People v. Ramirez-Perez CA2/8 ( 2021 )

Filed 12/21/21 P. v. Ramirez-Perez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B305377
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA099103)
v.
JESSE RAMIREZ-PEREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Upinder S. Kalra, Judge. Affirmed.
Robert E. Boyce, 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, Senior
Assistant Attorney General, Jason Tran and Shezad H. Thakor,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
Jesse Ramirez-Perez (Defendant) appeals the judgment
entered following a jury trial in which he was convicted of murder
in the second degree. (Pen. Code, § 187, subd. (a).) The jury
further found true the use of a deadly weapon enhancement.
(Pen. Code, § 12022, subd. (b)(1).) The trial court imposed an
aggregate sentence of 15 years to life. Defendant contends that
the trial court erred in: (1) admitting evidence of a prior assault
1
under Evidence Code sections 352 and 1101, subdivision (b); and
(2) failing to instruct on self-defense and the offense of voluntary
manslaughter. We disagree and affirm.
FACTUAL BACKGROUND
In the afternoon of October 3, 2018, Defendant bought a
blue and black Defender brand folding knife at a store in Venice.
Later that evening, at a park in Santa Monica, he used a blue
and black Defender brand folding knife to stab Eric Perrine, a
seventeen-year-old homeless person, once in the lower left chest
area. Though he was found alive and received medical treatment
from police and paramedics, Perrine succumbed to his wound on
the way to the hospital.
That Defendant stabbed and killed Perrine was not
seriously disputed at trial. Indeed, evidence of these facts was
overwhelming. Perrine identified Defendant as his assailant to
police officers. Officers found Defendant fleeing the scene and
witnessed him throwing the knife into a planter box when they
confronted him. After arresting Defendant, officers recovered the
knife. DNA testing found Defendant’s and Perrine’s DNA on the
1 All further section references are to the Evidence Code
unless otherwise specified.
2
knife’s handle and Perrine’s blood on its blade.
Disputes did arise, however, with respect to the issues
which are now the subject of this appeal. First, the defense
opposed the prosecution’s effort to introduce evidence of a prior
assault committed by Defendant. A few months before killing
Perrine, Defendant struck another homeless man in the face with
a two-foot length of rebar while the victim was sleeping. The
victim survived the attack but suffered a significant wound to his
face that bled profusely. A witness identified Defendant as the
assailant and Defendant was later convicted of felony assault by
means likely to inflict great bodily injury. The trial court allowed
the jury to hear evidence of the conduct but not the conviction.
Prior to the relevant testimony, and on the jury forms, the trial
court instructed that such evidence could only be considered for
whether “the defendant acted with the intent required in th[e]
case; or the defendant had a plan or scheme to commit the
murder alleged in th[e] case.”
Second, the defense argued that the jury should be
instructed on self-defense and voluntary manslaughter on the
basis that substantial evidence indicated Defendant and Perrine
may have struggled before the stabbing. Evidence noted by the
defense in support of this theory included the possibility that
Defendant’s blood was also on the knife blade; that Perrine’s
DNA was found on the handle of the knife; and that Defendant
was bleeding from one hand and had his own blood on his face at
the time of his arrest. Notably, Defendant did not testify at trial
nor indicate to the arresting officers that he had acted in self-
defense. Moreover, a medical examination revealed no injuries to
Perrine’s body other than the knife wound inflicted by Defendant,
and Defendant had no other wounds on his body. The trial court
3
declined to instruct on self-defense or voluntary manslaughter.
The jury convicted on second degree murder. The defense
moved for a new trial on the grounds underlying this appeal and
the trial court denied the motion. This appeal followed.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion In
Admitting Evidence of Defendant’s Recent Prior
Assault On Another Homeless Person
We review the decision of the trial court to admit evidence
for abuse of discretion. (People v. Rivera (2019) 7 Cal.5th 306,
339–340.) “Under this standard, a trial court’s ruling will not be
disturbed, and reversal of the judgment is not required, unless
the trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest
miscarriage of justice.” (People v. Wilson (2021) 11 Cal.5th 259,
304.)
