verdugo gang member facing capital charges in Riverside County,
had confessed to Ramirez's murder and was willing to testify. The court held an Evidence Code section 402
hearing with Kirk, but Kirk asserted his rights under the Fifth Amendment and
refused to testify. Defense counsel
later sought to introduce a written summary of Kirk's interview with detectives
and written summaries of telephone calls that Kirk made from jail.
In our Prior Opinion, we set forth
the substance of Kirk's interview with detectives and the telephone calls. (Prior Opinion, at pp. 5–7.) In sum, Kirk suggested in the calls that he
wanted to obtain details about Ramirez's murder and that he was going to
confess to the crime. During a police
interview, Kirk stated he committed the murder but provided little details or
specifics about it. The trial court
excluded the evidence, concluding it was inadmissible because it lacked
sufficient indicia of reliability. On
appeal, we concluded the trial court did not abuse its discretion in excluding
the evidence. (Prior Opinion, at p. 9.)
In conjunction with his new trial
motion, Ryan called Kirk as a witness.
Kirk again asserted his rights under the Fifth Amendment and refused to
testify. Thereafter, Ryan presented
testimony from his defense investigator, Richard Lonsford. Lonsford testified he interviewed Kirk in
prison in 2012. During that interview,
Kirk stated Ryan was not present during Ramirez's murder; instead Kirk was with
Ruiz during the crime. Contrary to
Kirk's 2005 police interview wherein he stated he shot Ramirez, Kirk now told
Lonsford that Ruiz was the shooter.
The trial court ruled Kirk's
statements to Lonsford did not constitute new evidence to support a new trial,
lacked reliability, and would not be admissible as declarations against penal
interest.
B. Analysis
Ryan argues
the trial court erred in denying his new trial motion because there was a
reasonable probability of a different outcome based upon Lonsford's testimony
concerning Kirk's statements, which constituted newly discovered evidence. Specifically, Ryan claims Kirk's statements
contradict the prosecution's theory that Ryan was present with Ruiz during the
crime. We reject Ryan's contentions.
A trial court "may, upon [a
defendant's] application, grant a new trial" when "new evidence is
discovered material to the defendant, and which he could not, with reasonable
diligence, have discovered and produced at the trial." (Pen. Code, § 1181, subd. 8.) For a court to grant a new trial on this
ground, the newly discovered evidence must not "simply corroborate[] the
defendant's story" (People v. Cooper
(1979) 95 Cal.App.3d 844, 852) or "contradict a witness of the opposing
party" (People v. Hall (2010)
187 Cal.App.4th 282, 299). Nor is a new
trial warranted if the new evidence is "merely cumulative" (
10; People v. Butts (1965) 236
Cal.App.2d 817, 827) or "merely impeaching in character" (
528, 535). Rather, to justify a new
trial, the " 'newly
discovered evidence . . . must make a different result probable on retrial.' " (People
v. Verdugo (2010) 50 Cal.4th 263, 308.)
To determine whether a different result is likely on retrial, " 'the trial court may consider
the credibility as well as materiality of the evidence.' " (
329 (Delgado).)
On appeal from an order denying a
motion for new trial, we apply the deferential abuse of discretion
standard. (Delgado, supra, 5 Cal.4th
at p. 328.) " '[W]e accept the trial court's
credibility determinations and findings on questions of historical fact if
supported by substantial evidence.' " (
In addition, "we justifiably accord considerable deference to the
trial judge 'because of "his observation of the witnesses, [and] his
superior opportunity to get 'the feel of the case.' "
' " (People
v. Hayes (1985) 172 Cal.App.3d 517, 524–525.)
Here, Ryan's proffered evidence was
not "newly discovered." To the
contrary, similar evidence regarding Kirk's alleged confession was considered
and excluded by the trial court during Ryan's trial. Although Kirk's statements to Lonsford vary
somewhat from his 2005 police interview, the essence of the statements was the
same. Kirk previously claimed that he
was responsible for the shooting and merely changed his story to indicate Ruiz
was the shooter.
In any event, even assuming the evidence was
newly discovered, it is unlikely that the evidence would have rendered a
different result at trial. Although
"[n]umerous cases hold that a motion for a new trial should be granted
when the newly discovered evidence contradicts the strongest evidence
introduced against the defendant" (People
v. Martinez (1984) 36 Cal.3d 816, 823), Kirk's statements to Lonsford were
simply a variation of Kirk's earlier confession and, like his earlier
statements, were inadmissible because they were not trustworthy. (Prior Opinion, at pp. 8–9.) Moreover, " 'the trial court may consider the credibility as well
as materiality of the evidence in its determination [of] whether introduction
of the evidence in a new trial could render a different result reasonably
probable.' " (Delgado,
supra, 5 Cal.4th at p. 329.) Kirk's statements to Lonsford contradicted
his earlier police interview and were devoid of facts regarding the
murder. Further, in 2005, Kirk attempted
to obtain details about the murder, suggesting he was going to take
responsibility for a crime he did not commit.
