People v. Ramos CA2/8 ( 2021 )

Filed 8/2/21 P. v. Ramos CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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. Affirmed.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney 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.
__________________________
Osvaldo Ramos appeals from the summary denial of his
petition for resentencing under Penal Code1 section 1170.95,
“which creates a procedure for convicted murderers who could not
be convicted under the law as amended to retroactively seek
relief.” (People v. Lewis (July 26, 2021, S260598) __ Cal.5th__;
People v. Martinez (2019) 31 Cal.App.5th 719, 722–723
(Martinez).) 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 argues 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 argues 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 he is
entitled to an evidentiary hearing on his resentencing petition.
We affirm the order.
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.
1 All further section references are to the Penal Code.
2
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 Tejeda2 testified he, Cruz, and
Ramos were members of the 12th Street Pomona gang.
Sometime after April 2007, Cruz told Tejeda he and Ramos
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.
2 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
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 him 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
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.].)
4
On March 13, 2019, Ramos filed a petition for resentencing
pursuant to section 1170.95. 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 (SB 1437). The
court appointed counsel to represent Ramos. The People opposed
Ramos’s petition, arguing SB 1437 was unconstitutional and
Ramos did not qualify for resentencing because the jury found he
was a major participant in the underlying felony and acted with
reckless indifference to human life. Appointed counsel filed a
reply to the opposition. The trial court found SB 1437 to be
unconstitutional and denied Ramos’s petition on that ground.
Ramos timely appealed.
DISCUSSION
I. SB 1437
Effective January 1, 2019, SB 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).)”
(Martinez, supra, 31 Cal.App.5th at p. 723.) SB 1437 amended
sections 188 and 189 and added “section 1170.95, 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 1170.95 creates a multi-step procedure for a
defendant to petition for resentencing pursuant to SB 1437.
A defendant may petition for resentencing if he or she was
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“convicted of felony murder or murder under a natural and
probable consequences theory” 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 be convicted of first or second degree murder
because of changes to Section[s] 188 or 189” made by Senate Bill
No. 1437. (§ 1170.95, subd. (a).) Under section 1170.95,
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. (§ 1170.95, 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.”
(§ 1170.95, subd. (b)(2).)
Section 1170.95, subdivision (c) sets forth the procedure
once the defendant files a complete petition: “The court shall
review the petition and determine if the petitioner has made a
prima facie showing that the petitioner falls within the provisions
of this section. If the petitioner has requested counsel, the court
shall appoint counsel to represent the petitioner. The prosecutor
shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30
days after the prosecutor response is served. These deadlines
shall be extended for good cause. If the petitioner makes a prima
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facie showing that he or she is entitled to relief, the court shall
issue an order to show cause.”
Should the court issue an order to show cause, it must hold
a hearing to determine whether to vacate the murder conviction.
(§ 1170.95, subd. (d).) 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.” (§ 1170.95, subd.
(d)(3), (e).)
II. Ramos Is Not Entitled To Resentencing
Ramos argues the trial court erred to find SB 1437
unconstitutional. The People concede SB 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.) This is not the end of our inquiry,
however, because we may affirm on any legally correct theory
applicable to the case. (People v. Smithey (1999) 20 Cal.4th 936,
972.)
Here, the second jury in Ramos’s case found him guilty of
first degree felony murder and found the robbery-murder special
circumstance in section 190.2, subdivision (a)(17) to be true.
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.3
3 The second jury was instructed pursuant to CALJIC No.
8.80.1: “If you find that a defendant was not the actual killer of a
human being, or if you are unable to decide whether the
defendant was the actual killer or an aider and abettor . . . , you
cannot find the special circumstance to be true as to that
7
SB 1437 amended section 189, subdivision (e) to now require
these same three theories in order to be found guilty of felony
murder. Accordingly, we conclude the true finding for the felony
murder special circumstance precludes relief even after the
passage of SB 1437. (People v. Galvan (2020) 52 Cal.App.5th
1134, 1141, rev. granted, Oct. 14, 2020, S264284 [“By finding a
special circumstance allegation true, the jury makes precisely the
same finding it must make in order to convict a defendant of
felony murder under the new law. Because a defendant with a
felony-murder special circumstance could still be convicted of
murder, he is ineligible as a matter of law to have his murder
conviction vacated.”].)
