People v. Ramirez CA2/6

Filed 6/24/14 P. v. Ramirez CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B245664 (Super. Ct. No. 2010019373 Plaintiff and Respondent, No. 2002003390) (Ventura County) v.

JUDITH RAMIREZ,

Defendant and Appellant.

Judith Ramirez appeals from the judgment entered after a jury convicted her of second degree murder of her daughter on May 29, 2010 (count 1; Pen. Code, §§ 1 187, subd. (a); 189) , two counts of child endangerment (counts 2 & 3; § 273a, subd. (a)), driving with a suspended license on May 29, 2010 (count 4; Veh. Code, § 14601.2, subd. (a)), driving under the influence of alcohol on January 27, 2007 (count 5; Veh. Code, § 23152, subd. (a)), driving while having a 0.08 percent or higher blood alcohol on January 27, 2007, (count 7; Veh. Code, § 23152, subd. (b)), and driving with a suspended/revoked license on January 27, 2007 (count 7; Veh. Code, § 14601.5, subd. (a)). On count 1 for second degree murder, the jury found that appellant personally inflicted great bodily injury on her four-year-old son (§ 12022.7, subd. (d)) and personally inflicted great bodily injury on Abilene Diaz (§ 12022.7, subd. (a)). On counts 2 and 3 for child

1 All statutory references are to the Penal Code unless otherwise stated.

endangerment, the jury found that appellant personally inflicted great bodily injury on her son and daughter (§ 12022.7, subd. (a)). The trial court sentenced appellant to 15 years to life state prison on the murder count plus eight years on the great bodily injury enhancements (§ 12022.7, subds. (a) & (d)) for an aggregate sentence of 23 years to life. On counts 2-7 appellant was sentenced to jail and concurrent prison terms, some of which were stayed. (§ 654.) Appellant contends that the conviction for implied malice, second degree murder is not supported by the evidence. We affirm. Counts 1-4: May 29, 2009 DUI On May 29, 2010, appellant's 17-year old daughter, Victoria Ramirez, was killed while appellant was driving under the influence of alcohol (DUI). Earlier in the day, appellant drove Victoria, her four-year-old son (Jose H.), and Victoria's friend (Abilene Diaz) to a party in Nyland Acres. Appellant consumed beer before going to the party, drank a beer on the way to the party, and drank a lot of beer at the party. Jaquelin Garcia saw appellant seated at a table with two or three open cans of beer. When appellant left the party at 9:00 p.m., Garcia asked if appellant was okay to drive or needed a ride. Appellant said that her daughter (Victoria) or daughter's friend (Diaz) was driving. Liana Marron, the party host, asked "Are you okay?" "Do you want me to take you?" Appellant said that Diaz was driving. As they walked to appellant's Nissan Pathfinder, Victoria asked appellant to let Diaz drive. Appellant insisted on driving and was drunk, which concerned Diaz and Victoria. On a prior occasion, appellant said that if she was stopped for drunk driving they would throw her in jail. At 9:08 p.m., appellant stopped at a Valero gas station on Vineyard Avenue and purchased a large can of beer. Appellant drank the beer from a brown paper bag as she drove northbound on Vineyard Avenue to Santa Paula. Diaz noticed that appellant was zigzagging and saw a truck coming at them head-on. A motorist, Maria Sanchez, saw the Nissan swerve three or four times and go over the center line into oncoming traffic. Sanchez turned on her emergency lights to warn motorists and pulled over. As appellant approached a curve in the road, appellant