People v. Ramirez CA2/1 ( 2024 )

Filed 9/25/24 P. v. Ramirez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B328259
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA075509)
v.
DARIO DANIEL RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jared D. Moses, Judge. Affirmed.
Patricia A. Scott, 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, Assistant
Attorney General, Charles S. Lee and Michael C. Keller, Deputy
Attorneys General, for Plaintiff and Respondent.
__________________________________
In 2011, a jury found Dario Ramirez guilty of second degree
murder, attempted voluntary manslaughter (as a lesser included
offense of an attempted murder charge), and mayhem. At his
trial, the prosecution’s theory was that Ramirez was an
accomplice to a gang-related shooting, and he was not the actual
shooter. The trial court instructed the jury on direct aiding and
abetting and natural and probable consequences theories of
liability.
In 2019, Ramirez filed a petition under Penal Code former
section 1170.95 (now section 1172.6),1 a statute which now
authorizes resentencing relief for, among others, persons
convicted of murder, manslaughter, and attempted murder under
the natural and probable consequences doctrine. In 2022, the
trial court determined Ramirez made a prima facie showing for
resentencing relief as to the murder conviction and set the matter
for an evidentiary hearing. The court determined he did not
make a prima facie showing for relief as to the convictions for
attempted voluntary manslaughter and mayhem, concluding the
resentencing statute does not apply to convictions for these
crimes. After the evidentiary hearing, the court denied the
petition for resentencing as to all three convictions.
Ramirez appeals from the order denying his petition for
resentencing, challenging the denial as to his conviction for
attempted voluntary manslaughter only. He contends a
conviction for attempted voluntary manslaughter should qualify
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10).
Undesignated statutory references are to the Penal Code.
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for relief under section 1172.6 even though the statute does not
include that offense in the enumeration of crimes eligible for
relief. We affirm the trial court’s order because section 1172.6, by
its plain language, does not apply to convictions for attempted
voluntary manslaughter.
BACKGROUND
A. Charges and Trial
On December 28, 2008, Rodolfo Macias died as a result of
gunshot wounds, and Raymond Salcedo lost an eye due to a
gunshot to the head. (People v. Ramirez (Mar. 26, 2013,
B232114) [nonpub. opn.] p. 2.)2
An information filed in August 2009 charged appellant
Ramirez, his cousin Tomas Carrillo Ramirez,3 and a man called
Jose Arnaud with the murder of Macias (§ 187, subd. (a)), the
willful, deliberate, premediated attempted murder of Salcedo
(§§ 664 & 187, subd. (a)), and aggravated mayhem as to Salcedo
(§ 205). As to all three counts, the information charged a gang
enhancement (§ 186.22, subd. (b)(1)(C)), and alleged a principal
2 To fill in gaps in the appellate record and to provide
context for this appeal, we take some of the procedural and
factual background of this case from this court’s opinion in
Ramirez’s direct appeal. In his appellate briefing, Ramirez also
derives his statement of the facts from the opinion in his direct
appeal, noting that the present appeal “concerns a purely legal
issue” and we need not rely on these facts in determining
whether Ramirez made a prima facie showing that he is entitled
to relief on his attempted voluntary manslaughter conviction.
3 Because we refer to appellant Dario Ramirez as “Ramirez”
throughout this opinion, we will refer to his cousin Tomas
Carrillo Ramirez by his first name to avoid confusion, and not out
of disrespect.
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personally and intentionally discharged a firearm which
proximately caused great bodily injury or death to the victims
(§ 12022.53, subds. (b)-(e)). Count 3 of the information was later
amended to reflect a lesser charge of mayhem under section 203,
instead of aggravated mayhem under section 205 as originally
charged.
Ramirez was tried with Tomas.4 The prosecution’s theory
at trial was that Arnaud was the shooter, and Ramirez and
Tomas were his accomplices. (People v. Ramirez, supra, B232114,
pp. 2-4.) As reflected in the record before us, the prosecution
presented direct aiding and abetting and natural and probable
consequences theories of Ramirez’s (and Tomas’s) liability. The
trial court instructed the jury on both theories.
