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Filed 5/20/13 P. v. Ramirez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

PRISCILLA RAMIREZ,

Defendant and Appellant.

C069744

(Super. Ct. No. 09F05757)

After a court trial, the trial court found defendant Priscilla Ramirez guilty of two 

counts of second degree murder, found she was a principal, and found another principal 

was armed with a firearm during the murders. (Pen. Code, §§ 187, 12022, subd. (a)(1).) 

The trial court sentenced defendant to state prison for 16 years to life.

On appeal, defendant attacks the stipulation by which she agreed evidence from 

the jury trial of former codefendants could be admitted--along with other evidence--at her 
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court trial.1 Alternatively, she contends her trial counsel incompetently represented her 

regarding her entry into that stipulation. We shall affirm the judgment. 

PROCEDURAL BACKGROUND2

On July 21, 2009, Deshawn Holloway was found with two gunshot wounds to his 

back and Everett Taylor was found with three gunshot wounds, one to the back of his 

head; both men died. The People‟s theory was that former codefendant Armstrong was 

the shooter, former codefendant Gonzales was the driver, and both men were incited to 

kill by defendant‟s false claim that Taylor had raped her. 

On December 15, 2009, at the preliminary hearing, defendant stipulated that she 

had been advised of her rights. All three defendants were held to answer on two counts 

of first degree murder plus a multiple-murder special circumstance and firearm 

enhancements. Three juries were anticipated, because of pretrial statements each 

defendant had made. (See fn. 3, post.)

On February 2, 2011, the People filed a trial brief containing an extremely detailed 

factual recitation, supported by citations to pages of discovery and to the preliminary 

hearing transcript. A proposed witness list, linking each witness to the expected area of 

testimony, and detailing the estimated time for the case-in-chief, was attached. Also 

attached were over 400 pages of transcripts of statements, proposed jury questions, and 

proposed jury instructions.

On February 18, 2011, defendant‟s trial counsel and the People placed on the 

record an agreement whereby defendant‟s case would be severed and she would waive 

her right to a jury trial. Defendant agreed to this procedure, confirming that she had had 

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1

 The appeal of former codefendants Michael Lee Armstrong and Phillip Perez Gonzales 

is separately pending. (See People v. Armstrong & Gonzales, 3 Crim. No. C068330.)

2

 We need not detail the evidence presented during the trials in order to resolve the 

issues on appeal. 
3

a chance to “fully discuss” the issue and receive advice from her counsel, and that it was 

her decision to waive jury trial. She waived her right to jury trial in open court, as did the 

People. The trial court granted severance and directed the parties to prepare a written 

version of the agreement.

The undated written stipulation signed by counsel provided as follows:

“1. Priscilla Ramirez will waive her right to a jury trial, and agree to have 

her matter adjudicated as a court trial;

“2. The Hon. Steve White will be the finder of fact for the court trial;

“3. Priscilla Ramirez will waive her speedy trial rights . . . so that the jury 

trial in the case of People v. Armstrong & Gonzales . . . will proceed first;

“4. The Hon. Steve White may consider all evidence adduced during the 

jury trial in the case of People v. Armstrong & Gonzales . . . in rendering his 

verdict . . . except for that evidence barred under the Aranda-Bruton[3]rule;

“5. Either party during the court trial . . . may recall any witness who 

testified during the jury trial . . . if they wish to do so, with the caveat that--if 

either co-defendant Armstrong or Gonzales testifies during the jury trial--they 

cannot be compelled to testify in the court trial;

“6. Either party . . . may call any other witness during the court trial if they 

wish to do so.”

As anticipated, Judge White presided over the jury trial, and on April 15, 2011, 

separate juries found Armstrong and Gonzales each guilty of two counts of second degree 

murder and found various firearm enhancements true.

On May 9, 2011, defendant‟s court trial on the amended information began with 

formal entry of the stipulation, to which defendant lodged no objection. Six prosecution 

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3

 Very generally speaking, the Aranda-Bruton rule bars the admission of an out-of-court 

statement of one defendant that also incriminates a jointly-tried defendant. (People v. 

Brown (2003) 31 Cal.4th 518, 537; see People v. Aranda (1965) 63 Cal.2d 518; Bruton v. 

