Filed 9/2/15 P. v. Ramirez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G049845

         v.                                                            (Super. Ct. No. 11NF0916)

CHARLES THOMAS RAMIREZ, JR.,                                           OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, James A.
Stotler, Judge. Affirmed.
                   Marcia R. Clark, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Charles Thomas Ramirez, Jr., of first degree
                                      1
murder (Pen. Code, § 187, subd. (a)) and found true the enhancement he personally
discharged a firearm causing death (§ 12022.53, subd. (d)). The court sentenced
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defendant to a total prison term of 50 years to life.
              Defendant contends the court erred by instructing the jury with CALCRIM
No. 334, which defines the term “accomplice.” We disagree and affirm the judgment.


                                           FACTS


              Marc Luna testified for both the prosecution and the defense. Luna
testified for the prosecution pursuant to an agreement that if he truthfully testified
consistently with his proffer statement, the first degree murder charge against him would
be dismissed and he would serve a four-year prison term for being an accessory after the
    3
fact.


The Prosecution’s Case
              1. Luna’s testimony for the prosecution.
              Luna lived in a house with his wife, her parents, and defendant (Luna’s
wife’s brother). The house was in an area claimed by the Fullerton Tokers Town gang



1
              All statutory references are to the Penal Code.
2
              The court sentenced defendant to a term of 25 years to life for the murder
conviction and a consecutive term of 25 years to life for the enhancement. Pursuant to
section 1385, the court exercised its discretion to strike defendant’s prior petty theft
conviction.
3
              The information also charged codefendant Luna with first degree murder
and acting as an accessory after the fact.

                                              2
(Tokers gang). Prior to the date of the shooting, Tokers gang members had “hassled”
Luna and, on one occasion, had beaten him up pretty badly.
               On March 17, 2011, around 9:00 p.m., Luna was walking home from a
Narcotics Anonymous meeting in Fullerton. He regularly attended such meetings. On
this occasion, as he walked down an alley, three white men demanded to see his phone,
approached him, and pushed him to the ground. Luna got up and ran home.
               Upon arriving home, Luna realized he did not have his cell phone. Luna
told his wife he had to go back and get his phone. Defendant went with Luna, although
Luna had not asked him to do so.
               Luna and defendant walked back to the area where Luna had lost his cell
phone. After finding the phone, defendant asked Luna to walk with him up the dark
alleyway.
               After walking a little further, Luna saw two Hispanic men who appeared to
be changing a tire on a minivan. Luna told defendant the Hispanic men were not the
same persons who had attacked him. Defendant acknowledged he knew this, but said,
“I’ve got to get at these fools real quick.”
               Defendant whistled and went to talk to the men. Luna heard defendant say,
“Homey,” in an “aggressive” tone. Luna heard one of the men laugh in defendant’s face.
Defendant punched the young man in the face, knocking him to the ground. The victim
grabbed a tire iron and tried to run. Defendant pulled out a gun and shot the victim. The
victim fell.
               Luna ran home. Defendant arrived there a few minutes later. Defendant
told Luna, “Don’t say shit, dawg.” Luna did not report the incident to the police.
               Later, in jail, when Luna asked defendant why he had shot the victim,
defendant replied that he had “just meant to shoot him in the ass.”




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             2. Other prosecution evidence.
             A forensic pathologist testified the victim died of a gunshot wound to the
head and was shot from over two feet away.


