People v. Gutierrez CA1/2 ( 2023 )


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  • Filed 10/31/23 P. v. Gutierrez CA1/2
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
    FIRST APPELLATE DISTRICT
    DIVISION TWO
    THE PEOPLE,
    Plaintiff and Respondent,
    A164741
    v.
    RYAN JOSHUA GUTIERREZ,                                                  (Alameda County
    Super. Ct. No. 16CR016265)
    Defendant and Appellant.
    A jury convicted defendant Ryan Joshua Gutierrez of voluntary
    manslaughter and found he personally used a firearm in the commission of
    that offense. The jury also convicted him of two counts of unlawful firearm
    possession. He admitted a prior strike conviction and the trial court
    sentenced him to prison. On appeal, defendant contends the admission of a
    witness’s preliminary hearing testimony at trial violated his right to
    confrontation and his due process right to a fair trial under the federal
    Constitution because the prosecutor failed to exercise due diligence to secure
    the witness’s presence at trial. He further contends his stipulation to the
    prior strike was not knowing and voluntary because he was not fully advised
    of his constitutional rights. We disagree and affirm.
    1
    BACKGROUND
    In 2018, the prosecution charged defendant with murder and alleged an
    enhancement for personally discharging a firearm causing death, personal
    infliction of great bodily injury, and intentional discharge of a firearm
    (count 1). The prosecution also charged defendant with two counts of
    unlawful possession of a firearm (counts 2 & 3). The information further
    alleged defendant had suffered three prior convictions, one of which—
    residential burglary—constituted a prior strike.
    At trial, the prosecution offered evidence that in December 2016, Eder
    Mike Marroquin was shot and killed following an alcohol-fueled dispute at a
    holiday party. Jesus Ramirez witnessed the incident. According to his
    preliminary hearing testimony, which was read to the jury, Ramirez said the
    dispute began as a friendly disagreement. Eventually, the argument became
    more heated; Ramirez urged defendant to take a break and cool down. He
    also attempted to diffuse the situation by encouraging Marroquin to leave the
    party with him. As the two men attempted to leave, defendant mumbled
    something to Marroquin. Marroquin turned around and punched defendant
    in the face, causing him to fall to the ground. Defendant responded by
    pulling out a gun and shooting—and killing—Marroquin.
    Concerned for his and his family’s safety, Ramirez told law enforcement
    officers at the scene that he did not witness the shooting. However, once at
    the police station—after gaining assurances he and his family would be
    protected—Ramirez explained what he had witnessed.
    Defendant testified Ramirez was not present during any part of the
    altercation. He stated he did not intend to kill Marroquin, and that he acted
    in self-defense because he thought his life was in danger.
    2
    Before the jury reached a verdict, defendant admitted suffering a prior
    strike conviction. The jury acquitted him of murder as charged in count 1 but
    convicted him of the lesser included offense of voluntary manslaughter. It
    found true the allegation that he personally used a firearm in the commission
    of the voluntary manslaughter. It also found him guilty of unlawful
    possession of a firearm as charged in counts 2 and 3. The trial court
    sentenced defendant to 15 years, eight months in prison.
    DISCUSSION
    I.
    The Prosecutor Exercised Due Diligence to Secure the Witness’s
    Attendance at Trial.
    Defendant argues admission of Ramirez’s preliminary hearing
    testimony violated his federal constitutional right to confrontation, which in
    turn deprived him of his rights to due process and a fair trial. He contends
    the preliminary hearing testimony was inadmissible because the prosecutor
    failed to establish due diligence in securing Ramirez’s presence at trial. We
    disagree.
    “A criminal defendant has the right, guaranteed by the confrontation
    clauses of both the federal and state Constitutions, to confront the
    prosecution’s witnesses.” (People v. Herrera (2010) 
    49 Cal.4th 613
    , 620
    (Herrera).) However, that right is not absolute. An exception exists when a
    witness is unavailable and, at a previous court proceeding against the same
    defendant, has given testimony that was subject to cross-examination. (Evid.
