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People v. Ramirez

California Court of Appeals, Second District, Fifth Division
Feb 4, 2011
No. B223306 (Cal. Ct. App. Feb. 4, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. NA074909, Richard R. Romero, Judge. Affirmed.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.


ARMSTRONG, Acting P. J.

Appellant Guillermo Ramirez was convicted, following a jury trial, of one count of second degree murder in violation of Penal Code section 187. The jury found true the allegation that appellant personally used a firearm in the commission of the murder within the meaning of section 12022.53, subdivisions (b) through (d). The trial court sentenced appellant to 15 years to life in state prison for the murder conviction, plus a 25-year-to-life enhancement term for the firearm use.

Appellant appeals from the judgment of conviction, contending that the trial court erred in failing to instruct the jury, sua sponte, on the lesser offense of involuntary manslaughter on a theory of unconsciousness caused by voluntary intoxication. We affirm the judgment of conviction.

Facts

On July 1, 2007, before 9:00 p.m., Cesar Moran and his father Amilcar Moran went into the Willow Street Landing bar in Long Beach, ordered a beer each and sat down at a table. Shortly thereafter, appellant entered and sat at the end of the bar counter. There was one other customer, an older man, at the bar counter. Lucinda de Leon served appellant a Corona. Vickie Gonzales served appellant a second bottle of Corona. Lucinda went to the restroom.

Amilcar testified that appellant banged on the wooden bar four times. Cesar stood up and said to his father, "Let's go, Dad." He added, in Spanish, "This mother fucker is crazy." When Cesar stood up, the table moved and a bottle fell to the floor and broke. Appellant got up and walked toward Cesar. Appellant had a gun in his hand and fired two shots at Cesar at close range, hitting him once in the head. Appellant left the bar, got into a gray Ford F-150 pickup truck and drove away. Amilcar called the police.

Amilcar was able to see some of the truck's license plate numbers, and gave those numbers to police. He also told police that the shooter was a light-skinned Hispanic with straight cut hair that was longer in the back and a tattoo on his arm. He gave the shooter's height as five feet seven inches to five feet eight inches. The shooter did not appear to Amilcar to be under the influence of any substance. Amilcar was later shown a six-pack photographic lineup containing appellant's photo, but he did not pick appellant.

At some point, Vickie went to the restroom to speak with Lucinda. While there, Vickie told Lucinda that Cesar had thrown a bottle and broken it, and that something was going to happen. Vickie also said that the guys in the bar were throwing and breaking bottles. Lucinda heard the sound of breaking bottles and then a dull noise which did not sound like a gunshot to her. When she and Vickie went back to the bar, they saw Cesar's body on the floor. Lucinda noticed that there was broken glass from a Bud Light bottle on the ground in the area where appellant had been sitting. Vickie ran out of the bar.

Lucinda told police that the possible shooter was a male Hispanic with medium length dark hair, a light mustache and tattoos on both arms.

Police contacted Vickie and she returned to the bar. She told police that the Hispanic man at the bar counter slapped his hand on the bar and then Cesar stood up and broke a beer bottle, which caused the man to stand up. She was unclear on whether Cesar had knocked over a bottle accidentally as he stood up or if he had thrown it. Vickie moved after this incident and did not provide anyone with new contact information. She was unavailable to testify at trial.

Rose Gonzales, who was in a parking lot across the street from the bar, heard two quick popping sounds. Her sister said that they sounded like gunshots. Rose saw a young man with a baseball cap leave the bar, get into a full-sized pickup truck and drive away.

Inside the bar, police found broken glass on the bar counter and broken bottles on the floor near where appellant had been sitting. There was also broken glass in other areas of the bar. Two nine-millimeter shell casings and a bullet fragment were recovered from the floor of the bar. They were all fired by the same gun, most likely a nine-millimeter Glock. This weapon requires a trigger pull for each round fired. Appellant's fingerprints were found on a Corona bottle near the bar counter.

