P.v . Ramos

Filed 4/18/07 P.v . Ramos CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Rand S. Rubin, Judge. Affirmed.

Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Stacy S. Schwartz, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Eric Ramos was convicted of first degree murder (Pen. Code,[1] 187) with additional special allegations found true. On appeal, he contends that 1) the trial court erred when it refused to appoint his previously-retained counsel as court-appointed counsel; 2) the court should have given sua sponte jury instructions concerning accomplices; and 3) that his sentence enhancement pursuant to section 12022.53, subdivision (d) must be vacated because of the merger doctrine and section 654. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On September 21, 2001, Kyon Mouton was walking with several friends when he became involved in a fight with Juvenal Valencia, a member of the Hang Out Boys gang. When the fighting stopped, Valencia told Mouton to start running because he, Valencia, would come back. Valencia telephoned his gang associates, told them about the fight, and reported that he was still at the location of the fight.

Soon thereafter, Mouton was approached by Ramos, who announced that he was from the Hang Out boys and demanded to know where Mouton was fromi.e., the gang to which he belonged. When Mouton did not respond, Ramos fatally shot him.

Ramos was charged with murder ( 187) and with being a felon in possession of a firearm ( 12021, subd. (a)(1).) Three firearms enhancement allegations were pleaded with respect to the murder count (12022.53, subds. (b), (c), and (d)). It was also alleged that the murder was committed for the benefit of a criminal street gang with the intent to promote, further and assist in criminal conduct by gang members ( 186.22, subd. (b)(1)). For both counts, the prosecution alleged that he had suffered a prior conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and section 667, subdivisions (b) through (i). Ramoss motion for acquittal on the charge of being a felon in possession of a firearm was subsequently granted.

Ramos was represented by privately retained counsel Mark Shapiro during his first trial, which ended in a mistrial. Unable to pay for Shapiros representation upon retrial, Ramos moved to have Shapiro appointed as counsel pursuant to section 987.2. The trial court denied the motion and re-appointed the alternate public defender, who had represented Ramos at the preliminary hearing. That office later declared a conflict, and Ramos was represented by a bar panel attorney at his second trial.

Ramos was convicted of first-degree murder with true findings on all firearm and gang enhancement allegations. The jury subsequently found true Ramoss prior conviction allegation. Ramos was sentenced to an aggregate term of 75 years to life in state prison.

DISCUSSION

I. Appointment of Counsel

Section 987.2 provides that in counties such as Los Angeles, indigent defendants shall be represented by the public defender unless the public defender is unavailable, in which case a secondary or alternate public defender is to be used. Failing that, the trial court is to appoint a county-contracted attorney. ( 987.2, subd. (e).) Only if all these sources have been exhausted is the trial court to appoint private counsel to represent an indigent defendant. ( 987.2, subd. (e).) The court, however, may, in the interest of justice, depart from that portion of the procedure requiring appointment of the second public defender or a county-contracted attorney after making a finding of good cause and stating the reasons therefore on the record. ( 987.2, subd. (e).)

Ramos contends that the trial courts refusal to appoint attorney Shapiro as court-appointed counsel for the second trial was an abuse of discretion and denied him his constitutional right to counsel. There is no federal or state constitutional issue here. As a matter of federal constitutional law, the right to counsel of choice does not extend to defendants who require counsel to be appointed for them. (United States v. Gonzalez-Lopez (2006) 546 U.S. _____ [126 S.Ct. 2557, 2565].) The California Supreme Court has stated, the state Constitution does not give an indigent defendant the right to select a court-appointed attorney. (People v. Jones (2004) 33 Cal.4th 234, 244 (Jones).)

Relying on language from Justice Werdegars concurring opinion in Jones, supra, 33 Cal.4th at p. 247, Ramos posits a legally protectable interest in counsel of ones choice once a client has formed a relationship with his or her attorney. The legal authority cited in Jones by Justice Werdegar for this protectable interest is Harrisv. Superior Court (1977) 19 Cal.3d 786 (Harris), a case in which the California Supreme Court concluded that the trial court abused its discretion by refusing to appoint private counsel who had previously represented the defendants in related prosecutions involving the Symbionese Liberation Army.

