Filed 11/22/13 P. v. Ramos CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B244221

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. VA117053)
         v.

GAVINO CIRILO RAMOS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County, John A.
Torribio, Judge. Reversed in part, modified in part, affirmed in part, and remanded with
directions.
         Matthew D. Alger, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Idan Ivri,
Deputy Attorneys General, for Plaintiff and Respondent.
                                     I. INTRODUCTION


       A jury convicted defendant, Gavino Cirilo Ramos, of second degree murder.
(Pen. Code,1 § 187, subd. (a).) The jury further found gang and personal firearm use
allegations true. (§§ 186.22, subd. (b)(1)(C), 12022.53, subd. (d).) The trial court found
defendant had sustained five prior serious or violent felony convictions. (§§ 667, subds.
(a)(1) & (b)-(i); 1170.12.) The trial court expressly declined to make a finding with
respect to an alleged prior prison term. (§ 667.5, subd. (b).) We reverse the 30-year-to
life sentence for second degree murder. We direct the trial court on remand to either
comply with section 1385, subdivision (a), or impose a 45-year-to-life sentence for
second degree murder. We modify the sentence imposed with respect to the section 667,
subdivision (a)(1) prior serious felony convictions. We direct the trial court, upon
remittitur issuance, to either impose the section 667.5, subdivision (b) enhancement or to
strike it and set forth its reasons for doing so. We affirm the judgment in all other
respects.


                                     II. THE EVIDENCE


       Defendant was charged in the single-count information along with two fellow
gang members, the codefendants, Andres Verduzco and Isabel Ballesteros. Defendant
and Mr. Verduzco were tried together before the same jury. Ms. Ballesteros was tried at
the same time but before a separate jury.
       Defendant was an active member of a Lynwood gang. On August 13, 2010, at
about 6 p.m., defendant went to a gang hangout on Blumont Road in South Gate. The
house was on the border of defendant’s gang’s territory. At the time, Ms. Ballesteros
operated a gambling machine there. And a rival Compton gang member was selling
methamphetamine from the location. Defendant was accompanied by a fellow gang

       1    Further statutory references are to the Penal Code unless otherwise noted.

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member, Mr. Verduzco. Several people were in the garage smoking methamphetamine
when defendant and Mr. Verduzco arrived. Among them were three or four members of
the rival Compton gang. There was an ongoing, years-long feud between the Lynwood
and Compton gangs. Defendant announced himself to the rival gang members. He then
pulled a gun from his waistband or pocket and said, “Everybody get the fuck out.” As
people scattered, defendant fired his weapon. A rival gang member, Albert Reyes, was
shot and died. The murder weapon was a Smith and Wesson or Glock semi-automatic
pistol.
          Four eyewitnesses saw defendant remove the weapon from his waistband or
pocket and fire it. Paola Wing lived at the Blumont Road home. Gerardo Ibarra, a
fellow gang member, temporarily lived there. Ms. Wing answered the door when
defendant and Mr. Verduzco arrived at the house. They asked for Mr. Ibarra. Ms. Wing
was surprised to see them. She said it had been a while since Mr. Verduzco had come by.
It seemed odd to Ms. Wing that Mr. Verduzco would just show up. Ms. Wing told
defendant and Mr. Verduzco there were rival gang members present. Defendant said,
“That’s cool.” Ms. Wing led them to the garage. Defendant introduced himself by his
gang moniker and identified his gang. Ms. Wing saw defendant take a gun from his
waistband and wave it around in the air. Defendant said, “Everybody get the fuck out.”
Ms. Wing described defendant bringing his arm out from his side with the gun in his
hand. She heard one gunshot. She did not see defendant fire the weapon. She did not
see him aim it at any particular person.
          Susana Cruz was a reluctant witness. She feared gang retaliation for being a
snitch. Ms. Cruz was in the garage of the Blumont Road house smoking
methamphetamine. She saw two men enter the garage. She observed the encounter
between the two men and the rival gang members. She heard something that sounded
like “hood.” She testified she meant, “Like for me like when presenting themselves like,
bring out their hood, bring out where they belong to,” meaning their gang. Ms. Cruz saw
one of the two men take a gun out of his pocket. He told everyone to leave. The gun
seemed to go off by accident. In Ms. Cruz’s opinion, it did not look like the man fired

