People v. Ramirez

• Citation: 193 Cal.App.4th 613,11 Cal. Daily Op. Serv. 3310,123 Cal.Rptr.3d 155
• Decision Date: 22 June 2011
• Docket Number: No. B220528.,B220528.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose Alfredo RAMIREZ, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

123 Cal.Rptr.3d 155

11 Cal. Daily Op. Serv. 3310

2011 Daily Journal D.A.R. 3913Review GrantedPreviously published at: 193 Cal.App.4th 613

The PEOPLE, Plaintiff and Respondent,

v.Jose Alfredo RAMIREZ, Defendant and Appellant.

No. B220528.

Court of Appeal, Second District, Division 4, California.

March 16, 2011.

Review Granted June 22, 2011.

Background: Defendant was convicted in the Superior Court, Los Angeles County, No. BA330274, Robert J. Perry, J., of three counts of attempted willful, deliberate, and premeditated murder, with the findings that he personally discharged a firearm which caused great bodily injury to one of the victims, and that he committed the crimes with the intent to benefit a criminal street gang. Defendant appealed.

Holdings: The Court of Appeal, Suzukawa, J, held that:

(1) defendant failed to establish ineffective assistance in investigating another suspect's inculpatory statement;

(2) prosecution acted with due diligence to secure witness's presence at trial; and

(3) sentence of 120 years to life for three attempted murders committed at age 16 was not cruel and unusual.

Affirmed with directions.

Manella, J., filed opinion concurring in part and dissenting in part.

Carlo A. Spiga, Los Angeles, and Grace E. Ayers for Defendant and Appellant.

Kamala Harris and Edmund G. Brown, Jr., Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.

SUZUKAWA, J.

Appellant Jose Alfredo Ramirez appeals from the judgment entered following his conviction by jury of three counts of attempted willful, deliberate, and premeditated murder (Pen.Code, §§ 664/187),¹ with the finding that he personally discharged a firearm which caused great bodily injury to one of the victims ( § 12022.53, subd. (d)). The jury also concluded appellant committed the crimes with the intent to benefit a criminal street gang. ( § 186.22, subd. (b)(1)(C).) Appellant was sentenced to three consecutive life terms for the attempted murders (he must serve a minimum of 15 calendar years for each term before becoming eligible for parole) and three consecutive 25 year-to-life terms for the firearm enhancement. He appeals, contending trial counsel rendered ineffective assistance, the court erred in permitting the preliminary testimony of a witness to be read to the jury, and his sentence constitutes cruel and unusual punishment. Respondent contends the abstract of judgment fails to accurately reflect the court's imposition of certain fees. We conclude the abstract of judgment must be corrected, and affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Prosecution Case

The three victims, Leonel “Leo” Riera, Shaday “Shady” Martinez, and Jeremy Salazar, members or former member of the City Terrace gang, were fired on while walking near the corner of Ramona Boulevard and Eastern Avenue in Los Angeles on August 18, 2007, at approximately 3:30 p.m. One shot hit Riera in the face, hospitalizing him for a month and leaving him with missing and broken teeth and scars. The shooting occurred near a number of fast food restaurants in an area claimed by City Terrace. The victims were unable or unwilling to identify their assailants.

Three eyewitnesses—Arturo Ochoa, Elizabeth Diaz, and her young son Christopher Lujan—testified that they heard five or six shots that appeared to have been fired from a green car occupied by two Hispanic males. The driver was not wearing a shirt and was somewhat older than the passenger who appeared to be in his 20's. None of these witnesses could positively identify the men, although Diaz identified appellant in a photographic lineup as looking similar to one of them.²

Thirty to 45 minutes prior to the shooting, Deputy Goro Yoshida and his partner stopped a green car not far from where the shooting occurred. Geraghty Lomas gang member Arthur “Arty” Romero was driving; fellow gang member Garai “Bugzy” Bilbao was with him. Romero was not wearing a shirt. The deputies had searched the men and the car and found no weapons or any reason to detain them.

After the shooting, Romero was questioned multiple times and ultimately arrested for the crime. He entered into a plea agreement, agreeing to testify to what happened and to provide information about other crimes in return for a prison term of 7 to 14 years. At trial, Romero, who was 44, confirmed that he had been a long time member of Geraghty Lomas. He said that members of the gang considered City Terrace to be their primary rival. He testified that prior to the shooting he had been driving in the neighborhood with Bugzy Bilbao, when they were stopped by deputies.³ Shortly after the stop, Romero dropped Bilbao off at the home of another Geraghty Lomas member, Manuel “Topo” Alguin. Romero, a drug addict, left to buy heroin. When he returned, he saw appellant, whom he called “Gallo,” and another gang member, Bobby Encinas, leaving in Encinas's car. Romero followed them in the green car. A short distance away, appellant got out of Encinas's car and called to Romero to pull over. He asked Romero to drive him to a fast food restaurant near the corner of Ramona and Eastern, in City Terrace territory. As they neared their destination, appellant showed Romero a gun and said, “I hope we get lucky.” They spotted three males who appeared to be gang members. Romero stopped the car and appellant started shooting. As he fired, appellant said, “ puro Geraghty.”

