Filed 11/22/21 P. v. Ramirez CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B311209
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. BA021137
v.
ALIVER ANTONIO RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Charlaine F. Olmedo, Judge. Affirmed.
Edward J. Haggerty, 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, Amanda V. Lopez and Michael J. Wise, Deputy
Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1992, defendant Aliver Antonio Ramirez was convicted
of second degree murder. He appeals from the denial of his
petition for recall and resentencing under Penal Code
section 1170.95. Defendant contends that the court engaged in
improper fact-finding by relying on the opinion in his prior
appeal. Based on the instructions at trial, however, the jury could
not convict defendant of murder unless it concluded he acted with
malice aforethought.1 Because defendant could not have been
convicted under a now-invalid theory of murder, he is ineligible
for relief as a matter of law. We therefore affirm.
BACKGROUND2
By information dated September 25, 1990, defendant was
charged with one count of murder (Pen. Code,3 § 187, subd. (a);
count 1), three counts of assault with a firearm (§ 245,
subd. (a)(2); counts 2–4), and one count of grand theft auto
(former § 487; count 5). The information also alleged defendant
personally used a firearm (§ 12022.5) in counts 1–4 and
personally inflicted great bodily injury in counts 2–4.
After a trial, the jury convicted defendant of counts 1, 2,
and 3, and found the related allegations true. It set the degree of
murder at second degree. The jury acquitted him of counts 4
and 5. The court imposed an aggregate term of 23 years to life,
1 The People’s request for judicial notice, made in footnote 6 of the
respondent’s brief, is granted.
2Because the facts underlying the charges are not relevant to
defendant’s eligibility for relief in this case, we do not address them.
3 All undesignated statutory references are to the Penal Code.
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and a different panel of this court affirmed by unpublished
opinion. (People v. Ramirez (Oct. 18, 1993, B066308) [nonpub.
opn.].)
In May 2020, defendant filed a petition for recall and
resentencing under section 1170.95. Defendant declared he was
convicted of second degree murder at trial under the felony
murder rule or the natural and probable consequences doctrine;
he pled guilty to second degree murder in lieu of going to trial
because he could have been convicted under one of those theories;
and he could not be convicted of murder under current law. He
requested the appointment of counsel.
Counsel was appointed to represent defendant. The
prosecution filed an opposition to the petition arguing that
defendant was the actual killer and had been convicted under a
theory of malice aforethought. Defense counsel filed a reply. In
January 2021, the court denied the petition by minute order.
The court’s order states in relevant part:
Pursuant to the facts set forth in the remittitur,
defendant shot the murder victim at close range
while the victim sat in his vehicle talking with the
defendant. The murder victim tried to defend
himself from the oncoming bullets from defendant’s
gun by helplessly throwing his hands in front of his
face and telling defendant to stop once he saw
defendant pull a gun from his waistband and point
it at the victim. Despite this, defendant pulled the
trigger nonetheless killing the victim. Defendant
then proceeded to shoot at other people in the
nearby vicinity. Defendant was identified by
numerous people including those who had
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personally known him for years as the actual
shooter for the counts of conviction. On appeal,
defendant never challenged the sufficiency of the
evidence supporting his convictions. [Citation.]
Contrary to defendant’s assertion in his petition,
neither the felony murder doctrine nor the natural
and probable consequences doctrine was relied
upon in this case. Moreover, the jury found that
defendant was the actual killer and harbored
express malice.
Based upon the finding that defendant was the
actual killer and the fact that felony murder and
natural and probable consequences theories of
liability were not relied upon by the jury, this court
finds that defendant has set forth false assertions
in his petition and has failed to make a prima facie
showing that he is entitled to relief. This court
further finds that defendant does not qualify for
the relief requested. The petition is denied.
Defendant filed a timely notice of appeal.
DISCUSSION
Defendant contends that the trial court improperly weighed
the evidence at the prima facie stage of proceedings by relying on
the opinion in his prior appeal. We need not reach that issue,
however, because the record of conviction establishes that
defendant is ineligible for relief as a matter of law.
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1. The Law of Murder and Senate Bill No. 1437
Murder is “the unlawful killing of a human being … with
malice aforethought.” (§ 187, subd. (a).) Malice may be express or
implied. (§ 188.) Express malice is the intent to kill, whereas
implied malice exists “where the defendant … acted with
conscious disregard that the natural and probable consequences
of [his or her] act or actions were dangerous to human life.
[Citation.]” (People v. Gonzalez (2018) 5 Cal.5th 186, 197.)
Although malice is an element of murder, when defendant was
convicted in this case, the law allowed defendants who did not act
with malice to be liable for murder under certain circumstances.
“First, under the natural and probable consequence[s]
doctrine, a defendant who aids and abets a confederate in
committing a crime (the target offense) is liable for other crimes
committed by the confederate if those further crimes were
natural and probable consequences of the target offense.
[Citation.] Thus, under prior law, if the direct perpetrator of the
target offense committed murder, and the murder was a natural
and probable consequence of the target offense, then an aider and
abettor of the target offense would be liable for the murder even
if the aider and abettor did not act with malice. (People v. Gentile
(2020) 10 Cal.5th 830, 845 [‘until recently, when a person aided
and abetted a nonhomicide crime that then resulted in a murder,
the natural and probable consequences doctrine allowed him or
her to be convicted of murder without personally possessing
malice aforethought’].)” (People v. Eynon (2021) 68 Cal.App.5th
967, 973 (Eynon).)
