Filed 11/21/22 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079800
Plaintiff and Respondent,
v. (Super. Ct. No. SCN371166)
JOEY MARTIN RAMOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Sim Von Kalinowski, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
Mandel and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and
Respondent.
In a prior appeal, we mostly affirmed a judgment against Joey Martin
Ramos after he was convicted of 34 criminal offenses with strike priors and
sentenced to a prison term of 500 years to life plus 146 years. (People v.
Ramos (June 24, 2021, D075889) [nonpub. opn.].) We rejected Ramos’s
sufficiency of evidence claims and found that his sentence did not constitute
cruel and unusual punishment. However, we remanded the matter to the
trial court to: (1) strike a one-year prison prior; (2) strike a misdemeanor
conviction for which Ramos had received a concurrent sentence; and (3) hold
a hearing on Ramos’s ability to pay the fees and restitution fine.
On remand, after several continuances to allow defense counsel to
communicate with Ramos and arrange for his presence by video, the court
held a hearing at which Ramos appeared remotely by video from prison. His
defense attorney objected and argued that Ramos had a right to be physically
present for the resentencing. The court overruled the objection and struck
the one-year prison prior and the misdemeanor conviction. Rather than hold
a hearing on Ramos’s ability to pay the fees and restitution fine, the court
struck them as well. Ramos now appeals from the resentencing order,
arguing that he was denied his rights to consult with his appointed counsel
and to be present at a critical stage of the proceedings.
We conclude that the trial court committed error by compelling Ramos
to appear remotely at the resentencing without his consent, but we find the
error to be harmless under any standard of prejudice. We also conclude that
Ramos has failed to establish a violation of his Sixth Amendment right to
counsel. Accordingly, we affirm the trial court’s judgment on resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
In a jury trial, Joey Martin Ramos was convicted of 34 criminal offenses
committed in a crime spree that occurred over the course of five months
between May and October 2016. Many of the charges arose from a series of
burglaries, petty thefts, and an attempted burglary. Ramos then committed
additional crimes as he attempted to flee from law enforcement, including
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kidnapping a man and young child at gunpoint in a carjacking. Ramos also
committed several crimes related to his unlawful possession of firearms and
ammunition.
The trial court found that Ramos had incurred four prior strikes (Pen.
Code, §§ 667, subds. (b)-(i), 668, 1170.12),1 one prior serious felony (§§ 667,
subd. (a)(1), 668, 1192.7, subd. (c)), and one prior prison term (former § 667.5,
subd. (b)). The court sentenced him to an indeterminate sentence of 500
years to life, and a consecutive determinate sentence of 146 years. It also
imposed fees and a restitution fine.
In a prior appeal, we affirmed the judgment, except that we remanded
the matter to the trial court for three purposes: (1) to strike the one-year
prison prior; (2) to strike Ramos’s misdemeanor conviction in count 27 for
having a concealed firearm on his person in violation of section 25400,
subdivision (a)(2); and (3) to hold a hearing to consider his ability to pay the
fees and restitution fine. We also directed the trial court to resentence
Ramos and issue an amended abstract of judgment. We found that the trial
court had properly denied Ramos’s motion to strike some or all of his prior
strikes and his prior serious felony, and we concluded that the resulting
sentence did not constitute cruel and unusual punishment. (People v. Ramos
(June 24, 2021, D075889) [nonpub. opn.].) After the Supreme Court denied
review, the remittitur issued on September 3, 2021.
On October 18, 2021, the trial court held a hearing for the
resentencing. Defense counsel Herb Weston appeared at the hearing
remotely. He explained: “My client is not present at this time for this
particular hearing” and “I haven’t been able to contact my client since he’s
1 All further statutory references are to the Penal Code unless otherwise
noted.
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been in the appellate process.” Mr. Weston asked the court to “continue the
matter so that I may at least try to contact my client at the prison system.”
