Petition for Writ of Certiorari — Narciso Ramirez, Petitioner v. California

Court of Appeal, Second Appellate District, Division Three No. B271540

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S246123

IN THE SUPREME COURT OF CALIFORNIA

SUPREME COURT

FILED

En Banc

IEt3 21.2018

THE PEOPLE, Plaintiff and Respondent,

Jorge Navarrete Cler

V.

Deputy

NARCISO RAMIREZ, Defendant and Appellant.

The petition for review is denied.

CANTI L-SAKAUYE

Chief Justice

Filed 11/21/17 P. v. Ramirez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

and parties from citing or relying on

California Rules of Court, rule 8.1115(a), prohibits courts

except as specified by rule

ed,

publish

opinions not certified for publication or ordered

or ordered published for

tion

publica

for

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certifie

been

not

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORN

SECOND APPELLATE DISTRICT

DIVISION THREE

B271540

THE PEOPLE,

(Los Angeles County

Super. Ct. No. TA137658)

Plaintiff and Respondent,

V.

NARCISO RAMIREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Allen Joseph Webster, Jr., Judge. Affirmed.

Carlos Ramirez, under appointment by the Court of Appeal,

for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief

Assistant Attorney General, Lance E. Winters, Assistant

Attorney General, Michael C: Keller, Deputy Attorney General,

for Plaintiff and Respondent.

Defendant and appellant Narciso Ramirez raises an

evidentiary issue following his conviction of attempted voluntary

manslaughter with firearm use and great bodily injury findings.

For the reasons discussed below, the judgment is affirmed.

35

BACKGROUND

Viewed in accordance with the usual rules of appellate

review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the

evidence established the following.

1. Prosecution evidence.

a. Sugey Archuleta

Sugey Archuleta and defendant have two children together.

Archuleta had been living with defendant and his family,

including defendant's father, Narciso Ramirez Sr. (Ramirez Sr.),

-

for about five years.

Archuleta testified that defendant used drugs and,

beginning in May or June of 2015, became increasingly

distrustful of Archuleta. He came to believe she was cheating on

him with both his father and some of their neighbors. Defendant

even believed Archuleta had conceived his youngest son with

Ramirez Sr.

On July 5, 2015, defendant took Archuleta and the children

to a hotel to celebrate the Fourth of July holiday. Defendant,

who was using crystal methamphetamine, became paranoid,

searched through Archuleta's cell phone, and accused her of

cheating on him. Defendant also believed he was being followed

or that Archuleta was going to do something to him.

While having dinner at a restaurant the next night, July 6,

defendant asked Archuleta if she had been involved with his

father. After Archuleta denied that anything had happened

between them, defendant got up, made a telephone call, and then

told Archuleta they were leaving. Defendant smoked some

crystal methamphetamine and said he was going to confront his

father about having an affair with Archuleta.

Defendant drove the family away from the restaurant, then

parked and told Archuleta to get out of the car. Defendant and

Archuleta walked to a nearby intersection where they saw

Ramirez Sr. walking toward them, talking on a cell phone.

Ramirez Sr. turned the phone off and defendant greeted him.

Defendant said, "'I just want to ask you something.'" Defendant

36

.

•asked Ramirez Sr. if he was having an affair with Archuleta

Defendant then took a gun from his waistband and shot his

uleta

father several times in the chest from a few feet away. Arch

testified she had seen defendant's gun before, but not that day.

After being shot, Ramirez Sr. said, "'hijo (son), hijo.'"

Archuleta testified that right after shooting Ramirez Sr.,

defendant drove off with her and, the children. Defendant said

."

"he didn't have a soul anymore because of what he [had] done

The family did not return to the hotel where they had been

was

staying, but drove north on Highway 5. Defendant said he

dant

"just bad" for Archuleta. After driving for three hours, defen

more

stopped at a new motel. Archuleta believed defendant took

dant

drugs in the motel bathroom. The following morning, defen

told Archuleta to take the car and drive back to Los Angeles.

a

Archuleta and the children got into the car, but Archuleta "had

dant

feeling," so she returned to the motel room and begged defen

car,

not to kill himself. Defendant said, "okay," got back in the

and continued driving. At some point, the family stopped in

Tehachapi, where defendant was arrested.

b. Narciso Ramirez Sr.

Ramirez Sr. testified that in the month before the shooting,

defendant had on several occasions accused him of having an

was

affair with Archuleta. Ramirez Sr. testified the accusation

a

untrue. On July 6, 2015, Ramirez Sr. was having dinner with

friend when he received a call from defendant, who said he

ed to

needed to see him. Ramirez Sr. left the restaurant and walk

the meeting place. He described what happened as he

approached defendant and Archuleta at the designated

intersection:

"A. [Defendant] started to make allegations as to whether

or not I had been with his wife.

"Q. Did you answer him back?

"A. Yes. It made me angry because there had already been

several occasions where he was making those allegations.

"Q. What did you say?

37

"A. I told him I was already tired of him making the

allegation."

Defendant grabbed the cell phone out of Ramirez Sr.'s

hand. Defendant said his mother told him that Archuleta and

Ramirez Sr. had been together at a hotel a day earlier.

