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People v. Ramirez

May 25, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD MARIO RAMIREZ, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Brandlin, Judge. Affirmed in part; reversed in part with directions. (Los Angeles County Super. Ct. No. YA061038).

The opinion of the court was delivered by: Turner, P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

I. INTRODUCTION

Defendant, Richard Mario Ramirez, appeals after a jury convicted him of shooting at an occupied automobile (Pen. Code,*fn2 § 246) and found he personally discharged a firearm from an automobile, thereby killing the victim. (§§ 12022.53, subds. (b), (c), 12022.55.) The jury found as follows: defendant was guilty of discharging a firearm in violation of section 246; defendant discharged a firearm in violation of section 12022.53, subdivision (b) and (c); and defendant discharged a firearm from an automobile which caused the death of Mr. Rubinos within the meaning of section 12022.55. After a record correction motion was granted, defendant was sentenced to the following sentence: 5 years for discharging the firearm into the car; 25 years to life pursuant to section 12022.53, subdivision (d); plus 6 years pursuant to section 12022.55. The section 12022.53, subdivisions (b) and (c) enhancements were stricken but not the jury findings in that regard. Defendant argues the evidence was insufficient to support the section 246 conviction and the trial court could not impose the indeterminate section 12022.53, subdivision (d) term.

In the published portion of the opinion, we address defendant's contention the section 12022.55 enhancement must be reversed. Defendant argues that since the uncontradicted evidence demonstrates the victim was inside a car at the time of the shooting, the section 12022.55 enhancement must be reversed. Given the statutory language, we agree with defendant. Thus, the section 12022.55 enhancement must be reversed.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 1:30 p.m. on February 23, 2005, Hans Anderson Revolledo and Miguel Rubinos were in Carla Rivera's car. Mr. Revolledo and Ms. Rivera were being driven by Mr. Rubinos to a 7-Eleven store near 135th and Lemoli Avenue to purchase marijuana. Mr. Rubinos parked the car on the street near the 7-Eleven store and got out to buy the marijuana. Mr. Revolledo and Mr. Rubinos had purchased marijuana at the same place the previous day.

Mr. Revolledo remained in the car for a while speaking on a cellular phone. Mr. Revolledo saw Mr. Rubinos meet a thin man with shoulder length curly hair who was about five feet, six inches tall. The man wore white pants and a hooded sweatshirt. The man had large teeth when he smiled. At trial, Mr. Revolledo identified the co-defendant, Sean Johnson, who is not a party to this appeal, as looking like that individual. Mr. Rubinos and Mr. Johnson walked away from the 7-Eleven store. Mr. Revolledo followed them. Ms. Rivera started her car, drove in their direction, and parked on Lemoli Street. Mr. Rubinos and Mr. Johnson crossed the street and entered a laundry room. Mr. Revolledo followed them inside. Ms. Rivera also walked into the laundry room. Defendant, who was waiting inside, pulled out a chrome revolver as did Mr. Johnson. The men told Mr. Rubinos, Ms. Rivera and Mr. Revolledo, "Get on the floor and take out everything that you have." Mr. Rubinos and Mr. Revolledo complied. Mr. Revolledo removed his lighter, gum, cellular phone, and money from his pocket but not his wallet.

Thereafter, Mr. Johnson tapped Mr. Revolledo and said, "You're the first one to leave." Mr. Revolledo ran outside without his belongings. Mr. Rubinos and Ms. Rivera came out shortly thereafter. Mr. Rubinos began yelling toward the laundry room, "I'm going to call the police." Defendant pointed his gun at them and said: "Get out. Leave." Thereafter, Mr. Revolledo saw defendant get into the right front passenger seat of a car and Mr. Johnson got into the rear seat. The car then drove away. Mr. Rubinos got into the driver's seat of Ms. Rivera's car. Ms. Rivera sat in the front passenger seat. Mr. Revolledo got into the rear seat.

Nacole Winbush had also gone to the area of the 7-Eleven store at 135th and Lemoli Streets on February 23, 2005 to purchase marijuana. Ms. Winbush had previously bought marijuana there by driving up and purchasing it on approximately 15 occasions from defendant. Ms. Winbush had seen Mr. Johnson on at least five prior occasions at that location. On February 23, 2005, Ms. Winbush asked defendant if he had some pot. Mr. Johnson was standing nearby. Defendant responded affirmatively on the condition that she give them a ride. Ms. Winbush agreed. Mr. Johnson got into the backseat. Defendant got into the front passenger seat. Mr. Rubinos, who was upset and cursing, followed Ms. Winbush's car. While the chase ensued, Mr. Revolledo wrote down the license plate number of the car they followed, 4JJE691. Ms. Winbush later acknowledged that that was her license plate number.

Ms. Winbush drove down 135th Street. Mr. Johnson, said: "Oh, shit, they're following. They're behind us." Ms. Winbush saw a car in her rearview mirror. The car was following close to Ms. Winbush's rear bumper. Defendant directed Ms. Winbush to drive and turn on Crenshaw Boulevard. Ms. Winbush drove fast, turning right on Crenshaw Boulevard. The other car continued to follow Ms. Winbush. Defendant directed Ms. Winbush to turn right on 147th Street. As she did so, Mr. Rubinos followed. Thereafter, Mr. Rubinos drove alongside the left side of Ms. Winbush's car and rammed her automobile. Both cars stopped. Defendant told Ms. Winbush, "Get down." Ms. Winbush heard "pop, pop" shots from inside her car, very close to her. Mr. Revolledo saw defendant move Ms. Winbush. Mr. Revolledo saw defendant fire the handgun. Mr. Revolledo saw defendant take the driver's seat of Ms. Winbush's car, which had jumped the curb. Thereafter, Ms. Winbush's car made a U-turn and drove away. Mr. Revolledo saw that Mr. Rubinos was bleeding from his head and Ms. Ramirez had injuries to the side of her face. Mr. Revolledo summoned help from a woman nearby, who called the police. Mr. Rubinos was taken to a hospital by the paramedics where he died as a result of a gunshot wound to his head.

Defendant told Ms. Winbush to put the car in reverse and get out of there. As they drove away, Ms. Winbush asked defendant if he had done anything. Defendant said the window was shot out. Defendant said, "I had to try to get them before they tried to get me." Ms. Winbush was frightened. Ms. Winbush asked defendant and Mr. Johnson to get out of her car. Ms. Winbush was stopped by police three days later while driving her car. Thereafter, Ms. Winbush gave police permission to search her home. The search uncovered marijuana. Ms. Winbush was granted immunity from prosecution in exchange for her testimony in this case. Ms. Winbush's car was impounded by the police. Fingerprints found both inside and outside of Ms. Winbush's car were later matched to defendant.

III. DISCUSSION

[Parts III (A)-(B) are deleted from ...


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