Cesar died from the gunshot wound to his head. His blood alcohol level was between.21 and.24.

The Ford pickup in which appellant drove from the scene belonged to Ana Bueno. She had children with appellant. Appellant made the payments on the truck and regularly drove it.

On July 11, 2007, police observed appellant and a child get into a white Dodge minivan. Police officers tried to stop appellant from driving away by blocking his van with a police car. Appellant drove on the sidewalk to get away. Detective Carlos Grimaldo and his partner turned on their lights and sirens and pursued the van. Appellant drove at high speeds, ran several stop signs and drove the wrong way down a one-way street. Eventually, he was in a collision with another car and the van stopped. Appellant got out of the van and ran for about 30 feet. Officers were able to stop appellant and arrest him. Appellant had tattoos on his arms and back.

At the police station, Detective Grimaldo asked appellant if he had any guns or drugs. Appellant replied, "I don't have any guns. I threw it away." Appellant volunteered, "I know I did something wrong. I just can't remember what it was because I was drunk and high on drugs."

Later that day, Detectives Mark McGuire and Hugo Cortes interviewed appellant at the police station. Appellant initially repeated his claim that he did not remember anything because he had been drinking and taking cocaine for three days. He said that friends told him that he had been in a fight and someone had been hurt. After detectives questioned him further and showed him a photograph of the Willow Street bar, he remembered that the bar was the location of the fight. He told police that he remembered that the victim stood up holding a bottle and that appellant then stood up with a gun. Appellant stated that he swung the gun at the victim. Appellant stated that he did not remember if the gun went off. Appellant stated that he did not remember what happened to the gun or the truck.

Appellant did not testify at trial and presented no evidence.

Discussion

The trial court instructed the jury with CALCRIM No. 625: "You may consider evidence, if any, of the defendant's voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with premeditation and deliberation. [¶]... [¶] You may not consider evidence of voluntary intoxication for any other purpose."

Appellant contends that the trial court erred in failing to also instruct the jury sua sponte on unconsciousness caused by voluntary intoxication, specifically that a defendant who kills while unconscious due to voluntary intoxication is guilty of involuntary manslaughter. We see no error.

Appellant requested an involuntary manslaughter instruction on the theory that his act of attempting to hit the victim with the gun was an act done with conscious disregard for human life. The trial court rejected this theory of involuntary manslaughter. Appellant does not claim error in this ruling.

"When a person renders himself or herself unconscious through voluntary intoxication and kills in that state, the killing is attributed to his or her negligence in self-intoxicating to that point, and is treated as involuntary manslaughter. 'Unconsciousness is ordinarily a complete defense to a charge of criminal homicide. (Pen. Code, § 26, subd. [Four].) If the state of unconsciousness results from intoxication voluntarily induced, however, it is not a complete defense. (Pen. Code, § 22.)... [I]f the intoxication is voluntarily induced, it can never excuse homicide. [Citation.] Thus, the requisite element of criminal negligence is deemed to exist irrespective of unconsciousness, and a defendant stands guilty of involuntary manslaughter if he voluntarily procured his own intoxication.' [Citation.] Unconsciousness for this purpose need not mean that the actor lies still and unresponsive: section 26 describes as '[in]capable of committing crimes... [¶]... [¶]... [p]ersons who committed the act... without being conscious thereof.' (Italics added.) Thus unconsciousness '"can exist... where the subject physically acts in fact but is not, at the time, conscious of acting."' [Citations.]" (People v. Ochoa (1998) 19 Cal.4th 353, 423-424.)

A trial court has a sua sponte duty to instruct on all theories of a lesser included offense that are supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Involuntary manslaughter based on unconsciousness due to voluntary intoxication is a lesser included offense of murder, and the trial court has a sua sponte duty to instruct the jury on this offense when it is supported by substantial evidence. (People v. Graham (1969) 71 Cal.2d 303, 316; People v. Ochoa, supra, 19 Cal.4th at pp. 423-424.)

