P. v. Ramirez

Filed 1/11/02
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication
or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
PAUL GUERRERO RAMIREZ,
Defendant and Appellant.
B144510
(Los Angeles County
Super. Ct. No. BA190437)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Stephen E. O’Neil, Judge. Modified and affirmed with directions.
________
Jill M. Bojarski, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney
General, Marc E. Turchin and Pamela C. Hamanaka, Assistant Attorneys General,
William T. Harter, Linda C. Johnson, and Jeffrey A. Hoskinson, Deputy Attorneys
General, for Plaintiff and Respondent.
________

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2
Paul Ramirez appeals from the judgment entered after his conviction by jury of
attempted premeditated murder of Carlos Pedroza (count 1), two counts of driving a
vehicle from which he permitted someone to discharge a firearm (lesser crimes of
attempted murders charged as counts 2 and 3, of which defendant was acquitted, and
referred to below as counts 2 and 3), shooting at an occupied vehicle (count 4), assault
with a semiautomatic firearm on Pedroza (count 5), and unlawfully driving a vehicle
(count 6). (Pen. Code, §§ 664/187, subd. (a), 664, subd. (a); 12034, subd. (b); 246; 245,
subd. (b); Veh. Code, § 10851, subd. (a); all further undesignated section references are
to the Penal Code.) The jury also found true three street gang enhancements, and three
enhancements that a principal used and discharged a firearm, on counts 1, 4, and 5.1
(§§ 186.22, subd. (b)(1); 12022, subd. (b)(1), 12022.53, subds. (b), (c) & (e)(1).) The
jury found not true allegations that the discharge of the firearm caused Pedroza great
bodily injury and that defendant personally inflicted great bodily injury on Pedroza.
(§§ 12022.53, subds. (d) & (e)(1), 12022.7, subd. (a).)
Defendant received an aggregate 32 years-to-life sentence. The court imposed an
indeterminate life term on count 1, plus a 20-year section 12022.53 enhancement. The
court imposed a 9-year upper term, plus a consecutive 1-year principal armed
enhancement, on count 5, deemed the base determinate term. The court imposed
consecutive 8-month (one-third of the 24 month middle term) sentences on counts 2, 3,
and 6. The court stayed sentence on count 4 under section 654.
Defendant contends the trial court erred in (I) excluding evidence of third-party
culpability, and (II) imposing consecutive sentences for his convictions on counts 5 and
6 in violation of section 654, and (via a supplemental brief) imposing the section
12022.53 enhancement although the jury did not convict the actual shooter of the
underlying attempted murder.
1 The trial court struck the section 12022.53, subdivisions (b), (c) and (e) enhancements
for counts 4 and 5.

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We reject defendant’s first contention and his claim that he cannot be separately
sentenced on count 6. However, we agree with his other sentencing error claims. We
modify the judgment to strike the section 12022.53 enhancement from count 1, vacate
the sentence, and remand for resentencing. In all other respects, we affirm.
FACTS
In 1999, Pedroza lived in a neighborhood claimed by the Locke Street gang
(Locke). Pedroza was friendly with several Locke members but was not himself a
member.
On the afternoon of March 31, 1999, Pedroza and two of his cousins, one of
whom was a Locke member, were walking on the street. A Honda Accord drove past
them and someone inside the car yelled “‘Lowell.’” The Accord, which Pedroza
described as the color of a “goldfish,” made a U-turn. Because of recent violent
encounters between Locke and their neighboring rival, Lowell Street gang (Lowell),
Pedroza and his cousins fled.
The following afternoon, April 1, Pedroza stood on the street outside of his home
and talked to a friend, Seidah Rouse, and her cousin, Leana Machado. The women were
inside of Rouse’s car. Pedroza glanced up and saw a Honda. Then a barrage of
gunshots was fired. Rouse and Machado ducked down in Rouse’s car. Pedroza was
struck in the arm by one of the bullets. In all, 10 spent nine-millimeter bullet casings
were found at the scene of the shooting.
Pedroza ran to his house. His sister’s mother-in-law, Linda Maldonaldo, came
outside, helped him in and immediately telephoned 911. The record shows that
Maldonaldo’s call was made at approximately 2:49 p.m.
After the shooting had stopped, Rouse looked up and saw a Honda driving away.
Two bald male occupants were inside the Honda. Too scared to get out of her car,
Rouse drove for a short while and then parked her car about a block from Pedroza’s
home. Bullets had shattered the rear window of her car, and a bullet had entered the
car’s left rear passenger door and exited through the front passenger window.

