Filed 6/29/21 P. v. Ramirez CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN
THE PEOPLE, B305683
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA030448)
v.
MONIQUIE RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Olivia Rosales, Judge. Affirmed.
Ralph H. Goldsen, 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, Senior
Assistant Attorney General, Amanda Lopez and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
The superior court denied Moniquie Ramirez’s petition for
resentencing pursuant to Penal Code section 1170.951 after an
evidentiary hearing, finding she could still be convicted of murder
notwithstanding the changes to accomplice liability for murder
effected by Senate Bill No. 1437 (2017-2018 Reg. Sess.)
(Stats. 2018, ch. 1015) (Senate Bill 1437). On appeal Ramirez
argues it is unclear whether the court applied the correct
standard of proof (that is, that the People must prove every
element of liability for murder under the amended statutes
beyond a reasonable doubt, as this court held in People v.
Rodriguez (2020) 58 Cal.App.5th 227, 230 (Rodriguez), review
granted March 10, 2021, S266652, and the court impermissibly
accepted as evidence of her continued culpability the summary of
trial evidence in our opinion affirming her convictions for second
degree murder and attempted murder (People v. Ramirez
(July 23, 1997, B104850) [nonpub. opn.]).
Neither argument has merit. As to the first, both the
prosecutor and Ramirez’s counsel in the superior court clearly
stated it was the People’s burden to prove beyond a reasonable
doubt that Ramirez could now be convicted of murder. The
record reflects the superior court understood and applied that
standard. As to the second, section 1170.95, subdivision (d)(3),
expressly provides the parties may rely on the record of
conviction at the hearing to determine whether the petitioner is
entitled to relief. As we have held in a number of cases (see, e.g.,
People v. Harris (2021) 60 Cal.App.5th 939 (Harris), review
granted Apr. 28, 2021, S267802; People v. Verdugo (2020)
1 Statutory references are to this code.
2
44 Cal.App.5th 320, 330 (Verdugo), review granted Mar. 18, 2020,
S260493), the opinion on a petitioner’s direct appeal is part of the
record of conviction, and it is entirely proper for the superior
court to consider as reliable hearsay in section 1170.95
proceedings statements of fact contained in that opinion. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Ramirez’s Trial, Conviction and Appeal
Ramirez was charged in an information filed May 2, 1995
with the murder of Daniel Legarreta (§ 187, subd. (a)) with a
special allegation the murder had been committed while Ramirez
was engaged in an attempted robbery within the meaning of
section 190.2, subdivision (a)(17); the attempted willful,
deliberate and premeditated murder of David Legarreta (§§ 664,
187, subd. (a)); and attempted first degree robbery (§§ 664, 211).
The information further alleged a principal had been armed
during the commission of all three offenses (§ 12022, subd. (a)).
a. The evidence at trial
As summarized in our opinion affirming Ramirez’s
convictions for second degree murder and attempted murder
(People v. Ramirez, supra, B104850), Ramirez had been selling
small amounts of methamphetamine to Daniel Legarreta and his
17-year-old son, David Legarreta, for several months. In early
January 1995 Daniel and Ramirez had a dispute during which
Daniel took Ramirez’s cell phone. (The prosecutor’s version was
it was taken by Daniel as collateral for a debt; the defense
contended Daniel seized the phone, intending to sell it even
though Ramirez did not want him to.) Daniel told David that
Ramirez had threatened to shoot him if he did not return the
device.
3
At approximately 6:00 p.m. on January 8, 1995 David
called Ramirez and asked her to come over to sell the Legarretas
drugs. Two hours later David responded to a knock and opened
the door to Ramirez, her boyfriend and four men he did not know.
One of the strangers pointed a gun at David’s head. The gun
looked similar to one that Ramirez had brought to the Legarreta
house a few days earlier. Ramirez asked where Daniel was, and
David went to Daniel’s bedroom to tell him Ramirez was there.
As David did so, he saw all but one of the group go into the living
room, where Ramirez unplugged the stereo and attempted to pull
out telephone wires. Meanwhile, the man holding the gun
stepped into the doorway of David’s bedroom, where Daniel’s
friend, Frederick Williams, was sleeping. The gunman woke
Williams, pointed the gun at him and demanded that Williams
empty his pockets and turn over his wallet. Williams responded
he had no wallet, and the gunman left.
While this was taking place, David told Daniel that
Ramirez had arrived and had a gun. Daniel grabbed a shotgun
and, holding it, walked into the living room. Ramirez cried out,
“He has a gun,” and ran out the front door with four of the men.
