People v. Ramirez ( 2021 )

Filed 11/23/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306088
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA091171)
v.
OMAR RIGO RAMIREZ,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles
County, Lee W. Tsao, Judge. Reversed.
Joanna Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Idan Ivri and Michael Katz, Deputy Attorneys
General for Plaintiff and Respondent.
_________________
Omar Rigo Ramirez appeals from a postjudgment order
denying his petition for resentencing under Penal Code
section 1170.951 as to his conviction of first degree murder under
a theory of felony murder based on his participation in an
attempted carjacking. After an evidentiary hearing, the trial
court concluded Ramirez was not eligible for resentencing
because he was a major participant in the underlying felony and
acted with reckless indifference to human life, within the
meaning of section 189, subdivision (e)(3). Ramirez contends
substantial evidence does not support the trial court’s findings.
We agree and reverse.
Ramirez did not provide the murder weapon, instruct his
confederate to shoot, or know of his confederate’s propensity
toward violence, and the shooting occurred quickly without
Ramirez having a meaningful opportunity to intervene. Although
Ramirez was aware his confederate had a gun and intended to
use it in the carjacking, as a 15-year-old he may well have lacked
the experience and maturity to appreciate the risk that the
attempted carjacking would escalate into a shooting and death,
and he was more susceptible to pressure from his fellow gang
members to participate in the carjacking. Thus, there is not
substantial evidence Ramirez acted with reckless indifference to
human life.
Ramirez also contends he is entitled on remand to be
resentenced by a juvenile court pursuant to Proposition 57, the
Public Safety and Rehabilitation Act of 2016 (Cal. Const., art. I,
§ 32) and Senate Bill No. 1391 (2017-2018 Reg. Sess.) (Senate Bill
1391). We agree Proposition 57 and Senate Bill 1391 apply to
Ramirez’s resentencing under section 1170.95 and direct the trial
1 All undesignated statutory references are to the Penal
Code.
2
court to transfer the matter to the juvenile court, which shall
treat Ramirez’s remaining convictions as juvenile adjudications
and impose an appropriate disposition.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
We described the 2005 killing of Alex Gutierrez in our prior
opinion in People v. Rios (May 18, 2011, B218445) [nonpub. opn.]
(Rios).
1. The shooting
Early on the morning of June 17, 2005 Gutierrez and an
unidentified passenger drove to a house on Clarkdale Avenue in
Hawaiian Gardens, where Lizbeth and Paola Figueroa (the
Figueroa sisters) lived with their family. Gutierrez was a friend
of Paola’s ex-boyfriend. When Gutierrez arrived, he asked Paola
if she wanted to buy stereo speakers. After some discussion,
Paola reluctantly agreed to take the speakers so Gutierrez would
not disturb the neighbors. Paola had Gutierrez put the speakers
in her van and said she would try to sell them. Gutierrez left, but
said he would return.
Lizbeth and Paola then drove in the van to an abandoned
house on Juan Street, about five blocks away, to try to sell the
speakers. One of Lizbeth’s friends, Carlos Gallardo was there
with five or six other men.2 Gallardo lived in the neighborhood
and was a member of the Varrio Hawaiian Gardens criminal
2 Gallardo was 18 years old at the time. He testified after
entering a no contest plea to voluntary manslaughter and
attempted murder.
3
street gang, and the Juan Street house was a regular hangout for
members of the gang. Lizbeth called Gallardo over to the van.
Paola asked Gallardo if he knew anyone who wanted to buy
speakers.
Juan Carlos Rios,3 who was also a member of the Hawaiian
Gardens gang, approached them and demanded to know who
gave Paola the speakers. Paola replied that it was “just some
friends.” Rios asked if they were from his neighborhood, and
Paola told him they were not. He asked if they were “gangsters.”
He also asked if they had guns, a nice car, and money, and
whether they looked like “Paisa[s],” meaning Mexican nationals.
Paola told him they were Paisas and had no money. Rios
responded he “was planning on jacking them.”
Rios asked Paola to give him a ride home. He lived on
Arline Avenue, near the Figueroa sisters’ home. Paola did not
want to take Rios home because she was concerned he intended
to rob Gutierrez, but she agreed to drive him because she was
afraid of him. Rios, Gallardo, and Ramirez got into the van.
During the drive, Rios continued to question Paola about
Gutierrez and his companion, asking “[i]f they were gangsters, if
they had money, what they were driving,” as well as whether
they were armed. Rios was upset the men from Long Beach were
“in [his] city,” meaning in Hawaiian Gardens. Rios said “they
were going to come up sick status,” meaning Rios was “going to
try to get whatever they had.” Gallardo and Ramirez did not ask
any questions. It appeared to Paola that Rios was the leader of
the three men.
3 Gallardo, who was known as “Oner,” knew Rios as “Hefty”
and Ramirez as “Mono.”
4
When they arrived at Rios’s house, Lizbeth heard Rios say
something about a gun. Gallardo responded, “Why a gun if they
were just Paisas? There is no gun needed.” Rios asked, “Well,
why not?” Rios went into his home for about five to 15 minutes,
then returned to the van. He had [a] sweater[], a white hockey
mask, and a “Mexican flag bandanna.” Rios kept the mask, gave
the sweater to Gallardo, and handed the bandanna to Ramirez.
Lizbeth heard Paola tell Rios what kind of car Gutierrez was
driving. Rios said he was going to look for the car.
Gallardo suggested that they “punk” or intimidate
Gutierrez. Rios wanted to go further than “punking” the victims,
which to Gallardo meant probably using a weapon. Gallardo
believed he, Rios, and Ramirez were going to Clarkdale Avenue to
carjack Gutierrez and the companion.
The Figueroa sisters, Rios, Gallardo, and Ramirez then
went to the sisters’ home. After Lizbeth and Paola went inside
the house, the three men stayed outside, then about an hour later
Gallardo knocked on the door and asked for some tacos. Paola
gave the men tacos, then drove them back to Rios’s home. She
dropped them off and returned home. Rios, Gallardo, and
Ramirez later returned to the sisters’ house and again waited
outside. According to Gallardo, they were looking for the Paisas.
After some time, they started walking around the neighborhood.
Meanwhile, Gutierrez drove to his father’s house in
Compton. David Quesada, who worked for Gutierrez’s father,
had finished work at around 3:00 a.m., when he saw Gutierrez
outside the house. Quesada asked Gutierrez to drive him home
to Long Beach, so Quesada would not have to take the bus.
Gutierrez agreed, but he asked Quesada to accompany him first
to Hawaiian Gardens, where Gutierrez was going to pick up
5
money for a completed job. Gutierrez and Quesada4 then drove to
the Figueroa sisters’ house.
Rios, Gallardo, and Ramirez saw Gutierrez’s car make a U-
turn on Clarkdale Avenue and come to a stop on the street.
Gallardo thought the occupants of the car looked like Paisas.
Rios, who was wearing the hockey mask, approached the driver’s
side of Gutierrez’s car and asked Gutierrez for a cigarette.
Gutierrez said he did not have one. Rios whistled, and Gallardo
and Ramirez, whose faces were covered, ran to the passenger’s
side of the car from behind a nearby van, which belonged to the
Figueroa sisters’ cousin. Rios drew a gun and told Gutierrez to
park the car and get out. He told Quesada in Spanish that
nothing would happen to him if he got out of the car. Gallardo
was closer to the vehicle than Ramirez, who was a couple of feet
behind him. Quesada started to get out of the car. Rios was
arguing with Gutierrez, who then began to drive away.5 Rios
fired several shots at the car. One of the bullets struck Gutierrez,
who lost control of the vehicle. The car hit the cousin’s van,
which was parked in front of the Figueroas’ house. Quesada was
able to help Gutierrez drive to the nearby Bicycle Club casino,
where a security guard called 911.
Immediately following the shooting, Gallardo asked Rios
what he was doing. He told Rios he had made a mess of things
4 According to the trial testimony of the Figueroa sisters,
when Gutierrez initially visited the sisters’ house that evening to
sell the speakers, the passenger in Gutierrez’s car was not
Quesada.
5 Gallardo testified Gutierrez started reaching for the glove
compartment, at which point Rios fired at him. Gallardo did not
see that Rios was holding a gun until the shooting started.
