People v. Ramirez

Citation189 Cal.App.3d 603,236 Cal.Rptr. 404
CourtCalifornia Court of Appeals
Decision Date09 January 1987
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Michael Frederick RAMIREZ and Martin Gomez, Defendants and Appellants. A020625.
John K. Van de Kamp, Atty. Gen., Eugene W. Kaster and Martin S. Kaye, Deputy Attys. Gen., San Francisco, for plaintiff and respondent

Manuel E. Nestle, Berkeley, for defendant and appellant Ramirez.

Mark D. Greenberg, Berkeley, for defendant and appellant Gomez.

KLINE, Presiding Justice.

Appellants Michael Frederick Ramirez and Martin Gomez appeal from convictions for three counts of forcible rape in concert (Pen.Code, §§ 261, subd. (2) and 264.1) 1 (counts 1, 2 and 11); two counts of attempted murder ( §§ 664/187) (counts 3 and 4); two counts of penetration by foreign object in concert ( §§ 289, subd. (a) and 264.1) (counts 5 and 6); one count of attempted

robbery ( §§ 211, 664) (count 7); one count of robbery ( § 211) (count 8); two counts of sodomy in concert ( § 286, subd. (d)) (counts 9 and 10); one count of oral copulation in concert ( § 288a, subd. (d)) (count 12); and two counts of conspiracy to commit first degree murder ( §§ 182/187) (counts 13 and 14). They raise several arguments concerning sufficiency of the evidence for, and sentencing on, the conspiracy convictions; and a variety of contentions relating to enhancements and sentencing on the other counts.

STATEMENT OF FACTS

In February 1982, Carol O. and Vivian C. were living in a small studio apartment at 142 East Santa Clara Street in San Jose. The apartment consisted of one room, with a separate kitchen and bathroom, and contained one queen sized bed which the two women shared.

Carol and Vivian met appellant Gomez while riding a bus on February 9, 1982. Gomez sat next to Carol, began a conversation, and was then introduced to Vivian. Carol and Gomez spent that day and night together, mostly at her apartment. Vivian was home part of the evening; Gomez and Carol remained in the kitchen drinking beer. Gomez and Carol had consensual sex that night, while Vivian slept in the same bed, and again in the morning after Vivian left.

Gomez and Carol spent that next day together. Gomez was present when Carol put the food stamps she had just picked up from the welfare office in a box on her dresser. He spent that night, but by the next day Carol no longer wished to see him and he eventually left. Carol later discovered that her food stamps were missing. At some point during their time together, Gomez had given Carol a buck knife, saying he did not want it because it gets him in trouble. She had told him that she was three months pregnant.

On the evening of February 15, 1982, Carol and Vivian were at home watching television. Gomez appeared with appellant Ramirez, whom the women had not seen before, and the men were invited in. Gomez asked Carol for money to go to the liquor store; she said she had none. He also asked for the knife he had given her; she refused; he pulled on her purse to take the knife, saying he was going to make some money; and she finally let him take the knife.

Appellants left and returned about 10 minutes later. Each had a quart of beer, Gomez had an umbrella, and Ramirez had a bag of marijuana. Gomez said that he had "stabbed a nigger at the liquor store" and taken his weed. He said appellants would have to spend the night because the "pigs" would be looking for them. 2 The four smoked the marijuana and drank beer and were having a relatively pleasant time. When Gomez reiterated his desire to spend the night, Carol told him there was nowhere for him to stay. Vivian also told Gomez he could not spend the night.

At this point, appellants went into the bathroom together and closed the door. They came out after a few minutes and Gomez told Carol he wanted to talk to her in the bathroom. In the bathroom, Carol began brushing her hair, then turned to find Gomez pointing the knife at her; he said nothing and did not touch her. Carol told him to leave or he would be sorry, and she left the bathroom with Gomez following.