    Code, § 1291, subd. (a)(2); all further statutory references are to this code;
    Herrera, at p. 621.) Under federal constitutional law, such testimony is
    admissible if the prosecution shows it made “a good-faith effort” to obtain the
    presence of the witness at trial. (Barber v. Page (1968) 
    390 U.S. 719
    , 725.)
    Under California law, the witness’s prior recorded testimony is admissible if
    3
    the prosecution used reasonable or due diligence in its unsuccessful efforts to
    locate the witness. (§ 240, subd. (a)(5); Herrera, at p. 622.)
    The prosecution has the burden of showing by competent evidence that
    the witness is unavailable. (People v. Smith (2003) 
    30 Cal.4th 581
    , 609) and
    “that it made a ‘good-faith effort’ . . . or, equivalently, exercised reasonable or
    due diligence to obtain the witness’s presence at trial.” (People v. Sánchez
    (2016) 
    63 Cal.4th 411
    , 440.) Reasonable or due diligence has been described
    as “ ‘ “untiring efforts in good earnest, efforts of a substantial character.” ’ ”
    (People v. Cogswell (2010) 
    48 Cal.4th 467
    , 477.) Considerations relevant to
    this inquiry “ ‘include the timeliness of the search, the importance of the
    proffered testimony, and whether leads of the witness’s possible location were
    competently explored.’ ” (Herrera, 
    supra,
     49 Cal.4th at p. 622.) In cases
    finding inadequate diligence, the efforts of the prosecution have been
    perfunctory or obviously negligent. (People v. Torres (2020) 
    48 Cal.App.5th 731
    , 748.) Conversely, diligence has been found when the prosecution’s
    “ ‘efforts are timely, reasonably extensive and carried out over a reasonable
    period.’ ” (Ibid.)
    “On review we defer to the trial court’s factual findings that are
    supported by substantial evidence, but we ‘independently review whether the
    facts demonstrate prosecutorial good faith and due diligence.’ ” (People v. Foy
    (2016) 
    245 Cal.App.4th 328
    , 339.) We conclude the prosecution exercised due
    diligence in its efforts to locate Ramirez and secure his attendance at trial.
    At the June 17, 2021 due diligence hearing, the prosecutor and district
    attorney investigator Randy Brandwood detailed their efforts to locate
    Ramirez as follows: In early March 2021,1 defendant withdrew his time
    1   Unless otherwise specified, all further references to dates occur in
    2021.
    4
    waiver for trial. Trial was set to begin in late summer of 2021; however,
    following the unexpected resolution of two of defense counsel’s cases,
    defendant’s case was sent to the trial department on May 17. That same day,
    the prosecutor asked inspector Brandwood for help locating Ramirez.
    Brandwood searched a county database to determine whether Ramirez had
    prior arrests or was in custody. Brandwood found an address in Hayward,
    where Ramirez reportedly had been living at the time of the 2016 homicide.
    Brandwood drove to the address and spoke to the home’s occupant, who said
    Ramirez did not reside there. The occupant did not know Ramirez.
    Brandwood then searched a second database, where he found another
    possible address for Ramirez on Princeton Street in Hayward. Brandwood
    also ran Ramirez’s driver’s license through a statewide database and found a
    third potential address for Ramirez in Riverside.
    On May 19, Brandwood went to the Princeton Street address in
    Hayward, where he spoke to a woman who resided there. She confirmed that
    her son, Jesus Ramirez, lived at the address, but she declined to share his
    phone number. Brandwood visited the Princeton Street address twice more;
    on May 21, he asked the Alameda County Sheriff’s office to help him set up a
    surveillance team to watch the Princeton Street house during the evenings;
    Brandwood also participated in the surveillance. On May 28, Brandwood
    returned to the house with a photo of Ramirez—which he had not done
    during his initial visit—and showed it to a male occupant. The man
    confirmed he had a brother named “Jesus Ramirez” who lived at the house,
    but the man in the photograph was not his brother.
