People v. Ramirez CA2/4 ( 2024 )

Filed 10/2/24 P. v. Ramirez CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B333229
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA480321)
v.
JAY ELIJAH RAMIREZ,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Mark Alan Hart, 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, Senior
Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, and J. Michael Lehmann, Deputy
Attorney General, for Plaintiff and Respondent.
Defendant and appellant Jay Elijah Ramirez shot and
killed Javier Munoz in retaliation for Munoz previously
assaulting defendant’s fellow gang member. Defendant was
convicted of first degree murder and felon in possession of a
firearm (Pen. Code, §§ 187, subd. (a), 29800, subd. (a)(1)).1
On appeal, defendant raises one contention he did not raise
below. He contends the trial court prejudicially erred by
admitting gang evidence without requiring the prosecution to
prove the gangs at issue (Loco Park and Citywide Vandals)
constituted “criminal street gangs” as defined under a gang
enhancement statute (§ 186.22) not charged by the prosecution.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
In 2019, Nachelle Sodetani and Javier Munoz were living
together in a wooden shed Munoz had built in an alleyway
claimed by the Loco Park gang. Munoz, a member of a rival gang
called Citywide Vandals, was shot and killed inside the wooden
shed on August 10, 2019.
Two law enforcement officers testified about gang activity
in the area—Los Angeles Police Department Officer Chad
Heistirmann and Detective Jose Calzadillas, the investigating
officer in this case. Both officers had been assigned and worked
on gang enforcement in the area. Officer Heistirmann testified
about Loco Park’s history, territory, symbols, and criminal
activities. He also discussed the Citywide Vandals, which
1 Subsequent unspecified references to statutes are to the Penal
Code.
2
originated as a tagging group that “morphed” into an actual
street gang. Citywide Vandals was one of several rival gangs of
Loco Park. The court instructed the jury on the limited use of
gang evidence to establish motive, identity, and intent. (CALJIC
No. 17.24.3.)2
Around 9:00 a.m. on August 10, 2019, Munoz was sleeping
inside his wooden shed while Sodetani and another woman,
Jasmin Alonso, prepared breakfast for 10 other people waiting in
a nearby alleyway.3 Defendant, known by Sodetani and Alonso
as “Curly,” and another unknown man were part of the group
waiting for breakfast. About a minute after Alonso saw
defendant and the other man walk by the wooden shed, she heard
someone yell, “This is Loco Park. Fuck Chicken Wings” and the
sound of several gunshots.4 Everyone fled the area except
Sodetani and Alonso, who ran back to Munoz. After locating
Munoz in the wooden shed, Sodetani noticed he was bleeding
profusely and convulsing. Sodetani called 911. According to a
2 CALJIC No. 17.24.3 provided in relevant part that evidence
“showing criminal street gang activities of the defendant” could not be
considered “to prove that defendant is a person of bad character or that
he has a disposition to commit crimes. It may be considered by you
only for the limited purpose of determining a defendant’s identity,
intent, and motive. [¶] . . . [¶] You are not permitted to consider such
evidence for any other purpose.”
3 At the time of trial, Sodetani was transient and did not have a
phone. Sodetani could not be located for trial despite diligent efforts to
secure her attendance. Her preliminary hearing testimony was read to
the jury.
4 According to Officer Heistirmann and Detective Calzadillas,
“Chicken Wings” is a derogatory term used by rival gangs to disrespect
Citywide Vandals.
3
deputy medical examiner, Munoz died from multiple gunshot
wounds, four in total, to his upper legs and arm.
In a six-pack photographic lineup, Alonso identified
defendant as the person who yelled, “This is Loco Park. Fuck
Chicken Wings.”
Defendant was arrested three days after the shooting and
interviewed by Detective Calzadillas and his partner. In a
recording of the interview played for the jury, defendant admitted
he was a member of Loco Park and showed officers his gang
tattoos. Defendant initially denied being near the shooting but
later admitted to shooting Munoz.
Defendant discussed the shooting as follows. Defendant
and his “little hom[ey],” Muerto, went to the alleyway to confront
Munoz, known by defendant as “Rage,” for jumping and beating
up Muerto in a nearby location. Asked if Munoz was a member of
Citywide Vandals who lived in the area, defendant replied,
“Maybe.” After arriving at Munoz’s wooden shed with Muerto,
defendant asked Munoz, “What’s up with my homey, fool?”
Munoz looked at both men and responded, “What’s up with him?”