Defendant then pulled a gun from his waistband and shot

Ramirez Sr. in the upper right chest and under his arm. A third

bullet apparently missed Ramirez Sr. entirely. Ramirez Sr. fell

to the ground. When Ramirez Sr.'s friend arrived, Ramirez Sr.

"told him it was my son."

c. Detective Jason Bates

On July 8, 2015, Los Angeles County Sheriffs Department

Detectives Jason Bates and Antonio Garcia interviewed

defendant. Bates testified-that he asked whether defendant had

shot his father, and defendant admitted that he did. Defendant

said he did it because he believed Ramirez Sr. was involved in a

sexual relationship with Archuleta. Defendant said he asked his

father to meet him on the corner of Barlow and Martin Luther

King Boulevard. He asked to see his father's phone, and then

asked whether Ramirez Sr. had a relationship with Archuleta.

According to defendant, Ramirez Sr. "raised up his arms and

said, 'You're crazy. You're crazy.' His father took one step off the

sidewalk, [defendant] removed a black handgun from his

waistband, pointed it at his father and shot him one time. His

father fell to the ground. [Defendant] shot two additional shots

into the air."

Ramirez Sr. collapsed, and defendant said to Archuleta,

"'Let's go. Let's go. Run. Run.'" They ran back to their car and

drove north. Defendant said he had purchased the gun he used

to shoot his father "off the street" about a month earlier.

Defendant told Detective Bates that he "felt bad for what he did"

and "wanted to come clean."

Defendant told the officers that he and his father sold

drugs, and that his father was known to carry guns. Defendant

said he had not meant to kill his father, but only to hurt him.

Defense evidence.

t any evidence on

The defendant did not testify or presen

his behalf.

Trial outcome.

been charged with

The jury convicted defendant, who had

ed offense of attempted

attempted murder, of the lesser includ

found true firearm use

voluntary manslaughter. The jury also

allegations. The trial court

and great bodily injury enhancement

rs 6 months.

sentenced defendant to prison for 18 yea

DISCUSSION

judicially erred by

Defendant contends the trial court pre

irez Sr. with a prior

refusing to allow him to impeach Ram

weapon in a vehicle. For

conviction for possession of a concealed

affirm.

the reasons that follow, we disagree and

1. Proceedings below.

and began testifying,

Just after Ramirez Sr. took the stand

nse motion to impeach

the trial court heard argument on a defe

ion for possessing a

him with a 1999 misdemeanor convict

l court remarked on the

concealed weapon in a vehicle.4 The tria

ing, "That's 17 years ago,"

remoteness of the prior conviction, say

d as a crime of moral

and expressed doubt that it even qualifie

that the prior conviction

turpitude. The prosecutor pointed out

was a misdemeanor, not a felony.

ied the motion,

After further discussion, the court den

explaining its ruling as follows:

all, the conviction

"Well, it just seems to the court, first of

ant] was 10 [years old].

occurred in 1999, at which time [defend

really have a real issue

So then, it doesn't seem to me that we

a violation of

Ramirez Sr.'s 1999 conviction was for

division (a). "Effective

Penal Code former section 12025, sub

subdivision (a)(1) was

January 1, 2012, former section 12025,

, as section 25400,

recodified, without substantive change

ople v. Aguilar (2016)

subdivision (a)(1). [Citations.]" (Pe

245 Cal.App.4th 1010, 1012, fn. 1.)

with respect to violence, threats and intimidation by [a parent]

against [his child]. And it [is] a misdemeanor. And there [does

not] seem to be an issue with respect to any sort of self-defense,

nothing here that suggests that Mr. Ramirez Sr. was in

possession of any sort of weapon. He walked outside, talked to

his son, and then according to at least the evidence so far, he was

and

shot not once but three times. And he said hijo [son], hijo

that was about it.

"So there's nothing that would suggest that there was any

threats, danger or harm or self-defense or that Mr. Ramirez, Sr.,

had [a] proclivity to carry a weapon and would use it against his

.

.

.

son. So there is nothing.

"First of all, the law doesn't support this particular prior as

a[n] impeachable prior. And two, the evidence doesn't support

that there was anything out of the ordinary with respect to

Mr. Ramirez's behavior or body language that suggests any sort

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of aggressive behavior towards [defendant]."

2. Any error in excluding the prior conviction evidence was

harmless.

We assume solely for the sake of argument that Ramirez

Sr.'s prior misdemeanor conviction evidenced moral turpitude

and therefore bore on his credibility as a prosecution witness. We

further assume that the trial court therefore erred in excluding

evidence of the conviction. Nevertheless, as we now discuss, any

error was harmless.

