Filed 7/8/21 P. v. Ramirez CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D078364
Plaintiff and Respondent,
v. (Super. Ct. No. SCD138947)
RAUL ENRIQUE RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
John M. Thompson, Judge. Affirmed.
Reed Webb, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A.
Swenson and Charles C. Ragland, Deputy Attorneys General, for Plaintiff
and Respondent.
In 1999, a jury convicted Raul Ramirez of first degree, premeditated
murder (Pen. Code,1 §§ 187, subd. (a) and 189). The jury found the victim
was a taxi driver in the performance of his duties (§ 190.25); first degree
robbery (§§ 211 and 212.5); and arson (§ 451, subd. (d)). The jury found the
special circumstance of murder during a robbery was not true (§ 190.2,
subd. (a)(17)). Ramirez admitted a prior strike (§ 667, subds. (b)-(i)) and a
serious felony prior conviction (§ 667, subd. (a)(1)). Ramirez was sentenced to
life without parole plus 18 years four months in prison.
Ramirez appealed his conviction and this court affirmed the judgment
in an unpublished opinion filed February 13, 2001. (People v. Ramirez
(Feb. 13, 2001, D034781) [nonpub. opn.].)
In September 2020, Ramirez filed a pro. per. petition for resentencing
under section 1170.95. The trial court did not appoint counsel for Ramirez.
The court reviewed the record of conviction and this court’s prior opinion.
The court denied the petition by written order concluding Ramirez, who had
been convicted of premeditated murder, had not made prima facie showing of
eligibility for relief under section 1170.95.
Ramirez filed a timely notice of appeal.
In his appeal, Ramirez contends the trial court erred by (1) failing to
appoint counsel; (2) considering the record of conviction and this court’s
opinion without first issuing an order to show cause; and (3) finding him
ineligible for relief as a matter of law.
We will assume the court erred in failing to appoint counsel, but we
will find any error harmless as Ramirez plainly is not eligible for
resentencing under the statute. Regarding the procedural issues, we are well
aware the law on these issues is wholly unsettled. The Courts of Appeal are
1 All further statutory references are to the Penal Code.
2
split on the question of what procedure must be followed and what material a
trial court may consider in screening petitions for resentencing under
section 1170.95. Our Supreme Court has granted review in multiple cases on
all sides of the issues. In short, we will have to wait for the high court to
provide guidance to the courts. In the meantime, we will make our best
efforts to resolve the cases before us pending further guidance.
STATEMENT OF THE FACTS
The parties each rely on the facts of the offenses as set forth in our
prior opinion. We will adopt those facts and set them forth here. (People v.
Ramirez, supra, D034781.)
“On the evening of August 8, 1998, Ramirez, his girlfriend and another
Hispanic man went to the home of Carlos Garcia and Jessica Martinez.
Several of Garcia’s friends were also present. At some point, Ramirez fired a
gun in the home and apologized to Martinez for having done so. Martinez
saw Ramirez with two guns: a revolver and a semiautomatic. At another
point during the evening, Ramirez talked about wanting to ‘jack a cooker,’
i.e., rob a drug dealer. Later, when most of the other people were asleep or
passed out, Ramirez asked to use the telephone.
“A short time later, Martinez saw a taxicab arrive at her residence.
Martinez spoke to the driver, Giam Weldeghieogis. Taxi dispatch records
show Weldeghieogis responded to the call at 4:42 a.m. Ramirez spent about
20 to 30 minutes in the house while unsuccessfully searching for one of his
black leather Nike gloves, keeping Weldeghieogis waiting in the meantime.
Martinez kept telling Weldeghieogis to go ahead and leave, but
Weldeghieogis said he needed the money. Eventually, Ramirez, his girlfriend
and the other Hispanic man left in Weldeghieogis’s cab.
3
“About 6:44 a.m., a man commuting to work with his wife saw a cab on
fire in an alley. He saw two men walking away from the burning cab. One of
these men was Ramirez who was standing four or five feet from the ‘tail end’
of the cab and setting down a gas can. Ramirez’s hand was wrapped with a
piece of cloth. There was blood on the cloth as well as blood around Ramirez’s
mouth. The other man was Hispanic. He was standing by the front end of
the cab, holding a bicycle. Ramirez and the other man walked down the alley
toward the witness, stopped at the end of the alley by the sidewalk, made eye
contact with the witness and then talked briefly to each other. The two men
started walking away. Ramirez, however, turned to the witness and said,
‘You need to call the fire department.’ The witness ran toward the cab but
was unable to do anything because the fire was too extensive. The witness
was able to flag down a police officer.
“Weldeghieogis’s severely burned body was found inside the cab on the
passenger side. An autopsy revealed that Weldeghieogis had been shot seven
times, including twice in the back of his head and once through his upper
back. These wounds were either fatal or potentially fatal wounds.
Weldeghieogis probably lived at least 15 minutes after the wound to his
upper back was inflicted. The remaining gunshot wounds were to
Weldeghieogis’s hip or buttocks and were probably inflicted after he died.
Weldeghieogis also suffered some blunt force wounds inflicted shortly before
he died. He was probably dead before the fire began.
