People v. Ramirez CA2/2 ( 2021 )

Filed 12/14/21 P. v. Ramirez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B308809
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA071730)
v.
ISRAEL RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Richard M. Goul, Judge. Reversed and
remanded with directions.
Julie Caleca, 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 Allison H. Chung, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
In 2009, defendant and appellant Israel Ramirez was
convicted by a jury of first degree murder (Pen. Code, § 187, subd.
(a)),1 finding true the allegation that he personally used a knife in
the commission of the offense (§ 12022, subd. (b)(1)). He was
sentenced to 26 years to life in state prison.
In 2019, defendant filed a petition for resentencing
pursuant to section 1170.95. After appointing counsel to
represent defendant and considering briefing and argument by
both parties, the trial court denied defendant’s petition without
issuing an order to show cause and holding an evidentiary
hearing pursuant to section 1170.95, subdivision (d).
Defendant timely filed a notice of appeal. He argues that
because he established a prima facie case that he is potentially
eligible for resentencing relief, the trial court should have issued
an order to show cause and held an evidentiary hearing. The
People agree.
In accordance with the parties’ briefs, we reverse and
remand the matter for the trial court to issue an order to show
cause and to hold an evidentiary hearing pursuant to section
1170.95, subdivision (d).
FACTUAL BACKGROUND
“On September 4, 2006, Rosaura Gutierrez (Rosaura) heard
her son, Randolfo Gutierrez (Gutierrez), arguing with someone
outside their Long Beach apartment. She went outside and saw
that Gutierrez was arguing with Cesar Villagrana (Villagrana) in
the alley. Rosaura heard her son say, ‘If you’re going to stab me,
do it already.’ [Defendant] and a girl were also in the alley.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
Rosaura saw that Villagrana was angry, and she asked what was
going on, but no one paid attention to her. Rosaura saw
[defendant] throw something to Villagrana. Rosaura stepped in
between Villagrana and her son, and Villagrana pushed her
aside. The girl with Villagrana spoke, and when Gutierrez
turned to her, Villagrana attacked him. Villagrana reached over
Rosaura’s shoulder and hit Gutierrez with something shiny.
Villagrana then grabbed Gutierrez by the neck with the help of
[defendant] and the girl. Rosaura saw [defendant] doing
something to her son, but she could not see his hands because her
head was behind her son’s back. Rosaura tried to grab her son by
the arm, but he kept slipping away because there was so much
blood on his arm. As Villagrana held Gutierrez in a headlock
with his right hand, he rained blows upon him with his left hand.
Rosaura could feel the blows because she was trying to pull
Gutierrez away from Villagrana by holding onto Gutierrez’s
stomach. Rosaura did not know if Villagrana was hitting
Gutierrez or cutting him, but she herself was cut in the arms.”
(People v. Ramirez (Sept. 15, 2010, B218429) [nonpub. opn.], at
pp. 2–3, fn. omitted.)
Another witness testified that he saw Villagrana “stab[]
Gutierrez while the other man and the woman held Gutierrez by
his arms.” (People v. Ramirez, supra, B218429, at p. 4.) Another
witness saw one of the assailants holding the victim, while the
other one hit him with a jabbing motion. (Id. at p. 5.)
Gutierrez died as a result of multiple stab wounds. (People
v. Ramirez, supra, B218429, at p. 3.)
Defendant was charged with murder, and the matter
proceeded to a jury trial. The prosecutor argued extensively that
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defendant could be convicted of murder under the natural and
probable consequences doctrine.
Among other things, the jury was instructed that defendant
could be liable for murder as the actual killer, as a direct aider
and abettor, or as an aider and abettor under the natural and
probable consequences doctrine with the target crime of assault.2
The jury convicted defendant of first degree murder.
(People v. Ramirez, supra, B218429, at p. 2.)
2 The jury was instructed with CALCRIM No. 403: “To prove
that the defendant is guilty of murder, the People must prove
either that the defendant committed murder, that the defendant
aided and abetted murder, or that: 1, the defendant is guilty of
committing, or aiding and abetting the commission of, assault
with a deadly weapon; 2, During the commission of assault with a
deadly weapon, a coparticipant in that assault with a deadly
weapon committed the crime of murder; and 3, Under all the
circumstances, a reasonable person in the defendant’s position
would have known that the commission of the murder was a
natural and probable consequence of the commission of the
assault with a deadly weapon. A coparticipant in a crime is the
perpetrator or anyone who aided and abetted the perpetrator. It
does not include a victim or innocent bystander. A natural and
probable consequence is one that a reasonable person would
know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider
all the circumstances established by the evidence. If the murder
was committed for a reason independent of the common plan to
commit the assault with a deadly weapon, then the commission of
murder was not a natural and probable consequence of assault
with a deadly weapon. To decide whether the crimes of murder
and assault with a deadly weapon were committed, please refer
to the separate instructions that I will give you on those crimes.”
(People v. Ramirez, supra, B218429, at pp. 17–18.)
4
Defendant appealed, and on September 15, 2010, we
affirmed the judgment with directions to amend the abstract of
judgment and correct the sentence and number of credit days.
(People v. Ramirez, supra, B218429, at p. 25.)
PROCEDURAL BACKGROUND
On September 16, 2019, defendant filed a petition to be
resentenced pursuant to section 1170.95. He averred that
because he had been convicted of murder under either a felony
murder theory or the natural and probable consequences
doctrine, he was entitled to resentencing relief. The trial court
appointed counsel and the matter was briefed.
On September 21, 2020, the trial court entertained oral
argument on defendant’s petition. It then took the matter under
submission.
