Filed 5/23/13 P. v. Ramirez CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                              B234054

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. KA090622)
         v.

JOE RAMIREZ, JR.,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Tia Fisher, Judge. Affirmed.
         Jennifer Peabody, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P.
Hill, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       Defendant and appellant, Joe Ramirez, Jr., appeals his conviction for gross
vehicular manslaughter, leaving the scene of an accident, hit and run driving, and felon in
possession of a loaded firearm, with enhancements for prior prison terms and fleeing the
scene of a vehicular manslaughter (Pen. Code, §§ 192, subd. (c)(1), 12031 (former),
667.5; Veh. Code, §§ 20001, subds. (a) & (c), 20002).1 He was sentenced to state prison
for 13 years, 8 months.
       The judgment is affirmed.
                                    BACKGROUND
       Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
       1. The traffic accident.
       On February 22, 2010, Angela Posada and her boyfriend Gustavo Cesena went to
defendant Ramirez’s house in Baldwin Park. Cesena and Ramirez were friends.
At about 9:00 p.m., Posada, Cesena, Ramirez and Edward Kim drove in Kim’s Honda
Accord to a storage unit in Walnut. Ramirez and Kim got out. When they returned, they
placed something inside the passenger side door panel of the Accord. Ramirez was now
driving with Kim in the front passenger seat, and Cesena and Posada in the back.
Ramirez took Grand Avenue to the entrance of the 10 freeway. The on-ramp consisted of
two lanes which then merged into a single freeway lane.
       As Edgar Ferman entered the on-ramp, a Honda Civic driven by Gary Chaboya
was in front of him. Ferman saw Ramirez come speeding up from behind, move into the
right lane in order to pass him, and then pass Chaboya’s Civic by driving on the shoulder.
As Ramirez passed the Civic he sideswiped it. Chaboya first noticed the Accord when it
hit the passenger side of his car as he was about to enter the freeway.
       Ramirez accelerated onto the freeway and turned off all the Accord’s lights.
Chaboya chased the Accord because he was angry it had not stopped after hitting his car.


1
       All further references are to the Penal Code unless otherwise specified.

                                             2
He sped up, trying to read the Accord’s license plate number, but Ramirez seemed to be
trying to evade him by weaving in and out of traffic without using his turn signals.
The Accord veered toward the Barranca Avenue exit, but then suddenly merged back
onto the freeway, continuing to weave in and out of traffic and almost hitting other cars.
The Accord then veered toward the Citrus Avenue exit, but it again merged back onto the
freeway, driving almost out of control.
        Ferman saw the Accord switch lanes approximately 12 times, sometimes making
one lane change and sometimes making multiple lane changes. Most of the time the
Accord was driving less than a single car length behind the other cars on the freeway.
Chaboya saw the Accord almost collide with two cars. Posada testified Ramirez was
driving recklessly and extremely fast, and that Cesena told Ramirez to slow down.
        Ramirez lost control of the Accord when he swerved to avoid a pickup truck.
He spun out, hit a cinderblock sound wall, bounced back onto the freeway, and collided
with Chaboya’s Civic. Posada, who had been knocked unconscious by the collision,
awoke to hear Ramirez telling her to hurry up and go. Ramirez and Kim climbed out the
car windows and fled. When Posada tapped Cesena’s leg to tell him they had to go, there
was no response. Then she saw Cesena’s face had been crushed and she realized he was
dead.
        2. The investigation.
        Police found a 190-foot-long debris field at the scene, consisting of vehicle parts
and fluids from Kim’s Accord and Chaboya’s Civic. There was a three-foot wide hole in
the sound wall. Cesena, who had not been wearing a seat belt, was partially decapitated
by the roof of the Accord and died almost instantaneously. The distance between the
Grand Avenue on-ramp, where Ramirez entered the freeway, and the location of the
crash was about a mile.
        A tow truck driver transported the Accord to a storage yard. At the yard, the
driver heard the ringing of a cell phone from inside the Accord. He saw a cell phone on
the front passenger seat and a handgun inside a passenger door panel.