The individual with the gun emerged from David’s bedroom at
this point, fired at Daniel and then at David, who had gone to
help his father. Williams heard eight or nine shots and escaped
through a bedroom window. Daniel died from multiple gunshot
wounds. The murder weapon was never found.
Testifying in her defense, Ramirez said she, Daniel and
David were friends. She sold them drugs, which they used
together; and sometimes they went shopping or out to eat. On
January 1 or 2, 1995 she and Daniel got into a dispute over her
cell phone, which David took from the glove compartment of her
4
car. Daniel said he could sell it for $300. Although she had only
paid $50 for the phone and had not yet activated it, Ramirez told
Daniel she was not interested. Daniel refused to give it back to
her. Ramirez insisted the dispute was not heated, and she never
threatened to kill Daniel. Although she had purchased a
handgun for protection similar to the one depicted in a
photograph introduced during the People’s case, Ramirez had last
seen it in a drawer in her apartment.
Ramirez related her version of the events on January 8,
1995. David called and said he wanted to buy a small quantity of
methamphetamine. He told her he wanted her to come alone.
Because he had never before made that request, Ramirez asked
why; David said his father had said so. Ramirez was frightened
because she knew Daniel had a gun, had seen him angry on many
prior occasions and believed he could be exceptionally dangerous.
Before Ramirez left for the Legarretas’ home, her cousin, two of
his friends and a friend of her boyfriend arrived at her apartment
where they all drank alcohol and used drugs. Ramirez then
asked the men to accompany her to the Legarreta house. There
was no conversation about robbing or hurting anyone or
committing any crime except selling drugs. Ramirez did not take
her gun, and she did not see a gun in the possession of any of her
companions. At the Legarreta house only Ramirez, her boyfriend
and her cousin went to the front door. When David answered the
door, she asked, “Where is your father?” No one put a gun to
David’s head. David told Ramirez that Daniel was in his
bedroom, and she followed him back toward the bedroom. She
did not unplug the stereo or attempt to pull out any phone wires,
and she saw no one else doing those things.
5
When David reached Daniel’s bedroom, he knocked on the
door and said, “Moniquie is here. They’re here.” Daniel came out,
pointing his shotgun at her as he loaded it. Ramirez called out,
“He has a gun”; and she, her boyfriend and two of her cousin’s
friends ran out of the house and got into their car. Ramirez said
she may have heard one shot after she got outside.
Ramirez’s cousin was the last to leave the house. When he
got in the car, he told Ramirez he had shot Daniel. Because she
was frightened, Ramirez did not ask her cousin about the
circumstances of the shooting or where he got the gun. By the
time of trial, the cousin and Ramirez’s boyfriend had
disappeared. Ramirez was unable to locate the friends who
accompanied them to the Legarreta house.
As to the murder charge, the court instructed the jury, in
part, on express malice (premeditated) murder, felony murder
during the commission of an attempted robbery and murder as
the natural and probable consequence of attempted robbery or
assault with a deadly weapon. As to attempted murder, the court
instructed the jury as to attempted willful, deliberate and
premeditated murder and attempted murder as the natural and
probable consequence of attempted robbery or assault with a
deadly weapon.
b. The verdict and sentencing
The jury convicted Ramirez of second degree murder and
attempted murder, found her not guilty of attempted robbery and
rejected the special allegations the attempted murder had been
premeditated and a principal had been armed during the
commission of the murder and attempted murder. The court
sentenced Ramirez to an indeterminate state prison term of
6
15 years to life for murder plus a concurrent life term for
attempted murder.
c. Our opinion affirming the convictions
On appeal Ramirez argued, in what this court called a
combined challenge, that the verdicts were inconsistent, contrary
to law and not supported by substantial evidence. Ramirez
contended the jury’s finding of second degree murder and
rejection of the allegation the attempted murder had been
premeditated indicated neither offense had been premeditated.
She additionally argued the not guilty finding on attempted
robbery precluded a finding of felony murder or murder as a
natural and probable consequence of the attempted robbery.
Finally, she argued the failure to find true the principal-armed
enhancement allegation meant the murder could not have been
the natural and probable consequence of an assault with a deadly
weapon.
We rejected these arguments, concluding the attempted
robbery acquittal was likely the product of jury confusion or
leniency. We held there was substantial evidence that, in
retaliation for Daniel’s confiscation of her cell phone, Ramirez
aided and abetted an attempted armed robbery as a natural and
probable consequence of which Daniel and David were shot.
