THE PEOPLE, Plаintiff and Respondent, v. OMAR RIGO RAMIREZ, Defendant and Appellant.
B306088
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN
Filed 11/23/21
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. VA091171)
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Michael Katz, Deputy Attorneys General for Plaintiff and Respondent.
Ramirez did not provide the murder weapon, instruct his confederate to shoot, or know of his confederate‘s propensity toward violence, and the shooting occurred quickly without Ramirez having a meaningful opportunity to intervene. Although Ramirez was awаre his confederate had a gun and intended to use it in the carjacking, as a 15-year-old he may well have lacked the experience and maturity to appreciate the risk that the attempted carjacking would escalate into a shooting and death, and he was more susceptible to pressure from his fellow gang members to participate in the carjacking. Thus, there is not substantial evidence Ramirez acted with reckless indifference to human life.
Ramirez also contends he is entitled on remand to be resentenced by a juvenile court pursuant to Proposition 57, the Public Safety and Rehabilitation Act of 2016 (
FACTUAL AND PROCEDURAL BACKGROUND
A. The Evidence at Trial
We described the 2005 killing of Alex Gutierrez in our prior opinion in People v. Rios (May 18, 2011, B218445) [nonpub. opn.] (Rios).
1. The shooting
Early on the morning of June 17, 2005 Gutierrez and an unidentified passenger drove to a house on Clarkdale Avenue in Hawaiian Gardens, where Lizbeth and Paola Figueroa (the Figueroa sisters) lived with their family. Gutierrez was a friend of Paola‘s ex-boyfriend. When Gutierrez arrived, he asked Paolа if she wanted to buy stereo speakers. After some discussion, Paola reluctantly agreed to take the speakers so Gutierrez would not disturb the neighbors. Paola had Gutierrez put the speakers in her van and said she would try to sell them. Gutierrez left, but said he would return.
Lizbeth and Paola then drove in the van to an abandoned house on Juan Street, about five blocks away, to try to sell the speakers. One of Lizbeth‘s friends, Carlos Gallardo was there with five or six other men.2 Gallardo lived in the neighborhood and was a member of the Varrio Hawaiian Gardens criminal
Juan Carlos Rios,3 who was also a member of the Hawaiian Gardens gang, approached them and demanded to know who gave Paola the speakers. Paola replied that it was “just some friends.” Rios asked if they were from his neighborhood, and Paola told him they were not. He asked if they were “gangsters.” He also asked if they had guns, a nice car, and money, and whether they looked like “Paisa[s],” meaning Mexican nationals. Paola told him they were Paisas and had no money. Rios responded he “was planning on jaсking them.”
Rios asked Paola to give him a ride home. He lived on Arline Avenue, near the Figueroa sisters’ home. Paola did not want to take Rios home because she was concerned he intended to rob Gutierrez, but she agreed to drive him because she was afraid of him. Rios, Gallardo, and Ramirez got into the van. During the drive, Rios continued to question Paola about Gutierrez and his companion, asking “[i]f they were gangsters, if they had money, what they were driving,” as well as whether they were armed. Rios was upset the men from Long Beach were “in [his] city,” meaning in Hawaiian Gardens. Rios said “they were going to come up sick status,” meaning Rios was “going to try to get whatever they had.” Gallardo and Ramirez did not ask any questions. It appeared to Paola that Rios was the leader of the three men.
Gallardo suggested that they “punk” or intimidate Gutierrez. Rios wanted to go further than “punking” the victims, which to Gallardo meant probably using a weapon. Gallardo believed he, Rios, and Ramirez were going to Clarkdale Avenue to carjack Gutierrez and the companion.
The Figueroa sisters, Rios, Gallardo, and Ramirez then went to the sisters’ home. After Lizbeth and Paola went inside the house, the three men stayed outside, then about an hour later Gallardo knocked on the door and asked for some tacos. Paola gave the men tacos, then drove them back to Rios‘s house. She dropped them off and returned home. Rios, Gallardo, and Ramirez later returned to the sisters’ house and again waited outside. According to Gallardo, they were looking for the Paisas. After some time, they started walking around the neighborhood.