                                              3
       3. Prior conduct evidence.
       On December 11, 2008, Baldwin Park Police Officer Jorge Huerta saw two
motorcycles exit the 10 freeway and roll through a stop sign. Huerta turned on his
emergency lights to initiate a traffic stop. One of the motorcycles stopped but the other
one, which was being driven by Ramirez, kept going. With Huerta chasing him, Ramirez
drove 80 to 100 mph, ran red lights and a stop sign, and crossed double yellow lines into
oncoming traffic. Ramirez finally lost control of the cycle when he tried to avoid a
collision with another vehicle at an intersection. He hit a parked car, flipped over, and
then ran off. Huerta caught him a block and a half from the accident scene.
       4. Sentencing.
       The jury acquitted Ramirez of murder, but convicted him of gross vehicular
manslaughter, leaving the scene of an accident and possession of a concealed loaded
firearm by a felon. Defense counsel urged the trial court to impose something less than
the maximum possible sentence, which was 13 years, 8 months in prison, plus 6 months
in county jail, arguing Ramirez had taken part in a substance abuse treatment program
while incarcerated, that Cesena’s death had resulted from unusual circumstances because
Ramirez was being chased down the freeway by Chaboya, and that none of Ramirez’s
prior convictions involved violence. The prosecutor asked the trial court to impose the
maximum term. Cesena’s father told the court he and his wife had forgiven Ramirez.2
       The trial court announced it would impose the maximum term because of
Ramirez’s prior “reckless, evasive, dangerous driving,” and the fact his “conduct
[this time] could have resulted in the death of anyone who was out there on the road that
night . . . from a public safety standpoint . . . .” While acknowledging Chaboya had been


2
       Cesena’s father said: “What I would say on behalf of . . . his mother and I, not
everybody feels the same way we do is we forgive him. My son would forgive him
because he was a real good friend of his.” “And he loved his friend. And I just wish he
wouldn’t have left him like an animal tossed on the side of the road. I wish he would
have stood there and been a man and did what he had to do, but I’m not hateful towards
him and we don’t feel that my son would want us to be.”

                                             4
chasing Ramirez down the freeway, the trial court said Ramirez “had options, and those
options included not going [on], pulling over . . . .” The court also noted Ramirez’s
record of parole violations.
       The trial court imposed an upper term of six years for the gross vehicular
manslaughter conviction, enhanced by a consecutive five-year term for having fled from
the accident scene. (Veh. Code, § 20001, subd. (c).) To this principal term, the court
added a consecutive term of eight months for the felon in possession of a firearm
conviction, and two consecutive one-year terms for the prior prison term enhancements.
This amounted to a total prison term of 13 years and 8 months.
                                     CONTENTIONS
       1. The trial court erred by not striking the prior prison term enhancements.
       2. The trial court erred by imposing an aggravated term on the gross vehicular
manslaughter conviction.
       3. Ramirez was entitled to additional presentence custody credits.
                                       DISCUSSION
       1. Prior prison term enhancements were properly imposed.
       Ramirez contends the trial court abused its discretion by imposing, rather than
striking, two prior prison term enhancement sentences (§ 667.5). This claim is meritless.
       “The enhancement language in section 667.5 is mandatory unless the additional
term is stricken,” and “a section 667.5, subdivision (b) prior prison term enhancement
may be stricken pursuant to section 1385, subdivision (a). [Citations.]” (People v.
Garcia (2008) 167 Cal.App.4th 1550, 1561.) “[A] court’s failure to dismiss or strike a
prior conviction allegation is subject to review under the deferential abuse of discretion
standard.” (People v. Carmony (2004) 33 Cal.4th 367, 374.)
       “In reviewing for abuse of discretion, we are guided by two fundamental precepts.
First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve the legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be

