People v. Ramos CA2/3 ( 2021 )

Filed 5/14/21 P. v. Ramos CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B304855
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA442346
v.
LUIS RAMOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Kennedy, Judge. Affirmed.
Janyce Keiko Imata Blair, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Allison H. Chung,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
A jury convicted defendant Luis Ramos of first degree
murder, four counts of attempted murder, and shooting at an
occupied motor vehicle. The jury also found firearm and gang
allegations true. The court sentenced defendant to an aggregate
prison sentence of 210 years to life and imposed various fines and
fees without objection.
Defendant contends he is entitled to a new trial because the
prosecutor committed misconduct during her closing argument
when she briefly alluded to the idea that communities in Los
Angeles are tired of gun violence and gang violence. We conclude
no misconduct occurred. And we reject defendant’s further claim
of prosecutorial misconduct in the form of improper vouching as
forfeited because he failed to raise an objection in the trial court.
Defendant also argues the court violated his due process
rights when it imposed a $300 restitution fine, a $40 court
operations fee as to each count, and a $30 criminal conviction fee
as to each count, without first determining his ability to pay the
fine and fees as required under People v. Dueñas (2019) 30
Cal. App. 5th 1157 (Dueñas). Because defendant’s sentencing
hearing occurred more than one year after Dueñas was decided
and he failed to raise an appropriate objection, we conclude the
argument is forfeited. Accordingly, we affirm the judgment.
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PROCEDURAL BACKGROUND
The People charged defendant1 by amended information
with one count of first degree murder (count 1; Pen. Code, § 187,
subd. (a)),2 four counts of attempted premeditated murder
(counts 2–5; §§ 664, 187, subd. (a)), and one count of shooting at
an occupied motor vehicle (count 7; § 246).3 All counts included
allegations that a principal personally used and personally and
intentionally discharged a firearm causing great bodily injury.
(§ 12022.53.) The People also alleged that counts 1–5 were
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)) and that count 7 was committed with the intent
to promote, further, and assist in criminal conduct by a gang.
(§ 186.22, subd. (b)(4).)
A jury convicted defendant on all counts and found the
firearm and gang allegations true. The court sentenced defendant
to an aggregate term of 210 years to life in state prison. On the
base count of first degree murder, the court sentenced defendant
to 50 years to life (25 years to life for the murder, 25 years to life
for the firearm enhancement); on counts 2–5, the court sentenced
him to 40 years to life for each count (15 years to life for the
attempted murder, 25 years to life for firearm enhancement) to
run consecutive; and on count 7, the court imposed a sentence of
32 years to life (7 years for the shooting, 25 years to life for the
1 Josue Garcia was also charged with all counts in the amended
information. Defendant and Garcia were tried together. Garcia is not a
party to this appeal.
2 All undesignated statutory references are to the Penal Code.
3 Count 6 related only to Garcia.
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firearm enhancement). The court stayed the sentence on count 7
under section 654.
The court also ordered defendant to pay a $300 restitution
fine (§ 1202.4), a $30 criminal conviction assessment fee for each
of counts 1 through 5 (Gov. Code, § 70373), a $40 court security
fee for each of those five counts (§ 1465.8), $4,805 in victim
restitution (§1202.4, subd. (f)), and a parole revocation fine
(§ 1202.45), which the court stayed. Defendant did not ask the
court to determine whether he had the ability to pay the fines
and fees, nor did he otherwise object to the court’s imposition of
the fines and fees.
Defendant timely appeals.
FACTUAL BACKGROUND
In the early morning hours of September 28, 2013, Edwin
Jurado was at a nightclub in Los Angeles. Jurado was drunk and
became involved in a dispute with approximately six members of
the Park View clique of the MS-134 gang. After Jurado struck one
of the female gang members, a security guard detained Jurado
and walked the gang members out of the club. As they left the
club, one of the gang members said that they planned “to pop the
guy out.” Jurado was a member of a rival street gang.
The gang members headed from the club to a nearby
apartment where they discussed the incident at the club and
decided to “go give a lesson to somebody that had disrespected
them.” Defendant, a senior member of the Park View clique, and
his girlfriend were at the apartment. Shortly after 2:00 a.m.,
defendant (who was armed) and the other gang members (at least
4 MS-13 refers to La Mara Salvatrucha gang.
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two of whom were armed) drove back to the area of the nightclub
and found Jurado walking nearby. The gang members, including
defendant, got out of their cars and attacked Jurado.
While the attack was in progress, a group of four men drove
by and saw that the victim, Jurado, was not defending himself.
They decided to help the victim and stopped their car near the
fight. One passenger got out of the car and immediately heard
gunshots. He was injured and then ran to a nearby subway
station to summon help. Another passenger attempted to get out
of the car but as he opened the car door, one of the armed gang
members kicked the door closed and fired into the car, shattering
the front driver’s side window. The driver sped away from the
scene.
Defendant fatally shot Jurado three times in the chest and
abdomen.
