Filed 7/20/22 P. v. Ramirez CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B313179
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA137794-01)
v.
EDY RAMIREZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Deborah S. Brazil, Judge. Affirmed.
Patrick J. Hoynoski, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
___________________________
Edy Ramirez appeals from an order denying his petition to
vacate his murder conviction and to be resentenced under Penal
Code section 1170.95.1 His appointed counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no
issues. Ramirez then filed a supplemental brief that raised
several arguments, none of which has merit. Because the jury in
Ramirez’s underlying trial was not instructed on felony murder
or the natural and probable consequences doctrine, we affirm.
FACTS
On September 1, 1996, Carlos Salgado died from gunshot
wounds.2 The District Attorney charged Roberto Esquivel and
Ramirez with Salgado’s murder. At trial, the evidence showed
Esquivel fired four fatal shots at Salgado, while Ramirez drove
the car in a drive-by shooting.
A jury found Ramirez guilty of first degree murder (§ 187,
subd. (a).) The jury also found true that a principal in the
murder was armed with a deadly weapon (§ 12022, subd. (a)(1))
and the murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle. (§ 190.2, subd.
(a)(21).)
1 Effective June 30, 2022, Penal Code section 1170.95 was
renumbered section 1172.6, with no change in text (Stats. 2022,
ch. 58, § 10). For convenience, we continue to refer to the former
number in this opinion. All further statutory references are to
the Penal Code.
2 This truncated recitation of the facts of the underlying case
is taken from the opinion affirming the judgment against
Ramirez, People v. Ramirez (Dec. 18, 1998, B118111) [nonpub.
opn.].
2
On February 19, 2020, Ramirez filed a petition for
resentencing pursuant to section 1170.95. In the form petition,
Ramirez indicated he had been convicted of first or second degree
murder at trial under the felony murder rule or the natural and
probable consequences doctrine. He also requested counsel and
one was appointed.
The People filed a response arguing that Ramirez was
ineligible for relief under section 1170.95 because he was
prosecuted and convicted as a direct aider and abettor who had
the specific intent to kill. The response included the jury
instructions given at trial — there were no felony murder or
natural and probable consequences instructions.
After Ramirez failed to file a reply within 30 days of the
response, the trial court dismissed the petition on the grounds
advanced by the People. It subsequently granted Ramirez’s
motion for reconsideration and allowed him to file a reply. In his
reply, Ramirez argued the jury was instructed on a natural and
probable consequences theory under CALJIC No. 8.11 because
that instruction stated that malice is implied when, among other
things, “[t]he natural consequences of the act are dangerous to
human life.” Ramirez also argued CALJIC No. 8.81.21, which
instructed the jury on the special circumstance allegation of
murder by means of an intentional discharge of a firearm from a
motor vehicle, did not apply to Ramirez because it only addressed
the perpetrator’s intent, not the aider and abettor’s. Ramirez
argued the jury’s special circumstance finding could not render
him ineligible for relief under section 1170.95 because it was
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issued prior to the Supreme Court’s decisions in People v. Banks
(2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522.3
The trial court again denied the petition, reasoning
Ramirez was not charged or convicted on a felony murder or
natural and probable consequences theory. Instead, he was
found guilty as a direct aider and abettor to murder. The record
showed the jury was not instructed on either theory but was
given CALJIC Nos. 2.02, 3.00 and 3.01, which described the
intent required for a principal and an aider and abettor to a
crime.
Ramirez appealed, and we appointed counsel to represent
him.
DISCUSSION
When a defendant appeals the denial of postconviction
relief and appellate counsel identifies no cognizable issues, the
Court of Appeal has “no independent duty to review the record for
reasonably arguable issues.” (People v. Cole (2020)
52 Cal.App.5th 1023, 1039, review granted Oct. 14, 2020,
S264278.) “However, if the defendant files a supplemental brief,
the Court of Appeal is required to evaluate any arguments
presented in that brief and to issue a written opinion that
disposes of the trial court’s order on the merits . . . .” (Id. at
p. 1040.)
Here, Ramirez’s appointed counsel filed an opening brief
that raised no issues and asked this court to conduct an
independent review in accordance with People v. Wende, supra,
3 Ramirez’s supplemental brief on appeal does not include all
of the arguments he made in his trial court reply memorandum.
In the Discussion section of our opinion, we consider only those
arguments made in his supplemental brief.
4
25 Cal.3d at page 436. Both counsel and this court advised
Ramirez of his right to submit any issues in a supplemental brief.
Ramirez filed a letter brief raising several issues.
Ramirez first relies on People v. Beeman (1984) 35 Cal.3d
547 and the cases cited within to contend the jury was incorrectly
instructed by CALJIC Nos. 3.00 and 3.01 regarding the intent
necessary for aiding and abetting liability. This argument is not
cognizable in proceedings under section 1170.95. At most, it is a
claim of instructional error unrelated to felony murder or natural
and probable consequences. (See People v. Farfan (2021) 71
Cal.App.5th 942, 947 [“The mere filing of a section 1170.95
petition does not afford the petitioner a new opportunity to raise
claims of trial error . . . .”].) Ramirez also challenges CALJIC
Nos. 3.00 and 3.01 on the ground they fail to inform jurors of the
possibility that an aider and abettor may be guilty of a lesser
offense than the perpetrator. This argument, too, challenges the
underlying conviction and may not be asserted by way of a
section 1170.95 petition.
Ramirez also contends he has stated a prima facie case
under section 1170.95, as amended by Senate Bill No. (SB) 775
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 551). Aside from quoting
the language of the amended code section, Ramirez does not
explain how SB 775 assists him or why the trial court’s ruling
was erroneous, even taking into account the amendment. We
also reject Ramirez’s argument that, because of the amendment,
he is entitled to a file a new petition under SB 775. (See People v.
Lewis (2021) 11 Cal.5th 952, 974; People v. Coley (1997)
52 Cal.App.4th 964, 972 [“An appellant has the burden to perfect
the appeal and to show error and resulting prejudice”].)
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Lastly, Ramirez complains he received ineffective
assistance of appellate counsel because his attorney failed to
inform him of his right to request that his attorney be relieved.
The record discloses otherwise. In a declaration appended to the
opening brief, appellate counsel affirmed he “informed appellant
that he may request the court to relieve me as counsel in this
case.” Nothing in the record suggests counsel acted
inappropriately, and Ramirez’s request that appellate counsel be
relieved is denied
We have reviewed the record and are satisfied that
appointed counsel has fully complied with his responsibilities and
no arguable issues exist. (People v. Cole, supra, 52 Cal.App.5th
at pp. 1039–1040; People v. Serrano (2012) 211 Cal.App.4th 496,
503; People v. Wende, supra, 25 Cal.3d at p. 441.)
DISPOSITION
The order denying Ramirez’s section 1170.95 petition for
resentencing is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
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