Accordingly, the trial court was well within its discretion in finding
that the proffered evidence lacked credibility, and implicitly finding that it
was not probable it would have rendered a different result on retrial.
III. Exclusion
of Evidence
Ryan argues the trial court erred
in denying his new trial motion because it erroneously excluded evidence that
the victim was under the influence of methamphetamine at the time of the
murder. He contends the evidentiary
ruling deprived him of his right to fully present a defense based on heat of
passion or imperfect self defense. We
disagree.
An unlawful killing with malice
aforethought, premeditation, and deliberation constitutes first degree murder,
whereas the absence of premeditation and deliberation reduces the crime to
second degree murder. (
360, 368.) Premeditation and
deliberation may be negated by such factors as heat of passion or intoxication
so as to reduce the crime to second degree murder. (People
v. Wickersham (1982) 32 Cal.3d 307, 329–330.) A killing may further be reduced to voluntary
manslaughter when the absence of malice is shown by heat of passion arising
from provocation by the victim that would cause a reasonable person to react
with deadly passion, or an unreasonable but good faith belief in the need to
act in self defense. (
1083, 1143–1144; People v. Lasko
(2000) 23 Cal.4th 101, 108.)
A defendant's constitutional right
to present a defense requires admission of all " 'relevant and material' " evidence. (People
v. Babbitt (1988) 45 Cal.3d 660, 684.)
A trial court's discretionary power to exclude evidence under Evidence
Code section 352 "must yield to a defendant's due process right to a fair
trial and to the right to present all relevant evidence of significant probative value to his or her defense." (People
v. Cunningham (2001) 25 Cal.4th 926, 998–999.) A trial court's discretionary ruling under
Evidence Code section 352 will not be disturbed unless the court acted in an
"arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice[.]"
(People v. Rodriguez (1999) 20
Cal.4th 1, 9–10.)
Here, police found a knife or
sheath underneath the victim's body.
Ryan contends that with this evidence combined with evidence of the
victim's methamphetamine impairment, "the defense could have set forth a
reasonably plausible argument that the homicide was the lesser offense of voluntary
manslaughter." However, for
voluntary manslaughter, both provocation and actual heat of passion must be
demonstrated. (People v. Gutierrez, supra,
28 Cal.4th at p. 1143.) There was no
evidence of provocation in this case or that the victim even brandished the
knife. The evidence revealed that
although the victim had a knife with him, he never grabbed for it, with one
witness stating, "He didn't even have a chance." Based on the foregoing, we conclude the trial
court did not err in excluding evidence of the victim's methamphetamine
impairment.
IV. Sufficiency
of the Evidence
Ryan argues
the trial court erred in denying his new trial motion because there was
insufficient evidence to support his murder conviction. Specifically, he contends the court did not
independently weigh the evidence, and if it had done so, it would have
concluded there was insufficient evidence of his presence at the crime scene
and that he aided and abetted the murder.
We disagree.
In deciding
a new trial motion, the trial court weighs the evidence independently to
determine whether there is sufficient credible
evidence to support the verdict, but is guided by a presumption in favor of
the correctness of the verdict. (
523–524.) In determining whether the
verdict is contrary to the evidence, the court is confined to evidence that was
before the jury. (People v. Moreda (2004) 118 Cal.App.4th 507, 514.) On appeal, we indulge a strong presumption
that the court properly exercised its discretion. (People
v. Davis, at p. 524.)
Ryan argues
the trial court did not independently weigh the evidence because it concluded
"there was ample evidence upon which the jury could determine that Mr.
Ryan was present [and] that he participated." The trial court's comments do not indicate
that it applied the wrong standard in denying Ryan's new trial motion. Rather, the trial court referenced the jury's
findings but also recounted its interpretation of the evidence and reasoning
for denying the new trial motion.
Ryan
further contends the trial court erred in denying his new trial motion because
the evidence was insufficient to support a finding that he was present at the
crime scene and aided and abetted the murder.
Although the witnesses gave varying testimony and some recanted their
earlier statements to police when they testified at trial, at least one witness
testified at trial that Ryan was present when the murder took place. Further, Ryan's fingerprints were on beer
bottles found near the crime scene and similar bottles were found in the
apartment where the murder took place.
Additionally, the evidence showed
that Ryan and the victim were in rival gangs.
Ryan had previously made threatening statements to the victim and at
least one witness testified that Ryan was with Ruiz at the apartment where the
murder took place. The evidence revealed
that while they were at the apartment, Ruiz lifted his shirt to reveal a gun
and then Ryan and Ruiz approached the victim.
After a short verbal altercation, Ruiz shot the victim. Ryan and Ruiz both benefitted from the
killing of a rival gang member because it showed they were willing to put in
the work necessary for the gang to thrive.
It is not our function to reweigh
the evidence or the credibility of witnesses.
(People v. Pitts (1990) 223
Cal.App.3d 606, 884.) Based on the
record, we agree with the trial court that there was sufficient evidence to
establish Ryan's guilt. Accordingly, we
conclude the court acted within its discretion in denying Ryan's motion for a
new trial.
DISPOSITION
The judgment is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