“Because appellant had previously seen Daniel with a gun, had
often seen him angry, and considered him to be ‘exceptionally
dangerous,’ she had to be aware of the great potential for armed
resistance to her group’s armed invasion of, and attempt to take
property from, the Legarreta home. Moreover, it was reasonably
foreseeable, and therefore a natural and probable consequence of
the robbery, that appellant’s armed companion would fire the gun
to overcome resistance, to escape capture, out of anger, etc.”
7
In addition to challenging the verdicts, Ramirez argued the
15-year-to-life sentence was cruel or unusual punishment in
violation of the California Constitution in light of her youth (she
was 20 years old at the time of the murder), her lack of a prior
adult criminal record and her limited role in the offenses. In
rejecting that argument, we noted an armed home-invasion
robbery always creates an extremely high risk of violence and, in
the circumstances here, there was an even greater potential for
violence because Ramirez knew Daniel was a dangerous man.
Moreover, we explained, Ramirez’s participation was “crucial to
the commission of the crime because her status as the Legarretas’
friend and drug dealer served as the group’s admission ticket to
the Legarreta home. Appellant also supplied the motive for the
robbery: retaliation for Daniel’s refusal to return appellant’s cell
phone. In addition, appellant may have provided the gun used to
intimidate the Legarreta household, kill Daniel, and injure
David. David’s testimony regarding the group’s conduct upon
admission to the house, including displaying the gun in a
threatening manner, unplugging the stereo, and disconnecting
the telephones, belies appellant’s contention that there is no
indication she intended anything other than ‘one of the parties’
usual drug transactions.’ The behavior of the group indicates
that appellant and the remaining members planned to rob the
Legarretas and others occupying their home. Moreover,
appellant did nothing to aid Daniel when her cousin told her he
had shot ‘the big one.’ Thus, nothing in the nature of the offense
supports appellant’s disproportionality claim.”2
2 Although affirming Ramirez’s two convictions, we vacated
her sentence and remanded the case for resentencing because the
trial court had erred in imposing a concurrent indeterminate life
8
2. Ramirez’s Section 1170.95 Petition
Ramirez, represented by counsel, filed a petition on
May 14, 2019 to vacate her second degree murder conviction and
for resentencing pursuant to section 1170.95, alleging she had
been convicted of second degree murder under a felony-murder
theory and could not now be convicted of murder because of the
changes made to sections 188 and 189 by Senate Bill 1437.
Ramirez’s petition specifically alleged she was not the actual
killer in the commitment offense, did not aid and abet the actual
killer with the intent to kill and was not a major participant and
did not act with reckless indifference during the course of the
crime.3
The People filed an opposition to the petition contending
section 1170.95 was unconstitutional, and a supplemental
opposition arguing, even if section 1170.95 was valid, Ramirez
was not entitled to relief because the record of conviction
affirmatively established, beyond a reasonable doubt, that she
had been a major participant in the underlying attempted
robbery and had acted with reckless indifference to human life.
The supplemental opposition attached a copy of our opinion
affirming Ramirez’s conviction. Ramirez filed a reply brief in
support of her petition, which responded to the People’s
constitutional and statutory arguments. Both the People’s
term for attempted murder, rather than a determinate term of
five, seven or nine years. (§ 664, subd. (a).) On remand the trial
court imposed a concurrent seven-year term.
3 Judge Dewey L. Falcone, who had presided at Ramirez’s
trial and sentencing hearings, retired from the Los Angeles
Superior Court in May 2013. Ramirez’s petition was ultimately
assigned to Judge Olivia Rosales for hearing and decision.
9
supplemental opposition and Ramirez’s reply memorandum
addressed the Supreme Court’s clarification in People v. Banks
(2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark) of the requirements for a true finding of a
felony-murder special-circumstance allegation pursuant to
section 190.2, subdivision (d), the standard for felony murder now
incorporated in section 189, subdivision (e)(3).
On December 17, 2019 the superior court found that
Ramirez had established a prima facie case for relief and
scheduled a hearing on an order to show cause for February 26,
2020.
3. The Hearing on Ramirez’s Petition
At the evidentiary hearing both sides relied on this court’s
opinion affirming Ramirez’s convictions to argue whether
Ramirez could now be convicted of felony murder as a major
participant in the underlying crimes who had acted with reckless
indifference to human life under the standards articulated in
Banks, supra, 61 Cal.4th 788 and Clark, supra, 63 Cal.4th 522.