There was not substantial evidence to warrant giving an instruction in this case. Appellant initially told detectives that he had been drinking and using drugs for three days before the shooting and did not remember what happened. He stated that his friends had told him that he was in a fight and someone got hurt. If the interview had ended after this statement, an unconsciousness instruction might have been warranted. The detectives did not accept appellant's claim of lack of memory, however. They made attempts to refresh appellant's memory, including showing appellant a photograph of the Willow bar. After seeing the photograph, appellant's memory was refreshed and he told police that he remembered that the fight took place in the Willow bar. He told police that "Huh, I think [the victim] got up with a bottle. Yeah, yeah." He also said: "Yes, I think... Yeah, I think I hit him with a gun, I think." When police asked if "hit" meant that he shot the victim, appellant replied, "No, well, I didn't [U/I]. I think I swung like this with my hand, with the gun." He also told police, "I don't know if the gun went off but I hit him." Appellant claimed that he did not remember what happened after he swung the gun, and that the next thing he remembered was waking up in someone else's car without any money.

Appellant's statement to police shows at most a temporary lack of memory. A person who is unconscious has no memory of what happened while he was unconscious. (See People v. Hughes (2002) 27 Cal.4th 287, 344 [expert testified that one of the characteristics of a blackout or unconsciousness "is that the person is engaged in behaviors that he later then can't recall"]; see also People v. Greig (1939) 14 Cal.2d 548, 555 [expert testifying about unconsciousness caused by epilepsy stated: "Unconsciousness and memory don't reconcile. The individual who is unconscious does not remember the things which occurred during the time of his unconsciousness."] Thus, it would not be possible for a person to later remember what happened while he was unconscious.

It is true that although appellant recovered some of his memory, there is no evidence that he regained his memory of what happened after he claimed that he swung the gun at the victim. There is no reason to believe that appellant merely had temporary memory loss for the first part of the encounter, then became unconscious immediately before firing the gun.

We recognize that a person with partial recall of an event can be found to be legally unconscious at the exact moment a crime is committed. (See, e.g., People v. Bridgehouse (1956) 47 Cal.2d 406 overruled on other grounds by People v. Lasko (2000) 23 Cal.4th 101.) Appellant's statements, however, do not show that he woke up the day after the shooting with a partial memory of the shooting. They show that he woke up with no memory of the shooting, but was later able to remember events leading up to the shooting.

Assuming for the sake of argument that the trial court erred, we would see no reasonable probability or possibility that appellant would have received a more favorable outcome if the jury had been instructed on unconsciousness. (See People v. Breverman, supra, 19 Cal.4th at pp. 165, 178 [failure to instruct on lesser included offense is error of California law only and is assessed under People v. Watson (1956) 46 Cal.2d 818]; but see People v. Moye (2009) 47 Cal.4th 537, 558 , fn. 5 [Court has not yet had chance to determine whether failure to instruct on lesser manslaughter offense in a non-capital case constitutes federal constitutional error].)

Appellant's statements about lack of memory were inextricably intertwined with his statements supporting his self-defense claim. Appellant claimed that his only memory of the fight was that the victim stood up with a bottle, and that he swung the gun at the victim in response. The jury rejected both perfect and imperfect self-defense and voluntary manslaughter based on heat of passion, demonstrating that they did not find his account of events believable. There is nothing to make appellant's claim of a lack of memory about anything else that occurred in the bar before or after the victim stood up any more believable than his statement about the bottle.

Disposition

The judgment is affirmed.

We concur: MOSK, J., KRIEGLER, J.


Summaries of

People v. Ramirez

California Court of Appeals, Second District, Fifth Division
Feb 4, 2011
No. B223306 (Cal. Ct. App. Feb. 4, 2011)
Case details for

People v. Ramirez

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO RAMIREZ, Defendant and…

Court:California Court of Appeals, Second District, Fifth Division

Date published: Feb 4, 2011

Citations

No. B223306 (Cal. Ct. App. Feb. 4, 2011)