Filed 3/20/24 P. v. Ramirez CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

 DIVISION ONE 

 STATE OF CALIFORNIA 

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD JACK RAMIREZ, JR.,

Defendant and Appellant.

 D080498

 (Super. Ct. No. SCN421603)

APPEAL from a judgment of the Superior Court of San Diego County, 

Kelly C. Mok, Judge. Affirmed.

Benjamin Boyce Kington, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters and Charles C. 

Ragland, Assistant Attorneys General, Arlene A. Sevidal, Randall Einhorn

and Andrew Scott Mestman, Deputy Attorneys General for Plaintiff and 

Respondent.

A jury convicted Richard Jack Ramirez, Jr., of first degree murder. 

(Pen. Code,1 § 187, subd. (a).) It found true an allegation that he personally 

1 Undesignated statutory references are to the Penal Code. 
2

used a knife. (§ 12022, subd. (b)(1).) In a bifurcated proceeding, Ramirez

admitted he suffered three prior strike convictions and two prior serious or 

violent felony convictions under the “Three Strikes” law. (§§ 667, subds. 

(a)(1), (b), 668, 1170.12, subds (b), (c)(1), 1192.7, subd. (c).) The court 

sentenced Ramirez to 75 years to life for the murder, plus a one year 

enhancement for the knife-use allegation. 

Ramirez contends: (1) The court erroneously admitted evidence of his 

demeanor after the incident; (2) the prosecutor committed several acts of 

misconduct; (3) the court erroneously failed to provide the jury a unanimity 

instruction; (4) there was cumulative error; and (5) the court applied the 

wrong standard to evaluate his posttrial motion to reduce the first degree 

murder conviction to voluntary manslaughter or second degree murder. We 

affirm.

FACTUAL AND PROCEDURAL SUMMARY

On February 5, 2021, a motorist was stopped at an intersection in 

Oceanside. She saw the driver of a pickup truck, later identified as J.R., 

slowly roll back into Ramirez’s pickup truck. Ramirez appeared angry, 

quickly exited his truck, and banged on J.R.’s window. J.R. drove off quickly. 

Ramirez got in his truck and followed J.R. 

J.R. testified that he drove down the street and made two U-turns in an 

effort to “shake [Ramirez] off.” Eventually, J.R. parked across the street from 

his house, and Ramirez parked behind him. J.R. exited his truck and Ralph

Hermosillo, a worker of J.R.’s, approached. An altercation ensued between 

Hermosillo and Ramirez. Referring to J.R., Hermosillo told Ramirez 

something like, “That’s my uncle,” even though it was not true. J.R. did not 

observe a machete or anything in Hermosillo’s hands. Hermosillo pointed out 

that Ramirez’s vehicle was not damaged, and directed Ramirez to the back of 
3

it. Shortly afterwards, J.R. saw Ramirez turn his hat backwards, and he 

heard a “thump.” Hermosillo fell to the ground, and Ramirez kicked

Hermosillo in the head. Ramirez returned to his truck and drove off. 

Both J.R.’s neighbor and a visitor to the neighborhood witnessed a 

portion of the altercation. They testified Hermosillo had no machete or other 

weapon in his hands, and they saw none near his body following the incident. 

Responding to a 911 call, police arrived at the scene, where Hermosillo died 

within minutes.

The medical examiner conducted an autopsy on Hermosillo and 

testified his cause of death was a stab wound to his neck and blunt force 

injury to his head. He stated Hermosillo’s stab wound appeared to be 

inflicted by a double-edged knife. Hermosillo’s blood tested positive for what 

the medical examiner stated was a “very high” level of methamphetamine.

Although they were not married, a woman identified at trial as 

Ramirez’s “wife,” O.C., testified she accompanied him in the vehicle that day.

After the collision, they pursued J.R. to his house. There, Ramirez 

approached J.R.’s vehicle and told him, “Hey dude, all you had to do was pull 

over. All we need is your insurance.” Then, “out of nowhere,” Hermosillo

came from across the street holding a machete and “bouncing on his toes.” 

Hermosillo asked Ramirez, “You have a fucking problem with my uncle?” 

Ramirez stepped back and replied, “Hey dude, your uncle just hit my fucking 

truck.” As Hermosillo approached him, Ramirez ended up at the back of his 

truck. O.C. heard a “smacking” noise and, “out of the corner of [her] eye,” 

saw Hermosillo fall to the ground. Ramirez kicked Hermosillo. As they were 

driving away, she looked in the vehicle’s rear view mirror and saw J.R. 

throwing a machete into the back of his truck.
4

O.C. testified at trial: “I have training. I’m a surgical tech. I know 

what to do. I didn’t know [Hermosillo] was stabbed. I would have applied 

pressure. I would have given CPR.”