At the outset of her argument, Ramirez’s counsel (a certified law
student actively supervised by an experienced lawyer present in
court) emphasized, “As this court knows, section 1170.95 places
the same burden on the People they would have if the case was
before the court for trial, meaning that this court must find that
the defendant could only be found guilty beyond a reasonable
doubt.”
After hearing argument the court denied the petition,
stating, “In reviewing the court record, [the] court of appeal
decision, the transcripts of some of the testimony, the briefs filed
by both sides and all the points and authorities, I do find that
she, beyond a reasonable doubt, is a major participant. I do find
10
that she was the ringleader. But for her there’s no dispute with
Daniel. But for her there’s no drug deal. But for her there’s no
people coming to Daniel’s home. But for her there are [no] people
coming with guns to his home. . . . But for her, this doesn’t
happen.”
The court continued, “At no point does she seem—is there
any testimony, aside from her testimony, that she is startled by
all of a sudden the fact that they—because none of the other
witnesses say she seems startled until—until the victim shows up
with his own shotgun. That’s what they didn’t anticipate or at
least that’s what they realize, he came out with a bigger gun.
But when they go in there, it’s orchestrated, it’s led by her. . . .
She brings all these other people who are uninvited, unknown to
the victims, and it basically creates an explosive atmosphere and
which actually ends up in explosion because someone is killed.
So I do find distinguishable from, from Banks that this was
[done] with recklessness sufficient to find her guilty under this
theory and, therefore, relief is denied. Petition is denied.”
Ramirez filed a timely notice of appeal.
DISCUSSION
1. Senate Bill 1437 and the Section 1170.95 Petition
Procedure
Senate Bill 1437 modified the law relating to accomplice
liability for murder, eliminating the natural and probable
consequences doctrine as a basis for finding a defendant guilty of
murder (People v. Gentile (2020) 10 Cal.5th 830, 842-843) and
significantly limiting the felony-murder exception to the malice
requirement for murder. (See, e.g., Rodriguez, supra,
58 Cal.App.5th at p. 236, review granted; People v. Bascomb
(2020) 55 Cal.App.5th 1077, 1080.) With respect to the latter
11
change, in its uncodified findings and declarations the
Legislature stated, “It is necessary to amend the felony murder
rule . . . 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); see Verdugo, supra, 44 Cal.App.5th at
p. 325, review granted.)4
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See People v. Gentile, supra,
10 Cal.5th at p. 859.) If the section 1170.95 petition contains all
the required information, including a declaration by the
petitioner that he or she was convicted of murder and is eligible
4 To effectuate this purpose, new section 189, subdivision (e),
provides with respect to a participant in the perpetration or
attempted perpetration of a felony listed in section 189,
subdivision (a), in which a death occurs (that is, as to those crimes
that provide the basis for the charge of first degree felony murder)
that an individual is liable for murder “only if one of the following
is proven: [¶] (1) The person was the actual killer. [¶] (2) The
person 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 person was a major participant in the
underlying felony and acted with reckless indifference to human
life, as described in subdivision (d) of Section 190.2.”
12
for relief (§ 1170.95, subd. (b)(1)(A)), section 1170.95,
subdivision (c), prescribes a process for the court to determine
whether the petitioner has made a prima facie showing that he or
she falls within the provisions of the section and is entitled to
relief.
Once the section 1170.95, subdivision (c), prima facie
showings have been made, the court must issue an order to show
cause and hold an evidentiary hearing to determine whether to
vacate the murder conviction and resentence the petitioner on
any remaining counts. (§ 1170.95, subd. (d)(1).) At the hearing
the prosecution has the burden of proving beyond a reasonable
doubt that the petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3); Rodriguez, supra, 58 Cal.App.5th at
p. 230, review granted; People v. Lopez (2020) 56 Cal.App.5th
936, 949, review granted Feb. 10, 2021, S265974; but see People
v. Duke (2020) 55 Cal.App.5th 113, 123 (Duke), review granted
Jan. 13, 2021, S265309.) The prosecutor and petitioner may rely
on the record of conviction or offer new or additional evidence to
meet their respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 981;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
2. The Superior Court Applied the Proper Standard of
Proof at the Evidentiary Hearing
Our colleagues in the Sixth Appellate District in People v.
