People v. Ramirez CA4/1

Filed 3/20/24 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D080498

Plaintiff and Respondent,

v. (Super. Ct. No. SCN421603)

RICHARD JACK RAMIREZ, JR.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Kelly C. Mok, Judge. Affirmed.
Benjamin Boyce Kington, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C.
Ragland, Assistant Attorneys General, Arlene A. Sevidal, Randall Einhorn
and Andrew Scott Mestman, Deputy Attorneys General for Plaintiff and
Respondent.
A jury convicted Richard Jack Ramirez, Jr., of first degree murder.

(Pen. Code,1 § 187, subd. (a).) It found true an allegation that he personally

1 Undesignated statutory references are to the Penal Code.
used a knife. (§ 12022, subd. (b)(1).) In a bifurcated proceeding, Ramirez
admitted he suffered three prior strike convictions and two prior serious or
violent felony convictions under the “Three Strikes” law. (§§ 667, subds.
(a)(1), (b), 668, 1170.12, subds (b), (c)(1), 1192.7, subd. (c).) The court
sentenced Ramirez to 75 years to life for the murder, plus a one year
enhancement for the knife-use allegation.
Ramirez contends: (1) The court erroneously admitted evidence of his
demeanor after the incident; (2) the prosecutor committed several acts of
misconduct; (3) the court erroneously failed to provide the jury a unanimity
instruction; (4) there was cumulative error; and (5) the court applied the
wrong standard to evaluate his posttrial motion to reduce the first degree
murder conviction to voluntary manslaughter or second degree murder. We
affirm.
FACTUAL AND PROCEDURAL SUMMARY
On February 5, 2021, a motorist was stopped at an intersection in
Oceanside. She saw the driver of a pickup truck, later identified as J.R.,
slowly roll back into Ramirez’s pickup truck. Ramirez appeared angry,
quickly exited his truck, and banged on J.R.’s window. J.R. drove off quickly.
Ramirez got in his truck and followed J.R.
J.R. testified that he drove down the street and made two U-turns in an
effort to “shake [Ramirez] off.” Eventually, J.R. parked across the street from
his house, and Ramirez parked behind him. J.R. exited his truck and Ralph
Hermosillo, a worker of J.R.’s, approached. An altercation ensued between
Hermosillo and Ramirez. Referring to J.R., Hermosillo told Ramirez
something like, “That’s my uncle,” even though it was not true. J.R. did not
observe a machete or anything in Hermosillo’s hands. Hermosillo pointed out
that Ramirez’s vehicle was not damaged, and directed Ramirez to the back of

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it. Shortly afterwards, J.R. saw Ramirez turn his hat backwards, and he
heard a “thump.” Hermosillo fell to the ground, and Ramirez kicked
Hermosillo in the head. Ramirez returned to his truck and drove off.
Both J.R.’s neighbor and a visitor to the neighborhood witnessed a
portion of the altercation. They testified Hermosillo had no machete or other
weapon in his hands, and they saw none near his body following the incident.
Responding to a 911 call, police arrived at the scene, where Hermosillo died
within minutes.
The medical examiner conducted an autopsy on Hermosillo and
testified his cause of death was a stab wound to his neck and blunt force
injury to his head. He stated Hermosillo’s stab wound appeared to be
inflicted by a double-edged knife. Hermosillo’s blood tested positive for what
the medical examiner stated was a “very high” level of methamphetamine.
Although they were not married, a woman identified at trial as
Ramirez’s “wife,” O.C., testified she accompanied him in the vehicle that day.
After the collision, they pursued J.R. to his house. There, Ramirez
approached J.R.’s vehicle and told him, “Hey dude, all you had to do was pull
over. All we need is your insurance.” Then, “out of nowhere,” Hermosillo
came from across the street holding a machete and “bouncing on his toes.”
Hermosillo asked Ramirez, “You have a fucking problem with my uncle?”
Ramirez stepped back and replied, “Hey dude, your uncle just hit my fucking
truck.” As Hermosillo approached him, Ramirez ended up at the back of his
truck. O.C. heard a “smacking” noise and, “out of the corner of [her] eye,”
saw Hermosillo fall to the ground. Ramirez kicked Hermosillo. As they were
driving away, she looked in the vehicle’s rear view mirror and saw J.R.
throwing a machete into the back of his truck.