A recitation of the facts and circumstances of the shooting
is not necessary to our resolution of the issues on appeal. For
purposes of context only, we provide the following summary
derived from the opinion in the direct appeal: Tomas was driving
a vehicle (a Jeep), with Ramirez and Arnaud inside. Tomas
stopped the Jeep near two males who were standing on a
sidewalk. Ramirez and Tomas asked the males where they were
from, meaning what was their gang affiliation. After a brief
exchange with the two males, Ramirez and Tomas exited the
Jeep and said the name of their gang. Macias and Salcedo, who
had been at a barbecue with the two males, began to approach
4 At an earlier trial, Arnaud and Tomas were tried by
separate juries. Arnaud’s jury found him guilty of first degree
murder, attempted murder, and mayhem, and found gang and
firearm enhancement allegations to be true. Tomas’s jury could
not reach a verdict and a mistrial was declared. (People v.
Ramirez, supra, B232114, p. 10.)
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the group. Ramirez and Tomas turned their attention to Macias
and Salcedo, asking them where they were from. Ramirez and
Tomas stood on either side of Macias and grabbed and held him
by his shoulders. Arnaud exited the Jeep, pointed a gun at the
back of Salcedo’s head, and fired. Salcedo fell to the ground.
Ramirez and Tomas held Macias as he struggled against them.
Arnaud fired several rounds at Macias. Salcedo survived and
Macias died. The prosecution’s gang expert opined, based on her
knowledge and experience, that Ramirez, Tomas, and Arnaud
were members of a criminal street gang; and that hypothetical
crimes, mirroring the facts of this case as presented through the
prosecution’s evidence, would have been committed for the
benefit of a criminal street gang. (People v. Ramirez, supra,
B232114, pp. 2-4, 6-7.)
The jury found Ramirez (and Tomas) guilty of second
degree murder and mayhem, and not guilty of attempted murder.
The jury found them guilty of attempted voluntary manslaughter
(§§ 664 & 192, subd. (a)) as a lesser included offense of attempted
murder. The jury also found the gang and firearm enhancement
allegations to be true as to each offense. The trial court
sentenced Ramirez (and Tomas) to 69 years to life in prison: 15
years to life for the murder, plus 25 years to life for the firearm
enhancement (§ 12022.53, subds. (d)-(e)); and a consecutive term
of four years (the middle term) for mayhem, plus 25 years to life
for the firearm enhancement. The court imposed and stayed a
term of three years (the middle term) for the attempted voluntary
manslaughter. (People v. Ramirez, supra, B232114, p. 10.)
Ramirez and Tomas appealed their convictions, and we
affirmed the judgments. (People v. Ramirez, supra, B232114.)
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B. Ramirez’s Petition for Resentencing
In 2018, the Legislature enacted Senate Bill No. 1437 “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.” (Sen. Bill No. 1437 (2017-2018 Reg.
Sess.) Stats. 2018, ch. 1015, § 1(f), p. 6674; §§ 188, subd. (a)(3) &
189, subd. (e).) Senate Bill No. 1437 amended sections 188
(defining malice) and 189 (felony murder) and added section
1170.95, now renumbered section 1172.6, which established a
procedure for vacating murder convictions and resentencing
defendants who could no longer be convicted of murder in light of
the amendments to sections 188 and 189. (Stats. 2018, ch. 1015,
§ 4, pp. 6675–6677.)5
On September 9, 2019, Ramirez, who was represented by
counsel, filed a petition for resentencing under former section
1170.95. He alleged, in pertinent part, that he was convicted of
second degree murder under the natural and probable
consequences doctrine (or under the second degree felony murder
doctrine), and he could not now be convicted of that crime
because of changes to sections 188 and 189, effective January 1,
5 Senate Bill No. 1437 added the following provision to
section 188: “Except as stated in subdivision (e) of Section 189, in
order to be convicted of murder, a principal in a crime shall act
with malice aforethought. Malice shall not be imputed to a
person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).)
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2019. Two years later, on October 7, 2021, after delays in the
proceedings for various reasons, Ramirez filed a brief in support
of his petition for resentencing. He attached to the brief, among
other exhibits, pertinent jury instructions and excerpts from the
prosecutor’s closing argument at his trial, showing he was
prosecuted under a natural and probable consequences theory (in
addition to a direct aiding and abetting theory).