United States (1968) 391 U.S. 123 [20 L.Ed.2d 476].) 
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witnesses testified at the court trial, four of them were cross-examined, and both parties 

rested that day 

On May 27, 2011, the trial court heard arguments. The defendant (through 

counsel) argued she was drunk and upset about her relationship with victim Taylor, but 

had no intent to cause his death, or even cause physical harm, but wanted “closure” and 

“wanted a message to get to” Taylor that they were breaking up and he needed to leave 

her alone; further, victim Holloway was unknown to her; finally, Armstrong was a “loose 

cannon” and his independent act of shooting the two victims surprised defendant; 

therefore, the killings were not the natural and probable consequence of defendant‟s 

actions 

On June 3, 2011, the trial court found defendant guilty of two counts of second 

degree murder, and found the firearm enhancement true as to each count.

On July 1, 2011, the trial court sentenced defendant to 15 years to life in state 

prison on each murder count, and added a year for the firearm enhancement as to each 

count, ordering the sentences for the two counts to run concurrently.4

Although defendant moved to recall her sentence, she did not file a timely notice 

of appeal. However, we granted her relief, based on her claim that she relied on trial 

counsel to file a timely notice.

DISCUSSION

I

Validity of the Stipulation

On appeal, defendant characterizes the evidentiary stipulation as a “waiver” of her 

rights, and contends that waiver is invalid because she was not adequately advised of the 

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4

 At sentencing, the trial court found that although defendant‟s lie about the rape caused 

the murders, and she was present during the murders, she was not as directly involved as 

the shooter and driver, she was youthful (age 21) and she had no record.
5

right to confront witnesses and to be present during testimony, and did not waive her 

right to counsel at a “critical” stage of the proceeding. She also attacks certain evidence 

introduced at the jury trial on the ground it was hearsay. We find no prejudicial error.

A. Juror Unanimity

We first reject defendant‟s passing claim that the jury waiver was invalid because 

she was not told of the need for juror unanimity. (Cf. People v. Diaz (1992) 3 Cal.4th 

495, 570-571.) That is not a required advisement, although it may be a good practice to 

so advise defendants (see United States ex rel. Wandick v. Chrans (7th Cir.1989) 869 

F.2d 1084, 1087-1089). But where a defendant is represented by counsel, she need not 

be instructed about “„all the ins and outs‟ of a jury trial” (People v. Wrest (1992) 3 

Cal.4th 1088, 1104-1105; see People v. Acosta (1971) 18 Cal.App.3d 895, 901-902 

(Acosta)); or even that a jury trial requires a unanimous verdict (see People v. Tijerina

(1969) 1 Cal.3d 41, 45-46).

Here, defendant agreed she had had time to “fully discuss” the waiver with 

counsel, and the trial court could properly infer the relevant “ins and outs” were 

explained to her by counsel. (See Acosta, supra, 18 Cal.App.3d at pp. 901-902; People v. 

Evanson (1968) 265 Cal.App.2d 698, 700-701; see also In re Tahl (1969) 1 Cal. 3d 122, 

129 (Tahl) [“If an accused has counsel, courts have generally assumed, in the absence of 

evidence to the contrary, counsel will perform his duty as an advocate and an officer of 

the court to inform the accused of and take steps to protect the other rights afforded by 

the law”].) We see no error in this particular omission.

B. Slow Plea of Guilty

In what we perceive to be defendant‟s principal contention on appeal, she argues 

that the trial court did not properly advise her before accepting her partial submission 

through stipulation. She argues that the “overall submission in this case” was the 
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equivalent of a “slow plea of guilty” and emphasizes the Boykin-Tahl-Bunnell5line of 

cases, which our Supreme Court has outlined as follows:

“In Boykin, supra, 395 U.S. 238, the United States Supreme Court held that 

„[i]t was error . . . for the trial judge to accept petitioner‟s guilty plea without an 

affirmative showing that it was intelligent and voluntary.‟ [Citation.] . . . 

“In Tahl, supra, 1 Cal. 3d 122, this court held that in order to comply with 

the requirements of Boykin, in all cases in which the trial court accepts a guilty 

plea: „[T]he record must contain on its face direct evidence that the accused was 

aware, or made aware, of his right to confrontation, to a jury trial, and against selfincrimination, as well as the nature of the charge and the consequences of his plea. 

Each must be enumerated and responses elicited from the person of the 

defendant.‟ (Id. at p. 132, italics in the original.) 

“In Bunnell, supra, 13 Cal. 3d 592, we elaborated: „In all guilty plea and 

submission cases the defendant shall be advised of the direct consequences of the 

conviction such as the permissible range of punishment provided by statute . . . .‟ 

(Id. at p. 605.) Although we recognized in Bunnell that the Boykin-Tahl

advisements might not be constitutionally required in all circumstances, we 

concluded that in the interest of justice it was appropriate to adopt a judicially 

declared rule of criminal procedure, requiring the giving of certain advisements in 

a broad category of cases. 