                                              5
set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely
because reasonable people might disagree. ‘An appellate tribunal is neither authorized
nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’
[Citations.] Taken together, these precepts establish that 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, supra, 33 Cal.4th at pp. 376-377.)
       The Attorney General argues, “Nothing about appellant’s history or the instant
offenses warranted the trial court to strike appellant’s prior prison term enhancements in
furtherance of justice. Appellant’s criminal history spans his entire adulthood and into
his minority.” According to the probation report, Ramirez’s record has been pervasive,
including: a sustained juvenile petition for battery (§ 242) in 1998; a theft conviction
(§ 484) in 1999; conviction on two counts of burglary (§ 459) in 2004; a subsequent
probation violation on the burglary convictions resulting in a prison sentence; a 2006
conviction for possession of controlled substance paraphernalia (Health & Saf. Code,
§ 11364); a parole violation in January 2007; a parole violation in December 2007; a
2008 felony conviction for taking a vehicle without the owner’s consent (Veh. Code,
§ 10851) resulting in a two-year prison term. Ramirez subsequently violated parole and
was returned to prison. In 2010, Ramirez was convicted of evading a police officer in a
reckless manner (Veh. Code, § 2800.2).3 He was on parole at the time he committed the
instant offense.
       Ramirez argues the trial court should have stayed imposition of the two prior
prison term enhancements because, although his conduct was grossly negligent and had
resulted in a death, he “did not intend to kill Cesena and was very remorseful for causing
the death of his friend. More importantly, Mr. Cesena’s family forgave appellant for his
conduct . . . . [and Ramirez] had no prior history of violence or assaultive conduct as an



3
      This conviction does not appear in the probation report, where the criminal history
only goes up through 2008.

                                              6
adult. He was 29 years old at the time of the offense. . . . [H]is criminal history was not
significant or extensive and clearly showed no indication of a predisposition toward
violent conduct. [¶] Moreover, while in custody, appellant had sought to better himself
and made changes to increase his success on the outside.”
       But a lack of prior assaultive crimes would not be particularly relevant because it
is clear Ramirez had no intention of harming Cesena. What is relevant, however, is the
fact Ramirez was convicted in 2010 for evading a police officer by means of reckless
driving. The incident giving rise to this conviction occurred a mere 14 months before the
present incident, in which it is clear Ramirez’s reckless driving while trying to flee the
scene of his hit-and-run offense directly resulted in Cesena’s death. We do not see why
Ramirez’s age, 29 years old at the time of the offense, should be viewed as a mitigating
factor; he was surely old enough to know better. Furthermore, it appears Cesena’s entire
family had not, in fact, forgiven Ramirez. Although Cesena’s father and mother told the
trial court they forgave him, Cesena’s father also said “not everybody feels the same way
we do,” an apparent reference to another family member.4
       The trial court did not abuse its discretion by refusing to strike the two prior prison
term enhancement terms.
       2. Upper term on vehicular manslaughter conviction was proper.
       Ramirez contends the trial court erred by imposing an aggravated term on count 2,
his conviction for gross vehicular manslaughter. This claim is meritless.
              a. Background.
       The probation report found no mitigating factors and the following aggravating
factors: the crime involved great bodily harm; Ramirez had served a prior prison term;
Ramirez was on parole when the crime was committed; and, Ramirez’s prior
performance on probation and parole had been unsatisfactory.


