P. v. Ramos
Filed 2/5/13 P. v. Ramos CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
THE PEOPLE,
Plaintiff and
Respondent,
v.
MARCOS ALLAN RAMOS,
Defendant and
Appellant.
2d Crim. No.
B237976
(Super. Ct. No.
1335443)
(Santa
Barbara County)
Marcos Allan Ramos
appeals a judgment following conviction of unlawful
possession of a firearm, and unlawful possession of ammunition, with
findings that he suffered a prior serious felony strike conviction and served
two prior prison terms. (Former Pen.
Code, §§ 12021, subd. (a)(1), 12316, subd. (b)(1); Pen Code, §§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)
denied Ramos's motion to suppress evidence pursuant to section 1538.5, and
affirm.
FACTS
AND PROCEDURAL HISTORY
In the afternoon of February
23, 2010, Santa Barbara police officers responded to a report of a
"trespass in progress" in apartment No. 12 at 33 l/2 Parker Way. Detective Kenneth Kushner saw a dark-colored
duffel bag with shoes resting atop the bag outside the door of apartment No.
12. No one was present in the hallway of
the apartment building; a resident of apartment No. 11 opened her door,
however, and began to leave her apartment.
Kushner recognized the resident as Maria G., and knew that Ramos was the
father of her child. He instructed her
to return to her apartment and close the door.
The police officers
slightly moved the duffel bag to enter apartment No. 12. The door to the apartment was locked, and an
officer used a knife to open the door.
After entering and announcing their presence, the officers saw Ramos
standing inside the apartment. He
immediately fled into a bedroom that was occupied by another man, Robert
Harper.
The police officers saw
a syringe cap and aluminum can containing a burnt substance on the kitchen
counter. In the bedroom, they found a
syringe containing a dark substance (later stipulated to be heroin) that was
"ready for use" and a black baseball cap with the initial
"P." The officers recognized
Ramos and knew him to be a member of the criminal street gang, "Westside
Projects."
title="">[2] The officers later recovered a photograph
from Ramos's cellular telephone depicting him wearing the "P"
baseball cap.
The police officers
arrested Ramos and Harper, who appeared to be under the influence of heroin. They seized the duffel bag and searched it at
the police station. Inside the bag they
found four letters from prison inmates addressed to Ramos, a .22 caliber
firearm wrapped inside a bandana, men's clothing, and ammunition contained
within a smaller zippered bag, among other things.
During his later custody
at county jail, Ramos admitted to his cellmate, Anthony Melena, that he entered
the vacant apartment to use heroin. He
also stated to Melena that he removed his fingerprints from his firearm before
placing it in his duffel bag. Melena and
Ramos previously had served time in prison together and shared the
"Sureno" criminal street gang affiliation.
The .22 caliber firearm
contained ammunition and was in working condition. A DNA analysis of the firearm surface
revealed DNA consistent with that of Ramos as well as three other persons and
that Ramos "was the major contributor" to that mixture. Fingerprints on the letters contained in the
duffel bag were not those of Ramos or Harper.
Motion
to Suppress Evidence
Ramos filed a motion to
suppress evidence of the firearm and ammunition found in the duffel bag. The trial court held an evidentiary hearing
during which retired Detective Bernie Gaona and Detective Kushner testified.
Gaona testified that
police officers had received information that trespassers were inside apartment
No.12 at 33 1/2 Motor Way. Gaona spoke
with the building owner who informed him that the apartment was vacant and
"[n]o one had permission to be in that apartment." The building owner authorized Gaona to enter
the apartment and remove any trespassers.
Gaona stated that apartment No. 12 was one of eight apartments along
with a tenant laundry room in the left wing of the building. When they approached apartment No. 12, they
found a duffel bag with a pair of white shoes resting against the wall slightly
to the left of the apartment door. The
outside of the bag did not contain owner identification. Several apartment doors were open, but no one
was in the hallway. Gaona described the
duffel bag as "sitting there unattended."
The police officers
opened the lock on the apartment door, entered the apartment, and found Ramos,
Harper, heroin, and heroin paraphernalia.
Gaona partially unzipped the duffel bag, immediately saw a letter
addressed to Ramos, closed the bag, and carried it to the police station.
Gaona asked Ramos if he
owned the duffel bag. Ramos replied,
"[N]o, . . . ask the neighbors." Harper also stated that he did not own the
bag.
Kushner testified that
he knew Ramos from prior police contacts and knew that he was a member of the
"Projects" criminal street gang.
Kushner stated that he searched the duffel bag at the police station
without first obtaining a search warrant.
The trial court denied
the suppression motion, stating that the search of the duffel bag was
reasonable and that Ramos lost his right of privacy in the bag by disclaiming
ownership.
The
jury convicted Ramos of unlawful possession of a firearm (count 2), and
unlawful possession of ammunition (count 4).
(Former §§ 12021, subd. (a)(1), 12316, subd. (b)(1).) It could not agree upon the charged count of
possession of heroin, and acquitted him of the charged count of possession of
heroin and a firearm. (Health & Saf.
