People v. Ramirez CA4/2

Filed 9/15/22 P. v. Ramirez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E077949

v. (Super. Ct. No. FSB056120)

OMAR RAMIREZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Bryan Foster,

Judge. Affirmed.

Kiana Sloan-Hillier, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Charles C. Ragland, A. Natasha Cortina and Alan L. Amann, Deputy Attorneys

General, for Plaintiff and Respondent.

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 I.

INTRODUCTION

Defendant and appellant Omar Ramirez (Omar) appeals the trial court’s summary
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denial of his petition for resentencing pursuant to Penal Code section 1170.95. He

argues the trial court erred in denying his petition without issuing an order to show cause

and holding an evidentiary hearing because he averred to facts rendered him eligible for

resentencing and the record does not indisputably show he is ineligible. The record of

conviction shows Omar is ineligible for resentencing as a matter of law. We therefore

affirm the court’s order.

II.
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FACTUAL AND PROCEDURAL BACKGROUND

During an encounter at a bar in 2006, Omar and his brother, codefendant Jonathan

Julian Ramirez (Jonathan) attacked and killed Enrique Bermudez (Bermudez), a 72-year-

old man who had asked them to be more respectful to their stepfather who was with them

at the bar. Defendants fled to Mexico the next day. After some years, they were

extradited and returned to the United States to stand trial in 2010.

1
That section has since been renumbered as Penal Code section 1172.6. (Stats.
2022, ch. 58, § 10.) However, because that change was nonsubstantive and it occurred
after briefing in this case was complete, we will cite to Penal Code section 1170.95 for
ease of reference. All further statutory references are to the Penal Code.
2
The factual background is taken from this court’s nonpublished opinion in
defendant’s prior appeal, case No. E051155, which is part of the record on appeal in this
case. (People v. Ramirez (Nov. 7, 2011, E051155) [nonpub. opn.] (Ramirez I).)

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 The facts at trial showed as follows: Bermudez was a regular patron of the La

Veranda bar and restaurant. He often came for company and conversation. The assistant

manager described Bermudez as acting like a father toward the employees and assisting

them in various ways.

The subject events occurred on the evening of Friday, May 12, 2006, and after
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midnight at approximately 1:00 a.m. on Saturday, May 13, 2006, when Bermudez and

defendants were all in the bar section of the restaurant.

Manuel Cabrera Gutierrez (Cabrera) testified that Bermudez initiated a

conversation with him at the bar. Bermudez said he was not drinking alcohol. Cabrera

thought he was drinking orange juice.

While Cabrera and Bermudez were talking, defendants and their stepfather entered

the bar with two women. After a while, the women left. The three men talked with one

another and bought a round of beers for everyone.

Things were friendly until Bermudez became upset because he thought defendants

were behaving disrespectfully and using profanity toward their stepfather. He told

Cabrera he intended to reprove defendants. After the stepfather left the bar, Bermudez

approached defendants and Cabrera heard him say, “I believe you guys—you’re

offending the old man that left, and I don’t find it right.”

Jonathan, the heavier of the two defendants, stood and shoved Bermudez.

Bermudez fell backwards. Cabrera tried to stop Jonathan and told him it was not a fair

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Mother’s Day was Sunday, May 14, 2006.

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fight because Bermudez was so much older. Omar approached Cabrera from behind and

tried to strike him but Cabrera dodged the blow. Cabrera released his hold on Jonathan

and grabbed Omar.

According to Cabrera, Jonathan began punching and kicking Bermudez in the

head and upper body as he lay on the floor. Cabrera was shocked and released Omar.

Omar grabbed a bar stool and began striking Bermudez in the face and stomach.

Meanwhile, Jonathan provoked a fight with Ruben Ramirez (Ruben), another patron.

Omar then threw a bar stool at Ruben.

According to Ruben, when he told defendants to stop hitting Bermudez, Omar

responded, “you want some too.” Omar attacked Ruben, hitting Ruben in the head with

his hands and feet. The paramedics revived Ruben on the floor of the bar.

