Filed 11/22/13 P. v. Ramos CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

GAVINO CIRILO RAMOS,

Defendant and Appellant.

 B244221

 (Los Angeles County

 Super. Ct. No. VA117053)

APPEAL from a judgment of the Superior Court of Los Angeles County, John A. 

Torribio, Judge. Reversed in part, modified in part, affirmed in part, and remanded with 

directions.

Matthew D. Alger, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Idan Ivri, 

Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION

A jury convicted defendant, Gavino Cirilo Ramos, of second degree murder. 

(Pen. Code,1 § 187, subd. (a).) The jury further found gang and personal firearm use 

allegations true. (§§ 186.22, subd. (b)(1)(C), 12022.53, subd. (d).) The trial court found 

defendant had sustained five prior serious or violent felony convictions. (§§ 667, subds. 

(a)(1) & (b)-(i); 1170.12.) The trial court expressly declined to make a finding with 

respect to an alleged prior prison term. (§ 667.5, subd. (b).) We reverse the 30-year-to 

life sentence for second degree murder. We direct the trial court on remand to either 

comply with section 1385, subdivision (a), or impose a 45-year-to-life sentence for 

second degree murder. We modify the sentence imposed with respect to the section 667, 

subdivision (a)(1) prior serious felony convictions. We direct the trial court, upon 

remittitur issuance, to either impose the section 667.5, subdivision (b) enhancement or to 

strike it and set forth its reasons for doing so. We affirm the judgment in all other 

respects.

II. THE EVIDENCE

Defendant was charged in the single-count information along with two fellow 

gang members, the codefendants, Andres Verduzco and Isabel Ballesteros. Defendant 

and Mr. Verduzco were tried together before the same jury. Ms. Ballesteros was tried at 

the same time but before a separate jury. 

Defendant was an active member of a Lynwood gang. On August 13, 2010, at 

about 6 p.m., defendant went to a gang hangout on Blumont Road in South Gate. The 

house was on the border of defendant’s gang’s territory. At the time, Ms. Ballesteros

operated a gambling machine there. And a rival Compton gang member was selling 

methamphetamine from the location. Defendant was accompanied by a fellow gang 

 

1

 Further statutory references are to the Penal Code unless otherwise noted.
3

member, Mr. Verduzco. Several people were in the garage smoking methamphetamine 

when defendant and Mr. Verduzco arrived. Among them were three or four members of 

the rival Compton gang. There was an ongoing, years-long feud between the Lynwood 

and Compton gangs. Defendant announced himself to the rival gang members. He then 

pulled a gun from his waistband or pocket and said, “Everybody get the fuck out.” As 

people scattered, defendant fired his weapon. A rival gang member, Albert Reyes, was 

shot and died. The murder weapon was a Smith and Wesson or Glock semi-automatic 

pistol. 

Four eyewitnesses saw defendant remove the weapon from his waistband or 

pocket and fire it. Paola Wing lived at the Blumont Road home. Gerardo Ibarra, a 

fellow gang member, temporarily lived there. Ms. Wing answered the door when 

defendant and Mr. Verduzco arrived at the house. They asked for Mr. Ibarra. Ms. Wing

was surprised to see them. She said it had been a while since Mr. Verduzco had come by. 

It seemed odd to Ms. Wing that Mr. Verduzco would just show up. Ms. Wing told 

defendant and Mr. Verduzco there were rival gang members present. Defendant said, 

“That’s cool.” Ms. Wing led them to the garage. Defendant introduced himself by his 

gang moniker and identified his gang. Ms. Wing saw defendant take a gun from his 

waistband and wave it around in the air. Defendant said, “Everybody get the fuck out.” 

Ms. Wing described defendant bringing his arm out from his side with the gun in his 

hand. She heard one gunshot. She did not see defendant fire the weapon. She did not 

see him aim it at any particular person. 

