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Filed 4/10/15 P. v. Ramirez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY RAY RAMIREZ,

Defendant and Appellant.

E059933

(Super.Ct.No. FSB1204420)

OPINION

APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, 

Jr., Judge. Affirmed.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney 

General, and Eric A. Swenson, Lynne McGinnis, and Ryan H. Peeck, Deputy Attorneys 

General, for Plaintiff and Respondent.
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Defendant Anthony Ray Ramirez and a second man confronted a group of four 

strangers. Defendant said, “If you mess with my girl, I’ll kill you,” then advanced toward 

the men. Two of the men — expecting a fair fistfight — responded by moving toward 

defendant. Defendant, however, whipped out a gun and shot both of them. One survived; 

the other died.

A jury found defendant guilty on three counts:

1. Second degree murder (Pen. Code, § 187, subd. (a)), with an enhancement for 

personally and intentionally discharging a firearm, causing great bodily injury or death 

(Pen. Code, § 12022.53, subd. (d)).

2. Attempted murder (Pen. Code, §§ 187, subd. (a)), 664, subd. (a)), with an 

enhancement for personally and intentionally discharging a firearm, causing great bodily 

injury or death (Pen. Code, § 12022.53, subd. (d)).

3. Assault with a firearm (Pen. Code, § 245, subd. (a)(2)), with an enhancement 

for personal firearm use (Pen. Code, § 12022.5).

The jury deadlocked with respect to whether the attempted murder was willful, 

deliberate, and premeditated, and the trial court dismissed this allegation. Defendant was 

sentenced to a total of 78 years 4 months to life in prison.

Defendant now contends:

1. The trial court erred by instructing on the significance of defendant’s failure to 

explain or deny evidence against him.
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2. Defendant’s trial counsel rendered ineffective assistance by failing to argue that 

defendant lacked the ability to pay a $10,000 restitution fine.

We find no error. Hence, we will affirm.

I

FACTUAL BACKGROUND

A. The Prosecution’s Case.

Defendant and his girlfriend were staying in a house at the corner of Johnson 

Street and 40th Street in San Bernardino while visiting from Arizona. Witness Heather 

Delio also lived in the same house.

Hector Hernandez and Raymond Torres lived in a house less than a block north, at 

4036 Johnson Street. They did not know defendant.

1. The encounter at the liquor store.

On September 30, 2012, around 5:45 p.m., Hector1 was walking north on Johnson 

Street. With him were his cousins, Jesus Rosales and Daniel Rosales. Each of them had 

had from one to three beers earlier in the day; Daniel may have had as many as five. They 

were going to a liquor store to buy more beer.

 

1 We will refer to all four men in the victim group by their first names. Two 

of them had the same last name, so we use their first names for the sake of clarity. We 

also use first names for the other two, to be consistent internally, as well as to be 

consistent with the reporter’s transcript.
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At the same time, Delio and defendant’s girlfriend were also walking up Johnson 

Street to the same liquor store. The women ran into defendant, who was riding a bicycle. 

Defendant “threaten[ed]” his girlfriend. Hector’s group saw defendant speak to the 

women, then turn around and go back down Johnson Street.2

At the liquor store, Hector’s group bought an 18-pack of Budweiser. They then 

walked back to Hector’s house. Raymond was already there.

2. The first encounter at the house.

Not more than five minutes later, all four men in Hector’s group were out in the 

front yard when they saw defendant ride by on his bicycle. He rode up and down the 

street, passing the house three or four times. He started “mad[-]dogging” them.

Defendant and Daniel “exchanged words.” At that point, defendant had stopped in 

the middle of the street. The others calmed Daniel down. Jesus told defendant to “chill 

out” and explained that Daniel had been drinking. Defendant rode away.

3. The second encounter at the house.

About five minutes later, defendant came back, again on a bicycle. This time, 

however, he was accompanied by one Rusty Miner,3 also on a bicycle.

 

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Jesus told police that defendant “seemed to want to get interested with the 

girls,” and that Daniel “laughed out loud.”

3 Originally, Miner was charged, as a codefendant in this case, with acting as 

an accessory after the fact. (Pen. Code, § 32.) We take judicial notice that he pleaded 

guilty before trial.
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Daniel yelled, “That’s what I thought, you little bitch.” Defendant said, “Who are 

you calling a bitch?”

Defendant accused Daniel of whistling, and added, “If you mess with my girl, I’ll 

kill you.”

Defendant got off the bike and came toward the men. Hector thought there was 

going to be a fistfight. Because there were two people on defendant’s side, he felt he 

should back up Daniel. Accordingly, he took off his shirt and exclaimed, “Fuck this 

shit.” Daniel started to walk toward defendant and Hector started to walk toward Miner. 