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the gun on purpose. Ms. Cruz was looking at the gunman when she heard the gunshot. It
did not look like he was aiming it at anyone. Ms. Cruz admitted she never told law
enforcement officers she thought the gunman fired accidentally. During the subsequent
investigation, Ms. Cruz told Officer William Cotter that Ms. Wing started screaming
when the gun went off. Ms. Cruz heard defendant say to Ms. Wing, “Shut the fuck up,
bitch, or I’ll kill you.” Ms. Cruz also said that one of the rival gang members, the
“cholo,” had said something that caused the gunman to react and say, “Get the fuck out.”
       Yesenia Torres was in the kitchen washing dishes when defendant and
Mr. Verduzco passed through on their way into the garage where the fatal shooting
occurred. Mr. Verduzco had been at the Blumont Road house more than 20 times in the
past. Ms. Torres saw him stand in the doorway to the garage. Ms. Torres heard
defendant say, “Everybody get the fuck out.” She saw defendant take a gun from his
waistband with his right hand. Defendant aimed the gun toward a side door leading to
the yard. Ms. Torres heard one gunshot. The victim was leaving the garage through the
side door when he was shot.
       Mr. Ibarra was not available as a witness at the time of trial. His prior recorded
testimony was introduced. Mr. Ibarra had known defendant for a long time. Defendant
had dated Mr. Ibarra’s sister. The two men were fellow gang members. Mr. Ibarra had
bragged to Ms. Wing about how close the two were. Mr. Ibarra was asleep in a chair in
the garage when defendant and Mr. Verduzco entered. Mr. Ibarra woke up before he
heard the gunshot. Mr. Ibarra saw something black in defendant’s left hand. He heard a
sound like a firecracker. Mr. Ibarra heard Ms. Wing screaming, “No, Gavino, No.”
Defendant was holding the black object sideways. Defendant and Mr. Ibarra spoke later
that evening. Defendant told Mr. Ibarra the rival gang members should not have been
gambling or selling narcotics out of the Blumont Road house. Defendant said the rival
gang members were “not in line” and “out of bound.” Later, Mr. Ibarra told Sergeant
Shannon Laren that when he awoke in the garage, he saw defendant holding a gun.
Defendant was holding the gun in his left hand. Defendant’s arm was extended straight



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out. The gun was at a 45 degree angle and turned to the side. Mr. Ibarra saw defendant
pull the trigger.
       Mr. Ibarra told Sergeant Laren about a subsequent conversation with defendant.
After the shooting, defendant told Mr. Ibarra the rival gang members should not have
been at the Blumont Road house, they were out of their boundary. Defendant learned
Mr. Ibarra was at the house. Defendant had been trying to call Mr. Ibarra. Defendant
intended to tell Mr. Ibarra the rival gang members had to leave because they were out of
their area. Defendant was unable to reach Mr. Ibarra. Defendant said he then went to the
Blumont Road residence himself.
       There was some evidence defendant went to the Blumont Road house to address a
disagreement involving the gambling operation. George Guera was defendant’s fellow
gang member. The two men had known each other for many years. Mr. Guera operated
gambling machines in multiple places in Lynwood, Compton, Bellflower and South Gate.
Some of those places were residences. Mr. Guera had placed a gambling machine in the
Blumont Road garage. Mr. Guera put Ms. Ballesteros, one of defendant’s two
codefendants, in charge of that gambling machine. Ms. Ballesteros and Ms. Wing—who
lived in the home—evenly split the gambling profits. A day or so prior to the shooting, a
dispute arose after Ms. Ballesteros accused Mr. Ibarra of using counterfeit $20 bills.
Ms. Wing told Mr. Ibarra what Ms. Ballesteros had said about him. Mr. Ibarra
confronted Ms. Ballesteros. A heated argument ensued. Ms. Wing heard Ms. Ballesteros
threaten to have defendant “check” Mr. Ibarra. To “check” Mr. Ibarra would be to put
him in his place or discipline him. Defendant testified he had heard about the dispute.
Defendant went to the Blumont Road house to talk to Mr. Ibarra and Ms. Wing. Sergeant
Laren spoke to Mr. Ibarra about why defendant came to the house. While testifying,
Sergeant Laren was asked about the conversation with Mr. Ibarra, “You asked him . . . if
he believed that [defendant] and [Mr. Verduzco] were coming by to check him . . . ?”
According Sergeant Laren, Mr. Ibarra’s answer was, “No, definitely not.” In terms of the
dispute over the $20 bill, Mr. Ibarra revealed to Sergeant Laren what defendant had said
about the subject. Defendant stated he could care less about the $20 dispute.

