Filed 12/29/22 P. v. Ramos CA2/8

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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.

OSVALDO RAMOS,

Defendant and Appellant.

B304575

(Los Angeles County

Super. Ct. No. KA079316)

APPEAL from an order of the Superior Court of Los 

Angeles County. Bruce F. Marrs, Judge. Reversed. 

Maxine Weksler, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance 

E. Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Assistant Attorney General, Idan Ivri and Gary A. 

Lieberman, Deputy Attorneys General, for Plaintiff and 

Respondent.

__________________________
2

On August 2, 2021, we affirmed the summary denial of 

Osvaldo Ramos’s petition for resentencing under Penal Code1

section 1170.95,2 which creates a procedure for convicted 

murderers who could not be convicted under the law as amended 

to retroactively seek relief. (People v. Lewis (2021) 11 Cal.5th 

952.) Ramos was convicted in 2009 of the first degree murder of 

Mychael Whittaker (§ 187, subd. (a)) and the jury found true the 

special circumstance allegation that Ramos murdered Whittaker 

while engaged in the commission of a robbery (§190.2, subd. 

(a)(17)) along with other gang and firearm enhancement 

allegations. Ramos argued the trial court erroneously denied his 

petition because the true finding on the robbery-murder specialcircumstance allegation no longer supports his felony murder 

conviction. He argued the California Supreme Court’s decisions 

in People v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. 

Clark (2016) 63 Cal.4th 522 (Clark) substantially changed the 

law related to felony murder and so he is entitled to an 

evidentiary hearing on his resentencing petition. 

On October 26, 2022, the California Supreme Court ordered 

us to vacate our decision and “reconsider the cause in light of 

People v. Strong (2022) 13 Cal.5th 698. (Cal. Rules of Court, rule 

8.528(d).)” We now do so and reverse the order of the trial court 

denying Ramos’s petition.

1 Further section references are to the Penal Code.

2 Effective June 30, 2022, section 1170.95 was renumbered 

section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10) 

We refer to the current section 1172.6 in this opinion.
3

FACTS

We recite the relevant facts and procedural history from 

our prior opinion in this case:

Whittaker was killed on April 8, 2007, after suffering four 

gunshot wounds to his head and face. He was found lying 

partially inside of a car and partially on the street with his 

pockets inside out. Investigating officers found a baggie 

containing what was later identified as crack cocaine in the car. 

A partial palm print from the car’s rear passenger window 

matched Ramos’s.

In late May 2007, officers interviewed Ramos about the 

murder. He initially claimed he did not know Whittaker, but 

later admitted he was involved in Whittaker’s death. Ramos told 

officers he and two other men—Edwin Cruz and Cesar 

Miranda—ordered drugs from Whittaker and planned to rob him. 

When Whittaker came to their location, Ramos walked to the car 

while Cruz and Miranda hid in an alley and watched. After 

Ramos walked up to Whittaker’s car, Cruz came out of the alley 

and shot Whittaker in the head. Ramos said Cruz had shown 

him a gun before Whittaker arrived. Ramos insisted he never 

went to the passenger side of Whittaker’s car, where two gun 

cartridge casings were found.

At trial, a gang expert opined Ramos was an active member 

of the 12th Street gang. Victor Tejeda3 testified he, Cruz, and 

Ramos were members of the 12th Street Pomona gang. 

Sometime after April 2007, Cruz told Tejeda he and Ramos 

3 Tejeda testified in Ramos’s first trial, which resulted in a 

mistrial. Tejeda was later killed in an altercation with the police 

and his trial testimony was read to the second jury.
4

robbed and killed Whittaker. Cruz bragged to Tejeda, “We killed 

that nigger.” Cruz did not say who shot Whittaker. Cruz said 

Whittaker tried to jump out of the car after he was shot but 

Ramos stopped him and tried to keep the car door closed. Cruz 

told Tejeda he and Ramos robbed Whittaker and emptied out his 

pockets, then smoked the drugs they found. On crossexamination, Tejeda admitted that the 12th Street gang had been 

trying to kill him. Cruz was involved in an incident in which 

Tejeda was shot and left for dead by his own gang.

Ramos testified on his own behalf. He denied he was a 

gang member. He testified Cruz shot Whittaker and then 

threatened him with the gun to find Whittaker’s drugs. Cruz 

also told him not to say anything about the murder. Cruz’s 

friends beat Ramos in the county jail because he told police what 

had happened.