However, cases are currently split on whether this special
circumstance finding precludes section 1170.95 resentencing as a
matter of law. The dispute lies in the date of a defendant’s
conviction. If the jury’s special circumstance finding predated
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th at
page 522, which clarified the meaning of “major participant” and
“reckless indifference to human life” in the section 190.2 special
circumstance, some cases have held the jury’s pre-Banks/Clark
section 190.2 true finding does not preclude SB 1437
defendant unless you are satisfied beyond a reasonable doubt
that such defendant with the intent to kill aided[ or] abetted . . .
any actor in the commission of the murder in the first degree [ ],
or with reckless indifference to human life and as a major
participant, aided[ or] abetted . . . in the commission of the crime
of [r]obbery which resulted in the death of a human being,
namely Mychael Whittaker. [¶] A defendant acts with reckless
indifference to human life when that defendant knows or is
aware that his[ ] acts involve a grave risk of death to an innocent
human being.”
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resentencing. (See, e.g., People v. Gonzalez (2021) 65 Cal.App.5th
420; People v. Secrease (2021) 63 Cal.App.5th 231, rev. granted,
June 30, 2021, S268862; People v. Torres (2020) 46 Cal.App.5th
1168, rev. granted, July 7, 2020, S262011; People v. Law (2020)
48 Cal.App.5th 811, rev. granted, July 8, 2020, S262490; People v.
Smith (2020) 49 Cal.App.5th 85, rev. granted Aug. 11, 2020,
S262835; People v. York (2020) 54 Cal.App.5th 250, rev. granted,
Nov. 18, 2020, S264954; People v. Harris (2021) 60 Cal.App.5th
939, rev. granted, April 28, 2021, S267802.)
Other cases take the view that the defendant cannot bring
a Banks/Clark challenge to a section 190.2 special circumstance
finding by way of a SB 1437 resentencing petition; he or she must
seek relief by way of a habeas corpus petition. (See, e.g., People v.
Gomez (2020) 52 Cal.App.5th 1, rev. granted, Oct. 14, 2020,
S264033; People v. Galvan, supra, 52 Cal.App.5th 1134; People v.
Murillo (2020) 54 Cal.App.5th 160, rev. granted, Nov. 18, 2020,
S264978; People v. Jones (2020) 56 Cal.App.5th 474, rev. granted,
Jan. 27, 2021, S265854; People v. Allison (2020) 55 Cal.App.5th
449; People v. Nunez (2020) 57 Cal.App.5th 78, rev. granted, Jan.
13, 2021, S265918.)
We find persuasive those cases holding a jury’s section
190.2 true finding precludes section 1170.95 resentencing as a
matter of law. As noted earlier, Ramos’s jury found the robbery-
murder special circumstance under section 190.2 subdivision
(a)(17) to be true.
As the Supreme Court recently explained, Banks and Clark
merely clarified the law. (In re Scoggins (2020) 9 Cal.5th 667,
674 (Scroggins).)4 Furthermore, SB 1437 did not change nor
4 Scroggins also noted that, where a decision does not
announce a new rule of law but merely “clarifies the kind of
9
amend the required elements to find a special circumstance
under section 190.2 subdivision (a)(17) to be true. Since Ramos’s
jury found the special circumstance true beyond a reasonable
doubt, his challenge to the first-degree murder conviction is not
based on the changes brought by SB 1437 to the murder statute
under section 188 and 189 but on the clarification to the
requirements of what evidence sufficiently establishes “major
participant” and “reckless indifference to human life” as
explained in Banks and Clark. If Ramos seeks to challenge the
sufficiency of the robbery-murder special circumstance finding,
his remedy is to pursue extraordinary relief by way of habeas
corpus.
As such, Ramos’s petition fails at the prima facie stage.
The trial court’s denial was proper.5
conduct proscribed by a statute, a defendant whose conviction
became final before that decision ‘is entitled to post-conviction
relief upon a showing that his [or her] conduct was not prohibited
by the statute’ as construed in the decision. [Citation.] ‘In such
circumstances, it is settled that finality for purposes of appeal is
no bar to relief, and that habeas corpus or other appropriate
extraordinary remedy will lie to rectify the error.’ ” (Scroggins,
supra, 9 Cal.5th at pp. 673–674.)
5 Because we affirm the trial court’s denial order, we need
not address the parties’ arguments regarding the procedures to
be employed if we had decided to reverse the order instead. This
includes the parties’ contentions regarding the standard of proof
or standard of review to be applied by the trial court to determine
Ramos’s eligibility for relief or whether this court should conduct
a review of the record to determine eligibility.
10
III. Ramos Is Not Entitled to Relief Under SB 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 (SB 620) (2017–
2018 Reg. Sess.), which amended section 12022.53, subdivision
(h) to provide trial courts with this discretion. SB 620, effective
January 1, 2018, applies retroactively only to judgments that are
not yet final. (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 SB 620. Under these
circumstances, we decline to remand for the trial court to exercise
its discretion under SB 620.
DISPOSITION
The order is affirmed.
OHTA, J. *
We Concur:
GRIMES, Acting P. J. STRATTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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