The Supreme Court set forth in Harris, supra, 19 Cal.3d 786, a very clear standard applicable to cases such as the instant one in which a defendant wishes the appointment of counsel with whom he or she has a pre-existing relationship. The appointment decision is wholly within the discretion of the trial court. (Id. at p. 796.) An indigent defendants preference for a particular attorney, while it is to be considered by the trial court in making an appointment [citation], is not a determinative factor requiring the appointment of that attorneyeven in combination with other relevant factors such as the subject attorneys competence and availability. [Footnote.] (Id. at pp. 795-796.) The court stated that while the courts discretion in the appointment of counsel is not to be limited or constrained by a defendants bare statement of personal preference, we hold that when that statement of preference, timely made, is supported by objective considerations of the consequence here involved, and where there are no countervailing considerations of comparable weight, it is an abuse of sound judicial discretion to deny the defendants request to appoint the counsel of his preference. (Id. at p. 799.)

Ramos urges us to reach the same result as that in Harris, supra, 19 Cal.3d 786, by concluding that the court abused its discretion in refusing to appoint Shapiro. The facts of the present case, however, sharply contrast with those in Harris. In Harris, the counsel that defendants preferred had already represented them for several years in a number of prosecutions arising from activities in the Symbionese Liberation Army. Counsel made a highly detailed showing of both the duration and complexities of the relationship, which included several years of representation; familiarity with the particularities of the Symbionese Liberation Army and other legal matters involving that group; experience in coordinating facts and trial strategies with attorneys for eight other defendants subject to criminal proceedings for participation in Symbionese Liberation Army activities; development of legal strategies in other matters that would be used in the present case; and familiarity with vast amounts of documentary evidence amassed by governmental agencies, including the Federal Bureau of Investigation, concerning the Symbionese Liberation Army. (Id. at pp. 797-798, fn. 10.) The court noted that this extensive prior experience not only established a close working relationship between [defendants] and [preferred counsel], but also served to provide those attorneys with an extensive background in various factual and legal matters which may well become relevant in the instant proceedinga background which any other attorney appointed to the case would necessarily be called upon to acquire. (Id. at p. 798.) It would require expenditure of considerable energy and time . . . to being their level of familiarity with those facts and issues to a point comparable with that already reached by [preferred counsel]. (Id. at p. 799.)

No similar showing was made here. There is no question that Shapiro was familiar with the case, as he represented Ramos from arraignment through the mistrial in the first trial, and over the course of this representation Shapiro and Ramos had time to develop a relationship. Shapiro, however, was a busy attorney who could not commit to a time when he would be available for the retrial. When the trial court asked when Shapiro would be available to try the case, Shapiro answered, Im hoping we could do it within 0 of 60. The trial court mentioned several other cases Shapiro had pending, Shapiro acknowledged he had additional active matters, and the court asked for a realistic expectation of when the Ramos retrial could occur if Shapiro were appointed. Shapiro reported that he believed the trial would have to be continued for an additional 30 days.

Shapiro, moreover, could not identify any particular advantage that his familiarity with the case would confer. In order to weigh Shapiros familiarity with the case with the delay involved in appointing him, the trial court asked, [W]hat it is that you believe is your special relationship with either Mr. Ramos or the witnesses or the facts in this case that means you could do something in the next ninety days that a public defender could not do? Shapiro replied, All I can tell you is that Im his attorney of choice, he had a public defender. He was not happy and he sought me out, and pretty much spent his last dime hiring me. He wants me to stay on, you know. Shapiro added, It wasnt my best trial, but I think I, you know, I know the case pretty well. I think whoever else picks it up is going to have to learn certain nuances of it, but Ill leave it to the courts discretion.

