People v. Ramos CA2/1

Filed 8/31/20 P. v. Ramos 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 OF THE STATE OF B298891
CALIFORNIA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. PA088513)
v.
MARTIN RAMOS,
Defendant and Appellant.
APPEAL from judgments of the Superior Court of Los
Angeles County, Michael Terrell, Judge. Affirmed; remanded
with directions.
Randall Conner, 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, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff
and Respondent.
_____________________
Martin Ramos appeals from judgments of conviction for
aiding and abetting in shooting at an occupied motor vehicle and
assaulting the occupants of that vehicle. He contends (1)
insufficient evidence supported the aiding and abetting finding,
the sentence imposed multiple punishment for one criminal act,
and (2) the court erred in calculating his custody credit.
Respondent concedes the second and third points. We conclude
sufficient evidence supported Ramos’s conviction on an aiding
and abetting theory, and affirm the conviction but remand for
resentencing.
BACKGROUND
On March 19, 2017, police detained Ramos, a member of
the Brown Familia street gang, and Joshua Lopez, a member of
the Lennox 13 street gang, and retrieved a replica semi-
automatic handgun from Lopez. Both men wore hats bearing the
letter “B.”
On March 26, Christian Herrera, driving a pickup truck,
picked up his cousin, Jose Herrera, at his house. Ramos, Lopez,
and two women stood on the sidewalk near the house, with Lopez
walking slowly back and forth across the street. As Christian
and Jose started to drive away, Lopez and Ramos stared
provocatively at Christian and Jose, and Lopez slowly crossed the
street in front of them, right to left, forcing Christian to stop the
truck. As he crossed, Lopez “threw up a gang sign” and gave
Christian another hard stare. After the truck passed, Ramos and
the women crossed to Lopez. From that side of the street, with
Ramos approximately five feet behind Lopez, both stared
provocatively at Christian and made gang gestures.
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Seeing them in his driver’s side mirror, Christian stopped
the truck, opened the door, and leaned out the door with his left
shoulder and left foot, and asked in a loud voice, “ ‘Like what’s
the problem? What are you guys staring at?’ ”
Lopez then drew a shotgun from his pants and fired twice
at Christian and the truck, striking Christian’s shoulder with
several birdshot pellets and spiderwebbing the truck’s rear
window. Ramos and the two women stood there as if “nothing
had happened.” Christian got back in the truck and drove away.
Both Christian and Jose identified Ramos to police.
At trial, Christian testified that when Lopez walked across
the street in front of the truck, he had a kind of “skipping” gait,
“like leaning on the side kind of-ish, like side to side, but slowly.”
He demonstrated the walk by “dropping one elbow and walking
slowly on the ramp up to the witness stand.”
Gang experts testified that certain Lennox 13 gang
members lived in the area claimed by the Brown Familia gang,
that it was not uncommon for gang members to associate with
members from other gangs, and that by “clicking up together and
committing these crimes,” the gangs showed “how friendly they
are to each other and how willing they are to work together to
reach a common goal.”
Ramos was convicted by a jury as an aider and abettor of
Lopez of shooting at an occupied motor vehicle (Pen. Code, § 246;
count 3), possession of a firearm by a felon (Pen. Code, § 29800,
subd. (a)(1); count 4), and two counts of assault with a firearm
(Pen. Code, § 245, subd. (a)(2); counts 11 [as to Christian] and 12
[as to Jose]). The jury found true that a principal was armed
with a firearm (Pen. Code, § 12022, subd. (a)(1)), but found not
true that a principal personally and intentionally discharged a
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firearm or that the offenses were committed for the benefit of a
criminal street gang.
The court sentenced Ramos to state prison for eight years,
comprising five years for shooting at an occupied vehicle, eight
months for weapon possession, one year four months for count 11
(assault on Christian), and one year for count 12 (assault on
Jose).
DISCUSSION
A. Sufficient Evidence Supported Ramos’s Conviction
Ramos contends insufficient evidence supported the finding
that he aided and abetted Lopez. We disagree.