“An arson investigator for the San Diego Fire Department Metro Arson
Strike Team testified the cab fire was caused by someone pouring gasoline
inside the interior of the cab, on the cab’s roof, and possibly also on the cab’s
trunk and then igniting the gasoline vapors with an open flame. The
investigator testified it was not unusual for the person who starts such a fire
4
to suffer burns because gasoline vapors tend to drop to the ground and the
person starting the fire may be unaware he is standing in the vapors.
“At the scene the police found, among other items, one Nike mesh and
leather or imitation leather glove, a partially burned pair of shorts that
contained DNA matching Ramirez, a red plastic gasoline can, two crumpled
or folded $20 bills half-hidden by a bush, and $38 in Weldeghieogis’s shirt
pocket. The police did not find any sign of Weldeghieogis’s inch-thick wallet,
the credit cards that were in the wallet or the key he carried in his wallet.
“Between 7:00 and 7:15 a.m., Ramirez arrived at a hospital emergency
room, wearing only a bathrobe, accompanied by one or two Hispanic men.
Ramirez had burns on his back, buttocks, legs, left side of his face and his
hands, the most severe being to his hands. The Hispanic men left
immediately after hospital personnel began attending to Ramirez. Ramirez
claimed the burns occurred when he was putting gas into a carburetor and
had lighted a cigarette. This story was inconsistent with Ramirez’s burns; if
he had been burned as he claimed, then the burns should have been on his
face and the front part of his body, not on his back. Hospital personnel
notified the police.
“A police officer interviewed Ramirez in the hospital. Ramirez repeated
his carburetor story, telling the officer he had been in Tijuana with his
brother when the incident occurred and his brother dropped him at the
border where Ramirez somehow was able to get to the hospital in Hillcrest
with the help of a stranger. Later, Ramirez told the officer that after the fire,
he was taken to his uncle’s house in Tijuana and it was his uncle who gave
him a bathrobe and drove him to the hospital.
“Ramirez did not present any evidence.”
5
DISCUSSION
Ramirez contends the trial court not only erred in considering the
record of conviction at the prima facie stage, but that the court erred in
finding the conviction here for first degree, premeditated murder disqualified
him under the statute. He supposes that the jurors might have speculated
that one of the other, unidentified Hispanic males might have been the actual
killer.
We are satisfied the trial court correctly found that this record that
Ramirez was the actual killer who intentionally killed the victim after
premeditation and deliberation.
A. Legal Principles
Senate Bill No. 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.’
(Stat. 2018, ch. 1015, § 1, subd (f).)” (People v. Gentile (2020) 10 Cal.5th 830,
842.)
The first step the court must take in evaluating a petition for
resentencing under this section is to make an examination of the petition and
the record to determine whether the petitioner has made a prima facie
showing of entitlement to relief, such that the court must issue an order to
show cause and hold an evidentiary hearing. If the court properly determines
the petitioner is not eligible for relief as a matter of law, the petition must be
dismissed. (People v. Verdugo (2020) 44 Cal.App.5th 320, 329 (Verdugo),
review granted Mar. 18, 2020, S260493; People v. Lewis (2020) 43
Cal.App.5th 1128, 1139-1140, review granted Mar. 18, 2020, S260598;
6
People v. Edwards (2020) 48 Cal.App.5th 666, 674-675, review granted
July 8, 2020, S262481.)
Section 1170.95, subdivision (c) provides: “The court shall review the
petition and determine if the petitioner has made a prima facie showing that
the petitioner falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent the petitioner.
The prosecutor shall file and serve a response within 60 days of service of the
petition and the petitioner may file and serve a reply within 30 days after the
prosecutor response is served. These deadlines shall be extended for good
cause. If the petitioner makes a prima facie showing that he or she is
entitled to relief, the court shall issue an order to show cause.”
The trial court may review the file and record of conviction in reviewing
the petition at the first prima facie evaluation. (Verdugo, supra, 44
Cal.App.5th at pp. 329-330, review granted.)
Trial judges may not engage in fact-finding at the initial stage of
petition review. The court, however, may consider readily available facts in
determining if the petitioner has made a prima facie showing of eligibility for
relief. (People v. Drayton (2020) 47 Cal.App.5th 965, 980.)
B. Analysis
We start our analysis with the record of conviction. Ramirez was
convicted of first degree murder, requiring an intention to kill that follows
premeditation and deliberation. Conviction of such crime renders Ramirez
ineligible for resentencing under section 1170.95. However, Ramirez notes
the jury was also instructed on felony murder. As our court pointed out in
our prior opinion, the jury found the murder during a robbery special
circumstance to be not true. As we previously concluded, that left only
premeditated murder. We found the evidence supported the conviction.
7
The court in the jury trial did not instruct the jury on liability based on
natural and probable consequences. Ramirez was prosecuted as the
perpetrator of the murder, the robbery, and the arson. Ramirez was seen
standing next to the burning taxi and was holding a gasoline can. He arrived
at the hospital shortly afterward with severe burn injuries, which expert
testimony identified as consistent with having committed the arson using
gasoline.
In short, there is nothing in this record from which a reasonable
inference could be drawn that Ramirez was other than the perpetrator of the
horrific crimes for which he was convicted.
The trial court should have appointed counsel for Ramirez, however, on
this record, a different outcome is not possible.
DISPOSITION
The order denying Ramirez’s petition for resentencing under
section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
IRION, J.
8