Defendant contends the trial court erred in admitting
evidence that he struck and injured a sleeping homeless person
at a park in Santa Monica in April of 2018, because this conduct
was not relevant to his intent or plan when stabbing Perrine six
months later. Defendant further contends that, even if relevant,
the probative value of the uncharged act evidence was
outweighed by the potential for prejudice. We disagree.
Section 1101, subdivision (a) prohibits evidence of
character, including “specific instances of [a person’s] conduct” to
prove conduct on a specific occasion. However, evidence of
another crime or other act is not rendered inadmissible by this
rule where relevant to prove a fact other than the person’s
disposition to commit such an act. Such unprohibited uses
include, but are not limited to, motive and plan. (§ 1101, subd.
4
(b).) Like all other evidence, evidence of uncharged acts not
prohibited by section 1101 is still properly excluded “if its
probative value is substantially outweighed by the probability
that its admission will . . . create substantial danger of undue
prejudice . . . .” (§ 352.)
Against this statutory backdrop, California courts consider
the following three factors in assessing the admissibility of
proffered uncharged act evidence: (1) the materiality of the fact
sought to be proved or disproved; (2) the tendency of the
uncharged act to prove or disprove the material fact; and (3) the
existence of any rule or policy requiring the exclusion of relevant
evidence. (People v. Dryden (2021) 60 Cal.App.5th 1007, 1016
(Dryden).)
A. Defendant’s Intent Is Material.
Defendant concedes that “intent to kill, malice and
premeditation were in dispute” at his trial. As intent is a
disputed element the People were obligated to prove to show
Defendant committed the charged offense of murder, it is plainly
material. This is so even though the act of stabbing was
conceded. (See People v. Gregg (1968) 266 Cal.App.2d 389, 392
[prior act evidence “admissible in cases where the proof of
defendant’s intent is ambiguous, as when he admits the acts and
denies the necessary intent because of mistake or accident”].)
B. The April 2018 Incident Tends to Prove
Defendant Acted With the Requisite Intent for
Murder.
Uncharged act evidence is not admissible if it lacks “some
clear connection between the [uncharged act] and the one
charged so that it may logically be inferred that if the defendant
is guilty of one offense, he must be guilty of the other.” (People v.
5
Poulin (1972) 27 Cal.App.3d 54, 65.) “A trial court must ‘examine
the precise elements of similarity between the offenses with
respect to the issue for which the evidence is proffered and satisfy
itself that each link in the chain of inference between the former
and the latter is reasonably strong.’ [Citation.] ‘If the connection
between the uncharged offense and the ultimate fact in dispute is
not clear, the evidence should be excluded.’ [Citation.]” (Dryden,
supra, 60 Cal.App.5th at p. 1018.) The degree of similarity
required depends upon the purpose for which the evidence is
offered. “[T]he ‘least degree of similarity (between the uncharged
act and the charged offense) is required in order to prove intent.’ ”
(People v. Molano (2019) 7 Cal.5th 620, 665 (Molano).)
Defendant contends that his prior commission of an assault
by means likely to inflict great bodily injury cannot be used to
show the intent for murder because assault is a general intent
crime requiring only willfulness, whereas murder requires
specific intent.2 Appellant apparently misreads Dryden’s
2 Defendant also asserts: “[T]he jury instructions permitted
the jury to consider . . . and the prosecutor to argue that
[Defendant’s] uncharged ‘willful’ assault [in April 2018] proved
[Defendant] had the intent to kill Perrine. As stated by the
prosecutor, ‘[t]he intent was the same.’ [Citation.] This was
nothing more than telling the jury they could find [Defendant]
guilty of murder of Perrine if they found by a preponderance of
the evidence that [Defendant] acted ‘willfully’ in assaulting [his
earlier victim].”
