Filed 12/21/21 P. v. Ramirez-Perez CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE RAMIREZ-PEREZ,

Defendant and Appellant.

B305377

(Los Angeles County

Super. Ct. No. SA099103)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Upinder S. Kalra, Judge. Affirmed.

Robert E. Boyce, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Jason Tran and Shezad H. Thakor, 

Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________
2

Jesse Ramirez-Perez (Defendant) appeals the judgment 

entered following a jury trial in which he was convicted of murder 

in the second degree. (Pen. Code, § 187, subd. (a).) The jury 

further found true the use of a deadly weapon enhancement. 

(Pen. Code, § 12022, subd. (b)(1).) The trial court imposed an 

aggregate sentence of 15 years to life. Defendant contends that 

the trial court erred in: (1) admitting evidence of a prior assault 

under Evidence Code1sections 352 and 1101, subdivision (b); and 

(2) failing to instruct on self-defense and the offense of voluntary 

manslaughter. We disagree and affirm.

FACTUAL BACKGROUND

In the afternoon of October 3, 2018, Defendant bought a 

blue and black Defender brand folding knife at a store in Venice. 

Later that evening, at a park in Santa Monica, he used a blue 

and black Defender brand folding knife to stab Eric Perrine, a 

seventeen-year-old homeless person, once in the lower left chest 

area. Though he was found alive and received medical treatment 

from police and paramedics, Perrine succumbed to his wound on 

the way to the hospital.

That Defendant stabbed and killed Perrine was not

seriously disputed at trial. Indeed, evidence of these facts was 

overwhelming. Perrine identified Defendant as his assailant to 

police officers. Officers found Defendant fleeing the scene and 

witnessed him throwing the knife into a planter box when they 

confronted him. After arresting Defendant, officers recovered the 

knife. DNA testing found Defendant’s and Perrine’s DNA on the 

1 All further section references are to the Evidence Code 

unless otherwise specified.
3

knife’s handle and Perrine’s blood on its blade.

Disputes did arise, however, with respect to the issues 

which are now the subject of this appeal. First, the defense 

opposed the prosecution’s effort to introduce evidence of a prior 

assault committed by Defendant. A few months before killing 

Perrine, Defendant struck another homeless man in the face with 

a two-foot length of rebar while the victim was sleeping. The 

victim survived the attack but suffered a significant wound to his 

face that bled profusely. A witness identified Defendant as the 

assailant and Defendant was later convicted of felony assault by 

means likely to inflict great bodily injury. The trial court allowed 

the jury to hear evidence of the conduct but not the conviction.

Prior to the relevant testimony, and on the jury forms, the trial 

court instructed that such evidence could only be considered for 

whether “the defendant acted with the intent required in th[e] 

case; or the defendant had a plan or scheme to commit the 

murder alleged in th[e] case.” 

Second, the defense argued that the jury should be 

instructed on self-defense and voluntary manslaughter on the 

basis that substantial evidence indicated Defendant and Perrine

may have struggled before the stabbing. Evidence noted by the 

defense in support of this theory included the possibility that 

Defendant’s blood was also on the knife blade; that Perrine’s 

DNA was found on the handle of the knife; and that Defendant 

was bleeding from one hand and had his own blood on his face at 

the time of his arrest. Notably, Defendant did not testify at trial 

nor indicate to the arresting officers that he had acted in selfdefense. Moreover, a medical examination revealed no injuries to 

Perrine’s body other than the knife wound inflicted by Defendant,

and Defendant had no other wounds on his body. The trial court 
4

declined to instruct on self-defense or voluntary manslaughter.

The jury convicted on second degree murder. The defense 

moved for a new trial on the grounds underlying this appeal and 

the trial court denied the motion. This appeal followed.

DISCUSSION

I. The Trial Court Did Not Abuse Its Discretion In 

Admitting Evidence of Defendant’s Recent Prior 

Assault On Another Homeless Person

We review the decision of the trial court to admit evidence 

for abuse of discretion. (People v. Rivera (2019) 7 Cal.5th 306, 

339–340.) “Under this standard, a trial court’s ruling will not be 

disturbed, and reversal of the judgment is not required, unless 

the trial court exercised its discretion in an arbitrary, capricious, 

or patently absurd manner that resulted in a manifest 

miscarriage of justice.” (People v. Wilson (2021) 11 Cal.5th 259, 

304.)