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Isabel Rojas lived on the same street as Pedroza. She heard gunshots and then
saw a Honda Accord speed away. Pedroza telephoned 911 at approximately 2:50 p.m.
She described the driver of the Accord as a light-complected Hispanic man, heavyset,
wearing a green and black hat. At trial, Rojas identified defendant as the driver. She
had also identified defendant before trial from a photographic lineup.
Los Angeles Police Officers Calvin Dehesa, Joe Salazar and Elvis Hernandez
were in an unmarked police vehicle conducting surveillance on an unrelated matter
when Officer Dehesa, but not Officers Salazar or Hernandez, heard several gunshots.
Shortly thereafter, they were nearly hit by a light brown Honda Accord that was driving
away from the area of the shooting. There were two men in the car. The officers
followed the Accord but lost sight of it in a residential neighborhood. Officer Dehesa
radioed for assistance at approximately 2:51 p.m.
Still searching for the Accord, the officers spotted Rouse’s parked car. They
stopped and Rouse reported that someone had shot at her friend while he stood outside
her car. After a patrol car arrived, the officers left Rouse and Machado and resumed
looking for the light brown Accord. Some 10 to 15 minutes after the officers had lost
sight of the Accord, they found the car parked on the street a short distance from the
apartment complex in which defendant resided. The Accord’s hood was warm and its
ignition had been “punched.”
On April 6, 1999, Officers Dehesa, Salazar and Hernandez separately viewed an
array of 32 photographs. Each officer identified defendant as the driver of the Accord.
At trial, they each identified defendant as the driver.
The Honda Accord parked by defendant’s apartment complex belonged to Erika
Arredondo. On March 30, 1999, Arredondo parked her car on the street and locked it.
The Accord was gone the following morning. Arredondo had not given anyone
permission to take or drive the car. At trial, Rouse and Pedroza were shown
photographs of Arredondo’s car. Both indicated that the car looked similar to the one
they had seen at the time of the shooting. Pedroza also testified that the car looked

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similar to the car he had seen the day before the shooting. The parties stipulated that
none of the fingerprints lifted from Arredondo’s car matched defendant’s prints.
Defendant was a member of Lowell. His older brother, Lawrence, had also been
an active Lowell member until Locke members murdered him in 1997. Detective
William Eagleson, a veteran of the Hollenbeck Division’s gang unit, testified that it was
essential for a gang to retaliate to acts of violence committed against its members.
Several shooting incidents between Locke and Lowell occurred in the few weeks before
Pedroza was shot. Evidence was also presented of two separate incidents that resulted
in murder and sale of cocaine convictions for various members of Lowell.
In defense, defendant presented evidence that he was at school until 1:00 p.m. on
the day of the shooting. At around 1:15 p.m., defendant’s mother, Dora Guerrero, left
work and picked up defendant from school. From there, Guerrero drove to her grandson
Joey’s day care center. Defendant went inside to get Joey. The day care center’s
manager testified she remembered that defendant had come in that afternoon during
naptime, sometime between 2:15 p.m. and 2:30 p.m. Thereafter, Guerrero drove
defendant and Joey home. At around 3:00 p.m., Guerrero drove back to work. She
arrived at work at 3:30 p.m. and signed in for work at 4:00 p.m.
In rebuttal, a document examiner testified that Guerrero’s 4:00 p.m. sign-in time
on her April 1, 1999 time sheet appeared to have been written with two different pens.
DISCUSSION
I
Defendant contends the court erred when it ruled that he could not present
evidence of third party culpability. We disagree.
The issue of third party culpability arose before trial. Defense counsel informed
the court that another Lowell member, Felix Figueroa, had confessed to defendant’s
mother, Dora Guerrero, that he was the driver of the Accord. In addition, Figueroa
purportedly made inculpatory statements to defendant’s girlfriend. Defense counsel
wanted to convey the information through testimony by Guerrero and defendant’s
girlfriend. The prosecutor objected on hearsay grounds. The court sustained the