Ramirez Sr. testified in relevant part that defendant

initiated the meeting with Ramirez Sr. and shot him three times

after asking if he was involved sexually with Archuleta. We

believe it unlikely that Ramirez Sr.'s 17-year-old misdemeanor

conviction for possession of a gun would have caused the jury to

doubt the truth of Ramirez Sr.'s testimony. But even if the jury

had completely disregarded Ramirez Sr.'s testimony, it is not

reasonably probable defendant would have obtained a more

favorable result because Ramirez Sr.'s testimony was

corroborated by other evidence, and there was no evidence to the

ified that defendant set

contrary. As relevant here, Archuleta test

irez Sr. if he was

up the meeting with Ramirez Sr., asked Ram

irez Sr., fled

having an affair with Archuleta, shot Ram

ed remorse for what

immediately after the shooting, and express

was of similar effect:

he had done. Detective Bates's testimony

oting Ramirez Sr.,

He testified that defendant admitted sho

and said he "felt bad

admitted fleeing the scene of the shooting,

n." Defendant did not

for what he did" and "wanted to come clea

behalf. Under these

testify or present any evidence on his own

no weight to Ramirez

circumstances, even if the jury had given

le that defendant

Sr.'s testimony, it is not reasonably probab

ple v. Collins (1986)

would have achieved a better result. (Cf. Peo

error determined by

42 Cal. 3d 378, 391, fn. omitted [prejudicial

result more favorable to

whether "it is reasonably probable that a

in the absence of the

the defendant would. have been reached

People v. Marquez

admission of the prior convictions"]; accord

admitting or excluding

(1986) 188 Cal.App.3d 363, 369 [error in

ed by the Watson5

evidence of witness's prior conviction is test

ably probable that a

test, i.e., appellant must show it is "reason

have resulted in the

result more favorable to appellant would

.

.

absence of' the error].)

t the trial court's

We also reject defendant's contention tha

r conviction "deprived

erroneous exclusion of Ramirez Sr.'s prio

his father's propensity

[defendant] of the opportunity to explore

[defendant's] theory

to carry concealed weapons and eviscerated

properly notes, there

of self-defense." As the Attorney General

ut Ramirez Sr.'s prior

was no evidence that defendant knew abo

have had no bearing on

conviction, and thus the conviction could

state of mind when he

the jury's findings regarding defendant's

(2002) 28 Cal.4th 703, 726

shot Ramirez Sr. (E.g., People v. Cash

"were not relevant to

[victim's violent debt collection practices

e he killed [the victim]

show defendant's state of mind at the tim

.

People v. Watson (1956) 46 Cal.2d 818

41

unless defendant knew of those practices"].) Moreover, there was

no evidence to support a finding that defendant believed,

reasonably or unreasonably, that Ramirez Sr. presented a

physical threat to him at the time of the shooting. To the

contrary, all of the evidence showed that defendant shot

Ramirez Sr. because he believed Ramirez Sr. had a sexual

relationship with Archuleta.

On this record, therefore, it is not reasonably probable that

defendant would have achieved a better result had the jury

learned that Ramirez Sr. had been convicted for possession of a

concealed weapon in a vehicle 17 years earlier.

3. Defendant is not entitled to remand pursuant to Senate

Bill 620

On October 11, 2017, the Governor signed Senate Bill 620.

As relevant here, Senate Bill 620 provides that effective January

1, 2018, section 12022.5, subdivision (c) is amended to permit the

trial court to strike a firearm enhancement, as follows: "The

court may, in the interest of justice pursuant to Section 1385 and

at the time of sentencing, strike or dismiss an enhancement

otherwise required to be imposed by this section. The authority

provided by this subdivision applies to any resentencing that may

occur pursuant to any other law."

In supplemental briefing, defendant urges that because his

case is not yet final, it must be remanded to the trial court for

resentencing under the amended section 12022.5, subdivision (c).

We do not agree. Even if the amended section applies

retroactively to this case—an issue we do not reach—remand

would not be appropriate because the sentencing court clearly

indicated that it "would not, in any event, have exercised its

discretion to strike the allegations." (People v. Gutierrez (1996)

48 Cal.App.4th 1894, 1896 [remand not required where trial

court's comments at sentencing and sentence itself show that "no

purpose" would be served by a remand].) In the present case,

after finding that the circumstances in aggravation outweighed

those in mitigation, the trial court selected (1) the upper term of

zl')

voluntary

for defendant's attempted

five years and six months

the upper term of 10 years

(2)

d

an

,

ion

ict

nv

co

ter

gh

manslau

e

a firearm. We agree with th

of

e

us

's

nt

da

fen

de

on

d

base

se the

the court's decision to impo

Attorney General that given

earm

bstantive charge and the fir

upper term on both the su

would

sonable probability that it

rea

no

is

ere

th

t,

en

em

nc

enha

y on

ent if given the opportunit

strike the firearm enhancem

be

tances, no purpose would

ms

cu

cir

e

th

er

]nd

"[u

,

us

remand. Th

onsideration." (Ibid.)

served in remanding for rec

DISPOSITION

The judgment is affirmed.

D IN THE OFFICIAL

NOT TO BE PUBLISHE

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

STONE, J.

the

perior Court, assigned by

Judge of the Los Angeles Su

California

article VI, section 6 of the

Chief Justice pursuant to

Constitution.

*

43

CONCLUSION

-

rari should be granted.

The petition for a writ of certio

Respectfully submitted,

\JLd

Date:

¶PAQez

I