Defendant contends the trial court erred in admitting 

evidence that he struck and injured a sleeping homeless person 

at a park in Santa Monica in April of 2018, because this conduct 

was not relevant to his intent or plan when stabbing Perrine six 

months later. Defendant further contends that, even if relevant, 

the probative value of the uncharged act evidence was 

outweighed by the potential for prejudice. We disagree.

Section 1101, subdivision (a) prohibits evidence of 

character, including “specific instances of [a person’s] conduct” to

prove conduct on a specific occasion. However, evidence of 

another crime or other act is not rendered inadmissible by this 

rule where relevant to prove a fact other than the person’s 

disposition to commit such an act. Such unprohibited uses 

include, but are not limited to, motive and plan. (§ 1101, subd. 
5

(b).) Like all other evidence, evidence of uncharged acts not 

prohibited by section 1101 is still properly excluded “if its 

probative value is substantially outweighed by the probability 

that its admission will . . . create substantial danger of undue 

prejudice . . . .” (§ 352.)

Against this statutory backdrop, California courts consider 

the following three factors in assessing the admissibility of 

proffered uncharged act evidence: (1) the materiality of the fact 

sought to be proved or disproved; (2) the tendency of the 

uncharged act to prove or disprove the material fact; and (3) the 

existence of any rule or policy requiring the exclusion of relevant 

evidence. (People v. Dryden (2021) 60 Cal.App.5th 1007, 1016

(Dryden).)

A. Defendant’s Intent Is Material.

Defendant concedes that “intent to kill, malice and 

premeditation were in dispute” at his trial. As intent is a

disputed element the People were obligated to prove to show 

Defendant committed the charged offense of murder, it is plainly 

material. This is so even though the act of stabbing was 

conceded. (See People v. Gregg (1968) 266 Cal.App.2d 389, 392

[prior act evidence “admissible in cases where the proof of 

defendant’s intent is ambiguous, as when he admits the acts and 

denies the necessary intent because of mistake or accident”].)

B. The April 2018 Incident Tends to Prove 

Defendant Acted With the Requisite Intent for 

Murder.

Uncharged act evidence is not admissible if it lacks “some 

clear connection between the [uncharged act] and the one 

charged so that it may logically be inferred that if the defendant 

is guilty of one offense, he must be guilty of the other.” (People v. 
6

Poulin (1972) 27 Cal.App.3d 54, 65.) “A trial court must ‘examine 

the precise elements of similarity between the offenses with 

respect to the issue for which the evidence is proffered and satisfy 

itself that each link in the chain of inference between the former 

and the latter is reasonably strong.’ [Citation.] ‘If the connection 

between the uncharged offense and the ultimate fact in dispute is 

not clear, the evidence should be excluded.’ [Citation.]” (Dryden, 

supra, 60 Cal.App.5th at p. 1018.) The degree of similarity 

required depends upon the purpose for which the evidence is 

offered. “[T]he ‘least degree of similarity (between the uncharged 

act and the charged offense) is required in order to prove intent.’ ” 

(People v. Molano (2019) 7 Cal.5th 620, 665 (Molano).)

Defendant contends that his prior commission of an assault 

by means likely to inflict great bodily injury cannot be used to 

show the intent for murder because assault is a general intent 

crime requiring only willfulness, whereas murder requires

specific intent.2 Appellant apparently misreads Dryden’s 

2 Defendant also asserts: “[T]he jury instructions permitted 

the jury to consider . . . and the prosecutor to argue that 

[Defendant’s] uncharged ‘willful’ assault [in April 2018] proved 

[Defendant] had the intent to kill Perrine. As stated by the 

prosecutor, ‘[t]he intent was the same.’ [Citation.] This was 

nothing more than telling the jury they could find [Defendant] 

guilty of murder of Perrine if they found by a preponderance of 

the evidence that [Defendant] acted ‘willfully’ in assaulting [his 

earlier victim].” 