6
and added, “[Y]ou’re on your own.” Gallardo and Ramirez ran in
one direction, and Rios ran in another.
Lizbeth and Paola were awakened about 4:00 or 5:00 a.m.
by the sound of gunshots and a loud crash. Paola heard her
cousin tell her father that the cousin’s van had been hit by
gunshots.
Los Angeles County Sheriff’s deputies and paramedics
responded to the casino, and other Sheriff’s deputies responded to
Clarkdale Avenue. Gutierrez’s car was at the casino, with
Gutierrez slumped over the steering wheel. There were bullet
holes in the hood and windshield of Gutierrez’s car. The deputies
who responded to Clarkdale Avenue observed collision damage to
the cousin’s van and found shell casings in the street. Gutierrez
died from a gunshot wound to his torso.
About a week after the shooting, Lizbeth saw Rios on the
street and told him that people were blaming her for the
shooting. He asked for the names of the people and told her, “I
am like your brother. Just let me know and what happened to
them, I could do the same thing to whoever is bothering you.” He
added, “[T]hat’s what he gets for trying to get crazy and not get
[out of] the car.”
2. Ramirez’s interview with Sergeant Hall
Los Angeles County Sheriff’s Sergeant Barry Hall
interviewed 15-year-old Ramirez on September 22,
2005. Sergeant Hall advised Ramirez of his Miranda rights,6 and
Ramirez waived his rights. Ramirez stated he was a member of
6 Miranda v. Arizona (1966) 384 U.S. 436, 471.
7
the Hawaiian Gardens gang and had been in the gang for about a
year.7
Ramirez acknowledged that on the night of the shooting he
heard Rios asking questions about the victims, and he knew Rios
was planning a carjacking. He heard Rios say he wanted to “‘jack
these fools,’” but Rios did not say anything about shooting them.
Ramirez wanted to tell Gutierrez to leave the Figueroa sisters
alone and depart from the neighborhood. Ramirez did not want
to assist Rios in the carjacking, but he felt he had to or Rios
would “tell the whole hood,” and Ramirez would be killed.
Ramirez explained he did not want a gun to be used and did not
want to be involved in a “big stupid thing,” but Rios insisted.
Ramirez acknowledged that he, Rios, and Gallardo were
present during the attempted carjacking. Rios was the one who
asked the victims for a cigarette. When Ramirez saw Rios draw a
gun, he did not want to be involved in the carjacking. Then Rios
“[went] crazy” and told the victims to “[g]et the fuck out [of] the
car” or Rios would “blast [them].” It was Rios who shot the gun
and killed the victim. Ramirez told Detective Hall, “I ain’t down
for that. . . . I ain’t gonna shoot. It’s just me and my two fists.
You know, get down.” He first claimed that he did not know Rios
had a gun until Rios drew it during the attempted carjacking.
Ramirez then admitted that he saw Rios with a gun when they
were at the Figueroa sisters’ home prior to the attempted
carjacking, and he knew Rios carried a gun with him.
7 Los Angeles County Sheriff's Sergeant Phillip Santisteven
arrested Ramirez at his home. During the booking process,
Ramirez told Sergeant Santisteven that he had been a member of
the Hawaiian Gardens gang since he was 10 years old.
8
Ramirez told Sergeant Hall that he knew the victims were
from Long Beach. According to Sergeant Hall, Ramirez explained
that “people from other areas, other cities basically just can’t be
driving through their neighborhood, and that if they are, they’re
going to get jammed up for being in the neighborhood especially
on Juan Street. He was claiming even the cops don’t go down
there.” Ramirez explained that if outsiders came to Hawaiian
Gardens, the “homeboys will fuckin take all their shit.” After
learning of Rios’s plans, Ramirez was not intending to steal from
the victims. He was just going to tell them not to come back to
the neighborhood.
After Rios opened fire, Ramirez “took off.” Ramirez
explained, “I heard a crash, but I didn’t know what the fuck was
going on. I was gone.” Rios “took off” by himself.
3. Gang evidence
Los Angeles County Sheriff's Detective Brandt House
testified as a gang expert with experience investigating the
Hawaiian Gardens and other gangs. Detective House explained
that gang members are territorial and are sensitive to being
disrespected. They gain respect through intimidation. They
perceive people coming into their territory as a threat “unless
identified otherwise.”
Gang members consider Mexican nationals (Paisas) to be
inferior and easy targets for crime because they are unlikely to
report crimes against gang members. Gang members intimidate
people in the gang’s territory so no one will report crimes
committed by the gang members, and it is very rare that people
living in gang territory will report gang crimes.
9
Gang members commonly work together to commit crimes,
and they are expected to support one another in the commission
of crimes. A gang member who fails to do so “would be subject to
some type of violence from their gang. They refer to it as being
regulated. I would expect him to be regulated in some way, and
that could be anywhere from a beating to being murdered,
depending on what it was that he did wrong or did not act upon
that he should have.” A gang member who fails to support fellow
gang members might avoid punishment, however, if he has a
relative who is a high-ranking member of the gang.
Detective House explained the Hawaiian Gardens gang has
existed since the 1950s and has about 1,000 members. The
gang’s primary activities include assaults, carjackings, vehicle
theft, and robberies. He opined Ramirez, Gallardo, and Rios were
members of the gang, and Ramirez was a member of the Loquitos
clique. Ramirez had gang tattoos, and his uncle was a high-
ranking member of the gang, which may have protected Ramirez
from gang retribution.
When given a hypothetical mirroring the facts of this case,
Detective House opined the crime was committed for the benefit
of, at the direction of, and in association with the gang. He
explained the gang was “asserting [its] dominance over that
neighborhood, over that turf area. They are setting an example
for individuals who come from outside of the neighborhood who
may want to operate in their turf area without their permission.
They are setting an example for what’s going to happen to those
people if they do that.” In addition, Rios and Ramirez would
advance the gang’s status and their own status in the gang
through commission of the crimes.
10
4. Defense case
The defense called Sergeant Hall as a witness. Ramirez
and Gallardo were both from the same clique of the Hawaiian
Gardens gang while Rios was in a different clique. Ramirez knew
Gallardo better than he knew Rios.
Sergeant Hall noted that at first, Ramirez claimed he did
not do or say anything. Ramirez later admitted he approached
the car, put his hand on the car, and told the passenger to get
out. Ramirez maintained he did not plan the crime and did not
want to approach the car, but Rios insisted. Ramirez did not
want to hurt anyone.
B. The Jury Verdict and Sentencing
The jury convicted Ramirez of first degree murder (§ 187,
subd. (a); count 1),8 shooting at an occupied vehicle (§ 246; count
3), and two counts of attempted carjacking (§§ 215, subd. (a), 664;
counts 4 & 7).9 The jury found that in the commission of the
murder and the attempted carjackings, a principal personally
and intentionally discharged a firearm causing great bodily
injury. (§ 12022.53, subds. (b), (c), (d) & (e)(1).) As to the count
for shooting at an occupied vehicle, the jury found a principal
personally discharged a firearm causing great bodily injury.
8 The operative third amended information alleged in count 1
Ramirez committed the murder while he was “engaged in the
attempted commission of the crime of [c]arjacking, within the
meaning of Penal Code Section 190.2(a)(17).” The People do not
dispute Ramirez was tried and convicted on a theory of felony
murder.
9 The jury found Ramirez not guilty on count 2 of attempted
murder; the other counts in the operative information were
charged against only Rios and Gallardo.
11
(§ 12022.53, subds. (d) & (e)(1).) As to all four counts, the jury
found Ramirez committed the crimes for the benefit of a criminal
street gang. (§ 186.22, subd. (b)(1)(C).)
The trial court sentenced Ramirez to consecutive sentences
of 25 years to life for murder and 15 years to life for shooting at
an occupied vehicle, and it imposed two terms of 25 years to life
for the firearm enhancements on the two counts. The court
stayed imposition of sentence on the remaining counts and
enhancements.
C. Ramirez’s Appeal
In 2011 we affirmed Ramirez’s conviction and sentence.