Lopez, supra, 56 Cal.App.5th 936, review granted, and this court
in Rodriguez, supra, 58 Cal.App.5th 227, review granted,5 held
5 In granting review in both People v. Lopez, S265974, and
People v. Rodriguez, S266652, the Supreme Court ordered further
13
section 1170.95 requires the prosecutor to prove beyond a
reasonable doubt each element of first or second degree murder
under current law to establish a petitioner’s ineligibility for relief
under that statute. Once the petitioner has made a prima facie
showing of eligibility for relief, we stated, “[I]t is the court’s
responsibility to act as independent fact finder and determine
whether the evidence establishes a petitioner would be guilty of
murder under amended sections 188 and 189 and is thus
ineligible for resentencing under section 1170.95,
subdivision (d)(3).” (Rodriguez, at pp. 243-244; accord, People v.
Duchine (2021) 60 Cal.App.5th 798, 813; People v. Clements
(2021) 60 Cal.App.5th 597, 615, review granted Apr. 28, 2021,
S267624.)
Disagreeing with the contrary view expressed in Duke,
supra, 55 Cal.App.5th 113, review granted, which held the
prosecutor must only prove a reasonable jury could find the
defendant guilty of murder with the requisite mental state—the
substantial evidence standard of proof—we explained that
relaxed standard was inconsistent with the Legislature’s intent
in enacting Senate Bill 1437 to provide retroactive relief for
individuals who had been convicted of murder under now-invalid
action deferred pending consideration and disposition of a related
issue in People v. Duke, S265309. In People v. Duke, the Supreme
Court limited the issue to be briefed and argued to the following:
“Can the People meet their burden of establishing a petitioner’s
ineligibility for resentencing under . . . section 1170.95,
subdivision (d)(3) by presenting substantial evidence of the
petitioner’s liability for murder under . . . sections 188 and 189 as
amended by Senate Bill No. 1437 (Stats. 2018, ch. 1015), or must
the People prove every element of liability for murder under the
amended statutes beyond a reasonable doubt?”
14
theories of liability. (Rodriguez, supra, 58 Cal.App.5th at
pp. 240-241, review granted.) In addition, emphasizing that
section 1170.95, subdivision (d)(3), authorizes the introduction of
new or additional evidence at the hearing to determine whether
the petitioner is ineligible for resentencing, as occurred here, we
asked, “How is the superior court to evaluate that additional
evidence if not as an independent fact finder?” (Rodriguez, at
p. 242.) Answering our own question, we stated, “It would be
pointless for the court’s role in this situation simply to be
deciding whether a jury could credit a new witness’s testimony
and thus could conclude the petitioner had acted with express
malice.” (Ibid.)
Ramirez contends the record is unclear whether the
superior court in finding she could still be convicted of murder
applied a beyond a reasonable doubt or the less rigorous
substantial evidence standard of proof and urges us to remand for
a new evidentiary hearing. For his part, the Attorney General
continues to advocate for the standard articulated in Duke, but
argues the superior court applied the standard of proof
recognized in Rodriguez. We agree the superior court properly
understood its role as independent fact finder and applied the
correct standard of proof.6
6 Ramirez argues the superior court failed to understand its
role as independent fact finder, believing it was “bound” by this
court’s opinion affirming Ramirez’s convictions. She quotes the
court’s statement, “[I]t’s the court of appeal . . . . I have to follow
the court of appeal.” A more careful review of the reporter’s
transcript, however, confirms the superior court was referring to
a court of appeal decision holding Senate Bill 1437 and
section 1170.95 constitutional when it stated it was bound by the
opinion and had to follow it.
15
Significantly, both the prosecutor and Ramirez’s counsel
urged the court to apply a beyond a reasonable doubt standard.