On the night of the incident, an Oceanside police officer interviewed 

O.C., and a recording of the interview was played for the jury. O.C. told the 

officer that following the incident, she told Ramirez, “[Y]ou guys didn’t have 

to fucking fight. You could have just fucking told the dude to fuck off and we 

could have left.” Ramirez responded, “I’m a muthafuckin man.”

On cross-examination, O.C. confirmed she telephoned Ramirez in jail

on the night of the preliminary hearing and told him: “Well, I’m here for the 

fucking long run. So I just fucking go with it, whatever you want to do.

That’s—you know, I got you. I got your back regardless. You do what you 

want. You’re a fucking smart man.”

A police officer arrested Ramirez on the night of the incident. He 

recovered a pocketknife from him, but did not yet know about the stabbing. 

The officer put the knife in the back of Ramirez’s truck, which was 

impounded and towed away. The knife was never recovered.

Ramirez testified at trial and admitted stabbing Hermosillo in the neck

with a multi-tool instrument called a Leatherman, which was compared to a 

Swiss Army knife. Ramirez said that at the start of the altercation, his wife 

told him, “Babe, he’s got a machete.” Ramirez saw Hermosillo making 

threatening moves with the machete. Ramirez told Hermosillo to put the 

machete down, but he swung at Ramirez. Fearing for his life, Ramirez

stabbed him in self-defense. Ramirez also admitted kicking Hermosillo in the 

head afterwards. When asked why he did that, he replied, “To make sure, 

you know, that he’s stopped.” Ramirez did not tell his wife he had stabbed 

Hermosillo because “she stresses a lot.” Ramirez conceded that a 
5

Leatherman does not have a double edge, and the medical examiner testified

that Hermosillo was stabbed with a double-edged blade.

On cross-examination, the prosecutor asked Ramirez about the 

circumstances surrounding his arrest. Specifically, when the police officer 

asked him separate questions about the collision and the stabbing incident, 

Ramirez twice responded, “I don’t know nothing.” Ramirez admitted that he

had lied to the officer both times.

In rebuttal, the prosecution played a portion of a video of Ramirez’s 

police interview. The prosecutor asked the interviewing officer if Ramirez’s 

demeanor remained the same “throughout that evening.” The officer replied, 

“Yes, it was like what we saw in the video there. He was just apathetic and 

indifferent to what I had to say, really.”

DISCUSSION

I. Evidence of Ramirez’s Demeanor

Ramirez contends the court erroneously admitted irrelevant and 

prejudicial evidence of his demeanor to show his lack of remorse. He 

contends, “[T]he prosecutor’s assumption that [he] should behave one way if 

the stabbing was justified by self-defense, and some other way if it was

unprovoked, was entirely speculative.” He argues the prosecutor “used the 

evidence to disparage [him] and belittle his defense. . . . These error [sic]

rendered [his] trial fundamentally unfair.” Ramirez additionally contends 

the error was not harmless, as the evidence in this case was “weak” and 

absent the demeanor evidence, “there is a reasonable probability that at least 

one juror would have voted not guilty.” 

A. Background

The prosecution moved in limine to admit videotape evidence showing 

that after he was given his rights under Miranda v. Arizona (1966) 384 U.S.
6

436, Ramirez told the police officer that he did not know anything about the 

incident with Hermosillo. The prosecutor also sought to admit a video 

recording showing Ramirez’s demeanor during his detention. The court 

denied the motion, concluding that evidence was cumulative; however, it 

allowed that if Ramirez testified, the demeanor evidence could be admissible 

for impeachment.

At trial, the prosecutor asked Ramirez regarding his interaction with 

police after they detained him: “You didn’t have a care in the world that you 

just killed somebody?” Next, pointing out that Ramirez fell asleep at the 

police station, the prosecutor asked him, “You then began snoring like a 

baby?” The prosecutor again asked Ramirez, “Did you have a care in the 

world? The court sustained defense objections to each of those questions. 

During closing arguments, the prosecutor drew no objection when he 

mentioned Ramirez’s demeanor during the police interview: “Then we have 

the defendant’s interview. Look at—watch that again. Look at his 

demeanor. Listen to his tone. Listen to what he says: ‘I don’t know nothing,’

right? . . . He has no remorse at all for stabbing another human being in the 

neck. Even if it was justified, is this how you’re going to act? And then right 

afterwards they strip you down, you’re wearing a trash bag, and you just lay 

down and go to sleep like nothing ever happened, snoring like a baby? Give

me a break. Okay. So that’s how we know self-defense is not at issue.”

