Filed 9/22/26 P. v. Ramirez CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B343001
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA129559
v.
JOSE RAMIREZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Juan C. Dominguez, Judge. Affirmed in part
and modified in part.
Arielle Bases, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri and Roberta L. Davis,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Jose Ramirez shot and killed Eduardo Ruiz. The People
charged Ramirez with first degree premeditated, willful, and
deliberate murder, possession of a firearm by a felon, and
unlawful possession of ammunition. A jury found Ramirez guilty
as charged, rejecting his theory that he killed in imperfect self-
defense. We affirm the judgment, rejecting Ramirez’s arguments
that: (1) insufficient evidence supports the jury’s finding that he
killed with premeditation and deliberation; and (2) the jury was
misled regarding the imperfect self-defense instructions. We
agree with the parties, however, that Ramirez’s sentence for his
conviction for unlawful possession of ammunition should be
stayed because it arises from the same, indivisible act underlying
his conviction for possession of a firearm by a felon. We,
therefore, modify the judgment accordingly.
I.
The shooting occurred after a romantic breakup involving
Ramirez’s distant cousin, Destiny Zendejas, and Edmundo Ruiz,
who was, in Ramirez’s own words, “like family” to him. (Because
Edmundo and the victim, Eduardo, share the same surname, we
refer to each by his first name.) Zendejas broke up with
Edmundo in September 2021. The breakup was not amicable.
According to Zendejas, several of her family members, including
Ramirez, were unhappy with the breakup. They had taken
Edmundo’s side and stopped talking to her. At trial, Ramirez
testified Zendejas and Edmundo “had just barely broke up” when
she started dating Eduardo.
Zendejas and Edmundo have one child, Mason. Mason was
three years old at the time of the shooting. Back then, Edmundo
had custody of Mason, and Zendejas had visitation. After her
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visits, Zendejas customarily dropped Mason off where Edmundo
lived, or at another location at Edmundo’s request.
At around 10:00 or 10:30 p.m. on February 9, 2022,
Eduardo drove Zendejas and Mason so Zendejas could return
Mason to Edmundo. Upon their arrival at Edmundo’s residence,
Zendejas called Edmundo. Edmundo told her he was at an
address on Gilman Street about a one-minute drive away.
Eduardo then drove Zendejas and Mason to that address.
Zendejas had not dropped Mason off to Edmundo at the Gilman
Street location before.
This is where the shooting occurred. Much of the evidence
of the shooting derives from surveillance videos the People
obtained and the court admitted into evidence at trial.
When Eduardo, Zendejas, and Mason arrived at the new
address, Edmundo was standing in the middle of the street. A
woman named Mary Martinez was standing nearby, next to a red
car parked along the sidewalk. Ramirez was sitting in the
driver’s seat of a white car parked in the driveway directly
behind the red car.
Eduardo stopped his vehicle in the middle of the street,
right by where Edmundo was standing. Zendejas got out of
Eduardo’s car, helped Mason out, and told him to go with
Edmundo.
At the same time Zendejas alighted from her car, Ramirez
got out of his. Ramirez held a firearm in his right hand, which he
promptly tucked into his jacket pocket. He then walked around
the back of the red car and approached the passenger side of
Eduardo’s car.
The parties presented conflicting evidence of what
happened next. Per the People’s evidence, Ramirez stated: “ ‘You
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got a problem, fool?’ ” He then stepped back and leaned against
the red car. In response, Eduardo got out of his car, walked
around behind it, and, while calmly approaching Ramirez, stated:
“[N]o . . . , I’m just trying to make sure everything’s all right with
my girl, and I just wanted to tell my little man bye.” At that
point, Ramirez drew his gun and shot Eduardo from a few feet
away.
Ramirez offered a different account. He testified that, upon
Zendejas’s arrival with Mason, he got out of his car, approached
her vehicle, and peered inside because he “wanted to be nosey”
and find out who was in the car with her. He did not say
anything to Eduardo, whom he had never seen or met before. A
few seconds later, Ramirez testified, Eduardo got out of the car
and, while looking and pointing at Ramirez, stated: “ ‘What the
fuck are you looking at?’ ‘Do you want any problems?’ ”
Ramirez’s mind started racing. He was confused why
Eduardo was speaking to him in this way. Ramirez “got scared”
as Eduardo started to approach him. According to Ramirez,
Eduardo was “yelling at [him]” and reached behind his back with
his right hand, causing Ramirez to believe Eduardo “had a gun or
something.” In response, Ramirez fired his weapon “to get
[Eduardo] away.” Ramirez testified that when he did so, he felt
threatened, was scared for his life, and did not want to kill
Eduardo.