    At some point between May 19 and 28, Brandwood asked the Riverside
    Police Department for help locating Ramirez. Police tried—but were
    unable—to locate Ramirez at the Riverside address listed on his driver’s
    5
    license. Brandwood also created a “Track” flyer with Ramirez’s photo on it,
    which he sent to all law enforcement agencies in the Bay Area.
    On May 28, Brandwood discovered a police report from 2020 for
    Ramirez in Bentonville, Arkansas. From that report, he learned Ramirez
    had been arrested in 2020 for domestic violence against his then girlfriend,
    C.R. He asked the Bentonville Police Department for help locating Ramirez.
    A local database indicated Ramirez had terminated the utilities at the
    Bentonville address and moved out shortly after the arrest.
    Brandwood spoke with C.R., who said she and Ramirez separated
    shortly after the domestic violence incident. She moved to Hot Springs,
    Arkansas; she had not seen Ramirez since 2020, but her friends had reported
    he was in Hot Springs. Brandwood then contacted the FBI for assistance in
    locating Ramirez. Using a federal database, the FBI found recent pawn shop
    slips showing Ramirez had pawned items at a shop in Hot Springs.
    Brandwood asked the Garland County District Attorney’s Office in Hot
    Springs for help locating Ramirez.
    Brandwood gave the Hot Springs address to the prosecutor, who
    prepared an out-of-state subpoena (§ 1334). On June 4, the prosecutor filed
    the necessary paperwork with the court; that same day, the court approved
    the order and issued the subpoena. Immediately thereafter, the prosecutor
    emailed the documents to the Garland County District Attorney’s Office, and
    he sent a physical copy via overnight mail. He also provided Brandwood’s
    investigative notes, as well as a letter to Ramirez explaining how to make
    travel arrangements through the district attorney’s office.
    Based on the testimony and evidence presented at the due diligence
    hearing, the trial court determined the prosecution had taken “immediate[]”
    and “sustained” efforts to find Ramirez as soon as the case was put on the
    6
    docket in May. The court agreed Ramirez was a “very important” witness
    and it would be better to have him there “in person.” Nevertheless, the court
    concluded the leads had been “competently explored.” Given “the time waiver
    pulling and the other trials,” the trial court determined the prosecution had
    acted in a timely manner.
    Although defendant faults the prosecution for not starting its search for
    Ramirez sooner, spending too long pursuing a dead end, and failing to
    adequately follow up on leads in Arkansas, the record clearly reflects the
    prosecution engaged in “ ‘untiring efforts in good earnest.’ ” (People v. Fuiava
    (2012) 
    53 Cal.4th 622
    , 675.) Once the case was sent to the trial department,
    the prosecutor immediately enlisted the help of investigator Brandwood in
    locating Ramirez. (See id. at pp. 675-676 [waiting until firm trial date to
    subpoena witnesses proper]; People v. Wilson (2005) 
    36 Cal.4th 309
    , 342 [no
    unreasonable delay in starting search for witness one year after reversal on
    appeal when no realistic expectation trial would begin any earlier]; People v.
    Hovey (1988) 
    44 Cal.3d 543
    , 564 [due diligence found where investigators
    began search for witness one month before trial testimony was needed].)
    Brandwood, wasting no time, consulted multiple databases, contacted
    numerous law enforcement agencies, including the FBI, made multiple visits
    to an address believed to have been associated with Ramirez, created and
    participated in a nighttime surveillance team at that address, and spoke with
    various individuals believed to have knowledge about Ramirez’s
    whereabouts. Then, once it became apparent Ramirez was not in Hayward,
    the prosecution cast a wider net and discovered information placing Ramirez
    in Arkansas.
