Filed 9/2/15 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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.

CHARLES THOMAS RAMIREZ , JR.
, Defendant and Appellant. G049845

(Super. Ct. No. 11 NF 0916)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Affirmed.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant

a nd Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.

* * *2 A jury convicted defendant Charles Thomas Ramirez , Jr., of first degree

murder (Pen. Code, § 187, subd. (a)) 1 and found true the enhancement h e personally
discharged a firearm causing death (§ 12022.53, subd. (d))

. The court sentenced

defendant to a total prison term of 50 years to life. 2

D efendant con tends the court erred by instructing the jury with CALCRIM

No. 334 , which defin es the term “ accomplice. ” We disagree and affirm the judgment.

FACTS

Marc Luna testified for both the prosecution and the defense. Luna
testified for the prosecution pursuant to an agreement that if he truthfully testified
consistently with his proffer statement, the first degree murder charge against him would

be dismissed and he would serve a four

- year prison term for being an accessory after the

fact. 3

The Prosecution ’ s Case

1. Luna ’ s testimony for the prosecution.
Luna lived in a house with his wife, her parents, and defendant (Luna’s
wife’s brother). The house was in an area claimed by the Fullerton Tokers Town gang

1 All statutory references are to the Penal Code.

2 The court sentenced defendant to a term of 25 years to life for the murder conviction and a consecutive term of 25 years to life for the enhancement. Pursuant to section 1385, the court exercised its discretion to strike defendant’s prior petty theft

conv iction.

3 The information also charged codefendant Luna with first degree murder and acting as an accessory after the fact.3

(Tokers gang). Prior to the date of the shooting, Tokers gang members had “ hassled ”

Luna and

, on one occasion, had beaten him up pretty badly.

On March 17, 2011, around 9 :00 p.m., Luna was walking home from a
Narcotics Anonymous meeting in Fullerton. He regularly att ended such meetings. On
this occasion, as he walked dow n an alley

, three white men demanded to see hi s phone,
approached him, a n d pushed him to the ground. Luna got up and r a n home

.

Upon arriving home , Lun a realiz ed he did not have his cell phone

. Luna
told his wife he had to go back and get his phone. Defendant went with Luna, although

Luna had not asked him to do so

.

Luna and defendant w al k ed back to the area w here Luna had lost his cell
phone. After finding the phone, defendant asked Luna to walk with him up the dark
alleyway.
After walking a little further, Luna saw two Hispanic men who appeared to
be changing a tire on a miniv a n

. Luna told defendant the Hispanic men were not the
same persons who had attacked him . Defendant acknowledged he knew this, but said,

“ I ’ ve got to get at these fools real quick. ”

Defendant whistled a nd went to talk to the men. Luna heard defendant say,

“ Homey, ” in an “ aggressive ” tone. Luna heard one of the men laugh in defendant ’ s face.
Defendant punched the young m an in the face , knocking him to the ground. The victim
grabbed a tire iron and tried to run

. Defendant pulled out a gun and shot the victim

. The

victim fell.

Luna ran home. Defendant a rrived there a few minutes later

. Defendant
told Luna, “ Don ’ t say shit, dawg. ” Luna did not report the incident to the police.

Later, in jail, when Luna asked defendant why he had shot the victim,
defendant replied that he had “ just meant to shoot him in the ass. ”4 2. Other prosecution evidence. 4

A forensic pathologist testified the victim died of a gunshot wound to the
head and was shot from over two feet away.

Defense

1. Defendant ’ s testimony. 5

Defendant testified on his own behalf. On the night of the shooting, Luna

had come home and told def endant that Tokers gang members had “ got [hi m ] again. ”
Defendant noticed blood trickling down Luna ’ s cheek. Defendant knew that Luna had
previously been attacked twice by the Toker s gang.

That night, defendant carried a gun for protection because he and his family
members had been stopped or hurt by Tokers gang members many times in the past.

Defendant was not carrying the gun for retaliation.