B. Applicable Law

We review a trial court’s ruling on the admissibility of evidence for an 

abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266.) 

Generally, we will not disturb the exercise of its discretion unless it acted 

arbitrarily, capriciously, or in a patently absurd manner. (People v. Williams

(2008) 43 Cal.4th 584, 634.)
7

To be relevant, the evidence must have “any tendency in reason to

prove or disprove any disputed fact that is of consequence to the 

determination of the action.” (Evid. Code, § 210.) Although generally all 

relevant evidence is admissible (Evid. Code, § 351), the trial court may 

exclude relevant evidence “if its probative value is substantially outweighed 

by the probability that its admission will (a) necessitate undue consumption 

of time or (b) create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.” (Evid. Code, § 352; People v. Cardenas

(1982) 31 Cal.3d 897, 904-905.) “The weighing process under [Evidence Code] 

section 352 depends upon the trial court’s consideration of the unique facts 

and issues of each case, rather than upon the mechanical application of 

automatic rules.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)

“ ‘ “In applying [Evidence Code] section 352, ‘prejudicial’ is not 

synonymous with ‘damaging.’ ” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 

905.) Rather, this prejudice refers to “ ‘ “evidence which uniquely tends to 

evoke an emotional bias against the defendant as an individual and which 

has very little effect on the issues.” ’ ” (Ibid.) “ ‘In such a circumstance, the 

evidence is unduly prejudicial because of the substantial likelihood the jury 

will use it for an illegitimate purpose.’ ” (People v. Branch (2001) 91 

Cal.App.4th 274, 286.)

“Ordinarily, the erroneous admission of evidence is reviewed for 

prejudice under the standard described in People v. Watson (1956) 46 Cal.2d 

818 . . . , which requires reversal only if the defense shows it is reasonably 

probable that a result more favorable to the appealing party would have been 

reached in the absence of the error.” (People v. Roberts (2017) 13 Cal.App.5th 

565, 576.) “However, when the error involves a defendant’s federal 

constitutional rights . . . , the error is reviewed for prejudice under the 
8

standard described in Chapman v. California (1967) 386 U.S. 18, 24

[(Chapman)],” which asks a reviewing court to evaluate whether it can say 

beyond a reasonable doubt that the erroneous admission of evidence did not 

contribute to the jury’s guilty verdict. (Roberts, at pp. 576-577.)

The California Supreme Court addressed the relevance of demeanor 

evidence in People v. Smith (2015) 61 Cal.4th 18. In that case, a detective 

testified that the defendant initially maintained his innocence but insisted he 

would take the blame for the murder. The jury watched a videotape of the 

defendant’s police interview. Afterward, the prosecutor noted that defendant 

seemed to be “ ‘breaking down and crying’ ” at several points, and asked the 

detective what he had observed. (Id. at p. 45.) Defense counsel objected on 

grounds of irrelevance and undue prejudice. The trial court barred the 

detective from giving an opinion based on the videotape, but allowed him to 

report his own observations during the interview. The detective testified that 

when the defendant appeared to be showing emotion, he “ ‘would always 

cover his eyes with his hand. And I didn’t see any tears.’ ” (Id. at p. 46.) 

Defendant on appeal claimed the admission of this testimony violated his 

federal rights to due process and a fair trial, and that the detective’s 

observations were irrelevant to any issue relating to guilt. The California 

Supreme Court ruled, “To the contrary, defendant’s demeanor when 

discussing the crimes was relevant to help the jury determine his intent at 

the time of the events, his state of mind thereafter, and the credibility of his 

account.” (Id. at p. 46.)

C. Analysis

The court carefully circumscribed the evidence of Ramirez’s demeanor 

during his initial interrogation, sustaining defense objections to a series of 

the prosecutor’s questions. The jury was able to observe his demeanor first 
9

hand when it reviewed the videotaped interview. To the extent the court 

permitted limited additional evidence describing his demeanor, there was no 

error. Here, as in People v. Smith, supra, 61 Cal.4th 18, such evidence was 

relevant to help the jury assess Ramirez’s intent, state of mind, and 

credibility.

II. Prosecutorial Error

Ramirez contends the prosecutor committed several errors requiring 

reversal of his conviction. Specifically, he claims the prosecution: shifted the 

burden of proof to the defense to produce evidence; misstated the law of heat 

of passion; improperly referred to his alleged lack of remorse; and misstated 

the reasonable doubt standard. We shall address each contention in turn.