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 O.C. testified at trial: “I have training. I’m a surgical tech. I know
what to do. I didn’t know [Hermosillo] was stabbed. I would have applied
pressure. I would have given CPR.”
On the night of the incident, an Oceanside police officer interviewed
O.C., and a recording of the interview was played for the jury. O.C. told the
officer that following the incident, she told Ramirez, “[Y]ou guys didn’t have
to fucking fight. You could have just fucking told the dude to fuck off and we
could have left.” Ramirez responded, “I’m a muthafuckin man.”
On cross-examination, O.C. confirmed she telephoned Ramirez in jail
on the night of the preliminary hearing and told him: “Well, I’m here for the
fucking long run. So I just fucking go with it, whatever you want to do.
That’s—you know, I got you. I got your back regardless. You do what you
want. You’re a fucking smart man.”
A police officer arrested Ramirez on the night of the incident. He
recovered a pocketknife from him, but did not yet know about the stabbing.
The officer put the knife in the back of Ramirez’s truck, which was
impounded and towed away. The knife was never recovered.
Ramirez testified at trial and admitted stabbing Hermosillo in the neck
with a multi-tool instrument called a Leatherman, which was compared to a
Swiss Army knife. Ramirez said that at the start of the altercation, his wife
told him, “Babe, he’s got a machete.” Ramirez saw Hermosillo making
threatening moves with the machete. Ramirez told Hermosillo to put the
machete down, but he swung at Ramirez. Fearing for his life, Ramirez
stabbed him in self-defense. Ramirez also admitted kicking Hermosillo in the
head afterwards. When asked why he did that, he replied, “To make sure,
you know, that he’s stopped.” Ramirez did not tell his wife he had stabbed
Hermosillo because “she stresses a lot.” Ramirez conceded that a

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Leatherman does not have a double edge, and the medical examiner testified
that Hermosillo was stabbed with a double-edged blade.
On cross-examination, the prosecutor asked Ramirez about the
circumstances surrounding his arrest. Specifically, when the police officer
asked him separate questions about the collision and the stabbing incident,
Ramirez twice responded, “I don’t know nothing.” Ramirez admitted that he
had lied to the officer both times.
In rebuttal, the prosecution played a portion of a video of Ramirez’s
police interview. The prosecutor asked the interviewing officer if Ramirez’s
demeanor remained the same “throughout that evening.” The officer replied,
“Yes, it was like what we saw in the video there. He was just apathetic and
indifferent to what I had to say, really.”
DISCUSSION
I. Evidence of Ramirez’s Demeanor
Ramirez contends the court erroneously admitted irrelevant and
prejudicial evidence of his demeanor to show his lack of remorse. He
contends, “[T]he prosecutor’s assumption that [he] should behave one way if
the stabbing was justified by self-defense, and some other way if it was
unprovoked, was entirely speculative.” He argues the prosecutor “used the
evidence to disparage [him] and belittle his defense. . . . These error [sic]
rendered [his] trial fundamentally unfair.” Ramirez additionally contends
the error was not harmless, as the evidence in this case was “weak” and
absent the demeanor evidence, “there is a reasonable probability that at least
one juror would have voted not guilty.”
A. Background
The prosecution moved in limine to admit videotape evidence showing
that after he was given his rights under Miranda v. Arizona (1966) 384 U.S.

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436, Ramirez told the police officer that he did not know anything about the
incident with Hermosillo. The prosecutor also sought to admit a video
recording showing Ramirez’s demeanor during his detention. The court
denied the motion, concluding that evidence was cumulative; however, it
allowed that if Ramirez testified, the demeanor evidence could be admissible
for impeachment.
At trial, the prosecutor asked Ramirez regarding his interaction with
police after they detained him: “You didn’t have a care in the world that you
just killed somebody?” Next, pointing out that Ramirez fell asleep at the
police station, the prosecutor asked him, “You then began snoring like a
baby?” The prosecutor again asked Ramirez, “Did you have a care in the
world? The court sustained defense objections to each of those questions.
During closing arguments, the prosecutor drew no objection when he
mentioned Ramirez’s demeanor during the police interview: “Then we have
the defendant’s interview. Look at—watch that again. Look at his
demeanor. Listen to his tone. Listen to what he says: ‘I don’t know nothing,’
right? . . . He has no remorse at all for stabbing another human being in the
neck. Even if it was justified, is this how you’re going to act? And then right
afterwards they strip you down, you’re wearing a trash bag, and you just lay
down and go to sleep like nothing ever happened, snoring like a baby? Give
me a break. Okay. So that’s how we know self-defense is not at issue.”
B. Applicable Law
We review a trial court’s ruling on the admissibility of evidence for an
abuse of discretion. (People v. Goldsmith (2014) 59 Cal.4th 258, 266.)
Generally, we will not disturb the exercise of its discretion unless it acted
arbitrarily, capriciously, or in a patently absurd manner. (People v. Williams
(2008) 43 Cal.4th 584, 634.)