A person who aids and abets the commission of a crime is a
principal in the crime and shares the guilt of the actual
perpetrator. (Pen. Code, § 31.) A person aids and abets the
commission of a crime when he, with knowledge of the unlawful
purpose of the perpetrator, and with the intent or purpose of
committing, facilitating, or encouraging commission of the crime,
by act or advice aids, promotes, encourages or instigates the
commission of the crime. (People v. Prettyman (1996) 14 Cal.4th
248, 259.) Because there is rarely direct evidence of intent,
specific intent must usually be shown from the circumstances of
the crime. (People v. Lashley (1991) 1 Cal.App.4th 938, 945-946.)
In reviewing a claim of insufficient evidence, we evaluate
whether the record, viewed in the light most favorable to the
judgment, discloses evidence of reasonable, credible, and solid
value from which a rational fact finder could find the defendant
guilty beyond a reasonable doubt. (People v. Snow (2003) 30
Cal.4th 43, 66.) We presume the existence of every fact in
support of the judgment that the trier of fact could reasonably
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deduce from the evidence. (People v. Thompson (2010) 49 Cal.4th
79, 113.)
Here, the evidence showed that Ramos and Lopez were
together at the shooting, both staring provocatively and making
gang gestures, and when Lopez shot Christian, Ramos stood by
as if nothing had happened. And gang evidence showed it was
not uncommon for gang members to commit crimes together in a
show of solidarity and mutual support. From this evidence the
jury could reasonably conclude that Ramos intentionally
facilitated or encouraged Lopez’s shooting at Christian. Their
concerted action reasonably implied a common purpose. Lopez
revealed the purpose when he drew a weapon. There was no
evidence Ramos was surprised by Lopez’s conduct, and no
evidence he was afraid to interfere with it. This demeanor
supported the inference that he was unsurprised by Lopez’s
conduct, and thus the further inference that he supported Lopez’s
intentions. (See, e.g., People v. Hoang (2006) 145 Cal.App.4th
264, 270 [a person’s making no attempt to determine whether a
victim was injured or call for help supported the inference that
the person aided and abetted an assault]; People v. Campbell
(1994) 25 Cal.App.4th 402, 409 [evidence that defendant was
unsurprised by another’s conduct supported the inference that
the defendant acted to assist the conduct].) It is of no moment
that Ramos may not have had advance knowledge that Lopez
would shoot Christian, because “ ‘[a]iding and abetting may be
committed “on the spur of the moment,” that is, as
instantaneously as the criminal act itself.’ ” (People v. Frandsen
(2019) 33 Cal.App.5th 1126, 1148.)
In our view, the evidence reasonably indicates that Ramos
intended by his positioning and conduct to offer support and
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encouragement to Lopez, and thus played an affirmative
supportive role in the shooting.
Ramos argues no evidence suggested that he knew Lopez
was armed. We disagree. The evidence showed that Ramos and
Lopez were together on the day of the shooting, with Lopez
walking slowly back and forth across the street. Christian
testified that when Lopez crossed the street in front of his truck,
he walked with an odd gait. When an individual conceals a rifle
on his person and walks in an unusual gait while walking with
others, it is reasonable to infer that the others know about the
rifle. This is especially so if they exhibit no surprise when the
rifle is drawn and fired.
Ramos argues no evidence indicated he knew Lopez would
shoot at Christian’s truck. He argues that Christian was driving
away, and Ramos had no way to know he would stop, so as to give
Lopez a chance to shoot at it. Again, we disagree. When an
individual deliberately provokes another, it is reasonable to infer
that the object of the provocation will respond. It is further
reasonable to infer that matters will escalate. A gang member’s
hard stare and gang gestures are deliberately provocative acts,
which a gang member should anticipate will draw a response,
even if the object of the gestures is driving away. It is therefore
reasonable to infer that Ramos anticipated Christian would stop
or turn the truck around, and could further anticipate that the
resulting confrontation would escalate. Given that his
companion was armed, Ramos could reasonably anticipate, and
thus intend, that gunfire would ensue.