The assistant manager recalled Bermudez was eating dinner and drinking Bud

Light beer earlier in the evening. While Bermudez was in the bar area and defendants

were “talking bad,” Bermudez asked them not to use such language in the presence of

ladies. A second time he asked them not to be so loud and they started talking back at

him angrily.

After the stepfather left, Jonathan began shoving Bermudez. The assistant

manager tried to intervene and she told a waitress to call 911. She also asked the other

bar patrons to help. Jonathan was hitting Bermudez and almost hitting the assistant

manager. Then Jonathan straddled Bermudez on the ground and punched him.

Bermudez tried to fend off the blows with his hands. Omar was fighting with Ruben.

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Both defendants hit Bermudez with bar stools for more than 20 minutes. The assistant

manager followed defendants outside and yelled that they had killed Bermudez.

Defendants’ mother testified that defendants lived with her. Because she did not

permit alcohol in her house, she drove defendants and her husband to La Veranda at

10:00 p.m. on Friday night so they could drink. Defendants were already drunk when

they arrived at the bar. Defendants’ mother did not enter the bar because she was

wearing pajamas. She dropped the men off and went home. She returned about 1:00

a.m. and went inside looking for them, accompanied by Jonathan’s girlfriend.

In the bar, people were singing and dancing. Defendants’ mother asked the

waitress not to serve defendants any more alcohol. Then defendants’ mother got mad and

went outside. Shortly after she left, defendants’ stepfather joined her outside and got in

the car. Defendants followed and said, “Let’s go, they are fighting.” A woman emerged

screaming in Spanish and yelling on a phone.

Defendants and their mother and stepfather went home. Defendants’ stepfather

was very drunk and falling down. Defendants were also drunk and their mother told

them to leave the house that evening. She did not see any blood on them and she did not

see or talk to her sons for two years after that night.

Defendants’ stepfather testified that he remembered nothing about the events of

May 12 and 13, 2006. He did not remember telling a police officer that he was at La

Veranda but he did not want to get involved in a fight. He also did not recall saying that

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Jonathan and Omar had beaten him up when they returned home and their mother kicked

them out of the house.

On May 13, 2006, defendants called their cousin to say their van had broken down

in Los Angeles. She went to meet them at the Los Angeles location that afternoon and

they asked her to get rid of the van for them. They removed some bags from the van and

walked away down the street.

Bermudez died from multiple blunt force injuries. His injuries included a broken

jaw, nose and ribs, multiple lacerations, loose teeth, and hemorrhaging around the eyes,

scalp, brain, neck, and torso.

A jury convicted each defendant of one count of first degree murder (§ 187, subd.

(a)) against Bermudez and one count of assault by means likely to produce great bodily

injury (§ 245, subd. (a)(1)) against Ruben, who tried to intervene during defendants’

attack. The trial court sentenced both defendants to prison terms of four years plus 25

years to life.

Omar subsequently appealed, arguing seven issues involving sufficiency of

evidence for first degree murder, aider and abettor liability, instructional error,

prosecutorial error, and custody credits. We rejected Omar’s contentions, affirmed the

judgment, and remanded the matter to allow the trial court to recalculate custody credits.

(See Ramirez I, supra, E051155.)

On January 25, 2021, Omar, represented by counsel, filed a petition for

resentencing under Senate Bill No. 1437 and section 1170.95. The People filed an

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opposition to the petition, arguing no order to show cause should be issued and the

petition should be denied because Omar was not eligible for relief on the grounds that

Omar was one of the two persons who personally assaulted and killed Bermudez.

A hearing on the petition was held on October 7, 2021. Following argument, the

trial court denied the petition, finding Omar was ineligible as a matter of law because he

was a joint participant in the killing of Bermudez. The court noted that Omar and his

brother acted in joint concert and that they both used a barstool to beat Bermudez to

death. Omar timely appealed.

III.

DISCUSSION

Omar contends the trial court erred in summarily denying his petition for

resentencing without issuing an order to show cause and conducting an evidentiary

hearing because he averred to facts, which if true, rendered him eligible for resentencing.

