Filed 6/23/21 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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, B306029
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA060104)
v.
RAYMOND SALVADOR
RAMIREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Bruce F. Marrs, Judge. Reversed and remanded
with directions.
Eric R. Larson, 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, Idan Ivri and Jonathan M. Krauss, Deputy
Attorneys General, for Plaintiff and Respondent.
******
Defendant and appellant Raymond Salvador Ramirez
(defendant) appeals from the judgment entered on remand after
reversal of the denial of his petition for vacatur and resentencing
pursuant to Penal Code section 1170.95.1 Defendant contends
that the trial court erred by converting the murder count to
robbery rather than vacating it and resentencing him on the
remaining counts. Defendant also contends that the trial court
should have specified that the direct victim restitution order was
to be a joint and several obligation with his codefendants, and
that the restitution fine should have been deemed satisfied in full
due to excess custody credits. We agree that the trial court erred
in converting the murder conviction to robbery. We also agree
that the restitution fine should be deemed satisfied. We thus
reverse the judgment and remand with directions.
BACKGROUND
Defendant was convicted in 2003 of first degree felony
murder with a true finding of the special circumstance that
defendant was an aider and abettor of the robbery who acted as a
major participant with reckless indifference to human life, as
alleged under former section 190.2, subdivision (a)(17).
Defendant was also convicted of two counts of second degree
robbery, assault with a deadly weapon, and conspiracy to commit
robbery. The trial court sentenced defendant to life in prison
without the possibility of parole, and stayed the sentences
imposed as to the remaining counts. We affirmed the judgment
on direct appeal, and the California Supreme Court denied
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
2
review. (See People v. Lopez (Oct. 6, 2004, B170919) [nonpub.
opn.].)
In 2017, defendant filed a petition for habeas corpus in this
court, based upon California Supreme Court authority decided in
2015 and 2016.2 The petition alleged that substantial evidence
did not support the findings that defendant was major
participant who acted with a reckless indifference to human life.
We agreed, granted the petition, struck the special circumstance
finding, and remanded the matter to the trial court for
resentencing. (In re Ramirez (Dec. 19, 2017, B282005) [nonpub.
opn.] (Ramirez I).) The trial court resentenced defendant to a
term of 25 years to life on the murder count. The sentences on
the remaining counts were not changed.
In 2019, defendant filed a petition under section 1170.95 to
vacate his murder conviction based upon the 2019 amendment to
section 189, which provides that the felony murder rule does not
apply to a person who was not the actual killer and did not act
with reckless indifference to human life. (See § 189, subds. (a) &
(e).) Section 1170.95 created a procedure whereby a person
whose felony-murder conviction was final, but who could not have
been convicted under the amended statute, could petition to have
the conviction vacated. (§ 1170.95, subd. (a).) Section 1170.95,
subdivision (d)(2) provides that “the court shall vacate the
petitioner’s conviction and resentence the petitioner” if there was
a prior court finding that he was not a major participant who
acted with reckless indifference to human life. Since there was
such a prior court finding in Ramirez I, supra, B282005,
2 See People v. Banks (2015) 61 Cal.4th 788 and People v.
Clark (2016) 63 Cal.4th 522.
3
defendant was eligible for vacatur and resentencing under the
statute.
In a published opinion, we reversed the trial court’s order
denying the petition and remanded with directions: “The order
denying defendant’s petition to vacate his murder conviction and
for resentencing is reversed. The matter is remanded to the
superior court with directions to grant the petition, vacate
defendant’s murder conviction, and resentence him on the
remaining counts.” (People v. Ramirez (2019) 41 Cal.App.5th 923,
933, italics added (Ramirez II).)
On February 26, 2020, the trial court amended the
information on its own motion and made count 1 a robbery
conviction. Defendant was then resentenced to a total term of
eight years, as follows: count 1, the high term of five years;
counts 2, 3, and 4, consecutive terms of one year each,
representing the one-third the middle term; and count 5, three
years, stayed under section 654.
Defendant filed a timely notice of appeal from the
judgment.
DISCUSSION
I. Duplicate underlying charge
Defendant contends that the trial court erred by converting
the murder conviction to a duplicate robbery conviction in count 1
instead of following the appellate court’s direction to vacate the
murder conviction and resentence him on the remaining counts.
At the sentencing hearing, defense counsel pointed out that count
2, the robbery committed against Carmen Castro was the felony
underlying the felony-murder charge, and asked that the court
impose the middle term. The trial court stated that the appellate
4
court had converted count 1 to a robbery and had suggested the
five-year high term, giving its reasons as follows:
“Count 1 is converted by order of the Court of
Appeals to a robbery. And I’m finding that’s based on
the totality of the facts of this case, as well as Count
5, the conspiracy to commit robbery with a huge
number of overt acts pled and proved by the People.
