People v. Ramos CA4/1 (2020) · DecisionDepot

People v. Ramos CA4/1

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Dec 28, 2020 No. D074429Unpublished

Filed 12/28/20 P. v. Ramos CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D074429

Plaintiff and Respondent,

v. (Super. Ct. No. SCN365966)

DANIEL MANUEL RAMOS et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of San Diego County, Sim Von Kalinowski, Judge. Affirmed. Cynthia A. Grimm, under appointment by the Court of Appeal, for Defendant and Appellant Daniel Manuel Ramos. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant Elias Isai Ramos. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Matthew Mulford, Deputy Attorney General, for Plaintiff and Respondent. In a joint trial involving gang shootings, a jury convicted Daniel Ramos (Daniel) and Elias Ramos (Elias) of first degree murder, attempted first

degree murder, and possession of a firearm by a felon. The jury also made true findings on firearm and gang enhancements. The court sentenced Daniel (the shooter) to an aggregate prison term of 92 years to life and Elias (the aider and abettor) to 84 years to life. On appeal, Daniel and Elias raise over 30 issues. Many involve the admissibility of a confession and incriminating statements Daniel made while in custody on unrelated charges to a confidential informant (CI) posing as a gang member. Defendants also assert the court erred in admitting evidence of (1) rap videos performed by Elias, and (2) certain expert testimony regarding gangs. Both also assert prosecutorial misconduct and sentencing errors. Each joins in the other’s challenges. We affirm the judgments. FACTUAL BACKGROUND A. Center Street and Posole Gangs Daniel and Elias (no relation) are members of Center Street, a criminal street gang in Oceanside. Daniel’s gang moniker is Kieto. Elias’s is Blue. Center Street, which has about 70 members, engages in murder, assault with a deadly weapon, robbery, vandalism, and unlawful possession of firearms. Posole, with about 100 members, is a rival gang claiming other Oceanside territory. A gang expert testified that murdering a gang rival achieves the highest form of respect within a gang, and even being present to provide backup and to corroborate what occurred bolsters a gang member’s status “just the same.” In 2016, Annebell F. was 15 years old and lived in the Posole

Related research

supra, 496 U.S. at p. 301, conc. opn. of Brennan, J.) Justice Brennan asserted that “the pressures of custody make a suspect more likely to confide in others and to engage in ‘jailhouse bravado’ . . . [and that] [t]he State is in a unique position to exploit this vulnerability because it has virtually complete control over the suspect’s environment. Thus, the State can ensure that a suspect is barraged with questions from an undercover agent until the suspect confesses.” (Id. at pp. 302-303.) Justice Brennan also concluded that the undercover police agent had tricked Perkins into confessing. (Ibid.) However, a concurring opinion is not binding. (Maryland v. Wilson (1997) 519 U.S. 408, 412-413 [statement in concurrence is not binding precedent].) Moreover, Justice Brennan did not opine that all such undercover operations violated the Due Process Clause. Rather, he suggested that the appropriate approach would be to consider the totality of the circumstances. (Perkins, supra, 496 U.S. at pp. 302-303, conc. opn. of Brennan, J.) The trial court here did so. After listening to the recording, the court found “there was nothing that in any way suggested that Daniel was in some way intimidated into saying what he did to the CI.” Attempting to distinguish the majority holding in Perkins, supra, 496 U.S. 292, Daniel contends that the “tag team approach” by the CI and Garcia “provided a coercive effect not present in Perkins.” He also claims that the temporary “rebook/interview cell” compelled him to talk. Further, Daniel argues that the CI was not merely a “passive listener,” but instead portrayed himself as an experienced gang member who had committed murder. Daniel concludes, “This was an intricately planned deception.” We agree that police conducted an “intricately planned deception.” But that alone does not make the ruse unconstitutional. “Voluntary confessions are not merely ‘a proper element in law enforcement,’ [citation], they are an

