People v. Ramirez

Citation286 Cal.Rptr.3d 771,71 Cal.App.5th 970
Decision Date23 November 2021
Docket NumberB306088
Parties The PEOPLE, Plaintiff and Respondent, v. Omar Rigo RAMIREZ, Defendant and Appellant.
CourtCalifornia Court of Appeals

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.

FEUER, J.

Omar Rigo Ramirez appeals from a postjudgment order denying his petition for resentencing under Penal Code section 1170.951 as to his conviction of first degree murder under a theory of felony murder based on his participation in an attempted carjacking. After an evidentiary hearing, the trial court concluded Ramirez was not eligible for resentencing because he was a major participant in the underlying felony and acted with reckless indifference to human life, within the meaning of section 189, subdivision (e)(3). Ramirez contends substantial evidence does not support the trial court's findings. We agree and reverse.

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 aware 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 ( Cal. Const., art. I, § 32 ) and Senate Bill No. 1391 (2017-2018 Reg. Sess.) (Senate Bill 1391). We agree Proposition 57 and Senate Bill 1391 apply to Ramirez's resentencing under section 1170.95 and direct the trial court to transfer the matter to the juvenile court, which shall treat Ramirez's remaining convictions as juvenile adjudications and impose an appropriate disposition.

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), 1985 WL 52995 [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 Paola 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 street gang, and the Juan Street house was a regular hangout for members of the gang. Lizbeth called Gallardo over to the van. Paola asked Gallardo if he knew anyone who wanted to buy speakers.

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 jacking 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.

When they arrived at Rios's house, Lizbeth heard Rios say something about a gun. Gallardo responded, "Why a gun if they were just Paisas? There is no gun needed." Rios asked, "Well, why not?" Rios went into his home for about five to 15 minutes, then returned to the van. He had [a] sweater[ ], a white hockey mask, and a "Mexican flag bandanna." Rios kept the mask, gave the sweater to Gallardo, and handed the bandanna to Ramirez. Lizbeth heard Paola tell Rios what kind of car Gutierrez was driving. Rios said he was going to look for the car.

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 home. 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 money for a completed job. Gutierrez and Quesada4 then drove to the Figueroa sisters’ house.

Rios, Gallardo, and Ramirez saw Gutierrez's car make 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 and added, "[Y]ou're on your own." Gallardo and Ramirez ran in one direction, and Rios ran in another.

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 the Hawaiian Gardens gang and had been in the gang for about a year.7

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...

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