4
      There was this colloquy:
      “The Court: And then I also recognize that there are people, brother [sic] who
have come to court and are just not at that same place.
      “Mr. Cesena: No, they’re not.”
                                              7
       The trial court explained its decision to impose an aggravated six-year term on
count 2 by noting Ramirez’s recent conviction for “reckless, evasive, dangerous driving,”
and the fact his “conduct could have resulted in the death of anyone who was out there on
the road that night . . . from a public safety standpoint . . . of dangerousness.” The trial
court noted Ramirez “has also had violations of parole, has not been compliant with
terms and conditions that have been set for him in the past.”
              b. Legal principles.
       “ ‘Sentencing courts have wide discretion in weighing aggravating and mitigating
factors [citations], and may balance them against each other in “qualitative as well as
quantitative terms” [citation] . . . . We must affirm unless there is a clear showing the
sentence choice was arbitrary or irrational.’ [Citations.]” (People v. Avalos (1996)
47 Cal.App.4th 1569, 1582.) A single aggravating factor supported by substantial
evidence is sufficient to impose either an upper term or a consecutive term. (People v.
Osband (1996) 13 Cal.4th 622, 732; People v. Jones (2009) 178 Cal.App.4th 853, 863,
fn. 7 [only single aggravating factor needed to impose aggravated term].) “A fact is
aggravating if it makes defendant’s conduct distinctively worse than it would otherwise
have been.” (People v. Zamarron (1994) 30 Cal.App.4th 865, 872.)
              c. Threat of great bodily injury.
       California Rules of Court, rule 4.421, provides: “Circumstances in aggravation
include factors relating to the crime and factors relating to the defendant. [¶] (a) Factors
relating to the crime, whether or not charged or chargeable as enhancements include that:
(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or
other acts disclosing a high degree of cruelty, viciousness, or callousness; . . .”
       Ramirez contends the trial court improperly relied on the threat of great bodily
injury as an aggravating factor. He correctly points out this factor could not have been
properly based on the injury to Cesena because gross vehicular manslaughter, by
definition, involves the death of a human being. “Bodily harm resulting in death is an
element of felony vehicular manslaughter. Reliance upon that fact alone is improper
when trying to aggravate a term of imprisonment.” (People v. McNiece (1986)

                                              8
181 Cal.App.3d 1048, 1061, disapproved on other grounds in People v. Flood (1998)
18 Cal.4th 470, 490, fn. 12 and People v. McFarland (1989) 47 Cal.3d 798, 804-805.)
       However, it was proper to aggravate Ramirez’s sentence based on the risk of harm
he posed to other motorists on the road that night, as well as to his passengers other than
Cesena. In People v. Ortiz (2012) 208 Cal.App.4th 1354, the defendant had been
convicted of kidnapping during a carjacking, evading an officer with reckless driving,
and carrying a firearm in a vehicle. During sentencing, the trial court said “the entire
population of people on the freeway at the time, including the police officers chasing
them and the individuals in the car, were put at risk . . . .” (Id. at p. 1373.) Ortiz held
that, based on this statement, the trial court “could have cited as reasons for imposing the
upper . . . term” both California Rules of Court, rule 4.421(a)(1) (offense involved high
degree of callousness) and rule 4.421(b)(1) (conduct was extremely dangerous to
society). (People v. Ortiz, supra, at p. 1373.) Ortiz stated: “We believe the extreme
danger to which the public was exposed would have, by itself, constituted an adequate
ground for imposing the upper term.” (Id. at p. 1374.)
       Ramirez asserts: “The trial court’s reliance on the threat of great bodily harm to
others in the vehicle or on the freeway at the time of the collision was unjustified . . . .
where the defendant did not intend to do anyone any harm.” He argues: “The presence
of the word ‘or’ in subdivision (a)(1) of rule 4.421, where that subdivision states ‘[t]he
crime involved . . . threat of great bodily harm or other acts disclosing a high degree of
cruelty, viciousness, or callousness’ further suggests the requirement of an actual
malicious intent to do great bodily harm. The concepts of cruelty and viciousness clearly
require an intent to harm. There was no evidence . . . appellant had any intent to do harm
to anyone. Thus, this subdivision was inapplicable.”
       We disagree. Ramirez is ignoring the third alternate term provided by this rule:
“or other acts disclosing a high degree of cruelty, viciousness, or callousness.” Although
“cruelty” and “viciousness” connote an intent to do harm, “callousness” does not
because, in this context, it means a disregard or lack of sympathy for others. That is, it
connotes bringing about an unintentional harm because the defendant was indifferent to