We read the standard form jury instructions as properly
limiting the permissible use of the uncharged act evidence and
specifying the applicable standard of proof and mens rea to
convict Defendant of Perrine’s murder. In any event, as
6
obligation to examine the “elements of similarity between the
offenses” as requiring similarity between the crimes’ statutory
elements as opposed to the conduct giving rise to the crimes.
(Dryden, supra, 60 Cal.App.5th at p. 1018.) The California
Supreme Court considered and rejected this argument in Molano,
supra, 7 Cal.5th at page 665.
In that case, the trial court admitted evidence that
defendant had choked his wife to unconsciousness after an
argument about his drug use—conduct for which he pled guilty to
corporal injury on a spouse—in his trial for murder of another
woman who he strangled with a leather strap, purportedly at her
request during consensual intercourse, resulting in her death.
(Molano, supra, 7 Cal.5th at pp. 629–630, 665.)
Molano argued on appeal that corporal injury on a spouse
was a general intent crime whereas the charged crime of murder
required specific intent. The Molano court found no error in
admitting the corporal injury on a spouse evidence, noting that
Molano’s conduct towards his spouse, who survived, could
support an inference that he acted with conscious disregard for
the danger to the lives of both women. (Molano, supra, 7 Cal.5th
Respondent notes, Defendant fails to properly raise a
prosecutorial error claim or an instructional error claim with
respect to the requisite intent or burden of proof. As such, the
court need not consider such claims. (See People v. Ham (1970)
7 Cal.App.3d 768, 783, disapproved on another ground in People
v. Compton (1971) 6 Cal.3d 55, 60, fn. 3 [“Where a point is merely
asserted by counsel without any argument of or authority for its
proposition, it is deemed to be without foundation and requires
no discussion”].)
7
at p. 665.) “The fortuity that [his spouse] survived the
strangulation does not diminish the legitimate inference that
defendant harbored a similar intent when he strangled [the
decedent], and that her death was not accidental.” (Ibid.) Our
colleagues in Division Seven previously reached a similar
conclusion. (See People v. Walker (2006) 139 Cal.App.4th 782,
805 [“fact that [the victim of charged offense] but not [the victim
of uncharged assault offense] was murdered d[id] not negate the
similarity of the two incidents” for purposes of § 1101, subd. (b)
analysis].)
Defendant also argues that the facts of the April 2018
assault and the October 2018 killing were too dissimilar for
evidence of the former to be introduced against him at trial for
the latter. We find no abuse of discretion in the trial court’s
determination that the incidents were sufficiently similar to
support admission under section 1101, subdivision (b). Both
attacks occurred in Santa Monica, in parks, against homeless
individuals, and within approximately six months of one another.
In each instance, Defendant used a weapon to inflict a single
wound to the victim and then fled. Although the wounds were to
different parts of the victims’ bodies (a solid steel bar strike to the
head and a knife stab to the chest), each support an inference
that Defendant acted deliberately, with conscious disregard for
the danger to the lives of both victims. Such an inference tends
to support that Defendant harbored the requisite intent to
convict him of murder in the killing of Perrine.3 (See CALCRIM
3 Defendant repeatedly ignores that malice is the culpable
state of mind required for murder, not “intent to kill.” While
8
No. 520 [jury required to find defendant “deliberately acted with
conscious disregard for human life in order to convict for second
degree murder”].)
Whether or not all trial courts would have found sufficient
similarity to admit the uncharged act, we are satisfied that the
trial court here did not err under our deferential standard of
review.4
Because we find no error in the conclusion that
section 1101 does not render the prior assault evidence
inadmissible to show intent to commit murder, we do not reach
whether the evidence was also exempted under a common plan
theory. (See People v. Chism (2014) 58 Cal.4th 1266, 1307, fn. 13
[any error in basis for omitting evidence is “of no consequence”
where evidence was properly admitted on other grounds].)
intent to kill can satisfy the malice requirement, malice may be
implied even in the absence of manifested and deliberate intent.