The trial court agreed to continue the hearing until November 8, 2021. The
court stated: “Mr. Weston, you indicated that you would make attempts to
contact Mr. Ramos by phone and/or video at the prison prior to that, and then
we’ll go ahead and proceed at that time . . . .”
On November 8, 2021, the court held the continued hearing. Ramos
was present for the hearing via Zoom, and attorney Tanya Weston made a
special appearance for Ramos because Mr. Weston was ill and unable to
attend even by video. The court inquired whether Mr. Weston had been able
to talk to Ramos. Ms. Weston responded: “We have not, your Honor. We’ve
tried to talk to him, and we have not been able to contact him.” Ramos
confirmed that he had not been able to talk to his attorney. The court then
proposed to “put this out another month to see if we can have Mr. Weston be
able to get in contact with Mr. Ramos.” Ms. Weston agreed and said to
Ramos: “Mr. Ramos, can you please give us a collect call so we can talk to
you about what is going to happen in a month from court[?]” Ramos
responded: “Yeah. I don’t know -- yeah -- I will.” The court continued the
hearing again until December 13, 2021.
On December 13, 2021, the court convened again for the continued
hearing. Mr. Weston appeared in person to represent Ramos, who was
present by video from Calipatria State Prison. Ramos confirmed that he
could hear the court proceedings, and the court was able to hear him.
However, Mr. Weston objected to the proceeding as follows: “I’m objecting to
the Court proceeding without my client being personally present in the
courtroom. I have had no contact with my client except just briefly on an un-
confidential phone. . . . My belief, he has a Constitutional right to be present
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at what, basically, is a resentencing. . . . He has a right to have a competent
attorney, which means going over what his rights are, which I have not been
able to do and won’t be able to do unless he’s brought here and can be present
so I can communicate with him.” Mr. Weston stated, “we’re objecting on all
federal and state constitutional grounds because, number one, he’s being
deprived of his right to have a competent counsel; number two, that he -- my
belief is even in this COVID time, he has a right to be present at a
sentencing.”
The trial court observed that “this is at least our third attempt at
having this hearing and [we] have been unable to do so.” The court also
noted “that the Emergency Rules of Court 3 and 5 are still in place” and
“there continues to be COVID in our institutions . . . .”2 The court stated that
“in essence, as far as the resentencing portion, I see that as an administerial
function.” The court explained that “but for the appellate court’s direction to
have a hearing on the fines and fees, I could have done that by minute order
because I’m simply following what the appellate court has told me to do,” i.e.,
strike the one-year prison prior and the conviction in count 27. The court
stated: “The appellate court affirmed all the other sentencing decisions that
were made. I’m not touching any of those.” Accordingly, the court decided to
proceed with the resentencing over defense counsel’s objection.
The trial court struck the one-year prison prior and the concealed
firearm conviction in count 27. As a result, the court reduced the
determinate portion of Ramos’s sentence from 146 years to 145 years. Rather
2 Emergency Rules 3 and 5 are part of the Emergency Rules Related to
COVID-19 adopted by the Judicial Council and contained in Appendix I of the
California Rules of Court. Emergency rules 3 and 5 (effective until June 30,
2022) authorized remote criminal proceedings, but only with the consent of
the defendant. (Cal. Rules of Court, Appen. I, rules 3, 5.)
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than hold a hearing on Ramos’s ability to pay the fees and restitution fine,
the court simply decided to strike them. By doing so, the court explained that
it was “giv[ing] [Ramos] the entire relief that he would be entitled to if he was
to dispute this in any way . . . .”
Ramos now appeals from the resentencing order.