Angered at Munoz’s response, defendant pulled a gun from his
waist and shot Munoz several times. Defendant denied Muerto
had a gun during the shooting. After the shooting, defendant,
Muerto, and another man discarded the firearm in the ocean.
According to Officer Heistirmann, the term “little hom[ey]”
referred to a junior gang member. He also testified gang
members are expected to retaliate against anyone who assaults a
fellow gang member. Retaliation would “save face[ and] regain
respect” in the community. A gang member would be viewed as
weak if they did not retaliate. In various photographs taken of
defendant, Detective Calzadillas identified tattoos associated
4
with Loco Park. Some of the gang tattoos were obtained after
defendant shot Munoz.
B. Defense Evidence
Defendant did not present any affirmative evidence in his
defense.
C. Information, Verdicts, and Sentencing
By amended information, defendant was charged with first
degree premeditated murder (§§ 187, subd. (a), 189, subd. (a)),
and felon in possession of a firearm (§ 29800, subd. (a)(1)). The
information alleged various firearm enhancements (§ 12022.53,
subds. (b)-(d)), and aggravating circumstances (Cal. Rules of
Court, rule 4.421). Following trial in May 2023, a jury found
defendant guilty as charged, found the murder to be first degree,
and found all three firearm enhancement allegations true.
On August 16, 2023, defendant was sentenced to an overall
term of 50 years to life.5 Defendant timely appealed.
DISCUSSION
A. Additional Background
The operative information did not charge defendant with a
gang crime (§ 186.22, subd. (a)) or gang sentence enhancement
allegation (§ 186.22, subd. (b)). Before trial, the prosecution
informed the court of its intent to offer gang evidence to establish
5 The court sentenced defendant to 25 years to life for first degree
murder and a consecutive term of 25 years to life under section
12022.53, subdivision (b). The court stayed sentences on the
remaining firearm enhancements and imposed a concurrent middle-
term sentence of two years for felon in possession of a firearm.
5
defendant’s identity, motive, and intent. In support, the
prosecution discussed the statement calling out “Loco Park” and
“Fuck Chicken Wings” before the shooting and Munoz’s prior
assault of a person affiliated with Loco Park. Defendant objected
to the gang evidence under Evidence Code section 352. The court
overruled defendant’s objection, finding the evidence relevant to
motive, identity, and intent; it also found the probative value of
the gang evidence outweighed any prejudice to defendant. In so
ruling, the court noted it would give a limiting instruction on the
use of gang evidence. (See fn. 2, ante.)
B. Governing Principles
1. Admission of Relevant Evidence and Preliminary
Facts
“No evidence is admissible except relevant evidence.”
(Evid. Code, § 350; see § 1102 [rules of evidence apply in criminal
actions].) “‘Relevant evidence’ means evidence, including
evidence relevant to the credibility of a witness . . . , having any
tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (Evid. Code,
§ 210.) All relevant evidence is admissible “[e]xcept as otherwise
provided by statute.” (Id., § 351.) Trial courts possess broad
discretion to exclude relevant evidence if its probative value is
substantially outweighed by the probability its admission will
necessitate undue consumption of time or create substantial
danger of undue prejudice, confusion of the issues, or misleading
the jury. (Id., § 352.)
If disputed by the parties, “preliminary facts”—those facts
upon which the admissibility of evidence depends—are to be
determined by the trial court outside the presence of the jury.
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(Evid. Code, §§ 400–405.) “Examples of preliminary fact issues to
be decided” include lay and expert witness disqualification (id.,
§§ 701, 720), evidentiary privileges (id., §§ 900–1070), the
hearsay rule and its exceptions (id., §§ 1200–1341), and the best
evidence rule (id., §§ 1500–1510). (Assem. Com. on Judiciary
Comment to § 405.)
2. Admissibility of Gang Evidence
“In cases not involving the gang enhancement statute,” our
Supreme Court has “held that evidence of gang membership is
potentially prejudicial and should not be admitted if its probative
value is minimal. [Citation.] But evidence of gang membership
is often relevant to, and admissible regarding, the charged
offense. Evidence of the defendant’s gang affiliation—including
evidence of the gang’s territory, membership, signs, symbols,
beliefs and practices, criminal enterprises, rivalries, and the
like—can help prove identity, motive, modus operandi, specific
intent, means of applying force or fear, or other issues pertinent
to guilt of the charged crime. [Citations.] To the extent the
evidence supporting the gang enhancement would be admissible
at a trial of guilt, any inference of prejudice would be
dispelled, . . . . [Citation.]” (People v. Hernandez (2004) 33
Cal.4th 1040, 1049–1050; accord, People v. Funes (1994) 23
Cal.App.4th 1506, 1518 [“Cases have repeatedly held that it is
proper to introduce evidence of gang affiliation and activity” on
issues of motive and intent].)