‘ “classic case” ’ for a joint trial.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) Nevertheless, “ ‘the court may, in its discretion, order separate trials “in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 379.) Refusal to sever may be an abuse of discretion where: (1) evidence of the crimes to be jointly tried would not be cross- admissible in separate trials; (2) the charges are unusually likely to inflame the jury against the defendant; (3) a weak case has been joined with a strong case, creating a prejudicial spillover effect. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) We review an order denying a motion to sever for abuse of discretion. (Gomez, supra, 6 Cal.5th at p. 275.) In doing so, “we first consider ‘the cross- admissibility of the evidence in hypothetical separate trials.’ [Citation.] If the evidence is cross-admissible, then this ‘is normally sufficient to dispel any suggestion of prejudice and to justify a trial court’s refusal to sever properly joined charges.’ [Citation.] If not, then we also consider ‘(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense, or the joinder of the charges converts the matter into a capital case.’ [Citation.] Moreover, ‘[e]ven if a defendant fails to demonstrate the trial court’s joinder ruling was an abuse of discretion when it was made, reversal may nonetheless be required if the defendant can demonstrate that

appear to shift responsibility to others. [Citations.] But we have permitted the admission of those portions of a confession that, though not independently disserving of the declarant’s penal interests, also are not merely ‘self-serving,’ but ‘inextricably tied to and part of a specific statement against penal interest.’ ” (Grimes, at p. 715.) Noting that “context matters,” Grimes holds that statements tending “to underscore [the declarant’s] responsibility for the crime, rather than diminish it,” were admissible as declarations against interest. (Id. at p. 717.) In Cortez, supra, 63 Cal.4th 101, Norma Cortez was jointly tried with a codefendant on charges arising from a drive-by shooting. The trial court admitted a recorded police interview with the codefendant’s nephew. The nephew told police that the codefendant said Norma “ ‘was the one driving’ and ‘he was the one shooting.’ ” (Id. at pp. 107-108.) The trial court admitted these statements against Norma as declarations against her codefendant’s interest. Cortez explains, “ ‘[e]ven statements that are on their face neutral may actually be against the declarant’s interest.’ ” (Id. at p. 127.) The codefendant’s statements were against his penal interest because by identifying his accomplice by name, “he was increasing the likelihood that evidence connecting him to the shooting would be found.” (Ibid.) Like the declarant in Cortez, here Daniel named and implicated Elias as an aider and abettor. In so doing, Daniel increased the likelihood that evidence connecting him to Annebell’s murder would be found. That risk became a reality when the jury heard Elias’s rap lyrics incriminating Daniel. Moreover, the challenged statements are also against Daniel’s penal interests because they show Daniel committed the crimes with another Center Street gang member for the gang’s benefit, supporting the gang enhancement. Significantly, Daniel’s statements implicating Elias did not exculpate Daniel.

There is no evidence that the recording is incomplete or defectively recorded. “The mere assertion that [an] informant is a material witness on [the] issue [of guilt], without any plausible support therefor” is insufficient. (People v. Fried (1989) 214 Cal.App.3d 1309, 1315.) In asserting that the court erred in denying his motion to disclose the CI’s identity, Daniel primarily relies on Crane v. Kentucky (1986) 476 U.S. 683 (Crane), which held that a defendant was constitutionally entitled to introduce testimony about the physical and psychological environment in which he confessed to show his confession was not credible. However, the facts in Crane are substantially different from those here. The confession elicited in that case was not the work of a confidential informant, nor does the opinion indicate that the confession was recorded. Thus, in Crane the only source of evidence about the nature and circumstances of the interrogation was from the participants. Moreover, unlike Daniel’s case, the defendant in Crane made an offer of proof that police officers would testify “about the size and other physical characteristics of the interrogation room, the length of the interview, and various other details about the taking of the confession.” (Id. at p. 686.) In contrast here, the entire conversation was recorded and Garcia testified about the physical characteristics of the room and other details about the confession. Nothing in the record shows that the CI would have any additional relevant testimony on these issues. Citing People v. Lanfrey (1988) 204 Cal.App.3d 491, Daniel also contends, “ ‘No one knows what the undisclosed informer, if produced, might testify. He might contradict or persuasively explain away the prosecution’s evidence.’ ” However, Lanfrey undercuts Daniel’s argument. There, the court affirmed an order denying a motion to disclose a confidential informant’s identity because “there was no reasonable possibility that the informer could