Leaving the bathroom, Carol saw Ramirez on top of Vivian on the bed, his hand over her mouth. Gomez put his hand over Carol's mouth, placed his knife at her throat, and forced her to the floor. He told her to be quiet, threatening that he had just stabbed a man and nothing would stop him from slitting her throat. Gomez sat on a chair, occasionally poking her with the knife. Ramirez came over and tied Carol's hands behind her back, pulled up her blouse and cut off her bra, shoved something in her mouth, and then tied her bra Ramirez cut off Carol's pants and underpants and had vaginal intercourse with her. He then made her stand up and bend over, and had anal intercourse with her. Gomez was two or three feet away.

                around her mouth. 3  Gomez had Carol lie on the floor near the bed, threatening to kick her in the stomach or cut off her breast or cut out an eye.  She could see Vivian being tied to the bed.  Ramirez had approached Vivian when he came out of the bathroom;  he pushed her down on the bed and, when she resisted, onto the floor.  Brandishing a knife from the womens' kitchen, he told her to shut up, stuffed a glove in her mouth, and cut off her bra and tied it around her head.  He then put her back on the bed and tied her arms and legs to the head and footboards with electrical cords.  Vivian cried out;  Gomez told Ramirez to "beat the shit out of" her and Ramirez hit her in the face
                

Gomez cut off Vivian's pants and underpants with a knife and had vaginal intercourse with her. He then sat on her chest and put his penis in her mouth. Ramirez then got on top of Vivian and had vaginal intercourse with her, after which Gomez cut the cords off her legs and held up her legs while Ramirez had anal intercourse with her.

After Vivian had cried out, Gomez made Carol lean against the wall in a sitting position, put the butt of his knife to his stomach and the blade against her stomach, and told Vivian, "all she has to do is move an I'll cut the baby out of her stomach." Gomez then forced Carol onto the bed with Vivian. Ramirez brought two eggs from the kitchen. Gomez forced Carol to spread her legs by sticking the knife in her throat, and put an egg in her vagina. He tried to break the egg by poking it with his knife, then took the egg out, broke it, and reinserted it into her vagina. He then did the same to Vivian with the other egg.

At some point, Vivian saw Gomez walking around the apartment and pulling clothing out of drawers. He took the rings off her fingers. Ramirez went through drawers and the closet, took Vivian's purse into the kitchen, and told Gomez that he found only $2.00.

Ramirez put a pillow over Vivian's head. He and Gomez got on top of her and one stabbed her in the neck and chest. She believed the stabber was Gomez because his voice was closer. Gomez then turned Carol on her back, someone said "Let's do her" and a pillow was placed over her head. Carol was stabbed in the neck and chest; she pleaded not to be killed, was stabbed again in the neck and then tried to play dead. She, too, heard Gomez's voice closer. Gomez said "She won't stop breathing;" Ramirez replied "Just wait, she will; just wait a minute, she will" and Gomez said "Bye, bye, baby." At some point, before the stabbing, appellants had asked if the women were going to go to the police; they said no and appellants said they would not kill them. After the stabbing, Carol looked up and saw Gomez but not Ramirez. She ran screaming to the manager's apartment where the police were called.

Vivian testified that appellants had discussed avoiding leaving fingerprints in the apartment and that Gomez spread liquid soap around the apartment and wiped the women with a rag. The police found laundry powder on the bathroom floor and liquid soap in the apartment. A trail of soap led down the hallway to a broken window leading to a fire escape by which were found a bottle of soap and a knife.

Carol spent about four days in the hospital, having suffered superficial lacerations. Vivian spent five days in the hospital, three of which were in the intensive care unit. She had indications of a punctured lung.

Neither appellant testified at trial. The jury convicted on all counts 4 and found true allegations of acting in concert on the sex offense counts ( §§ 264.1, 286, subd. (d), 288a, subd. (d)); of deadly weapon use ( §§ 12022.3, subd. (a) and 12022, subd. (b)) Appellants were each sentenced to an indeterminate term of 25 years to life for each count of conspiracy. Gomez was additionally sentenced to a determinate term of 60 years, for a total of 110 years to life; and Ramirez to a determinate term of 66 years, for a total of 116 years to life. Details of sentencing will be described as relevant in discussion of appellants' various contentions of sentencing error.

on all counts charged; 5 and of infliction of great bodily injury ( §§ 12022.7, 12022.8) on counts involving Vivian, but not on those involving Carol. 6

DISCUSSION
I.

Conspiracy Convictions

A. **

................................................................................

* * *

B. Jury Unanimity

Appellants next argue that the conspiracy convictions must be reversed because the jury was not instructed that it was required to unanimously agree upon which overt act was committed in furtherance of the conspiracy. The argument is made by analogy to cases requiring an instruction directing jury unanimity on the particular act underlying a conviction where evidence in the case shows more than one act upon which the conviction could be based. (E.g., People v. Moore (1983) 143 Cal.App.3d 1059, 192 Cal.Rptr. 374; People v. Crawford (1982) 131 Cal.App.3d 591, 182 Cal.Rptr. 536.) Because commission of an overt act is an essential...

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