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 To be relevant, the evidence must have “any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) Although generally all
relevant evidence is admissible (Evid. Code, § 351), the trial court may
exclude relevant evidence “if its probative value is substantially outweighed
by the probability that its admission will (a) necessitate undue consumption
of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352; People v. Cardenas
(1982) 31 Cal.3d 897, 904-905.) “The weighing process under [Evidence Code]
section 352 depends upon the trial court’s consideration of the unique facts
and issues of each case, rather than upon the mechanical application of
automatic rules.” (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314.)
“ ‘ “In applying [Evidence Code] section 352, ‘prejudicial’ is not
synonymous with ‘damaging.’ ” ’ ” (People v. Alexander (2010) 49 Cal.4th 846,
905.) Rather, this prejudice refers to “ ‘ “evidence which uniquely tends to
evoke an emotional bias against the defendant as an individual and which
has very little effect on the issues.” ’ ” (Ibid.) “ ‘In such a circumstance, the
evidence is unduly prejudicial because of the substantial likelihood the jury
will use it for an illegitimate purpose.’ ” (People v. Branch (2001) 91
Cal.App.4th 274, 286.)
“Ordinarily, the erroneous admission of evidence is reviewed for
prejudice under the standard described in People v. Watson (1956) 46 Cal.2d
818 . . . , which requires reversal only if the defense shows it is reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (People v. Roberts (2017) 13 Cal.App.5th
565, 576.) “However, when the error involves a defendant’s federal
constitutional rights . . . , the error is reviewed for prejudice under the

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standard described in Chapman v. California (1967) 386 U.S. 18, 24
[(Chapman)],” which asks a reviewing court to evaluate whether it can say
beyond a reasonable doubt that the erroneous admission of evidence did not
contribute to the jury’s guilty verdict. (Roberts, at pp. 576-577.)
The California Supreme Court addressed the relevance of demeanor
evidence in People v. Smith (2015) 61 Cal.4th 18. In that case, a detective
testified that the defendant initially maintained his innocence but insisted he
would take the blame for the murder. The jury watched a videotape of the
defendant’s police interview. Afterward, the prosecutor noted that defendant
seemed to be “ ‘breaking down and crying’ ” at several points, and asked the
detective what he had observed. (Id. at p. 45.) Defense counsel objected on
grounds of irrelevance and undue prejudice. The trial court barred the
detective from giving an opinion based on the videotape, but allowed him to
report his own observations during the interview. The detective testified that
when the defendant appeared to be showing emotion, he “ ‘would always
cover his eyes with his hand. And I didn’t see any tears.’ ” (Id. at p. 46.)
Defendant on appeal claimed the admission of this testimony violated his
federal rights to due process and a fair trial, and that the detective’s
observations were irrelevant to any issue relating to guilt. The California
Supreme Court ruled, “To the contrary, defendant’s demeanor when
discussing the crimes was relevant to help the jury determine his intent at
the time of the events, his state of mind thereafter, and the credibility of his
account.” (Id. at p. 46.)
C. Analysis
The court carefully circumscribed the evidence of Ramirez’s demeanor
during his initial interrogation, sustaining defense objections to a series of
the prosecutor’s questions. The jury was able to observe his demeanor first