No one in Hector’s group had a weapon.

When Daniel was four to eight feet away from defendant, defendant pulled out a 

gun and fired two shots.

The first shot hit Daniel; it entered his left shoulder and exited from his upper right 

back, killing him within seconds. At the time of death, his blood alcohol level was 

approximately 0.25 percent.

Hector turned around and started running, but the second shot hit him; it entered 

the back of his neck and exited under his right ear. He was treated at a hospital and 

survived.

Raymond ran away, down the side of the house. When he looked back, he saw 

that defendant had followed him and was pointing the gun at him. He put his hands up 

and said, “I have a son.” Defendant took the 18-pack of Budweiser, got back on his 

bicycle, and left.
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On the way back from the liquor store, Delio and defendant’s girlfriend heard 

shots. After they got back home, defendant’s girlfriend helped defendant and Miner 

come in through Delio’s bedroom window. Defendant told all of them, “[K]eep your 

mouth shut.”

Later that night, the police found defendant and Miner in Delio’s bedroom and 

arrested them. Defendant pretended to be asleep. He gave the police a false name, 

“Michael Ramirez.”

A .40-caliber semiautomatic handgun was under the bed. Testing showed that this 

was the gun used in the shooting.

An empty 18-pack of Budweiser was in the room; Budweiser cans were in the 

bedroom and elsewhere around the house.

B. The Defense Case.

Defendant took the stand on his own behalf.

He testified that he and Miner went out on their bikes to look for his girlfriend. 

They caught up with her and Delio on the way to the liquor store. Defendant’s girlfriend 

was upset because he had been talking to an ex-girlfriend (who was also the mother of his 

children); he tried to reassure her. However, she told him to leave her alone. He and 

Miner then continued to ride around and around the block on their bikes.
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As they rode by the house, Daniel came out into the street. He was acting as if he 

wanted to fight defendant. He said, “Who are you mad[-]dogging?” He called defendant 

a “[f]ucking bitch.” He ordered defendant to get off his bike. Defendant said, “I don’t 

want no problems with you guys” and rode away.

Defendant went to the liquor store, looking for his girlfriend again, but could not 

find her. On the way back home, he and Miner passed the house.4

This time, Daniel came out into the middle of the street. Defendant tried to go 

around him, but Daniel blocked his path, so he stopped. Daniel said, “I thought I told you 

to stop riding up and down my block.” Defendant said to the other men, “Somebody get 

this [bitch].” Daniel said, “Who are you calling a [bitch]?”

Hector pulled off his shirt and threw it; first he said, “Fuck this fool,” then he said, 

“Blast this fool.” All four men “jumped up” and came out into the street.

According to defendant, Daniel pulled out a gun. Defendant — in fear for his life 

— pulled out his own gun and shot twice. He was pointing the gun toward Daniel, but 

Hector was right behind Daniel.

Defendant denied chasing Raymond. He testified that it was Miner who took the 

beer.

 

4 Defendant’s testimony was hopelessly inconsistent with respect to whether, 

at this point, he was going north or south on Johnson.
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II

INSTRUCTION ON FAILURE TO EXPLAIN OR DENY EVIDENCE

Defendant contends the trial court erred by instructing on the relevance of his 

failure to explain or deny evidence against him.

The trial court instructed the jury with CALCRIM No. 361, as follows:

“If the defendant failed in his testimony to explain or deny evidence against him, 

and if he could reasonably be expected to have done so based on what he knew, you may 

consider his failure to explain or deny in evaluating that evidence. Any such failure is not 

enough by itself to prove guilt. The People must still prove the [d]efendant guilty beyond 

a reasonable doubt.

“If the [d]efendant failed to explain or deny, it is up to you to decide the meaning 

and importance of that failure.”

Preliminarily, the People argue that defendant forfeited his present contention by 

failing to object to CALCRIM No. 361 below. “By statute, a defendant may challenge on 

appeal an instruction that affects his or her substantial rights even when no objection has 

been made in the trial court. [Citations.]” (In re Sheena K. (2007) 40 Cal.4th 875, 881, 

fn. 2; see also Pen. Code, §§ 1176, 1259, 1469.) “‘[W]hether claimed instructional error 

affected the substantial rights of the defendant necessarily requires an examination of the 

merits of the claim . . . .’ [Citation.]” (People v. Ngo (2014) 225 Cal.App.4th 126, 149.) 

