P. v. Ramirez
Filed 5/20/13 P. v. Ramirez CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
>
THE PEOPLE, Plaintiff and Respondent, v. PRISCILLA RAMIREZ, Defendant and Appellant. | C069744 (Super. Ct. No. 09F05757) |
After a
court trial, the trial court found defendant Priscilla Ramirez guilty of two
counts of second degree murder, found
she was a principal, and found another principal was armed with a firearm
during the murders. (Pen. Code, §§ 187,
12022, subd. (a)(1).) The trial court
sentenced defendant to state prison
for 16 years to life.
On appeal,
defendant attacks the stipulation by which she agreed evidence from the jury
trial of former codefendants could be admitted--along with other evidence--at
her court trial.
title="">[1] Alternatively, she contends her trial counsel
incompetently represented her regarding her entry into that stipulation. We shall affirm the judgment.
PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
On July 21, 2009, Deshawn Holloway was
found with two gunshot wounds
to his back and Everett Taylor was found with three gunshot wounds, one to the
back of his head; both men died. The
People’s theory was that former codefendant Armstrong was the shooter, former
codefendant Gonzales was the driver, and both men were incited to kill by
defendant’s false claim that Taylor
had raped her.
On December 15, 2009, at the
stipulated that she had been advised of her rights. All three defendants were held to answer on
two counts of first degree murder plus a multiple-murder special circumstance
and firearm enhancements. Three juries
were anticipated, because of pretrial statements each defendant had made. (See fn. 3, post.)
On February 2, 2011, the People filed a
trial brief containing an extremely detailed factual recitation, supported by
citations to pages of discovery and to the preliminary hearing transcript. A proposed witness list, linking each witness
to the expected area of testimony, and detailing the estimated time for the
case-in-chief, was attached. Also
attached were over 400 pages of transcripts of statements, proposed jury
questions, and proposed jury instructions.
On February 18, 2011, defendant’s trial
counsel and the People placed on the record an agreement whereby defendant’s
case would be severed and she would waive her
confirming that she had had a chance to “fully discuss†the issue and receive
advice from her counsel, and that it was her decision to waive jury trial. She waived her right to jury trial in open
court, as did the People. The trial
court granted severance and directed the parties to prepare a written version
of the agreement.
The undated
written stipulation signed by counsel provided as follows:
“1.
Priscilla Ramirez will waive her right to a jury trial, and agree to
have her matter adjudicated as a court trial;
“2.
The Hon. Steve White will be the finder of fact for the court trial;
“3.
Priscilla Ramirez will waive her speedy trial rights . . . so that the
jury trial in the case of People v.
Armstrong & Gonzales . . . will proceed first;
“4.
The Hon. Steve White may consider all evidence adduced during the jury
trial in the case of People v. Armstrong
& Gonzales . . . in rendering his verdict . . . except for that
evidence barred under the Aranda-
rule;
“5.
Either party during the court trial . . . may recall any witness who
testified during the jury trial . . . if they wish to do so, with the caveat
that--if either co-defendant Armstrong or
Gonzales testifies during the jury
trial--they cannot be compelled to testify in the court trial;
“6.
Either party . . . may call any other witness during the court trial if
they wish to do so.â€
As
anticipated, Judge White presided over the jury trial, and on April 15, 2011, separate juries found
Armstrong and Gonzales each guilty of two counts of second degree murder and
found various firearm enhancements true.
On May 9, 2011, defendant’s court trial
on the amended information began with formal entry of the stipulation, to which
defendant lodged no objection. Six
prosecution witnesses testified at the court trial, four of them were cross-examined,
and both parties rested that day
On May 27, 2011, the trial court heard
arguments. The defendant (through
counsel) argued she was drunk and upset about her relationship with victim
Taylor, but had no intent to cause his death, or even cause physical harm, but
wanted “closure†and “wanted a message to get to†Taylor that they were
breaking up and he needed to leave her alone; further, victim Holloway was
unknown to her; finally, Armstrong was a “loose cannon†and his independent act
of shooting the two victims surprised defendant; therefore, the killings were
not the natural and probable consequence of defendant’s actions
On June 3, 2011, the trial court found
defendant guilty of two counts of second degree murder, and found the firearm
enhancement true as to each count.