Defense
                                         5
             1. Defendant’s testimony.
             Defendant testified on his own behalf. On the night of the shooting, Luna
had come home and told defendant that Tokers gang members had “got [him] again.”
Defendant noticed blood trickling down Luna’s cheek. Defendant knew that Luna had
previously been attacked twice by the Tokers gang.
             That night, defendant carried a gun for protection because he and his family
members had been stopped or hurt by Tokers gang members many times in the past.
Defendant was not carrying the gun for retaliation.
             When defendant and Luna reached the alley, defendant was aware that
Tokers gang members sometimes hung out there. Defendant hoped to reach a “peaceful”
agreement where “this could stop happening,” because defendant’s parents owned their
house and did not plan to move soon. Defendant felt sad and bad for Luna, who kept
getting hurt and was now bleeding.
             Defendant saw two young men in the alley. Defendant whistled.
Defendant asked them where they were from. The victim replied they were from “Tokers
Town.” Defendant said, “You guys keep jumping my brother-in-law . . . . It’s got to
stop, man.” Defendant gestured toward Luna, who was standing around 10 or 15 feet



4
             Other witnesses testified for the People, including the victim’s companion
who saw the shooting.
5
             Other witnesses testified for the defense, including Luna.

                                             4
behind defendant since Luna was scared. The victim may have responded sarcastically or
even chuckled.
               Defendant hit the victim. The victim picked up a crowbar. Defendant, in
fear for his life, shot at the victim’s butt area or the back of his thighs.


                                        DISCUSSION


The Court Properly Instructed the Jury with CALCRIM No. 334
               Defendant contends the court erred by instructing the jury with CALCRIM
No. 334, because insufficient evidence showed Luna could have been an accomplice.
Defendant argues the error was prejudicial because the instruction “implicitly told the
jury that a crime had been committed which refuted [defendant’s] claim of self defense.”
               CALCRIM No. 334 applies when there is a dispute about whether a witness
is an accomplice to the crime charged against the defendant. The instruction defines the
term “accomplice,” and instructs the jurors they must decide whether a particular witness
                     6
was an accomplice. CALCRIM No. 334 then states that, if the jury decides a witness
was an accomplice, then the jury may use the accomplice’s testimony to convict the
defendant only if the testimony is supported by independent evidence which the jury
believes and which tends to connect the defendant to the commission of the crime.




6
              Defendant contends the following language of CALCRIM No. 334
presupposes, and thus implies to a jury, that the defendant did in fact commit a crime: “A
person is an accomplice if he or she is subject to prosecution for the identical crime
charged against the defendant. Someone is subject to prosecution if: He or she
personally committed the crime; or he or she knew of the criminal purpose of the person
who committed the crime; and he or she intended to, and did in fact, aid, facilitate,
promote, encourage, or instigate the commission of the crime or participate in a criminal
conspiracy to commit the crime.” (Italics added.)

                                                5
             The court determined substantial evidence suggested Luna could be an
                                                                      7
accomplice and therefore instructed the jury with CALCRIM No. 334.
             A person is an accomplice if he or she aids and abets a crime
charged against a defendant. (§ 1111; People v. Houston (2012) 54 Cal.4th 1186, 1223.)
To aid and abet a crime, a person (1) must have knowledge of the perpetrator’s criminal
purpose, and (2) must act with an intent to commit, or encourage or facilitate commission
of, the crime. (Id. at p. 1224.) A witness charged with the same crime as the defendant,
and who has been granted immunity, is not necessarily an accomplice. (People v.
Stankewitz (1990) 51 Cal.3d 72, 90.)
             Aiding and abetting must take place before and/or during the defendant’s
commission of a crime. It may be committed “‘on the spur of the moment,’ that is, as
instantaneously as the criminal act itself. [Citation.]” (People v. Nguyen (1993) 21
Cal.App.4th 518, 532.) A person’s conduct after the commission of a crime does not



