People v. Ruiz CA2/7 ( 2015 )

Filed 7/27/15 P. v. Ruiz CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B257667
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA052133)
v.
ANTONIO RUIZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Steven R. Van Sicklen, Judge. Affirmed.
Antonio Ruiz, in pro. per.; Richard B. Lennon, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_____________________
FACTUAL AND PROCEDURAL BACKGROUND
In 2002 defendant Antonio Ruiz shot at several homes while driving through the
city of Lawndale and then demanded “money and gold” at gunpoint from a man sitting in
his car outside a convenience store. When the man refused, Ruiz threatened to shoot him
in the head.
After waiving his right to a jury trial, Ruiz pleaded guilty to seven counts:
(1) criminal threats (Pen. Code,1 § 422); (2) assault with a firearm (§ 245, subd. (a)(2));
(3) attempted second degree robbery (§§ 211, 664); (4) shooting at an inhabited dwelling
(§ 246); (5) possession of a firearm by a felon (former § 12021, subd. (a)(1));2 (6)
possession of a narcotic with a firearm (Health & Saf. Code, § 11370.1, subd. (a)); and
(7) possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). Ruiz
also admitted allegations he personally used a firearm in the commission of the crimes
charged in counts 2 and 3 (§ 12022.5, subd. (a)), he personally used a handgun in the
commission of the crime charged in count 3 (§ 12022.53, subds. (b) & (e)(1)), a principal
was armed with a firearm in the commission of the crime as to counts 3 and 4 (§ 12022,
subd. (a)(1)); and the crimes charged in counts 1 through 4 were committed for the
benefit of, at the direction of, and in association with a criminal street gang (§ 186.22,
subd. (b)(1)). Finally, Ruiz admitted he had suffered one prior serious felony conviction
within the meaning of section 667, subdivision (a)(1), and the three strikes law (§§ 667,
subds. (b)-(i), 1170.12)3 and he had served two prior prison terms for felonies (§ 667.5,
subd. (b)).
1 All undesignated statutory references are to the Penal Code.
2 The Legislature repealed former section 12021, subdivision (a)(1), in effect at the
time the offenses were committed, effective January 1, 2011, and recodified the statute
without substantive change in section 29800, subdivision (a)(1).
3 The information alleged two prior strike allegations, but the trial court struck one
of them.
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The trial court agreed to impose an aggregate state prison term of between 25 to
30 years, after hearing argument from counsel on the appropriate sentence within that
range. Following argument by counsel, the court sentenced Ruiz to an aggregate state
prison term of 27 years 8 months.
In 2011, Ruiz filed a petition for writ of habeas corpus, which the trial court
granted on the ground Ruiz was sentenced in violation of the prohibition against
imposing both gang and firearm enhancements. (See People v. Rodriguez (2009) 47
Cal. 4th 501, 509.) The court granted Ruiz’s request for a resentencing hearing and asked
the court to order him to be present with counsel. The court subsequently vacated the
previously-imposed sentence, adopted the People’s written recommendation regarding
the recalculated sentence, and resentenced Ruiz to an aggregate state prison term of 27
years 8 months. The court however, did not hold a hearing and neither party was present.
Ruiz appealed, arguing the trial court violated his constitutional and statutory
rights to be present at the resentencing hearing and to counsel. We agreed, reversed the
sentence, and remanded the case for resentencing, with Ruiz and his counsel present with
a full opportunity to be heard. (People v. Ruiz (July 17, 2013, B245746) [nonpub. opn.].)
Prior to resentencing Ruiz on remand, the trial court reviewed the sentencing
memoranda filed by both parties and records from the Department of Corrections and
Rehabilitation reflecting Ruiz’s behavior during 10 years of incarceration. After hearing
argument by counsel and Ruiz’s statements on his behalf, the court concluded that there
had not been a sufficient change in Ruiz’s circumstances to justify a lesser sentence than
the one the court had previously imposed. The court sentenced Ruiz to an aggregate state
prison term of 27 years 8 months as follows: On count 4, 14 years (the upper term of
seven years, doubled under the three strikes law) for shooting at an inhabited dwelling,
plus five years for the gang enhancement, plus five years for the prior serious felony
enhancement; on count 3, 16 months (one-third the middle term of two years, doubled)
for attempted second degree robbery; 16 months (one-third the middle term of two-years,
doubled) for possession of a firearm by a felon; and one year for one prior prison term
enhancement. The court imposed and stayed sentences on the remaining counts and
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enhancements. The court awarded Ruiz 5,035 days of presentence custody credit and
imposed statutory fines, fees, and assessments.
DISCUSSION
We appointed counsel to represent Ruiz in this appeal. After examining the
record, counsel filed an opening brief raising no issues. On March 18, 2015 we advised
Ruiz that he had 30 days to submit any contentions or issues he wished us to consider.
After granting Ruiz two extensions of time, we received from Ruiz on May 7, 2015 a
15-page handwritten response with a copy of his completed plea waiver form as an
exhibit. In his supplemental brief, Ruiz argues that the trial court should have allowed
him to withdraw his plea and that the court improperly imposed the five-year gang
enhancement.
In this appeal, Ruiz can only challenge his sentence. He cannot challenge any
denial by the trial court of a request to withdraw his plea because the remand in case
No. B245746 was limited to resentencing in the presence of Ruiz and his attorney. (See
People v. Deere (1991) 53 Cal. 3d 705, 713 [only errors within the scope of the remand
are cognizable in second appeal]; People v. Murphy (2001) 88 Cal. App. 4th 392, 396-397
[“[i]n an appeal following a limited remand, the scope of the issues before the court is
determined by the remand order”]; People v. Webb (1986) 186 Cal. App. 3d 401, 410 [on
an appeal from resentencing, defendant cannot challenge convictions affirmed in a prior
appeal].)
With respect to the resentencing, the trial court properly imposed the gang
enhancement based on Ruiz’s conviction for discharging a firearm at an inhabited
dwelling (§ 246), which is, and was in 2000 when Ruiz committed the offense, a serious
felony. Section 186.22, subdivision (b)(1)(B), requires, as it did in 2000, imposition of a
five-year enhancement on a person convicted of a gang-related serious felony.
We have examined the entire record and are satisfied that Ruiz’s attorney on
appeal has fully complied with the responsibilities of counsel and that there are no other
arguable issues. (See Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S. Ct. 746, 145
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L. Ed. 2d 756]; People v. Kelly (2006) 40 Cal. 4th 106, 112-113; People v. Wende (1979)
25 Cal. 3d 436, 441.)
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
ZELON, Acting P. J.
STROBEL, 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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