On July 1, 2011, the trial court
sentenced defendant to 15 years to life in state prison on each murder count,
and added a year for the firearm enhancement as to each count, ordering the
sentences for the two counts to run concurrently.
Although
defendant moved to recall her sentence, she did not file a timely notice of
appeal. However, we granted her relief,
based on her claim that she relied on trial counsel to file a timely notice.
DISCUSSION
I
Validity of the Stipulation
On appeal,
defendant characterizes the evidentiary stipulation as a “waiver†of her
rights, and contends that waiver is invalid because she was not adequately
advised of the right to confront witnesses and to be present during testimony,
and did not waive her right to counsel at a “critical†stage of the
proceeding. She also attacks certain
evidence introduced at the jury trial on the ground it was hearsay. We find no prejudicial error.
A. Juror
Unanimity
We first
reject defendant’s passing claim that the jury waiver was invalid because she
was not told of the need for juror unanimity.
(Cf. People v. Diaz (1992) 3 Cal.4th 495, 570-571.) That is not a required advisement, although
it may be a good practice to so advise defendants (see United States ex rel. Wandick
1087-1089). But where a defendant is represented by
counsel, she need not be instructed about “‘all the ins and outs’ of a jury
trial†(People v. Wrest (1992) 3
Cal.4th 1088, 1104-1105; see People v.
Acosta (1971) 18 Cal.App.3d 895, 901-902 (Acosta)); or even that a jury trial requires a unanimous verdict
(see People v. Tijerina (1969) 1
Cal.3d 41, 45-46).
Here,
defendant agreed she had had time to “fully discuss†the waiver with counsel,
and the trial court could properly infer the relevant “ins and outs†were
explained to her by counsel. (See Acosta,
v. Evanson (1968) 265 Cal.App.2d 698, 700-701; see also
an accused has counsel, courts have generally assumed, in the absence of
evidence to the contrary, counsel will perform his duty as an advocate and an
officer of the court to inform the accused of and take steps to protect the
other rights afforded by the lawâ€].) We see no error in this particular omission.
B. Slow Plea of Guilty
In what we
perceive to be defendant’s principal contention on appeal, she argues that the
trial court did not properly advise her before accepting her partial submission
through stipulation. She argues that the
“overall submission in this case†was the equivalent of a “slow plea of guiltyâ€
and emphasizes the Boykin-
has outlined as follows:
“In Boykin, supra, 395 U.S.
238, the United States Supreme Court held that ‘[i]t was error . . . for the
trial judge to accept petitioner’s guilty plea without an affirmative showing
that it was intelligent and voluntary.’
[Citation.] . . .
“In Tahl, supra, 1 Cal. 3d
122, this court held that in order to comply with the requirements of
court accepts a guilty plea: ‘[T]he record must contain on its face direct evidence that the accused was aware, or made
aware, of his right to confrontation, to a jury trial, and against
self-incrimination, as well as the nature of the charge and the consequences of
his plea. Each must be enumerated and
responses elicited from the person of the defendant.’ (Id.
at p. 132, italics in the original.)
“In Bunnell, supra, 13 Cal.
3d 592, we elaborated: ‘In all guilty plea and submission cases the defendant
shall be advised of the direct consequences of the conviction such as the
permissible range of punishment provided by statute . . . .’ (Id.
at p. 605.) Although we recognized in
might not be constitutionally required in all circumstances, we concluded that
in the interest of justice it was appropriate to adopt a judicially declared
rule of criminal procedure, requiring the giving of certain advisements in a
broad category of cases.
“In subsequent decisions, we have
clarified that ‘[u]nlike the admonition of constitutional rights, . . .
advisement as to the consequences of a plea is not constitutionally
mandated. Rather, the rule compelling such
advisement is “a judicially declared rule of criminal procedure.â€â€™â€ (People
v. Barella (1999) 20 Cal.4th 261, 266.)