Meanwhile, Gutierrez drove to his father‘s house in Compton. David Quesada, who worked for Gutierrez‘s father, had finished work at around 3:00 a.m., when he saw Gutierrez outside the house. Quesada asked Gutierrez to drive him home to Long Beach, so Quesada would not have to take the bus. Gutierrez agreed, but he asked Quesada to accompany him first to Hawaiian Gardens, where Gutierrez was going to pick up
Rios, Gallardo, and Ramirez saw Gutierrez‘s car mаke a U-turn on Clarkdale Avenue and come to a stop on the street. Gallardo thought the occupants of the car looked like Paisas. Rios, who was wearing the hockey mask, approached the driver‘s side of Gutierrez‘s car and asked Gutierrez for a cigarette. Gutierrez said he did not have one. Rios whistled, and Gallardo and Ramirez, whose faces were covered, ran to the passenger‘s side of the car from behind a nearby van, which belonged to the Figueroa sisters’ cousin. Rios drew a gun and told Gutierrez to park the car and get out. He told Quesada in Spanish that nothing would happen to him if he got out of the car. Gallardo was closer to the vehicle than Ramirez, who was a couple of feet behind him. Quesada started to get out of the car. Rios was arguing with Gutierrez, who then began to drive away.5 Rios fired several shots at the car. One of the bullets struck Gutierrez, who lost control of the vehicle. The car hit the cousin‘s van, which was parked in front of the Figueroas’ house. Quesada was able to help Gutierrez drive to the nearby Bicycle Club casino, where a security guard called 911.
Immediately following the shooting, Gallardo asked Rios what he was doing. He told Rios he had made a mess of things
Lizbeth and Paola were awakened about 4:00 or 5:00 a.m. by the sound of gunshots and a loud crash. Paola heard her cousin tell her father that the cousin‘s van had been hit by gunshots.
Los Angeles County Sheriff‘s deputies and paramedics responded to the casino, and other Sheriff‘s deputies responded to Clarkdale Avenue. Gutierrez‘s car was at the casino, with Gutierrez slumped over the steering wheel. There were bullet holes in the hood and windshield of Gutierrez‘s car. The deputies who responded to Clarkdale Avenue observed collision damage to the cousin‘s van and found shell casings in the street. Gutierrez died from a gunshot wound to his torso.
About a week after the shooting, Lizbeth saw Rios on the street and told him that people were blaming her for the shooting. He asked for the names of the people and told her, “I am like your brother. Just let me know and what happened to them, I could do the same thing to whoever is bothering you.” He added, “[T]hat‘s what he gets for trying to get crazy and not get [out of] the car.”
2. Ramirez‘s interview with Sergeant Hall
Los Angeles County Sheriff‘s Sergeant Barry Hall interviewed 15-year-old Ramirez on September 22, 2005. Sergeant Hall advised Ramirez of his Miranda rights,6 and Ramirez waived his rights. Ramirez stated he was a member of
Ramirez acknowledged that on the night of the shooting he heard Rios asking questions about the victims, and he knew Rios was planning a carjacking. He heard Rios say he wanted to “jack these fools,” but Rios did not say anything about shooting them. Ramirez wanted to tell Gutierrez to leave the Figueroa sisters alone and depart from the neighborhood. Ramirez did not want to assist Rios in the carjacking, but he felt he had to or Rios would “tell the whole hood,” and Ramirez would be killed. Ramirez explained he did not want a gun to be used and did not want to be involved in a “big stupid thing,” but Rios insisted.
Ramirez acknowledged that he, Rios, and Gallardo were present during the attempted carjacking. Rios was the one who asked the victims for a cigarette. When Ramirez saw Rios draw a gun, he did not want to be involved in the carjacking. Then Rios “[went] crazy” and told the victims to “[g]et the fuck out [of] the car” or Rios would blast [them].” It was Rios who shot the gun and killed the victim. Ramirez told Detective Hall, “I ain‘t down for that. . . I ain‘t gonna shoot. It‘s just me and my two fists. You know, get down.” He first claimed that he did not know Rios had a gun until Rios drew it during the attempted carjacking. Ramirez then admitted that he saw Rios with a gun when they were at the Figueroa sisters’ home prior to the attempted carjacking, and he knew Rios carried a gun with him.
After Rios opened fire, Ramirez “took off.” Ramirez explained, “I heard a crash, but I didn‘t know what the fuck was going on. I was gone.” Rios “took off” by himself.
3. Gang evidence
Los Angeles County Sheriff‘s Detective Brandt House testified as a gang expert with experience investigating the Hawaiian Gardens and other gangs. Detective House explained that gang members are territorial and are sensitive to being disrespected. They gain respect through intimidation. They perceive people coming into their territory as a threat “unless identified otherwise.”
