Filed 10/31/13 P. v. Ramirez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
A138037
v.
FRANCISCO ALFREDO RAMIREZ, (Sonoma County
JR., Super. Ct. No. SCR-618606)
Defendant and Appellant.
Francisco Alfredo Ramirez, Jr. appeals from a judgment sentencing him to
11 years in prison following his no contest plea to a single count of first degree robbery
and his admission of a prior robbery conviction that rendered him eligible for a five-year
sentence enhancement and a doubled term under the “Three Strikes” law. (Pen. Code,
§§ 211, 667, subd. (a), 1170.12, subds. (a), (b) & (c)(1).)1 He contends: (1) the trial
court should have granted his motion to suppress evidence under section 1538.5; (2) the
court should have granted his motion to dismiss the prior “strike” under People v.
Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero); and (3) he is entitled to
additional presentence conduct credits under section 4019. We affirm.
I. FACTS AND PROCEDURAL HISTORY
In light of appellant’s plea, the facts are taken from the preliminary hearing and
the hearing on appellant’s motion to suppress.
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Further statutory references are to the Penal Code.
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Edgar P. and Eric Y. shared an apartment in a complex in Santa Rosa and worked
at the same restaurant. On the night of May 10, 2012, Edgar walked to a store across the
street from his apartment. As he was returning home, a man asked him for a cigarette.
When Edgar said he did not smoke, the man punched him several times in the face.
Edgar fled, ultimately returning to his apartment and shutting the door behind him. Four
men, including Edgar’s original attacker, entered the apartment.
Eric was in the living room of the apartment when Edgar entered and the four men
followed. The men began assaulting both Edgar and Eric, yelling “ ‘Fucking illegal(s),’ ”
and “ ‘Where is your money?’ ” Two of the men threw Eric on the ground and dragged
him outside the apartment, where they continued to struggle. When Eric’s iPhone fell out
of his pocket, one of the men grabbed it and they ran away.
On the evening of May 11, Officer Tomlin of the Santa Rosa Police Department
contacted Edgar and Eric at the restaurant where they worked and interviewed them
about what had happened the previous night. Both Edgar and Eric had injuries as a result
of the attack. Edgar told Tomlin the assailants were associated with apartment No. 910
of the complex where they lived. Edgar described the men as “[g]enerally younger
Hispanic males with several tattoos.”
On the afternoon of May 12, Tomlin and two other officers went to the apartment
complex where Edgar and Eric lived. They saw four men inside the enclosed patio of
apartment No. 910, who generally fit Edgar’s and Eric’s description of the assailants and
who included appellant and his codefendant Juan Christopher Cruz. Tomlin asked the
men if they would come outside and talk with him, and the men agreed. The men walked
into the apartment from the patio area and came out the front door. The officers patted
them down for weapons and asked them to sit down next to the wall of the patio. The
men were cooperative throughout this encounter and no weapons were ever drawn by the
officers.
Tomlin got Eric, who was home in his apartment, to do an in-field lineup. Eric
identified appellant and Cruz as two of the attackers and said the other two men had not
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been involved. About two to three minutes passed between the time Tomlin first
contacted the four men and the time of the lineup.
Appellant and Cruz were handcuffed and read their rights under Miranda v.
Arizona (1966) 384 U.S. 436, while the other two men were released. Appellant initially
declined to give a statement, but after he was placed in the patrol car, he told the officers
he had stolen the iPhone and asked them not to arrest his friends. Tomlin asked appellant
where the iPhone was located, and appellant said it was inside apartment No. 910 in a
DVD case next to the computer. Police found the phone where appellant said it would
be. When appellant was booked into the jail, a package containing 4.7 grams of
methamphetamine was found taped underneath his genitals.
The district attorney filed an amended information that charged appellant and Cruz
with several felony counts and included recidivist allegations as to each. Appellant filed
a motion to suppress evidence of, inter alia, the in-field identification and the iPhone,
arguing they were the product of an unreasonable warrantless detention. The court
denied the suppression motion following a hearing, concluding the police officers had
acted reasonably during the encounter and had sufficient cause for the weapons patdown
and detention.