A. Applicable Law

“It is well[-]settled that making a timely and specific objection at trial, 

and requesting the jury be admonished . . . is a necessary prerequisite to 

preserve a claim of prosecutorial [error] for appeal.” (People v. Seumanu, 

(2015) 61 Cal.4th 1293, 1328.) Ramirez concedes his trial counsel did not 

object to some of the prosecutor’s statements; therefore, we conclude as to 

those unobjected to statements that any claims of error are forfeited.

Ramirez preemptively argues trial counsel rendered ineffective 

assistance by failing to object to the prosecutor’s arguments and statements. 

Thus, despite the forfeiture, we will address the merits of Ramirez’s claims. 

To establish ineffective assistance, a defendant must show that counsel’s 

representation fell below an objective standard of reasonableness under 

prevailing professional norms and, as a result, the defendant suffered 

prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) In 

reviewing this claim, we give significant deference to trial counsel’s 

reasonable tactical decisions, and the “ ‘strong presumption that counsel’s 
10

conduct falls within the wide range of reasonable professional assistance.’ ” 

(People v. Lucas (1995) 12 Cal.4th 415, 437, quoting Strickland, at p. 689.) It 

is not necessary to determine “ ‘counsel’s performance was deficient before 

examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the 

ground of lack of sufficient prejudice, which we expect will often be so, that 

course should be followed.’ ” (In re Fields (1990) 51 Cal.3d 1063, 1079, 

quoting Strickland, at p. 697.) “ ‘Surmounting Strickland’s high bar is never 

an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105.) And it is 

“particularly difficult” for a defendant to prevail on direct appeal on a claim 

of ineffective assistance by trial counsel. (People v. Mai (2013) 57 Cal.4th 

986, 1009.) 

“Advocates are given significant leeway in discussing the legal and 

factual merits of a case during argument. [Citation.] However, ‘it is 

improper for the prosecutor to misstate the law generally [citation], and 

particularly to attempt to absolve the prosecution from its . . . obligation to 

overcome reasonable doubt on all elements [citation].’ [Citations.] To

establish such error, bad faith on the prosecutor’s part is not required.” 

(People v. Centeno (2014) 60 Cal.4th 659, 666.)

“When attacking the prosecutor’s remarks to the jury, the defendant 

must show that, ‘[i]n the context of the whole argument and the instructions’ 

[citation], there was ‘a reasonable likelihood the jury understood or applied 

the complained-of comments in an improper or erroneous manner. 

[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury 

drew the most damaging rather than the least damaging meaning from the 

prosecutor’s statements.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)
11

A prosecutor’s conduct violates the federal Constitution when the 

conduct “ ‘infects the trial with such unfairness as to make the conviction a 

denial of due process’ ”; that is, when the conduct is “ ‘of sufficient 

significance to result in the denial of the defendant’s right to a fair trial.’ ” 

(People v. Harrison (2005) 35 Cal.4th 208, 242.) A prosecutor’s argument 

that does not render a criminal trial fundamentally unfair violates California 

law only if the conduct involves “ ‘ “ ‘the use of deceptive or reprehensible 

methods to attempt to persuade either the court or the jury.’ ” ’ ” (Ibid.)

B. Analysis

Ramirez claims the prosecutor shifted the burden of proof to the 

defense, and points to a colloquy at trial in which the prosecutor asked a 

police officer about the Leatherman tool that disappeared after Ramirez’s 

arrest. The prosecutor asked the officer whether the public defender’s office 

has its own investigative team that can go out and hunt down evidence. The 

court sustained defense counsel’s objection that the prosecutor was shifting 

the burden of proof to the defense.

The prosecutor addressed this issue again during closing argument: 

“And then the knife issue, we keep coming back to that and I made some 

questions—asked some questions during my direct [examination] with [a 

detective] and I got objected to as if I was shifting the burden. So I want to 

be very, very clear. I am not shifting the burden here. I know what the 

burden is very well. I accept that burden. I take that burden on. Okay. 

What I’m saying is if there was any evidentiary value that was helpful to the 

defense they have prosecutors [sic].”

At that point, defense counsel objected that the prosecutor was shifting 

the burden to the defense. The court admonished the jury: “[W]hat the

attorneys say during argument is not evidence. They may argue the case 
12

based on the evidence presented in the trial and reasonable inference[s]

drawn therefrom. It is up to you to determine whether the arguments of 

counsel are supported by the evidence presented at trial. That question I did 

sustain an objection back at the time of trial and so the jury was—the jury is 

to disregard that question and what the answer would have been. And so I’ll 

just ask the People to move on to the next point.”