When contacted by detectives, Romero initially told them that another Geraghty Lomas member—Eric Gonzalez—had told him appellant was the shooter; he did not admit to any personal knowledge of the crime. After being confronted with a tape of a conversation between appellant and an imprisoned gang member, Romero admitted being the driver for appellant. In pretrial interviews with detectives, he said that he was aware appellant had a gun before appellant got in the car.

The prosecution was unable to secure the presence of Eric Gonzalez at trial. ⁴ Accordingly, his preliminary hearing testimony was read to the jury. At the preliminary hearing, Gonzalez denied being a member of Geraghty Lomas or having any information about the gang, the shooting or appellant's possible involvement. He further testified that he did not remember speaking to detectives or telling them about the events surrounding the shooting. Gonzalez was cross-examined during the hearing. He specifically denied telling detectives that he heard Geraghty Lomas gang member Jorge “Gato” Flores say, “Let's go get them,” that he saw appellant leave with “Smiley,” “Scarface,” or another individual in a white Expedition, or that when appellant and these individuals returned, they took Gonzalez to a location where they said a shooting had occurred, but Gonzalez saw no ambulance, police, or other activity. He also denied telling detectives that the gun he saw appellant holding was an automatic.

After this testimony was read, the prosecution called Detective Eduardo Aguirre. Detective Aguirre testified that he interviewed Gonzalez in September 2007, shortly after the shooting, and that the interview was recorded. Gonzalez told DetectiveAguirre that he was a member of Geraghty Lomas, nicknamed “Sneaks.” On the day of the shooting, a group of Geraghty Lomas members, including appellant and Romero, met at the home of Topo Alguin and discussed the need to “put in work” for the gang. Romero and appellant did most of the talking. Gonzalez and another gang member went out to get a snack and saw two City Terrace gang members, “Travi” and “Menace.” They reported this information back to the Geraghty Lomas members. Flores (Gato) or appellant (Gallo) said, “Let's go get them.” Appellant left briefly and returned with a gun. Romero was there when appellant displayed the gun. Gonzalez saw appellant, a gang member nicknamed “Scarface,” and another man leave in a small gray car; Romero left separately in a green car. When appellant, Scarface, and the other man returned, Romero was not with them. Appellant bragged about shooting “Menace.” Gonzalez was taken by appellant, “Smiley,” and another man in a white Expedition to a Burger King restaurant at Ramona and Eastern. Appellant described the shooting that had allegedly occurred a short time earlier, but there was no visible evidence of a shooting.

The prosecution played a recorded telephone conversation between appellant and Primitivo “Little Malo” Tapia, which occurred when Tapia was imprisoned for an unrelated offense.⁵ During the conversation, the following exchange occurred: Appellant: “You, you already know what happened to the main enemies?” Tapia: “The, the City Terrace?” Appellant: “Yeah, you know what happened?” Tapia: “What?” Appellant: “[Clears throat] The, the ... [t]wo guys I got.” Tapia: “Nah.” Appellant: “[Unintelligible.] [Laughs.]” Tapia: “Hey!” Appellant: “Huh?” Tapia: “Where?” Appellant: “Over there at the Burger King.” Tapia: “How many?” Appellant: “Two.” Tapia: “Oh really?” Appellant: “Yeah.”

Deputy Yoshida arrived at the scene after the shooting. He observed bullet holes in buildings and found a number of bullet fragments. He found no shell casings, indicating that a revolver was used in the shooting. Detectives later searched appellant's family's home and uncovered multiple boxes of ammunition, including bullets of various calibers and shotgun shells.

II. The Defense Case

The defense called multiple witnesses—appellant's father, Jose Ramirez, neighbor Samuel Mendez, and tenants Candido Barrales, Eloina Rojas, and Martin Alejo. They all testified that on the day of the shooting, appellant was helping his father repair rental units by painting a room and repairing a fence, and that he was in their presence until early evening.

DISCUSSION

I. Ineffective Assistance of Counsel

During the cross-examination of Detective Aguirre, defense counsel...