Gang members consider Mexican nationals (Paisas) to be inferior and easy targets for crime because thеy are unlikely to report crimes against gang members. Gang members intimidate people in the gang‘s territory so no one will report crimes committed by the gang members, and it is very rare that people living in gang territory will report gang crimes.
Detective House explained the Hawaiian Gardens gang has existed since the 1950s and has about 1,000 members. The gang‘s primary activities include assaults, carjackings, vehicle theft, and robberies. He opined Ramirez, Gallardo, and Rios were members of the gang, and Ramirez was a member of the Loquitos clique. Ramirez had gang tattoos, and his uncle was a high-ranking member of the gang, which may have protected Ramirez from gang retribution.
When given a hypothetical mirroring the facts of this case, Detective House opined the crime was committed for the benefit of, at the direction of, and in association with the gang. He explained the gang was “asserting [its] dominance over that neighborhood, over that turf area. They are setting an example for individuals who come from outside of the neighborhood who may want to operate in their turf area without their permission. They are setting an example for what‘s going to happen to those people if they do that.” In addition, Rios and Ramirez would advance the gang‘s status and their own status in the gang through commission of the crimes.
The defense called Sergeant Hall as a witness. Ramirez and Gallardo were both from the same clique of the Hawaiian Gardens gang while Rios was in a different clique. Ramirez knew Gallardo better than he knew Rios.
Sergeant Hall noted that at first, Ramirez claimed he did not do or say anything. Ramirez later admitted he approached the car, put his hand on the car, and told the passenger to get out. Ramirez maintained he did not plan the crime and did not want to approach the car, but Rios insisted. Ramirez did not want to hurt anyone.
B. The Jury Verdict and Sentencing
The jury convicted Ramirez of first degree murder (
The trial court sentenced Ramirez to consecutive sentences of 25 years to life for murder and 15 years to life for shooting at an occupied vehicle, and it imposed two terms of 25 years to life for the firearm enhancements on the two counts. The court stayed imposition of sentence on the remaining counts and enhancements.
C. Ramirez‘s Appeal
In 2011 we affirmed Ramirez‘s conviction and sentence. We rejected Ramirez‘s contention substantial evidence did not support his conviction of shooting at an occupied vehicle as a natural and probable consequence of aiding and abetting the attempted carjacking. We reasoned, “Ramirez‘s own statement confirms that he knew Rios had a gun and was planning a carjacking. He also stated that he did not want Rios to use a gun in the commission of the carjacking. It is reasonably inferable from this statement that he was subjectively aware that Rios‘s gun use might escalate from brandishing the gun to firing the gun if the victims resisted. Moreover, a reasonable person in Ramirez‘s position would have foreseen that victims in a car would attempt to drive away rather than be carjacked, and Rios would shoot at the car to stop them. [Citation.] [¶] There thus is substantial evidence from which a reasonable trier of fact could conclude that shooting at an occupied motor vehicle was a natural and probable consequence of the attempted carjacking. Ramirez‘s conviction of that charge as an aider and abettor must be affirmed.” (Rios, supra, B218445.)
D. The Petition for Resentencing, Evidentiary Hearing, and Ruling
On February 14, 2019 Ramirez filed a form petition for resentencing seeking to vacate his murder conviction and be resentenced in accordance with recent statutory changes relating to accomplice liability for murder. In his petition, Ramirez declared he “was convicted of 1st or 2nd degree murder pursuant to the felony murder rule or the natural and probable consequences doctrine” and he “could not now be convicted of 1st or 2nd degree murder because of changes made to
The trial court ordered the People to file a response to the petition and appointed counsel to represent Ramirez. Ramirez later retained private counsel. On October 3, 2019 the trial court issued an order to show cause and set an evidentiary hearing.