7
               During the finalization of the instructions, the trial court and counsel
discussed whether CALCRIM No. 334 or CALCRIM No. 335 (or neither of them) should
be given. CALCRIM No. 335 applies when a witness is indisputedly an accomplice to a
crime that was indeed committed, and instructs the jury that it may use the accomplice’s
testimony to convict the defendant only if such testimony is supported by independent
evidence which the jury believes and which tends to connect the defendant to the
commission of the crime. The prosecutor argued CALCRIM No. 334 should be given
because, in the prosecution’s view, Luna was not an accomplice. Defense counsel argued
neither instruction should be given. She argued CALCRIM No. 334 “would be confusing
the way it’s worded.” Subsequently, the prosecutor changed his position, stating that
although the People believed CALCRIM No. 334 was the most accurate instruction, the
People did not oppose the giving of CALCRIM No. 335 if the defense wanted it.
Defense counsel had concerns about both instructions, but as between the two, preferred
CALCRIM No. 335 over CALCRIM No. 334. Defense counsel objected on the record to
the giving of CALCRIM No. 334. The court found the evidence was insufficient to show
Luna was an accomplice as a matter of law and therefore declined to give CALCRIM
No. 335, but determined sufficient evidence existed to support the giving of CALCRIM
No. 334.


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result in accomplice liability, but might implicate him or her as an accessory. (People v.
Horton (1995) 11 Cal.4th 1068, 1116.)
              “When a jury receives substantial evidence that a witness who has
implicated the defendant was an accomplice,” the trial court must sua sponte instruct the
jurors on accomplice testimony. (People v. Houston, supra, 54 Cal.4th at p. 1223.) The
court should instruct the jury with CALCRIM No. 334 when the facts concerning the
witness’s complicity “‘are disputed or susceptible of different inferences.’” (People v.
Cisneros (1973) 34 Cal.App.3d 399, 413 [as to CALJIC instructions on accomplice
testimony].) In contrast, the court should give CALCRIM No. 335 when the witness is
an accomplice as a matter of law. And, “‘where, as a matter of law, the witness is not an
accomplice, the court does not err in refusing to charge that he is or in refusing to submit
the issue to the jury.’” (Cisneros, at p. 413.)
              We review de novo defendant’s contention the court erred by instructing
the jury with CALCRIM No. 334. (People v. Alvarez (1996) 14 Cal.4th 155, 218.) But
we review for substantial evidentiary support the court’s finding that substantial evidence
implicated Luna as an accomplice. (People v. Boyer (2006) 38 Cal.4th 412, 466-467.)
Evidence sufficient to support a court’s giving of an instruction sua sponte is “evidence
sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury
could find persuasive” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8), as compared
to “‘minimal and insubstantial’” evidence (id. at p. 201 [concerning instruction on murder
in unreasonable self-defense]).
              Defendant contends the evidence is insufficient to show Luna was an
accomplice. He asserts there is no evidence Luna (1) asked him to accompany Luna to
retrieve Luna’s phone, (2) encouraged him to confront the victim, (3) knew what
defendant intended to do, (4) came closer than about 10 feet away from the encounter,
and/or (5) was involved in the confrontation.



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              The absence of direct evidence of any or all of the foregoing is not
dispositive. Luna was an accomplice if he “in any way, directly or indirectly, aided
[defendant], with knowledge of [defendant’s] wrongful purpose.” (In re Lynette G.
(1976) 54 Cal.App.3d 1087, 1094.) Circumstantial evidence may show the requisite
knowledge and intent. (People v. White (2014) 230 Cal.App.4th 305, 319.) There is no
requirement that the perpetrator expressly communicate his criminal purpose to the
accomplice. (People v. Nguyen, supra, 21 Cal.App.4th at p. 531.) “Factors to be
considered by the trier of fact in determining ‘whether one is an aider and abettor include
presence at the scene of the crime, failure to take steps to attempt to prevent the
commission of the crime, companionship, flight, and conduct before and after the
crime.’” (People v. Garcia (2008) 168 Cal.App.4th 261, 273.) Luna’s conduct met all
five factors suggesting aiding and abetting.
              The following substantial evidence supported the court’s determination that
Luna might have instigated and aided defendant’s murder of the victim, and might have
known of defendant’s purpose. Luna had previously been beaten up by Tokers gang
members. Luna’s and defendant’s home was located in an area claimed by the Tokers
gang, and defendant and his family had been harassed and hurt many times by Tokers
gang members. On the night of the shooting, Luna came home with a bleeding cheek and
told defendant that Tokers gang members had attacked him again. With defendant at his
side, Luna headed back to the same alley where he had just been attacked by three men.
After finding his phone, Luna did not immediately go home. Instead, he walked with
defendant further down the dark alley. Luna remained at the scene after he and defendant
encountered two young men. Luna remained there after defendant punched the victim in
the face. He remained there during the shooting. Only then did he flee the scene. This
evidence was sufficient to show (1) Luna knew of defendant’s intent to stop the Tokers
gang from harassing Luna, defendant, and defendant’s family members, by sending the
gang a serious and violent signal, and (2) Luna instigated and aided the crime by telling