We therefore turn to the merits.
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As defendant concedes, in People v. Saddler (1979) 24 Cal.3d 671, our Supreme 

Court upheld the constitutionality of an essentially identical instruction. (Id. at pp. 678-

681.) Specifically, it rejected arguments that the instruction (1) violated the right against 

self-incrimination (id. at pp. 678-679), (2) violated the presumption of innocence (id. at 

pp. 679-680), and (3) impermissibly singled out the testimony of a defendant from that of 

other witnesses (id. at pp. 680-681).

Likewise, in Caminetti v. United States (1917) 242 U.S. 470, the United States 

Supreme Court held that a similar instruction did not violate the right against selfincrimination (id. at pp. 494-495): “[W]here the accused takes the stand in his own 

behalf and voluntarily testifies for himself [citation], he may not stop short in his 

testimony by omitting and failing to explain incriminating circumstances and events 

already in evidence, in which he participated and concerning which he is fully informed, 

without subjecting his silence to the inferences to be naturally drawn from it.” (Id. at 

p. 494.)

Here, instead of arguing that the instruction violates the right against selfincrimination, defendant argues that it violates the right to testify. Nevertheless, the 

Supreme Court’s reasoning in Caminetti is on point — the right to testify is not a right to 

“stop short in [one’s] testimony.”

Defendant argues that there is no need for a separate instruction relating solely to a 

defendant’s testimony. CALCRIM No. 226, which applies to the testimony of every 

witness, allows the jury to consider “anything that reasonably tends to prove or disprove 
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the truth or accuracy of that testimony . . . .” Specifically, it allows the jury to ask itself, 

“How reasonable is the testimony when you consider all the other evidence in the case?” 

and “Did other evidence prove or disprove any fact about which the witness testified?” 

CALCRIM No. 361, however, is based on Evidence Code section 413, which provides, 

“In determining what inferences to draw from the evidence or facts in the case against a 

party, the trier of fact may consider, among other things, the party’s failure to explain or 

to deny by his testimony such evidence or facts in the case against him . . . .” This rule of 

law applies only to a party. (People v. Rodriguez (2009) 170 Cal.App.4th 1062, 1068 

[“Evidence Code section 413 allows a trier of fact to consider a party’s failure to explain 

or deny evidence, a principle expressed in CALCRIM No. 361. This distinguishes a 

criminal defendant from the other trial witnesses, whether prosecution or defense.”].)

We also note that a defendant differs from a nonparty witness in two relevant 

respects. First, the defendant has a uniquely personal stake in the outcome of the trial; all 

else being equal, this gives him or her a stronger motivation to explain or deny any 

seemingly incriminating facts. Second, the defendant has significant control over the 

conduct of the defense. He or she can interact with defense counsel throughout the trial; 

if the defendant has something helpful to say, defense counsel can make sure the 

necessary question gets asked.

Finally, defendant argues that the instruction did not apply because he did not fail 

to explain or deny any evidence that he could reasonably be expected to have knowledge 

of.
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“Before an instruction on this principle may be given, the trial court must ascertain 

as a matter of law: (1) if a question was asked that called for an explanation or denial of 

incriminating evidence; (2) if the defendant knew the facts necessary to answer the 

question or if some circumstance precluded the defendant from knowing such facts; and 

(3) if the defendant failed to deny or explain the incriminating evidence when answering 

the question. [Citations.] [¶] Contradiction of the state’s evidence is not by itself a 

failure to deny or explain. [Citations.] Failure to recall is not an appropriate basis for this 

instruction. [Citation.]” (Judicial Council of Cal., Crim. Jury Instns. (2014) Bench Notes 

to CALCRIM No. 361, bolding replaced with italics.)

Actually, there were multiple matters that defendant failed to explain or deny.

Defendant testified that, when he fired, he was out in the street. Both Daniel and 

Hector were also in the street, a few feet southwest of him. Accordingly, he fired both 

shots in the same direction — to the southwest.

One bullet, however, was found under a car due west of defendant’s claimed 

position. The other bullet was found in front of a house northwest of defendant’s claimed 

position.

Two bullet casings were also found at the scene. Neither side has asked to have 

transmitted to us the exhibits that would clarify exactly where these casings were found. 

However, it appears that they were found at a location inconsistent with defendant’s 

claimed position. Also, while blood trails were found, no blood was found in the street.
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On cross-examination, defendant testified:

“Q Do you know why there’s no blood other than what’s shown, the streak there 

by Placard Number Two? [¶] . . . [¶] . . .

“THE WITNESS: No, I don’t, sir.”

“Q Can you explain to the jury, if you know, how the casings from the Hi-Point 

gun ended up in the locations indicated by Placard Seven and Placard Eight . . . ?

“A I don’t — I don’t know.”

“Q Do you have any information about how that bullet ended up under that car? 

[¶] . . . [¶] . . .