Whether or
not a particular submission is “tantamount to a plea of guilty,†a defendant
must be advised of the right to a jury trial, the right of confrontation, and
the privilege against self-incrimination,
to ensure any waiver is knowing and voluntary, and ensure the record is clear
about what, exactly, the parties intend.
(See People v. Wright (1987)
43 Cal.3d 487, 494-495 (Wright);
We will assume that the trial court should have advised defendant of all
three of these specific rights, under the prophylactic rule announced in
However,
unless the submission is “tantamount to a plea of guilty,†any error is
reviewed for prejudice under state law standards. (Wright,
supra, 43 Cal.3d at p. 495; see
836-837.) In some cases, it may be
difficult to determine the nature of the submission:
“Perhaps the clearest example of a
slow plea is a bargained-for submission on the transcript of a preliminary
hearing in which the only evidence is the victim’s credible testimony, and the defendant
does not testify and counsel presents no evidence or argument on defendant's
behalf. Such a submission is ‘tantamount
to a plea of guilty’ because ‘the guilt of the defendant [is] apparent on the
basis of the evidence presented at the preliminary hearing and . . . conviction
[is] a foregone conclusion if no defense [is] offered.’ [Citations.]
“Submissions that are not considered
slow pleas include those in which (1) the preliminary hearing involves
substantial cross-examination of the prosecution witnesses and the presentation
of defense evidence or (2) the facts revealed at the preliminary examination
are essentially undisputed but counsel makes an argument to the court as to the
legal significance to be accorded them.
[Citation.]
“The wide variety of submissions
that fall between these extremes, however, present troublesome classification
problems. When the defendant reserves
the right to testify or offer evidence and the record shows no sign of negotiations
between defendant and prosecution, the submission may or may not be a slow
plea. Some defendants submit their cases
on the transcript simply to achieve the effect of a guilty plea without
actually having to admit guilt in open court and on the record. Others submit not to contest guilt but to
avoid expensive or burdensome trials or to impress upon the trial judge the
mitigating factors for sentencing. Some
defendants appear to concede guilt as to one or more of the offenses but
contest it as to others.
“An appellate court, in determining
whether a submission is a slow plea, must assess the circumstances of the
entire proceeding. It is not enough for
a reviewing court to simply count the number of witnesses who testified at the
hearing following the submission. A
submission that prospectively appeared to be a slow plea may turn out to be
part of a full-blown trial if counsel contested the sufficiency of evidence for
those counts or presented another potentially meritorious legal argument
against conviction. Conversely, a
submission that did not appear to be a slow plea because the defendant reserved
the right to testify and call witnesses or to argue the sufficiency of the
evidence [citation] may turn out to be a slow plea if the defense presented no
evidence or argument contesting guilt.
“If it appears on the whole that the
defendant advanced a substantial defense, the submission cannot be considered
to be tantamount to a plea of guilty.
Sometimes, a defendant’s best defense is weak. He may make a tactical decision to concede guilt
as to one or more of several counts as part of an overall defense
strategy. A submission under these
circumstances is not a slow plea, and the trial court is not constitutionally
compelled by Boykin and
safeguards to assure that the tactical decision is voluntary and
intelligent. The advisements and waivers
in such a case are required only as a matter of the judicial policies that
underlie our decision in Bunnell.†(Wright,
supra, 43 Cal.3d at pp. 496-497; see
27-29 (Sanchez), overruled on another
point in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22.)
Measured by
these standards, the stipulation in this case was not a “slow plea.†Both
parties were free to introduce additional
evidence at the court trial, and defendant (through counsel) cross-examined
some of the People’s witnesses at the court trial. Because defendant reserved the right to
confront witnesses, “counsel’s choice ultimately to exercise defendant’s right of
confrontation in only a limited manner was not a ‘submission,’ but rather, was
no more than a tactical decision within counsel’s discretion to make.†(People
v. Robertson (1989) 48 Cal.3d 18, 40 (Robertson).) Further, defense counsel made a valiant
obtaining two second degree murder convictions in the face of evidence
defendant instigated Taylor’s murder.