We rejected Ramirez’s contention substantial evidence did not
support his conviction of shooting at an occupied vehicle as a
natural and probable consequence of aiding and abetting the
attempted carjacking. We reasoned, “Ramirez’s own statement
confirms that he knew Rios had a gun and was planning a
carjacking. He also stated that he did not want Rios to use a gun
in the commission of the carjacking. It is reasonably inferable
from this statement that he was subjectively aware that Rios’s
gun use might escalate from brandishing the gun to firing the
gun if the victims resisted. Moreover, a reasonable person in
Ramirez’s position would have foreseen that victims in a car
would attempt to drive away rather than be carjacked, and Rios
would shoot at the car to stop them. [Citation.] [¶] There thus is
substantial evidence from which a reasonable trier of fact could
conclude that shooting at an occupied motor vehicle was a
natural and probable consequence of the attempted carjacking.
Ramirez’s conviction of that charge as an aider and abettor must
be affirmed.” (Rios, supra, B218445.)
12
We also rejected Ramirez’s claim that his sentence
constituted cruel and unusual punishment because he was
15 years old when he committed the offenses.
D. The Petition for Resentencing, Evidentiary Hearing, and
Ruling
On February 14, 2019 Ramirez filed a form petition for
resentencing seeking to vacate his murder conviction and be
resentenced in accordance with recent statutory changes relating
to accomplice liability for murder. In his petition, Ramirez
declared he “was convicted of 1st or 2nd degree murder pursuant
to the felony murder rule or the natural and probable
consequences doctrine” and he “could not now be convicted of 1st
or 2nd degree murder because of changes made to Penal Code
§§ 188 and 189, effective January 1, 2019.” He also checked the
box on the form stating he was not the actual killer and did not
act with the intent to kill. Further, he asserted he was not a
major participant in the felony or did not act with reckless
indifference to human life.
The trial court ordered the People to file a response to the
petition and appointed counsel to represent Ramirez. Ramirez
later retained private counsel. On October 3, 2019 the trial court
issued an order to show cause and set an evidentiary hearing.
On January 17, 2020 Ramirez filed a motion for a transfer
to juvenile court pursuant to Proposition 57 and for a hearing
under People v. Franklin (2016) 63 Cal.4th 261 to allow him a
sufficient opportunity to make a record of information relevant to
a future youth offender parole hearing under section 3051,
subdivision (b)(3). Ramirez argued his eligibility for resentencing
under section 1170.95 “makes [his] case non-final, effectively
13
triggering a transfer to juvenile court.” The People opposed
Ramirez’s request, arguing Proposition 57 did not apply
retroactively to Ramirez’s case because his judgment was final.
At the April 28, 2020 hearing, the parties did not present
any additional evidence, instead stipulating the trial court could
consider the court file, including minute orders, charging
documents, transcripts, and the appellate opinion. The trial
court found “the People have proved beyond a reasonable doubt
that the defendant is ineligible for resentencing.” The court
found Ramirez was a major participant in the attempted
carjacking and acted with reckless indifference to human life.
The court observed with respect to whether Ramirez was a major
participant, “[Ramirez] was present at the scene of the crime and
had a major role in the commission of the underlying felony.” As
to reckless indifference, the court reasoned Ramirez and “his two
companions were members of a criminal street gang,” which gave
them “a pecuniary motive” and “a territorial motive.” Relying on
Ramirez’s knowledge Rios had a gun, his gang membership, and
his statements to Sergeant Hall, the court “infer[red] a degree of
knowledge and a willingness to commit violence.”
With respect to Ramirez’s argument under Proposition 57,
the trial court stated, “[I]t appears to be clear that [Ramirez] is
precluded from seeking relief because this case has long since
been final on appeal and that simply requesting a Franklin
hearing is not enough to take him outside the general rule that
the statute which benefits the defendant applies to all defendants
whose cases are not final on appeal.”
Ramirez timely appealed.
14
DISCUSSION
A. The Trial Court Erred in Denying Ramirez’s Petition for
Resentencing
1. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill
1437) eliminated the natural and probable consequences doctrine
as a basis for finding a defendant guilty of murder and
significantly limited the scope of the felony murder rule. (People
v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); People v. Gentile
(2020) 10 Cal.5th 830, 842-843, 847-848 (Gentile).) New
section 188, subdivision (a)(3), provides, “Except as stated in
subdivision (e) of Section 189, in order to be convicted of murder,
a principal in a crime shall act with malice aforethought. Malice
shall not be imputed to a person based solely on his or her
participation in a crime.” New section 189, subdivision (e)(3), in
turn, limits the felony-murder rule exception to the malice
requirement to circumstances where the People prove the
defendant “was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
Senate Bill 1437 also provides a procedure in new
section 1170.95 for an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder under Senate Bill 1437’s changes to
sections 188 and 189. (Lewis, supra, 11 Cal.5th at p. 959; Gentile,
supra, 10 Cal.5th at pp. 842-843.) If the section 1170.95 petition
contains all the required information, including a declaration by
15
the petitioner that he or she was convicted of murder and could
not now be convicted of murder because of changes to section 188
or 189 (§ 1170.95, subd. (b)(1)(A)), the court must appoint counsel
to represent the petitioner upon his or her request pursuant to
section 1170.95, subdivision (c). (Lewis, at pp. 957, 959-960.)
Further, upon the filing of a facially sufficient petition, the court
must direct the prosecutor to file a response to the petition and
permit the petitioner to file a reply, and the court must
determine whether the petitioner has made a prima facie
showing that he or she is entitled to relief. (See § 1170.95,
subd. (c); Lewis, at p. 964.)
If the petitioner makes a prima facie showing under
section 1170.95, subdivision (c), the court must issue an order to
show cause and hold a hearing “to determine whether to vacate
the murder conviction and to recall the sentence and resentence
the petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).)
At the hearing, “[t]he prosecutor and the petitioner may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” (§ 1170.95, subd. (d)(3); see
Gentile, supra, 10 Cal.5th at p. 853; People v. Rodriguez (2020)
58 Cal.App.5th 227, 237, review granted Mar. 10, 2021, S266652.)
Section 1170.95, subdivision (d)(3), provides that at the
evidentiary hearing, “the burden of proof shall be on the
prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” Thus, “it is the [trial]
court’s responsibility to act as independent fact finder and
determine whether the evidence establishes a petitioner would be
guilty of murder under amended sections 188 and 189 and is thus
ineligible for resentencing under section 1170.95,
subdivision (d)(3).” (People v. Rodriguez, supra, 58 Cal.App.5th
16at pp. 243-244, review granted; accord, People v. Fortman (2021)
64 Cal.App.5th 217, 224-225, review granted July 21, 2021,
S269228; People v. Clements (2021) 60 Cal.App.5th 597, 603,
review granted Apr. 28, 2021, S267624; but see People v. Duke
(2020) 55 Cal.App.5th 113, 123, review granted Jan. 13, 2021,
S265309.)
“We review the trial court’s fact finding for substantial
evidence.” (People v. Bascomb (2020) 55 Cal.App.5th 1077, 1087
(Bascomb); accord, People v. Clements, supra, 60 Cal.App.5th at
p. 618, review granted.) “We ‘must review “the whole record in
the light most favorable to the judgment” and decide “whether it
discloses substantial evidence . . . such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt.”’”
(Bascomb, at p. 1087 [reviewing for substantial evidence trial
court’s factual finding that petitioner was not eligible
for § 1170.95 relief because he was a major participant and acted
with reckless indifference to human life]; accord, Clements, at
p. 618; People v. Williams (2020) 57 Cal.App.5th 652, 663; see
People v. Ghobrial (2018) 5 Cal.5th 250, 277.) “[W]e look to
whether the prosecution has introduced sufficient evidence of
‘“‘reasonable, credible, and of solid value’”’ to ‘support a finding
beyond a reasonable doubt’ that [petitioner] had the requisite
mental state.” (People v. Clark (2016) 63 Cal.4th 522, 618
(Clark); accord, Williams, at p. 663.)
2. The reckless indifference standard under Banks,
Clark, and Scoggins
Senate Bill 1437 amended section 189 to limit the scope of
the felony-murder rule, requiring the People to prove beyond a
reasonable doubt that the defendant “was a major participant in
17
the underlying felony and acted with reckless indifference to
human life, as described in subdivision (d) of Section 190.2.”
