People v. Ramirez CA4/3

Filed 7/30/14 P. v. Ramirez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G048878

v. (Super. Ct. No. 13NF0638)

GABRIEL RAMIREZ, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Richard Glen Boire, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

Appellant Gabriel Ramirez was convicted by jury of residential burglary while a nonaccomplice was present and receiving stolen property. (Pen. Code §§ 459, 460, subd. (a).) In a bifurcated proceeding, he waived his right to trial and admitted having suffered a prior strike and a prior serious felony conviction and having served two prior prison terms. (Pen. Code, §§ 667, 667.5, subd. (b).) The trial court sentenced appellant to 10 years in prison, representing four years (the midterm) for the burglary, five years for the prior serious felony conviction and another year for one of the prison priors. The court struck or stayed the remaining counts and enhancements. Although circumstantial, the evidence of appellant’s guilt was very compelling. Within hours of the subject burglary, appellant tried to use a credit card that was stolen during the crime, and a month later, the police searched his room and found the bulk of the stolen property. When questioned about the credit card, appellant first said he didn’t know anything about it, then he said he found it, then he said he bought it from a guy at the swap meet, then he said he acquired it in the parking lot of a Mexican restaurant. Testifying on his own behalf, appellant asserted a convoluted version of the last narrative at trial, but the jury didn’t buy it and convicted him as charged. He appealed, and we appointed counsel to represent him. Appellate counsel filed a petition for a writ of habeas corpus in this court. The petition alleged appellant’s trial attorney was ineffective for failing or incompetently seeking to suppress 1) appellant’s statements to the police as being violative of Miranda v. Arizona (1966) 497 U.S. 177 (Miranda); 2) the fruits of his room search, and 3) evidence he asserted his Fourth Amendment rights before that search occurred. That petition was summarily denied by this court on May 29, 2014. Since then, appellate counsel has filed for habeas relief on the same grounds in the California Supreme Court. In the present appeal, appellate counsel did not argue against appellant, but advised this court he could find no issue to argue on appellant’s behalf. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Counsel filed a brief which set forth the facts of the case