On October 5, 2021, the Governor signed into law Senate
Bill No. 775 which amended then-section 1170.95 to, among other
things, authorize relief for persons convicted of attempted murder
under the natural and probable consequences doctrine and
manslaughter when the prosecution was permitted to proceed
under a felony murder or natural and probable consequences
theory of murder liability. (Sen. Bill No. 775 (2020-2021 Reg.
Sess.); Stats. 2021, ch. 551, § 2.) The amendment became
effective January 1, 2022.
At a hearing on January 16, 2022, the trial court stated
Ramirez made a prima facie showing he was entitled to relief as
to his murder conviction, and the court would hold an evidentiary
hearing. The court noted the resentencing statute does not apply
to the conviction for mayhem.
At a subsequent hearing on March 30, 2022, prior to the
evidentiary hearing, the parties disagreed as to whether the
resentencing statute should apply to convictions for attempted
voluntary manslaughter in light of Senate Bill No. 775’s
authorization of relief for persons convicted of manslaughter and
attempted murder under the natural and probable consequences
doctrine. Ramirez’s counsel stated Ramirez would seek relief as
to the attempted voluntary manslaughter conviction as well as
the murder conviction. On May 4, 2022, the district attorney
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filed a brief arguing Ramirez could not make a prima facie
showing he was entitled to relief on his attempted voluntary
manslaughter conviction because the “plain language of the
statute” shows “clear[ly] and unambiguous[ly]” that “a petition
[for resentencing] is not available to persons convicted of
attempted voluntary manslaughter,” but only to persons
convicted of murder, attempted murder, and manslaughter.
On July 19, 2022, the trial court set a date for the
evidentiary hearing on the murder count. The court explained
that it would decide at the outset of the evidentiary hearing
whether Ramirez made a prima facie showing for relief as to the
attempted voluntary manslaughter conviction.
At the evidentiary hearing on October 28, 2022, the trial
court ruled Ramirez was ineligible for relief as a matter of law on
the convictions for attempted voluntary manslaughter and
mayhem because section 1172.6 does not allow relief for those
offenses. Ramirez’s counsel argued the statute, as amended by
Senate Bill No. 775, should apply to convictions for attempted
voluntary manslaughter, although that offense is not specified in
the statute. Counsel noted some defendants had similarly argued
that the resentencing statute should apply to convictions for
attempted murder and manslaughter before Senate Bill No. 775
amended the statute to specifically include those offenses. The
court rejected Ramirez’s argument and conducted an evidentiary
hearing as to the murder count only. The court found the
prosecution proved beyond a reasonable doubt that Ramirez
acted with malice aforethought as a direct aider and abettor of
the murder. The court granted Ramirez’s request to file a
posthearing brief and explained it would notify the parties if it
intended to change its ruling after consideration of the brief. The
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same day as the hearing, the court issued a written order denying
Ramirez’s petition for resentencing for the reasons stated at the
hearing (pending receipt and consideration of Ramirez’s brief).
On December 1, 2022, Ramirez filed his posthearing brief.
In addition to making arguments related to the murder count,
Ramirez made an assertion in the brief, without elaboration, that
section 1172.6 relief should be available to persons convicted of
both attempted voluntary manslaughter and mayhem. In a
minute order dated December 19, 2022, the trial court stated, the
“previous order/ruling in this case is to remain. The petition for
resentencing is denied.”
Ramirez appealed. He challenges the denial of his petition
for resentencing as to the attempted voluntary manslaughter
conviction only.
DISCUSSION
Ramirez contends a conviction for attempted voluntary
manslaughter should qualify for relief under section 1172.6 even
though the statute does not include that offense in the
enumeration of crimes eligible for relief. This is a question of law
that we review de novo. (People v. Lewis (2021) 11 Cal.5th 952,
961 [“The proper interpretation of a statute is a question of law
we review de novo”].)
“ ‘ “As in any case involving statutory interpretation, our
fundamental task here is to determine the Legislature’s intent so
as to effectuate the law’s purpose. [Citation.] We begin by
examining the statute’s words, giving them a plain and
commonsense meaning. [Citation.]” [Citation.] “ ‘When the
language of a statute is clear, we need go no further.’ [Citation.]
