Opinion
E082270
04-11-2024
THE PEOPLE, Plaintiff and Respondent, v. MOSES RAMIREZ, Defendant and Appellant.
Moses Ramirez, in pro per.; and Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI014795-1. John P. Vander Feer, Judge.
Moses Ramirez, in pro per.; and Leslie Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
MENETREZ J.
Defendant Moses Ramirez appeals from the denial of his petition to vacate his murder conviction under Penal Code section 1172.6. (Unlabeled statutory citations refer to this code.) We affirm.
BACKGROUND
In 2002, a jury convicted Ramirez of one count of first degree murder (§ 187, subd. (a)). The jury also found true that in the commission of the murder, Ramirez personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) and inflicted torture (§ 190.2, subd. (a)(18)). Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 4), which amended sections 188 and 189, thereby eliminating natural and probable consequences liability for murder and narrowing the definition of first degree felony murder. (People v. Gentile (2020) 14 Cal.5th 830, 843, 847, superseded by statute on another ground as stated in People v. Wilson (2023) 14 Cal.5th 839, 869.) The bill also created section 1172.6 (originally codified as section 1170.95) as a mechanism for retroactive application of those changes in the law. (People v. Strong (2022) 13 Cal.5th 698, 708 (Strong).)
In 2022, Ramirez filed a petition under former section 1170.95 to vacate his murder conviction. He made all of the allegations required by subdivision (a)(1) through (3) of section 1172.6, and he requested appointment of counsel. Defense counsel filed a brief in support of Ramirez's petition, arguing that the jury instructions support Ramirez's showing of a prima facie case for relief and that there was "nothing in the verdicts that rebuts [his] position that he has made a prima facie showing."
At the prima facie hearing, the court noted that it had considered the jury instructions and verdicts. The court explained that although the jury was instructed on the natural and probable consequences doctrine, the "target crime" was "first-degree murder." The court also pointed out that "[t]he jury returned a verdict of murder in the first-degree" and that the torture finding required a finding of intent to kill. Defense counsel submitted, and the court summarily denied Ramirez's petition.
DISCUSSION
We appointed counsel to represent Ramirez on appeal, and counsel filed a no-issue brief under People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo), asking us to exercise our discretion to conduct an independent review of the record. After counsel filed the Delgadillo brief, we advised Ramirez that he could file a personal supplemental brief, which he did.
Ramirez argues that the court erred by denying his petition at the prima facie stage because at his trial there was (1) misconduct including untruthful expert witnesses, (2) insufficient evidence to support his first degree murder conviction and torture finding, and (3) irrelevant gang expert testimony. Ramirez also argues that the trial court erred by denying his trial counsel's request to poll the jury. All of those arguments are irrelevant to whether Ramirez is eligible for relief under section 1172.6. Rather, they present issues that could have been raised on direct appeal or perhaps could be the subject of a petition for writ of habeas corpus. Section 1172.6 is a mechanism to provide relief for murder, attempted murder, or manslaughter convictions that may have been based on now-invalid theories. (People v. Lewis (2021) 11 Cal.5th 952, 959-960.) Because Ramirez's arguments have no tendency to show that he may have been convicted on a now-invalid theory, they have no tendency to show that the trial court erred by determining that he failed to make a prima facie case for relief under section 1172.6.
In addition, the record of conviction establishes that Ramirez is ineligible for relief under section 1172.6. Ramirez was convicted of first degree murder with a true finding of torture with intent to kill. Ramirez's jury was instructed on the natural and probable consequences doctrine, but the target offense was first degree murder, so the jury could not have used that theory to impute malice to Ramirez on the basis of his participation in some crime other than murder. The jury was not instructed on any other theory of imputed malice. The jury also found true the torture-murder special circumstance, which required a finding of intent to kill. The jury therefore found that Ramirez was either a direct aider and abettor of murder or the actual killer and acted with malice.
Accordingly, he is ineligible for relief under section 1172.6. (People v. Jenkins (2021) 70 Cal.App.5th 924, 931; Strong, supra, 13 Cal.5th at p. 710.)
DISPOSITION
The order denying Ramirez's section 1172.6 petition is affirmed.
We concur: RAMIREZ P. J., CODRINGTON J.