People v. Ramirez CA1/4

Filed 2/23/24 P. v. Ramirez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent, A165866 v. (Contra Costa County Super. Ct. ERNESTO RAMIREZ, No. 05001004985) Defendant and Appellant.

MEMORANDUM OPINION1 Ernesto Ramirez was sentenced to 18 years’ imprisonment after pleading guilty to voluntary manslaughter (§ 192, subd. (a)) and robbery (§ 211) — crimes he committed at the age of 16. In connection with those offenses, he further admitted that he acted with the specific intent to benefit a criminal street gang (§ 186.22(b)(1)), and that he personally used a deadly weapon (§ 12022(b)(1)). This appeal challenges the trial court’s

We resolve this case by memorandum opinion and we recite only those 1

facts necessary to resolve the appeal. (Cal. Stds. Jud. Admin., § 8.1; People v. Garcia (2002) 97 Cal.App.4th 847, 851.) All statutory references are to the Penal Code. By separate order filed this date, we dismiss as moot Ramirez’s petition for writ of habeas corpus (case No. A167863), which claims that counsel at the resentencing hearing was ineffective for failing to raise the issue of Ramirez’s age.

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denial of Ramirez’s petition for resentencing under section 1172.6. After a contested evidentiary hearing, Ramirez contends the trial court erred in finding he was a major participant in the underlying armed robbery who acted with reckless indifference to human life, and in failing to address his age at the time the offenses were committed. Because Ramirez was entitled at the resentencing hearing to consideration of his age at the time of the offenses, we reverse and remand for further proceedings. “Section 1172.6 offers resentencing for petitioners” who faced murder charges under a felony murder theory but “have not been determined beyond a reasonable doubt to have the degree of culpability now required for a murder, attempted murder, or manslaughter conviction.” (People v. Strong (2022) 13 Cal.5th 698, 720.) “At the hearing to determine whether the petitioner is entitled to relief,” the prosecution bears the burden of proving beyond a reasonable doubt that the petitioner is guilty of murder or attempted murder under the current law. (§ 1172.6, subd. (d)(3).) Thus, a finding that that the petitioner “was a major participant in the underlying felony and acted with reckless indifference to human life” is fatal to the petition. (§ 189, subd. (e)(3).) The “major participant” and “reckless indifference” requirements are conceptually distinct, concerning an actus reus and a mens rea, respectively. (People v. Banks (2015) 61 Cal.4th 788, 798.) “If the prosecution fails to sustain its burden of proof, . . . any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).) Our high court has established seven factors relevant to determining whether a defendant acted with reckless indifference to human life: use of a gun or knowledge that a gun would be used during the felony; the number of