Filed 10/22/19; Certified for Publication 11/6/19 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
           SECOND APPELLATE DISTRICT
                  DIVISION TWO

THE PEOPLE,                                               B296710

        Plaintiff and Respondent,                         (Los Angeles County
                                                          Super. Ct. No. KA060104)
        v.

RAYMOND SALVADOR RAMIREZ,

        Defendant and Appellant.




       APPEAL from orders of the Superior Court of Los Angeles
County. Bruce F. Marrs, Judge. Reversed and remanded with
directions.

     Jennifer Hansen, under appointment by the Court of
Appeal, for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Idan Ivri and Jonathan M. Krauss,
Deputy Attorneys General, for Plaintiff and Respondent.
      Appellant and defendant Raymond Salvador Ramirez
(defendant) appeals from the summary denial of his petition to
vacate his 2003 murder conviction and to resentence him, filed
pursuant to Penal Code section 1170.95.1 He contends that the
trial court failed to follow the procedural requirements of the
statute. Respondent agrees. Defendant also contends that on
remand, the trial court should be directed to grant the petition
and resentence defendant on the remaining charges. We agree,
and reverse and remand the matter with directions.
                           BACKGROUND
       Defendant was convicted in 2003 of first degree felony
murder with special circumstance under former section 190.2,
subdivisions (a)(17) and (d). The jury found true the special
circumstance that defendant was an aider and abettor of the
robbery who acted as a major participant with reckless
indifference to human life. Defendant was also convicted of two
counts of second degree robbery, assault with a deadly weapon,
and conspiracy to commit robbery. The trial court sentenced
defendant to life in prison without the possibility of parole, and
stayed the sentences imposed as to the remaining counts. On
direct appeal this court held that substantial evidence supported
the finding of special circumstance, and affirmed the judgment.
The California Supreme Court denied review. (See People v.
Lopez (Oct. 6, 2004, B170919) [nonpub. opn.].)
       In 2017, defendant filed in this court a petition for habeas
corpus, seeking relief based on the California Supreme Court
decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks) and
People v. Clark (2016) 63 Cal.4th 522 (Clark), which reviewed the

1     All further statutory references are to the Penal Code,
unless otherwise indicated.




                                 2
factors established by the United States Supreme Court for
determining whether an aider and abettor of felony murder who
was not the actual killer nor harbored an intent to kill, was a
major participant who acted with a reckless indifference to
human life.2 Defendant’s habeas petition alleged that these two
required elements were not supported by substantial evidence.
We agreed and granted the petition, struck the finding of special
circumstances, and remanded the matter to the trial court for
resentencing. (In re Raymond S. Ramirez (Dec. 19, 2017,
B282005) [nonpub. opn.] (Ramirez I).) On October 31, 2018, the
trial court resentenced defendant to a term of 25 years to life on
the murder count. The sentences on the remaining counts were
not changed.
       The evidence showed that in 2002, defendant, his
codefendants Juan Soto, Frank Quintero, Vincent Lopez, and
Lorraine Calvillo participated in the armed robbery of a tax
service business, planned by Lopez and Soto. On the way to the
business, Soto said there was “a clear box of money” and that
“they were just going to go inside just to check it out and they
would be right out.” Soto, Quintero, and Lopez entered the
business, while defendant waited outside as a lookout and
Calvillo remained in the car as the getaway driver. When the co-
owner of business saw the men enter she screamed. Soto then
shot and killed her. In another room, one of the three
codefendants robbed the other occupants of the business at
gunpoint. The three men then broke open a charity donation box
and left with the money. A neighboring business owner heard


