People v. Ramos CA2/8 ( 2022 )

Filed 12/29/22 P. v. Ramos CA2/8
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B304575
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA079316)
v.
OSVALDO RAMOS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Bruce F. Marrs, Judge. Reversed.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Idan Ivri and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
__________________________
On August 2, 2021, we affirmed the summary denial of
Osvaldo Ramos’s petition for resentencing under Penal Code1
section 1170.95,2 which creates a procedure for convicted
murderers who could not be convicted under the law as amended
to retroactively seek relief. (People v. Lewis (2021) 11 Cal.5th
952.) Ramos was convicted in 2009 of the first degree murder of
Mychael Whittaker (§ 187, subd. (a)) and the jury found true the
special circumstance allegation that Ramos murdered Whittaker
while engaged in the commission of a robbery (§190.2, subd.
(a)(17)) along with other gang and firearm enhancement
allegations. Ramos argued the trial court erroneously denied his
petition because the true finding on the robbery-murder special-
circumstance allegation no longer supports his felony murder
conviction. He argued the California Supreme Court’s decisions
in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v.
Clark (2016) 63 Cal.4th 522 (Clark) substantially changed the
law related to felony murder and so he is entitled to an
evidentiary hearing on his resentencing petition.
On October 26, 2022, the California Supreme Court ordered
us to vacate our decision and “reconsider the cause in light of
People v. Strong (2022) 13 Cal.5th 698. (Cal. Rules of Court, rule
8.528(d).)” We now do so and reverse the order of the trial court
denying Ramos’s petition.
1 Further section references are to the Penal Code.
2 Effective June 30, 2022, section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10)
We refer to the current section 1172.6 in this opinion.
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FACTS
We recite the relevant facts and procedural history from
our prior opinion in this case:
Whittaker was killed on April 8, 2007, after suffering four
gunshot wounds to his head and face. He was found lying
partially inside of a car and partially on the street with his
pockets inside out. Investigating officers found a baggie
containing what was later identified as crack cocaine in the car.
A partial palm print from the car’s rear passenger window
matched Ramos’s.
In late May 2007, officers interviewed Ramos about the
murder. He initially claimed he did not know Whittaker, but
later admitted he was involved in Whittaker’s death. Ramos told
officers he and two other men—Edwin Cruz and Cesar
Miranda—ordered drugs from Whittaker and planned to rob him.
When Whittaker came to their location, Ramos walked to the car
while Cruz and Miranda hid in an alley and watched. After
Ramos walked up to Whittaker’s car, Cruz came out of the alley
and shot Whittaker in the head. Ramos said Cruz had shown
him a gun before Whittaker arrived. Ramos insisted he never
went to the passenger side of Whittaker’s car, where two gun
cartridge casings were found.
At trial, a gang expert opined Ramos was an active member
of the 12th Street gang. Victor Tejeda3 testified he, Cruz, and
Ramos were members of the 12th Street Pomona gang.
Sometime after April 2007, Cruz told Tejeda he and Ramos
3 Tejeda testified in Ramos’s first trial, which resulted in a
mistrial. Tejeda was later killed in an altercation with the police
and his trial testimony was read to the second jury.
3
robbed and killed Whittaker. Cruz bragged to Tejeda, “We killed
that nigger.” Cruz did not say who shot Whittaker. Cruz said
Whittaker tried to jump out of the car after he was shot but
Ramos stopped him and tried to keep the car door closed. Cruz
told Tejeda he and Ramos robbed Whittaker and emptied out his
pockets, then smoked the drugs they found. On cross-
examination, Tejeda admitted that the 12th Street gang had been
trying to kill him. Cruz was involved in an incident in which
Tejeda was shot and left for dead by his own gang.
Ramos testified on his own behalf. He denied he was a
gang member. He testified Cruz shot Whittaker and then
threatened him with the gun to find Whittaker’s drugs. Cruz
also told him not to say anything about the murder. Cruz’s
friends beat Ramos in the county jail because he told police what
had happened.