v. Rodriguez (2012) 55 Cal.4th 1125, 1130.) Elias’s rap is against Elias’s penal interest because in those songs Elias admits each of these elements: (1) Active participation: Elias raps that he is “Rollin’ with the older homies . . . . Kieto’s my brother so if you hurt him I hurt you. . . . I’m a phone call away if it’s time to ride. Let’s ride.” He also sings that he “doesn’t hesitate to squeeze [i.e., shoot].” He then sings, “Center Street on my neck so you know I did it”—Elias actually has “Center Street” tattooed on his neck. (2) Knowledge that its members engage in a pattern of criminal activity: Elias raps, “It’s Center Street gang comin’ at you with the sickest, the realest about to kill it . . . that’s how we do it motherfuckers . . . aiming for the dome so you can die slow and you know how we do it up in Center Street fool.”; and (3) Willfully promotes, furthers, assists in the gang’s felonious conduct: Elias sings, “And when you hit my mother fucken bridge be strapped ‘cause my homies will aim right at you, fuck around and they might just snatch you.” “He asked me ‘if my pistol packin’ I told him ‘hell yeah dawg’ and he just started laughing (ha). Just in case a motherfucker wanna act up we do ‘em up real quick thought you knew what’s up.” The trial court correctly ruled that these statements “could subject Elias to criminal liability for participation in a criminal street gang under [section] 186.22 [subdivision] (a).” “ ‘To be against penal interest . . . the statement need not be made to persons who are likely to use it against the declarant in court proceedings. Declarations against penal interest are received notwithstanding that they were spoken in confidence in the expectation they would not be repeated to the authorities. [Citations.] Indeed, that makes such declarations more trustworthy.’ ” (People v. Masters (2016) 62 Cal.4th 1019, 1056.) Moreover, the songs not only helped establish

that Elias was Blue of the Center Street gang, but also that with Daniel (Kieto), he went looking to assault Posole gang members. Additionally, even assuming that Elias wrote these lyrics before the charged offenses, lines such as: (1) “I’m the first one to clack. I swear I own my own glock and keep that shit G. I never hesitate when it’s time to fuckin’ squeeze”; and (2) “In the land of panocheros so I crack them on sight. I gotta let ‘em know who the fuck runs the city . . . .”—show intent and motive to find and shoot Posole gang members in Posole territory. Moreover, there are similarities between the instant crimes and events described in the rap. In “Blue, Now You Know,” Elias raps that he makes rivals “run and hide, do or die.” Annebell hid; Julye ran for his life. In “That’s How We Do It,” Daniel raps that Center Street is “aiming for the dome [head] so you can fuckin die slow . . . .” Annebell died when the bullet severed her spinal cord and blood accumulated at the base of her skull. People v. Zepeda (2008) 167 Cal.App.4th 25 (Zepeda) further supports the trial court’s ruling. In Zepeda, the defendant shot a rival gang member and killed the rival’s son. (Id. at p. 28.) The trial court allowed into evidence this rap written by the defendant: “[G]uard your house and load the gate mother fucker I’m about to retaliate, creepin’ up in your window, puttin’ a slug into your face, slippin’ and sliding outta the scene so bad I don’t catch a case . . . .” (Id. at p. 33.) On appeal, the defendant argued the evidence was inadmissible because the lyrics were “works of fiction presuming to be art.” (Id. at p. 34.) Rejecting that argument, the court held the lyrics showed motive and intent to kill rivals, even if the lyrics predated the charged offenses. (Id. at p. 35.) Of course, in many other contexts, song lyrics do not reflect their author’s true state of mind. Neil Young did not shoot his girlfriend, although

“Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative. [Citations.] . . . [¶] However, gang evidence is inadmissible if introduced only to ‘show a defendant’s criminal disposition or bad character as a means of creating an inference the defendant committed the charged offense. [Citations.]’ [Citations.] Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury. Thus, ‘trial courts should carefully scrutinize such evidence before admitting it.’ ” (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) Under Evidence Code section 352, a court may exclude evidence where its probative value is substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Cole (2004) 33 Cal.4th 1158, 1195.) “ ‘ “Prejudice,” as used in Evidence Code section 352, is not synonymous with “damaging.” [Citation.] Rather, it refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial.’ ” (People v. Miles (2020) 9 Cal.5th 513, 587.) “ ‘We will not disturb a trial court’s exercise of discretion under Evidence Code section 352 “ ‘except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ ” (Miles, at pp. 587-588.) The trial court did not abuse its discretion in allowing the rap evidence. Intent and identity were at issue, and the rap evidences that Daniel and Elias were active Center Street gang members, that each had motive and intent to kill Posole gang members (or Annebell, who appeared to be one), and that each defendant committed the crimes for the gang’s benefit.

For example, in People v. Seumanu (2015) 61 Cal.4th 1293 (Seumanu), in closing argument the prosecutor stated, “ ‘Imagine begging for your life, begging to be let go, being held captive at the end of a shotgun by these four frightening men, and they get mad at you because you only have a little cash.’ ” And “ ‘Imagine trying to save your own life, giving them the most you can give them, and you are being called a liar and having a gun pointed at you.’ ” (Id. at pp. 1343-1344.) The California Supreme Court held that the prosecutor’s argument “improperly asked the jury to view the crime through [the victim’s] eyes.” (Id. at p. 1344.) Similarly here, the prosecutor asked the jury to consider the case from Annebell’s “perspective.” Like the prosecutor in Seumanu, the prosecutor asked jurors to put themselves in the victim’s shoes: “What a terrifying thing to see: These guys masked up in bandannas armed getting ready to kill her.” “[A]sking jurors to ‘imagine the thoughts of the victims in their last seconds of life’ is rarely a relevant inquiry at the guilt phase.’ ” (Fayed, supra, 9 Cal.5th at p. 205.) Nevertheless, defendants failed to object to the prosecutor’s remarks. The claim is forfeited. (People v. Hinton (2006) 37 Cal.4th 839, 863.) Framing the argument as ineffective assistance of counsel (by failing to object) is also unavailing. In light of Daniel’s confession that he killed Annebell with a .22-caliber handgun, the error is harmless. (Fayed, supra, 9 Cal.5th at p. 205; People v. Young (2019) 7 Cal.5th 905, 933 [finding “no reasonable probability that the prosecutor’s fleeting remark had any effect on the jury, particularly given the overwhelming evidence of defendant’s guilt”]; Seumanu, supra, 61 Cal.4th at p. 1344 [finding the misconduct harmless because of “strong evidence” of guilt]; People v. Leonard (2007) 40 Cal.4th 1370, 1407 [same].) “Based on that want of prejudice, defendants’ claim of

considerations for and against the proposed course of action.’ ” ’ [Citation.] ‘ “An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” ’ [Citations.] ‘The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ ” (Potts, supra, 6 Cal.5th at p. 1027.) “We normally consider three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported— preexisting motive, planning activity, and manner of killing—but ‘[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.’ [Citation.] If the evidence of preexisting motive and planning activity by itself is sufficient to support the first degree murder conviction on a theory of premeditation and deliberation, we need not review the evidence concerning the manner of killing.” (People v. Jennings (2010) 50 Cal.4th 616, 645-646.) “A first degree murder conviction will be upheld when there is extremely strong evidence of planning, or when there is evidence of motive with evidence of either planning or manner.” (People v. Romero (2008) 44 Cal.4th 386, 401.) “ ‘A “person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” ’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen).) “Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor’s