Our Supreme Court has consistently upheld the
admissibility and use of evidence concerning “a defendant’s gang
affiliation and activity if it is relevant to the charged offense.”
(People v. Chhoun (2021) 11 Cal.5th 1, 31–32 (Chhoun); see, e.g.,
7
People v. Holmes, McClain & Newborn (2022) 12 Cal.5th 719, 773
(Holmes, McClain & Newborn) [such evidence may be “highly
relevant given the apparent gang-related motivation” for the
crime]; People v. Pineda (2022) 13 Cal.5th 186, 236; People v. Anh
The Duong (2020) 10 Cal.5th 36, 64–65 (Anh The Duong).)
Gang evidence is admissible “even when a gang
enhancement is not charged, provided the probative value of the
evidence is not substantially outweighed by its prejudicial effect.”
(People v. Ramirez (2022) 13 Cal.5th 997, 1095 (Ramirez), citing
People v. Williams (1997) 16 Cal.4th 153, 193 (Williams).) For
gang-motivated crimes, the probative value of gang evidence
“‘“‘generally exceeds its prejudicial effect, and wide latitude is
permitted’”’” in its admission. (Chhoun, supra, 11 Cal.5th at
p. 32.)
3. Standard of Review
We generally review a trial court’s evidentiary rulings for
abuse of discretion. (People v. Mataele (2022) 13 Cal.5th 372,
413.) Under this standard, we shall not disturb the lower court’s
ruling absent a showing the court’s ruling was arbitrary or
capricious, resulting in a miscarriage of justice. (Ibid.) We
review de novo questions of statutory construction and
application. (People v. Tran (2015) 61 Cal.4th 1160, 1166.)
C. Analysis
Defendant contends the trial court erred by admitting
evidence the shooting and firearm possession “were connected to
the activities of criminal street gangs without requiring the
prosecution to prove that the groups fell within the definition of a
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criminal street gang” under section 186.22. We discern no error
under any standard of review.
As defendant acknowledges, the prosecution’s theory at
trial “was that [he] was a member of the Loco Park gang, his
membership fortifies his identification as the killer, prior to the
shooting he used a phrase indicating hostility to Citywide
Vandals, a rival gang, and that his motive and intent was to
retaliate for violence against someone who presumably was a
member of Loco Park.”
The evidence supporting this theory was relevant and
probative on defendant’s motive, identity, and intent. The rivalry
established defendant’s motive to retaliate against Munoz, an
affiliate of a rival gang, for jumping Muerto, a “little homey”
affiliated with Loco Park. (Accord, Williams, supra, 16 Cal.4th at
p. 194 [“the victim appeared to be a member of a gang which was
a deadly rival of defendant’s gang”]; Anh The Duong, supra, 10
Cal.5th at p. 65 [evidence “explained defendant’s willingness to
shoot a complete stranger minutes after a verbal spat”].)
The evidence also gave context to the shooting and
defendant’s identity. Without the gang evidence, the jury would
have no explanation for the statement, “This is Loco Park. Fuck
Chicken Wings,” which preceded the shooting of Munoz. (See
Holmes, McClain & Newborn, supra, 12 Cal.5th at p. 747
[evidence provided context for gang-related statements “thank
you, Blood” and “now Blood” that accompanied shootings]; People
v. McKinnon (2011) 52 Cal.4th 610, 655 [same as to statement,
“This is for Scotty,” a Crip previously killed by a Bloods gang].)
The evidence also connected defendant to the person Alonso
identified as “Curly” from Loco Park.
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The trial court found the probative value of the gang
evidence not substantially outweighed by the probability its
admission would create a substantial danger of undue prejudice
or confusion. (Evid. Code, § 352.) Defendant does not challenge
the court’s ruling under Evidence Code section 352 or the court’s
limiting instruction under CALJIC No. 17.24.3. (See People v.
Franklin (2016) 248 Cal.App.4th 938, 953 [we presume the jury
followed the limiting instruction].)