2     See Tison v. Arizona (1987) 481 U.S. 137, and Enmund v.
Florida (1982) 458 U.S. 782.




                                3
the gunfire, and when he came outside to look, defendant and at
least one of the other men struck him. The men then ran to the
getaway car and discussed the robbery as Calvillo drove them
from the scene. Soto explained that he shot the murder victim
because she screamed and would not “shut up.” Defendant
admitted he had hit the neighboring business owner. (See
Ramirez I, supra, at pp. 2-5; see also People v. Lopez, supra, at
pp. 16-17.) We concluded that the evidence established that
defendant was not the actual killer in this case, that he remained
outside, that he had no forewarning that one of his accomplices
would shoot a victim, he did not instigate the shooting, and he
was not in a position to prevent it; thus, under the Banks and
Clark factors, the prior “finding that [defendant] was a major
participant who acted with reckless indifference to human life
[was] not supportable.” (Ramirez I, at pp. 10-11.)
       One month before defendant’s resentencing on September
30, 2018, the Governor signed Senate Bill No. 1437 (S.B. 1437) in
order to “amend the felony murder rule and the natural and
probable consequences doctrine, as it relates to murder, to ensure
that murder liability is not imposed on a person who is not the
actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f).) S.B. 1437 also added Penal Code section 1170.95,
which created a procedure whereby a person whose felony
murder conviction was final, but who could not have been
convicted under the amended statutes, could petition to have the
conviction vacated. (§ 1170.95, subd. (a).)
       S.B. 1437 went into effect on January 1, 2019. (See Stats.
2018, ch. 1015, § 4.) Two days later defendant filed a petition




                                4
pursuant to section 1170.95 to vacate his felony murder
conviction. In March 2019, the prosecution was granted an
extension to May 24, to file a response to the petition. Defendant
filed a written objection to the request for an extension of time,
along with a motion requesting the court to immediately vacate
his felony murder conviction and resentence him. On March 14,
2019, without the prosecution’s response and without the parties
or counsel present, the trial court overruled defendant’s objection
and denied his motion and petition. The court found that
defendant was not entitled to relief as a matter of law, and stated
its reasoning as follows:
              “The appellate opinion affirming the
       petitioner’s conviction and sentence reflects that the
       petitioner was not the actual killer and was convicted
       of murder on a theory of being a direct perpetrator
       and with the intent to kill or a major participant and
       with reckless indifference to human life. The jury
       also found the special circumstances under Penal
       Code section 190.2(a)(17) to be true, which the
       opinion affirmed.”

      Defendant filed a timely notice of appeal from the denial of
his petition.
                             DISCUSSION
      Defendant contends that the trial court erred in denying
the petition, in failing to follow the procedures mandated by
section 1170.95, and in relying on our 2004 opinion. Respondent
agrees that the trial court erred and that the order must be
reversed.
      S.B. 1437 added section 1170.95 and amended sections 188
and 189. As amended, section 188 limits a finding of malice:
“Except as stated in subdivision (e) of Section 189, in order to be




                                 5
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3).)
As added by S.B. 1437, subdivision (e) of section 189 reads: “A
participant in the perpetration or attempted perpetration of a
felony listed in subdivision (a) [including robbery] in which a
death occurs is liable for murder only if one of the following is
proven:
       “(1) The person was the actual killer.

      “(2) The person was not the actual killer, but, with
      the intent to kill, aided, abetted, counseled,
      commanded, induced, solicited, requested, or assisted
      the actual killer in the commission of murder in the
      first degree.

      “(3) The person was a major participant in the
      underlying felony and acted with reckless
      indifference to human life, as described in subdivision
      (d) of Section 190.2.”

