Filed 7 / 13 / 23 P. v. Ramirez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. RICHARD DAVID RAMIREZ, Defendant and Appellant. G061275
(Super. Ct. No. 01WF2314)

O P I N I O N

Appeal from a n order of the Superior Court of Orange County, Andre Manssourian, Judge. Affirmed.

Mark Alan Hart, under appointment by the Co urt of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Lynn McGinnis and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
* * *2 Two decades ago, a jury found defendant Richard David Ramirez guilty of
first degree murder. He later filed a petition for relief from his murder conviction under
Penal Code section 1172.6. 1 The trial court denied his petition on grounds he had failed to state a prima facie case. On appeal, t he record shows the jury found Ramirez intentionally killed the victim. So , he is ineligible for relief under section 1172.6 as a
matter of l aw. We therefore affirm the order.

I
FACTS AND PROCEDURAL HISTORY
A. Ramirez’s Conviction s

The following facts are provided for background purposes . They have been
taken from this Division’s unpublished opinion , People v. Ramirez , et al. ( Jan. 18, 2006,
G033858 ) [nonpub. opn.] , which affirmed Ramirez’s convictions.

Ramirez was a drug dealer and member of the Hawaiian Gardens gang, which was “‘at war’” with an Artesia gang. Seventeen

- year

- old G uillermo Carvajal went to Ramirez’ s house to pay off a relative’s debt. Carvajal was from Artesia but was not in
a gang. According to an eyewitness, codefendant s Ja r en Anthony Cervantes and Stanley
Dean Cruz were at Ramirez’s house and were members of gangs that were hostile to the same Artesia gang. Cervantes , Cruz , and an unidentified man accused Carvajal of being
from Artesia and asked about his gang affiliation

. Carvajal turned to leave but Cruz and
Cervantes blocked his exit and summoned Ra mirez. ( People v. Ramirez , supra , G033858.)

1 All further unspecified statutory references are to the Penal Code. Former s ection 1170.95 was renumbered section 1172.6 without substantive change, effective June 30, 2022. For clarity, we refer to the statutory provision as section 1172.6. (Stats. 2 022, ch. 58, § 10.)3 “ Ramirez to ld [Carvajal] , ‘ You have been coming over here for like six months and you are from Artesia, ’ then punched him. The men forced [Carvajal] to his
knees. Ramirez asked Cervantes to get some rope or tape. The men then took [Carvajal]
out of the eyewitness’ s view. After a few minutes, the eyewitness heard one of them say,

‘ It looks like he’s dead, home[s]. ’ One of them asked for a blanket to wrap around the body. Ramirez approached the eyewitness, gave him some drugs, and warned him,

‘ don’t trip. ’ Ramire z explained that they had been ‘ taking care of this fool from Artesia ’
because ‘ we’re at war with these fools. ’ ” ( People v. Ramirez , supra , G033858.) Ramirez
and Cervantes later dumped Carvajal’s body in Los Alamit os. ( Ibid .)

Ramirez, Cervantes, and Cruz were each charged with one count of first degree murder (§ 187, subd. (a)), and street terrorism (§186.22, subd. (a))

. The
information al so alleged special cir cumstances of murder commi t ted (1) during a robbery (§ 190.2, subd. (a)(17)), and (2) while participating in a criminal street gang (§ 190.2, subd. (a)(22))

. The information further alleged a gang sentence enhancement for the murder charge (§ 186.22, subd . (b)(1))

.

The three defendants were tried together and convicted on all counts. The jury found true the gang murder special circumstance and the gang sentence
enhancement. But it found not true the robbery murder special circumstance. The three defendants were all sentenced to life without the possibility of parole. ( People v. Ramirez , supra , G033858.)

We affirmed the convictions

.

B. Petition for Resentencing

“Effective January 1, 2019, the Legislature passed Senate Bill [No.] 1437 [(2017

- 2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 1, subd. (f))] ‘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, did4

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.’ [Citation.] In addition to substantively amending sections 188 and 189 of the Penal Code, Senate Bil l [No.] 1437 added section 1170.95, [now section 1172.6,] which provides a procedure for convicted murderers who could not be convicted under the law as amended to retroactively seek relief.” ( People v.
Lewis (2021) 11 Cal.5th 952, 959.)