(§ 189, subd. (e)(3); see § 1170.95, subds. (a)(3) & (d)(3).) “Penal
Code section 190.2, subdivision (d), enacted by initiative in 1990,
provides that ‘every person, not the actual killer, who, with
reckless indifference to human life and as a major participant’
aids or abets an enumerated felony, including attempted
[carjacking], that results in death may be convicted of special
circumstance murder and sentenced to death or to life
imprisonment without the possibility of parole. The statute, by
its text, imposes an actus reus requirement, major participation
in the enumerated felony, and a mens rea requirement, reckless
indifference to human life.” (In re Scoggins (2020) 9 Cal.5th 667,
674 (Scoggins); accord, Clark, supra, 63 Cal.4th at p. 615; People
v. Banks (2015) 61 Cal.4th 788, 798 (Banks).) “Section 190.2(d)
was designed to codify the holding of Tison v. Arizona (1987)
481 U.S. 137 . . . , which articulates the constitutional limits on
executing felony murderers who did not personally
kill. Tison and a prior decision on which it is based, Enmund v.
Florida (1982) 458 U.S. 782 . . . , collectively place conduct on a
spectrum, with felony-murder participants eligible for death only
when their involvement is substantial and they demonstrate a
reckless indifference to the grave risk of death created by their
actions.” (Banks, at p. 794; accord, Clark, at p. 616.)
In Banks, Clark, and Scoggins, the Supreme Court clarified
the scope of section 190.2, subdivision (d), enumerating factors
courts must consider in determining whether the totality of
circumstances demonstrates a defendant was a major participant
in the murder and acted with reckless indifference to human
18
life.10 As to whether a defendant acted with reckless indifference
to human life, the court specified the following relevant factors:
“Did the defendant use or know that a gun would be used during
the felony? How many weapons were ultimately used? Was the
defendant physically present at the crime? Did he or she have
the opportunity to restrain the crime or aid the victim? What
was the duration of the interaction between the perpetrators of
the felony and the victims? What was the defendant’s knowledge
of his or her confederate’s propensity for violence or likelihood of
using lethal force? What efforts did the defendant make to
minimize the risks of violence during the felony?” (Scoggins,
supra, 9 Cal.5th at p. 677; accord, Clark, supra, 63 Cal.4th at
pp. 618-622.) “‘“[N]o one of these considerations is necessary, nor
10 Because we conclude the People have not met their burden
to prove Ramirez acted with reckless indifference to human life,
we do not reach whether Ramirez was a major participant in the
attempted carjacking. In Banks, the Supreme Court identified
the relevant factors in determining whether a defendant is a
major participant: “What role did the defendant have in
planning the criminal enterprise that led to one or more deaths?
What role did the defendant have in supplying or using lethal
weapons? What awareness did the defendant have of particular
dangers posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?” (Banks, supra,
61 Cal.4th at p. 803, fn. omitted; accord, Clark, supra, 63 Cal.4th
522, 611.)
19
is any one of them necessarily sufficient.”’” (Scoggins, at p. 677;
accord, Banks, supra, 61 Cal.4th at p. 803.)
As the Scoggins court explained, “Reckless indifference to
human life is ‘implicit in knowingly engaging in criminal
activities known to carry a grave risk of death.’” (Scoggins,
supra, 9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at
p. 808 [“[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient”; reckless
indifference to human life requires “knowingly creating a ‘grave
risk of death’”].) “Reckless indifference ‘encompasses a
willingness to kill (or to assist another in killing) to achieve a
distinct aim, even if the defendant does not specifically desire
that death as the outcome of his actions.’” (Scoggins, at pp. 676-
677, quoting Clark, supra, 63 Cal.4th at p. 617.)
“The crux of that inquiry is ‘[t]he degree of risk to human
life,’ and only evidence suggesting an ‘“elevated . . . risk . . .
beyond those risks inherent in any armed robbery”’ is sufficient
to establish reckless indifference to human life.” (In re Moore
(2021) 68 Cal.App.5th 434, 449 (Moore), quoting Scoggins, supra,
9 Cal.5th at p. 682.) The use of a gun in the commission of the
underlying felony standing alone is not sufficient to support a
finding of reckless indifference. (See Clark, supra, 63 Cal.4th at
p. 617 [observing as to robbery, “while the fact that a robbery
involves a gun is a factor beyond the bare statutory requirements
for first degree robbery felony murder, this mere fact, on its own
and with nothing more presented, is not sufficient to support
a finding of reckless indifference to human life for the felony-
murder aider and abettor special circumstance”].) Participation
“in a garden-variety armed robbery” where “death might be
possible but not probable” is insufficient. (Banks, supra,
20
61 Cal.4th at p. 802; accord, Bascomb, supra, 55 Cal.App.5th at
pp. 1087-1088.)
In addition, “a defendant’s youth is a relevant factor in
determining whether the defendant acted with reckless
indifference to human life.” (Moore, supra, 68 Cal.App.5th at
p. 454; accord, People v. Harris (2021) 60 Cal.App.5th 939, 960,
review granted Apr. 28, 2021, S267802.) This is because
“‘[c]hildren “generally are less mature and responsible than
adults”’ and ‘“often lack the experience, perspective, and
judgment to recognize and avoid choices that could be
detrimental to them” . . . .’” (Moore, at p. 453 [vacating robbery-
murder special-circumstance finding, explaining that even if the
Clark factors supported a finding of reckless indifference for an
adult, the 16-year-old petitioner “lacked ‘“the experience,
perspective, and judgment”’ to adequately appreciate the risk of
death posed by his criminal activities”]; accord, Harris, at p. 960
[reversing summary denial of section 1170.95 petition and
remanding for evidentiary hearing, observing that “given
[petitioner’s] youth at the time of the crime, particularly in light
of subsequent case law’s recognition of the science relating to
adolescent brain development [citations], it is far from clear that
[petitioner] was actually aware ‘of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants’”].) “Thus, ‘“the background and
mental and emotional development of a youthful defendant
[must] be duly considered” in assessing his culpability.’” (Moore,
at p. 453, quoting Miller v. Alabama (2012) 567 U.S. 460, 476.)
21
3. Substantial evidence does not support the superior
court’s finding Ramirez acted with reckless
indifference to human life
Considering the totality of the circumstances in the light
most favorable to the judgment (Bascomb, supra, 55 Cal.App.5th
at p. 1087), substantial evidence does not support the superior
court’s finding Ramirez acted with the requisite mental state of
reckless indifference to human life. There is no evidence Ramirez
was armed during the felony or supplied the sole murder weapon.
Rather, it was Rios who instigated and planned the carjacking,
provided the gun, and fired it. Although Ramirez was aware Rios
had a gun and intended to use it during the carjacking, that is
not sufficient to prove the requisite mental state. (Clark, supra,
63 Cal.4th at pp. 613, 618 [“The mere fact of a defendant’s
awareness that a gun will be used in the felony is not sufficient to
establish reckless indifference to human life.”]; Banks, supra,
61 Cal.4th at p. 809 [aiders and abettors with simple awareness
that confederates were armed and the armed felony carried a risk
of death “lack the requisite reckless indifference to human life”];
Moore, supra, 68 Cal.App.5th at p. 452 [“Although [petitioner]
was aware that [the shooter] had a gun, [petitioner] did not use a
gun himself, and there was no evidence he supplied the gun to
[shooter].”].)
Nor did Ramirez instruct Rios to use lethal force. (See
Clark, supra, 63 Cal.4th at p. 619 [although defendant planned
armed robbery, substantial evidence did not support finding he
acted with reckless indifference to human life where he did not
provide the murder weapon, instruct his confederates to use
lethal force, or know of confederate’s likelihood to kill]; People v.
Williams (2015) 61 Cal.4th, 1244, 1282 [defendant acted with
22
reckless indifference to lives of victims where he instructed other
members of a criminal gang carrying out carjackings to shoot any
resisting victims].) And there is no evidence Ramirez was aware
Rios had a “propensity for violence.” (Clark, at p. 621.) To the
contrary, Ramirez had reason to expect violence was unlikely
given Gallardo’s statement to Rios in the van that “no gun [was]
needed” because the victims were “just Paisas.” As Detective
House testified, Paisas are not rival gang members, and they are
considered by gang members to be “inferior and easy targets for
crime.” Although an armed carjacking carries some risk of death,
Ramirez did nothing to elevate the risk of the underlying felony
beyond those inherent in any armed carjacking. (Id. at p. 623;
Banks, supra, 61 Cal.4th at p. 802.)