On January 17, 2020 Ramirez filed a motion for a transfer to juvenile court pursuant to Proposition 57 and for a hearing under People v. Franklin (2016) 63 Cal.4th 261 to allow him a sufficient opportunity to make a record of information relevant to a future youth offender parole hearing under
At the April 28, 2020 hearing, the parties did not present any additional evidence, instead stipulating the trial court could consider the court file, including minute orders, charging documents, transcripts, and the appellate opinion. The trial court found “the Peoplе have proved beyond a reasonable doubt that the defendant is ineligible for resentencing.” The court found Ramirez was a major participant in the attempted carjacking and acted with reckless indifference to human life. The court observed with respect to whether Ramirez was a major participant, “[Ramirez] was present at the scene of the crime and had a major role in the commission of the underlying felony.” As to reckless indifference, the court reasoned Ramirez and “his two companions were members of a criminal street gang,” which gave them “a pecuniary motive” and “a territorial motive.” Relying on Ramirez‘s knowledge Rios had a gun, his gang membership, and his statements to Sergeant Hall, the court “infer[red] a degree of knowledge and a willingness to commit violence.”
With respect to Ramirez‘s argument under Proposition 57, the trial court stated, “[I]t appears to be clear that [Ramirez] is precluded from seeking relief because this case has long since been final on appeal and that simply requesting a Franklin hearing is not enough to take him outside the general rule that the statute which benefits the defendant applies to all defendants whose cases are not final on appeal.”
Ramirez timely appealed.
A. The Trial Court Erred in Denying Ramirez‘s Petition for Resentencing
1. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 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); People v. Gentile (2020) 10 Cal.5th 830, 842-843, 847-848 (Gentile).) New
Senate Bill 1437 also provides a procedure in new
If the petitioner makes a prima facie showing under
“We review the trial court‘s fact finding for substantial evidence.” (People v. Bascomb (2020) 55 Cal.App.5th 1077, 1087 (Bascomb); accord, People v. Clements, supra, 60 Cal.App.5th at p. 618, review granted.) “We ‘must review “the whole record in the light most favorable to the judgment” and decide “whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.“‘” (Bascomb, at p. 1087 [reviewing for substantial evidence trial court‘s factual finding that petitioner was not eligible for
2. The reckless indifference standard under Banks, Clark, and Scoggins
Senate Bill 1437 amended
In Banks, Clark, and Scoggins, the Supreme Court clarified the scope of
As the Scoggins court explained, “Reckless indifference to human life is ‘implicit in knowingly engaging in criminal activities known to carry a grave risk of death.‘” (Scoggins, supra, 9 Cal.5th at p. 676; accord, Banks, supra, 61 Cal.4th at p. 808 [“[a]wareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient“; reckless indifference to human life requires “knowingly creating a ‘grave risk of death‘“].) “Reckless indifference ‘encompasses a willingness to kill (or to assist another in killing) to achieve a distinct aim, even if the defendant does not specifically desire that death as the outcome of his actions.‘” (Scoggins, at pp. 676-677, quoting Clark, supra, 63 Cal.4th at p. 617.)
“The crux of that inquiry is ‘[t]he degree of risk to human life,’ and only evidence suggesting an ‘elevated . . . risk beyond those risks inherent in any armed robbery’ is sufficient to establish reckless indifference to human life.” (In re Moore (2021) 68 Cal.App.5th 434, 449 (Moore), quoting Scoggins, supra, 9 Cal.5th at p. 682.) The use of a gun in the commission of the underlying felony standing alone is not sufficient to support a finding of reckless indifference. (See Clark, supra, 63 Cal.4th at p. 617 [observing as to rоbbery, “while the fact that a robbery involves a gun is a factor beyond the bare statutory requirements for first degree robbery felony murder, this mere fact, on its own and with nothing more presented, is not sufficient to support a finding of reckless indifference to human life for the felony-murder aider and abettor special circumstance“].) Participation “in a garden-variety armed robbery” where “death might be possible but not probable” is insufficient. (Banks, supra,
In addition, “a defendant‘s youth is a relevant factor in determining whether the defendant acted with reckless indifference to human life.” (Moore, supra, 68 Cal.App.5th at p. 454; accord, People v. Harris (2021) 60 Cal.App.5th 939, 960, review granted Apr. 28, 2021, S267802.) This is because “[c]hildren ‘generally are less mature and responsible than adults’ and ‘often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them’ . . . .” (Moore, at p. 453 [vacating robbery-murder special-circumstance finding, explaining that even if the Clark factors supported a finding of reckless indifference for an adult, the 16-year-old petitioner “lacked ‘the experience, perspective, and judgment’ to adequately appreciate the risk of death posed by his criminal activities“]; accord, Harris, at p. 960 [reversing summary denial of
Considering the totality of the circumstances in the light most favorable to the judgment (Bascomb, supra, 55 Cal.App.5th at p. 1087), substantial evidence does not support the superior court‘s finding Ramirez acted with the requisite mental state of reckless indifference to human life. There is no evidence Ramirez was armed during the felony or supplied the sole murder weapon. Rather, it was Rios who instigated and planned the carjacking, provided the gun, and fired it. Although Ramirez was aware Rios had a gun and intended to use it during the carjacking, that is not sufficient to prove the requisite mental state. (Clark, supra, 63 Cal.4th at pp. 613, 618 [“The mere fact of a defendant‘s awareness that a gun will be used in the felony is not sufficient to establish reсkless indifference to human life.“]; Banks, supra, 61 Cal.4th at p. 809 [aiders and abettors with simple awareness that confederates were armed and the armed felony carried a risk of death “lack the requisite reckless indifference to human life“]; Moore, supra, 68 Cal.App.5th at p. 452 [“Although [petitioner] was aware that [the shooter] had a gun, [petitioner] did not use a gun himself, and there was no evidence he supplied the gun to [shooter].“].)