[¶] As to the facts of our case, we have a team
activity, as indicated in Count 5; we have
participants armed; there was a murder in the case.”3
Defendant contends that the trial court erred in three
ways: (1) by following inapplicable procedure for resentencing
under section 1170.95; (2) by failing to follow the appellate court’s
directions; and (3) by violating the constitutional prohibition
against double jeopardy, as defendant had already been convicted
in count 2 of the underlying felony. As we agree with the first
two conclusions, we do not reach the constitutional issue. (See
People v. Williams (1976) 16 Cal.3d 663, 667.)
Defendant first argues that the trial court erroneously
followed the inapplicable procedure set forth in section 1170.95,
subdivision (e), which provides for resentencing when the felony
underlying the vacated felony murder conviction was not charged
against the defendant. In such a case, “the trial court
redesignates the ‘underlying felony for resentencing purposes.’
(§ 1170.95, subd. (e).)” (People v. Howard (2020) 50 Cal.App.5th
727, 729-730.) It follows that if the underlying felony was
charged, there is no reason to amend the information or replace
3 Though the trial court did not expressly vacate the murder
conviction, the minutes of the hearing state that the court
granted the petition and vacated the murder conviction.
5
the vacated murder conviction with a duplicate underlying
charge as the trial court did here.
“The statutory definition of first degree felony murder is . . .
‘. . . murder . . . committed in the perpetration of, or attempt to
perpetrate [certain enumerated felonies including
robbery . . .] . . . .’ (§ 189.)” (People v. Clark, supra, 63 Cal.4th at
p. 615.) Here, the underlying robbery committed against the
murder victim, Carmen Castro, was charged in count 2 of the
information, and the jury found defendant guilty of count 2. A
second robbery was charged in count 3, and the jury found
defendant guilty of that robbery, as well. The proper procedure
to follow when the defendant is found eligible for resentencing
and has been convicted separately of the underlying charge is
found in section 1170.95, subdivision (d)(3): “[T]he prior
conviction, and any allegations and enhancements attached to
the conviction, shall be vacated and the petitioner shall be
resentenced on the remaining charges.” (Ramirez II, supra, 41
Cal.App.5th at p. 933, italics added.) Thus, the proper procedure
in this case would have been to vacate the murder conviction
without amending the information, and then resentence on the
remaining charges, counts 2 through 5.
The second error identified by defendant was the trial
court’s failure to follow the appellate court’s directions. “‘Where a
reviewing court reverses a judgment with directions . . . the trial
court is bound by the directions given and has no authority to
retry any other issue or to make any other findings. Its authority
is limited wholly and solely to following the directions of the
reviewing court.’” (People v. Dutra (2006) 145 Cal.App.4th 1359,
1367.) “[T]he rule requiring a trial court to follow the terms of
the remittitur is jurisdictional, unlike the law of the case
6
doctrine.” (Ibid., citing Snukal v. Flightways Manufacturing, Inc.
(2000) 23 Cal.4th 754, 774, fn. 5 & Rice v. Schmid (1944) 25
Cal.2d 259, 263.) The appellate court’s “directions are ‘binding on
the trial court and must be followed. Any material variance . . . is
unauthorized and void.’” (People v. Dutra, supra, at p. 1367,
quoting Butler v. Superior Court (2002) 104 Cal.App.4th 979,
982.)
An appellate court’s decision is found in the disposition
section of its opinion, and it is the disposition which constitutes
the judgment on appeal. (People v. Awad (2015) 238 Cal.App.4th
215, 223.) Here, the trial court stated that it intended to follow
the appellate court’s orders “exactly,” but then ruled that dicta in
a footnote of the opinion represented the appellate court’s orders.
It did not. The trial court referred to footnote 4, in which we
attempted to calculate to defendant’s assertion that “resentencing
on the previously stayed counts would yield a maximum sentence
of eight years in prison.” (Ramirez II, supra, 41 Cal.App.5th at
p. 933.) We mistakenly included count 1, and in any event, we
did not convert count 1 to robbery, we did not suggest the high
term, and we had no intention of suggesting to the court how to
resentence defendant.4
Our directions on remand were stated in the disposition,
not in a footnote. As the trial court did not follow the directions
given, its orders after remand are void. (People v. Dutra, supra,
145 Cal.App.4th at p. 1367.) We shall therefore again order the
trial court to vacate the murder conviction and resentence
4 “Whatever may be said in an opinion that is not necessary
to a determination of the question involved is to be regarded as
mere dictum.” (Childers v. Childers (1946) 74 Cal.App.2d 56, 61-
62.)
7
defendant on the remaining counts, as required by section
1170.95, subdivision (d)(2).
II. Direct victim restitution
Defendant asks that we order the trial court to amend the
abstract of judgment to reflect that the $9,073.85 direct victim
restitution order is a joint and several obligation of defendant
and his codefendants. Defendant points out that the trial court
did not so specify, either orally or on the abstract of judgment.