Ramirez told Sergeant Hall he did not want to participate
in the carjacking, but Ramirez feared being killed by the gang if
he failed to participate. As Detective House confirmed, a gang
member who fails to support his fellow gang members would be
subject to a violent reprisal by the gang, ranging from a beating
to murder. According to Ramirez, he was not planning to steal
from the victims, instead just to direct them not to return to the
neighborhood. But Rios insisted on a carjacking, then escalated
the plan by getting his firearm. It is true Ramirez did not take
any steps to reduce the risk of violence, but given his reluctance
to participate in the carjacking, the evidence does not show he
acted with a mental state “‘encompass[ing] a willingness to kill
(or to assist another in killing) to achieve a distinct aim’” (the
carjacking). (Scoggins, supra, 9 Cal.5th at pp. 676-677, quoting
Clark, supra, 63 Cal.4th at p. 617.)
Ramirez’s presence at the scene of the shooting bears on his
culpability. (Clark, supra, 63 Cal.4th at p. 619.) Although
23
Ramirez was present at the scene, at the time of the shooting, he
and Gallardo were on the passenger side of the car, and Ramirez
would not have had a meaningful opportunity to intervene when
Rios—on the driver’s side of the vehicle—“[went] crazy” and
began to shoot. “Thus, he was not ‘close enough to exercise a
restraining effect on the crime’ or [Rios].” (Moore, supra,
68 Cal.App.5th at pp. 441, 452 [aider and abettor sitting in
driver’s seat of car while confederate robbed and shot victim
outside passenger side of car could not have restrained sudden
and unprovoked shooting]; accord, Scoggins, supra, 9 Cal.5th at
p. 679 [where defendant lacked control over the actions of his
confederates “once they arrived on the crime scene, especially
given how quickly the shooting occurred,” defendant was less
culpable because he lacked the ability to restrain the crime]; In re
Ramirez (2019) 32 Cal.App.5th 384, 405 [“[T]he evidence shows
petitioner was in close proximity to the shooting, but it does not
show he was close enough to exercise a restraining effect on the
crime or his colleagues.”].)
Likewise, the rapid pace of the crime does not support a
finding of reckless indifference. (Clark, supra, 63 Cal.4th at
pp. 620-621; Moore, supra, 68 Cal.App.5th at p. 452.) The
attempted carjacking was executed quickly, providing Ramirez no
realistic opportunity to intervene before Rios opened fire. As
discussed, Rios approached the vehicle on the driver’s side and
asked for a cigarette, then drew his gun and ordered the
occupants to exit the car. Gallardo and Ramirez approached on
the passenger side, and one of them told Quesada to exit.
Quesada opened the door to comply, but Gutierrez accelerated, in
response to which Rios opened fire. This brief interaction is in
contrast to other cases in which “a murder came at the end of a
24
prolonged period of restraint of the victims by defendant,”
providing a greater opportunity for violence. (Clark, at p. 620.)
Ramirez’s actions after the shooting also do not support a
finding of reckless indifference. Gutierrez’s car initially crashed
into a parked van, then Gutierrez drove several blocks to call for
help. Ramirez fled with Gallardo and did not impede Gutierrez’s
escape. There is no evidence Ramirez had an opportunity to help
Gutierrez after Rios shot at the car or that Ramirez knew
Gutierrez had been wounded by the gunfire. (See In re
Taylor (2019) 34 Cal.App.5th 543, 559 [defendant’s failure to
assist victim was not sufficient evidence of reckless indifference
where “there is no evidence that [defendant] appreciated how
badly [victim] was wounded”]; In re Bennett (2018)
26 Cal.App.5th 1002, 1026 [petitioner’s flight “[did] not support
an inference [he] necessarily understood a killing had occurred”].)
And Ramirez did not celebrate the shooting, instead fleeing with
Gallardo, who told Rios he had made a mess of things and was
“on [his] own.” (See Moore, supra, 68 Cal.App.5th at p. 453
[juvenile petitioner’s failure to aid victim and laughter with his
confederates soon after the shooting was insufficient evidence of
petitioner’s mental state of reckless indifference].)
The trial court based its finding of reckless indifference on
the membership of Ramirez, Rios, and Gallardo in the Varrio
Hawaiian Gardens criminal street gang, which the court found
gave Ramirez both “a pecuniary motive” and “a territorial
motive” to kill. But Banks cautions against relying too heavily on
gang membership where there is no evidence the defendant or his
confederates “had ever participated in shootings, murder, or
attempted murder, or even that any member of their clique had.”
(Banks, supra, 61 Cal.4th at pp. 810-811 [no substantial evidence
25
that getaway driver acted with reckless indifference to human
life where he and two confederates were members of the same
gang but there was no evidence confederates had participated in
prior shootings, murder, or attempted murder, or that getaway
driver knew there would likely be resistance that would provoke
lethal force].) Ramirez told Detective Hall his gang was
territorial and that “people from other areas, other cities . . . [are]
going to get jammed up for being in the neighborhood especially
on Juan Street,” where Ramirez claimed even the police did not
go. At trial Detective Hall did not explain what it meant to be
“jammed up.” In Ramirez’s recorded interview with Detective
Hall, however, Ramirez explained the consequence for visiting
Hawaiian Gardens from the wrong neighborhood was that the
“homeboys will fuckin take all their shit”—not that the outsider
would be shot or killed.
Detective House testified the Varrio Hawaiian Gardens
street gang “is involved in all manner of crimes,” listing the
gang’s crimes he investigated as aggravated assaults, robberies,
carjackings, kidnappings, and theft of vehicles. He testified gang
members gain respect through intimidation, in part by the
commission of crimes. Thus, the gang’s “territorial motive”
included a willingness to commit violent crimes with the goal of
intimating outsiders and the community and furthering the
gang’s reputation. But there is no evidence Ramirez sought to
enhance his reputation in the gang by escalating the attempted
carjacking through the use of lethal force. Ramirez told Detective
Hall that “being a gang member is not about killing fools,”
although the gang would kill under certain circumstances.
Significantly, Ramirez’s youth at the time of the shooting
greatly diminishes any inference he acted with reckless disregard
26
for human life by participating in the attempted carjacking
knowing Rios was armed. As argued by Ramirez, the “‘hallmark
features’” of youth include “‘immaturity, impetuosity, and failure
to appreciate risks and consequences.’” (People v.
Gutierrez (2014) 58 Cal.4th 1354, 1377, quoting Miller v.
Alabama, supra, 567 U.S. at p. 477.) “‘[T]he background and
mental and emotional development of a youthful defendant
[must] be duly considered’ in assessing his culpability.” (Miller,
at p. 476.) “[T]hey ‘are more vulnerable or susceptible to . . .
outside pressures’ than adults . . . .” (J.D.B. v. North
Carolina (2011) 564 U.S. 261, 272.) A juvenile’s immaturity and
failure to appreciate the risks and consequences of his or her
actions bear directly on the question whether the juvenile is
subjectively “‘aware of and willingly involved in the violent
manner in which the particular offense is committed’” and has
“consciously disregard[ed] ‘the significant risk of death his or her
actions create.’” (Scoggins, supra, 9 Cal.5th at p. 677; see Moore,
supra, 68 Cal.App.5th at p. 453; People v. Harris, supra,
60 Cal.App.5th at p. 960.)
The People fail to respond to the argument Ramirez’s youth
should be taken into account in evaluating whether he possessed
the requisite culpable mental state. As we observed in Ramirez’s
direct appeal, “there was evidence to support a finding that
Ramirez was influenced by peer pressure. He told Sergeant Hall
that he did not want to approach the car, but Rios insisted. He
was afraid that if he did not help Rios, the neighborhood would
find out and someone might kill him later.” (Rios, supra,
B218445.) Although “Ramirez knew there was going to be a
carjacking and that Rios was going to use a gun” (ibid.),
Ramirez’s age may well have affected his calculation of the risk of
27
death posed by using the firearm in the carjacking, as well as his
willingness to abandon the crime. The evidence is not sufficient
to prove 15-year-old Ramirez was “subjectively aware that his
actions created a graver risk of death” than any other armed
carjacking. (Moore, supra, 68 Cal.App.5th at p. 454; see
Scoggins, supra, 9 Cal.5th at p. 677.)