Nor did Ramirez instruct Rios to use lethal force. (See Clark, supra, 63 Cal.4th at p. 619 [although defendant planned armed robbery, substantial evidence did not support finding he acted with reckless indifference to human life where he did not provide the murder weapon, instruct his confederates to use lethal force, or know of confederate‘s likelihood to kill]; People v. Williams (2015) 61 Cal.4th 1244, 1282 [defendant acted with
Ramirez told Sergeant Hall he did not want to participate in the carjacking, but Ramirez feared being killed by the gang if he failed to participate. As Detective House confirmed, a gang member who fails to support his fellow gang members would be subject to a violent reprisal by the gang, ranging from a beating to murder. According to Ramirez, he was not planning to steal from the victims, instead just to direct them not to return to the neighborhood. But Rios insisted on a carjacking, then escalated the plan by getting his firearm. It is true Ramirez did not take any steps to reduce the risk of violence, but given his reluctance to participate in the carjacking, the evidence does not show he acted with a mental state “encompass[ing] a willingness to kill (or to assist another in killing) to achieve a distinct aim” (the carjacking). (Scoggins, supra, 9 Cal.5th at pp. 676-677, quoting Clark, supra, 63 Cal.4th at p. 617.)
Ramirez‘s presence at the scene of the shooting bears on his culpability. (Clark, supra, 63 Cal.4th at p. 619.) Although
Likewise, the rapid pace of the crime does not support a finding of reckless indifference. (Clark, supra, 63 Cal.4th at pp. 620-621; Moore, supra, 68 Cal.App.5th at p. 452.) The attempted carjacking was executed quickly, providing Ramirez no realistic opportunity to intervene before Rios opened fire. As discussed, Rios approached the vehicle on the driver‘s side and asked for a cigarette, then drew his gun and ordered the occupants to exit the car. Gallardo and Ramirez approached on the passenger side, and one of them told Quesada to exit. Quesada opened the door to comply, but Gutierrez accelerated, in response to which Rios opened fire. This brief interaction is in contrast to other cases in which “a murder came at the end of a
Ramirez‘s actions after the shooting also do not support a finding of reckless indifference. Gutierrez‘s car initially crashed into a parked van, then Gutierrez drove several blocks to call for help. Ramirez fled with Gallardo and did not impede Gutierrez‘s escape. There is no evidence Ramirez had an opportunity to help Gutierrez after Rios shot at the car or that Ramirez knew Gutierrez had been wounded by the gunfire. (See In re Taylor (2019) 34 Cal.App.5th 543, 559 [defendant‘s failure to assist victim was not sufficient evidence of reckless indifference where “there is no evidence that [defendant] appreciated how badly [victim] was wounded“]; In re Bennett (2018) 26 Cal.App.5th 1002, 1026 [petitioner‘s flight “[did] not support an inference [he] necessarily understood a killing had occurred“].) And Ramirez did not celebrate the shooting, instead fleeing with Gallardo, who told Rios he had made a mess of things and was “on [his] own.” (See Moore, supra, 68 Cal.App.5th at p. 453 [juvenile petitiоner‘s failure to aid victim and laughter with his confederates soon after the shooting was insufficient evidence of petitioner‘s mental state of reckless indifference].)