                                               9
the risk of causing harm to others (See, e.g., People v. Esquibel (2008) 166 Cal.App.4th
539, 558 [noting “callous” is typically defined as “insensitive, indifferent or
unsympathetic”].) In this case, Ramirez drove erratically, recklessly and dangerously
down a crowded stretch of freeway. His driving posed a danger to other vehicles, as well
as to the other passengers in his own car apart from Cesena. Ramirez’s conduct was
certainly callous.
              d. Ramirez’s prior dangerous driving.
       Ramirez argues the trial court improperly relied on his history of reckless, evasive
or dangerous driving because “[i]t is improper to impose the upper term based on facts
which are an inherent part of the charged offense.” According to California Rules of
Court, rule 4.420(d), a “fact that is an element of the crime . . . may not be used to impose
a greater term.” But Ramirez’s prior reckless driving is not an element of gross vehicular
manslaughter. Section 192, subdivision (c)(1), defines gross vehicular manslaughter as
“driving a vehicle in the commission of an unlawful act, not amounting to felony, and
with gross negligence; or driving a vehicle in the commission of a lawful act which might
produce death, in an unlawful manner, and with gross negligence.” CALCRIM No. 592
provides: “To prove that the defendant is guilty of gross vehicular manslaughter, the
People must prove that: [¶] 1 The defendant (drove a vehicle/operated a vessel); [¶]
2 While (driving that vehicle/operating that vessel), the defendant committed (a/an)
(misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that might cause death); [¶]
3 The defendant committed the (misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful
act that might cause death) with gross negligence; [¶] AND [¶] 4 The defendant’s grossly
negligent conduct caused the death of another person.”
       Ramirez’s conduct of speeding down the 10 freeway at night with his lights off,
while making erratic lane changes and engaging in other reckless driving techniques,
constituted gross negligence.




                                             10
              e. Ramirez’s “options” other than to continue driving.
       Ramirez argues the trial court erred in relying on the fact he had “options” other
than to continue driving down the freeway. Ramirez asserts this constituted using an
element of the offense to aggravate his sentence because “the crime could not have been
committed without appellant first making a decision to continue driving, rather than
pulling over while he was being chased by Chaboya. It was appellant’s decision to
continue driving which led to his commission of gross vehicular manslaughter. Thus, the
fact that he continued to drive at speeds in excess of the posted speed limits and make
unsafe lane changes was an essential element of the charged offense. Had appellant
stopped, there would have been no crash and no crime.”
       Ramirez is reading too much into the trial court’s comment, which was an
apparent response to defense counsel’s argument the trial court should “consider a factor
in mitigation related to the circumstances of this crime which was that it was committed
because of an unusual circumstance, that being the driving of Mr. Chaboya behind
Mr. Ramirez on the date of the incident which was dangerous driving as well, and I
would argue somewhat of a provocation. And I’d ask the court to consider that factor in
mitigation.” The trial court was apparently rejecting this “provocation” argument on the
ground Ramirez could have simply pulled over rather than trying to outrun Chaboya.
       3. Ramirez was not entitled to additional presentence custody credits.
       Ramirez contends the failure to award him additional days of presentence custody
credit in accordance with the newest version of section 4019 violated his equal protection
rights. However, he has conceded in his reply brief that, after the recent decision in
People v. Brown (2012) 54 Cal.4th 314, this contention is meritless. Brown concluded a
prior version of section 4019 applied prospectively only and that prospective application
did not violate equal protection. (See People v. Ellis (2012) 207 Cal.App.4th 1546, 1551
[concluding “Brown’s reasoning and conclusion apply equally to current section 4019”].)




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                                 DISPOSITION
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          KLEIN, P. J.


We concur:



             KITCHING, J.




             ALDRICH, J.




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