He claims he is entitled to a hearing based on the police report and a declaration from his
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brother, which were attached to his petition. He further believes that the prosecution

proceeded under the natural and probable consequences doctrine to prove the first degree

murder conviction. We conclude that the trial court did not err in denying the petition

after finding defendant is not eligible for relief under section 1170.95.

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Jonathan’s declaration indicates that Jonathan took responsibility for using the
bar stool as a weapon during the fight and that Omar was not involved in the beating of
the victim.

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 Effective January 1, 2019, the Legislature passed Senate Bill No. 1437 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.’” (People v.

Gentile (2020) 10 Cal.5th 830, 842 (Gentile); see Stats. 2018, ch. 1015, § 1, subd. (f).)

The criminal liability of direct aiders and abettors did not change under Senate Bill No.

1437. (People v. Offley (2020) 48 Cal.App.5th 588, 595-596.)

Senate Bill No. 1437 eliminated the natural and probable consequences doctrine as

a basis for finding a defendant guilty of murder and significantly limited the scope of the

felony-murder rule. (People v. Lewis (2021) 11 Cal.5th 952, 957 (Lewis); Gentile, supra,

10 Cal.5th at pp. 842-843, 847-848.) As relevant here, under the natural and probable

consequences doctrine, a person who knowingly aided and abetted a crime, the natural

and probable consequence of which was murder, could be convicted of not only the target

crime but also of the resulting murder, irrespective of whether he or she harbored malice

aforethought. (Gentile, supra, at pp. 843-845; People v. Offley, supra, 48 Cal.App.5th at

p. 595.) However, Senate Bill No. 1437 amended section 188 to provide that “[e]xcept as

stated in subdivision (e) of [s]ection 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.” (§ 188, subd. (a)(3); Stats. 2018, ch.

1015, § 2.) “Senate Bill No. 1437 changed the circumstances under which a person could

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be convicted of murder without a showing of malice, but it did not exclude from liability

persons convicted of murder for acting with implied malice.” (People v. Soto (2020) 51

Cal.App.5th 1043, 1057, abrogated on another ground by Lewis, supra, 11 Cal.5th at p.

967.)

Senate Bill No. 1437 also “added section 1170.95 to provide a procedure for those

convicted of felony murder or murder under the natural and probable consequences

doctrine to seek relief.” (Gentile, supra, 10 Cal.5th at p. 843; see Lewis, supra, 11

Cal.5th at p. 959.) Pursuant to section 1170.95, an offender must file a petition in the

sentencing court declaring that: “(1) A complaint, information, or indictment was filed

against the petitioner that allowed the prosecution to proceed under a theory of felony

murder or murder under the natural and probable consequences doctrine . . . [;] [¶] (2)

The petitioner was convicted of murder, attempted murder, or manslaughter following a

trial or accepted a plea offer in lieu of a trial at which the petitioner could have been

convicted of murder or attempted murder [;] [¶] [and] (3) The petitioner could not

presently be convicted of murder or attempted murder because of changes to [s]ection

188 or 189 made effective January 1, 2019.” (§ 1170.95, subds. (a)(1)-(3); see § 1170.95

subd. (b)(1)(A).)

The trial court then determines whether the petition is facially sufficient under

section 1170.95, subdivision (b). (Lewis, supra, 11 Cal.5th at p. 960.) 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 could not now be convicted of

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murder because of changes to section 188 or 189 (§ 1170.95, subd. (b)(1)(A)), the court

then must appoint counsel to represent the petitioner upon his or her request pursuant to

section 1170.95, subdivision (c). (Lewis, supra, at pp. 957, 959-960, 966.) Further, upon

the filing of a facially sufficient petition, the court must direct the prosecutor to file a

response to the petition and permit the petitioner to file a reply, and the court must

determine whether the petitioner has made a prima facie showing that he or she is entitled

to relief. (See § 1170.95, subd. (c); Lewis, supra, at pp. 964, 966.)