We read the standard form jury instructions as properly 

limiting the permissible use of the uncharged act evidence and 

specifying the applicable standard of proof and mens rea to 

convict Defendant of Perrine’s murder. In any event, as 
7

obligation to examine the “elements of similarity between the 

offenses” as requiring similarity between the crimes’ statutory 

elements as opposed to the conduct giving rise to the crimes. 

(Dryden, supra, 60 Cal.App.5th at p. 1018.) The California 

Supreme Court considered and rejected this argument in Molano, 

supra, 7 Cal.5th at page 665.

In that case, the trial court admitted evidence that 

defendant had choked his wife to unconsciousness after an 

argument about his drug use—conduct for which he pled guilty to 

corporal injury on a spouse—in his trial for murder of another 

woman who he strangled with a leather strap, purportedly at her 

request during consensual intercourse, resulting in her death. 

(Molano, supra, 7 Cal.5th at pp. 629–630, 665.) 

Molano argued on appeal that corporal injury on a spouse 

was a general intent crime whereas the charged crime of murder 

required specific intent. The Molano court found no error in 

admitting the corporal injury on a spouse evidence, noting that 

Molano’s conduct towards his spouse, who survived, could 

support an inference that he acted with conscious disregard for 

the danger to the lives of both women. (Molano, supra, 7 Cal.5th 

Respondent notes, Defendant fails to properly raise a 

prosecutorial error claim or an instructional error claim with 

respect to the requisite intent or burden of proof. As such, the 

court need not consider such claims. (See People v. Ham (1970) 

7 Cal.App.3d 768, 783, disapproved on another ground in People 

v. Compton (1971) 6 Cal.3d 55, 60, fn. 3 [“Where a point is merely

asserted by counsel without any argument of or authority for its

proposition, it is deemed to be without foundation and requires

no discussion”].)
8

at p. 665.) “The fortuity that [his spouse] survived the 

strangulation does not diminish the legitimate inference that 

defendant harbored a similar intent when he strangled [the 

decedent], and that her death was not accidental.” (Ibid.) Our 

colleagues in Division Seven previously reached a similar 

conclusion. (See People v. Walker (2006) 139 Cal.App.4th 782, 

805 [“fact that [the victim of charged offense] but not [the victim 

of uncharged assault offense] was murdered d[id] not negate the 

similarity of the two incidents” for purposes of § 1101, subd. (b) 

analysis].)

Defendant also argues that the facts of the April 2018 

assault and the October 2018 killing were too dissimilar for 

evidence of the former to be introduced against him at trial for 

the latter. We find no abuse of discretion in the trial court’s 

determination that the incidents were sufficiently similar to 

support admission under section 1101, subdivision (b). Both 

attacks occurred in Santa Monica, in parks, against homeless 

individuals, and within approximately six months of one another. 

In each instance, Defendant used a weapon to inflict a single 

wound to the victim and then fled. Although the wounds were to 

different parts of the victims’ bodies (a solid steel bar strike to the 

head and a knife stab to the chest), each support an inference 

that Defendant acted deliberately, with conscious disregard for 

the danger to the lives of both victims. Such an inference tends 

to support that Defendant harbored the requisite intent to 

convict him of murder in the killing of Perrine.

3 (See CALCRIM 

3 Defendant repeatedly ignores that malice is the culpable 

state of mind required for murder, not “intent to kill.” While 
9

No. 520 [jury required to find defendant “deliberately acted with 

conscious disregard for human life in order to convict for second 

degree murder”].)

Whether or not all trial courts would have found sufficient 

similarity to admit the uncharged act, we are satisfied that the 

trial court here did not err under our deferential standard of 

review.4

Because we find no error in the conclusion that 

section 1101 does not render the prior assault evidence 

inadmissible to show intent to commit murder, we do not reach 

whether the evidence was also exempted under a common plan 

theory. (See People v. Chism (2014) 58 Cal.4th 1266, 1307, fn. 13 

[any error in basis for omitting evidence is “of no consequence” 

where evidence was properly admitted on other grounds].)

intent to kill can satisfy the malice requirement, malice may be 

implied even in the absence of manifested and deliberate intent. 