“In subsequent decisions, we have clarified that „[u]nlike the admonition of 

constitutional rights, . . . advisement as to the consequences of a plea is not 

constitutionally mandated. Rather, the rule compelling such advisement is “a 

judicially declared rule of criminal procedure.”‟” (People v. Barella (1999) 20 

Cal.4th 261, 266.)

Whether or not a particular submission is “tantamount to a plea of guilty,” a 

defendant must be advised of the right to a jury trial, the right of confrontation, and the 

privilege against self-incrimination, to ensure any waiver is knowing and voluntary, and 

ensure the record is clear about what, exactly, the parties intend. (See People v. Wright

(1987) 43 Cal.3d 487, 494-495 (Wright); Bunnell, supra, 13 Cal.3d at pp. 604-606.) We 

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5

 See Boykin v. Alabama (1969) 395 U.S. 238 [23 L. Ed. 2d 274]; Tahl, supra, 1 Cal.3d 

122; Bunnell v. Superior Court (1975) 13 Cal.3d 592 (Bunnell). 
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will assume that the trial court should have advised defendant of all three of these 

specific rights, under the prophylactic rule announced in Bunnell and reiterated in later 

cases.

However, unless the submission is “tantamount to a plea of guilty,” any error is 

reviewed for prejudice under state law standards. (Wright, supra, 43 Cal.3d at p. 495; see 

People v. Watson (1956) 46 Cal.2d 818, 836-837.) In some cases, it may be difficult to 

determine the nature of the submission:

“Perhaps the clearest example of a slow plea is a bargained-for submission 

on the transcript of a preliminary hearing in which the only evidence is the 

victim‟s credible testimony, and the defendant does not testify and counsel 

presents no evidence or argument on defendant's behalf. Such a submission is 

„tantamount to a plea of guilty‟ because „the guilt of the defendant [is] apparent on 

the basis of the evidence presented at the preliminary hearing and . . . conviction 

[is] a foregone conclusion if no defense [is] offered.‟ [Citations.]

“Submissions that are not considered slow pleas include those in which (1) 

the preliminary hearing involves substantial cross-examination of the prosecution 

witnesses and the presentation of defense evidence or (2) the facts revealed at the 

preliminary examination are essentially undisputed but counsel makes an 

argument to the court as to the legal significance to be accorded them. [Citation.]

“The wide variety of submissions that fall between these extremes, 

however, present troublesome classification problems. When the defendant 

reserves the right to testify or offer evidence and the record shows no sign of 

negotiations between defendant and prosecution, the submission may or may not 

be a slow plea. Some defendants submit their cases on the transcript simply to 

achieve the effect of a guilty plea without actually having to admit guilt in open 

court and on the record. Others submit not to contest guilt but to avoid expensive 

or burdensome trials or to impress upon the trial judge the mitigating factors for 

sentencing. Some defendants appear to concede guilt as to one or more of the 

offenses but contest it as to others. 

“An appellate court, in determining whether a submission is a slow plea, 

must assess the circumstances of the entire proceeding. It is not enough for a 

reviewing court to simply count the number of witnesses who testified at the 

hearing following the submission. A submission that prospectively appeared to be 

a slow plea may turn out to be part of a full-blown trial if counsel contested the 

sufficiency of evidence for those counts or presented another potentially 
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meritorious legal argument against conviction. Conversely, a submission that did 

not appear to be a slow plea because the defendant reserved the right to testify and 

call witnesses or to argue the sufficiency of the evidence [citation] may turn out to 

be a slow plea if the defense presented no evidence or argument contesting guilt.

“If it appears on the whole that the defendant advanced a substantial 

defense, the submission cannot be considered to be tantamount to a plea of guilty. 

Sometimes, a defendant‟s best defense is weak. He may make a tactical decision 

to concede guilt as to one or more of several counts as part of an overall defense 

strategy. A submission under these circumstances is not a slow plea, and the trial 

court is not constitutionally compelled by Boykin and Tahl to administer the 

guilty-plea safeguards to assure that the tactical decision is voluntary and 

intelligent. The advisements and waivers in such a case are required only as a 

matter of the judicial policies that underlie our decision in Bunnell.” (Wright, 

supra, 43 Cal.3d at pp. 496-497; see People v. Sanchez (1995) 12 Cal.4th 1, 27-29 

(Sanchez), overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 

421, fn. 22.)

Measured by these standards, the stipulation in this case was not a “slow plea.” 

Both parties were free to introduce additional evidence at the court trial, and defendant 

(through counsel) cross-examined some of the People‟s witnesses at the court trial. 