(Pen. Code, §§ 187, subd. (a), 188, subd. (a)(1)-(2).) This may be a
product of Defendant’s mischaracterization of the crime with
which he was charged as “first degree murder.” No degree of
murder was indicated in the charging document filed against
him, which specified the charge only as that of “MURDER, in
violation of PENAL CODE SECTION 187(a).”
4 This conclusion is bolstered by the result in Molano where
significant differences existed between the charged murder and
the uncharged assault, yet error was not found in admitting
evidence of the latter. (See Molano, supra, 7 Cal.5th at pp. 629–
630, 665 [charged murder occurred during sex act with non-
spouse by means of leather ligature; uncharged assault occurred
during argument with spouse by means of choking].)
9
C. No Rule or Policy Required Exclusion of the April
2018 Assault Evidence.
“Because ‘ “substantial prejudicial effect [is] inherent in
[such] evidence,” ’ uncharged acts are admissible
under . . . section 352 only if they have substantial probative
value. [Citations.]” (Dryden, supra, 60 Cal.App.5th at p. 1018.)
“ ‘[T]he probative value of the uncharged offense evidence must
be substantial and must not be largely outweighed by the
probability that its admission would create a serious danger of
undue prejudice, of confusing the issues, or of misleading the
jury.’ [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 637.)
Defendant’s argument that evidence of the April 2018
assault is unduly prejudicial rests largely on his incorrect
assessment of its relevance. As we note above, the Defendant’s
intent was squarely at issue in the trial and his April 2018
conduct was probative of his intent when stabbing Perrine six
months later. When an attack appears unprovoked, the trier of
fact may be hesitant to conclude from circumstantial evidence the
perpetrator acted with the required intent. This makes evidence
of a recent decision by the perpetrator to engage in an arguably
similar unprovoked attack highly probative. We further note
that evidence of the prior assault, which was not fatal, was not
unduly inflammatory as compared to the undisputed evidence
that Defendant stabbed and killed Perrine. (Cf. Molano, supra,7 Cal.5th at p. 666 [“The [uncharged] spousal assault, while
certainly blameworthy, was not unduly inflammatory compared
to the gruesome murder [charged]”].) The trial court properly
found that section 352 did not compel exclusion of the prior
assault.
10
II. The Trial Court Did Not Err In Declining to Instruct
On Self-Defense and Voluntary Manslaughter
We review de novo the trial court’s decision on whether to
instruct on self-defense or a lesser included offense. (People v.
Cole (2004) 33 Cal.4th 1158, 1206; People v. Cook (2006) 39
Cal.4th 566, 596.) Defendant asks that we reverse the trial court
for failing to instruct on self-defense and involuntary
manslaughter because substantial evidence of a struggle between
Defendant and Perrine was before the court. We disagree.
A defendant is entitled to a self-defense instruction when
the court is presented with substantial evidence to support the
instruction. (People v. Lemus (1988) 203 Cal.App.3d 470, 476
(Lemus).) For these purposes, “[s]ubstantial evidence” is
“evidence from which a jury composed of reasonable [people]
could have concluded that the particular facts underlying the
instruction did exist. [Citations.]” (Id. at p. 477, internal
quotations omitted.) “If the evidence should prove minimal and
insubstantial, however, the court need not instruct on its effect.”
(People v. Flannel (1979) 25 Cal.3d 668, 684.)
Similarly, a court must instruct on a lesser included offense
where the accused presents “substantial evidence,” i.e. “evidence
sufficient to ‘deserve consideration by the jury,’ that is, evidence
that a reasonable jury could find persuasive. [Citation].” (People
v. Barton (1995) 12 Cal.4th 186, 204, fn. 8.) “Speculative,
minimal, or insubstantial evidence is insufficient to require an
instruction on a lesser included offense.” (People v. Simon, supra,
1 Cal.5th at p. 132; see also People v. Williams (2015) 61 Cal.4th
1244, 1264 [“ ‘[s]peculation is insufficient to require the giving of
an instruction on a lesser included offense’ ”].)