In determining whether the petitioner has made a prima facie showing, “‘“the

court takes petitioner’s factual allegations as true and makes a preliminary assessment

regarding whether the petitioner would be entitled to relief if his or her factual allegations

were proved. If so, the court must issue an order to show cause.”’ [Citation.] ‘[A] court

should not reject the petitioner’s factual allegations on credibility grounds without first

conducting an evidentiary hearing.’ [Citation.]” (Lewis, supra, 11 Cal.5th at p. 971.) “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

discretion.’” (Id. at p. 972.) “[T]he trial court should not decide unresolved factual

issues that involve credibility determinations or weighing of evidence. Rather, it should

decide such issues only after issuing an order to show cause and holding an evidentiary

hearing.” (People v. Duchine (2021) 60 Cal.App.5th 798, 811-812, fn. omitted.)

“Nevertheless, the court may appropriately deny a petition at the prima facie stage

if the petitioner is ineligible for relief as a matter of law.” (People v. Harden (2022) 76

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Cal.App.5th 262, 270 (Harden).) “‘“[I]f the record, including the court’s own

documents, ‘contain[s] facts refuting the allegations made in the petition,’ then ‘the court

is justified in making a credibility determination adverse to the petitioner,’”’ thereby

deeming him or her ineligible. (Lewis, supra, 11 Cal.5th at p. 971.) For example, if the

record shows that the jury was not instructed on either the natural and probable

consequences or felony-murder doctrines, then the petitioner is ineligible for relief as a

matter of law. [Citation.] A finding of ineligibility at the prima facie stage may also be

based on a legal holding from a prior appellate opinion arising from the conviction.

[Citation.]” (People v. Harden, supra, at p. 270, citing People v. Daniel (2020) 57

Cal.App.5th 666, 677 & Lewis, supra, at p. 972.)

If the petitioner makes a prima facie showing under section 1170.95, subdivision

(c), the court must issue an order to show cause and hold a hearing “to determine whether

to vacate the murder . . . conviction and to recall the sentence and resentence the

petitioner on any remaining counts.” (§ 1170.95, subd. (d)(1).) If a hearing is held, “the

burden of proof shall be on 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 [s]ection 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd.

(d)(3).) The prosecutor and the petitioner may offer new or additional evidence to meet

their respective burdens at the hearing stage. The admission of evidence at the hearing is

governed by the Evidence Code. However, the court also “may consider evidence

previously admitted at any prior hearing or trial that is admissible under current law,

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including witness testimony, stipulated evidence, and matters judicially noticed,” as well

as the “procedural history of the case recited in any prior appellate opinion.” (§ 1170.95,

subd. (d)(3).) Hearsay evidence that was admitted in a preliminary hearing pursuant to

subdivision (b) of section 872 is inadmissible at the evidentiary hearing, unless made

admissible by another exception to the hearsay rule. (§ 1170.95, subd. (d)(3).)

“We independently review a trial court’s determination on whether a petitioner has

made a prima facie showing. [Citation.]” (Harden, supra, 76 Cal.App.5th at p. 270.)

When the trial court applies its factual findings under a statute, we review the factual

findings for substantial evidence. (People v. Bascomb (2020) 55 Cal.App.5th 1077,

1086-1087.) However, the interpretation and application of the statute to those factual

findings is a question of law subject to de novo review. (People v. Johnson (2016) 1

Cal.App.5th 953, 960.)

In this case, the jury was not instructed on felony murder, the natural and probable

consequences doctrine, or any other theory of liability that would have permitted the jury

to impute malice to Omar. At trial, the prosecution argued two theories of murder

liability, namely that Omar (and his brother Jonathan) committed murder as either direct

perpetrators or direct aiders and abettors.

In closing argument, the prosecutor explicitly stated that Omar and his brother

were being charged with not just malice aforethought murder, which required that the

killing have been done “with either express or implied malice aforethought,” but

premeditated murder, which required willfulness, deliberation, and premeditation. The

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prosecutor also argued in detail how the evidence in this case, which demonstrated that

Omar and his brother both participated in a brutal beating, kicking, and killing of a 72-

year-old man as he lay helpless on a bar floor, proved that they both had committed

willful, deliberate and premeditated murder. The prosecution, in relevant part, stated:

“We have laws that provide for this type of situation, and that means that both of them

are going to be responsible for the acts they commit together, and that’s the aider and

abettor law, and the judge is going to read this law to you and the instruction so you will

understand that when a person is an aider and abettor - equally guilty. So you don’t even

have to worry about that problem. [¶] All they have to know is that it’s unlawful. They

have the intent of either committing, encouraging, assisting, facilitating in the

commission of that crime, and I don’t think that we’re going to have an argument there;

by act, advice, aiding, promoting, encouraging, instigating. One could have stood there

and said do it, just go. Go for it. You’re in. When you buy that, you’re in. Our society

says we will not allow that. [¶] They’re responsible for all natural and probable

consequences.”