The People argue our decision in Ramirez’s direct appeal
supports the trial court’s conclusion Ramirez acted with the
requisite culpable mental state, pointing to our observation that
“[i]t is reasonably inferable from [Ramirez’s] statement [to
Detective Hall] that he was subjectively aware that Rios’s gun
use might escalate from brandishing the gun to firing the gun if
the victims resisted. Moreover, a reasonable person in Ramirez’s
position would have foreseen that victims in a car would attempt
to drive away rather than be carjacked, and Rios would shoot at
the car to stop them.” (Rios, supra, B218445.) We made these
statements in the context of our affirmance of Ramirez’s
conviction of shooting at an occupied motor vehicle, explaining
there was “substantial evidence from which a reasonable trier of
fact could conclude that shooting at an occupied motor vehicle
was a natural and probable consequence of the attempted
carjacking.” (Ibid.) We reasoned, “It is reasonably inferable that
an armed confederate engaged in the commission of a robbery
will use his weapon during the course of the robbery, to overcome
the victim’s resistance, to effect an escape, or even accidentally.”
(Ibid.)
Our conclusion on direct appeal—that there was sufficient
evidence Ramirez was guilty of the crime of shooting at an
occupied vehicle as a natural and probable consequence of aiding
and abetting the attempted armed carjacking—does not mean
28
substantial evidence supports the trial court’s finding Ramirez
acted with reckless indifference to human life. “Liability under
the natural and probable consequences doctrine ‘is measured by
whether a reasonable person in the defendant’s position would
have or should have known that the charged offense was a
reasonably foreseeable consequence of the act aided and
abetted.’” (People v. Medina (2009) 46 Cal.4th 913, 920.) By
contrast, “[r]eckless indifference to human life has a subjective
and an objective element.” (Scoggins, supra, 9 Cal.5th at p. 677.)
“As to the subjective element, ‘[t]he defendant must be aware of
and willingly involved in the violent manner in which the
particular offense is committed,’ and he or she must consciously
disregard ‘the significant risk of death his or her actions create.’”
(Ibid.) “As to the objective element, ‘“[t]he risk [of death] must be
of such a nature and degree that, considering the nature and
purpose of the actor’s conduct and the circumstances known to
him [or her], its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in
the actor’s situation.”’” (Ibid.)
Further, in Rios, we did not evaluate the sufficiency of the
evidence to prove Ramirez’s conscious disregard for the
significant risk of death created by his actions. And although we
concluded there was evidence of Ramirez’s awareness of the
foreseeable risk Rios would fire shots at Gutierrez’s vehicle,
“‘[a]wareness of no more than the foreseeable risk of death
inherent in any [violent felony] is insufficient’ to establish
reckless indifference to human life; ‘only knowingly creating a
“grave risk of death”’ satisfies the statutory requirement.”
(Scoggins, supra, 9 Cal.5th at p. 677.)
29
The People’s reliance on People v. Law (2020)
48 Cal.App.5th 811, review granted July 8, 2020, S262490, and
People v. Williams, supra, 57 Cal.App.5th 652 is misplaced. In
Law, the defendant was armed during a home invasion robbery
and held the victims at gunpoint while the defendant and his
accomplice searched the apartment. The defendant stood by
while his accomplice pistol-whipped and physically struggled
with one victim before shooting and killing him. (Law, at
pp. 816-817.) In affirming the trial court’s determination the
defendant was ineligible for resentencing under section 1170.95
because he was a major participant who acted with reckless
indifference to human life, the court observed the defendant had
the ability to stop his accomplice’s violent behavior or to help the
victim after he was shot. (Id. at p. 825.) In People v. Williams,
the defendant and two juvenile confederates planned and
executed a robbery, during which the defendant either fired the
murder weapon at the fleeing victim or held it shortly before or
after it was fired, then fled the scene without calling for
assistance or attempting to render aid to the victim who later
died. (Williams, at pp. 657, 664.) In affirming the trial court’s
finding the defendant was ineligible for resentencing under
section 1170.95, the court explained the defendant’s conduct
showed he shared in his confederates’ actions and mental state,
and he had the opportunity to act as a restraining influence as to
the robbery and his juvenile accomplices. (Id. at p. 664.) In
contrast to the defendants in Law and Williams, Ramirez was not
armed and had little ability to intervene given the swiftness of
the events and his distance from Rios, who stood on the opposite
side of Gutierrez’s vehicle.
30
We therefore reverse the trial court’s order denying
Ramirez’s petition for resentencing under section 1170.95 and
remand for the court to enter an order granting Ramirez’s
petition and vacating his murder conviction.
B. Ramirez Is Entitled to the Benefit of Proposition 57 on
Remand
Ramirez contends that on remand he should be resentenced
by a juvenile court pursuant to Proposition 57 and Senate Bill
1391. We agree and direct the trial court on remand to transfer
the matter to the juvenile court for resentencing.
1. Proposition 57 and Senate Bill 1391
“Proposition 57, passed in the November 2016 general
election . . . , requires prosecutors to commence all cases involving
a minor in juvenile court.” (O.G. v. Superior Court of Ventura
County (2021) 11 Cal.5th 82, 87 (O.G.); accord, People v. Superior
Court (Lara) (2018) 4 Cal.5th 299, 305-306 (Lara) [“‘Among other
provisions, Proposition 57 amended the Welfare and Institutions
Code so as to eliminate direct filing by prosecutors.’”]; J.N. v.
Superior Court (2018) 23 Cal.App.5th 706, 711 [“Proposition 57
terminated the prosecutor’s ability to file a criminal complaint
against a juvenile in the criminal court without first obtaining
authority from a juvenile court judge to treat the juvenile as an
adult.”].)
“As originally enacted, Proposition 57 allowed prosecutors
to move to transfer some minors as young as 14 from juvenile
court to adult criminal court. [Senate Bill 1391], enacted in 2018,
amended Proposition 57 to prohibit minors under the age of 16
from being transferred to adult criminal court. (See Welf. & Inst.
31
Code, § 707, subd. (a)(1)-(2), as amended by Stats. 2018, ch. 1012,
§ 1.)” (O.G., supra, 11 Cal.5th at p. 87 [upholding the
constitutionality of Senate Bill 1391’s amendment to Proposition
57]; accord, People v. Castillero (2019) 33 Cal.App.5th 393, 399
[under Senate Bill 1391 “individuals who were under 16 years of
age when they committed any criminal violation . . . may no
longer be transferred to adult/criminal court at all”].)
2. Retroactivity of Proposition 57 and Senate Bill 1391
“In order to determine if a law is meant to apply
retroactively, the role of a court is to determine the intent of the
Legislature, or in the case of a ballot measure, the intent of the
electorate.” (Lara, supra, 4 Cal.5th at p. 307; accord, People v.
Conley (2016) 63 Cal.4th 646, 656.) In In re Estrada (1965)
63 Cal.2d 740 (Estrada), the Supreme Court held that statutory
amendments that mitigate punishment for an offense apply
retroactively to a petitioner who at the time of enactment had
committed the offense but had not yet been sentenced. (Id. at
pp. 742-743, 748.) The court reasoned, “When the Legislature
amends a statute so as to lessen the punishment it has obviously
expressly determined that its former penalty was too severe and
that a lighter punishment is proper as punishment for the
commission of the prohibited act. It is an inevitable inference
that the Legislature must have intended that the new statute
imposing the new lighter penalty now deemed to be sufficient
should apply to every case to which it constitutionally could
apply. The amendatory act imposing the lighter punishment can
be applied constitutionally to acts committed before its passage
provided the judgment convicting the defendant of the act is not
final.” (Id. at p. 745.) Thus, under Estrada, “‘in the absence of
32
contrary indications, a legislative body ordinarily intends for
ameliorative changes to the criminal law to extend as broadly as
possible, distinguishing only as necessary between sentences that
are final and sentences that are not.” (Lara, at p. 308; accord,
People v. Padilla (2020) 50 Cal.App.5th 244, 251, review granted
Aug. 26, 2020, S263375 (Padilla) [“Thus, under Estrada, absent
indications of the legislative body’s contrary intent, courts
presume it intended an ameliorative statute to apply
retroactively to all nonfinal judgments.”].)