Appellant entered into an agreement with the district attorney that called for him
to plead no contest to one count of first degree robbery and to admit a prior felony
conviction rendering him eligible for a five-year serious felony enhancement and a
doubled sentenced under the Three Strikes law. (§§ 211, 667, subd. (a), 1170.12.) Under
the terms of the plea agreement, appellant would be sentenced to no more than 11 years
in prison (the three-year lower term on the robbery, doubled under the Three Strikes law,
plus five years for the serious felony enhancement), but could “bring a Romero motion,
and argue for probation.” At sentencing, the court denied appellant’s request to strike the
prior conviction and imposed the 11-year sentence indicated in the plea agreement.2
2
The charges against Cruz were also resolved by plea agreement. Cruz is not a
party to this appeal.
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II. DISCUSSION
A. Motion to Suppress
Appellant argues the trial court should have granted his motion to suppress
because the in-field identification was the product of an illegal detention. When, as here,
the underlying facts are undisputed, the issue is one of law subject to our independent
review. (People v. Turner (2013) 219 Cal.App.4th 151, 159.) We conclude the police
acted lawfully.
The Fourth Amendment protects individuals against unreasonable searches and
seizures. (People v. Robles (2000) 23 Cal.4th 789, 794.) Police contacts with individuals
fall into three general categories: consensual encounters, which do not involve any
restraint and require no justification; detentions of limited duration, scope and purpose,
which require reasonable, articulable suspicion the individual was or will be involved in
criminal activity; and formal arrests (or comparable restraints on a person’s liberty),
requiring probable cause to believe the person has committed a crime. (People v. Hughes
(2002) 27 Cal.4th 287, 327–328; In re Manuel G. (1997) 16 Cal.4th 805, 821.)
Assuming the officers’ contact with appellant and his companions began as a
consensual encounter when Tomlin asked to speak to them, that encounter became a
detention when the men were patted down for weapons and directed to sit next to the wall
of the patio. (See People v. Coulombe (2000) 86 Cal.App.4th 52, 57, fn. 3 (Coulombe).)
We must therefore determine whether the detention was reasonable. “ ‘A detention is
reasonable under the Fourth Amendment when the detaining officer can point to specific
articulable facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in criminal
activity.’ [Citation.]” (People v. Hernandez (2008) 45 Cal.4th 295, 299; see generally
Terry v. Ohio (1968) 392 U.S. 1, 21; People v. Souza (1994) 9 Cal.4th 224, 230.) The
standard of reasonable suspicion is “less demanding than probable cause ‘not only in the
sense that reasonable suspicion can be established with information that is different in
quantity or content than that required to establish probable cause, but also in the sense
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that reasonable suspicion can arise from information that is less reliable than that required
to show probable cause.’ ” (People v. Souza, at pp. 230–231.)
The detention in this case was lawful because it was objectively reasonable to
suspect appellant and the three other men on the patio were involved in the assaults and
robbery in the apartment complex two nights before. (See People v. Leath (2013)
217 Cal.App.4th 344, 354 [officers informed that robbery was committed by two
African-American men in their 20’s and driving a dark SUV had reasonable suspicion to
detain a defendant matching the physical description and seen a few blocks away near a
parked SUV with an open door].) Not only did the four men match the physical
description of the suspects in terms of their age, ethnicity and tattoos, they were in the
patio of the apartment with which the suspects were associated. (See In re Carlos M.
(1990) 220 Cal.App.3d 372, 382 [victim raped by six men provided particularized
description of some suspects (age, hair and eye color, hair length and ethnicity); detention
of defendant proper where he was found near the crime scene and in the company of a
man matching that description]; People v. Fields (1984) 159 Cal.App.3d 555, 564
[upholding detention as reasonable because defendant was seen in general vicinity of the
crime and generally matched the description of the suspect’s attire, race, gender, height,
build, and general age group]; People v. Craig (1978) 86 Cal.App.3d 905, 911–912
[officers acted reasonably in stopping suspects who did not perfectly match victim’s
description, but were same race, gender, build].)