       A petition under section 1170.95 must allege the following:
“(1) A complaint, information, or indictment was filed against the
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine[;] [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder[;] [¶] [and] (3)
The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3).) In addition, the




                                  6
petition must include the petitioner’s declaration showing
eligibility under all three enumerated conditions, as well as the
superior court case number, year of conviction, and any request
for appointment of counsel. (§ 1170.95, subd. (b)(1).) Section
1170.95, subdivision (c) requires the superior court to review the
petition and determine whether the petitioner has made a prima
facie showing of entitlement to relief. Unless time is extended for
good cause, the prosecutor must file a response and the petitioner
may file a reply within specified time limits. (§ 1170.95, subd.
(c).)
       A prima facie showing of eligibility triggers the trial court’s
obligation to issue an order to show cause and either hold a
hearing, give the parties an opportunity waive a hearing and
stipulate to eligibility, or “[i]f there was a prior finding by a court
or jury that the petitioner did not act with reckless indifference to
human life or was not a major participant in the felony, the court
shall vacate the petitioner’s conviction and resentence the
petitioner.” (§ 1170.95, subds. (c), (d)(1) & (d)(2).) If a hearing is
held, the prosecution has the burden to prove beyond a
reasonable doubt, that petitioner is ineligible for resentencing.
(§ 1170.95, subd. (d)(3).) If the prosecution fails to sustain its
burden of proof the trial court is required to vacate the prior
conviction and resentence the petitioner on the remaining
charges. (§ 1170.95, subd. (d)(3).)
       Here, it appears from our review of the petition and
declaration that defendant successfully made a prima facie
showing of entitlement to relief. In the declaration attached to
the petition defendant satisfied all three requirements of section
1170.95, subdivision (b)(1). He gave his name, the case number
of superior court in which he was convicted by jury of first degree




                                  7
felony murder, the date of conviction, and the date of the filing of
the information which allowed the prosecution to proceed on that
charge. Defendant also averred in his declaration that he could
not have been convicted of murder under the changes to sections
188 or 189 which became effective January 1, 2019. Evidence
supporting defendant’s statements is attached to the petition,
including copies of the information, abstracts of judgment, our
2017 opinion in Ramirez I, the relevant amended and newly
enacted statutes, relevant CALJIC instructions given, and the
jury’s verdicts. The trial court nevertheless failed to require a
response, hold a hearing, or give the parties an opportunity to
waive a hearing and stipulate to eligibility. The trial court also
disregarded the prior finding of this court that defendant was not
a major participant in the robbery who acted with reckless
indifference to human life.
       Defendant contends that the trial court was required to
grant the petition and vacate the murder conviction without a
hearing as he requested in his motion for immediate
resentencing, and that the only issue on reversal and remand
should be resentencing. Defendant refers to the mandatory
language in section 1170.95, subdivision (d)(2): “the court shall
vacate the petitioner’s conviction and resentence the petitioner” if
there was a prior court finding that he was not a major
participant who acted with reckless indifference to human life.
(Italics added.)
       Respondent acknowledges that the reference in the trial
court’s Memorandum of Decision to the “appellate opinion
affirming the petitioner’s conviction and sentence,” could not
have been a reference to our later opinion granting defendant’s
habeas petition. In our opinion granting habeas relief, we




                                 8
reasoned that “[a]s an unarmed lookout with little to no role in
the planning of the crime or the use of firearms, and with no
direct involvement in the unforeseen shooting, it cannot
reasonably be said that petitioner was a major participant,” and
we concluded, contrary to the holding of our earlier opinion, that
substantial evidence did not support a finding that defendant was
a “major participant who acted with reckless indifference to
human life.” (Ramirez I, supra, at pp. 11-12.)
      Although respondent agrees with defendant that the trial
court’s ruling was in error and should be reversed, he asks that
we not direct the court to enter an order granting the petition,
but that we instead direct the court to follow the proper statutory
procedures. He argues that mandatory vacatur under section
1170.95, subdivision (d)(2) is premature, reasoning that because
defendant had made the required prima facie showing, the next
step in the procedure was the issuance of an order to show cause
and a response from the prosecutor within 60 days, as required
by section 1170.95, subdivision (c). Respondent also argues that
remand without directing the trial court to vacate the murder
conviction would not be an idle or hollow act, for the following
reasons: “[S]uperior courts will benefit from uniform guidance on
the proper procedures to follow”; and the prosecution should be
given the opportunity to challenge defendant’s interpretation of
section 1170.95, subdivision (d)(2), as well as to make any other
appropriate legal arguments.
      Respondent does not suggest what legal argument might be
made in the trial court regarding the interpretation of the
statute, or how the trial court might provide uniform guidance to
other courts on procedures which are clearly set forth in the
statute. The construction and interpretation of a statute is a