The jury found Ramos guilty of one count of first degree 

murder (§ 187, subd. (a).) The jury also found true the following: 

a special circumstance allegation that Ramos murdered 

Whittaker while engaged in the commission of robbery in 

violation of sections 211 and 212.5 (§ 190.2, subd. (a)(17)); a gang 

enhancement allegation (§ 186.22, subd. (b)(1)(C)); an allegation 

that a principal personally and intentionally discharged a firearm 

which proximately caused Whittaker’s death (§ 12022.53, subds. 

(d), (e)(1)); an allegation that a principal personally and 

intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)); 

and an allegation that a principal used a firearm (§ 12022.53, 

subds. (b), (e)(1)). The jury was unable to reach a verdict on the 

special circumstance allegation that Ramos intentionally killed 

Whittaker while Ramos was an active participant in a criminal 

street gang and the murder was carried out to further the 
5

activities of the criminal street gang within the meaning of 

section 190.2, subdivision (a)(22). The trial court declared a 

mistrial as to that allegation. The court sentenced Ramos to a 

total prison term of life without the possibility of parole on the 

murder count plus 25 years to life on the firearm enhancement.

Ramos appealed, asserting various evidentiary errors 

required reversal. We affirmed the judgment. (People v. Ramos 

(Mar. 28, 2011, B215127) [nonpub. opn.].) On March 13, 2019, 

Ramos filed a petition for resentencing pursuant to section 

1172.6. He asserted he did not actually kill the victim or possess 

the requisite mental state to be guilty of murder as redefined by 

Senate Bill No. 1437 (Senate Bill 1437). The court appointed 

counsel to represent Ramos. The People opposed Ramos’s 

petition, arguing Senate Bill 1437 was unconstitutional and 

Ramos did not qualify for resentencing because the jury found he 

was a major participant in the underlying felony who acted with 

reckless indifference to human life. Counsel filed a reply to the 

opposition. The trial court found Senate Bill 1437 

unconstitutional and denied Ramos’s petition on that ground. 

Ramos timely appealed.

DISCUSSION

I. Senate Bill 1437

Effective January 1, 2019, Sentate Bill 1437 “was enacted 

to ‘amend the felony murder rule and the natural and probable 

consequences doctrine, as it relates to murder, to ensure that 

murder liability is not imposed on a person who is not the actual 

killer, did not act with the intent to kill, or was not a major 

participant in the underlying felony who acted with reckless 

indifference to human life.’ (Stats. 2018, ch. 1015, § 1, subd. (f).)” 

(People v. Martinez (2019), 31 Cal.App.5th 719, 723.) Senate Bill 
6

1437 amended sections 188 and 189 and added “section 1170.95

[now 1172.6], which provides a procedure by which those 

convicted of murder can seek retroactive relief if the changes in 

law would affect their previously sustained convictions. (Stats. 

2018, ch. 1015, §§ 2–4.)” (Martinez, at pp. 722–723.)

Section 1172.6 creates a multi-step procedure for a 

defendant to petition for resentencing pursuant to Senate Bill 

1437. A defendant may petition for resentencing if he or she was 

“convicted of felony murder or murder under a natural and 

probable consequences doctrine” and the following conditions are 

met: (1) A charging document was filed against the petitioner 

that allowed the prosecution to proceed under a theory of felony 

murder or murder under the natural and probable consequences 

doctrine; (2) The petitioner was convicted of first or second degree 

murder following a trial or an accepted plea; and (3) The 

petitioner could “not presently be convicted of murder or 

attempted murder because of changes to Section[s] 188 or 189”

made by Senate Bill 1437. (§ 1172.6, subd. (a).) Under section 

1172.6, subdivision (b), the petition must include: a declaration 

from the petitioner that he or she is eligible for relief under the 

statute, the superior court’s case number and year of conviction, 

and a statement as to whether the petitioner requests 

appointment of counsel. (Id., subd. (b)(1).) If any of the 

information is missing from the petition and “cannot be readily 

ascertained by the court, the court may deny the petition without 

prejudice to the filing of another petition and advise the 

petitioner that the matter cannot be considered without the 

missing information.” (Id., subd. (b)(2).)

After the defendant files and serves a complete petition, the 

“prosecutor shall file and serve a response. The petitioner may 
7

file and serve a reply within 30 days after the prosecutor’s 

response is served. These deadlines shall be extended for good 

cause. After the parties have had an opportunity to submit 

briefings, the court shall hold a hearing to determine whether the 

petitioner has made a prima facie case for relief. If the petitioner 

has made a prima facie showing that the petitioner is entitled to 

relief, the court shall issue an order to show cause. If the court 

declines to make an order order to show cause, it shall provide a 

statement fully setting forth its reasons for doing so.” (§ 1172.6, 

subd. (c).)