11
While Defendant cites authorities that a court is not
permitted to weigh or assess the credibility of the evidence
offered, it is not bound to view such evidence in a vacuum.
(See, e.g., People v. Simon (2016) 1 Cal.5th 98, 133–134 (Simon)
[conducting comprehensive review of witness accounts of murder
to conclude defendant was not entitled to self-defense
instruction]; People v. Williams, supra, 61 Cal.4th at p. 1264
[defendant’s contention that murder lacked premeditation
contrary to evidence that he orchestrated it]; People v. Manriquez
(2005) 37 Cal.4th 547, 588 [defendant’s statement that first shot
was accidental did not support manslaughter instruction where
victim was shot five times].)
To show entitlement to a self-defense instruction, a
defendant must show substantial evidence of an honest and
reasonable belief of the need to defend oneself. (Simon, supra,
1 Cal.5th at p. 132 [citing People v. Elmore (2014) 59 Cal.4th 121,
133–134].)
The lesser included offense of voluntary manslaughter is
also known as imperfect self-defense. (Simon, supra, 1 Cal.5th at
p. 132.) To show entitlement to an involuntary manslaughter
instruction, a defendant must show substantial evidence that he
acted in the actual but unreasonable belief that he was in
imminent danger of great bodily injury or death. (Ibid.)
A. Evidence Supporting Defendant’s Self-Defense
Theories Was Insubstantial.
Defendant points to the same set of facts as comprising
“substantial evidence”: (1) that Perrine “threatened or attacked
[D]efendant,” entitling Defendant to a self-defense instruction;
and (2) that Defendant “acted either out of provocation or self
12
defense,” entitling him to an involuntary manslaughter
instruction.
These facts, stripped of Defendant’s unsupported
embellishments, are as follow: (1) at the time of his arrest,
Defendant had his own blood on his left hand and left cheek;
(2) at the time of his arrest, Defendant had an injury to his left
hand5; (3) defensive wounds are usually found between the
elbows and the tips of the fingers, including on the hands;
(4) Defendant was not excluded as a contributor to the blood
found on the blade of the knife used to stab Perrine; and
(5) Perrine’s contact DNA was found on the handle of the knife,
contributing approximately 9 percent as compared to Defendant’s
90 percent.6
From these facts, Defendant argues that a struggle had
ensued prior to the killing; that “Perrine had the knife first and
threatened [Defendant] with the knife”; that “Perrine stabbed
5 While there is general testimony suggesting Defendant had
wounds on both hands, specific testimony on the topic indicates
that he had fresh wounds only on his left hand. The Santa
Monica forensic supervisor identified Defendant’s left hand as the
only hand where she could see “actual blood” and the arresting
officer noted blood visible just on his “left knuckle and finger
area.” A DNA sample from the back of Defendant’s right hand
tested negative for blood.
6 Without citation, Defendant asserted in his opening brief
that “[b]lood was found in many different areas of the crime scene
suggesting a struggle,” which was attributable “to both Perrine
and [Defendant].” Record citations Defendant offers in his reply
do not support the statements and we disregard them.
13
Ramirez with the knife”; and that “[Defendant] suffered cuts to
his hands consistent with defense wounds from a knife.”
Defendant’s arguments are nothing more than speculation that
do not amount to “substantial evidence.”
The full record permits no reasonable conclusion that
Defendant acted in self-defense pursuant to a fight or struggle.
First, Perrine’s body had just one injury at the time he was
discovered: the stab wound inflicted by Defendant. Second, the
only wound evident on Defendant’s person at the time of his
arrest was one or more “abrasions” on his hand or hands. 7
Contrary to Defendant’s assertion, there is no evidence that this
is “consistent with defense wounds from a knife,” or even
consistent with defensive wounds at all. The record testimony is
that defensive wounds are in the nature of “bruises,” “incised
wounds,” “stab wounds,” or “lacerations.” Defendant’s hand
abrasions are none of these and no reasonable juror could
conclude they were caused by a knife blade as Defendant posits.8
7 Defendant at one point states that he had “injuries to his
cheek.” This is not reflected in the record and contrary to
unrebutted testimony that there was no face wound but rather a
blood smear on one of his cheeks.
