Filed 11/24/20 P. v. Ramirez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B301432
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA145931)
v.
JOSE LUIS RAMIREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Patrick Connolly, Judge. Affirmed.
Janet Gusdorff, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nancy Lil Ladner, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________________
A jury convicted Jose Luis Ramirez (appellant) of murder
(Pen. Code, § 187, subd. (a); count 1),1 arson of an inhabited
dwelling (§ 451, subd. (b); count 2), and possession of a firearm by
a felon (§ 29800, subd. (a)(1); count 3). As to count 1, the jury
found that appellant committed murder in the first degree, and
that he personally and intentionally discharged a handgun,
causing great bodily injury, within the meaning of section
12022.53, subdivision (d). As to count 2, the jury found that
appellant used an accelerant, an aggravating factor under section
451.1, subdivision (a)(5). The trial court sentenced appellant to
serve 63 years to life in state prison.
On appeal, appellant contends that the trial court erred
when it denied his request to instruct the jury on voluntary
manslaughter based on a heat-of-passion theory. We find no
error and affirm.
FACTS
Prosecution Case
Background
After he was released from jail, appellant moved in with his
father Jose Ramirez Ramos (Ramos), his mother Clementina
Ramirez (Clementina), and two of his sisters, Giselle R. (Giselle)
and Yesenia R. (Yesenia). At various times, appellant threatened
his family members.
Ramos testified that appellant used drugs, but Ramos did
not know what kind. He wanted appellant to move out and
unsuccessfully tried to get the police to take him to a
1 All further statutory references are to the Penal Code
unless otherwise indicated.
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rehabilitation center. At one point, he forced appellant out but
Clementina let him back in.
Sometimes appellant would say things that made him
sound crazy. He accused Clementina of stealing his money and
filed a police report. He also accused an adult sister, Lizette, of
stealing money from him. Appellant and Clementina argued
often, usually about money. She repeatedly told him that he
needed to get help.
The Events of April 23, 2018
On April 23, 2018, appellant placed taped-over beer bottles
containing paint thinner behind a Christmas tree in the living
room. Clementina and Giselle brought the bottles to Ramos, who
put them outside. Appellant asked Ramos for the bottles, saying
he needed them for his body shop work. Clementina did not
believe the explanation and was upset. She wanted the paint
thinner removed. In a calm manner, Clementina told appellant
he needed help. He said, “I want my stuff. You’re f***king
crazy.” He was furious. She said she was going to get him help,
that everything would be okay, and that she loved him. Giselle
testified that appellant and Clementina argued for about 15 to 20
minutes, and they were yelling. Ramos testified that Clementina
was calm, and that there was no argument. But he also testified
that “[t]hey argued, but not seriously.”
Appellant went outside and paced for about an hour.
Ramos said he would take appellant to Mexico because his
grandmother had died. That night, Ramos and Clementina went
to bed after 10:00 p.m. Appellant was in his room at the time.
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The Fire and the Shooting
At about 4:00 a.m., appellant woke up his family and said
the house was on fire. Smoke was coming out of appellant’s
bedroom. Ramos began dousing the fire with water.
Appellant and Giselle separately called 911 at 4:30 a.m.
from the front yard. Giselle accused him of causing the fire, and
he denied culpability. Clementina was mad but did not yell.
Firefighters arrived around 4:36 a.m.
Ramos testified that he stood with Clementina and
watched the firefighters. He then saw appellant and Clementina
arguing. She asked what happened in his room, and why his
room was burning. When she asked if he did it intentionally, he
said no. At some point, she asked a fireman to arrest appellant.
Per Ramos, he walked away on the sidewalk and told appellant to
stop arguing. Ramos tripped on a hose and then heard shots. He
looked back and saw Clementina on the ground.
Giselle testified that she was across the street with her pets
when the firefighters arrived. Clementina came across the street
and told Giselle that everything would be okay. Then
Clementina crossed back over the street. Giselle heard three to
six booming noises.
Captain Lorenzo Armstead testified that when he arrived,
the family was on the front lawn, and Clementina was frantic
and upset. She yelled at Captain Armstead to arrest appellant.
Captain Armstead told Clementina to calm down. He asked
where the fire was, and she said that it was in the back of the
house. Along with other firefighters, he went to the back
bedroom and quickly put out the fire—which was in and near the
closet—at 4:42 a.m. Near the closet, he saw what appeared to be
a flammable liquid can on the floor. It smelled like acetone or
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some type of lacquer. They opened the windows, poked a hole in
the ceiling to check for flames in the attic, and did a secondary
check in the house for other people. They exited the house and
went to the fire engine to change their coats.2
At that point, Captain Armstead went back toward the
house and saw appellant in the front doorway. They passed each
other on the walkway as appellant was leaving the house.
Captain Armstead walked two steps into the front room and
heard gunfire.