Other than the unspecified certain nuances and knowing the case pretty well, Ramos did not identify any factors beyond his preference to support appointing Shapiro to be his counsel. The trial court weighed the fact that a delay of at least 90 days would accompany Ramoss preferred counsels appointment with the absence of any evidence that his counsel had special expertise or that newly appointed counsel would be unable to prepare the case within the same time. While Shapiro knew the case well, having prepared and tried it, there was no evidence before the trial court that the case presented any specific complexities such that Shapiros familiarity with it was significant. There was, however, abundant evidence that extensive delay would accompany the appointment. The trial court concluded, I dont see anything particularly unique about this case, facts of this case or your relationship with him that means that you need to be on the case. [] Nor do I find it so unique that the alternate public defender couldnt be ready at least in the next ninety days. [] And even though I know youre telling me that you think that it would have to be continued at least once, although I dont have specific knowledge of your specific trial schedule and the cases, I do know that judges from all over the county have been calling me, and that I would say, there would be at least ninety days, I dont think you would be ready to try the case any sooner than the alternate public defender who would have the benefit of having done the prelim[inary hearing] and its not a difficult factual scenario here. [] Its [a] combination of an eyewitness case and a credibility case with those witnesses who knew or know Mr. Ramos. And for that reason, I feel that the alternate public defender can handle it just as well as you can.

It is true, as Ramos notes, that the alternate public defender subsequently declared a conflict, a panel attorney was appointed to represent him, and the trial ultimately did not take place within 90 days as the trial court had expected. However, as we must, we review the trial courts exercise of discretion on the basis of facts known to the court at the time of its decision. On the facts before the trial court, Ramoss preference for the appointment of his previously-retained counsel was supported by minimal objective considerations of . . . consequence, and there were significant countervailing considerations of comparable weight. (Harris, supra, 19 Cal.3d at p. 799.) We therefore cannot say the trial court abused its discretion in refusing to appoint Ramoss preferred counsel and concluding that Ramos had not demonstrated good cause to deviate from the statutory preference for appointing the alternate public defenders office over private attorneys. ( 987.2, subds. (a), (e).)

II. Accomplice Testimony Instructions

Ramos argues, and the People concede, that the trial court erred in not instructing the jury sua sponte on the law of accomplice testimony with respect to Valencias testimony. A trial court has a sua sponte obligation to instruct the jury concerning accomplice testimony whenever there is testimony sufficient to warrant the jury concluding that a witness implicating the defendant was an accomplice. (People v. Zapien (1993) 4 Cal.4th 929, 982, superseded by statute on other grounds.) [T]he trial court . . . must instruct the jury, sua sponte, (1) that the testimony of the accomplice witness is to be viewed with distrust [citations], and (2) that the defendant cannot be convicted on the basis of the accomplices testimony unless it is corroborated . . . . [Citation.] (Ibid.)

Although the trial court should have instructed the jury on accomplice testimony,[2]the error was harmless on the facts presented by this case. If ample evidence in the record corroborates the accomplices testimony, an error in failing to give accomplice instructions is harmless. (People v. Avila (2006) 38 Cal.4th 491, 562.) To corroborate the testimony of an accomplice, the prosecution must present independent evidence, that is, evidence that tends to connect the defendant with the crime charged without aid or assistance from the accomplices testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.] [T]he corroborative evidence may be slight and entitled to little consideration when standing alone. [Citation.] [Citation.] (Id. at pp. 562-563.) There is no question, and the parties agree, that accomplice Valencias testimony was corroborated by witness Carmelo Martinez, who was present at the shooting and identified Ramos as the shooter.

