Filed 8/17/23 P. v. Ramirez CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

EFRAIN RAMIREZ,

Defendant and Appellant.

 B323084

 (Los Angeles County

 Super. Ct. No. BA397039)

APPEAL from an order of the Superior Court of Los Angeles County, 

Kerry Bensinger, Judge. Affirmed.

James Koester, 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, Assistant Attorney General, Noah 

P. Hill, Supervising Deputy Attorney General, and Heidi Salerno, Deputy 

Attorney General, for Plaintiff and Respondent.
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INTRODUCTION

A jury found defendant guilty of two counts of attempted murder. The 

jury also found Ramirez acted willfully, deliberately, and with premeditation, 

which enhanced his sentence for those crimes. Defendant petitioned for relief 

from his conviction under Penal Code1 section 1172.6.2 The trial court denied 

his petition, finding he was ineligible for relief as a matter of law. 

On appeal, defendant does not dispute that his convictions for 

attempted murder are ineligible for resentencing under section 1172.6 but

argues the premeditation allegations entitle him to relief. We disagree and

affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

A. Ramirez’s Convictions

The following facts are provided for background purposes and have 

been taken from this court’s unpublished opinion, People v. Ramirez (Dec. 20,

2016, B267516), which affirmed defendant’s convictions.

A jury found defendant Efrain Ramirez (Ramirez) and his codefendant 

Edwin Celis (Celis) guilty of two counts of premeditated murder (§§ 664/187, 

subd. (a)) and found true the offenses were committed for the benefit of a 

criminal street gang (§ 186.22, subd. (b)(1)(C)). The jury also found that a 

principal willfully discharged a firearm causing great bodily injury 

(§ 12022.53, subds. (d) and (e)(1)), that a principal personally and 

1 All further unspecified statutory references are to the Penal Code.

2 Defendant’s petition was originally filed in 2020 under former section 

1170.95. Effective June 30, 2022, the Legislature renumbered section 

1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.) There were no 

substantive changes to the statute. For clarity, we refer to the statutory 

provision as section 1172.6. 
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intentionally discharged a firearm (§ 12022.53, subds. (c) and (e)(1)), and that 

a principal personally used a firearm (§ 12022.53, subds. (b) and (e)(1)). The 

trial court sentenced Ramirez to two consecutive life sentences plus 45 years 

in state prison. On appeal, we modified the judgment to clarify the

restitution fine but otherwise affirmed his convictions and sentence. 

B. Petition for Resentencing

Following the passage of Senate Bill No. 1437 (2017–2018 Reg. Sess.)

(SB 1437), Ramirez filed a petition for resentencing under section 1172.6, 

alleging he had been convicted of two counts of attempted murder under the 

natural and probable consequences doctrine. The trial court denied the 

petition, finding Ramirez had failed to state a prima facie case for relief. The 

court explained section 1172.6 applied only to convictions for murder, and 

Ramirez’s conviction for attempted murder fell outside the statute’s scope. 

Ramirez appealed this order. (People v. Ramirez (Nov. 2, 2021, B307919)

[nonpub. opn.].) 

While the appeal was pending, the Governor approved Senate Bill No. 

775 (2021-2022 Reg. Sess.) (SB 775). (Stats. 2021, ch. 551, § 2.) SB 775 

amended section 1172.6 to extend to certain convictions for attempted 

murder. Accordingly, we reversed the court’s denial of Ramirez’s petition and 

remanded with directions to appoint counsel and conduct further proceedings 

consistent with the amended version of section 1172.6. (Ibid.)