Ramos argues no evidence established that he provided any
actual aid to Lopez, because he was standing behind Lopez at the
time of the shooting, and Lopez could not have known he too was
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provoking Christian. We disagree. We preliminarily note that
when Christian shouted at Lopez and Ramos, he said, “What are
you guys staring at,” which would have indicated to Lopez that
Ramos was actively assisting him. In any event, the evidence
established that Ramos stared and gestured at Christian before
Lopez crossed in front of his truck, and then followed Lopez
across the street and stood near him after the truck had passed.
These actions reasonably implied a unity of purpose and action
which continued, and which Lopez relied upon, even when Ramos
was momentarily out behind him and out of sight.
B. The Sentence on Count 12 Must be Stayed
Ramos argues the sentence for either count 11 or 12,
assault on Christian and Jose, respectively, must be stayed
pursuant to Penal Code section 654 because both counts occurred
during the same course of conduct as Ramos’s shooting at an
occupied motor vehicle, count 3.
Ramos argues the one-year-four-month sentence imposed
on count 11 (for shooting at Christian), not the one-year sentence
on count 12 (shooting at Jose), should be stayed because count 11
involved the same victim, Christian, as count 3, in which the
prosecution alleged Lopez shot at Christian’s truck.
Respondent concedes that Penal Code section 654 applies to
count 11 or count 12, but argues the shorter, one-year sentence
on count 12 (Jose) should be stayed because the underlying crime,
shooting at an occupied vehicle, involved only Jose, not Christian,
because Jose was inside and Christian outside the truck when
Lopez fired at it. We agree with Respondent.
Subdivision (a) of Penal Code section 654 provides that an
act punishable in different ways by different provisions of law
may be punished under only one provision. Contrary to Ramos’s
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argument, count 3 did not allege Lopez shot at Christian’s truck,
making him the victim, it alleged Lopez shot at an occupied
truck, making the occupant the victim. That occupant was most
clearly Jose (but see post). Lopez’s shooting at a vehicle occupied
only by Jose must be punished either as shooting at an occupied
vehicle or as an assault on Jose, but not both. Therefore, the
sentence on count 12 (Jose) must be stayed.
We recognize that the evidence was equivocal as to whether
Christian had fully exited the truck before Lopez fired at it, as
some testimony indicated that after he opened the door he
stepped out with only his left foot, and pivoted toward Jose before
the shot, thereby remaining partially inside. But as between
Jose and Christian, clearly Jose occupied the truck at the time of
the shooting.
C. Ramos is Entitled to Additional Conduct Credit
Ramos was in custody for 794 days and received this
amount of custody credit. He received an additional 119 days of
conduct credit, or 15 percent, pursuant to Penal Code section
2933.1, subdivision (c). Ramos contends he was entitled to a full
794 days of conduct credit pursuant to Penal Code section 4019,
because the 15 percent limitation under section 2933.1 applies
only when a defendant has been convicted of a violent felony, and
none of his convictions is defined in Penal code section 667.5 as a
violent felony. Respondent concedes the point, and we agree.
A defendant may accrue conduct credits under Penal Code
section 4019 for the period of incarceration prior to sentencing, at
a ratio of two days of conduct credit for every two days of actual
credit. (See People v. Arevalo (2018) 20 Cal.App.5th 821, 827;
Pen. Code, § 4019.) But a defendant convicted of a violent felony,
as defined in Penal Code section 667.5, can earn only up to 15
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percent of the actual time in confinement as conduct credit. (Pen.
Code, § 2933.1, subd. (c); Arevalo, at p. 827.)
Here, none of Ramos’s convictions is listed in Penal Code
section 667.5 as a violent felony. Therefore, he was entitled to
794 days of conduct credit.
DISPOSITION
The judgment is affirmed. The trial court is directed to
amend the abstract of judgment to reflect that the sentence for
count 12 is stayed, and that Ramos is to receive 794 days of
conduct credit, and to forward the amended abstract of judgment
to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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