Should the court issue an order to show cause, it must hold 

a hearing to determine whether to vacate the murder conviction. 

(§ 1172.6, subd. (d)(1).) If the court vacates the murder 

conviction, the court must resentence the defendant on the 

remaining counts, or, if no target offense was charged, the 

“petitioner’s [murder] conviction shall be redesignated as the 

target offense or underlying felony for resentencing purposes.” 

(Id., subd. (d)(3), (e).)

II. Ramos Is Entitled to a Prima Facie Review of His 

Petition for Resentencing

Ramos argues the trial court erred in finding Senate Bill 

1437 unconstitutional. The People concede Senate Bill 1437 is 

not unconstitutional. We agree. (People v. Superior Court 

(Gooden) (2019) 42 Cal.App.5th 270; People v. Lamoureux (2019) 

42 Cal.App.5th 241, 246.)

In our prior opinion we also decided that the jury’s true 

finding on the felony murder special circumstance precludes 

relief even after the passage of Senate Bill 1437. Here, the 

second jury in Ramos’s case found him guilty of first degree 

felony murder and found true the robbery-murder special 
8

circumstance in section 190.2, subdivision (a)(17). In doing so, 

the jury necessarily found Ramos was the actual killer, acted 

with intent to kill, or acted as a major participant in the 

underlying felony with reckless indifference to human life. 

Senate Bill 1437 amended section 189, subdivision (e) to now 

require these same three theories in order to be found guilty of 

felony murder. Accordingly, we concluded the true finding for the 

felony murder special circumstance precluded relief even after 

the passage of Senate Bill 1437.

After we rejected appellant’s claims in our previous 

opinion, our Supreme Court decided People v. Strong, supra,

13 Cal.5th 698 (Strong). In Strong, the Court held that a true 

finding on a felony murder special circumstance allegation 

rendered prior to the Banks and Clark decisions does not 

preclude, as a matter of law, resentencing relief under section 

1172.6. (Strong, at p. 710.) The court reasoned Banks and Clark

represent the type of significant change in law traditionally found 

to warrant a re-examination of earlier litigated decisions. 

(Strong, supra, 13 Cal.5th at pp. 717-718.)

Here, the judgment on the true findings for the special 

circumstance allegation was entered in 2009, before Banks and 

Clark were decided. The People concede that remand is required 

and we agree. Accordingly, we reverse the trial court’s summary 

denial of appellant’s 1172.6 petition and remand the matter to 

the trial court to conduct a new prima facie hearing and, if 

appropriate, issue an order to show cause and set an evidentiary 

hearing under section 1172.6, subdivision (d).
9

III. Ramos Is Not Entitled to Relief Under Senate Bill 

No. 620

In his reply brief, Ramos requests we remand for the trial 

court to exercise its discretion to strike or dismiss the firearm 

enhancement pursuant to Senate Bill No. 620 (Senate Bill 620) 

(2017–2018 Reg. Sess.), which amended section 12022.53, 

subdivision (h) to provide trial courts with this discretion. Senate 

Bill 620, effective January 1, 2018, applies retroactively only to 

judgments that were not yet final on its effective date. (People v. 

Harris (2018) 22 Cal.App.5th 657, 659.) The Legislature could 

have, but did not, “provide a specific procedure via petition or 

motion to reopen final cases for resentencing.” (Id. at p. 662.) 

A case is final when the time for petitioning the United States 

Supreme Court for a writ of certiorari expires. (See People v. 

Vieira (2005) 35 Cal.4th 264, 306; see also Bowles v. Russell

(2007) 551 U.S. 205, 212.)

Ramos was convicted in 2009 and we affirmed his 

conviction in 2011. He does not contend his case is not final. 

Indeed, the judgment against him was final years before the 

January 1, 2018 effective date of Senate Bill 620. Under these 

circumstances, we decline to remand for the trial court to exercise 

its discretion under Senate Bill 620.
10

DISPOSITION

The order is reversed. The trial court is directed to find a 

prima facie showing, issue an order to show cause, and conduct 

an evidentiary hearing pursuant to section 1172.6, 

subdivision (d).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

GRIMES, J.

WILEY, J.