8
hand when it reviewed the videotaped interview. To the extent the court
permitted limited additional evidence describing his demeanor, there was no
error. Here, as in People v. Smith, supra, 61 Cal.4th 18, such evidence was
relevant to help the jury assess Ramirez’s intent, state of mind, and
credibility.
II. Prosecutorial Error
Ramirez contends the prosecutor committed several errors requiring
reversal of his conviction. Specifically, he claims the prosecution: shifted the
burden of proof to the defense to produce evidence; misstated the law of heat
of passion; improperly referred to his alleged lack of remorse; and misstated
the reasonable doubt standard. We shall address each contention in turn.
A. Applicable Law
“It is well[-]settled that making a timely and specific objection at trial,
and requesting the jury be admonished . . . is a necessary prerequisite to
preserve a claim of prosecutorial [error] for appeal.” (People v. Seumanu,
(2015) 61 Cal.4th 1293, 1328.) Ramirez concedes his trial counsel did not
object to some of the prosecutor’s statements; therefore, we conclude as to
those unobjected to statements that any claims of error are forfeited.
Ramirez preemptively argues trial counsel rendered ineffective
assistance by failing to object to the prosecutor’s arguments and statements.
Thus, despite the forfeiture, we will address the merits of Ramirez’s claims.
To establish ineffective assistance, a defendant must show that counsel’s
representation fell below an objective standard of reasonableness under
prevailing professional norms and, as a result, the defendant suffered
prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) In
reviewing this claim, we give significant deference to trial counsel’s
reasonable tactical decisions, and the “ ‘strong presumption that counsel’s

9
conduct falls within the wide range of reasonable professional assistance.’ ”
(People v. Lucas (1995) 12 Cal.4th 415, 437, quoting Strickland, at p. 689.) It
is not necessary to determine “ ‘counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.’ ” (In re Fields (1990) 51 Cal.3d 1063, 1079,
quoting Strickland, at p. 697.) “ ‘Surmounting Strickland’s high bar is never
an easy task.’ ” (Harrington v. Richter (2011) 562 U.S. 86, 105.) And it is
“particularly difficult” for a defendant to prevail on direct appeal on a claim
of ineffective assistance by trial counsel. (People v. Mai (2013) 57 Cal.4th
986, 1009.)
“Advocates are given significant leeway in discussing the legal and
factual merits of a case during argument. [Citation.] However, ‘it is
improper for the prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its . . . obligation to
overcome reasonable doubt on all elements [citation].’ [Citations.] To
establish such error, bad faith on the prosecutor’s part is not required.”
(People v. Centeno (2014) 60 Cal.4th 659, 666.)
“When attacking the prosecutor’s remarks to the jury, the defendant
must show that, ‘[i]n the context of the whole argument and the instructions’
[citation], there was ‘a reasonable likelihood the jury understood or applied
the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)

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 A prosecutor’s conduct violates the federal Constitution when the
conduct “ ‘infects the trial with such unfairness as to make the conviction a
denial of due process’ ”; that is, when the conduct is “ ‘of sufficient
significance to result in the denial of the defendant’s right to a fair trial.’ ”
(People v. Harrison (2005) 35 Cal.4th 208, 242.) A prosecutor’s argument
that does not render a criminal trial fundamentally unfair violates California
law only if the conduct involves “ ‘ “ ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ ” ’ ” (Ibid.)
B. Analysis
Ramirez claims the prosecutor shifted the burden of proof to the
defense, and points to a colloquy at trial in which the prosecutor asked a
police officer about the Leatherman tool that disappeared after Ramirez’s
arrest. The prosecutor asked the officer whether the public defender’s office
has its own investigative team that can go out and hunt down evidence. The
court sustained defense counsel’s objection that the prosecutor was shifting
the burden of proof to the defense.
The prosecutor addressed this issue again during closing argument:
“And then the knife issue, we keep coming back to that and I made some
questions—asked some questions during my direct [examination] with [a
detective] and I got objected to as if I was shifting the burden. So I want to
be very, very clear. I am not shifting the burden here. I know what the
burden is very well. I accept that burden. I take that burden on. Okay.
What I’m saying is if there was any evidentiary value that was helpful to the
defense they have prosecutors [sic].”
At that point, defense counsel objected that the prosecutor was shifting
the burden to the defense. The court admonished the jury: “[W]hat the
attorneys say during argument is not evidence. They may argue the case