We conclude the court properly sustained Ramirez’s objection to the 

prosecutor’s questioning of the police officer on the issue of burden shifting. 

Moreover, when the prosecutor referred to that issue again in closing 

argument, he clarified he understood the People’s burden. Defense counsel 

again objected, and the court admonished the jury that the arguments of 

counsel are not evidence. In our view, the court’s admonition cured any 

prejudice to Ramirez, and thus this claim fails. 

Ramirez next contends the prosecutor erroneously stated the law on 

heat of passion by arguing in closing: “[Provocation] doesn’t apply here. 

What does it look like when it does apply? This looks like when you come 

home and walk in on one of your neighbors molesting your kid in the act and 

the father blows up and takes it a little too far, blows the guy away or breaks 

his neck or whatever he does, and we as the community we say, ‘You know 

what? You can’t have that. I mean, but we get it. It makes sense.’ So we’re

not—it’s not malice. It’s—we’re going to negate malice. We’re going to cut 

him a break because the average reasonable person would have just seen red 

based on that provocation and lost it and acted. That’s not what happened 

here.”
13

Any error the prosecutor made in the above argument was cured 

because the court correctly instructed the jury regarding heat of passion,2

and that it was to follow the court’s instruction. The court also instructed the 

jury with CALCRIM No. 222 that the arguments of counsel is not evidence. 

We must presume the jury followed those instructions. (People v. Najera

(2006) 138 Cal.App.4th 212.)

Ramirez contends the prosecutor erred by referring to his demeanor, as 

detailed above. As we have already explained, limited evidence on this topic 

was properly admitted. The trial court sustained defense objections to 

certain of the prosecutor’s comments, and we presume the jury followed the 

court’s instructions and disregarded these comments.

Ramirez contends the prosecutor misstated the reasonable doubt 

standard when it stated in rebuttal argument: “Look, reasonable doubt is 

doubt based on reason and we talked about that at the beginning. You’re 

going to have an abiding conviction because you now heard all the evidence 

and that’s not going to change. So you’re going to come for a conclusion based

on the evidence you heard, put it in the context of common sense and 

reasonability [sic], and you come to a verdict. [¶] So how do you know this 

2 The court instructed the jury with CALCRIM No. 570 regarding heat of 

passion as follows: “A killing that would otherwise be murder is reduced to 

voluntary manslaughter if the defendant killed someone because of a sudden 

quarrel or in the heat of passion. [¶] The defendant killed someone because 

of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was 

provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and 

under the influence of intense emotion that obscured his reasoning or

judgment; [¶] AND [¶] 3. The provocation would have caused a person of 

average disposition to act rashly and without due deliberation, that is, from 

passion rather than from judgment. [¶] Heat of passion does not require 

anger, rage, or any specific emotion. It can be any violent or intense emotion 

that causes a person to act without due deliberation and reflection.”
14

case has been proved beyond a reasonable doubt? Inevitably, somebody after 

this is going to ask you, ‘What was that trial about you just sat through for 

two weeks,’ right, Christmas dinner or whatever it may be? And what are 

you going to tell them? ‘It’s about this poor guy named Mr. Ramirez, ex-con. 

He just was misunderstood and this sinister retirement community [sic] had 

it out for him and conspired, and thank God we were there to instill justice in 

the situation?’ Of course not; right? You’re going to say, ‘This is a crazy case 

about this guy who lost it over something so silly, and when a young man 

came over to try to get in between him and his elderly uncle, he got killed 

brutally and then he got through the wringer more than one time, but we sat 

through it all.’ That’s how you know that this case has been proved beyond a 

reasonable doubt. The defendant is guilty. Hold him accountable.”