Moreover, the scope and duration of the detention were not unreasonable, given
that only two or three minutes passed between the time of the initial contact and Eric’s
identification of appellant and Cruz. The police “ ‘diligently pursued a means of
investigation that was likely to confirm or dispel their suspicions quickly, during which
time it was necessary to detain the defendant . . . .’ ” (People v. Bowen (1987)
195 Cal.App.3d 269, 274 [officers reasonably detained defendant for 25 minutes in
handcuffs while victim was brought to the scene for identification].)
We need not separately address the legality of the patsearch for weapons, as it
yielded no incriminating evidence and is not separately challenged by appellant. We
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note, however, that “[a] limited, protective patsearch for weapons is permissible if the
officer has ‘reason to believe that he is dealing with an armed and dangerous individual,
regardless of whether he has probable cause to arrest the individual for a crime. The
officer need not be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent [person] in the circumstances would be warranted in the belief that
his safety or that of others was in danger.’ [Citation.]” (In re H.H. (2009)
174 Cal.App.4th 653, 657.) Here, the officers had reasonable cause to believe the four
men on the porch had recently been involved in a violent assault. Given the number of
suspects present and the nature of the suspected offense, the officers were entitled to
conduct a brief patdown to insure their safety during the lineup. (See People v. Osborne
(2009) 175 Cal.App.4th 1052, 1060 [certain crimes carry with them a propensity for
violence, allowing a patdown of persons suspected of those crimes without further
justification]; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1229–1230 [facts
supporting patsearch included that officer was outnumbered]; People v. Limon (1993)
17 Cal.App.4th 524, 534–535 [though not necessarily sufficient by itself, fact officers
were outnumbered was a factor supporting patdown].)
B. Romero Motion
Appellant argues the trial court abused its discretion in denying his motion to
dismiss his “strike” under Romero, supra, 13 Cal.4th at pages 529–530. We disagree.
When ruling on a Romero motion, the trial court “must consider whether, in light
of the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or part, and hence should
be treated as though he had not previously been convicted of one or more serious and/or
violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) “[A] trial court does
not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
In urging us to conclude the trial court erred, appellant focuses his youthfulness
(20 years old at the time of the current offense) and his acceptance into a program
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designed to address his drug use and gang involvement in the event he were granted
probation. But, as the trial court noted, other circumstances weighed against dismissing
the strike. The strike arose from a 2010 robbery conviction involving a 16-year-old
victim whom appellant threatened with a knife. Appellant was granted probation in that
case, yet failed to reform. Appellant’s adult criminal record also included a 2011
misdemeanor domestic violence offense against the mother of his child. As a juvenile, he
had misdemeanor adjudications for gang-related conduct.
Given his criminal record and history of gang involvement, as well as the violent
nature of the current offense, appellant has not demonstrated an abuse of discretion.
“ ‘[I]t is not enough to show that reasonable people might disagree about whether to
strike one or more . . . prior convictions. Where the record demonstrates that the trial
court balanced the relevant facts and reached an impartial decision in conformity with the
spirit of the law, we shall affirm the trial court’s ruling . . . .’ ” (People v. Philpot (2004)
122 Cal.App.4th 893, 905.) The trial court here considered the relevant factors; it simply
reached a conclusion with which appellant does not agree. This is not an
“ ‘extraordinary’ ” case in which we can say appellant falls outside the spirit of the Three
Strikes law. (People v. Finney (2012) 204 Cal.App.4th 1034, 1040.)
C. Presentence Conduct Credits
Appellant was in county jail for 291 days before he was sentenced. He received
credit for this time plus an additional 43 days of conduct credits, or 15 percent of the
actual time served. Appellant argues he was entitled to additional conduct credits at an
effective ratio of one-for-one, under the current version of section 4019, subdivision (f),
which is applicable to crimes committed on or after October 1, 2011, and provides: “It is
the intent of the Legislature that if all days are earned under this section, a term of four
days will be deemed to have been served for every two days spent in actual custody.”