(See Sanchez,
plea where trial counsel cross-examined witnesses and “argued constantly that
the facts as presented at the preliminary hearing should be viewed as not
supporting first degree murder convictionsâ€]; People v. Stone (1994) 27 Cal.App.4th 276, 282-283.) In short, because there was no understanding
that the stipulation would result in guilt findings, this was not a “slow pleaâ€
case.
Defendant
suggests this case should be treated like a slow plea for three reasons, all
based on the theory that trial counsel did not adequately contest her guilt,
claiming (1) the jury trial evidence was “unknown[,]†and (2) it was
“completely unconfronted because neither appellant nor her attorney attended
the trial[,]†and (3) defense counsel argued only that she lacked the intent to
kill. We reject each point.
As for the
first point, the jury trial evidence was not “unknown†because the People had
filed a detailed trial brief outlining the evidence with reference to discovery
pages and preliminary hearing transcript pages.
If the actual jury trial revealed anything materially different,
defendant has failed to bring it to our attention on appeal.
As for the
second point, the People note the record on appeal does not reveal whether or
not defendant’s trial counsel attended the jury trial, and even if he did not,
the evidence was not “unconfronted†as defendant states. Every witness at the jury trial was
cross-examined by one or both counsel for the codefendants, which allowed the
trial court to observe their credibility, but more importantly, as stated
earlier, defendant (through counsel) retained the right to call any of those
witnesses to testify at the court trial and thereby confront them: The fact that right was not fully exercised
did not impair the defendant’s opportunity
to confront all witnesses. (See
Finally, as
to the third point, defendant’s description of the closing argument is
incomplete. Trial counsel argued
defendant had not wanted any harm to
come to Taylor, did not know Holloway, and the shootings were not the natural
and probable consequence of her actions, but were the surprising and
independent actions of Armstrong, a “loose cannon[.]†On appeal, defendant provides no suggestions
about what additional arguments trial
counsel plausibly could have made in this case.
Separately,
contrary to defendant’s view, the stipulation did not impair her right to be
present at trial and her right to assistance of counsel at trial. She was present with counsel for her entire
court trial. Because her case had been
severed, she was not a party to the
jury trial, and had no right to appear with counsel there.
Accordingly,
because this was not a “slow plea†case, any error was subject to state law
harmless error analysis. (See
supra, 43 Cal.3d at p. 495;
1067, 1079-1080.) Defendant has not
shown there is any reasonable probability that she would have obtained a better
result in the absence of her entry into the stipulation, therefore any error by
the trial court in accepting the stipulation absent full compliance with the
prophylactic Bunnell advisements was
harmless.
C. Hearsay
Finally, we
observe that defendant describes certain purported hearsay evidence admitted at
the jury trial. However, she makes no
effort to analyze whether the third party statements were actually hearsay,
that is, whether they were offered for the truth of the matter asserted; nor
does she address potentially applicable exceptions to the rule precluding
consideration of hearsay. She further
fails to describe how any hearsay evidence introduced at the jury trial was
prejudicial to her case. She concedes no
evidence from the jury trial violating the Aranda-
stipulation was invalid, a contention we have already rejected. We will not presume, in the absence of
coherent briefing, that the challenged statements were inadmissible, let alone
prejudicial. (See People v. Freeman (1994)
8 Cal.4th 450, 482, fn. 2 (
Defendant
also claims that the arguments made
at the jury trial of her codefendants prejudiced her. But arguments are not evidence (see
176; Estate of Pittman (1980) 104
Cal.App.3d 288, 295), and because the stipulation did not permit the trial
court to consider the arguments at
the jury trial, only evidence, we
presume the trial court disregarded the arguments. (See People
v. Coddington (2000) 23 Cal.4th 529, 644.)