There is substantial evidence not only of motive, but of a motive that involves deliberation. Olsen testified that gang members gain respect by committing an act of violence for the gang’s benefit. Murdering a rival gang member achieves the highest form of such respect. Moreover, even if a gang member such as Elias does not shoot, but is present and works with the other gang member to commit the murder, that will bolster his gang status “just the same.” This is substantial evidence not merely of Elias’s motive to kill, but the kind of motive that “ ‘would in turn support an inference that the killing was the result of “pre-existing reflection” and “careful thought and weighing of considerations” rather than “mere unconsidered or rash impulse hastily executed.” ’ ” (People v. Boatman (2013) 221 Cal.App.4th 1253, 1268.) Moreover, when interviewed by police, Elias repeatedly lied, evidencing a consciousness of guilt. Elias denied being “Blue,” saying that he “never met him” but “heard he makes like songs and all that stuff that’s it.” He also denied knowing Daniel, stating that he “went to school with him. That’s about it” and “I don’t talk to him.” Elias denied knowing the name “Kieto”— even though Elias refers to Daniel as Kieto in social media and in rap. Elias also lied by telling police he was asleep at his home with his girlfriend, Linda, when Annebell was murdered. Police could never locate any such Linda, nor was contact information for a Linda in Elias’s phone. Although these lies, by themselves, are insufficient to prove guilt, when considered with other evidence, they show consciousness of guilt. Additionally, a rap video police found on Elias’s phone was posted on August 28—about one week before the shooting. It provides further evidence of Elias’s intent to kill. In that song, “Blue, That’s How We Do It,” Elias states “it’s Center Street gang comin’ at you with the sickest, the realest about to kill it . . . aiming for the dome so you can fuckin’ die slow and you

B. The Trial Court Lacks Discretion to Impose a Lesser Included Uncharged Enhancement Section 12022.53, subdivision (h) provides in part: “The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section.” In turn, section 1385, subdivision (a) states that a judge may, “in [the] furtherance of justice, order an action to be dismissed.” Where the court has the authority to strike or dismiss an enhancement, “the court may instead strike the additional punishment for that enhancement . . . .” (§ 1385, subd. (b)(1).) These statutes accord flexibility in sentencing. “ ‘Mandatory, arbitrary or rigid sentencing procedures invariably lead to unjust results. Society receives maximum protection when the penalty, treatment or disposition of the offender is tailored to the individual case. Only the trial judge has the knowledge, ability and tools at hand to properly individualize the treatment of the offender. Subject always to legislative control and appellate review, trial courts should be afforded maximum leeway in fitting the punishment to the offender.’ ” (People v. Williams (1981) 30 Cal.3d 470, 482, superseded by statute as stated in People v. Mendoza (2011) 52 Cal.4th 1056, 1077, fn. 11.) Morrison, supra, 34 Cal.App.5th 217 considered whether a trial court may reduce a personal-discharge firearm enhancement causing great bodily injury under subdivision (d) of section 12022.53 to either a personal- discharge enhancement under subdivision (c) or a personal-use enhancement under subdivision (b). (Morrison, at p. 221.) Morrison recognized that under existing caselaw, a trial court may impose an uncharged “ ‘lesser included’ ” enhancement “when a greater enhancement found true by the trier of fact is either legally inapplicable or unsupported by sufficient evidence.” (Id. at p. 222.) Morrison concluded, “We see no reason a court could not also impose

People v. Ramos CA4/1

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D074429

More from California Court of Appeal

Related research

GUERRERO, J.

IRION, J.

AI Brief