98 Cal.App.5th 175
Cal. Ct. App.2023Background
- Defendant Alfredo Ramirez was convicted by a jury of multiple counts of lewd or lascivious acts and related offenses involving four minor victims and sentenced to 107 years to life; videos from his phone corroborated one victim’s report.
- Police seized Ramirez’s phone, obtained electronic‑communications search warrants, and used his fingerprint to unlock the device after detectives guided his finger to the sensor; images and videos of minors were discovered.
- Ramirez moved to suppress the phone evidence arguing Fourth Amendment, Fifth Amendment (self‑incrimination), and due process violations; the trial court denied suppression and admitted prosecution expert testimony about child sexual‑abuse victim behavior (limited by CALCRIM No. 1193).
- The prosecution obtained leave under Evidence Code §1108 to argue propensity, and the court instructed the jury with CALCRIM No. 1191B.
- Defense counsel did not object to a prosecutor remark about considering lesser offenses or to several fines/assessments imposed at sentencing.
- The Court of Appeal affirmed the conviction, rejecting Ramirez’s challenges to the fingerprint search, self‑incrimination and due process claims, evidentiary rulings, instruction claims, ineffective‑assistance claims, and fines/fees challenge (forfeited).
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Ramirez) | Held |
|---|---|---|---|
| 1) Use of fingerprint to unlock phone — Fourth Amendment | Warrants (with affidavits incorporated) authorized seizure and search; affidavit requested permission to obtain fingerprint and use reasonable force. | Compelled biometric extraction was a separate, warrantless, unreasonable search and the face of the warrant did not authorize forcing a fingerprint. | The affidavits were incorporated by reference; a reasonable officer would understand warrants to permit obtaining the fingerprint; alternatively, the good‑faith exception applies. |
| 2) Use of fingerprint — Fifth Amendment (self‑incrimination) | Fingerprint is nontestimonial physical evidence; any testimonial component (access/control) was a foregone conclusion. | Placing a finger on the sensor implicitly testifies to prior access/control and is therefore testimonial and compelled. | Fingerprint use is non‑testimonial (like other physical exemplars); prosecution established existence/control with reasonable particularity — foregone conclusion doctrine applies. |
| 3) Use of fingerprint — Due Process (coercion) | Officers used minimal, reasonable force; no shock‑the‑conscience conduct; no involuntary testimonial act was introduced at trial. | Detective grabbed/Guided his hand, told him they would get his thumbprint, and he asked for counsel — his will was overborne. | Force was minimal and reasonable; no involuntary confession or due‑process violation established. |
| 4) IAC re: suppression arguments | Trial counsel briefed and argued Fourth, Fifth, and due‑process suppression claims. | Counsel failed to press specific authorities or arguments that would have changed outcome. | No IAC: the record shows counsel litigated the suppression issues; no prejudice shown because court properly denied suppression. |
| 5) Admissibility of child‑abuse‑behavior expert (CSAAS) | Expert testimony was limited to dispelling myths and rehabilitating credibility; admissible under McAlpin for that limited purpose. | CSAAS is inherently unreliable and effectively proves abuse because it fits any behavior. | Admission was within trial court discretion under McAlpin; even if error, any impact was harmless beyond a reasonable doubt. |
| 6) CALCRIM No. 1193 instruction (expert limits) | Instruction properly limits expert evidence to rebutting misconceptions and assessing believability, not as proof of guilt. | Instruction invites jurors to treat CSAAS as proof and assumes the victims’ allegations are true. | Instruction correctly stated the limited purpose; no reasonable likelihood jurors misapplied it. |
| 7) CALCRIM No. 1191B (propensity from charged acts) | §1108 allows use of other sexual‑offense evidence, including charged offenses, to show propensity (Villatoro). | Using charged acts as propensity evidence is improper. | Villatoro controls: instruction was proper; charged offenses may be considered for propensity under §1108 (subject to §352). |
| 8) Prosecutor’s closing remark re: lesser included offenses & IAC | The comment misstated procedure but the court instructed CALCRIM No. 3517 to govern verdict order. | Counsel ineffective for failing to object to the prosecutor’s erroneous statement. | Even assuming counsel erred, no prejudice: the court’s instruction clarified the law; conviction stands. |
| 9) Fines and fees w/o ability‑to‑pay finding | Sentencing court imposed fines/assessments without explicit ability‑to‑pay inquiry. | Imposition without an ability‑to‑pay determination violates Dueñas and state/federal due process. | Issue forfeited by failure to object at sentencing (sentencing occurred after Dueñas); IAC claim fails on the record. |
Key Cases Cited
- Riley v. California, 573 U.S. 373 (U.S. 2014) (modern cell phones implicate substantial privacy interests and generally require a warrant to search)
- United States v. Leon, 468 U.S. 897 (U.S. 1984) (good‑faith exception to exclusionary rule)
- United States v. Hubbell, 530 U.S. 27 (U.S. 2000) (production that requires use of the contents of the mind may be testimonial)
- Fisher v. United States, 425 U.S. 391 (U.S. 1976) (foregone conclusion doctrine limits Fifth Amendment protection for production of physical evidence)
- Schmerber v. California, 384 U.S. 757 (U.S. 1966) (physical evidence extraction is not testimonial)
- Doe v. United States, 487 U.S. 201 (U.S. 1988) (testimonial communication defined as revealing contents of the mind)
- United States v. Dionisio, 410 U.S. 1 (U.S. 1973) (voice exemplars/physical characteristics are non‑testimonial)
- People v. Villatoro, 54 Cal.4th 1152 (Cal. 2012) (Evidence Code §1108 permits use of sexual‑offense evidence, including charged offenses, for propensity)
- People v. McAlpin, 53 Cal.3d 1289 (Cal. 1991) (CSAAS evidence admissible to rebut misconceptions and assess credibility)
- State v. Diamond, 905 N.W.2d 870 (Minn. 2018) (placing a fingerprint on a phone to unlock it is non‑testimonial and akin to surrender of physical evidence)