DISCUSSION
I
Ramos first argues that the trial court denied him his right to be
present for the resentencing by compelling him to appear remotely without
his consent. We agree with the parties that a criminal defendant has a
constitutional and statutory right to be present at critical stages of the
proceedings, including sentencing and resentencing. (People v. Simms (2018)
23 Cal.App.5th 987, 996.) We also agree that the trial court committed error
by compelling Ramos to participate in the resentencing hearing remotely
without his consent. However, we find the error to be harmless under either
the Watson or Chapman standard of prejudice. (People v. Watson (1956) 46
Cal.2d 818, 836–837 (Watson); Chapman v. California (1967) 386 U.S. 18, 24
(Chapman).)
In People v. Whitmore (2022) 80 Cal.App.5th 116 (Whitmore), the trial
court forced a criminal defendant to appear remotely from jail without his
consent for post-trial hearings on a Marsden motion (People v. Marsden
(1970) 2 Cal.3d 118), a motion for new trial, and sentencing. These
proceedings took place during a jail lockdown caused by a spike in COVID-19
cases. (Whitmore, at pp. 123–124.) Our colleagues in Division Three
concluded that the trial court had committed state-law error by forcing the
defendant to appear remotely without his consent, but not state or federal
constitutional error. (Id. at pp. 125–127.)
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On the state-law question, the Whitmore court noted that sections 977,
subdivision (b)(1) and 1193 both guarantee the defendant a right to be
“personally present” at sentencing and “California courts have interpreted
similar statutes as requiring a physical presence in the courtroom.”
(Whitmore, supra, 80 Cal.App.5th at p. 126 [citing cases].) Moreover,
emergency rules 3 and 5 clearly require the defendant’s consent to appear
remotely, rather than in person. (Cal. Rules of Court, Appen. I, rules 3, 5.)
Thus, the court concluded that the trial court had violated state law by
compelling the defendant to participate in the hearings remotely without his
consent.
The People concede that the trial court committed state-law error
under Whitmore, and we accept the concession. However, we need not
determine whether the error was also of constitutional dimension because we
find that it would be harmless under either the Watson standard for state-
law error or the Chapman standard for federal constitutional error. (Watson,
supra, 46 Cal.2d at pp. 836–837 [defendant must demonstrate reasonable
probability of a more favorable result for state-law errors]; Chapman, supra,
386 U.S. at p. 24 [prosecution bears burden of showing that federal
constitutional error was harmless beyond a reasonable doubt].)
On remand, the trial court merely followed our directions by striking
the prison prior and the misdemeanor conviction in count 27. As for the fees
and fine, the trial court granted Ramos the maximum relief he could have
achieved by striking them in their entirety. Moreover, there is no reasonable
probability that the trial court would have chosen to revisit any of its other
sentencing decisions if he had appeared in person for the resentencing, rather
than remotely. “There is no indication in this record that [Ramos]’s physical
presence in the courtroom would have benefited his case in any way or
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otherwise altered the outcome . . . .” (Whitmore, supra, 80 Cal.App.5th at
pp. 127–128.) Specifically, there is no reason to believe that Ramos’s physical
presence in the courtroom at resentencing would have caused the trial court
to make discretionary sentencing decisions different from those it had
already made when Ramos was physically present at the original sentencing.
In these circumstances, the trial court’s error would be harmless under either
the Watson standard or the Chapman standard.
II
Next, Ramos argues that per se reversal is required because he was
denied his Sixth Amendment right to consult confidentially with his counsel
for the resentencing. He relies on Geders v. United States (1976) 425 U.S. 80
and other cases in which courts have found a Sixth Amendment violation
without any showing of prejudice when counsel was prohibited or prevented
from assisting the accused during a critical stage of the proceeding.
We reject this claim. In the first place, Ramos has failed to establish
any interference with his right to consult confidentially with his attorney
before the resentencing. At the request of the defense, the trial court twice
continued the resentencing hearing for this very purpose. Although Ramos’s
counsel stated at the final hearing that he had only had brief contact with
Ramos on a non-confidential phone call, nothing in the record suggests that
he was prevented from setting up a confidential attorney-client phone call
with Ramos or visiting him in prison. As Ramos appears to recognize in his
reply brief, an attorney may request a confidential telephone call with a
client who is a prison inmate. (Cal. Code Regs., tit. 15, § 3282, subds. (a)(2),
(g).) Absent any explanation why defense counsel was unable to consult
confidentially with Ramos during the three months before the final
resentencing hearing, we cannot find any Sixth Amendment violation.