But where a statute’s terms are unclear or ambiguous, we may
‘look to a variety of extrinsic aids, including the ostensible objects
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to be achieved, the evils to be remedied, the legislative history,
public policy, contemporaneous administrative construction, and
the statutory scheme of which the statute is a part.’ ” ’ ” (People
v. Scott (2014) 58 Cal.4th 1415, 1421.)
Under section 1172.6, subdivision (a), “A person convicted
of felony murder or murder under the natural and probable
consequences doctrine or other theory under which malice is
imputed to a person based solely on that person’s participation in
a crime, attempted murder under the natural and probable
consequences doctrine, or manslaughter may file a petition with
the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated
and to be resentenced on any remaining counts when all of the
following conditions apply: [¶] (1) A complaint, information, or
indictment was filed against the petitioner that allowed the
prosecution to proceed under a theory of felony murder, murder
under the natural and probable consequences doctrine or other
theory under which malice is imputed to a person based solely on
that person’s participation in a crime, or attempted murder under
the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of murder, attempted murder, or
manslaughter following a trial or accepted a plea offer in lieu of a
trial at which the petitioner could have been convicted of murder
or attempted murder. [¶] (3) The petitioner could not presently
be convicted of murder or attempted murder because of changes
to Section 188 or 189 made effective January 1, 2019.”
As originally enacted by Senate Bill No. 1437, the
resentencing statute (former section 1170.95, now section 1172.6)
stated that it applied to murder convictions. (Stats. 2018, ch.
1015, § 4.) Effective January 1, 2022, Senate Bill No. 775
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amended the statute to reflect that it applies to convictions for
attempted murder and manslaughter, in addition to murder.
(Stats. 2021, ch. 551, § 2.) The Legislature has not decided to
include convictions for attempted voluntary manslaughter in the
list of offenses eligible for relief.
“Where, as here, the Legislature makes express statutory
distinctions, ‘we must presume it did so deliberately, giving effect
to the distinctions, unless the whole scheme reveals the
distinction is unintended. . . . [W]e presume the Legislature
intended everything in a statutory scheme, and we should not
read statutes to omit expressed language or include omitted
language.’ ” (People v. Connor (2004) 115 Cal.App.4th 669, 691.)
“ ‘[I]nsert[ing]’ additional language into a statute ‘violate[s] the
cardinal rule of statutory construction that courts must not add
provisions to statutes.’ ” (People v. Guzman (2005) 35 Cal.4th
577, 587.)
Considering the plain language of section 1172.6, and the
history of the statute’s amendment, we have no cause to insert
language into the statute that the Legislature did not include. In
2021, the Legislature amended the statute to clarify that it
applies to convictions for attempted murder and manslaughter,
in addition to murder. The clear language of the amendment
thus demonstrates the Legislature was mindful of the distinction
between attempted crimes and completed crimes when it
amended the statute. The amendment did not include attempted
voluntary manslaughter in the enumeration of offenses eligible
for relief. Nor did the amendment include authority for courts to
apply the statute to unspecified offenses. Even if the language of
the statute were unclear or ambiguous, and we looked to extrinsic
aids to interpret the statute, Ramirez has not cited to anything in
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the legislative history that supports his argument that the
Legislature intended the amendment to apply to convictions for
attempted voluntary manslaughter but neglected to make that
clear at the time it was taking pains to clarify that the statute
applies to convictions for attempted murder and manslaughter.6
Because section 1172.6 does not apply to convictions for
attempted voluntary manslaughter, the trial court did not err in
concluding Ramirez failed to make a prima facie showing he is
entitled to relief on that conviction.
DISPOSITION
The order denying the petition for resentencing is affirmed.
NOT TO BE PUBLISHED
KELLEY, J.*
We concur:
BENDIX, Acting P. J. WEINGART, J.
6 Ramirez’s contention that attempted voluntary
manslaughter “is within the penumbra of the statute’s concern”
falls far short of coherent explication of a basis to infer legislative
intent in this case.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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