Filed 5/20/22 P. v. Ramirez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
THE PEOPLE, B312916
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. A380822)
v.
WALTER RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Lynne M. Hobbs, Judge. Affirmed.
Cindy Brines, 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, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Heidi Salerno, Deputy Attorney General,
for Plaintiff and Respondent.
_________________________________
Walter Ramirez appeals the denial of his Penal Code1
section 1170.95 petition for resentencing following an evidentiary
hearing. Appellant argues the evidence was insufficient to
establish beyond a reasonable doubt that appellant was the
actual killer or harbored express malice, and his murder
conviction must therefore be vacated and the matter remanded
for resentencing. We disagree and affirm the denial of the
petition under section 1170.95.
FACTUAL BACKGROUND2
On June 27, 1982, Gilbert Morales, Jr. was murdered in an
attack by multiple members of the Playboys street gang near the
intersection of Vermont Avenue and Beverly Boulevard in the
City of Los Angeles.
In June 1982, appellant was a 17-year-old member of the
Playboys gang, which had been feuding with the 18th Street gang
since about 1975. In the afternoon of June 27, appellant and
approximately 10 other members of the Playboys gang were
drinking and taking drugs at Griffith Park when some members
of the 18th Street gang confronted them. When the rival gang
members left to retrieve a gun, the Playboys group moved to
another area of the park, and left the park between 5:30 and 6:00
p.m. in two pickup trucks.
Appellant and four other Playboys members were riding in
the bed of the truck driven by Pedro Armenta, and another gang
member was riding in the front passenger seat. As Armenta was
1 Undesignated statutory references are to the Penal Code.
2The factual background is drawn from the preliminary
hearing testimony, the autopsy report, and appellant’s testimony
given at the evidentiary hearing.
2
driving south on Vermont, someone pointed out Morales, who
was believed to be an 18th Street gang member, standing on the
southeast corner of Beverly and Vermont. Armenta pulled over,
and several of the Playboys gang members jumped out of the
truck. Appellant stayed behind as the others ran across the
street toward the rival gang member. As Armenta was parking
his truck, the other pickup truck arrived, and those gang
members joined the group approaching Morales.
A fight broke out between Morales and the Playboys gang
members; Armenta saw one person hitting Morales with his fists
and another swinging a tire iron at him. Suddenly, Morales
broke free and ran across the street straight toward appellant,
who was standing on the southwest corner of Beverly and
Vermont. As Morales ran toward him, appellant was holding a
screwdriver in his fists at chest level with the blade pointed at
Morales. Morales did not look up until he was two to three feet
from appellant, and appellant took a half step to move into
Morales’s path. Morales then ran directly into appellant,
knocking appellant to the ground. Appellant was still holding the
screwdriver in his right hand after he fell.
Morales, who was being chased by other gang members
with whom he had been fighting, continued to run and tried to
board a bus. When the bus driver did not open the front door,
Morales went to the back door, but was soon overtaken by the
pursuing Playboys gang members. Morales fell to the ground.
One person swung a knife toward Morales’s back, another
attacked him with a screwdriver, and others punched and kicked
him.
As this was taking place, Armenta went to the southwest
corner where appellant was still standing and asked him what
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was happening. Appellant responded that he had just stabbed
the victim.
When people started getting off of the bus, Armenta,
appellant, and the other gang members who had driven with
Armenta to the scene ran back to Armenta’s truck and drove
away. Armenta saw appellant the next day. Appellant told
Armenta the victim was an 18th Street gang member and may
have died at the scene. Appellant suggested Armenta should
paint his truck.
The coroner’s report identified the cause of Morales’s death
as multiple stab wounds and described five stab wounds,
including one to the upper chest that penetrated the upper lobe of
the right lung. The report also noted a superficial incised wound
to the posterior left upper arm.
PROCEDURAL BACKGROUND
On May 25, 1983, appellant pleaded guilty to second degree
murder (§ 187), and the trial court sentenced him to a term of 15
years to life.