DISCUSSION
Defendant asserts he was denied a fair trial due to
prosecutorial misconduct he alleges took place during closing
argument. He also argues the court erred by imposing a
restitution fine and court fees without first determining whether
he had the ability to pay them. Neither of these arguments has
merit.
1. The prosecutor did not commit misconduct.
1.1. Standard of Review
“We review claims of prosecutorial misconduct pursuant to
a settled standard. ‘Under California law, a prosecutor commits
reversible misconduct if he or she makes use of “deceptive or
reprehensible methods” when attempting to persuade either the
trial court or the jury, and it is reasonably probable that without
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such misconduct, an outcome more favorable to the defendant
would have resulted. [Citation.] Under the federal Constitution,
conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights—such as a comment
upon the defendant’s invocation of the right to remain silent—but
is otherwise worthy of condemnation, is not a constitutional
violation unless the challenged action “ ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’ ” ’ (People v. Riggs (2008) 44 Cal. 4th 248, 298; People v.
Crew (2003) 31 Cal. 4th 822, 839.) In addition, ‘ “a defendant may
not complain on appeal of prosecutorial misconduct unless in a
timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be
admonished to disregard the impropriety. [Citation.]” ’ (People v.
Stanley [(2006)] 39 Cal.4th [913,] 952.) Objection may be excused
if it would have been futile or an admonition would not have
cured the harm. (See People v. Hill (1998) 17 Cal. 4th 800, 820.)”
(People v. Dykes (2009) 46 Cal. 4th 731, 760.)
1.2. Additional Facts
Defendant asserts that the prosecutor committed
misconduct during her closing argument. The bulk of her
argument focused on the evidence presented and the elements of
the crimes charged. And as she drew near the end of her
argument, the prosecutor reviewed the evidence of gang
membership and gang violence relevant to the gang allegations.
Then, the prosecutor argued as follows: “Just to bring this to a
close, [the co-prosecutor] and I are prosecutors here in the State
of California, and specifically here in Los Angeles. We work for
the Los Angeles County District Attorney’s Office. And this is a
community. Lots of communities that are tired of gun violence,
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tired of gang violence. I was looking at news headlines recently
and I saw this headline (indicating). What a sad state. What a
sad view of our community. And so, having heard the evidence in
this case and having heard the law that applies, we are asking
you to find the defendants—hold them accountable and find them
guilty. Thank you all for your time.” The court then dismissed the
jurors for a 15-minute break.
After the jury left the courtroom, defense counsel objected
to a slide the prosecutor displayed during the closing portion of
her argument that apparently included a headline reading,
“Niger’s Government Asked the U.S. to Arm Its Drones. People
Aren’t Sure They Like the Idea. I Know America, You Can Be
Shot in Broad Daylight.” During an extended colloquy with
counsel, the court repeatedly questioned the relevance of the
headline to the case as it did not relate to MS-13 in particular or
gang violence generally. Despite impassioned argument from
counsel, the court overruled defendant’s objections.
After the jury returned to the courtroom, and at
defendant’s request, the prosecutor displayed the slide briefly
while the court admonished the jury as follows: “There is a
particular slide; it was utilized during the prosecutor’s argument.
It is irrelevant to the issues in this case, and I am instructing you
to disregard the information from that slide.” The court then
directed the prosecutor to take the slide off the screen, which she
did.
1.3. Analysis
Defendant contends the prosecutor’s use of the headline
and her reference to the impact of violence on the community
generally was an improper reference to evidence not available to
the jury. “ ‘ “Statements of supposed facts not in evidence ... are a
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highly prejudicial form of misconduct, and a frequent basis for
reversal.” ’ ” (People v. Rodriguez (2020) 9 Cal. 5th 474, 480.) We
reject this argument for several reasons.
First, with respect to the headline, the jury was instructed
to disregard the offending slide because it was irrelevant. We
presume the jury followed these instructions. (See, e.g., People v.
Avila (2009) 46 Cal. 4th 680, 719; People v. Ledesma (2006) 39
Cal. 4th 641, 684.)
Second, and in any event, the prosecutor’s remarks were
not improper. “ ‘It is settled that a prosecutor is given wide
latitude during argument. The argument may be vigorous as long
as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom.
[Citations.] It is also clear that counsel during summation may
state matters not in evidence, but which are common knowledge
or are illustrations drawn from common experience, history or
literature.’ ” (People v. Wharton (1991) 53 Cal. 3d 522, 567.) The
prosecutor’s comment about communities being tired of gun
violence and gang violence relates to the widely acknowledged
gang violence problem in Los Angeles, something surely—and
unfortunately—within the general knowledge or common
experience of jurors residing in this city.
Third, the prosecutor’s reference to the impact of violence
on the community and her display of the headline were incredibly
brief and unlikely to have influenced the jury to a significant
degree. The transcript suggests that the comments and display of
the headline lasted less than 30 seconds. Additionally, the
statements about community violence were de minimis. As noted,
the prosecutor’s closing argument, which comprises 66 pages in
the reporter’s transcript, focused on the evidence and the charges.