Upon remand, the trial court appointed counsel for Ramirez and

received briefing on whether he qualified for relief under section 1172.6 as 

amended by SB 775. The court again denied Ramirez’s petition at the prima 

facie stage, finding he was ineligible for relief as a matter of law. In making 

this determination, the trial court examined the instructions given to the jury 
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at Ramirez’s trial. The court found the jury had been instructed with 

CALCRIM No. 600, which required the jury to find that Ramirez had acted 

with the intent to kill in order to find him guilty of aiding and abetting 

attempted murder. The court determined the jury had not been instructed on 

the natural and probable consequences doctrine, and thus could not have 

convicted Ramirez under that theory. The court concluded Ramirez could not 

have been convicted under a theory where malice was imputed to him by his 

participation in a crime. The court also found that aiding and abetting 

remains a valid theory of attempted murder even after the enactment of SB 

775. 

In a footnote, the court noted the jury had also been instructed on a

sentencing enhancement for willful, deliberate, and premeditated attempted 

murder (CALCRIM No. 601). Under this instruction, the jury was told it 

could determine the attempted murder was done willfully, and with 

deliberation and premeditation by Ramirez if it found Ramirez, Celis, or both 

had acted with that state of mind. The court recognized this instruction 

permitted the jury to impute Celis’s state of mind of willfulness, 

premeditation, and deliberation to Ramirez for purposes of applying the 

sentencing enhancement. However, the court determined that under People 

v. Rodriguez (2022) 75 Cal.App.5th 816, SB 775 only extended relief to 

convictions for attempted murder based on the natural and probable 

consequences doctrine and did not apply to individuals convicted of 

attempted murder on a theory of aiding and abetting. The court further 

noted the premeditation enhancement was reached independently and apart 

from the conviction for attempted murder, and the attempted murder 

conviction, not the sentencing enhancement, is the subject of a petition for 

relief under section 1172.6. 
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Ramirez filed a timely notice of appeal. 

DISCUSSION

A. Standard of Review

We review de novo whether the trial court conducted a proper inquiry 

as to whether a prima facie case for relief had been established under section 

1172.6. (People v. Harrison (2021) 73 Cal.App.5th 429, 437.) This appeal 

concerns the interpretation of section 1172.6. “We review the interpretation

of a statute de novo.” (People v. Gonzalez (2023) 87 Cal.App.5th 869, 880.)

B. Overview of Relevant Law

Under section 1172.6, “person[s] convicted of felony murder or murder 

under the natural and probable consequences doctrine or other theory under 

which malice is imputed to a person based solely on that person’s 

participation in a crime, attempted murder under the natural and probable 

consequences doctrine, or manslaughter,” may file a petition to have that 

conviction vacated under certain circumstances. (§ 1172.6, subd. (a).) “After 

the parties have had an opportunity to submit briefing[ ], the court shall hold 

a hearing to determine whether the petitioner has made a prima facie case 

for relief. If the petitioner makes 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 to show cause, it shall provide a statement fully 

setting forth its reasons for doing so.” (§ 1172.6, subd. (c).) The bar for this 

prima facie showing was “‘intentionally and correctly set very low.’” (People 

v. Lewis (2021) 11 Cal.5th 952, 972.)

“A petitioner is ineligible for resentencing as a matter of law if the 

record of conviction conclusively establishes, with no factfinding, weighing of 
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evidence, or credibility determinations, that (1) the petitioner was the actual 

killer, or (2) the petitioner was not the actual killer, but, with the intent to 

kill, aided, abetted, counseled, commanded, induced, solicited, requested, or 

assisted the actual killer in the commission of murder in the first degree, 

(3) the petitioner was a major participant in the underlying felony and acted 

with reckless indifference to human life, or (4) the petitioner acted with 

malice aforethought that was not imputed based solely on participation in a 

crime.” (People v. Lopez (2022) 78 Cal.App.5th 1, 14.)

C. Analysis

1. Plan Language of Penal Code Section 1172.6

Ramirez does not qualify for relief under the unambiguous terms of 

section 1172.6. It is undisputed that Ramirez was not convicted of attempted 

murder under the natural and probable consequences doctrine, rather, he 

was convicted of attempted murder as an aider and abettor found to be acting 

with the intent to kill. (People v. Coley (2022) 77 Cal.App.5th 539, 548

[holding section 1172.6 “applies by its terms only to attempted murders based 

on the natural and probable consequences doctrine”].) Aiding and abetting 

remains a viable theory of attempted murder. (People v. Williams (2022) 86

Cal.App.5th 1244, 1258 [individual convicted of murder as an aider and 

abettor is “ineligible for section 1172.6 relief as a matter of law”]; accord 

People v. Estrada (2022) 77 Cal.App.5th 941, 945 [murder conviction based on

direct aiding and abetting with intent to kill is ineligible for section 1172.6

relief].)