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objection and invited defense counsel to call Figueroa as a witness. The court made it
clear that the information could not come in through testimony by either Guerrero or
defendant’s girlfriend.
Defense counsel then reported that he had evidence that Figueroa lived in the
same apartment complex as defendant, and therefore he could have just as easily
abandoned the Accord as defendant. Counsel also reported that Figueroa had similar
physical characteristics as defendant. The court rejected this showing and ruled that
defense counsel could not mention Figueroa during the trial unless he provided evidence
that connected Figueroa to the shooting. The subject came up again during trial. Out of
the jury’s presence, the court asked defense counsel what evidence he had that
connected Figueroa to the shooting. Counsel cited Figueroa’s confession to Guerrero.
The court again denied the request to admit evidence of third party culpability.
“To be admissible, the third-party evidence need not show ‘substantial proof of a
probability’ that the third person committed the act; it need only be capable of raising a
reasonable doubt of defendant’s guilt. At the same time, [it is not required] that any
evidence, however remote, must be admitted to show a third party’s possible
culpability. . . . [E]vidence of mere motive or opportunity to commit the crime in
another person, without more, will not suffice to raise a reasonable doubt about a
defendant’s guilt: there must be direct or circumstantial evidence linking the third
person to the actual perpetration of the crime.” (People v. Hall (1986) 41 Cal.3d 826,
833.)
Third party culpability evidence should not be excluded merely because the trial
court believes the evidence is “‘incredible.’” Such determination “‘is properly the
province of the jury.’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 610.) A trial
court’s error in excluding evidence of third party culpability is reviewed under the test
set out in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Cudjo, supra, 6
Cal.4th at p. 612.)
The court did not err in precluding the evidence. Defendant intended to use
Figueroa’s confession to Guerrero and to defendant’s girlfriend for the truth of the

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matter. As such, it was inadmissible hearsay. (Evid. Code, § 1200.) And defendant
had not otherwise demonstrated that the evidence was admissible under an exception to
the hearsay rule. (Evid. Code, § 1201.)
Defendant argues that the evidence was admissible as a declaration against penal
interest. (Evid. Code, § 1230.) But the admission of evidence of a declaration against
penal interest requires a showing of the declarant’s unavailability as a witness. (Ibid.)
Nothing in the record demonstrated that Figueroa was unavailable to testify at trial.
Defendant also argues that the evidence could have been admitted as a prior
inconsistent statement. (Evid. Code, § 1235.) We disagree. Evidence of a prior
statement made by a witness that is inconsistent with the witness’s trial testimony may
be used as substantive evidence so long as the witness is afforded an opportunity at trial
to explain or deny the statement. (Evid. Code, §§ 1235, 770.) Thus, evidence that
Figueroa confessed to others could have been admitted as a prior inconsistent statement
if Figueroa had testified to the contrary at trial. But because Figueroa did not testify at
trial, the exception provided by Evidence Code section 1235 did not apply.
Notwithstanding its relevance to third party culpability, the evidence proffered
by defendant is inadmissible hearsay. “‘ . . . Hall[, supra, 41 Cal.3d 826,] did not
undertake to repeal the Evidence Code. Incompetent Hearsay is as inadmissible as it
always was.’ [Citation.]” (People v. Frierson (1991) 53 Cal.3d 730, 746.)
The remaining evidence, that Figueroa was a member of Lowell, that he lived in
the same apartment complex as defendant, and that he bore some physical resemblance
to defendant showed nothing more than that Figueroa had a motive and the opportunity
to commit the crimes. This evidence did not sufficiently connect Figueroa to the
shooting and thus was properly excluded as inadmissible third party evidence. (See
People v. Edelbacher (1989) 47 Cal.3d 983, 1017–1018.)
Defendant also claims Figueroa matched the driver’s general description as well
as defendant. We have viewed the 32-photo spread. We do not think Figueroa matches
the description any more so than do several other men shown. In any event, such a
generalized similarity, even combined with the other admissible factors, does not tie