Ramos claims that the admitted existence of corroboration does not in this case end the analysis because of the importance of witness credibility here. It appears that Ramos is focusing on the sua sponte duty to instruct that accomplice testimony be viewed with caution (People v. Zapien, supra, 4 Cal.4th at p. 982), as set forth in CALJIC No. 3.18. Appellate courts evaluate the erroneous failure to give CALJIC No. 3.18 under the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Lewis (2001) 26 Cal.4th 334, 371.) The error is harmless if other instructions given to the jury adequately inform it how to evaluate the accomplices testimony. In Lewis, the jury was instructed with CALJIC Nos. 2.21.2, 2.20, and 2.24, which were sufficient to advise the jury to view accomplice testimony with caution. To the extent . . . the jury should have been instructed to view [accomplice] testimony with distrust (CALJIC No. 3.18), we find the other instructions givenincluding [a] witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others (CALJIC No. 2.21.2), along with instructions on a witnesss credibility (CALJIC No. 2.20) and the character of a witness for honesty or truthfulness or their opposites (CALJIC No. 2.24)were sufficient to inform the jury to view [the accomplices] testimony with care and caution, in line with CALJIC No. 3.18. (Ibid.) Here, the jury was instructed with CALJIC Nos. 2.20, 2.21.1, 2.21.2, and 2.13, which informed the jury about evaluating witness credibility, discrepancies in testimony, distrust of the testimony of a witness who is willfully false, and prior consistent and inconsistent statements. While the trial court should have given CALJIC No. 3.18, these instructions adequately conveyed to the jury how to evaluate all testimony, including that of the accomplice, Valencia. Accordingly, there is no reasonable probability that Ramos would have received a more favorable result if the trial court had instructed the jury with CALJIC No. 3.18, and the error is therefore harmless.

III. Sentence Enhancement Under Section 12022.53, Subdivision (d)

Ramos argues that the imposition of a sentence enhancement for his personal and intentional discharge of a firearm, causing death ( 12022.53, subd. (d)), violates section 654 and the merger doctrine because both the murder sentence and the enhancement punish him for the same act.

The merger doctrine precludes felony-murder convictions based on the predicate felony of assault. (People v. Ireland (1969) 70 Cal.2d 522, 539.) The doctrine does not apply to sentence enhancements and does not bar the imposition of an enhancement under section 12022.53, subdivision (d) when a defendant is convicted of first degree murder. (People v. Sanders (2003) 111 Cal.App.4th 1371, 1374-1375 (Sanders).)

We anticipate further guidance concerning the relationship of section 654 to sentence enhancements from the California Supreme Court, which is presently considering People v. Palacios, review granted May 11, 2005, S132144, and People v. Manila, review granted Sept. 20, 2006, S144885. Until the Supreme Court speaks on this question, we follow established precedent holding that section 654 does not preclude the imposition of a single firearms enhancement to an offense committed by the use of firearms unless firearms use is an element of the offense when considered in the abstract. (Sanders, supra,111 Cal.App.4th at pp. 1375-1376; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1314-1315; People v. Myers (1997) 59 Cal.App.4th 1523, 1529-1534; People v. Ross (1994) 28 Cal.App.4th 1151, 1156-1159.) Because firearms use is not an element of murderalthough this specific case did involve the use of a firearmthe enhancement under section 12022.53, subdivision (d) does not violate section 654.

Ramos disagrees with the decision in Sanders, supra, 111 Cal.App.4th 1371, and argues that Apprendi v. New Jersey (2000) 530 U.S. 466 and People v. Seel (2004) 34 Cal.4th 535 dramatically altered the perspective from which California views its historical characterization and treatment of sentencing enhancements and support his contention that section 654 applies to sentencing enhancements. The Seel court found that double jeopardy considerations preclude retrial of a premeditation allegation reversed for insufficient evidence. (Seel,at p. 539.) Seel, a double jeopardy case, simply does not apply here; nothing in its holding indicates that section 654 precludes imposition of a firearm enhancement to the crime of murder.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

[2] Given our conclusion that the trial court erred in not giving accomplice instructions sua sponte, we need not reach Ramoss alternative argument that if there was no sua sponte duty to instruct on accomplice testimony, trial counsel rendered ineffective assistance by not requesting such instructions.