8 Our Supreme Court long ago rejected the argument that a
minor wound to a defendant’s finger supported a self-defense
instruction on the theory that it showed a struggle over a knife:
“The only defense seems to be a speculative one; that the
defendant wrested the knife from the hands of the deceased, and
stabbed him in self-defense; and this is not supported by one
scintilla of evidence, other than at the time the killing took place,
one of the witnesses observed a scratch, or cut, on the knuckle of
14
In the absence of any injuries to Defendant or his victim
indicating a fight or struggle, the presence of Perrine’s contact
DNA on the handle of the knife is not substantial evidence that
Perrine wielded the weapon at Defendant and Defendant then,
without sustaining any knife cut or causing any defensive
wounds to Perrine, (a) disarmed Perrine; (b) remained in good
faith fear of imminent injury or death at Perrine’s hands; and
(c) turned the knife on Perrine to inflict a clean, single,9 mortal
wound. This is especially so considering Defendant had
committed an unprovoked assault against a similar victim in a
similar location. In short, it would take an absolute suspension
of disbelief to infer from Defendant’s proffered evidence that he
acted in self-defense. A reasonable jury could not be expected to
reach such a conclusion.
the [defendant], which was bleeding; whether cut by himself in
the scuffle, or not, no one knew or pretended to say. So trifling a
circumstance is scarcely a sufficient pretext for eliminating the
whole criminal code; and instructions in civil and criminal trials
should be drawn with some slight reference to the case made by
the evidence.” (People v. Roberts (1856) 6 Cal. 214, 217.)
9 Defendant opines that the single stab wound “suggest[s] a
deadly act triggered by provocation or self defense rather than
malice.” Defendant’s record citations for this proposition support
only the fact that Perrine died of a single stab wound; not that
the nature of his injury was indicative of the circumstances
leading up to it. We are aware of no generally accepted theory of
human behavior that those who defend themselves with a knife
they have wrestled away from their attacker normally do so in a
careful, limited, surgical fashion.
15
Defendant offers just one case, Lemus, supra, 203
Cal.App.3d 470, to support his entitlement to a self-defense
instruction under the facts presented. This case is easily
distinguishable on the grounds that the defendant testified that
the victim threatened, hit, and attempted to stab him before the
killing. (Id. at p. 476.) Error was found because the trial court
discounted the credibility of the defendant’s direct testimony
supporting the requested instructions. (Id. at p. 478.)
No such error occurred in this case. Indeed, the Defendant
elected not to testify and offer a self-defense narrative. While it
is not necessary that a defendant testify in order to establish he
acted in self-defense, the absence of testimony from the accused
or a percipient witnesses renders it extremely difficult to prove
the defendant’s beliefs in the moment of the act. (Cf. Simon,
supra, 1 Cal.5th at p. 134 [“[Defendant] also did not testify, and
there is no evidence he ever told anyone that he had acted out of
fear”].) It is not enough for a defendant to conjure up a self-
defense scenario that is not directly contradicted by the evidence.
The defendant must point to “substantial evidence” supporting
the self-defense conclusion, as Lemus, supra, requires.
Defendant refers the court to no authority to suggest that
circumstantial evidence of the quantum and nature identified in
the record below is sufficient to support the requested self-
defense instruction, and we decline to so find.10
10 In light of our rejection on the merits of Defendant’s
arguments that the prior assault should have been excluded, and
that self-defense/voluntary manslaughter instructions should
have been given, his argument that the cumulative impact of
16
DISPOSITION
The judgment is affirmed.
HARUTUNIAN, J.*
We concur:
GRIMES, Acting P. J.
STRATTON, J.
those rulings requires reversal as a denial of due process also
fails. (People v. Anderson (2001) 25 Cal.4th 543, 606.)
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
17