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         There was additional evidence defendant went to the Blumont Road house to
retaliate against the rival gang for selling methamphetamine in territory claimed by his
gang. Moises Medina, a member of the rival Compton gang, had been selling
methamphetamine from the Blumont Road house. Ms. Wing was nervous when
defendant and Mr. Verduzco showed up at her house because there were rival gang
members present. She knew that some gangs did not like other gangs coming into their
territory and selling drugs. Mr. Ibarra testified the shooting was about the rival gang
coming into the area to sell narcotics. Sergeant Laren testified gangs are very territorial.
They do not like other gangs selling narcotics in their area. It is a major offense. Deputy
Fernando Sarti testified a gang would need permission to sell dope out of a house claimed
by a rival gang. Absent permission, a verbal confrontation, beating or shooting was
likely to occur.
         Mr. Medina testified for the defense. He had been selling methamphetamine from
the Blumont Road house. He was in the garage with two of his fellow gang members,
including the victim, when three guys came in. Mr. Medina had never seen them before.
He heard a gunshot. At the preliminary hearing, Mr. Medina testified the gunman said,
“Everybody get the fuck out.” Sergeant Cotter interviewed Mr. Medina following the
shooting. Mr. Medina said three men entered the garage. He later said it was two men.
The shooter said, “Get the fuck out of here.” Mr. Medina did not want to identify
anyone. Mr. Medina told Sergeant Cotter: “I don’t want this on paper. I don’t need that
shit.”
         Defendant testified he: was unarmed when he arrived at the Blumont Road house;
had not visited the home for eight or nine months; had been in drug rehabilitation and
was not using methamphetamine anymore; did not know about the gambling operation;
and had heard about an argument involving Mr. Ibarra and Ms. Wing. Defendant told
Mr. Verduzco, “Let’s go see if I can find [Ms. Wing] and [Mr. Ibarra] so I can talk to
them.” Defendant testified he was unarmed and did not know there were rival gang
members present until Ms. Wing told him. Upon seeing Mr. Ibarra, defendant told
everyone to get out. When asked why he ordered everybody to leave, defendant

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answered: “Because it didn’t concern them. So I figured, well, you know what, this is
none of your business. You guys get out.” Defendant testified Mr. Reyes first produced
a firearm. Defendant testified: “He was withdrawing a gun from his waist with his right
hand. I grabbed his gun with my left hand and then I grabbed the barrel. We began to
struggle. I told him, ‘Don’t do it. Let it go.’” Other people in the room began to yell and
run for the door. Defendant described the continuing struggle with Mr. Reyes: “[A]s I
stripped it, I like snatched it out of his hand. When I seen - - he wasn’t going to stop me,
so I just snatched it out. In the process of snatching it out I jumped back. Jerked it. He
went to turn towards the door. Everybody is already running. Everybody is bolting for
the doors. [¶] So at that time as I jerked, I gripped the gun. As I gripped and pulled,
that’s when it discharged.” Defendant then fled through the same door he had used to
originally enter the room. Defendant took the gun with him when he fled. It was a Glock
semi-automatic handgun.
       Dr. Marvin Pietruszka, a pathologist, testified for the defense. Dr. Pietruszka
testified the victim was shot from at least two feet away. There was no soot or stippling
indicating a closer range.


