People v. Orozco-Ramirez

• Decision Date: 11 July 2017
• Docket Number: F071022
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE , Plaintiff and Respondent, v. ARTEMIO MISAEL OROZCO-RAMIREZ, Defendant and Appellant.

THE PEOPLE , Plaintiff and Respondent, v. ARTEMIO MISAEL OROZCO-RAMIREZ, Defendant and Appellant.

F071022

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

July 11, 2017

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Fresno Super. Ct. No. F10905182)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Wayne R. Ellison, Judge.

Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Jeffrey A. White, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant/defendant Artemio Misael Octavio Ramirez was charged with committing four felony sexual offenses against M., a nine-year-old girl who lived in the house where he was renting a room from her family: count I, intercourse or sodomy with a child 10 years of age or younger (Pen. Code, § 288.7, subd. (a));¹ count II, oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7, subd. (b)); count III, assault with intent to commit rape (§ 261, subd. (a)(2)); and count IV, commission of a lewd act on a child (§ 288, subd. (a)). Counts I and II carried indeterminate terms.

Defendant was arrested after the victim's family discovered sexually explicit photographs of a naked female on a cell phone which defendant had used. They believed the photographs were of the victim, based on the clothing and the body type. After defendant was arrested, he agreed to give an interview to a detective. He initially denied touching the victim, but then admitted that physical contact occurred with the victim's body, claimed the victim jumped on him and took the photographs, and denied committing any sexual acts.

What initially appeared to be a relatively straightforward case has returned to this court a second time on what has become a convoluted procedural maze. We must determine whether a constitutional error was harmless beyond a reasonable doubt. In doing so, we must examine the entirety of the record, including the evidence introduced at two trials, the court's evidentiary rulings at the second trial, defense counsel's tactical decisions, the instructions given and omitted, and the parties' arguments before the jury. As we will explain, these considerations lead us to the unavoidable conclusion that the impeachment of defendant's testimony at his second trial, with prior convictions that were constitutionally invalid, was not harmless beyond a reasonable doubt and requires reversal of his convictions.

Defendant's first jury trial and convictions for counts III and IV

As we will explain, there were two separate jury trials held on the charges. The victim and defendant testified at both trials. At the first trial, defendant testified and saidhe never touched the victim. Defendant was impeached with his prior inconsistent statements to the investigating officers; defendant claimed he lied to the detective when he said some physical contact occurred between them because he felt intimidated and just said what the officer wanted to hear. Defendant did not have any prior convictions and was not impeached with any offenses. Defendant was convicted of count III, assault with intent to commit rape, and count IV, commission of a lewd act on a child. The jury was unable to reach verdicts for the penetration charges in counts I and II, and a mistrial was declared.

Defendant's second jury trial and convictions for counts I and II

At the beginning of his second trial for counts I and II, it was determined that the prosecution had previously failed to disclose information to the defense that the victim had made a prior false sexual assault accusation against another man, which was unrelated to any of the charges against defendant. During the second trial, the victim again testified, but she was impeached with this evidence. Defendant also testified and was again impeached with his prior inconsistent statements to the investigating officer. In addition, he was also impeached with the two prior convictions that had resulted from the first trial, and with his inconsistent statements as to whether he had previously testified or been tried on the same charges. Defense counsel apparently made the tactical decision not to object to the impeachment. Defendant was convicted of counts I and II.

Motion for new trial and dismissal of counts III and IV

After his convictions in the second trial, defendant moved for a new trial for the convictions obtained in the first trial for counts III and IV. Defendant argued the convictions were obtained in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady), based on the prosecution's admitted failure to disclose the victim's prior false accusation before the first trial. Defendant asserted his convictions in counts III and IV were constitutionally invalid because of the Brady error. The prosecution did not oppose themotion. The court granted the new trial motion as to counts III and IV. The prosecution dismissed those charges and did not retry him.

Failure to move for new trial for counts I and II

When the court ruled on the new trial motion for counts III and IV, defendant's sentencing hearing for counts I and II was pending. However, defendant did not move for a new trial for counts I and II, even though the prosecution had used the prior convictions from the first trial (counts III and IV) to impeach his credibility at the second trial, and those convictions had just been reversed because of the Brady error.

As a result of his convictions from the second trial, defendant was sentenced to 25 years to life for count I, with a concurrent term of 15 years to life for count II.

Defendant's first appeal

In his first appeal, defendant challenged his convictions in the second trial for count I, intercourse or sodomy with a child 10 years of age or younger, and count II, oral copulation or sexual penetration with a child 10 years of age or younger. Among other issues, defendant argued that defense counsel should have moved for a new trial as to all his convictions, including those from the second trial, based on the Brady error that occurred prior to the first trial.

We agreed. We held that once the court granted a new trial for counts III and IV based on the Brady error in the first trial, defense counsel was ineffective for failing to similarly move for a new trial for defendant's convictions in the second trial for counts I and II. As a result of the Brady error, defendant had been impeached at the second trial with the two constitutionally invalid prior convictions that had resulted from the first trial.

We found that defense counsel's error was prejudicial because the trial court may have granted a new trial motion for counts I and II. We ordered a conditional reversal and remand for the court to consider such a new trial motion on the merits and determine whether the impeachment of defendant with two constitutionally invalid prior convictionsat the second trial was harmless beyond a reasonable doubt within the meaning of Chapman v. California (1967) 386 U.S. 18 (Chapman).²

Remand

On remand, defendant filed a motion for new trial as to his convictions in the second trial for counts I and II. Defendant argued that the use of the constitutionally invalid prior convictions to impeach his trial testimony was not harmless beyond a reasonable doubt because that impeachment destroyed his credibility. The People generally opposed the motion but did not file a written opposition.

The court conducted a series of hearings, and found the error was harmless beyond a reasonable doubt, and denied defendant's new trial motion for counts I and II.

The instant appeal

In this appeal, defendant contends the court improperly denied his motion for new trial for his convictions for counts I and II from the second trial. Defendant argues the prosecution's failure to file a formal opposition amounted to a waiver of any prejudice argument, and the use of the constitutionally invalid prior convictions to impeach his testimony at the second trial was not harmless beyond a reasonable doubt.

Given the importance of the issues before this court, we again review the entirety of the record that was before this court in the first appeal, which included the transcripts for both the first and second trials, the nature of the Brady error, this court's first opinion, the proceedings that were held on remand, and the superior court's lengthy findings that denied the new trial motion.

We find that the use of the two constitutionally invalid prior convictions to impeach defendant's testimony at the second trial was not harmless beyond a reasonable doubt, and defendant's motion for new trial on remand should have been granted.

We reverse defendant's convictions and the sentences imposed therein for counts I and II, and remand the matter for further appropriate proceeding.

PART I

FACTS OF THE CHARGED OFFENSES³

In 2010, Isidro and Celia A. (Celia) lived in a house in Fresno County with several family members. Isidro's brother, Mo., and his nine-year-old daughter, M. (the victim), lived in a separate structure behind the house.⁴

Defendant and his brother were farm laborers. They were not related to the A. family, but they lived in the same detached structure with Mo. and M. as tenants. Defendant had to walk through the living space of Mo. and M. to reach the room where he slept.

Celia loans a cell phone to defendant

Celia testified she loaned an inactive cell phone to defendant. Defendant told Celia that he wanted to use the cell phone's camera to get evidence...