Defendant argues the prosecution was prohibited from
introducing any gang evidence absent proof both gangs (Loco
Park and Citywide Vandals) satisfied the Penal Code definition of
a criminal street gang as defined in section 186.22. The Attorney
General contends defendant forfeited this claim for failing to
object on this basis or argue for the satisfaction of elements under
section 186.22. We agree. (See Homes, McClain & Newborn,
supra, 12 Cal.5th at p. 772.) We also reject defendant’s argument
on the merits.
The only statute on which defendant relies, section 186.22,
does not address the admissibility of gang evidence or the
manner in which criminal proceedings are to be held. Section
186.22 is substantive in nature, enacted as part of the California
Street Terrorism Enforcement and Prevention Act, to eradicate
criminal activity by street gangs. (People v. Valenzuela (2019) 7
Cal.5th 415, 421.) To this end, section 186.22 proscribes gang-
related conduct through a substantive offense and sentencing
enhancements attached to gang-related felonies. (§ 186.22,
subds. (a), (b)). It does not purport to impose its definition of a
criminal street gang in any other context.
Defendant was not charged under section 186.22. Absent
any charge, the prosecution was not required to prove the
10
existence of a “criminal street gang” as that term is defined under
section 186.22. (See People v. Loy (2011) 52 Cal.4th 46, 72
[prosecution must prove all elements of the charged crime beyond
a reasonable doubt].)
To the extent defendant argues the existence of a “criminal
street gang,” as defined under section 186.22, is a preliminary
fact that must be established before gang evidence is admitted,
he furnishes no authority in support. We need not undertake
substantial analysis of the issue but note there are a number of
instances in which preliminary fact issues must be decided under
the Evidence Code. Absent from these instances is the
requirement that section 186.22’s definition of a “criminal street
gang” be met. (See Assem. Com. on Judiciary Comment to § 405;
see also Evid. Code, §§ 351.1, 351.4, 352.1–352.2 for additional
restrictions on use of particular categories of evidence.)
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021,
ch. 699), the other authority on which defendant relies, also
furnishes no support for defendant’s argument. Assembly Bill
No. 333 “made . . . changes to the law on gang enhancements.”
(People v. Tran (2022) 13 Cal.5th 1169, 1206 (Tran).) The
introductory language in the bill clarifies its aim to redefine the
term “criminal street gang” as it then existed “[f]or purposes of
the enhancement” in section 186.22. (Assembly Bill No. 333,
supra, introduction, italics added.) The bill also added section
1109 to the Penal Code, “which requires, if requested by the
defendant, a gang enhancement charge to be tried separately
from all other counts that do not otherwise require gang evidence
as an element of the crime.” (Tran, supra, at p. 1206.) As this
newly enacted section demonstrates, had the Legislature
11
intended to fashion a rule concerning the procedure for
introducing gang evidence in criminal cases, it knew how to do so.
Defendant admits “[s]everal appellate cases have held that
gang evidence may still be introduced without complying with the
definition of criminal street gang in Penal Code section 186.22, if
the gang evidence is relevant to an issue in the case.” (Citing
Tran, supra, 13 Cal.5th 1169, 1208; Ramirez, supra, 13 Cal.5th at
pp. 1095–1096.) This admission is significant in two respects.
First, Tran and Ramirez are binding on this court. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant provides no persuasive argument distinguishing the
facts of those cases from those here. (See People v. Diaz Martinez
(2020) 54 Cal.App.5th 885, 894 [holdings of Supreme Court must
be applied wherever the facts of the cases are “‘not fairly
distinguishable’” from the facts at issue on appeal].)
Second, both decisions predate Assembly Bill No. 333
which, as discussed, contains no language on the admissibility or
introduction of gang evidence. “‘[W]hen as here “‘a statute has
been construed by judicial decision, and that construction is not
altered by subsequent legislation, it must be presumed that the
Legislature is aware of the judicial construction and approves of
it.’ [Citations.] “‘“‘There is a strong presumption that when the
Legislature reenacts a statute which has been judicially
construed it adopts the construction placed on the statute by the
courts.’”’ [Citation.]” (People v. Favor (2012) 54 Cal.4th 868,
879.) Defendant supplies no argument rebutting this
12
presumption. Therefore, we conclude the court did not err in
admitting the gang evidence in this case.6
DISPOSITION
The judgment is affirmed.
MORI, J.
We concur:
CURREY, P. J.
COLLINS, J.
6 In light of our conclusion, we do not address defendant’s
argument on harmless error.
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