11
based on the evidence presented in the trial and reasonable inference[s]
drawn therefrom. It is up to you to determine whether the arguments of
counsel are supported by the evidence presented at trial. That question I did
sustain an objection back at the time of trial and so the jury was—the jury is
to disregard that question and what the answer would have been. And so I’ll
just ask the People to move on to the next point.”
We conclude the court properly sustained Ramirez’s objection to the
prosecutor’s questioning of the police officer on the issue of burden shifting.
Moreover, when the prosecutor referred to that issue again in closing
argument, he clarified he understood the People’s burden. Defense counsel
again objected, and the court admonished the jury that the arguments of
counsel are not evidence. In our view, the court’s admonition cured any
prejudice to Ramirez, and thus this claim fails.
Ramirez next contends the prosecutor erroneously stated the law on
heat of passion by arguing in closing: “[Provocation] doesn’t apply here.
What does it look like when it does apply? This looks like when you come
home and walk in on one of your neighbors molesting your kid in the act and
the father blows up and takes it a little too far, blows the guy away or breaks
his neck or whatever he does, and we as the community we say, ‘You know
what? You can’t have that. I mean, but we get it. It makes sense.’ So we’re
not—it’s not malice. It’s—we’re going to negate malice. We’re going to cut
him a break because the average reasonable person would have just seen red
based on that provocation and lost it and acted. That’s not what happened
here.”

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 Any error the prosecutor made in the above argument was cured

because the court correctly instructed the jury regarding heat of passion,2
and that it was to follow the court’s instruction. The court also instructed the
jury with CALCRIM No. 222 that the arguments of counsel is not evidence.
We must presume the jury followed those instructions. (People v. Najera
(2006) 138 Cal.App.4th 212.)
Ramirez contends the prosecutor erred by referring to his demeanor, as
detailed above. As we have already explained, limited evidence on this topic
was properly admitted. The trial court sustained defense objections to
certain of the prosecutor’s comments, and we presume the jury followed the
court’s instructions and disregarded these comments.
Ramirez contends the prosecutor misstated the reasonable doubt
standard when it stated in rebuttal argument: “Look, reasonable doubt is
doubt based on reason and we talked about that at the beginning. You’re
going to have an abiding conviction because you now heard all the evidence
and that’s not going to change. So you’re going to come for a conclusion based
on the evidence you heard, put it in the context of common sense and
reasonability [sic], and you come to a verdict. [¶] So how do you know this

2 The court instructed the jury with CALCRIM No. 570 regarding heat of
passion as follows: “A killing that would otherwise be murder is reduced to
voluntary manslaughter if the defendant killed someone because of a sudden
quarrel or in the heat of passion. [¶] The defendant killed someone because
of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant was
provoked; [¶] 2. As a result of the provocation, the defendant acted rashly and
under the influence of intense emotion that obscured his reasoning or
judgment; [¶] AND [¶] 3. The provocation would have caused a person of
average disposition to act rashly and without due deliberation, that is, from
passion rather than from judgment. [¶] Heat of passion does not require
anger, rage, or any specific emotion. It can be any violent or intense emotion
that causes a person to act without due deliberation and reflection.”

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case has been proved beyond a reasonable doubt? Inevitably, somebody after
this is going to ask you, ‘What was that trial about you just sat through for
two weeks,’ right, Christmas dinner or whatever it may be? And what are
you going to tell them? ‘It’s about this poor guy named Mr. Ramirez, ex-con.
He just was misunderstood and this sinister retirement community [sic] had
it out for him and conspired, and thank God we were there to instill justice in
the situation?’ Of course not; right? You’re going to say, ‘This is a crazy case
about this guy who lost it over something so silly, and when a young man
came over to try to get in between him and his elderly uncle, he got killed
brutally and then he got through the wringer more than one time, but we sat
through it all.’ That’s how you know that this case has been proved beyond a
reasonable doubt. The defendant is guilty. Hold him accountable.”
In determining whether the prosecutor committed error, it is
significant that the trial court correctly defined the reasonable doubt

