People v. Ramos CA2/5 ( 2015 )

Filed 1/13/15 P. v. Ramos CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
THE PEOPLE, B256215
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA117053)
v.
GAVINO CIRILO RAMOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, John A.
Torribio, Judge. Affirmed.
A. William Bartz, Jr., under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant, Gavino Cirilo Ramos, appeals from the sentence imposed on remand
from a prior appeal. We previously affirmed with minor modifications defendant’s
second degree murder conviction. (Pen. Code, § 187, subd. (a).) 1 In addition, the jury
and the trial court found various special enhancement allegations to be true. (§§ 186.22,
subd. (b)(1)(C), 667, subds. (a)(1) & (b)-(i), 667.5, subd. (b), 1170.12, 12022.53, subd.
(d).) We remanded to allow the trial court to exercise its discretion in connection with a
prior prison term enhancement and a serious conviction sentence. (People v. Ramos
(Nov. 22, 2013, B244221 [nonpub. opn.].) Defendant contends the trial court abused its
discretion in refusing to strike his prior convictions alleged under Penal Code sections
667, subdivisions (b) through (i), and 1170.12. We conclude there was no abuse of
discretion.
The information alleges defendant had been convicted in 1994 of two attempted
murder counts (§§ 664, 187, subd. (a)) and one robbery count. (§ 211.) The trial court
had discretion to strike one or more of those prior conviction allegations. (§ 1385, subd.
(a); People v. Clancey (2013) 56 Cal. 4th 562, 568; People v. Superior Court (Romero)
(1996) 13 Cal. 4th 497, 529-530.) In ruling on a motion to strike a prior conviction, a trial
court considers certain well-established factors: “[T]he court in question must consider
whether, in light of the nature and circumstances of [the defendant’s] present felonies and
prior serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the scheme’s spirit, in
whole or in part, and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17
Cal. 4th 148, 161; accord, In re Large (2007) 41 Cal. 4th 538, 552.) Our review is for an
abuse of discretion. (People v. Clancey, supra, 56 Cal.4th at p. 581; People v. Carmony
(2004) 33 Cal. 4th 367, 373.) An abuse of discretion occurs only if the trial court’s ruling
is “so irrational or arbitrary that no reasonable person could agree with [the trial court’s
ruling].” (People v. Carmony, supra, 33 Cal.4th at p. 377; see People v. Blocker (2010)
1 Future statutory references are to the Penal Code except where otherwise noted.
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190 Cal. App. 4th 438, 444.) The burden is on the defendant to clearly show the trial
court’s sentencing decision was irrational or arbitrary. (People v. Carmony, supra, 33
Cal.4th at p. 376; People v. Superior Court (Alvarez) (1997) 14 Cal. 4th 968, 977.)
Moreover, as our Supreme Court has held, “[A] ‘“decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial judge.’”‘ ([People
v. Superior Court (Alvarez), supra, 14 Cal.4th] at p. 978, quoting People v. Preyer (1985)
164 Cal. App. 3d 568, 573.)” (People v. Carmony, supra, 33 Cal.4th at pp. 376-377; see
People v. Clancey, supra, 56 Cal.4th at pp. 580-581.)
Defendant was an unemployed gang member with a drug abuse history and a long
criminal record. He had numerous aliases and gang monikers. He had failed at times to
satisfactorily perform on probation and parole. He had also engaged in criminal conduct
while in state prison. As a juvenile, defendant was arrested for robbery in 1987 and 1990
and burglary in 1989. The probation department’s pre-conviction report contains no
additional information regarding those arrests. On January 28, 1991, defendant was
convicted of marijuana possession (Health & Saf. Code, § 11357, subd. (c)), a
misdemeanor. He was placed on six months’ summary probation. (Case No. C6595.)
Six months later, on July 15, 1991, defendant was convicted of being a minor in
possession of alcohol (Bus. & Prof. Code, § 25662, subd. (a)), a misdemeanor. He served
21 days in the county jail. (Case No. 91M06994-03.) On July 30, 1991, defendant was
convicted of controlled substance possession (Health & Saf. Code, § 11350, subd. (a)), a
felony. He was placed on probation for 36 months. (Case No. TA013712.) His
probation was revoked and reinstated on January 24, 1992. One year later, on February
24, 1993, defendant’s probation was again revoked. On March 22, 1993, defendant was
sentenced to 16 months in state prison. On November 21, 1991, defendant was convicted
of drinking in a park (Paramount Mun. Code, § 3-2), a misdemeanor. He served two days
in the county jail. (Case No. 91M13236.) On January 27, 1992, defendant was convicted
of being a minor in possession of alcohol (Bus. & Prof. Code, § 25662, subd. (a)), a
misdemeanor. He was placed on 15 months’ summary probation. (Case No.
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92M00737.) Defendant was convicted of driving without a license (Veh. Code, § 12500,
subd. (a)), a misdemeanor, on November 17, 1992. He was placed on 12 months’
summary probation. (Case No. 92M08155.) Defendant incurred another misdemeanor
conviction, for vandalism, on December 21, 1992. He was placed on 12 months’
summary probation. (Case No. TA021754.)
The prior conviction allegations in the present case (§§ 667, subd. (b)-(i), 1170.12)
arose from case No. TA026160. On June 13, 1994, defendant was convicted of first
degree robbery (§ 211) and two counts of attempted murder. (§§ 664, 187, subd. (a).)
Firearm use and prior prison term allegations were found to be true. He was sentenced to
244 months in state prison. On April 17, 2001, while in prison, defendant was arrested
for battery. (§ 4501.5.) On September 12, 2002, the battery charge was dismissed. A
drug possession charge (§ 4573.8) was also dismissed. Defendant was convicted of
resisting an executive officer (§ 69), a felony. He received a concurrent two-year
sentence. On November 6, 2008, after his release from state prison, defendant was
arrested for drug possession. (Health & Saf. Code, § 11377, subd. (a).) On November
10, 2008, however, the charge was dismissed. The probation department’s report notes,
“[I]nadmissible search and seizure.” On November 30, 2010, defendant was arrested for
the present murder of a rival gang member. Defendant was on active parole when he was
arrested. At trial in the present case, defendant admitted he had been a methamphetamine
user. He testified he had been in drug rehabilitation and was not using methamphetamine
anymore.
The trial court considered whether defendant fell outside the spirit of the
sentencing scheme. The trial court concluded he did not. Given the foregoing record, the
trial court did not abuse its discretion. The remoteness of defendant’s prior convictions
do not necessarily take him outside the spirit of sections 667, subdivisions (b) through (i),
and 1170.12. The same is true that they were sustained in a single case. (See People v.
Williams, supra, 17 Cal.4th at pp. 162-163; People v. Fuhrman (1997) 16 Cal. 4th 930,
939.) Defendant’s reliance on People v. Vargas (2014) 59 Cal. 4th 635, 645, is
misplaced. There is no evidence defendant’s three prior serious felony convictions—two
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attempted murder counts and one robbery count—were based on his commission of a
single act against a single victim.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P.J.
We concur:
KRIEGLER, J.
GOODMAN, J.
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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