Code, §§ 11350, subd. (a), 11370.1, subd. (a).)
In a separate proceeding, Ramos admitted and the trial court found that
he suffered a prior serious felony strike conviction and served two prior
prison terms. (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d), 667.5, subd. (b).)
The
trial court sentenced Ramos to an eight-year prison term, consisting of an
upper six-year term for count 2, plus a one-year term for each of the two prior
prison term enhancements. The court
imposed a six-year term for count 4 and ordered that Ramos serve the term
concurrently to count 2. The court
imposed a $200 restitution fine, a $200 parole revocation restitution fine
(stayed), and awarded Ramos 678 days of presentence custody credit. (§§ 1202.4, subd. (b), 1202.45.) The court also granted the prosecutor's
motion to dismiss count 1 (possession of heroin). (§ 1385.)
Ramos
appeals and contends that the trial court erred by denying his motion to
suppress evidence of the contents inside the duffle bag.
DISCUSSION
Ramos argues that he had
a reasonable expectation of privacy in the duffel bag in view of the
circumstances. (People v. Mendoza (1986) 176 Cal.App.3d 1127, 1132 ["A
shoulder bag reposing on the floor of an occupied residence hardly presents the
indicia of abandonment"].) He adds
that his disclaimer of ownership is not dispositive of his Fourth Amendment
claim, asserting that the record does not reflect that he had been advised of
his rights pursuant to Miranda v. Arizona
(1966) 384 U.S. 436 before disclaiming ownership.
In reviewing a motion to
suppress evidence, we defer to the trial court's express and implied findings
that are supported by substantial evidence.
(People v.
determines the credibility of witnesses, resolves conflicts in testimony,
weighs the evidence, and draws factual inferences in deciding whether a search
is reasonable within the Fourth Amendment.
(Ibid.) The reviewing court exercises its independent
judgment, however, to determine the legality of a search and seizure. (Ibid.) As a general rule, the trial court's ruling
will be upheld "if there is any basis in the record to sustain
it." (People v. Marquez (1992) 1 Cal.4th 553, 578; People v. Hua (2008) 158 Cal.App.4th 1027, 1033 ["We affirm
the trial court's ruling if correct under any legal theory"].)
The threshold inquiry in
a Fourth Amendment analysis is
"whether the defendant, rather than someone else, had a reasonable
expectation of privacy in the place searched or the items seized." (People
v. Ayala (2000) 23 Cal.4th 225, 254, fn. 3; Rakas v. Illinois (1978) 439 U.S. 128, 143.) Generally, an item left unattended in a
public area evidences the relinquishment of any reasonable expectation of
privacy. "The test for abandonment
in the search and seizure context is distinct from the property law notion of
abandonment; it is possible for a person to retain a property interest in an
item, but nonetheless to relinquish his or her reasonable expectation of
privacy in the object." (
843, 845 [defendant left gym bag containing firearm and drugs in hallway of
apartment building].)
There may be instances
where the mere act of setting down a bag would not constitute relinquishing a
reasonable expectation of privacy therein.
(U.S. v. Thomas, supra, 864 F.2d
843, 846.) Here, however, Ramos left his
unmarked duffel bag unattended outside a vacant apartment in a hallway
containing eight apartments (two with open doorways) and a tenant laundry
room. Although he may have intended to
retrieve his bag later, his ability to do so depended upon the fortuity that
others with access to the hallway would not disturb his bag left unattended and
out of his sight. (Id. at p. 846, fn. 5.)
Moreover, Ramos chose to
deny knowledge of the duffel bag and suggested that police officers question
neighbors. In essence, he relinquished
any reasonable expectation of privacy in the duffel bag when he denied owning
it. (People
v. Mendoza, supra, 176 Cal.App.3d
1127, 1133.) "'It is settled law
that a disclaimer of proprietary or possessory interest in the area searched or
the evidence discovered terminates the legitimate expectation of privacy over
such area or items.'" (
43, 48.)
Ramos did not raise the
issue of his Miranda advisements in
the trial court. The evidence at the
suppression hearing does not reflect whether police officers stated the
advisements when they asked Ramos if the duffel bag belonged to him. We do not consider the issue for the first
time on appeal. (People v. Mattson (1990) 50 Cal.3d 826, 854.)
In sum, the trial court
did not err by denying Ramos's motion to suppress evidence because he did not
have a reasonable expectation of privacy in the duffel bag.
The judgment is
affirmed.
NOT TO BE PUBLISHED.
GILBERT,
P.J.
We concur:
YEGAN, J.
PERREN, J.
Frank
J. Ochoa, Judge
Superior
Court County of Santa Barbara
______________________________
Laurie A. Thrower, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, Nima Razfar, Deputy Attorney General, for Plaintiff
and Respondent.
name="_ftn1" title="">[1] All further statutory
references are to the Penal Code unless otherwise stated.
name="_ftn2" title="">[2] Ramos has facial tattoos
declaring his gang affiliation.