                                               8
defendant the Tokers gang had assaulted Luna again — thereby triggering defendant’s
anger toward the Tokers gang, as well as defendant’s protective instincts toward Luna —
and by backing up defendant in the criminal plan.
               Defendant relies on People v. Cisneros, supra, 34 Cal.App.3d 399,
disapproved on other grounds in People v. Ray (1975) 14 Cal.3d 20, 30, footnote 8, and
People v. Hoover (1974) 12 Cal.3d 875, 880, but in both of those cases, the evidence was
insufficient to show the witness at issue was an accomplice. In Cisneros, one alleged
accomplice did not know or act in concert with the defendant. (Cisneros, at p. 414.) The
other alleged accomplice handed the defendant a gun upon the defendant’s request, but
there was no evidence indicating he “had any idea of the purpose for which [the]
defendant wanted his gun.” (Id. at p. 415.) In Hoover, the alleged accomplice was an
undercover F.B.I. agent who “had no inkling that the shooting was about to occur” and
turned over the gun to F.B.I. superiors after the incident. (Hoover, at p. 881.)
               Defendant also contends that People v. Jackson (1954) 42 Cal.2d 540,
should guide this court’s decision to find CALCRIM No. 334 was inappropriately given
to the jury. Jackson states, “It has long been the law that it is error to charge the jury on
abstract principles of law not pertinent to the issues in the case. [Citation.] The reason
for the rule is obvious. Such an instruction tends to confuse and mislead the jury by
injecting into the case matters which the undisputed evidence shows are not involved.”
(Jackson, at pp. 546-547.) However, since there was substantial evidence from which a
jury could conclude that Luna was an accomplice, CALCRIM No. 334 addresses an issue
pertinent to the case. Indeed, Jackson further explains, “But if the evidence discloses
facts pertinent to the case . . . the court . . . must instruct the jury with reference to the
applicable law when requested by either party and may do so even though no request has
been made.” (Jackson, at p. 547.) In this case, the court was required to give CALCRIM
No. 334 sua sponte. Thus, Jackson supports the notion that the trial court correctly
instructed the jury with CALCRIM No. 334.

                                                9
              In sum, the evidence supports the giving of the accomplice instruction.
Because we conclude the trial court did not err in giving CALCRIM No. 334, we need
not address defendant’s contention the alleged error was prejudicial because “the
instruction improperly encouraged the jury to find that [defendant] had committed a
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crime and therefore reject [his] claim of self defense.”


                                      DISPOSITION


              The judgment is affirmed.


                                                  IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



FYBEL, J.




8
               To the extent defendant intends to raise a constitutional challenge to
CALCRIM No. 334, he has waived the challenge by failing to adequately brief it with
reasoned argument and legal authority. (Cal. Rules of Court, rule 8.204(a)(1)(B); People
v. Stanley (1995) 10 Cal.4th 764, 793.) To the extent defendant intends to argue the
instruction was confusing as given in this case, defense counsel below failed to request a
modification of CALCRIM No. 334, thereby forfeiting the issue on appeal. (People v.
Hernandez (2010) 183 Cal.App.4th 1327, 1331 [trial court has no sua sponte duty to give
clarifying or amplifying instructions].)

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