People v. Ramirez CA4/1

Filed 7/8/21 P. v. Ramirez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078364

Plaintiff and Respondent,

v. (Super. Ct. No. SCD138947)

RAUL ENRIQUE RAMIREZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, John M. Thompson, Judge. Affirmed. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Charles C. Ragland, Deputy Attorneys General, for Plaintiff and Respondent.

In 1999, a jury convicted Raul Ramirez of first degree, premeditated

murder (Pen. Code,1 §§ 187, subd. (a) and 189). The jury found the victim was a taxi driver in the performance of his duties (§ 190.25); first degree robbery (§§ 211 and 212.5); and arson (§ 451, subd. (d)). The jury found the special circumstance of murder during a robbery was not true (§ 190.2, subd. (a)(17)). Ramirez admitted a prior strike (§ 667, subds. (b)-(i)) and a serious felony prior conviction (§ 667, subd. (a)(1)). Ramirez was sentenced to life without parole plus 18 years four months in prison. Ramirez appealed his conviction and this court affirmed the judgment in an unpublished opinion filed February 13, 2001. (People v. Ramirez (Feb. 13, 2001, D034781) [nonpub. opn.].) In September 2020, Ramirez filed a pro. per. petition for resentencing under section 1170.95. The trial court did not appoint counsel for Ramirez. The court reviewed the record of conviction and this court’s prior opinion. The court denied the petition by written order concluding Ramirez, who had been convicted of premeditated murder, had not made prima facie showing of eligibility for relief under section 1170.95. Ramirez filed a timely notice of appeal. In his appeal, Ramirez contends the trial court erred by (1) failing to appoint counsel; (2) considering the record of conviction and this court’s opinion without first issuing an order to show cause; and (3) finding him ineligible for relief as a matter of law. We will assume the court erred in failing to appoint counsel, but we will find any error harmless as Ramirez plainly is not eligible for resentencing under the statute. Regarding the procedural issues, we are well aware the law on these issues is wholly unsettled. The Courts of Appeal are