People v. Ramirez CA2/5 ( 2022 )

Filed 8/24/22 P. v. Ramirez CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B312908
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. VA006667)
ARMANDO RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Joseph R. Porras, Judge. Affirmed.
Pensanti & Associates and Louisa Pensanti for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, and Chung L. Mar and Amanda V. Lopez,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Armando Ramirez (defendant)
appeals from the trial court’s denial of his petition for
resentencing under Penal Code section 1172.6 (former Penal
Code section 1170.95).1 Defendant’s trial jury was not instructed
on either the felony murder doctrine or the natural and probable
consequences doctrine, and we consider whether that means the
trial court cannot have erred in denying the section 1172.6
petition.
I. BACKGROUND
A. The Murder2
On New Year’s Day in 1991, a feud between members of the
Varrio Norwalk and Chivas criminal street gangs erupted when a
Varrio Norwalk member entered Chivas territory and shot a
member of the Chivas gang. Defendant—a member of the Chivas
gang—and fellow gang member Anthony Lupe Chavez (Chavez)
met with other Chivas members and discussed going to Varrio
Norwalk territory to shoot a Varrio Norwalk member in
retaliation.
Defendant and Chavez stole a car and drove into Varrio
Norwalk territory, with Chavez armed with a shotgun. They
drove by a park known to be a gathering point for Varrio Norwalk
members. Varrio Norwalk member Jordy Rodriguez (Rodriguez)
saw defendant and shouted “Norwalk!” Defendant yelled
1
Undesignated statutory references that follow are to the
Penal Code.
2
The background summary of the offense conduct is drawn
from the opinion resolving defendant’s direct appeal. (People v.
Ramirez (Dec. 14, 1993, B071160) [nonpub. opn.].)
2
back, “Fuck Norwalk, Chivas” and drove toward Rodriguez.
Chavez aimed the shotgun at Rodriguez from the car and fired
four or five times, killing Rodriguez.
When defendant and Chavez arrived back in Chivas
territory, defendant parked and covered the car while Chavez
disposed of the gun. Other Chivas members were awaiting their
return, and defendant told them he and Chavez had shot
someone from Varrio Norwalk.
Defendant was ultimately arrested for the crime and, in an
interview with homicide detectives, admitted to driving the car
and to knowing Chavez had a shotgun and wanted to retaliate for
the earlier shooting of a Chivas member. Defendant, however,
denied knowing Chavez actually planned to shoot anyone.
B. Charges, Trial, and Conviction
Defendant was charged with one count of murder in
violation of Penal Code section 187, subdivision (a). The
information further alleged a principal was armed with a shotgun
in the commission of the offense. A trial jury found defendant
guilty of second degree murder. He was sentenced to 16 years to
life in prison.
This court affirmed on direct appeal. (People v. Ramirez,
supra, B071160.) Among other things, the panel rejected
defendant’s argument that the trial court erred in allowing the
prosecutor to misstate the law on principles of aiding and
abetting. In resolving that issue, the panel’s opinion states the
jury was instructed using CALJIC Nos. 3.00 and 3.01, the latter
of which specified that a person aids or abets a crime where he or
she “with the intent or purpose of committing, encouraging or
facilitating the commission of the crime by act or advice, aids,
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promotes, encourages, or instigates the commission of the crime.”
(People v. Ramirez, supra, B071160.)
C. Defendant’s Section 1172.6 Petition
Defendant filed an in propria persona section 1172.6
petition for resentencing in February 2019. He asserted the
prosecution during his murder trial had been allowed to proceed
under a theory of felony murder, he had been convicted of second
degree murder, and he was not the actual killer.
The People opposed the petition. The People argued
defendant was ineligible for section 1172.6 relief because he was
a direct aider and abettor who acted with the intent to assist his
fellow gang member in the murder of an enemy gang member.
The People also emphasized defendant was not prosecuted under
either a felony murder or a natural and probable consequences
theory of guilt.
Defendant—this time represented by counsel—filed a new
section 1172.6 petition for resentencing in April 2021.3 The
petition claimed that the information filed against him allowed
the prosecution to rely on the natural and probable consequences
doctrine to prosecute him for murder, that he was convicted
under that doctrine, and that he could not now be convicted of
second degree murder because of the changes made to sections
188 and 189. Defendant further asserted he made a prima facie
case for relief under section 1172.6 because he was not the actual
3
The petition attached record materials including the
criminal complaint and felony information, a transcript of
defendant’s interview with the police, the aiding and abetting
jury instructions referenced in this court’s prior opinion, and a
copy of this court’s opinion on direct appeal.
4
killer, did not aid and abet Chavez in the killing, and did not
display reckless indifference to human life.
The trial court held a hearing on the petition and asked
both sides if they agreed on the following facts: (1) defendant was
not the actual shooter in the case; (2) defendant was not
convicted on a felony murder or natural and probable
consequences theory; and (3) the appellate court deciding
defendant’s direct appeal found the prosecutor’s argument
regarding the meaning of aiding and abetting permissible. After
some discussion, both parties agreed to all three facts. Defendant
backtracked later in the hearing, however, and maintained he
was convicted under the natural and probable consequences
theory of murder.4
The trial court denied the petition and found defendant had
not established a prima facie case for relief. The court opined it
was “pretty clear” defendant was not the actual shooter, but the
court found he was not convicted pursuant to the felony murder
rule or the natural and probable consequences doctrine either.
Rather, the court found defendant was convicted as a direct aider
and abettor.
Defendant now appeals the trial court’s ruling. We grant
the Attorney General’s request to judicially notice the
instructions given to the jury at defendant’s trial, but we decline
to judicially notice the entire record before this court on
defendant’s direct appeal of his conviction. (Evid. Code, §§ 452,
459, subd. (a); see People v. Vizcarra (2015) 236 Cal.App.4th 422,
426, fn. 1.)
4
It remained undisputed, however, that defendant was not
prosecuted on a felony murder theory.
5
II. DISCUSSION
Arriving at the correct result here under applicable law is
straightforward. A petitioner whose trial jury is not instructed
on murder liability pursuant to the natural and probable
consequences doctrine or the felony murder rule cannot, as a
matter of law, demonstrate he or she is eligible for section 1172.6
relief.5 (People v. Soto (2020) 51 Cal.App.5th 1043, 1055; People
v. Smith (2020) 49 Cal.App.5th 85, 92, fn. 5, review granted July
22, 2020, S262835.) Our review of the instructions given to
defendant’s jury confirms the jury was not instructed on either
the natural and probable consequences doctrine or the felony
murder rule. Defendant is thus ineligible for relief, and the trial
court did not err in denying defendant’s section 1172.6 petition.
Defendant does not really argue otherwise. Instead,
defendant attacks the trial court’s finding that he was a direct
aider and abettor because he believes the trial evidence is
insufficient to establish he had the intent to kill and because, in
his view, the prosecutor’s closing argument concerning his intent
is inconsistent with governing law on aiding and abetting.
(Defendant does not contend, however, that the aiding and
abetting instructions given to the jury at trial were incorrect.)
Insofar as these points were not already raised on direct appeal
(and we believe in significant part they were), the time for
making such an argument has long since passed. Section 1172.6
is not a mechanism to relitigate claims that were, or could have
been, raised on direct appeal. (§ 1172.6, subd. (a) [authorizing
5
There is no claim here that defendant could have been
convicted pursuant to some other theory by which malice would
be imputed to him based solely on his participation in the crime.
6
relief for those defendants who “could not presently be convicted
of murder or attempted murder because of changes to Section 188
or 189 made effective January 1, 2019”], italics added.)
DISPOSITION
The trial court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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