T o seek relief u nder section 1172.6, a convicted murderer must file a declaration stating (1) a charging document was filed against the petitioner allowing the prosecution to proceed under a felony murder or natural and probable consequences theory of murder , (2) the peti tioner was convicted of murder , and (3) the petitioner could not presently be convicted of murder due to the amendments to sections 188 and 189. (§ 1172.6, subd. (a); People v. Strong (2022) 13 Cal.5th 698, 708.)

The trial court reviews a 1172.6 petition “ ‘to determine whether the petitioner has made a prima facie case for relief ’ [Citation s .] If the petition and record in the case establish conclusively that the defendant is ineligible for relief, the trial court may dismiss th e petition. [Citation s .] If, instead, the defendant has made a prima facie showing of entitlement to relief, ‘ the court shall issue an order to show cause. ’ ” ( People v. Strong , supra , 13 Cal.5th at p. 708 .) Generally, this leads to “ an evidentiary hear ing at which the prosecution bears the burden of proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under state law as amended by Senate Bill 1437.” ( Id . at pp. 708

- 709.)

Ramirez filed a section 1172.6 petit ion for resentencing

. Among other things, h is declaration asserted he c ould not presently be convicted of first degree murder
because he (1) was not the actual killer, (2) did not aid or abet the actual killer and had no intent to kill, and (3) was not a major participant in the underlying felony who acted with
reckless indifference to human life. The district attorney ’s office opposed the petition. It argued the gang murder special circumstance required the jury to find that Ramirez had5

intended to kill Carvajal. Thus, Ramirez could still be convicted of first degree murder today

. T he trial court summarily denied Ramirez’s petition outside the presence of the parties

. T he court ’s explanation for the denial only stated, “[t]he petition does not set forth a prima facie case for relief under the statute.”

Ramirez appeals the denial of his petition . He maintains the court should
have issued an order to show cause and held an evidentiary hearing.

II
DISCUSSION
The primary issue on appeal is whether the jury’s findings on the gang
murder special circumstance makes Ramirez ineligible for relief under section 1172.6

.

As set forth above, f

ollowing Senate Bill No. 1437, a n accomplice can no longer be con victed o f murder under a felony murder or natural and probable consequences theory. ( People v. Pacheco (2022) 76 Cal.App.5th 118, 123

- 124 ( Pacheco ).) However, “an accomplice can still be convicted of murder as a direct aider and abettor.” ( Id . at p. 124 .) “Under a direct aider and abettor liability theory, the prosecution must prove the person who is not the actual killer ‘engaged in the requisite acts and had the requisite intent’ to aid and abet the target crime of murder. [Citation.] A
direct aider and abettor’s ‘guilt is based on a combination of the direct perpetrator ’ s acts and the aider and abettor ’ s own acts and own mental state.’” ( Ibid .)

Also, t here is no need for a jury to distinguish between the actual killer and

a direct aider and abettor. “‘“The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices ’ actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who [was] the direct perpetrator or

to what extent each played which role.”’ [Citation.] ‘ [A]s long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is6

defined by statute, it need not decide unanimously by which theory he is guilty. [Ci tations.] More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator. ’ ” ( People v. Williams (2022) 86 Cal.App.5th 1244, 1252 .)

Here, the jury was instructed on three differe nt theories of murder: direct aiding and abetting, a natural and probable consequences theory of aiding and abetting,
and felony murder based on commission of the robbery

. T he verdict form does not specify which theory the jury relied on when finding Ram irez guilty of first degree
murder

. But the record shows the jury found Ramirez directly aided and ab etted the
murder

. Specifically, t he jury found true the gang murder special circumstance. To make this finding, it had to conclude Ramirez intentionally killed Carvajal

. T he relevant jury instruction stated, “ [t] o find that the special circumstance, ‘intentional killing by an active street gang member ’ is true, it must be proved:

“ 1. The defendant intentionally killed the victim ;

“ 2. At th e time of the killing, the defendant was an active participant in a criminal street gang;

“ 3. The members of that gang engaged in or have engaged in a pattern of criminal gang activity;

“ 4. The defendant knew that the gang members engaged in or have enga ged in a pattern of criminal gang activity; and

“ 5. The murder was carried out to further the activities of the criminal street
gang. ” (Italics added.)

