People v. Ramirez CA1/5 ( 2024 )

Filed 5/14/24 P. v. Ramirez CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
A169360
Plaintiff and Respondent,
v. (San Mateo County
Super. Ct. No. SC060870A )
PABLO RAMIREZ,
Defendant and Appellant.
In 2007, a jury convicted Pablo Ramirez (appellant) of attempted
murder (Pen. Code,1 §§ 187, subd. (a), 664) and assault with a semiautomatic
firearm (§ 245, subd. (b)). As to both offenses, the jury found true allegations
that appellant personally discharged a firearm proximately causing great
bodily injury (§ 12022.53, subd. (d)) and personally inflicted great bodily
injury under circumstances involving domestic violence (§ 12022.7, subd. (e)).
This court affirmed the subsequent judgment. (People v. Ramirez (Apr. 10,
2009, A120631) [nonpub. opn.].)
1 All undesignated statutory references are to the Penal Code.
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In 2023, appellant filed a petition for resentencing pursuant to section
1172.6. The trial court appointed counsel and, following briefing and a
hearing, summarily denied the petition.
On appeal, appellant’s counsel filed a brief under People v. Delgadillo
(2022) 14 Cal.5th 216, and appellant filed a supplemental letter brief. We
have evaluated appellant’s arguments and conducted our own independent
review of the record. We conclude appellant failed to make a prima facie
showing for relief under section 1172.6.
Section 1172.6 “applies by its terms only to attempted murders based
on the natural and probable consequences doctrine.” (People v. Coley (2022)
77 Cal.App.5th 539, 548; see also § 1172.6, subd. (a) [“A person convicted of
. . . attempted murder under the natural and probable consequences doctrine
. . . may file a petition [for resentencing] . . . .”].) The verdict forms show the
jury found appellant guilty of “attempt to murder Rosa E. V[.]”; found him
guilty of “assault on Rosa E. V[.] with a semi-automatic firearm”; and found
true allegations that, in the commission of both crimes, appellant “personally
and intentionally discharged a firearm . . . and proximately caused great
bodily injury to Rosa E. V[.]” and “personally inflicted great bodily injury
upon Rosa E. V[.]” The jury was instructed that, to find appellant guilty of
attempted murder, the People must prove “1. The defendant took at least one
direct but ineffective step toward killing (another person); [¶] AND [¶] 2. The
defendant intended to kill that (person).” The jury was not instructed on the
natural and probable consequences doctrine. The record of conviction
conclusively establishes that appellant’s attempted murder conviction was
not based on the natural and probable consequences doctrine.
In his supplemental brief, appellant argues to the contrary, relying on
two cases, People v. Rivera (2021) 62 Cal.App.5th 217, and People v. Eynon
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(2021) 68 Cal.App.5th 967. Both are easily distinguishable because they
involve guilty murder pleas under circumstances which did not preclude
eligibility for resentencing relief. (Rivera, at pp. 224, 235 [a defendant who
“entered a plea to murder ‘with malice aforethought’ ” established prima facie
case for relief “because such a plea is not necessarily an admission that the
crime was committed with actual malice” and “there is no basis on which to
infer that [the defendant] admitted to acting with actual malice”]; Eynon, at
p. 979 [“When [the defendant] pled guilty [to first degree premeditated
murder], the law allowed him to be convicted of first degree premeditated
murder on a natural and probable consequences theory, and it also allowed
him to be convicted of first degree felony murder without being the actual
killer, acting with intent to kill, or being a major participant in the
underlying felony who acted with reckless indifference to human life. The
accusatory pleading did not exclude either of those theories—the prosecution
could have relied on natural and probable consequence, felony murder, or
both if the case had proceeded to trial. [The defendant’s] guilty plea, his
admission that he did what was charged in the murder count, and his
admission that the murder was committed in the course of a robbery
consequently did not include any factual admissions that refute his allegation
that he is eligible for relief under section 117[2.6].”].)
DISPOSITION
The order denying appellant’s petition for resentencing is affirmed.
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SIMONS, J.
We concur.
JACKSON, P. J.
BURNS, J.
(A169360)
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