People v. Ramirez CA2/3

Filed 11/22/21 P. v. Ramirez CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT DIVISION THREE

THE PEOPLE, B311209

Plaintiff and Respondent, Los Angeles County Super. Ct. No. BA021137 v.

ALIVER ANTONIO RAMIREZ,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge. Affirmed. Edward J. Haggerty, 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, Amanda V. Lopez and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

In 1992, defendant Aliver Antonio Ramirez was convicted of second degree murder. He appeals from the denial of his petition for recall and resentencing under Penal Code section 1170.95. Defendant contends that the court engaged in improper fact-finding by relying on the opinion in his prior appeal. Based on the instructions at trial, however, the jury could not convict defendant of murder unless it concluded he acted with malice aforethought.1 Because defendant could not have been convicted under a now-invalid theory of murder, he is ineligible for relief as a matter of law. We therefore affirm. BACKGROUND2

By information dated September 25, 1990, defendant was charged with one count of murder (Pen. Code,3 § 187, subd. (a); count 1), three counts of assault with a firearm (§ 245, subd. (a)(2); counts 2–4), and one count of grand theft auto (former § 487; count 5). The information also alleged defendant personally used a firearm (§ 12022.5) in counts 1–4 and personally inflicted great bodily injury in counts 2–4. After a trial, the jury convicted defendant of counts 1, 2, and 3, and found the related allegations true. It set the degree of murder at second degree. The jury acquitted him of counts 4 and 5. The court imposed an aggregate term of 23 years to life,