On June 25, 2019, appellant filed a petition for
resentencing under section 1170.95. The trial court found a
prima facie showing for relief had been made and issued an order
to show cause in accordance with section 1170.95, subdivision (c).
The evidentiary hearing took place on May 10, 2021.
The trial court admitted into evidence two preliminary
hearing transcripts, the transcript of appellant’s plea, and the
autopsy report. Appellant testified, claiming no memory of even
having a screwdriver, much less using one to stab Morales. In
fact, appellant denied causing any injury to Morales at all, but
allowed that if he did have a screwdriver, he “probably” stabbed
Morales in his left elbow. Appellant also denied any attempt to
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block or prevent Morales’s escape and declared he did not
remember telling Armenta he had stabbed Morales. Appellant
categorically disavowed any intent to kill Morales.
Following argument, the trial court summarized the facts
as framed by the preliminary hearing transcript, stating: “The
court relies on the testimony at the preliminary hearing, because
that testimony was corroborated in large part by [appellant]
when he testified. In fact, none of the testimony was in conflict in
any material respect between that of the witness during the
preliminary hearing and [appellant] when he testified. [¶] In the
particular areas where the preliminary hearing identified
[appellant] as committing acts that showed that he was a major
participant, [appellant] had no memory. He did not deny the
acts. However, [appellant] was able to remember the entire
incident with reasonable specificity, even after this amount of
years. He was only unable to remember his own actions when it
incriminated him.”
After considering appellant’s testimony together with the
documentary evidence submitted, the trial court made its
findings: “The court finds after hearing the testimony, watching
[appellant] as he testified, that the preliminary hearing
testimony regarding [appellant’s] actions is true and correct. The
court finds this beyond a reasonable doubt. [¶] The court finds
that [appellant] was either an aider or abettor, or the actual
killer of the victim, Gilbert Morales Jr. The court finds that a
reasonable jury could conclude beyond a reasonable doubt that
[appellant] acted with express [malice], directly aiding and
abetting the murder, or even delivering the wound that caused
the victim’s death. The natural and probable consequence theory
is inapplicable.”
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Denying the petition, the court ruled that appellant “is
unable to show that he could not be convicted of second degree
murder due to the changes in Penal Code sections 188 and 189.
[Appellant] acted with reckless malice aforethought.”
DISCUSSION
The Trial Court’s Conclusion that
Appellant Could Still Be Convicted of Murder
and Is Therefore Ineligible for Relief Under
Section 1170.95 Is Supported by
Substantial Evidence
Appellant contends that the prosecution failed to carry its
burden of proving beyond a reasonable doubt that appellant could
still be convicted of murder following amendments to California’s
homicide law effected by Senate Bill No. 1437. (2017–2018 Reg.
Sess.) Thus, according to appellant, substantial evidence does
not support the trial court’s conclusion that appellant was the
actual killer or an aider and abettor, and the denial of his
1170.95 petition for resentencing must be reversed.
A. Applicable legal principals
Effective January 1, 2019, Senate Bill No. 1437 “amend[ed]
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; People v. Gentile
(2020) 10 Cal.5th 830, 842 (Gentile).)
To that end, the Legislature amended the natural and
probable consequences doctrine by adding subdivision (a)(3) to
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section 188, which now provides: “ ‘Except . . . as stated in
subdivision (e) of Section 189, 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.’ ” (Gentile, supra, 10 Cal.5th at pp. 842–
843.) With the addition of section 1170.95, Senate Bill No. 1437
afforded persons previously convicted of felony murder or murder
under the natural and probable consequences doctrine a
procedure by which to petition the trial court for vacatur of their
convictions and for resentencing. (Gentile, at p. 853.)