standard in the jury instructions. (Cortez, supra, 63 Cal.4th at p. 131.)3

3 The court instructed the jury with CALCRIM No. 220 on reasonable
doubt: “The fact that a criminal charge has been filed against the defendant
is not evidence that the charge is true. You must not be biased against the
defendant just because he has been arrested, charged with a crime, or
brought to trial. [¶] A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People prove a defendant
guilty beyond a reasonable doubt. Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt. [¶] Proof
beyond a reasonable doubt is proof that leaves you with an abiding conviction
that the charge is true. The evidence need not eliminate all possible doubt
because everything in life is open to some possible or imaginary doubt. [¶] In
deciding whether the People have proved their case beyond a reasonable
doubt, you must impartially compare and consider all the evidence that was
received throughout the entire trial. Unless the evidence proves the
defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and
you must find him not guilty.”
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The court additionally instructed the jury on direct and circumstantial
evidence with CALCRIM No. 224, stating in part, “Before you may rely on
circumstantial evidence to conclude that a fact necessary to find the
defendant guilty has been proved, you must be convinced that the People
have proved each fact essential to that conclusion beyond a reasonable
doubt.” The instruction further stated that if the jurors could draw two or
more reasonable conclusions from the circumstantial evidence, they had to
accept the one pointing to innocence.
The court also similarly instructed the jury with CALCRIM No. 225:
“Before you may rely on circumstantial evidence to conclude that a fact
necessary to find the defendant guilty has been proved, you must be
convinced that the People have proved each fact essential to that conclusion
beyond a reasonable doubt.” The court instructed the jurors that in
evaluating a witness’s testimony, they could consider the reasonableness of
the testimony in light of all the other evidence in the case, and that as to any
opinion given by a witness at trial, they could “disregard all or any part of an
opinion that [they] find unbelievable, unreasonable, or unsupported by the
evidence.” (CALCRIM No. 333; see CALCRIM No. 226.)
The jury instructions left no doubt about the prosecution’s burden of
proof, the proper application of each juror’s common sense and experience,
and the role of reasonableness in reaching a verdict. To the extent the
prosecutor’s statement was inconsistent with the instructions, the jury was
instructed to follow the latter. The trial court instructed the jury with
CALCRIM No. 200, stating in part: “You must follow the law as I explain it
to you, even if you disagree with it. If you believe that the attorneys’
comments on the law conflict with my instructions, you must follow my
instructions.”

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 Considered “ ‘[i]n the context of the whole argument and the [jury]
instructions’ ” (Centeno, supra, 60 Cal.4th at p. 667), the jury in this case was
not reasonably likely to understand the prosecutor’s comments as
diminishing the prosecution’s burden of proof. We therefore conclude that
even if the prosecutor erred, there was no prejudice given the instructions
and entirety of the argument.
III. Unanimity Instruction
Ramirez contends the court erroneously failed to instruct the jury with
CALCRIM No. 3500 that the jury must unanimously agree on the act causing
Hermosillo’s death, the stab or the kick.
Under the state and federal Constitutions, a unanimous jury verdict is
required to convict a person of a crime. (Ramos v. Louisiana (2020) 590 U.S.
___ [2020 WL 1906545]; People v. Russo (2001) 25 Cal.4th 1124, 1132.) This
requirement is typically satisfied when the jury unanimously finds the
defendant committed the alleged crime. But that is not always the case. As
the California Supreme Court has explained, “[W]hen the evidence suggests
more than one discrete crime, either the prosecution must elect among the
crimes or the court must require the jury to agree on the same criminal act.”
(Russo, at p. 1132.) This requirement “ ‘is intended to eliminate the danger
that the defendant will be convicted even though there is no single offense
which all the jurors agree the defendant committed.’ ” (Ibid.)
This rule, however, has “several exceptions.” (People v. Jennings (2010)
50 Cal.4th 616, 679.) Even when the evidence suggests more than one
discrete crime, for instance, no unanimity is required if “ ‘ “the acts alleged
are so closely connected as to form part of one transaction.” ’ ” (People v.
Williams (2013) 56 Cal.4th 630, 682.) This “continuous conduct” exception

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“ ‘applies when the defendant offers essentially the same defense to each of
the acts, and there is no reasonable basis for the jury to distinguish between
them.’ ” (Ibid.)
Here, the evidence showed Ramirez kicked Hermosillo immediately
after stabbing him, and promptly left the scene. His defense to both his
stabbing and kicking was the same: he acted in self-defense. Therefore, the
continuous course of conduct exception to the unanimity instruction
requirement applies, and Ramirez’s claim of error fails.
IV. Cumulative Error
Ramirez contends the combined effect of the errors he identified
requires reversal, as he was deprived of due process. Based on our review of
the record, we conclude there was no error warranting reversal, whether
considered separately or cumulatively. (People v. Roybal (1998) 19 Cal.4th
481, 531.) The premise behind the cumulative error doctrine is that, while a
number of errors may be harmless taken individually, their cumulative effect
requires reversal. (People v. Cunningham (2001) 25 Cal.4th 926, 1009.)
V. Posttrial Motion
The court denied Ramirez’s motion to reduce his conviction from first
degree murder to voluntary manslaughter or second degree murder under
People v. Dillon (1983) 34 Cal.3d 441 (Dillon). Ramirez contends that at the
hearing on the motion, the parties treated it as one for a new trial under
section 1181, subdivision (6), but the court in denying it erroneously relied on
the standard for a judgment of acquittal under section 1118.1. He specifies:
“Here, rather than acting as the ‘13th juror,’ the trial court simply
determined whether the jury’s verdict was supported by substantial
evidence.” Ramirez alternatively contends his trial counsel provided

