People v. Ramos

77 Cal.App.5th 1116

293 Cal.Rptr.3d 170

The PEOPLE, Plaintiff and Respondent,

v.Robert Ramirez RAMOS, Defendant and Appellant.

F080916

Court of Appeal, Fifth District, California.

Filed April 27, 2022

As Modified on Denial of Rehearing May 16, 2022

Certified for Partial Publication.^*

John Steinberg, under appointment by the Court of Appeal, Berkeley, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Robert K. Gezi, Darren Indermill, Lewis A. Martinez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

PEÑA, Acting P. J.

INTRODUCTION

While this appeal was pending, the Legislature enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which went into effect on January 1, 2022. Assembly Bill 333, in part, amended the language of Penal Code section 186.22 to modify the showing necessary to sustain a gang enhancement. (Undesignated statutory references are to the Penal Code.) It also added section 1109, which requires the bifurcation of the trial of gang enhancements from that of the underlying offense(s) upon a defendant's request. Among other issues, we consider whether these two changes in the law apply retroactively to this case. In the published portion of this opinion, we conclude both changes apply retroactively. Under the circumstances, however, only the amendment to section 186.22 requires reversal and remand.

Robert Ramirez Ramos and three codefendants—Francisco Nava, Steven Lopez, and Ruben Perez—engaged in a confrontation at a convenience market gas station with E.D. and his girlfriend, C.A. They yelled rival gang slurs at E.D., Lopez and Perez threw drinks into the car E.D. and C.A. were sitting in, and Lopez grabbed E.D.'s shirt and struck him in the back of the head, scratching his neck. Perez also tried to grab E.D. E.D. drove away. When E.D. stopped at an intersection, he saw a black car speeding toward him, heard two gunshots and glass breaking, and felt an impact on his car. He saw the black car on the left side of his car and the back passenger window rolled down. Video surveillance footage depicted Ramos as the person in the driver's seat of the black car at the gas station.

The four defendants were charged with multiple offenses in relation to the incident. At trial, the prosecution presented expert testimony on street gangs, evidence of the defendants’ prior contacts with police, and certified records of convictions of Norteño gang members as proof of a pattern of gang activity to prove the street gang enhancements.

The jury acquitted the four defendants of attempted murder of E.D. and C.A. (counts 1 and 2, respectively) and was deadlocked on the lesser included offenses of attempted voluntary manslaughter. The jury convicted all four defendants of shooting into an occupied motor vehicle in violation of section 246 (count 3) and found true allegations a principal used a firearm ( § 12022.53, subds. (c) & (e)(1) ) and that the offense was committed for the benefit of a criminal street gang (former § 186.22, subd. (b)(1)(C) ). The jury was deadlocked as to all four defendants on count 4, criminal street gang conspiracy in violation of section 182.5. (The jury convicted Lopez and Perez of battery in violation of section 242 in count 5 and found the offense was committed for the benefit of a criminal street gang (former § 186.22, subd. (b)(1)(C) ).)

Ramos challenges his conviction for shooting at an occupied motor vehicle and the related firearm and gang enhancements on multiple grounds. First, he contends the court prejudicially erred in admitting evidence related to an uncharged offense requiring reversal of his conviction and the related enhancements. He also argues the court erred in imposing both the firearm enhancement and the gang enhancement even though it stayed the former. He further challenges the validity of the gang enhancement, firearm enhancement, and underlying conviction pursuant to Assembly Bill 333. Ramos asserts the changes enacted by Assembly Bill 333 are retroactive and, accordingly, his gang enhancement should be reversed and retried under the new requirements of section 186.22. He also asserts his conviction for shooting at an occupied motor vehicle must be reversed and retried in a bifurcated proceeding under newly enacted section 1109. Finally, Ramos challenges the imposition of a restitution fine and certain court assessments because the court failed to hold an ability to pay hearing.