                                    III. DISCUSSION


                                   A. Evidentiary Error


       Defendant argues it was prejudicial error to admit Ms. Ballesteros’s statement she
was going to call defendant to “check” Mr. Ibarra. As noted, to “check” refers to putting
a person in his or her place or disciplining the individual. Defendant asserts, “[The
statement] supplied [defendant] with a sinister motive for going to the house on Blumont
Road.” Defendant further contends, “That statement gave the jury the indelible
impression that [defendant] was an enforcer for [Mr.] Guera[, who ran the gambling
operation,] and had been charged with ‘putting things in order’ for the . . . gang at the
Blumont Road house.” Defendant reasons that if the jurors believed he was a gang

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enforcer, they would have rejected his claims: he went to the house simply to resolve a
dispute; he was unarmed; and that the gun fired accidentally. We find no prejudice.
       There was testimony Ms. Ballesteros said she was going let defendant know about
Mr. Ibarra’s counterfeit bills. Upon defense objection, the trial court stated the evidence
would be limited to defendant and Ms. Ballesteros. The trial court directed the jury,
“Ladies and gentlemen, you are only to consider this conversation she is talking about to
Mr. Gavino Ramos and Miss Isabel Ballesteros.” In Mr. Ibarra’s prior recorded
testimony, the following was developed: “Q Did you tell the police that [Ms. Wing] told
you that [Ms. Ballesteros] was going to call [Mr. Guera] and [defendant] to come check
you? [¶] A Yes [¶] Q Did [Ms. Wing] tell you that? [¶] A Yes.” Additionally,
Sergeant Laren confirmed Mr. Ibarra’s claim concerning Ms. Wing’s intention to call
Mr. Guera and defendant. The trial court directed the jury that this evidence was limited
solely to Ms. Ballesteros.
       We need not determine whether the trial court erred. We find the error, if any,
was harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24;
People v. Watson (1956) 46 Cal.2d 818, 836.) The pivotal question was whether
defendant was armed or unarmed and the shooting was intentional or accidental.
Defendant claimed he was unarmed. Defendant testified it was Mr. Reyes who had a
gun. And defendant’s version was that the gun discharged accidentally during a struggle
with the victim. Defendant’s version of the events was not corroborated. There was no
evidence any other person present was armed. Prior to defendant’s arrival in the garage,
Ms. Wing had not seen anyone with a gun. She had not heard anyone talk about having a
gun. Mr. Medina was selling methamphetamine in the garage. Ms. Torres had not seen
Mr. Medina with a gun. Mr. Medina did not mention having a gun. Four eyewitnesses
saw defendant remove a gun from his waistband or pocket immediately prior to the
shooting. No witness saw defendant struggle with anyone. Even Mr. Medina, who
testified for the defense, did not testify about any struggle. None of the people present
saw Mr. Reyes with a gun or saw defendant struggle with the victim. Further, there was
substantial evidence defendant’s motive was to retaliate against the rival gang for selling

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methamphetamine in defendant’s gang’s territory. Given that evidence, Ms. Ballesteros’s
statement could not have prejudiced defendant’s case under any prejudice based standard
of reversible error.


                                       B. Sentencing


                             1. Section 667, subdivision (a)(1)


       The trial court enhanced defendant’s sentence by 25 years under section 667,
subdivision (a)(1). Defendant contends, the Attorney General concedes, and we agree
defendant was subject to only one five-year section 667, subdivision (a)(1) prior serious
felony conviction enhancement for an offense brought and tried separately. (§ 667, subd.
(a)(1); In re Harris (1989) 49 Cal.3d 131, 136; see People v. Wiley (1995) 9 Cal.4th 580,
583.) The judgment must be modified to so provide.