Because defendant reserved the right to confront witnesses, “counsel‟s choice ultimately 

to exercise defendant‟s right of confrontation in only a limited manner was not a 

„submission,‟ but rather, was no more than a tactical decision within counsel‟s discretion 

to make.” (People v. Robertson (1989) 48 Cal.3d 18, 40 (Robertson).) Further, defense 

counsel made a valiant and partially successful argument, obtaining two second degree 

murder convictions in the face of evidence defendant instigated Taylor‟s murder. (See 

Sanchez, supra, 12 Cal.4th at pp. 29-30 [no slow plea where trial counsel cross-examined 

witnesses and “argued constantly that the facts as presented at the preliminary hearing 

should be viewed as not supporting first degree murder convictions”]; People v. Stone
9

(1994) 27 Cal.App.4th 276, 282-283.) In short, because there was no understanding that 

the stipulation would result in guilt findings, this was not a “slow plea” case.6 

Defendant suggests this case should be treated like a slow plea for three reasons, 

all based on the theory that trial counsel did not adequately contest her guilt, claiming (1) 

the jury trial evidence was “unknown[,]” and (2) it was “completely unconfronted 

because neither appellant nor her attorney attended the trial[,]” and (3) defense counsel 

argued only that she lacked the intent to kill. We reject each point.

As for the first point, the jury trial evidence was not “unknown” because the 

People had filed a detailed trial brief outlining the evidence with reference to discovery 

pages and preliminary hearing transcript pages. If the actual jury trial revealed anything 

materially different, defendant has failed to bring it to our attention on appeal. 

As for the second point, the People note the record on appeal does not reveal 

whether or not defendant‟s trial counsel attended the jury trial, and even if he did not, the 

evidence was not “unconfronted” as defendant states. Every witness at the jury trial was 

cross-examined by one or both counsel for the codefendants, which allowed the trial 

court to observe their credibility, but more importantly, as stated earlier, defendant 

(through counsel) retained the right to call any of those witnesses to testify at the court 

trial and thereby confront them: The fact that right was not fully exercised did not impair 

the defendant‟s opportunity to confront all witnesses. (See Robertson, supra, 48 Cal.3d 

at pp. 39-40.) 

Finally, as to the third point, defendant‟s description of the closing argument is 

incomplete. Trial counsel argued defendant had not wanted any harm to come to Taylor, 

did not know Holloway, and the shootings were not the natural and probable consequence

of her actions, but were the surprising and independent actions of Armstrong, a “loose 

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6

 Because defendant did not testify, “there was no requirement of a personal, on-therecord waiver” of her privilege against self-incrimination. (Sanchez, supra, 12 Cal.4th at 

p. 30; cf. People v. Phillips (1985) 172 Cal.App.3d 670, 673.)
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cannon[.]” On appeal, defendant provides no suggestions about what additional

arguments trial counsel plausibly could have made in this case. 

Separately, contrary to defendant‟s view, the stipulation did not impair her right to 

be present at trial and her right to assistance of counsel at trial. She was present with 

counsel for her entire court trial. Because her case had been severed, she was not a party

to the jury trial, and had no right to appear with counsel there.

Accordingly, because this was not a “slow plea” case, any error was subject to 

state law harmless error analysis. (See Robertson, supra, 48 Cal.3d at pp. 41-42; Wright, 

supra, 43 Cal.3d at p. 495; People v. Huynh (1991) 229 Cal.App.3d 1067, 1079-1080.) 

Defendant has not shown there is any reasonable probability that she would have 

obtained a better result in the absence of her entry into the stipulation, therefore any error 

by the trial court in accepting the stipulation absent full compliance with the prophylactic 

Bunnell advisements was harmless.

C. Hearsay

Finally, we observe that defendant describes certain purported hearsay evidence 

admitted at the jury trial. However, she makes no effort to analyze whether the third 

party statements were actually hearsay, that is, whether they were offered for the truth of 

the matter asserted; nor does she address potentially applicable exceptions to the rule 

precluding consideration of hearsay. She further fails to describe how any hearsay 

evidence introduced at the jury trial was prejudicial to her case. She concedes no 

evidence from the jury trial violating the Aranda-Bruton rule was used against her. She 

asserts the evidence violated due process simply because her stipulation was invalid, a 

contention we have already rejected. We will not presume, in the absence of coherent 

briefing, that the challenged statements were inadmissible, let alone prejudicial. (See 

People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 (Freeman).)