When defendant and Luna reached the alley, defendant w as aware that
Tokers gang members sometimes hung out the re. Defendant hoped to reach a “ peace ful ”

ag reement where “ this could stop happening, ” because defendant ’ s parents owned their
house and did not plan to move soon. Defendant felt sad and bad for Luna, who kept
getting hurt and was now bleeding.

Defendant saw two young men in the alley. Defendant whistled.
Defendant asked them where they were from. The victim replied they were from “ Tokers

Town. ” Defendant said, “ You guys keep jumping my brother

- in

- law

. . . . It ’ s got to

stop, man

. ” Defenda nt gestured toward Luna, who was standing around 10 or 15 feet

4 Other witnesses testified for the People, including the victim’s companion who saw the shooting.

5 Other witnesses testifi ed for the defense, including Luna.5

behind defendant sinc e Luna was scared. The victim may have responded sarcastically or

even chuckled

.

Defendant hit the victim. The victim picked up a crowbar. Defendant, in

fear for his li fe, shot at the victim ’ s butt area or the back of his thighs.

DISCUSSION

The Court Properly Instruct ed the Jury with CALCRIM No. 334

Defendant contends the court erred by instructing the jury with CALCRIM

No. 334

, because insufficient ev idence s how ed Lu na could have been an accomplice.

Defendant argues the error was prejudicial because t he instruction “ implicitly told the
jury that a crime had been committed which refuted [ defendant’ s] c lai m of self defense

. ”

CALCRIM No. 334 applies when there is a dispute about whether a witness
is an accomplice to the crime charged against the defendant

. The ins t ruction defines the

term “ accomplice, ” and instructs the jurors they must decide whether a particular witness
was an accomplice. 6 CALCRIM No. 334 then st ates that, if the jury decides a witness
was an accomplice, then the jury may use the accomplice ’ s testimony to convict the
defendant only if the testimony is supported by independent evidence which the jury

believes and which tends to connect the defendan t to the commission of the crime.

6 Defendant contends the following language of CALCRIM No. 334 presupposes, and thus implies to a jury, that the defendant did in fact commit a crime: “A person is an accomplice if he or she is subject to prosecution for the identical crime charged against the defendant. Someone is subject to prosecution if: He or she personally committed the crime; or he or she knew of the criminal purpose of the person who committed the crime ; and he or she intended to, and did in fact, aid, facilitate, promote, encourage, or instigate the commission of the crime or participate i n a criminal conspiracy to commit the crime.” (Italics added.)6 T he court determine d substantial evidence suggested Luna could be an accomplice and therefore instructed the jury with CALCRIM No. 334. 7

A person is a n accomplice if he or she aid s and abet s a crime
charged against a def

endant

. (§ 1111 ; People v. Houston (201 2 ) 54 Cal.4th 1186, 1223

. )

To a id and abet a c r ime, a person (1) must have knowledge of the perpetrator ’s criminal

purpose , and (2) must act with an intent t o commit, or encourag e or facilitat e commission
of, the crim e. ( Id

. at p. 1224. ) A w itness charged with the same crime as the defendant

, and who has be en granted immunity

, i s not necessarily an accomplice. ( People v.

Stankewitz (1990) 51 Cal.3d 72, 90.)

Aiding and abetting must take place before and/ or during the defendant’s

commission of a crime. It may be committed “‘ on the spur of the moment, ’ that is, as instantaneously as the criminal act itself. [Citation.]” ( People v. Nguyen (1993) 21

Cal. App. 4th 518, 532.) A person ’ s conduct after the commiss ion of a crime does not