The trial court based its finding of reckless indifference on the membership of Ramirez, Rios, and Gallardo in the Varrio Hawaiian Gardens criminal street gang, which the court found gave Ramirez both “a pecuniary motive” and “a territorial motive” to kill. But Banks cautions against relying too heavily on gang membership where there is no evidence the defendant or his confederates “had ever participated in shootings, murder, or attempted murder, or even that any member of their clique had.” (Banks, supra, 61 Cal.4th at pp. 810-811 [no substantial evidence
Detective House testified the Varrio Hawaiian Gardens street gang “is involved in all manner of crimes,” listing the gang‘s crimes he investigated as aggravated assaults, robberies, carjackings, kidnappings, and theft of vehicles. He testified gang members gain respect through intimidation, in part by the commission of crimes. Thus, the gang‘s “territorial motive” included a willingness to commit violent crimes with the goal of intimating outsiders and the community and furthering the gang‘s reputation. But there is no evidence Ramirez sought to enhance his reputation in the gang by escalating the attempted carjacking through the use of lethal force. Ramirez told Detective Hall that “being a gang member is not about killing fools,” although the gang would kill under certain circumstances.
Significantly, Ramirez‘s youth at the time of the shooting greatly diminishes any inference he acted with reckless disregard
The People fail to respond to the argument Ramirez‘s youth should be taken into account in evaluating whether he possessed the requisite culpable mental state. As we observed in Ramirez‘s direct appeal, “there was evidence to support a finding that Ramirez was influenced by peer pressure. He told Sergeant Hall that he did not want to approach the car, but Rios insisted. He was afraid that if he did not help Rios, the neighborhood would find out and someone might kill him later.” (Rios, supra, B218445.) Although “Ramirez knew there was going to be a carjacking and that Rios was going to use a gun” (ibid.), Ramirez‘s age may well have affected his calculation of the risk of
The People argue our decision in Ramirez‘s direct appeal supports the trial court‘s conclusion Ramirez acted with the requisite culpable mental state, pointing to our observation that “[i]t is reasonably inferable from [Ramirez‘s] statement [to Detective Hall] that he was subjectively aware that Rios‘s gun use might escalate from brandishing the gun to firing the gun if the victims resisted. Moreover, a reasonable person in Ramirez‘s position would have foreseen that victims in a car would attempt to drive away rather than be carjacked, and Rios would shoot at the car to stop them.” (Rios, supra, B218445.) We made these statements in the context of our affirmance of Ramirez‘s conviction of shooting at an occupied motor vehicle, explaining there was “substantial evidence from which a reasonable trier of fact could conclude that shooting at an occupied motor vehicle was a natural and probable consequence of the attempted carjacking.” (Ibid.) We reasoned, “It is reasonably inferable that an armed confederate engaged in the commission of a robbery will use his weapon during the course of the robbery, to overcome the victim‘s resistance, to effect an escape, or even accidentally.” (Ibid.)
Our conclusion on direct appeal—that there was sufficient evidence Ramirez was guilty of the crime of shooting at an occupied vehicle as a natural and probable consequence of aiding and abetting the attempted armed carjacking—does not mean
Further, in Rios, we did not evaluate the sufficiency of the evidence to prove Ramirez‘s conscious disregard for the significant risk of death created by his actions. And although we concluded there was evidence of Ramirez‘s awareness of the foreseeable risk Rios would fire shots at Gutierrez‘s vehicle, “‘[a]wareness of no more than the foreseeable risk of death inherent in any [violent felony] is insufficient’ to establish reckless indifference to human life; ‘only knowingly creating a “grave risk of death” satisfies the statutory requirement.‘” (Scoggins, supra, 9 Cal.5th at p. 677.)
B. Ramirez Is Entitled to the Benefit of Proposition 57 on Remand
Ramirez contends that on remand he should be resentenced by a juvenile court pursuant to Proposition 57 and Senate Bill 1391. We agree and direct the trial court on remand to transfer the matter to the juvenile court for resentencing.
1. Proposition 57 and Senate Bill 1391
“Proposition 57, passed in the November 2016 general election . . . , requires prosecutors to commence all cases involving a minor in juvenile court.” (O.G. v. Superior Court of Ventura County (2021) 11 Cal.5th 82, 87 (O.G.); accord, People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305-306 (Lara) [“Among other provisions, Proposition 57 amended the Welfare and Institutions Code so as to eliminate direct filing by prosecutors.“]; J.N. v. Superior Court (2018) 23 Cal.App.5th 706, 711 [“Proposition 57 terminated the prosecutor‘s ability to file a criminal complaint against a juvenile in the criminal court without first obtaining authority from a juvenile court judge to treat the juvenile as an adult.“].)