Susana Cruz was a reluctant witness. She feared gang retaliation for being a 

snitch. Ms. Cruz was in the garage of the Blumont Road house smoking 

methamphetamine. She saw two men enter the garage. She observed the encounter 

between the two men and the rival gang members. She heard something that sounded 

like “hood.” She testified she meant, “Like for me like when presenting themselves like, 

bring out their hood, bring out where they belong to,” meaning their gang. Ms. Cruz saw 

one of the two men take a gun out of his pocket. He told everyone to leave. The gun 

seemed to go off by accident. In Ms. Cruz’s opinion, it did not look like the man fired
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the gun on purpose. Ms. Cruz was looking at the gunman when she heard the gunshot. It 

did not look like he was aiming it at anyone. Ms. Cruz admitted she never told law 

enforcement officers she thought the gunman fired accidentally. During the subsequent 

investigation, Ms. Cruz told Officer William Cotter that Ms. Wing started screaming 

when the gun went off. Ms. Cruz heard defendant say to Ms. Wing, “Shut the fuck up, 

bitch, or I’ll kill you.” Ms. Cruz also said that one of the rival gang members, the 

“cholo,” had said something that caused the gunman to react and say, “Get the fuck out.”

Yesenia Torres was in the kitchen washing dishes when defendant and 

Mr. Verduzco passed through on their way into the garage where the fatal shooting 

occurred. Mr. Verduzco had been at the Blumont Road house more than 20 times in the 

past. Ms. Torres saw him stand in the doorway to the garage. Ms. Torres heard

defendant say, “Everybody get the fuck out.” She saw defendant take a gun from his 

waistband with his right hand. Defendant aimed the gun toward a side door leading to 

the yard. Ms. Torres heard one gunshot. The victim was leaving the garage through the 

side door when he was shot. 

Mr. Ibarra was not available as a witness at the time of trial. His prior recorded 

testimony was introduced. Mr. Ibarra had known defendant for a long time. Defendant 

had dated Mr. Ibarra’s sister. The two men were fellow gang members. Mr. Ibarra had 

bragged to Ms. Wing about how close the two were. Mr. Ibarra was asleep in a chair in 

the garage when defendant and Mr. Verduzco entered. Mr. Ibarra woke up before he 

heard the gunshot. Mr. Ibarra saw something black in defendant’s left hand. He heard a 

sound like a firecracker. Mr. Ibarra heard Ms. Wing screaming, “No, Gavino, No.” 

Defendant was holding the black object sideways. Defendant and Mr. Ibarra spoke later 

that evening. Defendant told Mr. Ibarra the rival gang members should not have been 

gambling or selling narcotics out of the Blumont Road house. Defendant said the rival 

gang members were “not in line” and “out of bound.” Later, Mr. Ibarra told Sergeant 

Shannon Laren that when he awoke in the garage, he saw defendant holding a gun. 

Defendant was holding the gun in his left hand. Defendant’s arm was extended straight 
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out. The gun was at a 45 degree angle and turned to the side. Mr. Ibarra saw defendant 

pull the trigger. 

Mr. Ibarra told Sergeant Laren about a subsequent conversation with defendant. 

After the shooting, defendant told Mr. Ibarra the rival gang members should not have 

been at the Blumont Road house, they were out of their boundary. Defendant learned

Mr. Ibarra was at the house. Defendant had been trying to call Mr. Ibarra. Defendant 

intended to tell Mr. Ibarra the rival gang members had to leave because they were out of 

their area. Defendant was unable to reach Mr. Ibarra. Defendant said he then went to the

Blumont Road residence himself. 

There was some evidence defendant went to the Blumont Road house to address a 

disagreement involving the gambling operation. George Guera was defendant’s fellow 

gang member. The two men had known each other for many years. Mr. Guera operated 

gambling machines in multiple places in Lynwood, Compton, Bellflower and South Gate. 

Some of those places were residences. Mr. Guera had placed a gambling machine in the 

Blumont Road garage. Mr. Guera put Ms. Ballesteros, one of defendant’s two 

codefendants, in charge of that gambling machine. Ms. Ballesteros and Ms. Wing—who 

lived in the home—evenly split the gambling profits. A day or so prior to the shooting, a

dispute arose after Ms. Ballesteros accused Mr. Ibarra of using counterfeit $20 bills. 