If a petitioner makes a prima facie showing for relief under
section 1170.95, the trial court is required to issue an order to
show cause and to hold an evidentiary hearing to determine
whether to vacate the conviction, recall the sentence, and
resentence the petitioner as set forth in the statute. (§ 1170.95,
subd. (d)(1).) The burden at that hearing rests with the
prosecution “to prove, beyond a reasonable doubt, that the
petitioner is guilty of murder or attempted murder under
California law as amended by the changes to Section 188 or 189
made effective January 1, 2019.” (§ 1170.95, subd. (d)(3).)3
3 Effective January 1, 2022, Senate Bill No. 775 expanded
section 1170.95’s scope and amended its procedures. (Stats.
2021, ch. 551.) Among other things, the new legislation requires
“the trial court, acting as an independent fact finder, to
determine beyond a reasonable doubt whether defendant is guilty
of murder under a valid theory of murder.” (People v. Garrison
(2021) 73 Cal.App.5th 735, 745 (Garrison).)
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B. Standard of review.
On appeal from a trial court’s denial of relief under section
1170.95 following an evidentiary hearing, we review the trial
court’s determination for substantial evidence. (Garrison, supra,
73 Cal.App.5th at p. 747.) Under that familiar standard, “we
review the record ‘in the light most favorable to the judgment
below to determine whether it discloses substantial evidence—
that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v.
Westerfield (2019) 6 Cal.5th 632, 713.)
Appellant contends that because the trial court relied on a
“cold record,” we should not defer to the trial court’s findings, but
should instead conduct an independent review. No. Even if
appellant had not testified, the trial court’s findings based on the
transcripts and other written evidence would have been entitled
to no less deference from this court. (Haraguchi v. Superior
Court (2008) 43 Cal.4th 706, 711, fn. 3 [“that the trial court’s
findings were based on declarations and other written evidence
does not lessen the deference due those findings”]; Shamblin v.
Brattain (1988) 44 Cal.3d 474, 479 [“Even though contrary
findings could have been made, an appellate court should defer to
the factual determinations made by the trial court when the
evidence is in conflict. This is true whether the trial court’s
ruling is based on oral testimony or declarations”].)
Moreover, contrary to appellant’s assertion, the trial court
plainly did not make its determination on a “cold record.”
Rather, the court expressly stated that “after hearing
[appellant’s] testimony, [and] watching [appellant] as he
testified,” it found beyond a reasonable doubt that the
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preliminary hearing testimony describing appellant’s conduct
was “true and correct.” In weighing appellant’s live testimony
and assessing appellant’s credibility⎯two functions in the
exclusive domain of a trial court⎯the court was highly skeptical
of appellant’s convenient memory lapses when it came to his own
conduct. We are in no position to assess appellant’s demeanor
and credibility in that regard, and must therefore defer to the
trial court’s findings.
C. Substantial evidence supports the trial court’s
finding that appellant was either the actual killer or a
direct aider and abettor with malice.
Appellant contends there was no reasonable, solid or
credible evidence to support a finding that he was the actual
killer or that he knew about and sought to facilitate a murder as
a direct aider and abettor. We disagree.
Appellant first maintains there is no evidence to support
the trial court’s finding he could have been the actual killer,
despite his admission to Armenta that he stabbed the victim, and
even assuming appellant inflicted one of the multiple stab
wounds which resulted in death.4 Appellant reasons that
because there was no evidence that one of the five stab wounds
4 Appellant also asserts that the trial court improperly
relied on his guilty plea to find he was the actual killer. Not so.
Contrary to appellant’s assertion, there is no indication that the
trial court considered appellant’s plea to second degree murder in
concluding he was either the actual killer or an aider and abettor.
The court mentioned appellant’s plea only in reference to the
procedural posture of the case while specifically stating it relied
on the testimony at the preliminary hearing, which it found to be
credible.
9
alone would have been fatal, “it would have been impossible for
appellant to have been the actual killer.” But proof that any one
of the five stab wounds alone was fatal was not necessary to
establishing appellant’s culpability for murder.