(Pen. Code, §§ 187, subd. (a), 188, subd. (a)(1)-(2).) This may be a 

product of Defendant’s mischaracterization of the crime with 

which he was charged as “first degree murder.” No degree of 

murder was indicated in the charging document filed against 

him, which specified the charge only as that of “MURDER, in 

violation of PENAL CODE SECTION 187(a).” 

4 This conclusion is bolstered by the result in Molano where 

significant differences existed between the charged murder and

the uncharged assault, yet error was not found in admitting 

evidence of the latter. (See Molano, supra, 7 Cal.5th at pp. 629–

630, 665 [charged murder occurred during sex act with nonspouse by means of leather ligature; uncharged assault occurred 

during argument with spouse by means of choking].)
10

C. No Rule or Policy Required Exclusion of the April 

2018 Assault Evidence.

“Because ‘ “substantial prejudicial effect [is] inherent in 

[such] evidence,” ’ uncharged acts are admissible 

under . . . section 352 only if they have substantial probative 

value. [Citations.]” (Dryden, supra, 60 Cal.App.5th at p. 1018.) 

“ ‘[T]he probative value of the uncharged offense evidence must 

be substantial and must not be largely outweighed by the 

probability that its admission would create a serious danger of 

undue prejudice, of confusing the issues, or of misleading the 

jury.’ [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 637.)

Defendant’s argument that evidence of the April 2018 

assault is unduly prejudicial rests largely on his incorrect 

assessment of its relevance. As we note above, the Defendant’s 

intent was squarely at issue in the trial and his April 2018 

conduct was probative of his intent when stabbing Perrine six 

months later. When an attack appears unprovoked, the trier of 

fact may be hesitant to conclude from circumstantial evidence the 

perpetrator acted with the required intent. This makes evidence 

of a recent decision by the perpetrator to engage in an arguably 

similar unprovoked attack highly probative. We further note 

that evidence of the prior assault, which was not fatal, was not 

unduly inflammatory as compared to the undisputed evidence 

that Defendant stabbed and killed Perrine. (Cf. Molano, supra, 

7 Cal.5th at p. 666 [“The [uncharged] spousal assault, while 

certainly blameworthy, was not unduly inflammatory compared 

to the gruesome murder [charged]”].) The trial court properly 

found that section 352 did not compel exclusion of the prior 

assault.
11

II. The Trial Court Did Not Err In Declining to Instruct 

On Self-Defense and Voluntary Manslaughter

We review de novo the trial court’s decision on whether to 

instruct on self-defense or a lesser included offense. (People v. 

Cole (2004) 33 Cal.4th 1158, 1206; People v. Cook (2006) 39 

Cal.4th 566, 596.) Defendant asks that we reverse the trial court 

for failing to instruct on self-defense and involuntary 

manslaughter because substantial evidence of a struggle between 

Defendant and Perrine was before the court. We disagree.

A defendant is entitled to a self-defense instruction when 

the court is presented with substantial evidence to support the 

instruction. (People v. Lemus (1988) 203 Cal.App.3d 470, 476

(Lemus).) For these purposes, “[s]ubstantial evidence” is 

“evidence from which a jury composed of reasonable [people]

could have concluded that the particular facts underlying the 

instruction did exist. [Citations.]” (Id. at p. 477, internal 

quotations omitted.) “If the evidence should prove minimal and 

insubstantial, however, the court need not instruct on its effect.” 

(People v. Flannel (1979) 25 Cal.3d 668, 684.)

Similarly, a court must instruct on a lesser included offense 

where the accused presents “substantial evidence,” i.e. “evidence 

sufficient to ‘deserve consideration by the jury,’ that is, evidence 

that a reasonable jury could find persuasive. [Citation].” (People 

v. Barton (1995) 12 Cal.4th 186, 204, fn. 8.) “Speculative, 

minimal, or insubstantial evidence is insufficient to require an 

instruction on a lesser included offense.” (People v. Simon, supra, 

1 Cal.5th at p. 132; see also People v. Williams (2015) 61 Cal.4th 

1244, 1264 [“ ‘[s]peculation is insufficient to require the giving of 

an instruction on a lesser included offense’ ”].)
12

While Defendant cites authorities that a court is not 

permitted to weigh or assess the credibility of the evidence 

offered, it is not bound to view such evidence in a vacuum. 