In determining whether the prosecutor committed error, it is 

significant that the trial court correctly defined the reasonable doubt 

standard in the jury instructions. (Cortez, supra, 63 Cal.4th at p. 131.)3

3 The court instructed the jury with CALCRIM No. 220 on reasonable 

doubt: “The fact that a criminal charge has been filed against the defendant 

is not evidence that the charge is true. You must not be biased against the 

defendant just because he has been arrested, charged with a crime, or 

brought to trial. [¶] A defendant in a criminal case is presumed to be 

innocent. This presumption requires that the People prove a defendant 

guilty beyond a reasonable doubt. Whenever I tell you the People must prove 

something, I mean they must prove it beyond a reasonable doubt. [¶] Proof 

beyond a reasonable doubt is proof that leaves you with an abiding conviction 

that the charge is true. The evidence need not eliminate all possible doubt 

because everything in life is open to some possible or imaginary doubt. [¶] In 

deciding whether the People have proved their case beyond a reasonable 

doubt, you must impartially compare and consider all the evidence that was 

received throughout the entire trial. Unless the evidence proves the 

defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and 

you must find him not guilty.”
15

The court additionally instructed the jury on direct and circumstantial 

evidence with CALCRIM No. 224, stating in part, “Before you may rely on 

circumstantial evidence to conclude that a fact necessary to find the 

defendant guilty has been proved, you must be convinced that the People 

have proved each fact essential to that conclusion beyond a reasonable 

doubt.” The instruction further stated that if the jurors could draw two or 

more reasonable conclusions from the circumstantial evidence, they had to 

accept the one pointing to innocence.

The court also similarly instructed the jury with CALCRIM No. 225: 

“Before you may rely on circumstantial evidence to conclude that a fact 

necessary to find the defendant guilty has been proved, you must be 

convinced that the People have proved each fact essential to that conclusion 

beyond a reasonable doubt.” The court instructed the jurors that in 

evaluating a witness’s testimony, they could consider the reasonableness of 

the testimony in light of all the other evidence in the case, and that as to any 

opinion given by a witness at trial, they could “disregard all or any part of an 

opinion that [they] find unbelievable, unreasonable, or unsupported by the 

evidence.” (CALCRIM No. 333; see CALCRIM No. 226.)

The jury instructions left no doubt about the prosecution’s burden of 

proof, the proper application of each juror’s common sense and experience, 

and the role of reasonableness in reaching a verdict. To the extent the 

prosecutor’s statement was inconsistent with the instructions, the jury was 

instructed to follow the latter. The trial court instructed the jury with 

CALCRIM No. 200, stating in part: “You must follow the law as I explain it 

to you, even if you disagree with it. If you believe that the attorneys’

comments on the law conflict with my instructions, you must follow my 

instructions.”
16

Considered “ ‘[i]n the context of the whole argument and the [jury] 

instructions’ ” (Centeno, supra, 60 Cal.4th at p. 667), the jury in this case was 

not reasonably likely to understand the prosecutor’s comments as 

diminishing the prosecution’s burden of proof. We therefore conclude that 

even if the prosecutor erred, there was no prejudice given the instructions 

and entirety of the argument.

III. Unanimity Instruction

Ramirez contends the court erroneously failed to instruct the jury with 

CALCRIM No. 3500 that the jury must unanimously agree on the act causing 

Hermosillo’s death, the stab or the kick.

Under the state and federal Constitutions, a unanimous jury verdict is 

required to convict a person of a crime. (Ramos v. Louisiana (2020) 590 U.S.

___ [2020 WL 1906545]; People v. Russo (2001) 25 Cal.4th 1124, 1132.) This 

requirement is typically satisfied when the jury unanimously finds the 

defendant committed the alleged crime. But that is not always the case. As 

the California Supreme Court has explained, “[W]hen the evidence suggests 

more than one discrete crime, either the prosecution must elect among the 

crimes or the court must require the jury to agree on the same criminal act.” 

(Russo, at p. 1132.) This requirement “ ‘is intended to eliminate the danger 

that the defendant will be convicted even though there is no single offense 

which all the jurors agree the defendant committed.’ ” (Ibid.)

This rule, however, has “several exceptions.” (People v. Jennings (2010) 

50 Cal.4th 616, 679.) Even when the evidence suggests more than one 

discrete crime, for instance, no unanimity is required if “ ‘ “the acts alleged 

are so closely connected as to form part of one transaction.” ’ ” (People v. 

Williams (2013) 56 Cal.4th 630, 682.) This “continuous conduct” exception 
17

“ ‘applies when the defendant offers essentially the same defense to each of 

the acts, and there is no reasonable basis for the jury to distinguish between 

them.’ ” (Ibid.) 

Here, the evidence showed Ramirez kicked Hermosillo immediately 

after stabbing him, and promptly left the scene. His defense to both his 

stabbing and kicking was the same: he acted in self-defense. Therefore, the 

continuous course of conduct exception to the unanimity instruction 

requirement applies, and Ramirez’s claim of error fails.