7 During the finalization of the instructions, the trial court and counsel discussed whether CALCRIM No. 334 or CALCRIM No. 335 (or neither of them) should be given. CALCRIM No. 335 applies when a witness is indisputedly an accomplice to a crime that was indeed committed, and instructs the jury that it may use the accomplice’s testimony to convict the defendant only if such testimony is supported by independent evidence which the jury believe s and which tends to connect the defendant to the commission of the crime. The prosecutor argued CALCRIM No. 334 should be given because, in the prosecution’s view, Luna was not an accomplice. Defense counsel argued neither instruction should be given. She argued CALCRIM No. 334 “would be confusing the way it’s worded.” Subsequently, the prosecutor changed his position, stating that although the People believed CALCRIM No. 334 was the most accurate instruction, the People did not oppose the giving of CA LCRIM No. 335 if the defense wanted it. Defense counsel had concerns about both instructions, but as between the two, preferred CALCRIM No. 335 over CALCRIM No. 334. Defense counsel objected on the record to the giving of CALCRIM No. 334. The court foun d the evidence was insufficient to show Luna was an accomplice as a matter of law and therefore declined to give CALCRIM No. 335, but determined sufficient evidence existed to support the giving of CALCRIM No. 334.7

result in accomplice liability, but might implicate him or her as an accessory

. ( People v.

Horton (1995) 11 Cal.4th 1068, 1 1 16.)

“ When a jury receives substantial evidence that a witness who has
implicated the defendant was an acc omplice, ” the trial court must sua sponte instruct the
jurors on accomplice testimony. ( People v. Houston

, supra , 54 Cal.4th at p. 122 3 .) T he
court should instruct the jury with CALCRIM No. 334 when the facts c on cerning the witness’s complicity “‘ are disputed or susceptible of different inferences

. ’ ” ( People v.

Cisneros (1973) 34 Cal.App.3d 399, 413 [as to CALJIC instructions on accomplice
testimony].) In contrast, t he court should give CALCRIM No. 335 when the witness is
an accomplice as a matter of law

. And

, “‘ where, as a matter of law, the witness is not an
accomplice, the court does not err in refusing to charge that he is or in refusing to submit
the issue to the jury. ’ ” ( Cisneros , at p

. 413. )

We review de novo defendant’s contention the court erred by instructing
the jury with CALCRIM No. 334. ( People v. Alvarez (1996) 14 Cal.4th 155, 218.) But we review for substantial evidentiary support the court’s finding that substantial evidence
implicated Luna as an accomplice. ( People v. Boyer (2006 ) 38 Cal.4th 412, 466

- 467.) Evidence sufficient to support a court’s giving of an instruction sua sponte is “ evidence

sufficient to ‘ deserve consideration by the jury, ’ that is, evidence that a reasonable jury
could find persuasive ” ( People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8), as compared

to “‘minimal and insubstantial’” evidence ( i d . at p. 201 [concerning instruction on murder

in unreason able self

- defense]).

Defendant contends the evidence is insufficient to show Luna was an
accomplice. He asserts there is no evidence Luna (1) asked him to accompany Luna to

retriev e Luna’s phone, (2) encouraged him to confront the victim, (3) knew what
defendant intended to do, (4) came closer than about 10 feet away from the encounter,

and/ or (5) was invol ved in the confrontation.8 The absence of direct evidence of any or all of the foregoing is not
dispositive. Luna was an accomplice if he “in any way, directly or indirectly, aided
[defendant], with knowledge of [defendant’s] wrongful purpose.” ( In re Ly nette G.
(1976) 54 Cal.App.3d 1087, 1094.) Circumstantial evidence may show the requisite
knowledge and intent. ( People v. White (2014) 230 Cal.App.4th 305, 319.) There is no
requirement that the perpetrator expressly communicate his criminal purpose to the
accomplice . ( People v. Nguyen

, supra , 21 Cal. App. 4th at p. 531.) “Factors to be
considered by the trier of fact in determining ‘whether one is an aider and abettor include
presence at the scene of the crime, failure to take steps to attempt to preve nt the
commission of the crime, companionship, flight, and conduct before and after the

crime. ’ ” ( People v. Garcia (2008) 168 Cal. App. 4th 261, 273.) Luna’s conduct met all
five factors suggesting aiding and abetting.