    Defendant suggests that “with a little more work” the prosecution could
    have tracked down Ramirez. However, where, as here, the record reveals
    7
    “ ‘sustained and substantial good faith efforts were undertaken, the
    defendant’s ability to suggest additional steps (usually . . . with the benefit of
    hindsight) does not automatically render the prosecution’s efforts
    “unreasonable.” [Citations.] The law requires only reasonable efforts, not
    prescient perfection.’ [Citations.] ‘That additional efforts might have been
    made or other lines of inquiry pursued does not affect [a] conclusion [there
    was due diligence]. . . . It is enough that the People used reasonable efforts to
    locate the witness.’ [Citation.] A court cannot ‘properly impose upon the
    People an obligation to keep “periodic tabs” on every material witness in a
    criminal case, for the administrative burdens of doing so would be
    prohibitive.’ ” (People v. Diaz (2002) 
    95 Cal.App.4th 695
    , 706.)
    People v. Cromer (2001) 
    24 Cal.4th 889
     (Cromer) cited by defendant, is
    distinguishable. In that case, the prosecution had direct knowledge the
    witness had moved, but took no action on this information. (Cromer, 
    supra,
    24 Cal.4th at p. 903.) The trial was originally slated to begin in September
    1997, and it was delayed multiple times until January 1998. (Ibid.) Despite
    the prior trial dates in September, the prosecution took no action to find the
    witness until late December, two weeks before trial. (Ibid.) The trial was
    continued to later in January and in the meanwhile, prosecutors’ efforts to
    find the witness can only be described as lackluster. The investigators were
    slow to follow up on information, left a subpoena at a home where the
    witness’s mother resided, failed to return to the home or attempt to find
    contact information so they could speak with the mother. (Id. at pp. 903–
    904.)
    The investigator’s efforts in this case are a far cry from those made in
    Cromer. Here, the trial date was advanced unexpectedly, and the prosecution
    took immediate action to locate Ramirez once it learned of the new date.
    8
    Unlike the investigator in Cromer, Brandwood checked on multiple
    databases, explored leads for four different potential residences—two in
    Hayward, one in Riverside and one outside of California. He personally
    returned several times to the second residence where he believed Ramirez
    was living and enlisted the help of other law enforcement agencies to monitor
    the location. When that did not pan out, he pursued a third location, the one
    in Riverside that was on Ramirez’s driver’s license, and enlisted law
    enforcement officers in that city to assist him. In the meanwhile, he pursued
    a fourth lead that he obtained through yet another database, spoke with a
    former girlfriend of Ramirez’s, enlisted the FBI, and provided all of this
    information to the prosecutor; the prosecutor then obtained a subpoena and
    provided it to the district attorney’s office in Hot Springs, requesting that
    they assist him in finding Ramirez. The record here reflects the kind of
    “ ‘persevering application, untiring efforts in good earnest, [and] efforts of a
    substantial character’ ” that the court did not find present in Cromer.
    (Cromer, supra, 24 Cal.4th at p. 904.)
    People v. Windfield (2021) 
    59 Cal.App.5th 496
     does little to advance
    defendant’s claim. There, the investigator started looking for the witness
    several months before trial, searched numerous databases, and contacted 50
    to 60 of the witness’s family members and friends. (Id. at pp. 508–512.)
    Though the actions of the investigator in Windfield were extensive, the
    prosecution is not required to exhaust every possible avenue of investigation
    to fulfill its due diligence obligation. (See, e.g., Hardy v. Cross (2011) 
    565 U.S. 65
    , 71–72.) Even if there were some additional steps the prosecution
    might have taken to find Ramirez, this hindsight assessment does not
    diminish the reasonableness of the actions taken by the prosecution here.
    9
    Finally, Defendant argues certain conflicts and inconsistencies between
    Ramirez’s statements “made it all the more imperative that the jury have a
    chance to observe Ramirez’s demeanor in person so they could evaluate the
    credibility of this critical witness,” and the prosecution was obliged to make
    even greater efforts to secure his attendance at trial. There is no question
    that Ramirez was an important witness, but the prosecution’s investigator
    made extensive efforts to find him. Further, Ramirez’s testimony was subject
    to extensive cross-examination when he testified at the preliminary hearing.