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The portion to which defendant objects comprises less than one-
half of one page in the transcript. (See People v. Anderson (2018)
5 Cal. 5th 372, 415 [noting that “[t]o the extent the prosecutor’s
language, ‘I believe with all my heart,’ could be viewed as
invoking his personal prestige or depth of experience, the brief
remark could not have been prejudicial”].)
Finally, even if the prosecutor’s brief commentary was
improper, there is no reasonable likelihood that the result would
have been different. (People v. Ayala (2000) 24 Cal. 4th 243, 288.)
Substantial evidence supports the jury’s verdicts and defendant
does not contend otherwise. Further, it is unlikely that the jurors
would have focused on the headline, given that even the court
struggled to understand the connection between the headline
(relating to the use of armed drones in Niger) and the case before
it. The jury was, in any event, instructed that the attorney’s
statements were not evidence. And we presume “ ‘the jury treated
the court’s instructions as statements of law, and the prosecutor’s
comments as words spoken by an advocate in an attempt to
persuade.’ ” (People v. Morales (2001) 25 Cal. 4th 34, 47.)5
Defendant also asserts that the prosecutor’s reference to
the District Attorney’s office during her closing argument
constituted improper vouching. Defendant failed to raise this
issue below and it is therefore forfeited. “As a general rule a
defendant may not complain on appeal of prosecutorial
5Because we conclude the prosecutor did not commit misconduct with
respect to the headline and the comments identified by defendant, we
need not consider defendant’s dependent claim that the prosecutor’s
brief reference to violence in the community was part of “a pattern and
practice that show[s] the misconduct was calculated[,] deliberate and
reprehensible. (People v. Cole (2004) 33 Cal. 4th 1158, 1203.)”
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misconduct unless in a timely fashion—and on the same
ground—the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the
impropriety.” (People v. Samayoa (1997) 15 Cal. 4th 795, 841;
People v. Dalton (2019) 7 Cal. 5th 166, 251.)
2. Defendant forfeited his challenge to fines and fees.
Citing People v. Dueñas, supra, 30 Cal. App. 5th 1157,
defendant contends the court violated his due process rights
when it imposed, without first determining his ability to pay, a
$300 restitution fine (§ 1202.4, subd. (b)), five $40 court
operations assessments (§ 1465.8), and five $30 court facility
assessments (Gov. Code, § 70373, subd. (a)(1)). In January 2019,
Dueñas held that “due process of law requires [a] trial court to ...
ascertain a defendant’s present ability to pay before it imposes”
(1) “court facilities and court operations assessments” (under
§ 1465.8 and Gov. Code, § 70373, respectively), or (2) a restitution
fine (under § 1202.4). (Dueñas, at pp. 1167, 1172.)
Defendant concedes that he did not object to the imposition
of these costs, even though Dueñas was decided more than one
year before his sentencing hearing. Typically, a defendant who
fails to object to the imposition of fines, fees and assessments at
sentencing forfeits the right to challenge them on appeal.
(See, e.g., People v. Aguilar (2015) 60 Cal. 4th 862, 864; People v.
Trujillo (2015) 60 Cal. 4th 850, 856–859; People v. McCullough
(2013) 56 Cal. 4th 589, 596–597.) Applying this general rule, we
conclude the issue was forfeited in this case.6
6 Defendant attempts to excuse his failure to object by arguing that
“there was not enough time realistically for the practicing trial bar,
and perhaps trial courts, to be informed of the change in the law
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Defendant notes some courts of appeal have concluded that
the failure to raise the issue of a defendant’s inability to pay fines
and fees at sentencing does not result in forfeiture and he urges
us to follow those cases. (See People v. Montes (2021) 59
Cal. App. 5th 1107, 1117–1121 [analyzing conflicting court of
appeal decisions and concluding Dueñas was not foreseeable];
People v. Castellano (2019) 33 Cal. App. 5th 485, 489 [holding that
because Dueñas announced a new constitutional principle,
forfeiture doctrine did not apply]; cf. People v. Frandsen (2019) 33
Cal. App. 5th 1126, 1153 [defendant forfeited challenge to
assessments and restitution fine because counsel failed to
object].) The cases defendant relies upon, however, all involved
sentencing proceedings that took place before Dueñas was final
and they are therefore inapplicable here.
Finally, defendant suggests that he is indigent and
therefore unable to pay the objected-to fines and fees because he
was represented at trial by a public defender and is represented
on appeal by counsel appointed by this court. Those facts are
insufficient, standing alone, to establish indigency. (See, e.g.,
People v. Frandsen, supra, 33 Cal.App.5th at p. 1153 [rejecting
defendant’s request to determine his alleged inability to pay fines
and fees “based on a record that contains nothing more than his
reliance on appointed counsel at trial”].)
brought about by Dueñas’[s] holding.” Given Dueñas’s significance and
the resulting conflict among the courts of appeal regarding its
propriety, we disagree.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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