As our Supreme Court has explained, “a sharp line does not
always exist between the direct perpetrator and the aider and
abettor: ‘It is often an oversimplification to describe one person
as the actual perpetrator and the other as the aider and abettor.
When two or more persons commit a crime together, both may act
in part as the actual perpetrator and in part as the aider and
abettor of the other, who also acts in part as an actual
perpetrator. . . . [O]ne person might lure the victim into a trap
while another fires the gun; in a stabbing case, one person might
restrain the victim while the other does the stabbing. In either
case, both participants would be direct perpetrators as well as
aiders and abettors of the other. The aider and abettor doctrine
merely makes aiders and abettors liable for their accomplices’
actions as well as their own. It obviates the necessity to decide
who was the aider and abettor and who the direct perpetrator or
to what extent each played which role.’ ” (People v. Thompson
(2010) 49 Cal.4th 79, 117–118.) Taking appellant’s argument to
its logical extreme, if each stab wound was inflicted by a different
person and none was fatal by itself, no one could be held
responsible for the victim’s death. This is obviously not the law.
Appellant next challenges the evidentiary support for the
trial court’s determination that he was liable for the murder as
an aider and abettor, asserting the absence of any evidence that
he knew or shared the other gang members’ intent to kill the
victim.
10
Murder is defined as “the unlawful killing of a human
being, or a fetus, with malice aforethought.” (§ 187, subd. (a).)
Malice may be express or implied. (§ 188, subd. (a).) “Express
malice requires a showing that the assailant either desires the
victim’s death or knows to a substantial certainty that the
victim’s death will occur.” (People v. Covarrubias (2016) 1
Cal.5th 838, 890; People v. Beltran (2013) 56 Cal.4th 935, 941
[“ ‘Express malice is an intent to kill’ ”].) “[M]alice is implied
when the killing resulted from an intentional act, the natural
consequences of which are dangerous to human life, performed
with knowledge of and conscious disregard for the danger to
human life.” (People v. Thomas (2012) 53 Cal.4th 771, 814.)
Our Supreme Court has “explained that an aider and
abettor’s guilt ‘is based on a combination of the direct
perpetrator’s acts and the aider and abettor’s own acts and own
mental state.’ ” (People v. Perez (2005) 35 Cal.4th 1219, 1225,
quoting People v. McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy).)
Establishing aider and abettor liability thus requires three
distinct elements of proof: (1) “a crime committed by the direct
perpetrator,” (2) “the aider and abettor’s . . . knowledge of the
direct perpetrator’s unlawful intent and an intent to assist in
achieving those unlawful ends,” and (3) “conduct by the aider and
abettor that in fact assists the achievement of the crime.” (Perez,
at p. 1225; People v. Carrasco (2014) 59 Cal.4th 924, 968–969.)
While Senate Bill No. 1437 eliminated natural and
probable consequences liability for second degree murder based
on imputed malice, implied malice remains a valid theory of
second degree murder liability for an aider and abettor. (Gentile,
supra, 10 Cal.5th at p. 850 [“an aider and abettor who does not
expressly intend to aid a killing can still be convicted of second
11
degree murder if the person knows that his or her conduct
endangers the life of another and acts with conscious disregard
for life”]; People v. Rivera (2021) 62 Cal.App.5th 217, 232 [“In
other words, a person may still be convicted of second degree
murder, either as a principal or an aider and abettor, ‘if the
person knows that his or her conduct endangers the life of
another and acts with conscious disregard for life’ ”]; People v.
Offley (2020) 48 Cal.App.5th 588, 595–596 [Senate Bill No. 1437
did not “alter the law regarding the criminal liability of direct
aiders and abettors of murder because such persons necessarily
‘know and share the murderous intent of the actual
perpetrator’ ”].)
The mental state for implied malice murder requires the
defendant act with a conscious disregard for life, knowing that
her or his conduct endangers the life of another. (People v.