Ms. Wing told Mr. Ibarra what Ms. Ballesteros had said about him. Mr. Ibarra

confronted Ms. Ballesteros. A heated argument ensued. Ms. Wing heard Ms. Ballesteros

threaten to have defendant “check” Mr. Ibarra. To “check” Mr. Ibarra would be to put 

him in his place or discipline him. Defendant testified he had heard about the dispute. 

Defendant went to the Blumont Road house to talk to Mr. Ibarra and Ms. Wing. Sergeant 

Laren spoke to Mr. Ibarra about why defendant came to the house. While testifying, 

Sergeant Laren was asked about the conversation with Mr. Ibarra, “You asked him . . . if 

he believed that [defendant] and [Mr. Verduzco] were coming by to check him . . . ?” 

According Sergeant Laren, Mr. Ibarra’s answer was, “No, definitely not.” In terms of the 

dispute over the $20 bill, Mr. Ibarra revealed to Sergeant Laren what defendant had said 

about the subject. Defendant stated he could care less about the $20 dispute. 
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There was additional evidence defendant went to the Blumont Road house to 

retaliate against the rival gang for selling methamphetamine in territory claimed by his 

gang. Moises Medina, a member of the rival Compton gang, had been selling 

methamphetamine from the Blumont Road house. Ms. Wing was nervous when 

defendant and Mr. Verduzco showed up at her house because there were rival gang 

members present. She knew that some gangs did not like other gangs coming into their 

territory and selling drugs. Mr. Ibarra testified the shooting was about the rival gang 

coming into the area to sell narcotics. Sergeant Laren testified gangs are very territorial. 

They do not like other gangs selling narcotics in their area. It is a major offense. Deputy 

Fernando Sarti testified a gang would need permission to sell dope out of a house claimed 

by a rival gang. Absent permission, a verbal confrontation, beating or shooting was 

likely to occur. 

Mr. Medina testified for the defense. He had been selling methamphetamine from 

the Blumont Road house. He was in the garage with two of his fellow gang members, 

including the victim, when three guys came in. Mr. Medina had never seen them before. 

He heard a gunshot. At the preliminary hearing, Mr. Medina testified the gunman said, 

“Everybody get the fuck out.” Sergeant Cotter interviewed Mr. Medina following the 

shooting. Mr. Medina said three men entered the garage. He later said it was two men. 

The shooter said, “Get the fuck out of here.” Mr. Medina did not want to identify 

anyone. Mr. Medina told Sergeant Cotter: “I don’t want this on paper. I don’t need that 

shit.” 

Defendant testified he: was unarmed when he arrived at the Blumont Road house;

had not visited the home for eight or nine months; had been in drug rehabilitation and 

was not using methamphetamine anymore; did not know about the gambling operation;

and had heard about an argument involving Mr. Ibarra and Ms. Wing. Defendant told 

Mr. Verduzco, “Let’s go see if I can find [Ms. Wing] and [Mr. Ibarra] so I can talk to 

them.” Defendant testified he was unarmed and did not know there were rival gang 

members present until Ms. Wing told him. Upon seeing Mr. Ibarra, defendant told 

everyone to get out. When asked why he ordered everybody to leave, defendant 
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answered: “Because it didn’t concern them. So I figured, well, you know what, this is 

none of your business. You guys get out.” Defendant testified Mr. Reyes first produced 

a firearm. Defendant testified: “He was withdrawing a gun from his waist with his right 

hand. I grabbed his gun with my left hand and then I grabbed the barrel. We began to 

struggle. I told him, ‘Don’t do it. Let it go.’” Other people in the room began to yell and 

run for the door. Defendant described the continuing struggle with Mr. Reyes: “[A]s I 

stripped it, I like snatched it out of his hand. When I seen - - he wasn’t going to stop me, 

so I just snatched it out. In the process of snatching it out I jumped back. Jerked it. He 

went to turn towards the door. Everybody is already running. Everybody is bolting for 

the doors. [¶] So at that time as I jerked, I gripped the gun. As I gripped and pulled, 

that’s when it discharged.” Defendant then fled through the same door he had used to 

originally enter the room. Defendant took the gun with him when he fled. It was a Glock 

semi-automatic handgun. 