Applying this rule in Lara, the Supreme Court concluded
Proposition 57 constituted an ameliorative change to the criminal
law, which the voters intended “‘to extend as broadly as
possible.’” (Lara, supra, 4 Cal.5th at p. 309.) Accordingly,
Proposition 57 applies retroactively to “all juveniles charged
directly in adult court whose judgment was not final at the time
it was enacted.” (Lara, at p. 304.) The Lara court remanded for a
retroactive transfer hearing for the juvenile court to determine
whether the defendant would have been fit for treatment under
juvenile law, and if so, for the juvenile court to treat the
convictions as juvenile adjudications and impose an appropriate
disposition. (Id. at pp. 310, 313.)
Senate Bill 1391, in turn, “effectively broadens the
ameliorative benefit of Proposition 57 to 14 and 15 year olds by
prohibiting prosecuting attorneys from moving to transfer
individuals who commit certain offenses when they were 14 or 15
years old to adult court, unless they were ‘not apprehended prior
to the end of juvenile court jurisdiction.’ . . . Accordingly, Senate
Bill No. 1391 applies retroactively to defendants whose
judgments are not yet final.” (People v. Hwang (2021)
60 Cal.App.5th 358, 365, review granted Apr. 14, 2021, S267274
33
(Hwang); People v. Superior Court (I.R.) (2019) 38 Cal.App.5th
383, 392-393 [Senate Bill 1391 applies retroactively to nonfinal
judgments under Lara].)
3. Determination of whether Proposition 57 and Senate
Bill 1391 apply retroactively to Ramirez’s
resentencing is ripe for review
Courts may only decide cases that are ripe, and therefore
justiciable. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 998
[“[T]he ripeness requirement prevents courts from issuing purely
advisory opinions, or considering a hypothetical state of facts in
order to give general guidance rather than to resolve a specific
legal dispute.”]; Pacific Legal Foundation v. California Coastal
Com. (1982) 33 Cal.3d 158, 170 [“The ripeness requirement, a
branch of the doctrine of justiciability, prevents courts from
issuing purely advisory opinions.”].) “‘“A controversy is ‘ripe’
when it has reached, but has not passed, the point that the facts
have sufficiently congealed to permit an intelligent and useful
decision to be made.”’” (Alliance for Responsible Planning v.
Taylor (2021) 63 Cal.App.5th 1072, 1082; see People v.
Garcia (2018) 30 Cal.App.5th 316, 328-329 [defendant’s
contention exclusion of certain offenders from youth offender
parole hearings under section 3051 was unconstitutional was not
ripe because juvenile court had not yet decided as part of transfer
hearing under Proposition 57 whether defendant’s case should be
transferred to adult criminal court for disposition because “[i]f
the case is not transferred, the constitutionality of section 3051
will be irrelevant”].)
The People contend Ramirez’s request for resentencing by
the juvenile court under Proposition 57 and Senate Bill 1391 is
34
not ripe because the superior court has not yet addressed his
request for a transfer hearing in the first instance. The People
argue that if we reverse the superior court’s finding of
ineligibility for resentencing, we should remand to the superior
court to consider Ramirez’s earlier transfer motion, and “[i]f the
superior court denie[s] appellant’s request, then this second claim
would be ripe for this Court to consider on appeal.” However, the
People have not identified any facts absent from the record that
are necessary to allow “‘“an intelligent and useful decision to be
made”’” by this court on Ramirez’s motion. (Alliance for
Responsible Planning v. Taylor, supra, 63 Cal.App.5th at
p. 1082.) To require Ramirez to litigate this issue on remand and
potentially file a second appeal from the trial court’s denial of his
motion would prejudice Ramirez, who likely would be released as
part of a juvenile disposition. Moreover, this issue is properly
before us because the question whether Ramirez is entitled to the
ameliorative benefits of Proposition 57 and Senate Bill 1391 on
remand will affect whether we direct the trial court to resentence
Ramirez or transfer the matter to the juvenile court for
resentencing.
4. Proposition 57 and Senate Bill 1391 apply
retroactively to Ramirez’s resentencing
As discussed, both Proposition 57 and Senate Bill 1391
apply to judgments that were not final at the time of their
enactment. (Lara, supra, 4 Cal.5th at p. 304; Hwang, supra,
60 Cal.App.5th at p. 365, review granted.) Ramirez’s judgment
became final in 2012 (before enactment of Proposition 57 and
Senate Bill 1391), when the United States Supreme Court denied
35
his petition for a writ of certiorari.11 (See People v. Vieira (2005)
35 Cal.4th 264, 306 [“[F]or the purpose of determining retroactive
application of an amendment to a criminal statute, a judgment is
not final until the time for petitioning for a writ of certiorari in
the United States Supreme Court has passed.”].) However,
Ramirez contends that under section 1170.95, subdivision (d)(3),
on remand he “‘shall be resentenced on the remaining charges,’”
which renders his sentence nonfinal for purposes of the
ameliorative benefits of Proposition 57 and Senate Bill 1391.
This contention is persuasive.
Almost all Courts of Appeal that have considered whether
Proposition 57 applies retroactively when a criminal court
resentences a defendant as to all or part of a previously final
sentence imposed on a defendant who was a juvenile at the time
of his or her offense have required the criminal court to transfer
the case to the juvenile court for a juvenile transfer hearing or a
juvenile adjudication. (See Hwang, supra, 60 Cal.App.5th at
pp. 366-367, review granted [transfer to juvenile court for
juvenile adjudication and disposition required by Senate Bill
1391 upon recall of sentence under section 1170,
subdivision (d)(1), where defendant was 15 years old at the time
of his offense]; People v. Lopez (2020) 56 Cal.App.5th 835, 839,
review granted Jan. 27, 2021, S265936 (Lopez) [transfer hearing
required upon recall of sentence under section 1170,
subdivision (d)(1), to correct sentence in light of intervening
California Supreme Court decision]; Padilla, supra,
50 Cal.App.5th at pp. 253-255, review granted [transfer hearing
required following successful petition for writ of habeas corpus];
but see People v. Federico (2020) 50 Cal.App.5th 318, 327-328,
11 Ramirez v. California (2012) 567 U.S. 952 [No. 11-7424].
36
review granted Aug. 26, 2020, S263082 [no transfer required
upon recall of sentence under section 1170, subdivision (d)(1)].)
Although Division Two of the Fourth Appellate District
concluded in People v. Federico, supra, 50 Cal.App.5th at
pages 327 to 328, review granted, that Proposition 57 did not
apply retroactively upon resentencing from a previously final
sentence, a different panel of the same court in People v.
Montes (2021) 70 Cal.App.5th 35 retracted the court’s “previous
position in Federico . . . based on the analyses in Padilla, Lopez,
and Hwang, which we find persuasive” and held transfer to the
juvenile court was required on resentencing following a recall of
sentence under section 1170, subdivision (d)(2). As the court in
Montes explained, “On further reflection, we now conclude a
resentencing under section 1170, subdivision (d), results in a new
sentence—the judgment is no longer final—which entitles the
defendant to the ameliorative benefits of Proposition 57.”
(Montes, at pp. 47-48.)
The Courts of Appeal in Padilla, supra 50 Cal.App.5th at
pages 252 to 253, review granted, and Lopez, supra, 56
Cal.App.5th at pages 842 to 843, review granted, in concluding
the defendants were entitled to a transfer hearing because their
sentences were no longer final, relied on the Supreme Court’s
decision in People v. Jackson (1967) 67 Cal.2d 96 (Jackson). We
agree the Supreme Court’s decision in Jackson supports a finding
Ramirez’s sentence, like those at issue in Padilla and Lopez, is no
longer final. In Jackson, the Supreme Court had granted a
petition for writ of habeas corpus, reversed the defendant’s death
sentence, and remanded for a retrial of the penalty phase, after
which the defendant was again sentenced to death. (Id. at p. 97.)