“As originally enacted, Proposition 57 allowed prosecutors to move to transfer some minors as young as 14 from juvenile court to adult criminal court. [Senate Bill 1391], enacted in 2018, amended Proposition 57 to prohibit minors under the age of 16 from being transferred to adult criminal court. (See
2. Retroactivity of Proposition 57 and Senate Bill 1391
“In order to determine if a law is meant to apply retroactively, the role of a court is to determine the intent of the Legislature, or in the case of a ballot measure, the intent of the electorate.” (Lara, supra, 4 Cal.5th at p. 307; accord, People v. Conley (2016) 63 Cal.4th 646, 656.) In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the Supreme Court held that statutory amendments that mitigate punishment for an offense apply retroactively to a petitioner who at the time of enactment had committed the offense but had not yet been sentenced. (Id. at pp. 742-743, 748.) The court reasoned, “When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final.” (Id. at p. 745.) Thus, under Estrada, “in the absence of
Applying this rule in Lara, the Supreme Court concluded Proposition 57 constituted an ameliorative change to the criminal law, which the voters intended “to extend as broadly as possible.” (Lara, supra, 4 Cal.5th at p. 309.) Accordingly, Proposition 57 applies retroactively to “all juveniles charged directly in adult court whose judgment was not final at the time it was enacted.” (Lara, at p. 304.) The Lara court remanded for a retroactive transfer hearing for the juvenile court to determine whether the defendant would have been fit for treatment under juvenile law, and if so, for the juvenile court to treat the convictions as juvenile adjudications and impose an appropriate disposition. (Id. at pp. 310, 313.)
Senate Bill 1391, in turn, “effectively broadens the ameliorative benefit of Proposition 57 to 14 and 15 year olds by prohibiting prosecuting attorneys from moving to transfer individuals who commit certain offenses when they were 14 or 15 years old to adult court, unless they were ‘not apprehended prior to the end of juvenile court jurisdiction.’ . . . Accordingly, Senate Bill No. 1391 applies retroactively to defendants whose judgments are not yet final.” (People v. Hwang (2021) 60 Cal.App.5th 358, 365, review granted Apr. 14, 2021, S267274
3. Determination of whether Proposition 57 and Senate Bill 1391 apply retroactively to Ramirez‘s resentencing is ripe for review
Courts may only decide cases that are ripe, and therefore justiciable. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 998 [“[T]he ripeness requirement prevents courts from issuing purely advisory opinions, or considering a hypothetical state of facts in order to give general guidance rather than to resolve a specific legal dispute.“]; Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 [“The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions.“].) “A controversy is ‘ripe’ when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” (Alliance for Responsible Planning v. Taylor (2021) 63 Cal.App.5th 1072, 1082; see People v. Garcia (2018) 30 Cal.App.5th 316, 328-329 [defendant‘s contention exclusion of certain offenders from youth offender parole hearings under
The People contend Ramirez‘s request for resentencing by the juvenile court under Proposition 57 and Senate Bill 1391 is
4. Proposition 57 and Senate Bill 1391 apply retroactively to Ramirez‘s resentencing
As discussed, both Proposition 57 and Senate Bill 1391 apply to judgments that were not final at the time of their enactment. (Lara, supra, 4 Cal.5th at p. 304; Hwang, supra, 60 Cal.App.5th at p. 365, review granted.) Ramirez‘s judgment became final in 2012 (before enactment of Proposition 57 and Senate Bill 1391), when the United States Supreme Court denied
Almost all Courts of Appeal that have considered whether Proposition 57 applies retroactively when a criminal court resentences a defendant as to all or part of a previously final sentence imposed on a defendant who was a juvenile at the time of his or her offense have required the criminal court to transfer the case tо the juvenile court for a juvenile transfer hearing or a juvenile adjudication. (See Hwang, supra, 60 Cal.App.5th at pp. 366-367, review granted [transfer to juvenile court for juvenile adjudication and disposition required by Senate Bill 1391 upon recall of sentence under
Although Division Two of the Fourth Appellate District concluded in People v. Federico, supra, 50 Cal.App.5th at pages 327 to 328, review granted, that Proposition 57 did not apply retroactively upon resentencing from a previously final sentence, a different panel of the same court in People v. Montes (2021) 70 Cal.App.5th 35 retracted the court‘s “previous position in Federico . . . based on the analyses in Padilla, Lopez, and Hwang, which we find persuasive” and held transfer to the juvenile court was required on resentencing following a recall of sentence under