Ramirez suggests the jury may have believed that one but not all of the codefendants intentionally killed Carvajal

. Thus, the jury may not have found he intentionally killed Carvajal. This argument is unpersuasive for two reasons.7 First, t he jury considered the gang murder special circumstance separately
for each defendan t. It was instruct ed , “[y] ou must decide separately as to each of the
defendants the existence or nonexistence of each special circumstance alleged in this

case. ” Second, the jury specifically found the gang murder special circumstance
true for Ramirez

. It issued a finding stating, “ [w] e the jury FIND IT TO BE TRUE that
the SPECIAL CIRCUMSTANCE pursuants [ sic ] to Penal Code Section 190.2(a)(22) exists, to

- wit: RICHARD DAVID RAMIREZ committed the murder while the defendant was an active participant of a criminal street gang, with know l edge that its members engage in and have engaged in a pattern of criminal gang activity and did wi l lfu l ly promote further and a ssist in felony criminal conduct by gang members .”

Because the jury found the gang murder special circumstance true for
Ramirez , it must have found that he intentionally killed Carvajal. In other words , the jury
found Ramirez directly aided and abetted in Carvajal’s murder. Thus, Ramirez ’s murder
conviction would still be valid under the amen ded versions of sections 188 and 189. ( Pacheco , supra , 76 Cal.App.5th at pp. 123

- 124.)

While neither party has cited this Division’s opinion in Pacheco , we note that it is not inconsistent with our decision today

. Pacheco found a jury’s true finding on

a gang murder special circumstance did not bar the petitioner from section 1172.6 relief as a matter of law. ( Pacheco , supra , 76 Cal.App.5th at pp. 121

- 122.) However, t he
Pacheco jury instructions were markedly different fr om the instructions at issue here. In
Pacheco , t he jury was instructed that to find the gang murder special circumstance true , the prosecution had to “ prove that: 1. A perpetrator intentionally killed [the victim] ; [¶] 2. At the time of the killing, th e defendant was an active participant in a criminal street
gang; [¶] 3. The defendant knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] 4. The murder was carried out to further the8

activities of the criminal street gang; [¶] AND [¶] 5. The defendant had the intent to
kill at the time of the killing. ” ( Id . at pp. 127

- 128.)

Crucially, t he first element of the jury instructions in Pacheco did not require the jury to find the petitioner killed the victim. It only required a finding that “ [ a ] perpetrator” did. (Italics omitted.) Thus, Pacheco concluded the jury could have found the petitioner “intended to kill [( i.e. , had the requisite mens rea) ] , but he did nothing to directly ‘aid, facilitate, promote, encourage, or instigate’ the target crime of murder [ ( i.e

. , the actus reus)] .” ( Pacheco , supra , 76 Cal.App.5th . at p. 128.)

Here, the jury found Ramirez “ intentionally killed the victim .” Th is finding
establishes that Ramirez intended to kill Carvajal ( the mens rea) and committed an act that directly aid ed the murder ( the actus reus)

.

Finally, Ramirez contends the court erred by failing to provide a statement explaining i t s denial of his petition. (§ 1172.6, subd. (c).) But e ven if the court failed to provide such a statement, the error was harmless. ( S ee People v. Epps (2001) 25 Cal.4th 19, 29 [harmless error test applie s to errors of state law].) Under th e harmless error test, a ruling is reversed if it is reasonably probable the defendant would have obtained a more
favorable result in the absence of the error. ( Ibid .) As explained above, the record shows Ramirez is ineligible for relief under section 1172.6. A statement explaining the court’s

reaso ning for the denial would not have allowed Ramirez to obtain a more favorable
result.9 III
DISPOSITION
The order is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

DELANEY, J.