Dr. Marvin Pietruszka, a pathologist, testified for the defense. Dr. Pietruszka 

testified the victim was shot from at least two feet away. There was no soot or stippling 

indicating a closer range.

III. DISCUSSION

A. Evidentiary Error

Defendant argues it was prejudicial error to admit Ms. Ballesteros’s statement she 

was going to call defendant to “check” Mr. Ibarra. As noted, to “check” refers to putting 

a person in his or her place or disciplining the individual. Defendant asserts, “[The 

statement] supplied [defendant] with a sinister motive for going to the house on Blumont 

Road.” Defendant further contends, “That statement gave the jury the indelible 

impression that [defendant] was an enforcer for [Mr.] Guera[, who ran the gambling 

operation,] and had been charged with ‘putting things in order’ for the . . . gang at the 

Blumont Road house.” Defendant reasons that if the jurors believed he was a gang 
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enforcer, they would have rejected his claims: he went to the house simply to resolve a 

dispute; he was unarmed; and that the gun fired accidentally. We find no prejudice.

There was testimony Ms. Ballesteros said she was going let defendant know about 

Mr. Ibarra’s counterfeit bills. Upon defense objection, the trial court stated the evidence 

would be limited to defendant and Ms. Ballesteros. The trial court directed the jury, 

“Ladies and gentlemen, you are only to consider this conversation she is talking about to 

Mr. Gavino Ramos and Miss Isabel Ballesteros.” In Mr. Ibarra’s prior recorded 

testimony, the following was developed: “Q Did you tell the police that [Ms. Wing] told 

you that [Ms. Ballesteros] was going to call [Mr. Guera] and [defendant] to come check 

you? [¶] A Yes [¶] Q Did [Ms. Wing] tell you that? [¶] A Yes.” Additionally, 

Sergeant Laren confirmed Mr. Ibarra’s claim concerning Ms. Wing’s intention to call 

Mr. Guera and defendant. The trial court directed the jury that this evidence was limited 

solely to Ms. Ballesteros. 

We need not determine whether the trial court erred. We find the error, if any, 

was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; 

People v. Watson (1956) 46 Cal.2d 818, 836.) The pivotal question was whether 

defendant was armed or unarmed and the shooting was intentional or accidental. 

Defendant claimed he was unarmed. Defendant testified it was Mr. Reyes who had a 

gun. And defendant’s version was that the gun discharged accidentally during a struggle 

with the victim. Defendant’s version of the events was not corroborated. There was no 

evidence any other person present was armed. Prior to defendant’s arrival in the garage, 

Ms. Wing had not seen anyone with a gun. She had not heard anyone talk about having a 

gun. Mr. Medina was selling methamphetamine in the garage. Ms. Torres had not seen 

Mr. Medina with a gun. Mr. Medina did not mention having a gun. Four eyewitnesses 

saw defendant remove a gun from his waistband or pocket immediately prior to the 

shooting. No witness saw defendant struggle with anyone. Even Mr. Medina, who 

testified for the defense, did not testify about any struggle. None of the people present 

saw Mr. Reyes with a gun or saw defendant struggle with the victim. Further, there was 

substantial evidence defendant’s motive was to retaliate against the rival gang for selling 
9

methamphetamine in defendant’s gang’s territory. Given that evidence, Ms. Ballesteros’s 

statement could not have prejudiced defendant’s case under any prejudice based standard 

of reversible error. 

B. Sentencing

1. Section 667, subdivision (a)(1)

The trial court enhanced defendant’s sentence by 25 years under section 667, 

subdivision (a)(1). Defendant contends, the Attorney General concedes, and we agree 

defendant was subject to only one five-year section 667, subdivision (a)(1) prior serious 

felony conviction enhancement for an offense brought and tried separately. (§ 667, subd. 

(a)(1); In re Harris (1989) 49 Cal.3d 131, 136; see People v. Wiley (1995) 9 Cal.4th 580, 

583.) The judgment must be modified to so provide.

2. Sections 667, subdivisions (b) through (i) and 1170.12

The information alleged defendant had three prior convictions within the meaning 

of sections 667, subdivisions (b) through (i) and 1170.12 (case No. TA026160). 