                                9
question of law that we consider de novo on appeal. (Burden v.
Snowden (1992) 2 Cal.4th 556, 562.) As defendant’s
interpretation of section 1170.95, subdivision (d)(2) was at issue
in the petition and the motion for immediate resentencing, and
defendant has raised the issue here, we decline respondent’s
request to refer it to the trial court.
       “The fundamental purpose of statutory construction is to
ascertain the intent of the lawmakers so as to effectuate the
purpose of the law. [Citations.]” (People v. Pieters (1991) 52
Cal.3d 894, 898.) In this case, we have the Legislature’s own
expression of its intent and the purpose of the law in the statute
itself. (See Stats. 2018, ch. 1015, § 1.) In section 1 of the statute,
the Legislature declared in relevant part as follows:
       “(a) . . . .

      “(b) There is a need for statutory changes to more
      equitably sentence offenders in accordance with their
      involvement in homicides.

      “(c) . . . .

      “(d) It is a bedrock principle of the law and of equity
      that a person should be punished for his or her
      actions according to his or her own level of individual
      culpability.

      “(e) Reform is needed in California to limit
      convictions and subsequent sentencing so that the
      law of California fairly addresses the culpability of
      the individual and assists in the reduction of prison
      overcrowding, which partially results from lengthy
      sentences that are not commensurate with the
      culpability of the individual.




                                  10
      “(f) It is necessary to amend the felony murder rule
      and the natural and probable consequences doctrine,
      as it relates to murder, to ensure that murder
      liability is not imposed on a person who is not the
      actual killer, did not act with the intent to kill, or was
      not a major participant in the underlying felony who
      acted with reckless indifference to human life.

      “(g) Except as stated in subdivision (e) of Section 189
      of the Penal Code, a conviction for murder requires
      that a person act with malice aforethought. A
      person’s culpability for murder must be premised
      upon that person’s own actions and subjective mens
      rea.”

       Defendant argues that whenever the word “shall” is used in
a statute, as it is in section 1170.95, subdivision (d)(2), it
expresses a mandatory duty. This is not always the case, as
“shall” can also be directory or denote future operation. (People v.
Ledesma (1997) 16 Cal.4th 90, 95.) “When language which is
susceptible of two constructions is used in a penal law, the policy
of this state is to construe the statute as favorably to the
defendant as its language and the circumstance of its application
reasonably permit. The defendant is entitled to the benefit of
every reasonable doubt as to the true interpretation of words or
the construction of a statute. [Citations.]” (People v. Overstreet
(1986) 42 Cal.3d 891, 896.) Thus, statutes defining criminal
liability and punishment are generally strictly construed in favor
of protecting the accused’s due process rights. (People ex rel.
Lungren v. Superior Court (1996) 14 Cal.4th 294, 313.) To this
end and “[w]herever possible, a statute is to be construed in a
way which will render it reasonable, fair and harmonious with its
manifest purpose, and which will conform with the spirit of the




                                 11
act. [Citation.]” (County of Los Angeles v. Frisbie (1942) 19
Cal.2d 634, 644.)
       We thus construe the word “shall” in section 1170.95,
subdivision (d)(2) as imposing a mandatory duty on the court to
vacate defendant’s sentence and resentence him whenever there
is a prior finding of this court that the defendant was not a major
participant in the underlying felony and did not act with reckless
indifference to human life. Moreover, as we explain, we construe
subdivision (d)(2) as requiring the court to proceed directly to
resentencing under such a circumstance.3 Each section of a
statute must be construed in context, keeping in mind the
statutory purpose, and harmonizing related sections to the extent
possible. (People v. Simon (1995) 9 Cal.4th 493, 514.) The first
sentence of subdivision (d)(2) expressly provides that the parties
may waive a hearing and stipulate to eligibility for relief. The
next sentence mandates vacatur and resentencing due to a prior
court finding. The provision’s placement in the same
subparagraph suggests that both sentences are meant to