“THE WITNESS: I don’t know, sir.”

“Q . . . [¶] . . . [¶] If you know, can you explain to the jury how if you shot in 

the direction indicated by the arrow twice very quickly that bullet ended up north? [¶] 

. . . [¶] . . .

“THE WITNESS: I was pointing the gun at Daniel, sir. So I don’t know if by me 

running (indicating) away from him. I just remembered shooting towards Daniel, sir.

“BY [THE PROSECUTOR]:

“Q In the direction —

“A That’s all I remember. I don’t remember where the bullets landed or anything 

like that.”

Thus, this is not a case in which the defendant simply gave a different account than 

the prosecution’s witnesses did. Rather, defendant’s account was inconsistent with the 
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physical evidence, and he was unable to explain that physical evidence. Moreover, this is 

not a case in which the defendant could not be expected to have the information necessary 

to explain or deny the evidence against him. Defendant admitted being present and firing 

the shots. Surely he knew where he was standing, where the victims were standing, and 

what direction he fired in; thus, the jury could reasonably expect him to be able to explain 

the location of the bullets, bullet casings, and blood drops.

We therefore conclude that the trial court did not err by giving CALCRIM 

No. 361.

III

FAILURE TO OBJECT TO THE AMOUNT OF THE RESTITUTION FINE

Defendant contends that his trial counsel rendered ineffective assistance by failing 

to argue that defendant lacked the ability to pay a $10,000 restitution fine.

A. Additional Factual and Procedural Background.

According to the probation report, defendant had no income and no assets. The 

probation officer recommended a finding that defendant was not able to reimburse 

appointed counsel fees or presentence investigation costs. However, she also 

recommended a restitution fine in the amount of $10,000. The trial court followed all of 

these recommendations. Defense counsel did not object to the amount of the restitution 

fine.
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B. Analysis.

The trial court was required to impose a restitution fine, absent “compelling and 

extraordinary reasons for not doing so . . . .” (Pen. Code, § 1202.4, subd. (b).) For a 

defendant sentenced in 2013 for a felony, as defendant was, the minimum amount of the 

fine was $280; the maximum amount was $10,000. (Ibid.)

“The restitution fine shall be set at the discretion of the court and commensurate 

with the seriousness of the offense.” (Pen. Code, § 1202.4, subd. (b)(1).) “In setting the 

amount of the fine . . . , the court shall consider any relevant factors, including, but not 

limited to, the defendant’s inability to pay, the seriousness and gravity of the offense and 

the circumstances of its commission, any economic gain derived by the defendant as a 

result of the crime, the extent to which any other person suffered losses as a result of the 

crime, and the number of victims involved in the crime.” (Pen. Code, § 1202.4, subd. 

(d).)

Nevertheless, “the court may determine the amount of the fine as the product of the

minimum fine . . . multiplied by the number of years of imprisonment the defendant is 

ordered to serve, multiplied by the number of felony counts of which the defendant is 

convicted.” (Pen. Code, § 1202.4, subd. (b)(2).)

“Express findings by the court as to the factors bearing on the amount of the fine 

shall not be required.” (Pen. Code, § 1202.4, subd. (d).)

“When challenging a conviction on grounds of ineffective assistance, . . . the 

defendant must first show counsel’s performance was deficient, in that it fell below an 
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objective standard of reasonableness under prevailing professional norms. Second, the 

defendant must show resulting prejudice, i.e., a reasonable probability that, but for 

counsel’s deficient performance, the outcome of the proceeding would have been 

different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)

We may assume, without deciding, that it was objectively unreasonable not to at 

least ask the trial court to reduce the amount of the restitution fine. Even if so, defendant 

cannot show a reasonable probability that doing so would have changed the outcome. 

Defendant stood convicted of two of the most serious and grave offenses possible, 

committed against two different victims. The statutorily permissible formula — $280 

times 78 years times two counts — would produce an amount far in excess of the $10,000 

maximum. The probation officer had independently concluded that the maximum amount 

was appropriate. The trial court was aware of defendant’s lack of income and assets, as 

shown by its finding that he lacked the ability to reimburse counsel fees or presentence 

investigation costs. However, “[i]n the absence of a contrary showing, the court is 

entitled to presume the defendant will pay the restitution fine out of future earnings. 

[Citation.]” (People v. Urbano (2005) 128 Cal.App.4th 396, 405.) Presumed future 

earnings may include future prison wages, even when “it would take a very long time and 

the fine might never be paid.” (People v. DeFrance (2008) 167 Cal.App.4th 486, 505.) 

Thus, there is no reason to suppose that, even if defense counsel had objected, the trial 

court would have lowered the amount of the restitution fine.
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IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

KING

J.