    Applying our independent judgment, we conclude the prosecution
    fulfilled its obligation of good faith and due diligence under the circumstances
    of this case, that Ramirez was unavailable, and therefore admission of his
    preliminary hearing testimony at trial did not violate defendant’s right to
    confront witnesses or deprive him of a fair trial. (See Herrera, 
    supra,
     49
    Cal.4th at p. 629.)
    II.
    Defendant’s Stipulation to His Prior Strike Conviction was Valid.
    Next, defendant contends his stipulation that he suffered a prior strike
    conviction is invalid because the trial court failed to provide a full advisement
    of his rights prior to accepting the stipulation. We disagree.
    “[B]efore accepting a criminal defendant’s admission of a prior
    conviction, the trial court must advise the defendant and obtain waivers of (1)
    the right to a trial to determine the fact of the prior conviction, (2) the right to
    remain silent, and (3) the right to confront adverse witnesses. [Citation.]
    Proper advisement and waivers of these rights in the record establish a
    defendant’s voluntary and intelligent admission of the prior conviction.”
    (People v. Mosby (2004) 
    33 Cal.4th 353
    , 356 (Mosby).) If the record “does not
    reveal complete advisements and waivers, the reviewing court must examine
    10
    the record of ‘the entire proceeding’ to assess whether the defendant’s
    admission of the prior conviction was intelligent and voluntary in light of the
    totality of circumstances.” (Id. at p. 361.) Thus, a defendant who admits a
    prior conviction without expressly waiving his rights to trial, to remain silent
    and to confront adverse witnesses may nevertheless be found to have made a
    voluntary and intelligent waiver of those rights so long as “the totality of
    circumstances surrounding the admission supports such a conclusion.” (Id.
    at p. 356.)
    Here, during in limine motions, defense counsel asked the court to
    remove references to defendant’s prior convictions when reading the charges
    because defendant planned to stipulate to the alleged prior convictions. In
    opposition, the prosecutor argued he should be able to note defendant was
    charged with being a felon in possession of a weapon, as that was the title of
    the charged offense. The prosecutor offered to accept a stipulation to the
    priors, but explained he would be willing and able to prove them up before
    the jury. The trial court agreed to remove references to defendant’s prior
    convictions when reading the information to the jury, and it would give the
    parties more time to finalize the stipulation. Defense counsel agreed, and
    again noted the defense was “planning on stipulating to the prior conviction
    . . . after the trial.”
    The next day, before witness testimony began, defense counsel
    confirmed defendant was aware of the prosecution’s plea offer. After
    discussing the offer with counsel, as well as his potential prison sentence if
    convicted, including the effect of his prior strike conviction, defendant
    confirmed that he was rejecting the offer.
    After the jury announced it had reached a verdict, but before it was
    read in court, the parties returned to the topic of defendant’s proposed
    11
    stipulation. The prosecutor wanted to confirm his understanding that “the
    defendant has already stipulated to those priors but . . . want[ed] to make
    sure that he’s waiving jury and waiving any bench trial and he’s stipulating
    to those three priors, specifically the strike prior [section] 459.” (Italics
    added.) Defense counsel agreed there had been a discussion about defendant
    stipulating to the strike prior for purposes of sentencing but could not recall if
    they had actually done so. After agreeing to put the stipulation on the
    record, defense counsel advised defendant as follows: “Mr. Gutierrez, you
    understand you have the right to have a trial with regards to whether your
    prior strike conviction can be proven beyond a reasonable doubt or not. What
    we discussed going into the trial was that we would stipulate to that and so
    now is the time to stipulate to that. [¶] Do you agree and stipulate to that
    prior strike conviction and waive your right to a trial?” (Italics added.)
    Defendant replied, “Yes.” The court thanked the parties and defendant for
    confirming the stipulation.