The prosecutor, after reviewing the evidence as described in our
opinion on direct appeal and discussing the Banks/Clark factors,
concluded his supplemental brief by stating, “These facts prove
beyond a reasonable doubt that petitioner was a major
participant in the underlying robbery who acted with reckless
indifference to human life, within the meaning of Penal Code
section 189, sub[division] (e)(3), which means she could be
convicted of murder on felony murder principles under the
current law.” Ramirez’s counsel, concluding her oral argument,
which also discussed our opinion’s factual summary in light of the
Banks/Clark factors, stated, “Ms. Ramirez was never a major
participant, nor did she act with reckless indifference to human
life. The People have the burden of proof to show beyond a
reasonable doubt that Ms. Ramirez could be found guilty of
second degree murder in line with S.B. 1437 or Penal Code
1170.95. They failed to do so today.”
The superior court did not take issue with either party’s
description of the governing standard of proof or suggest it was
applying a different standard. To the contrary, as discussed, the
superior court expressly found that Ramirez “beyond a
reasonable doubt is a major participant.” Although the court’s
reckless indifference finding is slightly less clear—the court
stated Ramirez “did act with recklessness sufficient to find her
guilty under this theory”—reading the entirety of the court’s
comments in context, we are left with no doubt it applied the
proper standard of proof, as held in Rodriguez, supra,
58 Cal.App.5th 227, review granted, and People v. Lopez, supra,
56 Cal.App.5th 936, review granted.
16
3. The Superior Court Properly Considered as Evidence
This Court’s Opinion Affirming Ramirez’s Murder
Conviction
Section 1170.95, subdivision (d)(3), provides, “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 ineligible for
resentencing. . . . The prosecution and the petitioner may rely on
the record of conviction or offer new or additional evidence to
meet their respective burdens.” The appellate opinion resolving a
defendant’s direct appeal is unquestionably part of the record of
conviction. (People v. Woodell (1998) 17 Cal.4th 448, 456 [“[w]e
see no reason to limit the record of conviction to the trial court
record and to preclude reference to the appellate court record,
including the appellate opinion”]; Verdugo, supra, 44 Cal.App.5th
at p. 333, review granted [“[a] court of appeal opinion, whether or
not published, is part of the appellant’s record of conviction”];
see also People v. Palacios (2020) 58 Cal.App.5th 845, 856, review
granted Feb. 24, 2021, S266701; People v. Lewis, supra,
43 Cal.App.5th at pp. 1137-1138, review granted.)
In Harris, supra, 60 Cal.App.5th 939, review granted, we
expressly rejected the argument made by Ramirez that factual
statements in the appellate opinion affirming a petitioner’s
murder conviction on direct appeal are inadmissible hearsay and
not properly considered in section 1170.95 proceedings. The
petitioner in Harris relied on Gilmore v. Superior Court (1991)
230 Cal.App.3d 416, 418, in which the court of appeal had held
the description of events in an appellate opinion from a criminal
case is inadmissible hearsay in a civil action for wrongful death.
(Gilmore, at p. 418.) In contrast, we explained, “In postconviction
17
proceedings, statements from prior appellate opinions are
admissible as reliable hearsay even if they would not be
admissible at trial. (See, e.g., People v. Guilford (2014)
228 Cal.App.4th 651, 660-661 [proper to rely on prior appellate
opinion when ruling on section 1170.126 resentencing petition];
see also People v. Saelee (2018) 28 Cal.App.5th 744, 756 [reliable
hearsay may be considered in deciding Proposition 64 petition to
recall felony sentence for a marijuana conviction and to
resentence as a misdemeanor]; People v. Sledge (2017)
7 Cal.App.5th 1089, 1094-1095 [reliable hearsay may be
considered at eligibility hearing under Proposition 47].) The
rules of evidence governing section 1170.95 proceedings ‘should
be no different than those applied at other analogous
postconviction resentencing proceedings.’” (Harris, at pp. 953-
954; accord, People v. Clements, supra, 60 Cal.App.5th at p. 612,
review granted [“in posttrial proceedings, statements from prior
appellate opinions are admissible as reliable hearsay even if they
would not be admissible at trial”].)
As the court of appeal explained in People v. Williams
(2020) 57 Cal.App.5th 652, 661, “[A] ‘hearing under section
1170.95 is not a trial de novo on all the original charges.’
[Citation.] Rather, it is a postconviction proceeding ‘due to the
Legislature’s inclusion of section 1170.95 in Senate Bill
No. 1437 . . . , [as] an “act of lenity” [citation], allowing for the
retroactive application of the new law governing accomplice
liability for felony murder [citation], for defendants already
serving valid sentences for murder.’ [Citation.] In allowing for
the section 1170.95 postconviction proceeding, the Legislature
gave the superior court unfettered discretion to consider
‘evidence’ without any restriction at the subdivision (d)(3)
18
hearing to determine the petitioner’s eligibility for resentencing.”
Accordingly, the Williams court concluded, at the evidentiary
hearing to determine whether a petitioner was eligible to be
resentenced, the superior court was entitled to consider hearsay
evidence, including statements from the appellate opinion
affirming the petitioner’s murder conviction, “‘provided there is a
substantial basis for believing the hearsay information is
reliable.’” (Id. at p. 662.)