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Figueroa to the crime. At most, it provides additional evidence of motive and
opportunity. While Figueroa had motive and opportunity, his mere similarity to a
general description is not “direct or circumstantial evidence linking [Figueroa] to the
actual perpetration of the crime.” (People v. Hall, supra, 41 Cal.3d at p. 833.) If this
evidence were sufficient, then the existence of any young, similarly appearing Lowell
member who lived nearby could equally justify its introduction.
We disagree with defendant’s suggestion that the court’s ruling denied him his
constitutional right to present a defense. The court only precluded defendant from
presenting inadmissible hearsay evidence. Defendant was free to convey the
information to the jury through other appropriate procedures. “As a general matter, the
ordinary rules of evidence do not impermissibly infringe on the accused’s right to
present a defense.” (People v. Hall, supra, 41 Cal.3d at p. 834.) The court did not err in
excluding the evidence.
II
Defendant contends that the terms imposed for count 5, assault with a
semiautomatic firearm upon Pedroza, and count 6, unlawful driving of a vehicle, should
have been stayed pursuant to section 654.
Section 654, subdivision (a), states in relevant part that “[a]n act or omission that
is punishable in different ways by different provisions of law shall be punished under
the provision that provides for the longest potential term of imprisonment, but in no
case shall the act or omission be punished under more than one provision.”
a. Assault with a firearm upon Pedroza
Defendant’s convictions for assault with a firearm and attempted murder were
based upon the same act, i.e., the shooting of Pedroza. The court sentenced defendant to
a term of life plus 20 years for the attempted murder and a consecutive 10-year term for
the assault with a firearm. Respondent concedes, and we agree, that defendant cannot
be separately punished for counts 1 and 5. (See People v. Parks (1971) 4 Cal.3d 955,
961, fn. 3.)

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b. Unlawful driving of a vehicle
Defendant contends that the eight-month consecutive term for count 6,
unlawfully driving or taking a vehicle, should be stayed under section 654. Because
there was no evidence that defendant took Arredondo’s car, the jury must have based its
verdict in count 6 on the theory that defendant unlawfully drove the car. Defendant
argues that “there was no evidence [defendant] drove [the car] except for the purpose of
committing” the drive-by shooting. We disagree.
Section 654 has been construed to prohibit double punishment for separate
offenses committed during an indivisible criminal transaction. “It is defendant’s intent
and objective, not the temporal proximity of his offenses, which determine whether the
transaction is indivisible. [Citations.] . . . [I]f all of the offenses were merely incidental
to, or were the means of accomplishing or facilitating one objective, defendant may be
found to have harbored a single intent and therefore may be punished only once.
[Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335; see also People v. Bauer
(1969) 1 Cal.3d 368, 377 [“The fact that one crime is technically complete before the
other commenced does not permit multiple punishment where there is a course of
conduct comprising an indivisible transaction. [Citations.] And the fact that one of the
crimes may have been an afterthought does not permit multiple punishment where there
is an indivisible transaction.”].)
The evidence here does not suggest that defendant’s driving of Arredondo’s car
and the drive-by shooting incident comprised an indivisible transaction. There can be
no doubt that during the commission of the drive-by shooting defendant’s intent and
objective in driving the car was to facilitate the commission of the shooting. But
defendant’s driving of Arredondo’s car did not cease when the drive-by shooting had
been accomplished. Rather, the evidence showed that defendant continued to drive the
car for at least several minutes after the shooting. At that point, it could no longer be
said that defendant harbored the intent and objection to facilitate the shooting because
the shooting had been completed. As relevant to section 654 analysis, the evidence
demonstrated that defendant’s intent and objective after the shooting was solely limited