IV. Cumulative Error

Ramirez contends the combined effect of the errors he identified 

requires reversal, as he was deprived of due process. Based on our review of 

the record, we conclude there was no error warranting reversal, whether 

considered separately or cumulatively. (People v. Roybal (1998) 19 Cal.4th 

481, 531.) The premise behind the cumulative error doctrine is that, while a 

number of errors may be harmless taken individually, their cumulative effect 

requires reversal. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)

V. Posttrial Motion

The court denied Ramirez’s motion to reduce his conviction from first

degree murder to voluntary manslaughter or second degree murder under 

People v. Dillon (1983) 34 Cal.3d 441 (Dillon). Ramirez contends that at the 

hearing on the motion, the parties treated it as one for a new trial under 

section 1181, subdivision (6), but the court in denying it erroneously relied on 

the standard for a judgment of acquittal under section 1118.1. He specifies: 

“Here, rather than acting as the ‘13th juror,’ the trial court simply 

determined whether the jury’s verdict was supported by substantial 

evidence.” Ramirez alternatively contends his trial counsel provided 
18

ineffective assistance by failing to move for a new trial under section 1181, 

subdivision (6).

A. Background

Following the jury verdict, Ramirez moved for a reduction of his 

sentence under Dillon, which applies if the punishment is “grossly 

disproportionate to the offense as defined or as committed, and/or to the 

individual culpability of the offender.” (Dillon, supra, 34 Cal.3d at p. 450.) 

He argued: “In Dillon, the most compelling facts about the defendant were 

his extraordinary youth and the fact that even for a young person he was 

unusually immature, as demonstrated by the psychologist’s report provided 

to the Court. Here, the most compelling fact about [Ramirez] is he was with 

[sic] the legitimate victim of a hit and run and following the suspect to 

prevent him from getting away. He never threatened the suspect in any way 

during their encounter.” 

The People opposed the motion: “The [d]efendant is essentially asking 

the court to accept a version of events that were [sic] specifically rejected by a 

jury to justify the extraordinary measure of reducing his conviction. Unlike 

[Dillon, supra, 34 Cal.3d 441], where the undisputed facts and the 

implication of the felony-murder rule gave rise to the contemplated relief, 

[d]efendant’s articulated justification rests upon facts that were in dispute at 

trial. This dispute was put to rest after a fair trial by a jury of his peers.”

At a hearing on the motion, although Ramirez’s counsel mentioned

Dillon, he in effect requested the court reweigh the trial evidence and “vacate 

the first degree murder conviction under . . . Dillon and instead find 

[Ramirez] guilty of voluntary manslaughter or at most a second degree

murder.” He continued: “Clearly, the defense had hoped for an acquittal

based on self-defense, but we were prepared for a different outcome. We 
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thought voluntary manslaughter was a possibility and that worst case 

scenario, this was a second degree murder, at most. But a first degree

murder conviction, in our opinion, was unfathomable. There was no—the 

evidence simply did not conclude that [ ] Ramirez intended to kill. He never

expressed an intent to kill. He never said, ‘I’m going to kill him.’ He never—

first degree murder requires an act to be willful—to be willfully, deliberately,

and with premeditation. And here there was nothing that was willful.”

The court in denying the motion did not address the Dillon criteria:

“I’m mindful of the standard, which is that this court will review the evidence 

to determine whether a rational trier of fact could have found the defendant 

guilty beyond a reasonable doubt. This was a jury trial and this was a 

verdict from the jury after they heard all the evidence and deliberated on this 

case for some time and they decided that the defendant intended to kill the 

victim and that he did meditate and deliberate. [¶] And so in determining 

whether a rational trier of fact could have found the defendant guilty of that 

first degree murder, I did consider the facts that came out at the trial, 

namely in terms of the circumstances surrounding this stabbing. The 

defendant did arm himself with a knife. And he didn’t spend much time with 

the victim, but he did spend time with the victim in the sense that it wasn’t 

moments—I mean, there was some time when he first got to the scene of 

where this all occurred, not this hit-and-run, but I’m talking about ultimately 

where this all happened. [¶] They moved to another location where it was 

just the defendant and the victim while the two witnesses . . . were a little bit 

of a distance away from them. And then there was some discussion between 

the defendant and the victim. And then at some point, in the middle of that, 

Mr. Ramirez took the time to flip his hat backwards before stabbing the 

victim directly in the neck, which ultimately Mr. Hermosillo fell back. And 
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while he was down on the ground, Mr. Ramirez kicked him in the head, when 

it was obvious that Mr. Hermosillo was completely incapable of responding in 

any way. [¶] And so those are the—that is the evidence that came out at the 

trial. That is part of the evidence that the jury heard. And based on that and 

the evidence, they came back with a first degree murder conviction. And at 

this point, in evidencing that, this court finds that a rational trier of fact 

could have found the defendant guilty of first degree murder. And I’m not 

going to disrupt the first degree murder verdict that the jury ultimately 

determined that the defendant was guilty of.”