(See, e.g., People v. Simon (2016) 1 Cal.5th 98, 133–134 (Simon) 

[conducting comprehensive review of witness accounts of murder 

to conclude defendant was not entitled to self-defense 

instruction]; People v. Williams, supra, 61 Cal.4th at p. 1264 

[defendant’s contention that murder lacked premeditation 

contrary to evidence that he orchestrated it]; People v. Manriquez

(2005) 37 Cal.4th 547, 588 [defendant’s statement that first shot 

was accidental did not support manslaughter instruction where 

victim was shot five times].)

To show entitlement to a self-defense instruction, a 

defendant must show substantial evidence of an honest and 

reasonable belief of the need to defend oneself. (Simon, supra, 

1 Cal.5th at p. 132 [citing People v. Elmore (2014) 59 Cal.4th 121,

133–134].)

The lesser included offense of voluntary manslaughter is 

also known as imperfect self-defense. (Simon, supra, 1 Cal.5th at 

p. 132.) To show entitlement to an involuntary manslaughter 

instruction, a defendant must show substantial evidence that he 

acted in the actual but unreasonable belief that he was in 

imminent danger of great bodily injury or death. (Ibid.)

A. Evidence Supporting Defendant’s Self-Defense 

Theories Was Insubstantial.

Defendant points to the same set of facts as comprising 

“substantial evidence”: (1) that Perrine “threatened or attacked 

[D]efendant,” entitling Defendant to a self-defense instruction;

and (2) that Defendant “acted either out of provocation or self 
13

defense,” entitling him to an involuntary manslaughter 

instruction. 

These facts, stripped of Defendant’s unsupported 

embellishments, are as follow: (1) at the time of his arrest, 

Defendant had his own blood on his left hand and left cheek;

(2) at the time of his arrest, Defendant had an injury to his left 

hand5; (3) defensive wounds are usually found between the 

elbows and the tips of the fingers, including on the hands;

(4) Defendant was not excluded as a contributor to the blood 

found on the blade of the knife used to stab Perrine; and 

(5) Perrine’s contact DNA was found on the handle of the knife, 

contributing approximately 9 percent as compared to Defendant’s 

90 percent.

6

From these facts, Defendant argues that a struggle had 

ensued prior to the killing; that “Perrine had the knife first and 

threatened [Defendant] with the knife”; that “Perrine stabbed 

5 While there is general testimony suggesting Defendant had 

wounds on both hands, specific testimony on the topic indicates 

that he had fresh wounds only on his left hand. The Santa 

Monica forensic supervisor identified Defendant’s left hand as the 

only hand where she could see “actual blood” and the arresting 

officer noted blood visible just on his “left knuckle and finger 

area.” A DNA sample from the back of Defendant’s right hand 

tested negative for blood. 

6 Without citation, Defendant asserted in his opening brief 

that “[b]lood was found in many different areas of the crime scene 

suggesting a struggle,” which was attributable “to both Perrine 

and [Defendant].” Record citations Defendant offers in his reply 

do not support the statements and we disregard them. 
14

Ramirez with the knife”; and that “[Defendant] suffered cuts to 

his hands consistent with defense wounds from a knife.” 

Defendant’s arguments are nothing more than speculation that 

do not amount to “substantial evidence.”

The full record permits no reasonable conclusion that 

Defendant acted in self-defense pursuant to a fight or struggle. 

First, Perrine’s body had just one injury at the time he was 

discovered: the stab wound inflicted by Defendant. Second, the 

only wound evident on Defendant’s person at the time of his 

arrest was one or more “abrasions” on his hand or hands.7 

Contrary to Defendant’s assertion, there is no evidence that this 

is “consistent with defense wounds from a knife,” or even

consistent with defensive wounds at all. The record testimony is 

that defensive wounds are in the nature of “bruises,” “incised 

wounds,” “stab wounds,” or “lacerations.” Defendant’s hand 

abrasions are none of these and no reasonable juror could 

conclude they were caused by a knife blade as Defendant posits.8

7 Defendant at one point states that he had “injuries to his 

cheek.” This is not reflected in the record and contrary to 

unrebutted testimony that there was no face wound but rather a 

blood smear on one of his cheeks. 