                 2. Sections 667, subdivisions (b) through (i) and 1170.12


       The information alleged defendant had three prior convictions within the meaning
of sections 667, subdivisions (b) through (i) and 1170.12 (case No. TA026160).
Defendant waived his jury trial right as to those allegations. The trial court found
defendant had five such prior convictions. Defendant’s current conviction is for second
degree murder, a violent felony. (§ 667.5, subd. (c)(1).) The trial court sentenced
defendant to 15 years to life for second degree murder, doubled, for a total of 30 years to
life. That sentence did not comply with the statutory sentencing scheme. In sentencing
defendant for second degree murder, the trial court was required to first calculate the
greatest minimum term under three statutory options. (§§ 667, subd. (c)(2)(A), 1170.12,
subd. (c)(2)(A); People v. Dotson (1997) 16 Cal.4th 547, 550.) Under the first option, the
term otherwise provided for second degree murder is 15 years to life. Three times that
term is 45 years to life. (§§ 667, subd. (c)(2)(A)(i), 1170.12, subd. (c)(2)(A)(i); People v.

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Acosta (2002) 29 Cal.4th 105, 116; People v. Dotson, supra, 16 Cal.4th at p. 552.) The
term under the second option is 25 years. (§§ 667, subd. (c)(2)(A)(ii), 1170.12, subd.
(c)(2)(A)(ii); People v. Dotson, supra, 16 Cal.4th at p. 552.) Under option three, the
sentence would be 45 years to life. The minimum term would be 15 years to life for
second degree murder. Added to that term is 25 years to life for firearm use (§ 12022.53,
subd. (d) and 5 years for the prior conviction. (§§ 667, subd. (c)(2)(A)(iii), 1170.12,
subd. (c)(2)(A)(iii); see People v. Dotson, supra, 16 Cal.4th at p. 553.) Therefore, the
greatest minimum term was 45 years to life, not 30 years to life.
       Defendant argues we should presume the trial court exercised its discretion under
section 1385, subdivision (a) and struck a prior conviction. There is no basis for such a
presumption. The trial court never expressed its intent to strike a prior conviction
allegation. Moreover, the trial court failed to set forth in the minutes any reasons for
striking a prior conviction allegation as required by section 1385, subdivision (a). Under
these circumstances, we cannot presume the trial court struck a prior conviction
allegation. (See People v. Williams (1998) 17 Cal.4th 148, 162; People v. Hunt (1977) 19
Cal.3d 888, 896-897; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 532;
People v. Orin (1975) 13 Cal.3d 937, 943-944.) Any intent to strike a prior conviction
allegation was invalid. (Ibid.; see People v. Allan (1996) 49 Cal.App.4th 1507, 1515.)
Upon remittitur issuance, the trial court must either comply with section 1385,
subdivision (a) or impose a 45-year-to-life sentence for second degree murder.


                             3. Section 667.5, Subdivision (b)


       The information alleged defendant had served a prior separate prison term in case
No. TA026160. The trial court specifically declined to make any finding with respect to
that allegation. The trial court had authority to strike the prior prison term allegation or
the punishment for the enhancement, but it was required to set forth in the minutes its
reasons for doing so. (§ 1385, subds. (a) & (c)(1); People v. Torres (2013) 213
Cal.App.4th 1151, 1161; People v. Garcia (2008) 167 Cal.App.4th 1550, 1559-1563.)

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Upon remittitur issuance, the trial court must either impose the enhancement or strike it
and set forth its reasons for doing so.


                                     IV. DISPOSITION


       The sentence is reversed insofar as the trial court imposed a 30-year-to-life
sentence for second degree murder. Upon remittitur issuance, the trial must either
comply with Penal Code section 1385, subdivision (a) and strike the prior serious
conviction, or impose a 45-year-to-life sentence for second degree murder. The sentence
is further modified to impose only one five-year section 667, subdivision (a)(1) prior
serious felony conviction enhancement for an offense brought and tried separately. Upon
remittitur issuance, the trial court must impose or strike a one-year enhancement under
Penal Code section 667.5, subdivision (b). If the trial court determines to strike the prior
prison term enhancement, it must state in the minutes its reasons for doing so. The
judgment is affirmed in all other respects.
                             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                             TURNER, P.J.


We concur:


       KRIEGLER, J.


       KUMAR, J.




       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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