Ramirez argues section 1172.6 applies to a premeditation enhancement 

allegation because the jury was not required to find he personally 

premeditated the crime, rather it allowed the jury to potentially impute 
7

Celis’s mental state to Ramirez, as a direct aider and abettor of the 

attempted murders. We disagree. 

Section 1172.6 provides relief only where a defendant has been 

convicted under a theory of imputed malice, not imputed premeditation. 

(§ 1172.6, subd. (a).) Whether a crime was committed with express malice is 

a wholly separate consideration from whether it was premeditated. (See 

People v. Smith (2005) 37 Cal.4th 733, 740 [attempted murder requires 

specific intent to kill, and the prosecution may seek an additional finding of 

premeditation “for purposes of sentence enhancement”].) Because the crime 

of attempted murder requires a specific intent to kill and the jury was so 

instructed, the jury necessarily found that Ramirez himself harbored express 

malice regardless of the instruction given as to the premeditation 

enhancement. (See People v. Guerra (1985) 40 Cal.3d 377, 386 [the crime of 

attempted murder requires a specific intent to kill, a mental state coincident 

with express malice]; see also People v. Didyavong (2023) 90 Cal.App.5th 85,

95 [“Express malice exists ‘when there is a manifest intent to kill’”].) It is 

well settled that SB 1437 “does not eliminate direct aiding and abetting 

liability for murder because a direct aider and abettor to murder must 

possess malice aforethought.” (People v. Gentile (2020) 10 Cal.5th 830, 848.)

The language of section 1172.6 makes clear the statutory scheme does 

not apply to individuals convicted of attempted murder as an aider and 

abettor, and courts have construed section 1172.6 as not extending to 

punishment enhancements which fall short of vacating a conviction. 

(Rodriguez, supra, 75 Cal.App.5th at pp. 823–824; People v. Didyavong, 

supra, 90 Cal.App.5th at p. 96 [section 1172.6 “provides no mechanism for the

court to reduce a first degree murder conviction to second degree”]; People v.

Gonzalez, supra, 87 Cal.App.5th at p. 880 [“Section 1172.6’s plain language
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does not contain a mechanism for a trial court to reduce a first degree murder

conviction to second degree murder”].) Courts have consistently limited the 

scope of section 1172.6 to the plain language of the statute. (See People v. 

Flores (2020) 44 Cal.App.5th 985, 993–994 (Flores) [collecting cases decided 

prior to the enactment of SB 775 which interpreted former section 1170.95 to 

apply only to those convicted of murder and did not extend to those convicted 

of similar crimes based on the plain language of the statute].) Under this 

plain language, the court may only vacate a sentencing enhancement under 

section 1172.6 if it first vacates the underlying conviction. (§ 1172.6, subd. 

(d)(3).)3 

In this instance, the Legislature has chosen to limit the scope of section 

1172.6 to individuals convicted of murder or attempted murder based on 

theories of imputed malice rather than expand the statute to afford relief 

from premeditation enhancements based on imputed premeditation. This 

decision is entirely within the Legislature’s purview. (People v. Wilkinson

(2004) 33 Cal.4th 821, 840 [“‘The decision of how long a particular term of 

punishment should be is left properly to the Legislature. The Legislature is 

responsible for determining which class of crimes deserves certain 

punishments and which crimes should be distinguished from others.’”].) The 

Legislature may properly enact reform one step at a time and limit the 

ameliorative effects of legislation to the class or classes of person who are 

thought to need it most. (Kasler v. Lockyer (2000) 23 Cal.4th 472, 488

3 Section 1172.6, subdivision (d)(3) states “At the hearing to determine 

whether the petitioner is entitled to relief, the burden of proof shall be on the 

prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty 

of murder or attempted murder under California law . . . . If the prosecution 

fails to sustain its burden of proof, the prior conviction, and any allegations 

and enhancements attached to the conviction, shall be vacated and the 

petitioner shall be resentenced on the remaining charges.”
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[“[B]oth the United States Supreme Court and this court have recognized the 

propriety of a legislature’s taking reform ‘“one step at a time, addressing 

itself to the phase of the problem which seems most acute to the legislative 

mind”’”]; City and County of San Francisco v. Sweet (1995) 12 Cal.4th 105, 

121 [“When the Legislature has spoken, the court is not free to substitute its 

judgment as to the better policy”].)

2. Legislative Intent

Ramirez argues SB 1437 and SB 775 evidence an intent by the 

Legislature to extend resentencing relief to premeditation sentencing 

enhancements. In support of this claim, he ignores the plain language of 

section 1172.6 and points instead to the uncodified preamble of SB 1437, 

which states the general principal that individuals should be punished 

according to their own level of individual culpability. Ramirez claims by 

permitting the jury to enhance his sentence by imputing Celis’s

premeditation to him, he may have been punished beyond his own level of 

individual culpability for attempted murder. Ramirez contends that section 

1172.6 must be expansively read to apply to the premeditation enhancement 

to give effect to the legislative intent of remedying such disproportionate 

punishment. This argument fails.

The statute’s preamble is only relevant to the question of statutory 

interpretation to the extent the statute is ambiguous. (Yeager v. Blue Cross 

of California (2009) 175 Cal.App.4th 1098, 1103 (Yeager) [“Legislative 

findings and statements of purpose in a statute’s preamble can be 

illuminating if a statute is ambiguous”]; People v. Johnson (2002) 28 Cal.4th 

240, 244 [“If the statutory language contains no ambiguity, the Legislature is 

presumed to have meant what it said, and the plain meaning of the statute 
10

governs”].) Ramirez does not identify any purported ambiguity in the 

statute. Section 1172.6 does not provide any mechanism by which an 

individual convicted of attempted murder may seek to vacate a premeditation 

allegation independently of the underlying conviction. This is not an 

ambiguity; it is silence. “We may not make a silent statute speak by 

inserting language the Legislature did not put in the legislation.” (Yeager, 

supra, 175 Cal.App.4th at p. 1103.)

When the Legislature intends to provide relief from sentencing 

enhancements independently of convictions, it does so expressly. (See, e.g., 

section 1172.7 [providing for resentencing of “Any sentence enhancement” 

imposed under Health & Saf. Code, § 11370.2]; § 1172.75 [providing for 

resentencing of sentencing enhancements imposed under § 667.5].) Had the 

Legislature intended section 1172.6 to provide independent resentencing 

relief from sentencing enhancements, it could easily have done so. Courts 

have rejected similar attempts to rely on uncodified language in the preamble 

of SB 1437 to expand the scope of section 1172.6 beyond its plain language. 

(See, e.g., Flores, supra, 44 Cal.App.5th at p. 995 [rejecting the argument that 

uncodified legislative findings supported the expansion of former § 1170.95 to 

convictions for voluntary manslaughter where the statute itself “repeatedly 

and exclusively refer[s] to murder, not manslaughter”].)

The Legislature imposed unambiguous limitations on the scope of 

section 1172.6 by expressly stating it only applies to certain convictions

reached under certain theories of liability. Ramirez’s convictions and 

associated enhancements for two counts of attempted murder under a theory 

of aiding and abetting, which included an express finding of an intent to kill, 

fall beyond the statute’s scope. The trial court correctly concluded Ramirez is

ineligible for relief under section 1172.6 as a matter of law.
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DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZUKIN, J.

WE CONCUR:

COLLINS, Acting P. J.

MORI, J.