On October 21, 2020, the trial court denied defendant’s
petition without issuing an order to show cause. It found that
defendant did not qualify for relief under section 1170.95 because
he was one of two actual killers and aided and abetted the
murder with intent to kill by stabbing the victim in the back. “As
[defendant] could be found guilty of murder under current law, he
has not made a prima facie showing that he is eligible for
[section] 1170.95 relief and the petition is denied.”
Defendant’s timely appeal ensued.
DISCUSSION
I. Standard of Review
We review the trial court’s order de novo. (See Martinez v.
Brownco Construction Co. (2013) 56 Cal.4th 1014, 1018
[application of law to undisputed facts]; A.S. v. Miller (2019) 34
Cal.App.5th 284, 290 [statutory interpretation].)
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II. Relevant Law
Section 1170.95 provides a mechanism whereby people
“who believe they were convicted of murder for an act that no
longer qualifies as murder following the crime’s redefinition in
2019[] may seek vacatur of their murder conviction and
resentencing by filing a petition in the trial court.” (People v.
Drayton (2020) 47 Cal.App.5th 965, 973 (Drayton), overruled in
part on other grounds in People v. Lewis (2021) 11 Cal.5th 952,
963 (Lewis).)
In order to obtain resentencing relief, the petitioner must
file a facially sufficient section 1170.95 petition. (§ 1170.95,
subds. (a)(1)-(3), (b)(1)(A).) If a petitioner does so, then the trial
court proceeds to section 1170.95, subdivision (c), to assess
whether the petitioner has made a prima facie showing for relief,
thereby meriting an evidentiary hearing. (Lewis, supra, 11
Cal.5th at p. 957.) When making this determination, “the trial
court should assume all facts stated in the section 1170.95
petition are true. [Citation.] The trial court should not evaluate
the credibility of the petition’s assertions, but it need not credit
factual assertions that are untrue as a matter of law . . . . [I]f the
record ‘contain[s] facts refuting the allegations made in the
petition . . . the court is justified in making a credibility
determination adverse to the petitioner.’ [Citation.] However,
this authority to make determinations without conducting an
evidentiary hearing . . . is limited to readily ascertainable facts
from the record (such as the crime of conviction), rather than
factfinding involving the weighing of evidence or the exercise of
discretion (such as determining whether the petitioner showed
reckless indifference to human life in the commission of the
crime).” (Drayton, supra, at p. 980; see also Lewis, supra, 11
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Cal.5th at pp. 970–971.) In other words, a defendant is ineligible
for relief only where the record conclusively shows that the jury
actually relied—and the defendant’s murder conviction actually
rests—upon a theory of liability that is unaffected by section
1170.95.
If the trial court determines that the petitioner has made a
prima facie showing of entitlement to relief, it must issue an
order to show cause. (§ 1170.95, subd. (c).) “[U]nless the parties
waive the hearing or the petitioner’s entitlement to relief is
established as a matter of law by the record[,]” the trial court
then holds a hearing at which “the burden of proof . . . shift[s] to
the prosecution to prove, beyond a reasonable doubt, that the
petitioner is ineligible for resentencing.” (Drayton, supra,
47 Cal.App.5th at p. 981; see also § 1170.95, subd. (d)(1)-(3).)
III. Defendant is entitled to an order to show cause evidentiary
hearing
As the parties agree, defendant made a prima facie
showing of eligibility. After all, he filed a section 1170.95 petition
averring that (1) an information had been filed against him
allowing the prosecution to proceed under a theory of murder
under the felony murder rule or the natural and probable
consequences doctrine; (2) he was convicted of first degree
murder; and (3) he could not now be convicted of murder
following the amendments to sections 188 and 189. And, nothing
in the record demonstrates that as a matter of law defendant is
not eligible for relief. In fact, the jury was instructed on the
natural and probable consequences doctrine and defendant could
have been convicted on that theory. Although the jury found a
personal knife use allegation true under section 12022,
subdivision (b)(1), the jury could have reached that finding even
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if it determined that defendant merely displayed the weapon in a
menacing manner. Thus, it is not evident as a matter of law that
defendant could be convicted of murder under the recently
amended statutes.
The trial court denied defendant’s petition on the grounds
that defendant was one of two actual killers and aided and
abetted the murder with intent to kill by stabbing the victim in
the back. But to have made that determination, the trial court
had to have engaged in some sort of “factfinding involving the
weighing of evidence or the exercise of discretion.” (Drayton,
supra, 47 Cal.App.5th at p. 980.) That is not permitted at the
prima facie stage of the proceedings. (Ibid.) Under these
circumstances, an evidentiary hearing—where the People bear
the burden of proof beyond a reasonable doubt—is required.3
Because defendant satisfied the prima facie stage of section
1170.95, subdivision (c), the trial court was required to set the
matter for an order to show cause, with an evidentiary hearing.
In so holding, “[w]e express no opinion about [defendant’s]
ultimate entitlement to relief following the hearing. (§ 1170.95,
subd. (d)(2).)” (Drayton, supra, 47 Cal.App.5th at p. 983.)
3 As the People point out in their respondent’s brief, while
“the record at present overwhelmingly supports” the fact that
defendant is not entitled to be resentenced, that finding cannot
be made until after an evidentiary hearing.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed. On remand, the trial court is directed to issue an order
to show cause (§ 1170.95, subd. (c)) and to hold an evidentiary
hearing to determine whether to vacate defendant’s murder
conviction and resentence him (§ 1170.95, subd. (d)).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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