3      Respondent notes that the statute provides that at the
hearing on the petition, if any, both parties “may rely on the
record of conviction or offer new or additional evidence to meet
their respective burdens.” (§ 1170.95, subd. (d)(3).) Respondent
does not suggest that this provision would permit the prosecutor
to retry our conclusion in Ramirez I that the evidence did not
support a finding that defendant was a major participant in the
crime who acted with reckless indifference to human life. As
defendant has suggested, such a move could implicate double
jeopardy concerns. (Cf. People v. Seel (2004) 34 Cal.4th 535, 542.
As we construe section 1170.95, subdivision (d)(2) as calling for
immediate sentencing, thus foreclosing such a retrial, we need
not reach the constitutional issue raised by defendant.




                                12
streamline the process, one with a waiver, the other with a
presumption. If we directed the trial court to issue an order to
show cause and hold a hearing to consider whether to vacate
defendant’s murder conviction, as respondent suggests, this
would not change the subdivision’s mandate. It would serve no
purpose other than delay.
       Furthermore, the delay proposed by respondent would run
directly counter to the statute’s stated purpose of eliminating
lengthy sentences which have been declared incommensurate
with the culpability of defendants such as defendant, as well as
the Legislature’s goal of reducing prison overcrowding. (See
Stats. 2018, ch. 1015, § 1.) Defendant has served almost 16 years
of his life sentence with a minimum parole date of 25 years. He
notes, resentencing on the previously stayed counts would yield a
maximum sentence of eight years in prison.4 Upon resentencing,
defendant must be given credit for the time he has served, which
is greater than all the time that could be imposed for his crimes.
      It is beyond dispute that this court found that the
defendant was not shown to have been a major participant in the
underlying felony, or to have acted with reckless indifference to
human life. (Ramirez I, supra, at pp. 11-12.) Under these
circumstances, the trial court was required by section 1170.95,
subdivision (d)(2) to vacate the conviction and resentence

4      The maximum would be calculated as follows: assuming
that count 5, conspiracy to commit robbery would again be stayed
under section 654 (see People v. Ramirez (1987) 189 Cal.App.3d
603, 615-616), the base term, robbery in count 1, would carry the
high term of five years; and as the middle term for each of counts
2, 3, and 4 is three years, three consecutive terms of one year
(one-third the middle term) would be added to the base term.
(See §§ 212, 245, subd. (a)(1), 1170.1, subd. (a).)




                                13
defendant on the remaining counts. We thus order the trial court
to do so.
                         DISPOSITION
       The order denying defendant’s petition to vacate his
murder conviction and for resentencing is reversed. The matter
is remanded to the superior court with directions to grant the
petition, vacate defendant’s murder conviction, and resentence
him on the remaining counts.




                             ____________________________, J.
                             CHAVEZ
We concur:


__________________________, P. J.
LUI


__________________________, J.
ASHMANN-GERST




                                 14
Filed 11/6/19
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                         DIVISION TWO

THE PEOPLE,                                    B296710

       Plaintiff and Respondent,               (Los Angeles County
                                               Super. Ct. No. KA060104)
       v.

RAYMOND SALVADOR RAMIREZ,

       Defendant and Appellant.



THE COURT:*


       The opinion in the above entitled matter filed on October
22, 2019, was not certified for publication.


       For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.


                                                       ___________
*LUI, P. J.        ASHMANN-GERST, J.               CHAVEZ, J.
