P. v. Ramirez CA3 ( 2013 )


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  • 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    NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C069744
    Plaintiff and Respondent,                                     (Super. Ct. No. 09F05757)
    v.
    PRISCILLA RAMIREZ,
    Defendant and Appellant.
    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
    1
    court trial.1 Alternatively, she contends her trial counsel incompetently represented her
    regarding her entry into that stipulation. We shall affirm the judgment.
    PROCEDURAL BACKGROUND2
    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 preliminary hearing, defendant 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 right to a jury trial. Defendant agreed to this procedure, confirming that she had had
    ________________________________________________________________
    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.)
    2  We need not detail the evidence presented during the trials in order to resolve the
    issues on appeal.
    2
    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-Bruton[3] 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.”
    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
    ________________________________________________________________
    3 Very generally speaking, the Aranda-Bruton rule bars the admission of an out-of-court
    statement of one defendant that also incriminates a jointly-tried defendant. (People v.
    Brown (2003) 
    31 Cal.4th 518
    , 537; see People v. Aranda (1965) 
    63 Cal.2d 518
    ; Bruton v.
    United States (1968) 
    391 U.S. 123
     [
    20 L.Ed.2d 476
    ].)
    3
    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.4
    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
    ________________________________________________________________
    4 At sentencing, the trial court found that although defendant‟s lie about the rape caused
    the murders, and she was present during the murders, she was not as directly involved as
    the shooter and driver, she was youthful (age 21) and she had no record.
    4
    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 v. Chrans (7th Cir.1989) 
    869 F.2d 1084
    , 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, supra, 18 Cal.App.3d at pp. 901-902; People v.
    Evanson (1968) 
    265 Cal.App.2d 698
    , 700-701; see also In re Tahl (1969) 
    1 Cal. 3d 122
    ,
    129 (Tahl) [“If 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 law”].) 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
    5
    equivalent of a “slow plea of guilty” and emphasizes the Boykin-Tahl-Bunnell5 line of
    cases, which our Supreme Court 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 Boykin, in all cases in which the trial 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 Bunnell that the Boykin-Tahl
    advisements 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.”‟” (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); Bunnell, supra, 13 Cal.3d at pp. 604-606.) We
    ________________________________________________________________
    5 See Boykin v. Alabama (1969) 
    395 U.S. 238
     [
    23 L. Ed. 2d 274
    ]; Tahl, supra, 
    1 Cal.3d 122
    ; Bunnell v. Superior Court (1975) 
    13 Cal.3d 592
     (Bunnell).
    6
    will assume that the trial court should have advised defendant of all three of these
    specific rights, under the prophylactic rule announced in Bunnell and reiterated in later
    cases.
    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
    People v. Watson (1956) 
    46 Cal.2d 818
    , 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
    7
    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 Tahl to administer the
    guilty-plea 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 People v. Sanchez (1995) 
    12 Cal.4th 1
    , 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 and partially successful argument, obtaining two second degree
    murder convictions in the face of evidence defendant instigated Taylor‟s murder. (See
    Sanchez, 
    supra,
     12 Cal.4th at pp. 29-30 [no slow 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 convictions”]; People v. Stone
    8
    (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 plea” case.6
    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 Robertson, supra, 48 Cal.3d
    at pp. 39-40.)
    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
    ________________________________________________________________
    6 Because defendant did not testify, “there was no requirement of a personal, on-the-
    record waiver” of her privilege against self-incrimination. (Sanchez, supra, 12 Cal.4th at
    p. 30; cf. People v. Phillips (1985) 
    172 Cal.App.3d 670
    , 673.)
    9
    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 Robertson, supra, 48 Cal.3d at pp. 41-42; Wright,
    supra, 43 Cal.3d at p. 495; People v. Huynh (1991) 
    229 Cal.App.3d 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-Bruton rule was used against her. She
    asserts the evidence violated due process simply because her 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 (Freeman).)
    Defendant also claims that the arguments made at the jury trial of her
    codefendants prejudiced her. But arguments are not evidence (see Beagle v. Vasold
    10
    (1966) 
    65 Cal.2d 166
    , 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
    11
    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; Cowan v. Superior Court (1996) 
    14 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 not do so. Moreover,
    defendant fails to establish why, 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, because the evidence was not subject to 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.)7
    ________________________________________________________________
    7 Defendant suggests some evidence introduced at her court trial violated the Aranda-
    Bruton rule, or violated other Confrontation Clause principles, but none of the statements
    12
    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.
    she identifies in her brief facially incriminated her. Nor does she explain how those
    statements were significant in the context of all the trial evidence.
    13