17
ineffective assistance by failing to move for a new trial under section 1181,
subdivision (6).
A. Background
Following the jury verdict, Ramirez moved for a reduction of his
sentence under Dillon, which applies if the punishment is “grossly
disproportionate to the offense as defined or as committed, and/or to the
individual culpability of the offender.” (Dillon, supra, 34 Cal.3d at p. 450.)
He argued: “In Dillon, the most compelling facts about the defendant were
his extraordinary youth and the fact that even for a young person he was
unusually immature, as demonstrated by the psychologist’s report provided
to the Court. Here, the most compelling fact about [Ramirez] is he was with
[sic] the legitimate victim of a hit and run and following the suspect to
prevent him from getting away. He never threatened the suspect in any way
during their encounter.”
The People opposed the motion: “The [d]efendant is essentially asking
the court to accept a version of events that were [sic] specifically rejected by a
jury to justify the extraordinary measure of reducing his conviction. Unlike
[Dillon, supra, 34 Cal.3d 441], where the undisputed facts and the
implication of the felony-murder rule gave rise to the contemplated relief,
[d]efendant’s articulated justification rests upon facts that were in dispute at
trial. This dispute was put to rest after a fair trial by a jury of his peers.”
At a hearing on the motion, although Ramirez’s counsel mentioned
Dillon, he in effect requested the court reweigh the trial evidence and “vacate
the first degree murder conviction under . . . Dillon and instead find
[Ramirez] guilty of voluntary manslaughter or at most a second degree
murder.” He continued: “Clearly, the defense had hoped for an acquittal
based on self-defense, but we were prepared for a different outcome. We

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thought voluntary manslaughter was a possibility and that worst case
scenario, this was a second degree murder, at most. But a first degree
murder conviction, in our opinion, was unfathomable. There was no—the
evidence simply did not conclude that [ ] Ramirez intended to kill. He never
expressed an intent to kill. He never said, ‘I’m going to kill him.’ He never—
first degree murder requires an act to be willful—to be willfully, deliberately,
and with premeditation. And here there was nothing that was willful.”
The court in denying the motion did not address the Dillon criteria:
“I’m mindful of the standard, which is that this court will review the evidence
to determine whether a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt. This was a jury trial and this was a
verdict from the jury after they heard all the evidence and deliberated on this
case for some time and they decided that the defendant intended to kill the
victim and that he did meditate and deliberate. [¶] And so in determining
whether a rational trier of fact could have found the defendant guilty of that
first degree murder, I did consider the facts that came out at the trial,
namely in terms of the circumstances surrounding this stabbing. The
defendant did arm himself with a knife. And he didn’t spend much time with
the victim, but he did spend time with the victim in the sense that it wasn’t
moments—I mean, there was some time when he first got to the scene of
where this all occurred, not this hit-and-run, but I’m talking about ultimately
where this all happened. [¶] They moved to another location where it was
just the defendant and the victim while the two witnesses . . . were a little bit
of a distance away from them. And then there was some discussion between
the defendant and the victim. And then at some point, in the middle of that,
Mr. Ramirez took the time to flip his hat backwards before stabbing the
victim directly in the neck, which ultimately Mr. Hermosillo fell back. And