    While conceding the trial court failed to provide the three constitutional
    admonishments, the People argue this error does not require reversal
    because the record demonstrates defendant’s admission was voluntary and
    intelligent. (See Mosby, 
    supra,
     33 Cal.4th at p. 361.) We agree.
    We fail to see how defendant—who had just observed a jury trial in
    which his counsel confronted and cross-examined witnesses, and in which he
    knew he could have exercised his privilege against self-incrimination by
    declining to testify—would not understand that by waiving a trial on the
    prior conviction allegations, he was giving up those rights with respect to
    that allegation. A defendant who sees in action the very rights in question in
    the context of the trial of the underlying charges cannot reasonably fail to
    12
    understand that the absence of a trial means those rights are forfeited. (See
    Mosby, 
    supra,
     33 Cal.4th at p. 365.)
    The record also shows that just before defendant admitted the strike,
    the prosecutor wanted confirmation defendant was “waiving jury and waiving
    any bench trial” regarding his stipulation to the strike prior. Defense counsel
    also advised defendant he had “the right to have a trial with regards to
    whether [the] prior strike conviction can be proven beyond a reasonable doubt
    or not.” When asked whether he stipulated to the prior strike conviction and
    waived his right to trial, defendant replied, “Yes.”
    Additionally, the record reflects defendant was no stranger to the legal
    system, as he had multiple prior convictions. This pattern of criminal
    activity suggests defendant had at least some “ ‘ “knowledge and
    sophistication” ’ ” regarding his legal rights. (Mosby, supra, 33 Cal.4th at
    p. 365.)
    Finally, defendant takes issue with the trial court’s failure to advise
    him regarding the penalty that would result from his admission of the prior
    strike conviction. A defendant who admits a prior criminal conviction must
    first be advised of the increased sentence that might be imposed. (In re
    Yurko (1974) 
    10 Cal.3d 857
    , 864; People v. Karis (1988) 
    46 Cal.3d 612
    , 650.)
    However, unlike the admonition required for a waiver of constitutional
    rights, advisement of the penal consequences of admitting a prior conviction
    is not constitutionally mandated. Rather, it is a judicially declared rule of
    criminal procedure. (In re Yurko, at p. 864; People v. Walker (1991) 
    54 Cal.3d 1013
    , 1022, overruled on another point in People v. Villalobos (2012) 
    54 Cal.4th 177
    , 183.) Thus, any error in failing to advise a defendant of the
    penal consequences of a plea or admission is waived if not raised at or before
    sentencing. (People v. Walker, at p. 1023.) Additionally, to invalidate a plea
    13
    or admission based on the failure to advise of the penal consequences, a
    defendant must demonstrate it is reasonably probable he would not have
    entered the plea or admission had he been properly advised of its
    consequences. (Id. at pp. 1022–1023.)
    Here, the record reflects defense counsel conferred with defendant
    regarding the potential penal consequences of declining the prosecutor’s offer,
    including the strike prior. Also, defendant did not raise, at or before
    sentencing, the failure of the court to advise him of the penal consequences of
    his admission. By failing to do so, he has forfeited the issue on appeal.
    (People v. Walker, supra, 54 Cal.3d at p. 1023.) In any case, he has failed to
    demonstrate a reasonable probability that he would not have entered the
    admission had he been so advised. (Id. at pp. 1022–1023.)
    DISPOSITION
    The judgment is affirmed.
    14
    _________________________
    Stewart, P.J.
    WE CONCUR:
    _________________________
    Miller, J.
    _________________________
    Markman, J.*
    A164741, People v. Gutierrez
    * Judge of the Alameda Superior Court, assigned by the Chief Justice
    pursuant to article VI, section 6 of the California Constitution.
    15
    

Document Info

Docket Number: A164741

Filed Date: 10/31/2023

Precedential Status: Non-Precedential

Modified Date: 10/31/2023