The jury found Ramos guilty of one count of first degree
murder (§ 187, subd. (a).) The jury also found true the following:
a special circumstance allegation that Ramos murdered
Whittaker while engaged in the commission of robbery in
violation of sections 211 and 212.5 (§ 190.2, subd. (a)(17)); a gang
enhancement allegation (§ 186.22, subd. (b)(1)(C)); an allegation
that a principal personally and intentionally discharged a firearm
which proximately caused Whittaker’s death (§ 12022.53, subds.
(d), (e)(1)); an allegation that a principal personally and
intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1));
and an allegation that a principal used a firearm (§ 12022.53,
subds. (b), (e)(1)). The jury was unable to reach a verdict on the
special circumstance allegation that Ramos intentionally killed
Whittaker while Ramos was an active participant in a criminal
street gang and the murder was carried out to further the
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activities of the criminal street gang within the meaning of
section 190.2, subdivision (a)(22). The trial court declared a
mistrial as to that allegation. The court sentenced Ramos to a
total prison term of life without the possibility of parole on the
murder count plus 25 years to life on the firearm enhancement.
Ramos appealed, asserting various evidentiary errors
required reversal. We affirmed the judgment. (People v. Ramos
(Mar. 28, 2011, B215127) [nonpub. opn.].) On March 13, 2019,
Ramos filed a petition for resentencing pursuant to section
1172.6. He asserted he did not actually kill the victim or possess
the requisite mental state to be guilty of murder as redefined by
Senate Bill No. 1437 (Senate Bill 1437). The court appointed
counsel to represent Ramos. The People opposed Ramos’s
petition, arguing Senate Bill 1437 was unconstitutional and
Ramos did not qualify for resentencing because the jury found he
was a major participant in the underlying felony who acted with
reckless indifference to human life. Counsel filed a reply to the
opposition. The trial court found Senate Bill 1437
unconstitutional and denied Ramos’s petition on that ground.
Ramos timely appealed.
DISCUSSION
I. Senate Bill 1437
Effective January 1, 2019, Sentate Bill 1437 “was enacted
to ‘amend the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)”
(People v. Martinez (2019), 31 Cal.App.5th 719, 723.) Senate Bill
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1437 amended sections 188 and 189 and added “section 1170.95
[now 1172.6], which provides a procedure by which those
convicted of murder can seek retroactive relief if the changes in
law would affect their previously sustained convictions. (Stats.
2018, ch. 1015, §§ 2–4.)” (Martinez, at pp. 722–723.)
Section 1172.6 creates a multi-step procedure for a
defendant to petition for resentencing pursuant to Senate Bill
1437. A defendant may petition for resentencing if he or she was
“convicted of felony murder or murder under a natural and
probable consequences doctrine” and the following conditions are
met: (1) A charging document was filed against the petitioner
that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences
doctrine; (2) The petitioner was convicted of first or second degree
murder following a trial or an accepted plea; and (3) The
petitioner could “not presently be convicted of murder or
attempted murder because of changes to Section[s] 188 or 189”
made by Senate Bill 1437. (§ 1172.6, subd. (a).) Under section
1172.6, subdivision (b), the petition must include: a declaration
from the petitioner that he or she is eligible for relief under the
statute, the superior court’s case number and year of conviction,
and a statement as to whether the petitioner requests
appointment of counsel. (Id., subd. (b)(1).) If any of the
information is missing from the petition and “cannot be readily
ascertained by the court, the court may deny the petition without
prejudice to the filing of another petition and advise the
petitioner that the matter cannot be considered without the
missing information.” (Id., subd. (b)(2).)
After the defendant files and serves a complete petition, the
“prosecutor shall file and serve a response. The petitioner may
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file and serve a reply within 30 days after the prosecutor’s
response is served. These deadlines shall be extended for good
cause. After the parties have had an opportunity to submit
briefings, the court shall hold a hearing to determine whether the
petitioner has made a prima facie case for relief. If the petitioner
has made a prima facie showing that the petitioner is entitled to
relief, the court shall issue an order to show cause. If the court
declines to make an order order to show cause, it shall provide a
statement fully setting forth its reasons for doing so.” (§ 1172.6,
subd. (c).)