To be sure, as Ramirez explains, the jury at her 1996 trial
did not find true a felony-murder special-circumstance allegation,
and, as a consequence, our opinion affirming her conviction for
murder and attempted murder did not expressly address whether
she had been a major participant in one of the underlying felonies
or had acted with reckless indifference to human life, although it
did discuss at some length her culpability beyond the bare
elements of the crimes for which she had been convicted in
responding to her contention the sentence imposed constituted
cruel or unusual punishment. And as she argues, the purpose of
an appellate opinion is not to accurately summarize the entire
trial record but to explain the court’s decision on the issues before
it. Similar arguments against permitting use of a prior appellate
opinion were considered and rejected by the Supreme Court in
People v. Woodell, supra, 17 Cal.4th at page 457, when it held an
appellate opinion is part of the record of conviction in a
three strikes case, “[B]ecause some opinions might not be
probative on a given question is no reason to exclude all opinions,
including those that are probative. If the appellate court did
19
state the pertinent facts, a trier of fact is entitled to find that
those statements accurately reflect the trial record.”7
In sum, Ramirez’s argument it was error for the superior
court to have made any use of our 1997 opinion at her
subdivision (d)(3) hearing is not well taken. Because Ramirez
has not attempted to identify any specific portion of our opinion
that was inaccurate or otherwise improperly considered by the
superior court, we reject her contention the court’s reliance on
our prior opinion requires reversal of the order denying her
petition. (See People v. Clements, supra, 60 Cal.App.5th at
p. 613, review granted [“Clements has not identified any portion
of our prior opinion that was not relevant or admissible but which
the trial judge relied upon, so she’s provided no basis for
overturning the trial judge’s ruling on the ground that it reached
its ultimate conclusion that she was not entitled to relief based
on irrelevant or inadmissible information in our prior opinion”].)
Based on her contention our opinion on direct appeal had
no evidentiary value and should not have been considered in any
7 The People are not limited to the theory of liability
advanced at trial when attempting to prove the petitioner could
still be convicted of murder under amended sections 188 and 189.
(See, e.g., People v. Lopez, supra, 56 Cal.App.5th at pp. 941-942,
955-958, review granted [petitioner convicted of second degree
murder under a natural and probable consequences theory
properly denied resentencing under section 1170.95 based on
proof he could be convicted of murder on an implied malice
theory].) Indeed, it is a fundamental premise of Senate Bill 1437
that an individual convicted of murder under a now-invalid
theory of accomplice liability must be resentenced only if the
People cannot prove he or she would still be liable for murder
under a different theory based on the record of conviction or new
or additional evidence.
20
respect, Ramirez asserts, “This appeal presents an insufficiency
claim, because no evidence at all was introduced.” She does not
otherwise argue the superior court’s decision is not supported by
substantial evidence. (See People v. Rodriguez, supra,
58 Cal.App.5th at p. 238, review granted [on appeal from the
superior court’s decision denying a petition for resentencing
following an evidentiary hearing, we apply the deferential
substantial evidence standard of review to the superior court’s
factual findings]; People v. Lopez, supra, 56 Cal.App.5th at p. 953,
review granted [same]; see Duke, supra, 55 Cal.App.5th at p. 120,
review granted [same].) Accordingly, we are not called upon to
determine whether our prior opinion and other portions of the
record of conviction before the superior court supported its
finding that Ramirez could now be convicted of felony murder
pursuant to section 189, subdivision (e)(3). (Cf. Clark, supra,
63 Cal.4th at pp. 617-618 [“while the fact that a robbery involves
a gun is a factor beyond the bare statutory requirements for first
degree robbery felony murder, this mere fact, on its own and with
nothing more presented, is not sufficient to support a finding of
reckless indifference to human life for the felony-murder aider
and abettor special circumstance”]; Banks, supra, 61 Cal.4th at
p. 809 [aiders and abettors “who simply had awareness their
confederates were armed and armed robberies carried a risk of
death, lack the requisite reckless indifference to human life”].)
4. The Record on Appeal Does Not Establish Ramirez
Received Ineffective Assistance of Counsel
In her reply brief Ramirez contends her counsel in superior
court provided ineffective assistance.8 Even if that argument
8 After filing her opening brief on appeal, Ramirez, assisted
by counsel, filed a companion petition for writ of habeas corpus
21
were not forfeited (see, e.g., People v. Duff (2014) 58 Cal.4th 527,
550, fn. 9 [claim of ineffective assistance of counsel raised by
defendant for the first time in reply brief is forfeited]; People v.