Defendant waived his jury trial right as to those allegations. The trial court found 

defendant had five such prior convictions. Defendant’s current conviction is for second 

degree murder, a violent felony. (§ 667.5, subd. (c)(1).) The trial court sentenced 

defendant to 15 years to life for second degree murder, doubled, for a total of 30 years to 

life. That sentence did not comply with the statutory sentencing scheme. In sentencing 

defendant for second degree murder, the trial court was required to first calculate the 

greatest minimum term under three statutory options. (§§ 667, subd. (c)(2)(A), 1170.12, 

subd. (c)(2)(A); People v. Dotson (1997) 16 Cal.4th 547, 550.) Under the first option, the 

term otherwise provided for second degree murder is 15 years to life. Three times that 

term is 45 years to life. (§§ 667, subd. (c)(2)(A)(i), 1170.12, subd. (c)(2)(A)(i); People v. 
10

Acosta (2002) 29 Cal.4th 105, 116; People v. Dotson, supra, 16 Cal.4th at p. 552.) The 

term under the second option is 25 years. (§§ 667, subd. (c)(2)(A)(ii), 1170.12, subd. 

(c)(2)(A)(ii); People v. Dotson, supra, 16 Cal.4th at p. 552.) Under option three, the 

sentence would be 45 years to life. The minimum term would be 15 years to life for 

second degree murder. Added to that term is 25 years to life for firearm use (§ 12022.53, 

subd. (d) and 5 years for the prior conviction. (§§ 667, subd. (c)(2)(A)(iii), 1170.12, 

subd. (c)(2)(A)(iii); see People v. Dotson, supra, 16 Cal.4th at p. 553.) Therefore, the

greatest minimum term was 45 years to life, not 30 years to life. 

Defendant argues we should presume the trial court exercised its discretion under 

section 1385, subdivision (a) and struck a prior conviction. There is no basis for such a 

presumption. The trial court never expressed its intent to strike a prior conviction 

allegation. Moreover, the trial court failed to set forth in the minutes any reasons for 

striking a prior conviction allegation as required by section 1385, subdivision (a). Under 

these circumstances, we cannot presume the trial court struck a prior conviction 

allegation. (See People v. Williams (1998) 17 Cal.4th 148, 162; People v. Hunt (1977) 19 

Cal.3d 888, 896-897; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 532; 

People v. Orin (1975) 13 Cal.3d 937, 943-944.) Any intent to strike a prior conviction 

allegation was invalid. (Ibid.; see People v. Allan (1996) 49 Cal.App.4th 1507, 1515.) 

Upon remittitur issuance, the trial court must either comply with section 1385, 

subdivision (a) or impose a 45-year-to-life sentence for second degree murder. 

3. Section 667.5, Subdivision (b)

The information alleged defendant had served a prior separate prison term in case 

No. TA026160. The trial court specifically declined to make any finding with respect to 

that allegation. The trial court had authority to strike the prior prison term allegation or 

the punishment for the enhancement, but it was required to set forth in the minutes its 

reasons for doing so. (§ 1385, subds. (a) & (c)(1); People v. Torres (2013) 213 

Cal.App.4th 1151, 1161; People v. Garcia (2008) 167 Cal.App.4th 1550, 1559-1563.) 
11

Upon remittitur issuance, the trial court must either impose the enhancement or strike it 

and set forth its reasons for doing so.

IV. DISPOSITION

The sentence is reversed insofar as the trial court imposed a 30-year-to-life 

sentence for second degree murder. Upon remittitur issuance, the trial must either 

comply with Penal Code section 1385, subdivision (a) and strike the prior serious 

conviction, or impose a 45-year-to-life sentence for second degree murder. The sentence 

is further modified to impose only one five-year section 667, subdivision (a)(1) prior 

serious felony conviction enhancement for an offense brought and tried separately. Upon 

remittitur issuance, the trial court must impose or strike a one-year enhancement under 

Penal Code section 667.5, subdivision (b). If the trial court determines to strike the prior 

prison term enhancement, it must state in the minutes its reasons for doing so. The 

judgment is affirmed in all other respects. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P.J.

We concur:

KRIEGLER, J.

KUMAR, J.

 



Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.