People v. Ramirez

THE PEOPLE, Plaintiff and Respondent, v. MARCOS ANTONIO RAMIREZ, Defendant and Appellant.

F076126

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

March 5, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. CRF50964)

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge.

Jennifer Mouzis, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Marcos Antonio Ramirez (defendant) was charged, by complaint deemed an information, with first degree burglary. (Pen. Code, § 459.)¹ A jury acquitted him of that charge, but convicted him of the lesser included offense of attempted first degree burglary. (§§ 459, 664.) Imposition of sentence was suspended for five years, and defendant was placed on probation on various terms and conditions, including that he serve five months in jail and complete a residential drug treatment program. On appeal, he claims the trial court violated his constitutional rights by finding him voluntarily absent and proceeding with trial in his absence. We conclude any error was harmless.

FACTS

In June 2016, Daniel D. resided in Sonora.² A few days prior to June 25, he noticed that a window screen on the south side of his house was bent. From the inside of the house, he could see a smeared handprint on the window. Daniel checked the video from his security cameras, which used infrared technology, and saw that sometime between approximately 2:00 a.m. and 3:00 a.m., someone tried to pull the screen back. The man put a hand in and tried to push the window up, then sneaked off. Daniel, who did not recognize the person, made a copy of the video and took it to the Sonora Police Department the next morning.³

Officer Bowly of the Sonora Police Department received the video from Daniel on June 25. Bowly responded to the residence that same day. He attempted to obtain fingerprints but was unsuccessful, probably due to smudging. The first time he viewed the video, Bowly did not have a possible suspect in mind. The second time he viewed it, however, he suspected the subject possibly was defendant. This was based on Bowly's prior experience with defendant, who lived within walking distance of Daniel's residence.

On July 29, Bowly was conducting a traffic stop with another officer when he saw defendant walking up the street. Defendant's hat caught Bowly's attention. The Oakland Raiders logos and placement, large lettering, and two-toned coloring were consistent with the hat Bowly had observed in the security video.⁴

Bowly engaged defendant, who seemed nervous, in conversation.⁵ Bowly told defendant that he had him. Defendant denied doing anything. Bowly used a ruse stating that he had defendant's thumbprint on the window. Bowly also told defendant that Bowly had defendant on video and identified him from the video. Bowly asked whether, if the window had opened, defendant would have gone inside, or what he was doing. Defendant said he was probably just looking. Bowly asked if defendant had seen something inside the residence that he wanted. Defendant said no. On about three different occasions during the encounter, defendant admitted he had just been looking, but denied he was going to go into the house. When Bowly confronted him with the fact defendant damaged Daniel's screen and asked if he was going to pay for the damage, defendant said he would, if that was what "he" wanted.⁶ Bowly warned defendant that it was very dangerous in that county to do what he did and that he was taking his life in his hands and could be shot, and he continued to ask defendant why he would do it. Defendant said he was probably under the influence, drunk or high.

Upon arresting defendant for burglary, Bowly found a cell phone with a flashlight feature in defendant's possession. The security video showed the suspect using that flashlight feature.

Bowly transported defendant to jail, and again admonished him about the dangerousness of his behavior. Defendant responded that he was doing better now.

DISCUSSION

Defendant, who was not in custody, appeared the first day of trial, but not the second day. The court found he voluntarily absented himself, and proceeded with trial in his absence. Defendant now claims this violated his federal and state constitutional rights. We conclude any error was harmless; hence, defendant is not entitled to reversal.

A. Background

At his arraignment, defendant was released on his own recognizance. He remained on that status until the jury returned its verdict. Trial was originally set for February 1, 2017, and then continued at defense request to April 12, 2017. On April 10, 2017, the date set for a readiness conference, defendant made a motion for substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118. The motion was denied, and the April 12, 2017 trial date and time (8:00 a.m.) were confirmed. Defendant was ordered to appear.

Defendant failed to appear for trial. Defense counsel informed the court that defendant's mother had telephoned counsel's office and stated defendant was ill, and she was going to take him to "Prompt Care" as soon as defendant was able to get out of bed. The court vacated the jury trial and ordered issuance of a bench warrant, but stayed execution of the warrant until the next day.

The minute order reflects that the next day, defendant appeared with counsel. Trial was set for July 5, 2017. Defendant was ordered to appear.

Trial began, and the jury was selected and sworn, on July 5, 2017. Defendant was present.⁷ Court recessed for the day shortly before noon. It was anticipated trial could be finished the next day, and the jurors and parties were instructed to return at 8:30 the next morning.

The matter reconvened in open court, but outside the presence of the jury, at 9:30 a.m. on July 6, 2017. The court stated:

"It appears this morning [defendant] injected or ingested heroin and methamphetamine — at least the report to the Court indicated he overdosed and medical personnel were sent to his home . . . , and the first alert to this condition was given to [defense counsel] by [defendant's] mother, and [defense counsel] then notified [the prosecutor] by e-mail of a problem. When . . . counsel arrived today to court, I had been in chambers. We discussed the situation. My understanding was . . . that emergency personnel were at the scene and examined [defendant], who refused medical treatment.

"It's my understanding that Officer Norris, who was present at the scene, had observed the defendant at the time medical treatment was refused. The Court had Officer Bowly contact Officer Norris to explain the situation, and I . . . asked Officer Norris to go to the defendant's home and advise him that we were expecting him to show up for trial. And the first response from the defendant was that he . . . will be here for trial. And I advised him if he failed to appear in 15 minutes, which is a reasonable time to arrive in court given the distance of his home from the courthouse, that I would proceed to try him in his absence. [Defense counsel] then asked if he was going to go to the hospital, and the defendant then claimed he wanted to go to the hospital. And at that point I don't know if he's gone to the hospital or not."

At this juncture, defense counsel received a telephone call from defendant's mother. Defense counsel then reported that defendant and his mother were now at the emergency room, waiting to see a physician. This ensued:

"THE COURT: [¶] . . . [¶] All right. It's . . . my understanding that this is the second time that [defendant] has been sick on the day of trial. The first time, which I believe was back in April when this case was set for trial, on the day of trial he requested his mother report to the Court that he was sick with the flu. Court continued his trial and issued a bench warrant and ordered him to appear the next day. The next day his mother appeared, not the defendant, and she had a note from a doctor that said he was seen at the Sonora Regional Medical Center.

"Any other facts, Counsel, that should be on the record about this incident?

"[PROSECUTOR]: Yes, your Honor. . . . The Court mentioned . . . that the information was he had ingested drugs this morning. I think that the information was the mom believed he had gone out with another individual. She thinks he came back home around 2:00 a.m. It was my understanding that he ingested it sometime in the night.

"I received a text message from Officer Bowly . . . at 7:00 a.m. . . . indicating that at 7:00 a.m. Sonora Police Department had responded to [defendant's] home for the mother reporting that there was a potential overdose on heroin. When the officers arrived medical was there, and at 7:24 a.m. I got a message that the defendant declined medical attention and refused to go in the ambulance to the hospital. . . . Our court hearing today was at 8:30 a.m. He did not show up at 8:30.

"When we met with the judge and the phone call was placed and Officer Norris responded back out to the house, it was at . . . approximately 9:25. The defendant originally indicated over the phone — which we can all hear Officer Norris, that he was going to come at about 9:30 this morning. When the Court indicated that Officer Norris should give him a ride, he was then asked if he was going to the hospital. At that point he switched, instead of coming to court, that he would rather go to the hospital.

"Apparently, he is

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