As noted above, we agree Assembly Bill 333 applies retroactively and Ramos is entitled to reversal of his gang and firearm enhancements on that basis. However, we affirm Ramos's conviction for shooting at an occupied motor vehicle. Accordingly, we remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND

February 3, 2018 Incident

In the evening of February 3, 2018, E.D. was at a convenience market with his girlfriend C.A.; E.D. was wearing a navy blue shirt. They met E.D.'s parents for dinner. E.D. testified Ramos and his codefendant Nava approached E.D. when he was at the register checking out, though other evidence introduced suggested Ramos did not enter the store.¹ Nava said, " ‘What's up Ene?’ " E.D. smiled and said "What's up?" E.D. walked out of the store toward his car; codefendants Lopez and Perez followed him and said, " ‘Fuck Sur trece.’ " E.D. understood the statement to mean "disrespect toward the Southerner gang." E.D. testified all four defendants continued to shout disrespectful Southern gang slurs while E.D. and C.A. walked toward his car. E.D. and C.A. got in the car and reversed; E.D. saw Ramos and Nava talking to his mother as she was trying to get in her car. E.D. testified his car had a Los Angeles Dodgers logo decal on it; he and C.A. denied any gang involvement. E.D. rolled his window down halfway to tell the defendants he did not want any problems but, before he could, Lopez and Perez threw drinks into E.D.'s car. Lopez then grabbed and scratched E.D.'s neck; Perez tried to grab E.D., too. E.D. drove off. He saw Lopez and Perez running to their car, a black four-door sedan, as he left. He told C.A. to call 911 as he turned onto the road from the driveway. He could see the defendants' car in his rear view mirror as they exited from the same driveway.

E.D. got in the far right lane. The defendants pulled up behind E.D.'s car and then next to it. E.D. then heard glass breaking, tires screeching, and two gunshots; he felt the impact of a bullet on his car. E.D. and C.A. saw the rear passenger side window of the defendants' car rolled down. E.D. drove back to the convenience market and he and C.A. waited for the police. Neither E.D. nor C.A. could identify Ramos in photographic line-ups following the incident.

The manager of the convenience market gave the police the surveillance videos from that day. Officer Elliot identified Ramos, Perez, Nava, and Lopez in the video shown at trial. He testified Ramos could be seen getting into the driver's seat of the car.

Gang Expert Testimony

Before trial, defendant Perez moved to bifurcate the gang allegations. The court noted it would treat the objection as a joint challenge by all the defendants. The court considered the motion and tentatively denied it because the gang allegations and underlying charges overlapped. The prosecutor argued the gang evidence was intertwined with the charges, motive, and intent and substantive evidence of it would come in regarding the section 182.5 charge (count 4). The court noted it intended to allow the gang expert to testify about the foundational components and opinions regarding the gang allegations and asked for comments from the parties; no objections or comments were made. The court explained to the prosecutor that, with the Sanchez [People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 ] issue, she was going to have to "prove ... up individually ... with witnesses."

Officer Joel Arjona, who was assigned to the Tulare Area Regional Gang Enforcement Team in February 2018, testified as a gang expert. He discussed his experience working with gangs and how the Norteño and Sureño gangs are structured. He explained both gangs have symbols and signs used to reflect their affiliation. Norteño gang members associate with the number 14 and the color red. They use the Huelga bird as a symbol of the gang. Sureño members use the color blue to represent the gang and associate with the number 13. Arjona explained the Norteño gang derives from the prison gang Nuestra Familia. He also explained local street gang members of the Norteño gang report to an individual called a "channel." The "channel" then reports up to a member of Nuestra Familia who is in charge of the county. He testified Norteño members pay "taxes" that are used for the benefit of the gang. He explained the Norteño gang has different cliques or subsets that all identify with the color red and the number 14. Members of different subsets work together, communicate with one another, commit crimes together, and share information and weapons. He discussed the subset North Side Visa Boys (or NSVB) and explained the symbols and tattoos they use to identify themselves. He stated all NSVB members are in Tulare County.

He testified to what he deemed to be "primary activities of the Norteño gang" based on his investigations and reports and from speaking with other officers and gang members. The primary activities are a lot of crimes, 33 of which the Penal Code considers "gang crimes." The list of gang crimes includes, but is not limited to, auto theft, possession of firearms, murder, attempted murder, assault, assault with deadly weapons, kidnappings, burglary, and vandalism.

Officer Arjona testified regarding two specific predicate crimes. He discussed the murder of John Hernandez committed by Norteño gang members Jacob Robles and ...