Should the court issue an order to show cause, it must hold
a hearing to determine whether to vacate the murder conviction.
(§ 1172.6, subd. (d)(1).) If the court vacates the murder
conviction, the court must resentence the defendant on the
remaining counts, or, if no target offense was charged, the
“petitioner’s [murder] conviction shall be redesignated as the
target offense or underlying felony for resentencing purposes.”
(Id., subd. (d)(3), (e).)
II. Ramos Is Entitled to a Prima Facie Review of His
Petition for Resentencing
Ramos argues the trial court erred in finding Senate Bill
1437 unconstitutional. The People concede Senate Bill 1437 is
not unconstitutional. We agree. (People v. Superior Court
(Gooden) (2019) 42 Cal.App.5th 270; People v. Lamoureux (2019)
42 Cal.App.5th 241, 246.)
In our prior opinion we also decided that the jury’s true
finding on the felony murder special circumstance precludes
relief even after the passage of Senate Bill 1437. Here, the
second jury in Ramos’s case found him guilty of first degree
felony murder and found true the robbery-murder special
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circumstance in section 190.2, subdivision (a)(17). In doing so,
the jury necessarily found Ramos was the actual killer, acted
with intent to kill, or acted as a major participant in the
underlying felony with reckless indifference to human life.
Senate Bill 1437 amended section 189, subdivision (e) to now
require these same three theories in order to be found guilty of
felony murder. Accordingly, we concluded the true finding for the
felony murder special circumstance precluded relief even after
the passage of Senate Bill 1437.
After we rejected appellant’s claims in our previous
opinion, our Supreme Court decided People v. Strong, supra,
13 Cal.5th 698 (Strong). In Strong, the Court held that a true
finding on a felony murder special circumstance allegation
rendered prior to the Banks and Clark decisions does not
preclude, as a matter of law, resentencing relief under section
1172.6. (Strong, at p. 710.) The court reasoned Banks and Clark
represent the type of significant change in law traditionally found
to warrant a re-examination of earlier litigated decisions.
(Strong, supra, 13 Cal.5th at pp. 717-718.)
Here, the judgment on the true findings for the special
circumstance allegation was entered in 2009, before Banks and
Clark were decided. The People concede that remand is required
and we agree. Accordingly, we reverse the trial court’s summary
denial of appellant’s 1172.6 petition and remand the matter to
the trial court to conduct a new prima facie hearing and, if
appropriate, issue an order to show cause and set an evidentiary
hearing under section 1172.6, subdivision (d).
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III. Ramos Is Not Entitled to Relief Under Senate Bill
No. 620
In his reply brief, Ramos requests we remand for the trial
court to exercise its discretion to strike or dismiss the firearm
enhancement pursuant to Senate Bill No. 620 (Senate Bill 620)
(2017–2018 Reg. Sess.), which amended section 12022.53,
subdivision (h) to provide trial courts with this discretion. Senate
Bill 620, effective January 1, 2018, applies retroactively only to
judgments that were not yet final on its effective date. (People v.
Harris (2018) 22 Cal.App.5th 657, 659.) The Legislature could
have, but did not, “provide a specific procedure via petition or
motion to reopen final cases for resentencing.” (Id. at p. 662.)
A case is final when the time for petitioning the United States
Supreme Court for a writ of certiorari expires. (See People v.
Vieira (2005) 35 Cal.4th 264, 306; see also Bowles v. Russell
(2007) 551 U.S. 205, 212.)
Ramos was convicted in 2009 and we affirmed his
conviction in 2011. He does not contend his case is not final.
Indeed, the judgment against him was final years before the
January 1, 2018 effective date of Senate Bill 620. Under these
circumstances, we decline to remand for the trial court to exercise
its discretion under Senate Bill 620.
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DISPOSITION
The order is reversed. The trial court is directed to find a
prima facie showing, issue an order to show cause, and conduct
an evidentiary hearing pursuant to section 1172.6,
subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
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