People v. Ramirez CA4/1

Filed 6/3/15 P. v. Ramirez CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D065677
Plaintiff and Respondent,
v. (Super. Ct. No. SCD248663)
GONZALO LOPEZ RAMIREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Louis R.
Hanoian, Judge. Affirmed.
The Cruz Law Office and Narcisco Delgado Cruz for Defendant and Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Melissa Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and
Respondent.
A jury convicted Gonzalo Lopez Ramirez of possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)). Previously, Ramirez pled guilty to driving
under the influence (Veh. Code, § 23152, subd. (a)) and one count of driving without a
license (Veh. Code, § 12500, subd. (a)).
The trial court granted Ramirez probation on various terms and conditions.
Ramirez appeals contending the court erred in denying his motion to suppress
evidence under Penal Code1 section 1538.5. He further contends the court erred in
permitting certain cross-examination of him by the prosecutor. Finally, he contends the
magistrate at the preliminary hearing erred in denying his request to reduce the drug
offense to a misdemeanor under section 17, subdivision (b)(5). We will reject each of his
contentions and affirm.
STATEMENT OF FACTS
At about 2:50 a.m. on June 3, 2013, a San Diego police officer observed Ramirez
drive by him. Although the officer was about 80 feet away from Ramirez's vehicle, the
officer could hear loud music from the car. The officer stopped Ramirez for violating the
Vehicle Code provision prohibiting loud music from cars that can be heard 50 feet away.
Ramirez was arrested for driving under the influence based on field sobriety tests
and preliminary blood alcohol screening. The search of the car and the defendant's
person produced .35 grams of methamphetamine in several packages.
DISCUSSION
Ramirez contends the trial court erred in denying his motion to suppress evidence
because he claims the initial stop was invalid. On this issue, as we will discuss, the
1 All further statutory references are to the Penal Code unless otherwise specified.
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argument essentially challenges the credibility of the officer's testimony. Ramirez simply
contends the officer could not have heard the music from more than 80 feet away. As we
will discuss, the trial court resolved the credibility issue against Ramirez. Accordingly,
we will reject this contention.
Next, Ramirez contends the trial court erred in permitting certain questions on
cross-examination regarding the identity of the person from whom he had been buying
drugs for six months prior to the offense. We will find the questions relevant to test the
credibility of Ramirez's testimony on direct examination.
Finally, Ramirez challenges the magistrate's decision to deny the motion under
section 17, subdivision (b)(5) without prejudice. We are puzzled with this contention,
because the request was made at the end of the preliminary hearing. Thereafter the case
went to trial. No motions were filed under section 995, nor did Ramirez raise the issue of
reduction of the offense to a misdemeanor at the time of sentencing. It would appear that
the magistrate's denial, without prejudice, and the failure to raise the issue in the trial
court should amount to forfeiture on appeal. (People v. Scott (1994) 9 Cal. 4th 331, 351.)
However, the People have responded on the merits and not raised the issue of
whether the claim is cognizable on this appeal. Since the issue of forfeiture has not been
raised, and the contention is plainly not meritorious, we will dispose of it on the "merits."
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I
THE MOTION TO SUPPRESS
As we have observed, Ramirez contends the officer's testimony about the loudness
of the music emanating from the car was not credible. Thus he argues there was no
justification for the stop.
A. Standard of Review
When we review a trial court's decision on a motion to suppress, we engage in a
two-step process. First we review the record to determine the historical facts. In that
process we apply the substantial evidence standard. Under that standard we draw all
reasonable inferences in favor of the trial court's factual findings. We do not make
credibility decisions, nor do we weigh competing evidence.
Once we determine there is substantial evidence to support the trial court's factual
findings, we independently determine the legal effect of those facts. (People v. Glaser
(1995) 11 Cal. 4th 354, 362; People v. Woods (1999) 21 Cal. 4th 668, 673-674; People v.
Leyba (1981) 29 Cal. 3d 591, 596-597.)
B. Analysis
After an evidentiary hearing the trial court found the officer credible. Thus the
record establishes that the officer heard loud music coming from Ramirez's car at a
distance of 80 to 100 feet. Vehicle Code section 27007 prohibits a driver from allowing
any amplified sound from a vehicle which can be heard from a distance of 50 feet or
more. Plainly, the evidence at the suppression motion demonstrates a potential violation
of the Vehicle Code, which the officer could lawfully investigate. Ramirez does not
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challenge the officer's investigation that followed the stop. Therefore, the trial court
properly denied the motion to suppress.
II
CROSS-EXAMINATION
When he was stopped, Ramirez told the officer that the drugs found were his and
that he had paid $30 per bag for them. At trial, however, Ramirez denied telling the
officer the drugs were his. He said he did not recall the officer finding drugs in his wallet
or knowing to whom the drugs belonged. He did testify that he had used drugs and
alcohol on the day of the arrest. He also stated he had been using cocaine and
methamphetamine for about six months prior to his arrest.
On cross-examination the prosecutor asked a series of questions regarding the
identity of the person from whom Ramirez had purchased drugs. Ramirez said he did not
know the identity of the seller. Defense counsel objected on relevance grounds, which
objection was overruled. The trial court did sustain an objection to one question since it
was argumentative as phrased.
Ramirez contends the questions were prejudicial since they cast him as an
"addict." Thus he argues the court should have excluded the questions under Evidence
Code section 352, although he did not specifically raise that section at trial.
Our direct response to the contention is that the trial court was well within its
broad discretion to permit these questions. Trial courts enjoy discretion in ruling on
evidentiary issues. We will not overturn a trial court's discretionary ruling in the absence
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of a clear showing of abuse of that discretion. (People v. Smithey (1999) 20 Cal. 4th 936,
973-974; People v. Rodrigues (1994) 8 Cal. 4th 1060, 1124.)
To the extent anything would raise an inference of addiction it was Ramirez's own
testimony that he had been using drugs for six months and that he had used drugs and
alcohol on the day of his arrest. He had also contradicted the officer's testimony about
his knowledge of drugs in his wallet at the time of his arrest. Clearly the prosecutor was
entitled to challenge Ramirez's credibility on cross-examination. The notion that
Ramirez had been purchasing cocaine and methamphetamine for six months but did not
have any knowledge of where he obtained them, could cause a reasonable juror to doubt
his credibility. The trial court did not abuse its discretion in ruling on the challenged
questions.
III
SECTION 17, SUBDIVISION (B)(5)
Ramirez does not challenge the trial court's sentencing decision. Indeed, Ramirez
did not ask the trial judge to reduce the offense to a misdemeanor. Rather, his challenge
here is to the magistrate's decision following the completion of the preliminary hearing.
At that time the magistrate declined to address the motion because he needed more
information about the defendant than was available at that point. Thus, the motion was
denied without prejudice.
Even assuming that we should reach a magistrate's previously unchallenged
decision at this point, we are satisfied there was no error in this case. The courts have
broad discretion in decisions whether to reduce so-called "wobbler" offenses to
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misdemeanors. We will only overturn such decision where there is a clear showing of an
abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal. 4th 968, 977.) A
magistrate's decision to decline to reduce an offense at that early stage because there is
not sufficient information about the defendant is not, by any stretch of the imagination, an
abuse of discretion. Rather, it seems prudent to us that the magistrate would deny the
motion without prejudice so that an informed sentencing decision could be made at a later
date. The claim the magistrate abused his discretion in this case is wholly without merit.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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