Defendant also claims that the arguments made at the jury trial of her 

codefendants prejudiced her. But arguments are not evidence (see Beagle v. Vasold
11

(1966) 65 Cal.2d 166, 176; Estate of Pittman (1980) 104 Cal.App.3d 288, 295), and 

because the stipulation did not permit the trial court to consider the arguments at the jury 

trial, only evidence, we presume the trial court disregarded the arguments. (See People v. 

Coddington (2000) 23 Cal.4th 529, 644.)

II

Incompetence of Counsel

Defendant contends trial counsel was incompetent by (1) permitting the 

introduction of “unknown” evidence from the jury trial against her, (2) failing to advise 

her of her constitutional rights, (3) failing to be present at the jury trial, and (4) failing to 

interpose certain hearsay objections to testimony taken at the court trial. 

To prevail on a claim of incompetent counsel, defendant must show her counsel 

breached standards of professional competence and there is a reasonable probability she 

would have obtained a more favorable result in the absence of counsel‟s failings; further, 

“If the record „sheds no light on why counsel acted or failed to act in the manner 

challenged,‟” her claim of incompetence of counsel “must be rejected „unless counsel 

was asked for an explanation and failed to provide one, or unless there simply could be 

no satisfactory explanation.‟” (People v. Ledesma (2006) 39 Cal.4th 641, 745-746.) 

We first observe that trial counsel‟s strategy was generally successful, in that he 

avoided exposing his client to a joint jury trial with the trigger-man and his driver, 

obtained second degree murder verdicts for his client despite plausible evidence of first 

degree murder, based on defendant‟s act of inciting others to kill Taylor, and even 

persuaded the trial court to impose concurrent sentences. In particular, we reject 

defendant‟s four sub-claims of incompetence as follows:

(1) Although defendant argues that trial counsel was ignorant of the evidence to 

be presented at the jury trial, we disagree for the reason already stated in Part I, ante: 

Based on the preliminary hearing transcript, the extensive discovery, and the People‟s 

unusually detailed trial brief, trial counsel was informed of the evidence expected to be 
12

introduced. Defendant fails to argue that there was any deviation from the People‟s 

detailed roadmap of the case at the jury trial.

(2) The record does not show what advice trial counsel gave defendant before she 

entered into the stipulation. Absent anything in the record to the contrary, we must 

presume defense counsel adequately advised defendant. (See Robertson, supra, 48 

Cal.3d at p. 36; Cowan v. Superior Court (1996) 14 Cal.4th 367, 373.) 

(3) As we noted ante, the record does not show whether or not trial counsel 

attended the jury trial, therefore defendant fails to show he did not do so. Moreover, 

defendant fails to establish why, on these facts, trial counsel was obliged to personally 

attend the jury trial.

(4) Assuming defendant is correct that certain hearsay objections to testimony 

given at the court trial would have been successful, that does not of itself establish 

incompetence. “Because the decision whether to object is inherently tactical, the failure 

to object to evidence will seldom establish incompetence.” (Freeman, supra, 8 Cal.4th at 

pp. 490-491.) For example, at times otherwise inadmissible evidence may come out in 

another form, or the testimony may cut two ways, or it may be insignificant in relation to 

the defense theory. (See, e.g., People v. Ratliff (1986) 41 Cal.3d 675, 692; In re Lower

(1979) 100 Cal.App.3d 144, 150.) Defendant fails to explain how the admission of 

hearsay was prejudicial; she merely contends that the admission of hearsay was structural 

error, reversible per se, because the evidence was not subject to confrontation and 

violated due process. This overlooks the point, stated earlier, that “counsel‟s choice 

ultimately to exercise defendant‟s right of confrontation in only a limited manner . . . was 

no more than a tactical decision within counsel‟s discretion to make.” (Robertson, supra, 

48 Cal.3d at p. 40.)7

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7 Defendant suggests some evidence introduced at her court trial violated the ArandaBruton rule, or violated other Confrontation Clause principles, but none of the statements 
13

In this case, trial counsel‟s strategy was to emphasize the evidence of defendant‟s 

intoxication and anger at victim Taylor, and the rash actions of Armstrong, to argue 

defendant did not order the murder of the two victims. On appeal, defendant does not 

explain how quibbling over minor evidentiary points would have advanced that strategy. 

Accordingly, because the record reflects a clear tactical reason for defense 

counsel‟s choices, defendant‟s claim of incompetence of counsel must be brought, if at 

all, by way of a habeas corpus proceeding. (People v. Pope (1979) 23 Cal.3d 412, 426.)

DISPOSITION

The judgment is affirmed.

 DUARTE , J.

We concur:

 HULL , Acting P. J.

 MURRAY , J.

 

she identifies in her brief facially incriminated her. Nor does she explain how those 

statements were significant in the context of all the trial evidence.