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while he was down on the ground, Mr. Ramirez kicked him in the head, when
it was obvious that Mr. Hermosillo was completely incapable of responding in
any way. [¶] And so those are the—that is the evidence that came out at the
trial. That is part of the evidence that the jury heard. And based on that and
the evidence, they came back with a first degree murder conviction. And at
this point, in evidencing that, this court finds that a rational trier of fact
could have found the defendant guilty of first degree murder. And I’m not
going to disrupt the first degree murder verdict that the jury ultimately
determined that the defendant was guilty of.”
B. Applicable Law
Murder is the unlawful killing of a human being with malice
aforethought. (§ 187, subd. (a).) “[S]econd degree murder . . . is ‘the unlawful
killing of a human being with malice aforethought but without the additional
elements, such as willfulness, premeditation, and deliberation, that would
support a conviction of first degree murder.’ ” (People v. Cravens (2012) 53
Cal.4th 500, 507; see §§ 187, subd. (a), 189.) “ ‘A defendant who commits an
intentional and unlawful killing but who lacks malice is guilty of . . .
voluntary manslaughter.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 153
(Breverman), quoting § 192.) Voluntary manslaughter is a lesser included
offense of murder. (People v. Gonzalez (2018) 5 Cal.5th 186, 197 [“Lesser
included offenses of first degree premeditated murder include second degree
murder, voluntary manslaughter, and involuntary manslaughter”];
Breverman, at p. 154.)
“ ‘Generally, the intent to unlawfully kill constitutes malice.
[Citations.] “But a defendant who intentionally and unlawfully kills
[nonetheless] lacks malice when [he] acts in a ‘sudden quarrel or heat of
passion’ (§ 192, subd. (a)), or . . . kills in ‘unreasonable self-defense’—the

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unreasonable but good faith belief in having to act in self-defense.” ’ ” (People
v. Rios (2000) 23 Cal.4th 450, 460.) These mitigating circumstances reduce
an intentional, unlawful killing from murder to voluntary manslaughter “by
negating the element of malice that otherwise inheres in such a homicide.”
(Breverman, supra, 19 Cal.4th at p. 154.)
The California Supreme Court in Porter v. Superior Ct. (2009) 47
Cal.4th 125 set forth the difference between a motion under section 1118.1,
which seeks a judgment of acquittal for insufficient evidence and a motion
under section 1181, subdivision (6), which seeks a new trial because the
verdict is contrary to law or evidence: “In ruling on an 1118.1 motion for
judgment of acquittal, the court evaluates the evidence in the light most
favorable to the prosecution. If there is any substantial evidence, including
all inferences reasonably drawn from the evidence, to support the elements of
the offense, the court must deny the motion. [Citation.] . . . [T]he relevant
question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” (Id. at p. 132.)
“The court extends no evidentiary deference in ruling on [a section]
1181[, subdivision] (6) motion for new trial. Instead, it independently
examines all the evidence to determine whether it is sufficient to prove each
required element beyond a reasonable doubt to the judge, who sits, in effect,
as a ‘13th juror.’ [Citations.] If the court is not convinced that the charges
have been proven beyond a reasonable doubt, it may rule that the jury’s
verdict is ‘contrary to the . . . evidence.’ [Citations.] In doing so, the judge
acts as a 13th juror who is a ‘holdout’ for acquittal. Thus, the grant of a
section 1181[, subdivision] (6) motion is the equivalent of a mistrial caused by
a hung jury.” (Porter v. Superior Ct., supra, 47 Cal.4th at p. 133.)

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 Ramirez argues the court ruled on a new trial motion under section
1181, subdivision (6) based on its references to “whether a rational trier of
fact could have found the defendant guilty.” However, the more reasonable
interpretation of the court’s ruling is that it expressly applied the criteria for
a judgment of acquittal under section 1118.1, which it articulated twice. The
court repeatedly referred to the jury’s verdict, evincing that it accorded it a
level of deference consistent with the criteria for a ruling on a judgment of
acquittal.
Ramirez alternatively contends his trial counsel provided ineffective
assistance by failing to also move for a new trial under section 1181,
subdivision (6). The trial court in ruling on the motion discussed the
evidence in some detail and offered what were clearly its own independent
conclusions. It focused on the fact that once Ramirez reached J.R.’s house, he
had enough time to move to the back of his pickup, turn his hat backwards,
and stab Hermosillo directly in the neck. Furthermore, Ramirez kicked
Hermosillo’s head. The court concluded, on its own terms, that Ramirez
deliberated and acted with the required malice for first degree murder.
Under the criteria set forth above for an ineffective assistance of counsel
claim, Ramirez cannot show prejudice from his counsel’s failure to specifically
move the court for a ruling on a new trial under section 1181, subdivision (6).
If defense counsel had done so, it would have been an idle act, as the court
would most likely have denied it based on its independent analysis of the
record set forth above.

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 DISPOSITION
The judgment is affirmed.

O’ROURKE, Acting P. J.

WE CONCUR:

DATO, J.

KELETY, J.

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