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to unlawfully driving a vehicle. Thus, section 654 does not bar a separate term for
count 6.
c. Section 12022.53 enhancement on count 1
We have held that a section 12022.53/186.22 enhancement cannot be imposed on
a principal where the actual shooter was not convicted of the underlying crime. (People
v. Garcia (2001) 88 Cal.App.4th 794, rev. granted Aug. 8, 2001, S097765.) Although
the Supreme Court has granted review in Garcia, we stand by our analysis and
conclusion therein. Here, the jury’s acquittal of defendant on the charged attempted
murders, and its not true findings that defendant inflicted great bodily injury,
demonstrate defendant was a non-shooter principal for the enhancement. The actual
shooter was not tried or convicted of the attempted premeditated murder in count 1.
Thus, we modify the judgment and strike the section 12022.53 enhancement from
count 1.
d. The matter must be remanded for resentencing
We have stricken the 20-year section 12022.53 enhancement on count 1, and
have held that section 654 bars sentence on both counts 1 and 5. Since count 5 was the
base determinate term, the stricken enhancement was a major component of the
aggregate sentence, and the original trial judge has died, the case must be remanded for
resentencing. The sentencing court must strike the section 12022.53 enhancement from
count 1, and cannot impose that enhancement when resentencing on that count. Also,
the court may not impose sentences on both counts 1 and 5, since doing so would
violate section 654. The new sentence may not exceed the length of the original
sentence. (See People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615.)

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DISPOSITION
We modify the judgment and strike the section 12022.53 enhancement on
count 1. We vacate the sentence and remand the case for resentencing in conformance
with our instructions in section II, d above. In all other respects, we affirm the
judgment.
NOT TO BE PUBLISHED.
ORTEGA, Acting P. J.
I concur:
VOGEL (MIRIAM A.), J.

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1
MALLANO, J., Dissenting.
I would reverse the judgment. Although I agree with the majority’s
determination that the trial court properly excluded evidence that Figueroa
confessed to being the driver of the Accord, I disagree with the determination that
the other evidence pertaining to Figueroa was also properly excluded. This was
not a situation where the evidence merely showed motive or opportunity of a third
party to commit the charged crime. Rather, the evidence was consistent with the
prosecution’s theory of the perpetrator’s motive and opportunity to commit the
crime, e.g., Figueroa’s membership in Lowell and his place of residence. In
addition, Figueroa matched the witnesses’ description of the driver and bore a
physical resemblance to defendant. (People v. Sandoval (1992) 4 Cal.4th 155,
176–177; People v. Edelbacher (1989) 47 Cal.3d 983, 1018 [“evidence of a third
party’s motive, without more, is inadmissible”].)
The evidence in question was probative because it tended to raise a
reasonable doubt on the question of identity. In addition, the record does not
indicate that admission of such evidence would have been unduly time consuming
or confusing. (Evid. Code, § 352.) Thus, I conclude that the trial court erred in
excluding the evidence.
I further believe that the error was prejudicial. It is unquestionable that
defendant was convicted in large part upon the eyewitness identification evidence.
Consequently, the outcome of the case hinged on the jury’s acceptance of the
eyewitness identification evidence beyond a reasonable doubt. Yet evidence
existed that considerably cast doubt on that issue. The witnesses had only a
fleeting glimpse of the driver as he sped by at a high rate. The circumstances
under which the sightings took place were stressful. The tenor of the 911 call by
Rojas and the radio call by Officer Dehesa indicated fear and anxiety. The
evidence also suggested that it was either raining or drizzling.

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2
Despite the presence of these factors and their bearing on the accuracy and
reliability of the eyewitness identifications, defendant was precluded from
introducing evidence of third party culpability. Given the sparse evidence of
defendant’s guilt, the third party evidence was capable of creating a reasonable
doubt as to defendant’s guilt. “An error that impairs the jury’s determination of an
issue that is both critical and closely balanced will rarely be harmless.” (People v.
McDonald (1984) 37 Cal.3d 351, 376, overruled on another point in People v.
Mendoza (2000) 23 Cal.4th 896, 914.) I conclude that it was reasonably probable
that the jury would have reached a result more favorable to defendant in absence
of the error. Accordingly, I would reverse the judgment.
MALLANO, J.

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