He argues that the trial court could have ordered each of the four
defendants to pay one-quarter of the victim’s total losses
individually, but should not have ordered defendant to pay the
entire amount without making the award the same for all four
defendants without specifying that the obligation was to be joint
and several. Otherwise, defendant argues, the award could grow
to four times the amount of actual economic loss, which would
constitute an unauthorized sentence.
Defendant relies on People v. Blackburn (1999) 72
Cal.App.4th 1520, 1535, where each of the trial court’s restitution
orders against several defendants constituted full compensation
for the victims’ losses. The defendants argued that requiring
each of them to pay full victim restitution in the same amounts
would result in unjust enrichment for the victims. The appellate
court held that under such circumstances, it was apparent that
the trial court intended that each restitution order be joint and
several, and the appellate court may amend the abstract of
judgment to so reflect. (Ibid.) Thus, if several defendants are
each ordered the full amount of restitution to be received by a
victim or victims, it would be apparent that the order was meant
to be joint and several. (See ibid.)
8
Respondent asserts that defendant has failed to preserve
this issue for appeal because he did not raise it in the trial court.
Forfeited or not, defendant has not provided a record that is
adequate for review. He has suggested in argument that funeral
costs of $9,073.85 were the full extent of the restitution ordered
against all defendants, but he has not pointed to evidence in the
record for his suggestion, other than the orders affecting only
defendant, which are not clear on this point. “It is axiomatic that
it is the burden of the appellant to provide an adequate record to
permit review of a claimed error, and failure to do so may be
deemed a waiver of the issue on appeal.” (People v. Akins (2005)
128 Cal.App.4th 1376, 1385, citing Maria P. v. Riles (1987) 43
Cal.3d 1281, 1295-1296.)
As the judgment entered after remand was unauthorized
and we again remand the matter for resentencing, defendant will
have the opportunity to ask the trial court to clarify whether
defendant is to pay one-quarter of the full restitution amount
individually or the full amount jointly and severally, thereby
having the opportunity to make the appropriate record.
III. Restitution fine
Relying on the recent decision in People v. Lamoureux
(2020) 57 Cal.App.5th 136 (Lamoureux), defendant claims to be
entitled to have his excess custody credits applied as an offset to
the $5,000 restitution fine imposed pursuant to section 1202.4,
former subdivision (b). (Stats. 2000, ch. 1016, § 9.5.) Respondent
agrees, as do we.
In Lamoureux, as here, after the defendant’s section
1170.95 petition was granted, she had sufficient custody credits
for immediate release upon resentencing, with excess custody
credits that should have been applied to outstanding fines,
9
including the restitution fine, pursuant to the version of former
section 2900.5 in effect at the time of her offense in 2011.
(Lamoureux, supra, 57 Cal.App.5th at p. 152; see People v. Souza
(2012) 54 Cal.4th 90, 142-143 [the ex post facto clause applies to
restitution fines].) If the excess credits clearly offset the entire
restitution fine, the appropriate remedy on appeal is for the
reviewing court to deem the restitution fine satisfied in full and
strike the fine, or direct the trial court to modify the judgment to
so reflect. (See Lamoureux, at p. 154 [fine stricken by appellate
court]; People v. Morris (2015) 242 Cal.App.4th 94, 103 [trial
court ordered to modify judgment].)
Here, defendant’s crime was committed in 2002 and he was
sentenced in 2003. At that time, former section 2900.5 a
provided, in relevant part as follows:
“In all felony . . . convictions, either by plea or by
verdict, . . . all days of custody of the defendant . . .
shall be credited upon his or her term of
imprisonment, or credited to any fine on a
proportional basis, including, but not limited to, base
fines and restitution fines, which may be imposed, at
the rate of not less than thirty dollars ($30) per day,
or more, in the discretion of the court imposing the
sentence. If the total number of days in custody
exceeds the number of days of the term of
imprisonment to be imposed, the entire term of
imprisonment shall be deemed to have been served.
In any case where the court has imposed both a
prison . . . and a fine, any days to be credited to the
defendant shall first be applied to the term of
imprisonment imposed, and thereafter the remaining
days, if any, shall be applied to the fine on a
proportional basis, including, but not limited to, base
fines and restitution fines.” (Stats. 1998, ch. 338,
§ 6.)
10
At defendant’s resentencing on February 26, 2020, the trial
court found that defendant was entitled to 6,376 days of
combined custody and conduct credit, and sentenced defendant to
eight years, which amounted to 2,920 days. This left 3,456 days
of excess credit. The $30 per day for 3,456 days plainly exceeds
$5,000. We thus direct the trial court not to reimpose the
restitution fine and to ensure that the judgment entered after
remand reflects that the fine has been satisfied in full.
DISPOSITION
The judgment entered after remand is reversed. The
matter is again remanded to the superior court with directions to
vacate count 1 and to resentence defendant on the remaining
counts. The judgment entered upon resentencing shall reflect
that the full restitution fine has been satisfied.
_______________________, J.
CHAVEZ
We concur:
__________________________, P. J.
LUI
__________________________, J.
ASHMANN-GERST
11