Firefighter Ryan Umali testified that after the fire had
been put out, he prepared for the process of cleaning up the
house, taking out all the burned contents, etc. Inside a fire
engine, he changed his jacket. He saw a man walk up to a
woman and shoot her in the head. She fell to the ground, and he
shot her again.
The Arson Investigation
The same morning as the fire, an arson investigator for the
City of Los Angeles named Gus Gaeta was called to the scene at
8:54 a.m. He determined that the fire in appellant’s bedroom was
intentionally set with an ignitable fluid such as paint thinner.
Defense Case
Appellant did not present evidence.
The Trial Court’s Refusal to Give CALCRIM No. 570
Defense counsel asked the trial court to instruct on
CALCRIM No. 570, the standard instruction for voluntary
manslaughter: heat of passion.
2 Captain Armstead said they changed from turnout coats to
brush jackets.
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The trial court concluded that the instruction should not be
given because there was insufficient evidence of provocation.
DISCUSSION
I. Relevant Law; Standard of Review.
A trial court has a duty to instruct on a lesser included
offense if there is substantial evidence that a defendant
committed it and not a greater crime. But it must not instruct on
a lesser included offense “when the evidence, even construed
most favorably to the defendant, would not support a finding of
guilt of the lesser included offense but would support a finding of
guilt of the offense charged. [Citation.]” (People v. Stewart
(2000) 77 Cal.App.4th 785, 796.)
Voluntary manslaughter is a lesser included offense of
murder. (People v. Breverman (1998) 19 Cal.4th 142, 154
(Breverman).) It is defined in section 192, subdivision (a) as the
unlawful killing of a human being without malice due to, inter
alia, heat of passion, i.e., the killer’s reason was obscured due to a
strong passion aroused by a provocation sufficient to cause an
ordinary person of average disposition to act rashly or without
due deliberation and reflection based on that passion rather than
judgment. The passion aroused need not be anger or rage, but
can be any violent, intense, high-wrought or enthusiastic emotion
other than revenge. (Breverman, supra, 19 Cal.4th at p. 163.)
“Predictable and reasonable conduct by a victim . . . is not
sufficient provocation . . . [for] voluntary manslaughter.” (People
v. Enraca (2012) 53 Cal.4th 735, 760.)
If there is no evidence that the killer exhibited anger, fear,
or rage, then there is insufficient evidence to establish that the
killer acted while under the heat of passion. (People v.
Manriquez (2005) 37 Cal.4th 547, 585.)
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II. Analysis.
Appellant contends that when the evidence is viewed in a
light most favorable to him (People v. Wright (2015) 242
Cal.App.4th 1461, 1483), it is sufficient to show that he acted in a
heat of passion because he was provoked when Clementina tried
to get him arrested. He claims that the trial court erred when it
did not instruct the jury with CALCRIM No. 570 (the standard
voluntary manslaughter: heat of passion instruction) and
CALCRIM No. 522 (the standard instruction establishing that
provocation can impact the degree of murder or reduce murder to
manslaughter).3 We disagree.
First, there was no evidence that appellant exhibited anger
or any other passion due to Clementina’s statements. At most,
there is testimony that he argued with Clementina. The record
does not paint a picture of his demeanor.
Second, even if we infer that he was operating under a high
wrought emotion when Clementina accused him of setting the
fire and tried to get him arrested, her behavior was not a
provocation because it was predictable and reasonable. They
often argued and the facts—his recent possession of paint thinner
in beer bottles, his warning of the fire, and the smoke emanating
from his bedroom—suggested that he caused of fire. Thus, it was
foreseeable she would accuse him of starting the fire and ask that
he be arrested.
3 The People argue that appellant forfeited his argument as
to CALCRIM No. 522 because he did not request it below. We
need not reach this argument because we conclude there was
insufficient evidence of provocation and no heat of passion
instructions were required.
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Third, case law explains that a “‘“provocation of slight and
trifling character, such as words of reproach, however grievous
they may be, or gestures, or an assault, or even a blow, is not
recognized as sufficient to arouse, in a reasonable [person], such
passion as reduces an unlawful killing with a deadly weapon to
manslaughter.”’” (People v. Najera (2006) 138 Cal.App.4th 212,
226.) We similarly conclude that a request that law enforcement
arrest an apparent criminal is not sufficient to arouse such
passion in a reasonable person. Though appellant calls
Clementina’s behavior an intense betrayal on par with weeks of
taunting and sexual manipulation by an unfaithful wife (People v.
Berry (1976) 18 Cal.3d 509, 515) or a long series of provocative
acts and taunts by an unfaithful lover (People v. Borchers (1958)
50 Cal.2d 321, 328–329), we cannot accept this characterization.
While the behavior exhibited in those cases is cruel and not
tolerated in a civilized society, seeking redress from law
enforcement by people who perceive themselves to be victims of
crime is generally encouraged. As a matter of policy, we decline
to equate these behaviors.
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
__________________________, J.
ASHMANN-GERST
We concur:
_____________________________, P. J.
LUI
____________________________, J.
CHAVEZ
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