8 Our Supreme Court long ago rejected the argument that a 

minor wound to a defendant’s finger supported a self-defense 

instruction on the theory that it showed a struggle over a knife: 

“The only defense seems to be a speculative one; that the 

defendant wrested the knife from the hands of the deceased, and 

stabbed him in self-defense; and this is not supported by one 

scintilla of evidence, other than at the time the killing took place, 

one of the witnesses observed a scratch, or cut, on the knuckle of 
15

In the absence of any injuries to Defendant or his victim 

indicating a fight or struggle, the presence of Perrine’s contact 

DNA on the handle of the knife is not substantial evidence that 

Perrine wielded the weapon at Defendant and Defendant then, 

without sustaining any knife cut or causing any defensive 

wounds to Perrine, (a) disarmed Perrine; (b) remained in good 

faith fear of imminent injury or death at Perrine’s hands; and 

(c) turned the knife on Perrine to inflict a clean, single,9 mortal 

wound. This is especially so considering Defendant had 

committed an unprovoked assault against a similar victim in a 

similar location. In short, it would take an absolute suspension 

of disbelief to infer from Defendant’s proffered evidence that he 

acted in self-defense. A reasonable jury could not be expected to 

reach such a conclusion.

the [defendant], which was bleeding; whether cut by himself in 

the scuffle, or not, no one knew or pretended to say. So trifling a 

circumstance is scarcely a sufficient pretext for eliminating the 

whole criminal code; and instructions in civil and criminal trials 

should be drawn with some slight reference to the case made by 

the evidence.” (People v. Roberts (1856) 6 Cal. 214, 217.)

9 Defendant opines that the single stab wound “suggest[s] a 

deadly act triggered by provocation or self defense rather than 

malice.” Defendant’s record citations for this proposition support 

only the fact that Perrine died of a single stab wound; not that 

the nature of his injury was indicative of the circumstances 

leading up to it. We are aware of no generally accepted theory of 

human behavior that those who defend themselves with a knife

they have wrestled away from their attacker normally do so in a 

careful, limited, surgical fashion.
16

Defendant offers just one case, Lemus, supra, 203 

Cal.App.3d 470, to support his entitlement to a self-defense 

instruction under the facts presented. This case is easily 

distinguishable on the grounds that the defendant testified that 

the victim threatened, hit, and attempted to stab him before the 

killing. (Id. at p. 476.) Error was found because the trial court 

discounted the credibility of the defendant’s direct testimony 

supporting the requested instructions. (Id. at p. 478.)

No such error occurred in this case. Indeed, the Defendant 

elected not to testify and offer a self-defense narrative. While it 

is not necessary that a defendant testify in order to establish he 

acted in self-defense, the absence of testimony from the accused 

or a percipient witnesses renders it extremely difficult to prove 

the defendant’s beliefs in the moment of the act. (Cf. Simon, 

supra, 1 Cal.5th at p. 134 [“[Defendant] also did not testify, and 

there is no evidence he ever told anyone that he had acted out of 

fear”].) It is not enough for a defendant to conjure up a selfdefense scenario that is not directly contradicted by the evidence. 

The defendant must point to “substantial evidence” supporting 

the self-defense conclusion, as Lemus, supra, requires.

Defendant refers the court to no authority to suggest that 

circumstantial evidence of the quantum and nature identified in 

the record below is sufficient to support the requested selfdefense instruction, and we decline to so find.

10

10 In light of our rejection on the merits of Defendant’s 

arguments that the prior assault should have been excluded, and 

that self-defense/voluntary manslaughter instructions should 

have been given, his argument that the cumulative impact of 
17

DISPOSITION

The judgment is affirmed.

HARUTUNIAN, J.*

We concur:

GRIMES, Acting P. J.

STRATTON, J.

those rulings requires reversal as a denial of due process also 

fails. (People v. Anderson (2001) 25 Cal.4th 543, 606.)

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.