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Second, the record also does not establish why Ramos could not consult
confidentially with his attorney at or during a break in the resentencing
hearing. The trial court expressly noted that COVID emergency rules 3 and
5 were still in effect. Emergency rule 5(e)(2) provided: “Where a defendant
appears remotely, counsel may not be required to be personally present with
the defendant for any portion of the criminal proceeding provided that the
audio and/or video conferencing system or other technology allows for private
communication between the defendant and his or her counsel. Any private
communication is confidential and privileged under Evidence Code section
952.” (Cal. Rules of Court, Appen. I, rule 5(e)(2), italics added.) Based on the
presumption that official duties have been regularly performed (Evid. Code,
§ 664), and in the absence of any evidence to the contrary, we must presume
that the video system used by the court did allow for private, confidential
communication between Ramos and his counsel. On this record, therefore,
we presume that defense counsel could have requested a recess to consult
with Ramos confidentially before proceeding with the resentencing.
Finally, we note that the California Supreme Court has narrowly
construed the Geders line of cases in which a Sixth Amendment violation may
be established without any showing of prejudice. (People v. Hernandez (2012)
53 Cal.4th 1095, 1102–1105 (Hernandez).) As the court explained, “not all
unwarranted interference with a client’s ability to consult with counsel
justifies a presumption of prejudice, requiring per se reversal.” (Id. at
p. 1111.) The court construed Geders as holding that the Sixth Amendment
is violated without a showing of prejudice only “when the restriction on access
to counsel was so profound as to create an inference that the defendant’s
attorney was unable to perform the essential functions of trial counsel.”
(Id. at p. 1109.) Otherwise, the defendant can establish a Sixth Amendment
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violation “only by showing, in accordance with the standard stated in
Strickland [v. Washington (1984) 466 U.S. 668, 686–687], that the trial
court’s order deprived him of effective assistance of counsel and there is a
reasonable probability that, but for the error, the result . . . would have been
different.” (Id. at p. 1111.)
Other than the fact that Ramos was incarcerated in prison and special
arrangements had to be made for a confidential attorney-client phone call, he
has not demonstrated that there was any restriction on his access to counsel
before the resentencing hearing, and on this record, the only proven
restriction on his access to counsel during the hearing was that it was only
available by video, rather than in person. Ramos’s appointed defense counsel
was present at the resentencing hearing; he was the same attorney who
represented Ramos at the original trial and sentencing when Ramos was
personally present; Ramos was present by video at the resentencing and
presumptively available for consultation under emergency rule 5; and
nothing prevented defense counsel from making whatever arguments may
have been available to Ramos on resentencing. As a practical matter, the
court and the parties seem to have recognized that the court would not be
altering any of its original sentencing decisions other than those we required
it to act on. We therefore conclude that “the circumstances present here do
not render it so likely [Ramos] was deprived of the effective assistance of
counsel as to entitle him to a presumption of prejudice . . . .” (Hernandez,
supra, 53 Cal.4th at p. 1107.)
Ramos does not contend that he can establish a Sixth Amendment
violation without the Geders presumption of prejudice. For the reasons we
have discussed in connection with his physical presence claim, there is no
reasonable probability that the result of the resentencing would have been
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more favorable to Ramos if he could have had additional consultation with
his appointed defense counsel in person or otherwise. As with the physical
presence claim, there is no reason to believe that additional attorney-client
consultation would have caused the trial court to make discretionary
sentencing decisions different from those it had already made when Ramos
was physically present and able to consult with his attorney in person at the
original sentencing.
DISPOSITION
The judgment on resentencing is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
DO, J.
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