II
Incompetence of Counsel
Defendant
contends trial counsel was incompetent by (1) permitting the introduction of
“unknown†evidence from the jury trial against her, (2) failing to advise her
of her constitutional rights, (3) failing to be present at the jury trial, and
(4) failing to interpose certain hearsay objections to testimony taken at the
court trial.
To prevail
on a claim of incompetent counsel, defendant must show her counsel breached
standards of professional competence and
there is a reasonable probability she would have obtained a more favorable
result in the absence of counsel’s failings; further, “If the record ‘sheds no
light on why counsel acted or failed to act in the manner challenged,’†her claim
of incompetence of counsel “must be rejected ‘unless counsel was asked for an
explanation and failed to provide one, or unless there simply could be no
satisfactory explanation.’†(People v.
Ledesma (2006) 39 Cal.4th 641, 745-746.)
We first
observe that trial counsel’s strategy was generally successful, in that he avoided exposing his client to a joint jury
trial with the trigger-man and his driver, obtained second degree murder
verdicts for his client despite plausible evidence of first degree murder,
based on defendant’s act of inciting others to kill Taylor, and even persuaded
the trial court to impose concurrent sentences.
In particular, we reject defendant’s four sub-claims of incompetence as
follows:
(1) Although defendant argues that trial counsel
was ignorant of the evidence to be presented at the jury trial, we disagree for
the reason already stated in Part I, ante: Based on the preliminary hearing transcript,
the extensive discovery, and the People’s unusually detailed trial brief, trial
counsel was informed of the evidence expected to be introduced. Defendant fails to argue that there was any
deviation from the People’s detailed roadmap of the case at the jury trial.
(2) The record does not show what advice trial
counsel gave defendant before she entered into the stipulation. Absent anything in the record to the
contrary, we must presume defense counsel adequately advised defendant. (See Robertson,
supra, 48 Cal.3d at p. 36;
Cal.4th 367, 373.)
(3) As we noted ante, the record does not show whether or not trial counsel
attended the jury trial, therefore defendant fails to show he did
on these facts, trial counsel was obliged to personally attend the jury trial.
(4) Assuming defendant is correct that certain
hearsay objections to testimony given at the court trial would have been
successful, that does not of itself establish incompetence. “Because the decision whether to object is
inherently tactical, the failure to object to evidence will seldom establish
incompetence.†(Freeman, supra, 8 Cal.4th
at pp. 490-491.) For example, at times
otherwise inadmissible evidence may come out in another form, or the testimony
may cut two ways, or it may be insignificant in relation to the defense
theory. (See, e.g., People v. Ratliff (1986) 41 Cal.3d 675, 692; In re Lower (1979) 100 Cal.App.3d 144, 150.) Defendant fails to
explain how the admission of hearsay was prejudicial; she merely contends that
the admission of hearsay was structural error, reversible per se,
confrontation and violated due process.
This overlooks the point, stated earlier, that “counsel’s choice
ultimately to exercise defendant’s right of confrontation in only a limited
manner . . . was no more than a tactical decision within counsel’s discretion
to make.†(Robertson, supra, 48 Cal.3d at p. 40.)
In this
case, trial counsel’s strategy was to emphasize the evidence of defendant’s
intoxication and anger at victim Taylor, and the rash actions of Armstrong, to
argue defendant did not order the murder of the two victims. On appeal, defendant does not explain how
quibbling over minor evidentiary points would have advanced that strategy.
Accordingly,
because the record reflects a clear tactical reason for defense counsel’s
choices, defendant’s claim of incompetence of counsel must be brought, if at
all, by way of a habeas corpus proceeding. (People
v. Pope (1979) 23 Cal.3d 412, 426.)
DISPOSITION
The
judgment is affirmed.
DUARTE , J.
We concur:
HULL , Acting P.
J.
MURRAY , J.
name="_ftn1" title="">[1] The appeal of former codefendants Michael Lee
Armstrong and Phillip Perez Gonzales is separately pending. (See People
v. Armstrong & Gonzales, 3 Crim. No. C068330.)
name="_ftn2" title="">[2] We need not detail the evidence presented
during the trials in order to resolve the issues on appeal.