B. Applicable Law

Murder is the unlawful killing of a human being with malice 

aforethought. (§ 187, subd. (a).) “[S]econd degree murder . . . is ‘the unlawful 

killing of a human being with malice aforethought but without the additional 

elements, such as willfulness, premeditation, and deliberation, that would 

support a conviction of first degree murder.’ ” (People v. Cravens (2012) 53 

Cal.4th 500, 507; see §§ 187, subd. (a), 189.) “ ‘A defendant who commits an 

intentional and unlawful killing but who lacks malice is guilty of . . . 

voluntary manslaughter.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 153 

(Breverman), quoting § 192.) Voluntary manslaughter is a lesser included 

offense of murder. (People v. Gonzalez (2018) 5 Cal.5th 186, 197 [“Lesser 

included offenses of first degree premeditated murder include second degree 

murder, voluntary manslaughter, and involuntary manslaughter”]; 

Breverman, at p. 154.)

“ ‘Generally, the intent to unlawfully kill constitutes malice. 

[Citations.] “But a defendant who intentionally and unlawfully kills 

[nonetheless] lacks malice when [he] acts in a ‘sudden quarrel or heat of 

passion’ (§ 192, subd. (a)), or . . . kills in ‘unreasonable self-defense’—the 
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unreasonable but good faith belief in having to act in self-defense.” ’ ” (People 

v. Rios (2000) 23 Cal.4th 450, 460.) These mitigating circumstances reduce 

an intentional, unlawful killing from murder to voluntary manslaughter “by 

negating the element of malice that otherwise inheres in such a homicide.” 

(Breverman, supra, 19 Cal.4th at p. 154.)

The California Supreme Court in Porter v. Superior Ct. (2009) 47 

Cal.4th 125 set forth the difference between a motion under section 1118.1, 

which seeks a judgment of acquittal for insufficient evidence and a motion 

under section 1181, subdivision (6), which seeks a new trial because the 

verdict is contrary to law or evidence: “In ruling on an 1118.1 motion for 

judgment of acquittal, the court evaluates the evidence in the light most 

favorable to the prosecution. If there is any substantial evidence, including 

all inferences reasonably drawn from the evidence, to support the elements of 

the offense, the court must deny the motion. [Citation.] . . . [T]he relevant 

question is whether, after viewing the evidence in the light most favorable to 

the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.’ ” (Id. at p. 132.)

“The court extends no evidentiary deference in ruling on [a section] 

1181[, subdivision] (6) motion for new trial. Instead, it independently 

examines all the evidence to determine whether it is sufficient to prove each 

required element beyond a reasonable doubt to the judge, who sits, in effect, 

as a ‘13th juror.’ [Citations.] If the court is not convinced that the charges 

have been proven beyond a reasonable doubt, it may rule that the jury’s 

verdict is ‘contrary to the . . . evidence.’ [Citations.] In doing so, the judge 

acts as a 13th juror who is a ‘holdout’ for acquittal. Thus, the grant of a 

section 1181[, subdivision] (6) motion is the equivalent of a mistrial caused by 

a hung jury.” (Porter v. Superior Ct., supra, 47 Cal.4th at p. 133.) 
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Ramirez argues the court ruled on a new trial motion under section

1181, subdivision (6) based on its references to “whether a rational trier of 

fact could have found the defendant guilty.” However, the more reasonable 

interpretation of the court’s ruling is that it expressly applied the criteria for 

a judgment of acquittal under section 1118.1, which it articulated twice. The 

court repeatedly referred to the jury’s verdict, evincing that it accorded it a 

level of deference consistent with the criteria for a ruling on a judgment of 

acquittal.

Ramirez alternatively contends his trial counsel provided ineffective 

assistance by failing to also move for a new trial under section 1181, 

subdivision (6). The trial court in ruling on the motion discussed the 

evidence in some detail and offered what were clearly its own independent 

conclusions. It focused on the fact that once Ramirez reached J.R.’s house, he 

had enough time to move to the back of his pickup, turn his hat backwards, 

and stab Hermosillo directly in the neck. Furthermore, Ramirez kicked 

Hermosillo’s head. The court concluded, on its own terms, that Ramirez 

deliberated and acted with the required malice for first degree murder. 

Under the criteria set forth above for an ineffective assistance of counsel 

claim, Ramirez cannot show prejudice from his counsel’s failure to specifically 

move the court for a ruling on a new trial under section 1181, subdivision (6). 

If defense counsel had done so, it would have been an idle act, as the court 

would most likely have denied it based on its independent analysis of the 

record set forth above.
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DISPOSITION

The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

KELETY, J.