We reject the claim.
Appellant’s entitlement to presentence conduct credits is limited by section
2933.1, subdivision (c), which provides, “Notwithstanding Section 4019 or any other
provision of law, the maximum credit that may be earned against a period of confinement
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in . . . a county jail . . . following arrest and prior to placement in the custody of the
Director of Corrections, shall not exceed 15 percent of the actual period of confinement
for any person specified in subdivision (a).” Section 2933.1, subdivision (a) applies to
“any person who is convicted of a felony offense listed in subdivision (c) of Section
667.5 . . . ,” and appellant’s robbery conviction qualifies as a violent felony under section
667.5, subdivision (c)(9). Section 2933.1 operates as an exception to section 4019 when,
as here, the defendant is currently convicted of a violent felony under section 667.5,
subdivision (c). (People v. Brewer (2011) 192 Cal.App.4th 457, 462.)
Appellant seeks to avoid the effect of section 2933.1 by citing People v. Brown
(2012) 54 Cal.4th 314 (Brown), in which the Supreme Court considered the retroactivity
of a now superseded version of section 4019 effective from January 25, 2010 until
September 27, 2010, which temporarily increased the rate at which most prisoners in
local custody could earn conduct credits. (Stats. 2009, 3d Ex. Sess., 2009–2010, ch. 28,
§ 50.) Construing this prior, temporary version of the statute, the court in Brown noted,
“Prisoners who were required to register as sex offenders, had been committed for serious
felonies, or had prior convictions for serious or violent felonies were not eligible for
credits at the increased rate. (Former § 4019, subds. (b)(2), (c)(2).) The Legislature
deleted these restrictions in 2010. [Citation.]” (Brown, at p. 319, fn. 5.)
Appellant takes the quoted portion of Brown out of context. The court in Brown
was not referring to section 2933.1 or to offenders currently convicted of violent felonies.
Rather, it was remarking on a different category of prisoners established by the interim
version of section 4019.
When the Legislature increased the amount of presentence conduct credits under
the version of section 4019 in place during the eight months from January 25, 2010 until
September 27, 2010, it excluded from the new formula certain defendants—namely,
registered sex offenders, those currently convicted of serious felonies, and those
previously convicted of serious or violent felonies. (Former § 4019, subds. (b)(2), (c)(2),
as amended by Stats. 2009, 3d Ex. Sess., 2009–2010, ch. 28, § 50.) Section 4019 was
amended in September 2010 to restore the original formula for presentence conduct
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credits, and in 2011 when the current version of the statute was enacted and credits were
again increased. (Stats. 2010, ch. 426, § 2, subsequently amended by Stats. 2011, ch. 15,
§ 482, Stats. 2011, ch. 39, § 53, and Stats. 2011, 1st Ex. Sess., 2011–2012, ch. 12, § 35;
see People v. Garcia (2012) 209 Cal.App.4th 530 [providing comprehensive summary of
§ 4019 amendments].) When section 4019 was amended effective September 28, 2010,
to restore credits to the previous, less generous ratio, the Legislature deleted that portion
of the statute that had limited conduct credits in cases where the defendant was required
to register as a sex offender, was currently convicted of a serious felony, or was
previously convicted of a serious or violent felony. (Stats. 2010, ch. 426, § 2.)
The court in Brown was, therefore, simply recognizing that newer versions of
section 4019 do not carve out an exception for defendants who fall into the categories
mentioned. (Brown, supra, 54 Cal.4th at p. 319, fn. 5.) These categories—persons
required to register as sex offenders, persons convicted of serious felonies, and persons
previously convicted of serious or violent felonies—do not include defendants currently
convicted of a violent felony. Neither Brown nor any of the versions of section 4019 it
considered nullified section 2933.1, subdivision (c), and its limitation on conduct credits
for defendants currently convicted of a violent felony. Appellant is not entitled to
additional credits.
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III. DISPOSITION
The judgment is affirmed.
NEEDHAM, J.
We concur.
JONES, P. J.
SIMONS, J.
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