The Courts of Appeal in Padilla, supra, 50 Cal.App.5th at pages 252 to 253, review granted, and Lopez, supra, 56 Cal.App.5th at pages 842 to 843, review granted, in concluding the defendants were entitled to a transfer hearing because their sentences were no longer final, relied on the Supreme Court‘s decision in People v. Jackson (1967) 67 Cal.2d 96 (Jackson). We agree the Supreme Court‘s decision in Jackson supports a finding Ramirez‘s sentence, like those at issue in Padilla and Lopez, is no longer final. In Jackson, the Supreme Court had granted a petition for writ of habeas corpus, reversed the defendant‘s death sentence, and remanded for a retrial of the penalty phase, after which the defendant was again sentenced to death. (Id. at p. 97.) In his direct appeal from his penalty retrial he sought to raise
The Padilla court reasoned, ”Jackson therefore established that a collateral proceeding may reopen the finality of a sentence for retroactivity purposes, even while the сonviction remains final.” (Padilla, supra, 50 Cal.App.5th at p. 253, review granted.) The court observed Proposition 57 “affects [the defendant‘s] sentencing, independent of its potential effect on his convictions,” because “a juvenile disposition is far more advantageous to the defendant than a criminal sentence for the same offense: indeed, ‘adult criminal sentencing is the biggest disadvantage to being tried in adult court . . . .‘” (Padilla, at p. 254.) “Because Proposition 57‘s primary ameliorative effect is on a juvenile offender‘s sentence, independent of the convictions, we conclude it applies retroactively to appellant‘s nonfinal sentence and requires that he receive a transfer hearing.” (Id. at p. 255.) The court considered and rejected the People‘s argument “it is unlikely the voters intended the provisions of Proposition 57 to apply to those, like appellant, far removed from their teenage
Similar to Padilla, the Court of Appeal in Lopez concluded Proposition 57 applied retroactively to the defendant‘s resentencing under
Although Padilla and Lopez involved resentencing after a successful petition for a writ of habeas corpus and after recall under
We reject the People‘s argument that Estrada‘s presumption of retroactivity should not be extended “to reopened judgments” because it would result in an “uneven, and sometimes arbitrary, application of new ameliorative laws.” The Supreme Court recently rejected a similar argument made by the People in objecting to a defendant receiving the benefit of an ameliorative statute after pleading guilty and being placed on probation, then appealing after his probation was revoked and a prison sentence imposed. (See People v. McKenzie (2020) 9 Cal.5th 40, 49.) The McKenzie court held the defendant‘s criminal proceeding was not final under Estrada at the time the new statute took effect because the time for petitioning for a writ of certiorari in the United States Supreme Court following the defendant‘s appeal of the prison sentence had not passed. (McKenzie, at p. 45.) The McKenzie court rejected the People‘s argument that defendants who do not appeal their convictions and then successfully complete probation are worse off than probationers who violate their probation and have their probation revoked, explaining “[t]hese policy arguments did not persuade us in Estrada not to apply ameliorative revisions to defendаnts who have already committed criminal acts if the revisions take effect before their ‘cases’ are ‘reduced to final judgment.‘” (McKenzie, at p. 49.)
As the Lopez court observed as to the People‘s argument that defendants resentenced under
Finally, retroactive application of Proposition 57 and Senate Bill 1391 to Ramirez‘s resentencing is consistent with the full resentencing rule, under which “when part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.‘” (People v. Buycks (2018) 5 Cal.5th 857, 893-894 [dеfendant whose conviction became final just over a week before Proposition 47 took effect was entitled on remand to a full resentencing, including treatment of his petty theft with a prior conviction as a misdemeanor under Proposition 47]; accord, People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [full resentencing rule “allows a court to revisit all prior sentencing decisions when resentencing a defendant“].) The Courts of Appeal in Lopez and Montes applied the full resentencing rule to require a juvenile transfer hearing under Proposition 57 of otherwise final judgments as to sentences
Because Ramirez was 15 at the time of the offenses, pursuant to the changes made by Senate Bill 1391 to
The order denying Ramirez‘s petition for resentencing under
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.