Harris (2008) 43 Cal.4th 1269, 1290 [same]), it lacks merit.9
also contending she had received ineffective assistance during the
superior court proceedings (B309810). On January 13, 2021 we
issued an order stating, “This petition will be considered
contemporaneously with petitioner’s appeal number B305683
currently pending in this court.” We have now done so and deny
the petition in a separate order.
9 Whether Ramirez had a constitutionally protected right to
the effective assistance of counsel in section 1170.95 proceedings
is by no means clear. As she appears to recognize,
section 1170.95 is an act of lenity not subject to Sixth
Amendment analysis. (See, e.g., People v. James (2021)
63 Cal.App.5th 604, 606; People v. Perez (2020) 54 Cal.App.5th
896, 908, review granted Dec. 9, 2020, S265254; People v. Lopez
(2019) 38 Cal.App.5th 1087, 1114-1115, review granted Nov. 13,
2019, S258175.) Pursuant to section 1170.95, subdivision (c),
once the petitioner makes a prima facie showing she falls within
the provisions of the statute, she has a right to appointment of
counsel (see Verdugo, supra, 44 Cal.App.5th at p. 332, review
granted; People v. Lewis, supra, 43 Cal.App.5th at p. 1140, review
granted), a statutory right that may also be grounded in due
process. (See In re Clark (1993) 5 Cal.4th 750, 779-780 [right to
appointment of counsel after making a prima facie case of
entitlement to relief in habeas corpus proceeding]; People v.
Shipman (1965) 62 Cal.2d 226, 232 [same as to coram nobis
proceeding].) Nonetheless, as our colleagues in Division Two of
this court explained in People v. Cole (2020) 52 Cal.App.5th 1023,
1032, review granted October 14, 2020, S264278, “[H]aving a
constitutional right to the appointment of counsel is not the same
as having a constitutional right to the effective assistance of that
counsel [citation], and our Supreme Court has steadfastly held
22
Ramirez argues the supervising lawyer and certified law
student representing her did not understand the difference
between a hearing to determine whether the petitioner had made
the prima facie showing required for issuance of an order to show
cause (§ 1170.95, subd. (c)) and the evidentiary hearing on the
merits once the prima facie showing had been made (§ 1170.95,
subd. (d)(3)) and were confused as to whether Ramirez’s murder
conviction and our opinion affirming it addressed (in a pre-
Banks/Clark setting) the issue whether Ramirez was a major
participant in the underlying felony who had acted with reckless
indifference to human life. The record belies both contentions.
As to the first point, at the hearing on December 17, 2019
supervising counsel clearly stated the papers submitted to date
on behalf of Ramirez “met [Ramirez’s] initial burden”—that is,
the prima facie case—and it was now the People’s burden “to
prove to the court beyond a reasonable doubt that she could be
convicted today under the new law.” Because both parties had
stated they would rely on the record of conviction and did not
intend to introduce new or additional evidence, counsel advised
the court they were ready to proceed to the merits at that hearing
or to defer that issue to a later date. There is no indication of any
confusion as to the elements of section 1170.95, only uncertainty
as to the timing the court and the prosecutor wanted.
that ‘there is no constitutional right to the effective assistance of
counsel’ in state postconviction proceedings,” quoting People v.
Boyer (2006) 38 Cal.4th 412, 489.
Because the record fails to demonstrate that Ramirez’s
counsel performed below an objective standard of reasonableness,
however, we need not address that issue.
23
As to the second point, counsel for Ramirez were well
aware the issue of major participant and reckless indifference
had not been addressed in our opinion affirming her murder
conviction. Indeed, in Ramirez’s reply brief in the superior court,
counsel emphasized, “Although the California Court of Appeal on
Ms. Ramirez’s direct appeal, decided in 1997, found that she did
play a ‘crucial’ role in the crime because [of] her relationship with
Legarreta family [citation], the court did not address whether
Ms. Ramirez was a ‘major participant’ and whether she acted
with ‘reckless indifference to human life.’ The court did not have
the benefit of the subsequent decision in 2015 of People v. Banks,
but more importantly was not addressing the issues in
Ms. Ramirez’s direct case.” There was no misunderstanding as to
what was decided at Ramirez’s trial or on appeal.
Ramirez also contends in two summary sentences that her
counsel incorrectly argued the court should use a substantial
evidence standard of proof at the evidentiary hearing and
improperly agreed the court could consider our appellate opinion
as part of the record of conviction. As discussed, the first point is
factually incorrect; the second is legally unsound.
DISPOSITION
The order denying Ramirez’s petition for resentencing is
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J. FEUER, J.
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