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People v. Ramirez

California Court of Appeals, Second District, Eighth Division

September 24, 2019

THE PEOPLE, Plaintiff and Respondent,
v.
JUAN RAMIREZ, Defendant and Appellant.

          APPEAL from a judgment of the Superior Court of Los Angeles County No. BA417074, Leslie A. Swain, Judge. Affirmed and remanded for an amended abstract of judgment.

          Law Office of Elizabeth K. Horowitz and Elizabeth K. Horowitz, 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, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, and Nancy Lii Ladner, Deputy Attorney General, for Plaintiff and Respondent.

          WILEY, J.

         A jury convicted Juan Ramirez of a shotgun murder. On appeal, Ramirez argues a range of errors. We hold there was no instructional error, prosecutorial misconduct, or cumulative error. Ramirez forfeited his ability-to-pay argument. There was no sentencing error. By agreement, the abstract of judgment must be amended. References are to the Penal Code.

         I

         Given the verdict, the facts are these. When Ramirez was 20, his co-defendant Armando Semidey held a wedding reception at an apartment complex. Murder victim Salvador Zambrano attended, got drunk, grabbed a woman, and started fighting. Zambrano hit groom Semidey in the face and knocked him down. Guests forced Zambrano out of the complex, but he and a group gathered nearby. Ramirez heard Zambrano struck Semidey. Ramirez and four others drove to confront Zambrano and his group. Ramirez got out with a sawed-off shotgun and said “Who is the mother fucker who hit my brother, my friend?” A second fight started. Ramirez withdrew, took the shotgun back to the truck, put it inside, and stayed there. Then one of Ramirez’s group told him, “Kill that mother fucker. Kill him. Kill him.” Ramirez got the shotgun and fired a deadly blast into Zambrano’s back.

         II

         Ramirez appeals on six grounds.

         A

         We independently review Ramirez’s appeal about jury instructions.

         A trial court must instruct the jury on general principles of law necessary for the jury’s understanding of the case. Defendants have a right to an instruction pinpointing their defense theory, but the court may refuse incorrect, argumentative, duplicative, or confusing instructions. (People v. Hovarter (2008) 44 Cal.4th 983, 1021.)

         The trial court instructed the jury about voluntary manslaughter using CALCRIM No. 570. Ramirez requested two special instructions. The trial court properly declined them.

         Ramirez’s first proposed special instruction stated “Provocation sufficient to reduce murder to voluntary manslaughter may accumulate over a period of time and may be based upon a series of acts.” This instruction duplicated the sentence in CALCRIM No. 570 that “Sufficient provocation may occur over a short or long period of time.” The main difference is the CALCRIM sentence is concise and the proposed instruction is not. The trial court rightly rejected this duplicative instruction.

         Ramirez’s second proposed special instruction was argumentative. This second proposal was “A defendant may witness potential acts of provocation and/or be informed of them afterwards.” Nothing in CALCRIM No. 570 was to the contrary. This CALCRIM does not say Ramirez himself had to witness the provocation, or that merely being informed of the provocation was suspect or insufficient. To the contrary, the CALCRIM required only that Ramirez “was provoked, ” and that the provocation would have caused an average person to act from passion. Because the CALCRIM contained no restrictions on the means of provocation-eyewitness observation versus being informed by others-Ramirez’s second proposal could contribute no logical content. It would simply add emphasis that would favor one side and not the other, which is to say the proposal was argumentative. The trial court correctly rejected this instruction.

         B

         Ramirez’s second argument is that there was prosecutorial misconduct. There was not.

         Ramirez characterizes two categories of comments as prosecutorial misconduct. The first involves four comments in which Ramirez contends the prosecutor improperly equated voluntary manslaughter with justified or excused killing. Ramirez says these statements were misleading, inaccurate, and inappropriate because they implied to the jury that it would be forgiving or lenient to find Ramirez guilty of the lesser crime. The second category involves two comments where, according to Ramirez, the prosecutor implied that if a reasonable person would not kill under the circumstances of this case, the legal standard for provocation has not been met. We address each category in turn.

         1

         In closing argument, the prosecutor argued a punch did not justify the defendant shooting Zambrano in the back, and that drinking and being a “jerk” did not justify or excuse Zambrano’s shooting. The prosecutor made similar arguments that “you don’t get to” shoot somebody because “you heard they punched your friend or may have been rude or insulting.” The trial court overruled Ramirez’s objection to the third of a total of four such comments. Ramirez argues these comments conflated the law of voluntary manslaughter with a justified or excusable killing, constituting prosecutorial misconduct.

         The prosecutor’s comments were not prosecutorial misconduct. The prosecutor never said the law barred the jury from finding the alleged provocations caused Ramirez to act without deliberation and reflection. Instead she argued a reasonable person would not have acted in the heat of passion based on what Ramirez heard and saw in this case. The first two comments were made as the prosecutor was working her way through the evidence, not when she discussed the elements of homicide and voluntary manslaughter. The third comment appears in the transcript four pages after the prosecutor stated the law of voluntary manslaughter; it was part of her argument that a reasonable person would not act in the heat of passion based on what happened here. This was her theory of the case. She was entitled to advance this theory in closing argument. The same goes for her fourth comment: that shooting Zambrano because you heard he punched your friend or was being rude at a party was first degree murder, not manslaughter.

         Ramirez cites cases. According to the Najera case, it is acceptable for a prosecutor to say a voluntary manslaughter conviction would give a defendant a “break.” (People v. Najera (2006) 138 Cal.App.4th 212, 220 (Najera).) But according to Ramirez, the Peau case made it unacceptable for prosecutors to call an imperfect self-defense instruction a “loophole.” (People v. Peau (2015) 236 Cal.App.4th 823, 832 (Peau).)

         Ramirez incorrectly argues his case is more like Peau than Najera. While explaining the elements of imperfect self-defense, the Peau prosecutor indeed called imperfect self-defense a “loophole.” (Peau, supra, 236 Cal.App.4th at p. 832.) But that prosecutor went on to say “[i]mperfect self-defense doesn’t apply. The defendant is not walking out of these doors using this excuse.” (Ibid., italics added.) That prosecutor misleadingly suggested a finding of imperfect self-defense would free the defendant. Ramirez’s prosecutor did not.

         This prosecutor’s comments were more like those in Najera than Peau. By arguing Ramirez’s behavior was not “justified” or “excused, ” she may have implied the jury would be giving him a break if they reduced murder to manslaughter. That is different from implying the jury would be letting him escape all criminal punishment. And the court’s jury instructions told the jury a finding of provocation could reduce the charge from murder to voluntary manslaughter, not eliminate the charges altogether. The prosecutor’s comments were not improper.

         2

         The second category of allegedly impermissible argument involves two comments where, according to Ramirez, the prosecutor implied that, if a reasonable person would not kill under the circumstances of this case, the legal standard for provocation has not been met. It is true the standard for reducing murder to manslaughter under a heat of passion theory is not whether a reasonable person would have killed in a similar scenario, but whether a reasonable person would have ...


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