Second, under prior California law, every accomplice to an
enumerated felony could be convicted of first degree murder if a
death occurred during the commission of that felony—regardless
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of whether the accused killed or intended to kill. (See People v.
Dillon (1983) 34 Cal.3d 441, 462–472.)
Senate Bill No. 1437 (S.B. 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.” (Stats. 2018, ch. 1015, § 1, subd. (f); People v. Lewis (2021)
11 Cal.5th 952, 959 (Lewis).) It accomplished this “ ‘by amending
sections 188 and 189 to restrict the scope of first degree felony
murder and to eliminate murder liability based on the natural
and probable consequences doctrine. (Stats. 2018, ch. 1015, §§ 2–
3.’ [Citation.]
“Amended section 188 provides that, except for first degree
felony murder, ‘in order to be convicted of murder, a principal in
a crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.’ (§ 188, subd. (a)(3).) The requirement that the principal
act with malice eliminates all murder liability under the natural
and probable consequences doctrine. [Citation.]
“Amended section 189 limits the first degree felony-murder
rule by imposing new requirements for its application. The
statute provides that, unless the victim is a peace officer killed in
the line of duty, a defendant cannot be liable for first degree
felony murder unless the defendant was the actual killer, acted
with intent to kill, or was a major participant in the underlying
felony and acted with reckless indifference to human life.
[Citations.]” (Eynon, supra, 68 Cal.App.5th at pp. 973–974.)
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2. Section 1170.95
In addition to changing the law of murder prospectively,
S.B. 1437 gave people who had been convicted under one of the
now-invalid theories of murder the opportunity to petition for
resentencing under newly-enacted section 1170.95. (Stats. 2018,
ch. 1015, § 4.) Section 1170.95, subdivision (a)(3), describes who
may petition for resentencing under the statute. Subdivision (b)
explains what information the petition must contain, where the
petitioner must file it, who the petitioner must serve, and what
the court should do if it’s incomplete. Subdivision (c)—the section
at issue here—describes the process the court uses to determine
whether the petitioner is entitled to an evidentiary hearing:
Appoint counsel, if requested; wait for the prosecutor’s required
response and the petitioner’s optional reply; if the petitioner
makes a prima facie showing that he or she is entitled to relief,
issue an order to show cause. (Lewis, supra, 11 Cal.5th at p. 966.)
“While the trial court may look at the record of conviction
after the appointment of counsel to determine whether a
petitioner has made a prima facie case for section 1170.95 relief,
the prima facie inquiry under subdivision (c) is limited.” (Lewis,
supra, 11 Cal.5th at p. 971.) The court may deny a petition at this
stage only if the petitioner is ineligible for relief as a matter of
law. A petitioner is ineligible for relief as matter of law if the
record of conviction shows that he or she could not have been
convicted under any theory of liability affected by S.B. 1437—
such as where malice aforethought was the only theory presented
to the jury.
“In reviewing any part of the record of conviction at this
preliminary juncture, a trial court should not engage in
‘factfinding involving the weighing of evidence or the exercise of
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discretion.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 972.)
Instead, the record should be consulted at the prima facie stage
only to determine “ ‘readily ascertainable facts,’ ” such as the
crime of conviction and findings on enhancements. (People v.
Duchine (2021) 60 Cal.App.5th 798, 815; Lewis, at p. 972.) “ ‘[T]he
prima facie bar was intentionally and correctly set very low.’ ”
(Lewis, at p. 972.)
If the petitioner establishes a prima facie entitlement to
relief, the court must issue an order to show cause.
Subdivisions (d)–(g) describe the procedures for holding an
evidentiary hearing, the type of evidence that may be admitted,
the burden of proof, and the requirements for resentencing an
eligible petitioner.
We independently review the trial court’s determination
that defendant’s record of conviction refuted his allegation that
he is eligible for relief under section 1170.95. (Eynon, supra, 68
Cal.App.5th at p. 975.)
3. Defendant is ineligible for relief as a matter of law.
The jury in defendant’s case was instructed that it could
convict him of murder only if it found he acted with malice
aforethought: “Murder of the second degree is the unlawful
killing of a human being with malice aforethought when there is
manifested an intention unlawfully to kill a human being but the
evidence is insufficient to establish deliberation and
premeditation.” (CALJIC No. 8.30.) The jury was not instructed
on felony murder, the natural and probable consequences
doctrine, or aiding and abetting.
In addition, the jury was instructed that if defendant
unlawfully killed the victim without malice based on a sudden
quarrel or heat of passion, he could be convicted of voluntary
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manslaughter. (See People v. Rios (2000) 23 Cal.4th 450, 460
[difference between murder and manslaughter is that “murder
includes, but manslaughter lacks, the element of malice”].)
By convicting defendant of murder but rejecting
manslaughter, the jury necessarily found that defendant acted
with malice aforethought. Because the jury instructions and
verdicts, without more, establish that defendant was convicted
under a still-valid theory of murder, he is ineligible for section
1170.95 relief as a matter of law. (Lewis, supra, 11 Cal.5th, at
pp. 971–972.) As such, the petition was properly denied.
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DISPOSITION
The order denying defendant’s section 1170.95 petition is
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
KNILL, J.*
* Judge of the Orange County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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