Cravens (2012) 53 Cal.4th 500, 508.) Because the “aider and
abettor’s mental state must be at least that required of the direct
perpetrator,” in order to prove culpability under an aider and
abettor theory, “ ‘the prosecution must show that the defendant
acted “with knowledge of the criminal purpose of the perpetrator
and with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense.” ’ ”
(McCoy, supra, 25 Cal.4th at p. 1118.) It follows that to aid and
abet an implied malice murder, the direct aider and abettor must
intentionally commit, encourage, or facilitate life-endangering
conduct with knowledge of the perpetrator’s purpose and
conscious disregard for life. (Ibid. & fn. 1.) And “[b]ecause direct
evidence of a defendant’s intent rarely exists, intent may be
inferred from the circumstances of the crime and the defendant’s
acts.” (People v. Sanchez (2016) 63 Cal.4th 411, 457.)
12
Here, viewing the evidence in the light most favorable to
the trial court’s findings, substantial evidence supports the
conclusion that appellant was the actual killer or a direct aider
and abettor with malice. Appellant was present during the
confrontation between his fellow gang members and the members
of the rival 18th Street gang at the park earlier in the day.
Later, at the corner of Beverly and Vermont, appellant watched
his compatriots confront Morales, whom they believed to be a
member of the rival gang. He saw someone hitting Morales with
fists and another Playboys member swinging a tire iron at him.
Meanwhile, appellant positioned himself on the southwest corner
holding a screwdriver in his fists with the blade pointed outward
from his chest. Morales broke free and ran across the street
directly toward appellant, with his attackers in close pursuit.
Pointing the blade of the screwdriver at Morales, appellant took a
half step to block Morales’s path. Morales ran directly into
appellant and the screwdriver. Moments later, appellant told
Armenta he had just stabbed the victim. Although no one
witnessed appellant actually stabbing Morales, one of the five
stab wounds that resulted in his death was consistent with the
inference that appellant had plunged the screwdriver into
Morales’s upper chest when Morales collided with him.
The trial court found Armenta was a credible witness and
observed that appellant’s testimony corroborated Armenta’s and
the other preliminary hearing testimony except as to the one fact
that incriminated him: whether he had a screwdriver. But
appellant did not deny committing the acts that established his
participation in the events which resulted in Morales’s death; he
simply could not remember whether he had a screwdriver when
Morales ran into him. Moreover, appellant admitted that if he
13
had a screwdriver, he probably stabbed Morales “in the elbow
someplace,” “in his left arm.” And when he was asked what
happened to the screwdriver when he fell to the ground,
appellant answered, “I still had it, I guess.”
To the extent appellant characterizes the evidence
differently and asks us to draw a conclusion different than the
one reached by the trial court, his argument fails. When
considering a challenge to the sufficiency of the evidence, we do
not reweigh the evidence or redraw competing inferences from
competing circumstances. (People v. Nguyen (2015) 61 Cal.4th
1015, 1055–1056.) “ ‘[O]ur task is not to resolve credibility issues
or evidentiary conflicts, nor is it to inquire whether the evidence
might “ ‘ “ be reasonably reconciled with the defendant’s
innocence.” ’ ” ’ ” (People v. Veamatahau (2020) 9 Cal.5th 16, 36.)
Indeed, “ ‘[i]f the circumstances reasonably justify the trier of
fact’s findings, reversal of the judgment is not warranted simply
because the circumstances might also reasonably be reconciled
with a contrary finding.’ ” (People v. Rivera (2019) 7 Cal.5th 306,
331.)
The trial court’s conclusion beyond a reasonable doubt that
appellant is guilty of second degree murder as the actual killer or
an aider and abettor is supported by substantial evidence. The
court properly denied the section 1170.95 petition.
14
DISPOSITION
The order of the superior court is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
CHAVEZ, J.
HOFFSTADT, J.
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