People v. Ramirez CA2/8 ( 2014 )

Filed 10/9/14 P. v. Ramirez CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B253587
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA089929)
v.
GILBERT RAMIREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Suzette
Clover, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
**********
Defendant and appellant Gilbert Ramirez appeals from his conviction, following a
no contest plea, on one count of felon in possession of a firearm (Pen. Code, § 29800,
subd. (a)(1)), and one count of possession of a controlled substance (Health & Saf. Code,
§ 11350, subd. (a)). We affirm.
On July 12, 2013, defendant was charged by information with three counts:
possession of a controlled substance with a firearm (Health & Saf. Code, § 11370.1,
subd. (a); count 1), felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1);
count 2), and possession of ammunition (Pen. Code, § 30305, subd. (a)(1); count 3). It
was also specially alleged, as to all counts, defendant had suffered five prior qualifying
strikes within the meaning of the “Three Strikes” law and had served five prior prison
terms. The information was subsequently amended by interlineation to add one count
(count 4) for possession of a controlled substance (Health & Saf. Code, § 11350,
subd. (a)).
Defendant moved to suppress evidence recovered at the time of his arrest. (Pen.
Code, § 1538.5.) Los Angeles County Deputy Sheriffs Jonathan Elizarraraz and Scott
Chapman, the arresting deputies, testified at the evidentiary hearing to the following
facts. Shortly after 1:00 in the morning on May 31, 2013, the deputies were on patrol in a
marked vehicle. They were making a routine check at the Palms Motel in the City of
Rosemead because it is known for a high level of narcotics activity.
Defendant was standing with a female at the motel’s check-in window. Deputy
Chapman believed defendant matched the general description of a suspect wanted for
making criminal threats from a week or so before in the same general area. Defendant
was about 30 feet from the patrol car and Deputy Chapman, while still seated in the
driver seat, asked defendant his name and if he had any identification. Defendant said
something inaudible but then denied having any identification. Deputy Chapman asked
defendant if they could speak with him and he walked over to their patrol car.
Deputy Elizarraraz got out of the car and went up to defendant and asked
defendant if he could search him. Defendant said “Go ahead. I don’t have anything.”
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Defendant then conceded he had a “small” knife with him. Deputy Elizarraraz performed
a brief patdown search and found an 8-inch folding knife in the pocket of defendant’s
shorts. Deputy Elizarraraz was “startled” by the size of the knife, because defendant had
called it small, and because it was in the “fixed” or open position, pointing upward.
Deputy Elizarraraz secured the knife and detained defendant.
Deputy Chapman placed defendant in the back of the patrol car. He asked
defendant his name and ran it through the mobile digital computer. As a result of that
preliminary check, Deputy Chapman believed defendant was on parole. It appears that
fact was later found to be untrue. The deputies proceeded to conduct a weapons
investigation.
The deputies spoke with defendant’s female companion. She told them they had
arrived at the motel in the white pickup truck parked nearby. Deputy Chapman walked
over to the truck and saw, through the open window, a hypodermic needle lying on the
driver’s side floorboard. The needle had a brown residue in it and was lying on a black
bandana. The deputies searched the vehicle and found a loaded .22-caliber handgun
under the bandana and three small balloons, of what was later determined to be heroin, in
the bed of the truck.
Defendant did not call any witnesses. After entertaining argument, the court
denied defendant’s motion to suppress.
Thereafter, on the first day of trial, the parties informed the court that a plea
agreement had been reached. Defendant agreed to enter a plea of no contest to counts 2
and 4 and to admit one prior strike. The requisite admonitions were stated on the record
and defendant waived his rights to a jury trial. The court found defendant made a
knowing and voluntary decision to waive his rights and enter into the plea agreement, and
found a factual basis supported the plea. Counts 1 and 3 and the remaining special
allegations were dismissed.
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The court sentenced defendant to the low term of 16 months, doubled due to the
strike, on each of counts 2 and 4, with the terms to run concurrently. Defendant was
awarded 378 days of custody credits, and ordered to pay various fines and fees.
The record discloses no effort by defendant to secure a certificate of probable
cause, and no certificate is contained in the record. Thus, the only issues cognizable by
this appeal are search and seizure issues, and issues arising from postplea proceedings to
determine the degree of the crimes and penalties to be imposed. (People v. Panizzon
(1996) 13 Cal. 4th 68, 74-75.) Defendant filed a timely notice of appeal raising only the
issue of the denial of his motion to suppress in accordance with Penal Code
section 1538.5, subdivision (m) and Panizzon.
We appointed appellate counsel to represent defendant. Appellate counsel filed a
brief pursuant to People v. Wende (1979) 25 Cal. 3d 436 (Wende) in which no issues were
raised. The brief included a declaration from counsel that he reviewed the record and
sent a letter to defendant explaining his evaluation of the record. Counsel further
declared he advised defendant of his right, under Wende, to submit a supplemental brief
within 30 days.
On May 5, 2014, defendant submitted a one-page handwritten letter brief.
Defendant did not identify any specific claim of error, but only requested his current
appellate counsel be relieved and that new appellate counsel be appointed. Defendant
requested his current counsel be replaced because of counsel’s opinion there are no
arguable appellate issues. Simply because appointed counsel submitted a Wende brief
does not mean defendant is entitled to new counsel. Defendant has not shown any basis
for an order substituting new counsel.
As for the denial of defendant’s motion to suppress, the trial court is vested with
broad discretion in judging witness credibility, weighing the evidence and drawing the
reasonable inferences therefrom. “ ‘ “On appeal, all presumptions favor the exercise of
that power. . . .” [Ctiations.]’ [Citation.]” (People v. Gomez (2004) 117 Cal. App. 4th
531, 537; see also People v. Weaver (2001) 26 Cal. 4th 876, 924 [discussing standard of
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review for ruling on a motion to suppress].) The record amply supports the trial court’s
denial of defendant’s motion. The deputies had a reasonable basis for asking defendant a
few simple questions to determine his identity based on Deputy Chapman’s belief he fit
the general description of a suspect from an incident the previous week. Defendant
consented to a patdown search. There are no facts showing the officers acted
aggressively, in a coercive manner or otherwise unduly prolonged the initial detention
such as to vitiate the voluntariness of defendant’s consent. A large knife was recovered
from defendant’s pocket, and the deputies saw, in plain view, evidence of drugs in
defendant’s parked vehicle which justified the search of the vehicle. We do not believe
Arizona v. Gant (2009) 556 U.S. 332, referenced in defendant’s letter brief, supports a
different outcome on defendant’s motion. To the extent defendant’s letter suggests
appointed counsel failed to competently represent him by refusing to raise the denial of
the motion as an appellate issue, we are not persuaded.
We have examined the entire record and are satisfied that appointed counsel fully
complied with his responsibilities in assessing whether or not any colorable appellate
issues exist. We conclude there are no arguable appellate issues. (People v. Kelly (2006)
40 Cal. 4th 106; Wende, supra, 25 Cal. 3d 436.)
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
We concur:
RUBIN, Acting P. J.
FLIER, J.
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