The following s ubstantial evidence s upported the court’s determination that

Luna might have instig a ted an d aided defendant’s murder of the victim, and might have

kn o w n of defendant’s p urpos e

. Luna had previously been beaten up by Tokers gang

members. Luna’s and defendant’s home was located in an area claimed by the Tokers
gang, and defendant and his family had been harassed and hurt many times by Tokers

gang members. On the night of the shooting, Luna came home with a bleeding cheek and

told defendant th at Tokers gang members had attacked him again

. With defendant at his
side, Luna headed back to the same all e y where he had just been attacked by three men.
After finding his phone, Luna did not immediately go home. Instead, he walked with

defendant further down the dark alle y. Luna rem a i ned at the scene after he and defendant

encountered t wo young men. Luna remained there after defendant punched the victim in

the face . He remained there during the shooting. Only then did he flee the scene. This
evidence was sufficient to show (1) Luna knew of defendant’s intent to stop the Tokers gang from harassing Luna, defendant, and defendant’s family members, by sending the

gang a ser ious and violent signal , and (2) Luna instigated and aided the crime by t ell ing9

defendant the Tokers gang had assaulted Luna again

— thereby triggering defendant’s
anger toward the Tokers gang, as well as defendant’s protective instincts toward Luna

— and by backing up defendant in the criminal plan.

Defendant relies on People v. Cisneros

, supra , 34 Cal.App.3d 39 9

, disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 30, footnote 8

, and
People v. Hoover (1974) 12 Cal.3d 875 , 880 , but in both of those cases , the evidence was

insufficient to show the witness at issue was an accomplice. In Cisneros

, on e alleged
accomplice did not know or act in concert with the defendant. ( Cisneros

, at p. 41 4

. ) The
other alleged accomplice handed the defendant a gun upon the defendant’s request, but

t here wa s no evidence indicat ing he “ had any idea of the purpose for which [the]
defendant wanted his gun. ” ( Id. at p. 415.) In Hoover
, the alleged accomplice was an
undercover F.B.I. agent who “ had no inkling that the shooting was about to occur ” and

turned over the gun to F.B.I. superiors after the incident. ( Hoover , at p. 881.)

Defendant also contends that People v. Jackson (1954) 42 Cal.2d 540

, should guide this court ’ s decision to find CALCRIM No. 334 was in appropriately given
to the jury. Jackson states, “ It has long been the law th at it is error to charge the jury on
abstract principles of law not pertinent t o the issues in the case. [ Citation. ] The reason
for the rule is obvious. Such an instruction tends to confuse and mislead the jury by
injecting into the case matters which t he undisputed evidence shows are not involved. ”
( Jackson

, at p p. 546

- 547.) However, since there was substantial evidence from which a
jury could conclude that Luna was an accomplice, CALCRIM No. 334 addresses an issue
pertinent to the case. Indeed, Jackson further explains, “ But if the evidence discloses
facts pertinent to the case

. . . the court

. . . must instruct the jury with reference to the
applicable law when request ed by either party and may do so even though no request has

been made. ” ( Jac kson

, at p. 547.) I n this case, the court was required to give CALCRIM
No. 334 sua sponte. Thus, Jackson supports the notion that the trial court correctly
instructed the jury with CALCRIM No. 334.10 In sum, the evidence supports the giving of the accomplice instruction.

Because we conclude the trial court did not err in giving CALCRIM No. 334, we need

not address defendant’s contention the alleged error was prejudicial because “the
instruction improperly encouraged the jury to f ind that [defendant] had committed a crime and therefore reject [his] claim of self defense.” 8

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

FYBEL, J.

8 To the extent defendant intends to ra ise a constitutional challenge to CALCRIM No. 334 , he has waived the challenge by failing to adequately brief it with reasoned argument and legal authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793.) To the extent defendant intends to argue the instruction was confusing as given in this case, defense counsel below failed to request a modification of CALCRIM No. 334, thereby forfeiting the issue on appeal. ( People v. Hernandez (2010) 183 Cal.App.4th 1327, 1331 [trial court has no sua sponte duty to give clarifying or amplifying instructions].)