In his direct appeal from his penalty retrial he sought to raise
37
guilt- and penalty-phase claims based on the United States
Supreme Court’s decision in Escobedo v. Illinois (1964) 378 U.S.
478, which was decided after the defendant’s initial judgment
became final, but before his penalty retrial. (Jackson, at p. 98.)
The California Supreme Court rejected the defendant’s attempt
to challenge his judgment of guilt based on the intervening
decision in Escobedo but allowed him to challenge the penalty
under Escobedo, explaining the court had reversed only the
penalty: “The scope of this retrial is a matter of state procedure
under which the original judgment on the issue of guilt remains
final during the retrial of the penalty issue and during all
appellate proceedings reviewing the trial court’s decision on that
issue.” (Jackson, at pp. 98-99.)
The Padilla court reasoned, “Jackson therefore established
that a collateral proceeding may reopen the finality of a sentence
for retroactivity purposes, even while the conviction remains
final.” (Padilla, supra, 50 Cal.App.5th at p. 253, review granted.)
The court observed Proposition 57 “affects [the defendant’s]
sentencing, independent of its potential effect on his convictions,”
because “a juvenile disposition is far more advantageous to the
defendant than a criminal sentence for the same offense: indeed,
‘adult criminal sentencing is the biggest disadvantage to being
“tried in adult court . . . .”’” (Padilla, at p. 254.) “Because
Proposition 57’s primary ameliorative effect is on a juvenile
offender’s sentence, independent of the convictions, we conclude it
applies retroactively to appellant’s nonfinal sentence and
requires that he receive a transfer hearing.” (Id. at p. 255.) The
court considered and rejected the People’s argument “it is
unlikely the voters intended the provisions of Proposition 57 to
apply to those, like appellant, far removed from their teenage
38
years and for whom treatment as a juvenile would likely result in
release from custody,” relying on the Lara court’s pronouncement
that “Proposition 57 should apply ‘“as broadly as possible.”’”
(Padilla, at p. 255.)
Similar to Padilla, the Court of Appeal in Lopez concluded
Proposition 57 applied retroactively to the defendant’s
resentencing under section 1170, subdivision (d), after his
sentence was recalled in light of intervening Supreme Court
authority. (Lopez, supra, 56 Cal.App.5th at pp. 839, 845, review
granted.) The Lopez court reasoned, “[T]he mere existence of the
resentence makes the original sentence irrelevant for the
purposes of Lara. Applying Lara’s conclusion that Proposition 57
applies retroactively to any judgment that is not final to
defendant’s new sentence, we conclude the new sentence is not
final and so he is entitled to a retroactive transfer hearing in
juvenile court. [¶] . . . The original sentence can no longer be
considered final for Estrada purposes when it has been recalled
and modified by the new sentence.” (Lopez, at pp. 845-846.)
Although Padilla and Lopez involved resentencing after a
successful petition for a writ of habeas corpus and after recall
under section 1170, subdivision (d), respectively, their reasoning
applies with equal force to a defendant’s resentencing following a
successful petition for resentencing under section 1170.95.
Section 1170.95, subdivision (d)(1), requires the superior court
upon finding the defendant is eligible for resentencing “to vacate
the murder conviction and to recall the sentence and resentence
the petitioner on any remaining counts in the same manner as if
the petitioner had not been previously been sentenced, provided
that the new sentence, if any, is not greater than the initial
sentence.” (Italics added.) This language is identical to that in
39
section 1170, subdivision (d)(1), which the Lopez court observed
“means that the resentencing court should not consider itself
bound by any aspect of the previous sentence.” (Lopez, supra,
56 Cal.App.5th at p. 846, review granted.)
We reject the People’s argument that Estrada’s
presumption of retroactivity should not be extended “to reopened
judgments” because it would result in an “uneven, and sometimes
arbitrary, application of new ameliorative laws.” The Supreme
Court recently rejected a similar argument made by the People in
objecting to a defendant receiving the benefit of an ameliorative
statute after pleading guilty and being placed on probation, then
appealing after his probation was revoked and a prison sentence
imposed. (See People v. McKenzie (2020) 9 Cal.5th 40, 49.) The
McKenzie court held the defendant’s criminal proceeding was not
final under Estrada at the time the new statute took effect
because the time for petitioning for a writ of certiorari in the
United States Supreme Court following the defendant’s appeal of
the prison sentence had not passed. (McKenzie, at p. 45.) The
McKenzie court rejected the People’s argument that defendants
who do not appeal their convictions and then successfully
complete probation are worse off than probationers who violate
their probation and have their probation revoked, explaining
“[t]hese policy arguments did not persuade us in Estrada not to
apply ameliorative revisions to defendants who have already
committed criminal acts if the revisions take effect before their
‘cases’ are ‘reduced to final judgment.’” (McKenzie, at p. 49.)
As the Lopez court observed as to the People’s argument
that defendants resentenced under section 1170,
subdivision (d)(1), would obtain a windfall from application of
Proposition 57, “On its face, this argument runs contrary to the
40
electorate’s stated intent that Proposition 57 ‘“shall be liberally
construed to effectuate its purposes,”’ one of which is to ‘“[s]top
the revolving door of crime by emphasizing rehabilitation,
especially for juveniles.”’” (Lopez, supra, 56 Cal.App.5th at
p. 849, review granted, quoting Lara, supra, 4 Cal.5th at p. 309.)
Likewise, retroactive application of Proposition 57 and Senate
Bill 1391 to a defendant’s postjudgment resentencing furthers the
proposition’s and legislation’s legitimate goal of reducing the
adult prison population. (O.G., supra, 11 Cal.5th at pp. 94-95;
accord, Hwang, supra, 60 Cal.App.5th at p. 366, review granted
[“Senate Bill No. 1391 furthers the intent of Proposition 57 ‘by
narrowing the class of minors who would be subject to a lengthy
prison sentence in an adult institution.’”].)
Finally, retroactive application of Proposition 57 and
Senate Bill 1391 to Ramirez’s resentencing is consistent with the
full resentencing rule, under which “when part of a sentence is
stricken on review, on remand for resentencing ‘a full
resentencing as to all counts is appropriate, so the trial court can
exercise its sentencing discretion in light of the changed
circumstances.’” (People v. Buycks (2018) 5 Cal.5th 857, 893-894
[defendant whose conviction became final just over a week before
Proposition 47 took effect was entitled on remand to a full
resentencing, including treatment of his petty theft with a prior
conviction as a misdemeanor under Proposition 47]; accord,
People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [full
resentencing rule “allows a court to revisit all prior
sentencing decisions when resentencing a defendant”].) The
Courts of Appeal in Lopez and Montes applied the full
resentencing rule to require a juvenile transfer hearing under
Proposition 57 of otherwise final judgments as to sentences
41
recalled under section 1170, subdivision (d). (See Montes, supra,
70 Cal.App.5th at p. 48 [providing defendant with juvenile
transfer hearing under Proposition 57 for resentencing under
section 1170, subd. (d)(2), “is consistent with the full resentencing
rule described in Buycks”]; Lopez, supra, 56 Cal.App.5th at
p. 847, review granted [“The full resentencing rule therefore
obligated the trial court here to give defendant a transfer hearing
upon his resentencing.”].)
Because Ramirez was 15 at the time of the offenses,
pursuant to the changes made by Senate Bill 1391 to Welfare and
Institutions Code section 707, subdivision (a), Ramirez’s
remaining counts are not subject to a motion to transfer to adult
criminal court. Therefore, we remand with directions for the trial
court to transfer the matter to the juvenile court. The juvenile
court shall treat Ramirez’s remaining convictions as juvenile
adjudications and impose an appropriate disposition.
42
DISPOSITION
The order denying Ramirez’s petition for resentencing
under section 1170.95 is reversed. The matter is remanded with
directions to enter a new order granting Ramirez’s petition and
vacating his murder conviction and to transfer the matter to the
juvenile court. The juvenile court is directed to treat Ramirez’s
remaining convictions as juvenile adjudications and to impose an
appropriate disposition.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
43