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State v. Ramirez

Court of Appeal of Louisiana, Fourth Circuit

November 12, 2014

STATE OF LOUISIANA
v.
JOSE DEL CARMEN L. RAMIREZ

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 487-953, SECTION " E" . Honorable Keva M. Landrum-Johnson, Judge.

AFFIRMED.

LEON A. CANNIZZARO, JR., District Attorney, ANDREW M. PICKETT, Assistant District Attorney, PARISH OF ORLEANS, New Orleans, LA, COUNSEL FOR APPELLEE/ STATE OF LOUISIANA.

HOLLI HERRLE-CASTILLO, LOUISIANA APPELLATE PROJECT, Marrero, LA, COUNSEL FOR DEFENDANT/ APPELLANT.

(Court composed of Judge Madeleine M. Landrieu, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins). LANDRIEU, J., CONCURS IN THE RESULT. LOBRANO, J., CONCURS IN THE RESULT.

OPINION

SANDRA CABRINA JENKINS, J.

Page 637

[2013-1554 La.App. 4 Cir. 1] The defendant, Jose Del Carmen Ramirez, appeals his conviction of second-degree murder, a violation of La. R.S. 14:30.1. In the three assignments of error presented to this Court on appeal, the defendant raises the issues of sufficiency of evidence to support conviction, the admission of hearsay evidence, and the denial of the defendant's motion to record simultaneous interpretations. For the following reasons, we affirm the defendant's conviction.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of May 1, 2009, the victim, Irma Sanchez, and her husband and two children were having a picnic with friends outside of the Pick and Go convenience store on Elysian Fields Avenue. Upon arriving at the gas station, the defendant, Jose Del Carmen Ramirez, recognized one of the people at this picnic as someone with whom his brother had recently had an altercation. The defendant approached the group inquiring about the incident and ultimately retrieved a machete from the trunk of his car because the other individual was armed with a bat. After the defendant swung the machete at the other individual multiple times, he fled

Page 638

the scene in a red Pontiac. This fight was captured on the gas station's surveillance system.

[2013-1554 La.App. 4 Cir. 2] About twenty minutes later, the red Pontiac returned to the gas station; and the passenger began shooting at the group at the picnic while the vehicle drove slowly away. This incident was not captured on any surveillance system. Three eyewitnesses independently identified the defendant as the shooter to the responding officer, Officer Janssen Valencia (" Officer Valencia" ), and informed her as to where the defendant lived.

Thereafter, the three eyewitnesses and Officer Valencia proceeded to locate the shooter's residence, as the individuals did not know his physical address. Upon passing the anticipated location, the three eyewitnesses identified the man exiting the red Pontiac, the defendant, as the person they had seen shoot the victim. The defendant was then arrested and charged with second-degree murder. After a threeday trial, a jury found the defendant guilty as charged. The defendant was sentenced to serve life in prison, without any benefits. This appeal followed.

ERRORS PATENT

In accordance with La. C.Cr.P. art. 920, all appeals are reviewed by this Court for errors patent on the face of the record. After reviewing the record, we note one error patent. At the sentencing hearing, the trial court vaguely informed the defendant that his sentence to life imprisonment was to be served without " any benefits."

Pursuant to La. R.S. 14:30.1, a sentence to life imprisonment at hard labor must be served without the benefit of parole, probation, or suspension of sentence. The minute entry indicates that the imposed sentence was to be served without the benefit of probation, parole, or suspension. However, according to the November 11, 2011 sentencing hearing transcript, the trial court merely stated that the defendant was to " serve life imprisonment ... without any benefits."

[2013-1554 La.App. 4 Cir. 3] Despite the vagueness of the sentence, pursuant to La. R.S. 15:301.1(A) and State v. Williams, 2000-1725 (La. 11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with the statutory restrictions as to the specified benefits. (" In instances where these restrictions are not recited at sentencing, La. Rev. Stat. Ann. § 15:301.1(A) deems that those required statutory restrictions are contained in the sentence, whether or not imposed by the sentencing court." ) Id., 2000-1725, p. 10, 800 So.2d at 799; See State v. Byrd, 2012-0556, p. 14 (La.App. 4 Cir. 6/5/13), 119 So.3d 801, 809-810; State v. Molere, 2011-1657, p. 7 (La.App. 4 Cir. 9/5/12), 99 So.3d 1050, 1054; State v. Phillips, 2003-0304, p. 3 ...


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