In response, defense counsel asserted that Omar was drunk at the time of the

killing and for that reason did not possess premeditation, express malice, or even implied

malice, making him guilty of involuntary manslaughter at most. Consistent with this

argument, the trial court instructed the jury on voluntary intoxication and involuntary

manslaughter.

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 The trial court also instructed the jury on aiding and abetting. This instruction in

particular required that the aider and abettor “know[] of the perpetrator’s unlawful

purpose” and “specifically intend[] to, and [did] in fact, aid, facilitate, promote,

encourage, or instigate the perpetrator’s commission of that crime.” The jury was further

instructed that, if it found a defendant guilty of murder, then it had to determine whether

the murder was of the first or second degree. The jury was also instructed on first degree

and second degree murder and that, unless instructed otherwise, “all instructions apply to

each defendant.” The jury found both Omar and Jonathan guilty of first degree murder.

In other words, the jury rejected defense’s theory of the case and found that each

defendant committed the murder with premeditation, as either a direct perpetrator or a

direct aider and abettor.

Although the prosecutor used the term “natural and probable consequences” in

closing argument and the court’s instruction on implied malice and second degree murder

contained natural and probable consequences language, which could be similar to the

natural and probable consequences doctrine, these are two “distinctly different concepts.”

(People v. Soto, supra, 51 Cal.App.5th at p. 1056; accord, People v. Chiu (2014) 59

Cal.4th 155, 158, abrogated on another ground by Sen. Bill No. 1437 (2017-2018 Reg.

Sess.).) The “natural consequences” language in instructions “does not transform [a

petitioner’s] conviction into one for murder under the natural and probable consequences

doctrine within the meaning of section 1170.95.” (People v. Soto, supra, at p. 1059.)

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 A direct aider and abettor to murder must at least share the mens rea of the actual

perpetrator, i.e., express or implied malice. (People v. Soto, supra, 51 Cal.App.5th at p.

1057.) “For implied malice murder, [the requisite] intent is that the perpetrator ‘“knows

that his conduct endangers the life of another and . . . acts with conscious disregard for

life.”’ [Citation.] The ‘physical component’ required for implied malice murder ‘is

satisfied by the performance of “an act, the natural consequences of which are dangerous

to life.”’” (Id. at p. 1058.) In contrast, an accomplice whose liability for murder is

premised on the natural and probable consequences doctrine “need only intend to aid a

different, less serious ‘target’ crime,” the natural and probable consequence of which is

murder. (Id. at p. 1057.) Here, the jury was not instructed on the natural and probable

consequence doctrine or any target crime upon which murder based on a natural and

probable consequences theory could be predicated. (See People v. Daniel, supra, 57

Cal.App.5th at p. 677 [defendant ineligible for relief where jury was not instructed on

felony murder or natural and probable consequences doctrine]; People v. Mancilla (2021)

67 Cal.App.5th 854, 866-867 [conviction based on actual malice under provocative act

theory].) Omar was therefore necessarily convicted under a still-valid theory. (See

People v. Powell (2021) 63 Cal.App.5th 689, 714 [rejecting the defendant’s contention

that direct aiding and abetting implied malice murder is an invalid legal theory].)

Because Omar was not convicted of felony murder or murder under a natural and

probable consequences or other imputed malice theory, he is ineligible for resentencing

15
as a matter of law. We therefore conclude the trial court did not err in denying Omar’s

petition for resentencing.

IV.

DISPOSITION

The order denying the petition for resentencing is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

McKINSTER
Acting P. J.

MILLER
J.

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