The surveillance videos show that Eduardo, upon getting
shot, fell to the ground, screaming. Twenty seconds later, he and
Zendejas got back into their car, and Eduardo drove away. All
the while, Ramirez loitered in the area between the red and
white cars. Thereafter, Ramirez, Edmundo, Martinez, and
Mason remained at the scene for another minute. The adults
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chatted amongst themselves, behaving as though nothing
remarkable had happened. Martinez then observed she had
locked her keys inside the red car. At that point, all of them got
into Ramirez’s car, and Ramirez drove away.
Ramirez testified that, after the incident, he dropped
Edmundo, Martinez, and Mason off down the street. He then
drove around and, at some point, broke up his gun with a
hammer.
Around midday the next day, Ramirez went to his mother’s
home, driving a black BMW. Police arrested him upon his
arrival. They searched his car and found a black “cloth baggie”
containing 10 rounds of 9-millimeter live ammunition. Those
rounds had the same head-stamp as a live round and a cartridge
casing that the police had found at the Gilman Street address the
night before, shortly after the shooting occurred.
On February 12, 2022, a few days after his arrest, Ramirez
called his girlfriend from jail. Ramirez’s girlfriend told him
Edmundo had been charged with child endangerment. Ramirez
responded: “That’s it?” His girlfriend then stated: “Yep. You’re
the one, you’re the one that’s being the fall guy.” Ramirez noted
Edmundo had told Ramirez “he got this already,” and that “if it
got worse for [Ramirez] . . . [Edmundo] was gonna take the heat.”
Later on in the conversation, when told again that Edmundo had
been charged with child endangerment, Ramirez stated: “Only
that? Only that? . . . [¶] . . . That’s crazy. That’s fucking crazy,
huh. . . . [¶] That means he said something then.”
A little over a month later, Eduardo died from
complications arising from the gunshot wound to his abdomen.
The People charged Ramirez with first degree
premeditated, willful, and deliberate murder (Pen. Code, § 187,
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subd. (a); count five); possession of firearm by a felon (§ 29800,
subd. (a)(1); count two); and unlawful possession of ammunition
(§ 30305, subd. (a)(1); count three). The People also alleged
Ramirez personally used a firearm to commit the murder
(§ 12022.5, subd. (a)) and had suffered a prior strike conviction
(§§ 667, subd. (d), 1170.12, subd. (b)).
At trial, Ramirez admitted to shooting Eduardo but asked
the jury to acquit him of murder and convict him of
manslaughter, arguing the evidence showed he killed in
imperfect self-defense. The jury found him guilty as charged and
found true the firearm-use allegation attached to count five.
Subsequently, Ramirez admitted the strike.
The trial court imposed a sentence of 67 years and 4
months to life in state prison, consisting of a term of 25 years to
life for the murder conviction, doubled to 50 years pursuant to
the Three Strikes law, plus an additional 10 years for the firearm
enhancement; a consecutive term of 3 years for the firearm
possession conviction, doubled to 6 years pursuant the Three
Strikes law; and a consecutive term of 8 months for the
ammunition possession conviction, doubled to 16 months
pursuant to the Three Strikes law.
Ramirez timely appealed.
II.
A.
There was substantial evidence that Ramirez killed
Eduardo with premeditation and deliberation.
“Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).) A
“willful, deliberate, and premeditated killing” constitutes first
degree murder. (§ 189, subd. (a).) “ ‘ “ ‘In this context,
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“premeditated” means “considered beforehand,” and “deliberate”
means “formed or arrived at or determined upon as a result of
careful thought and weighing of considerations for and against
the proposed course of action.” ’ ” [Citation.] “ ‘An intentional
killing is premeditated and deliberate if it occurred as the result
of preexisting thought and reflection rather than unconsidered or
rash impulse.’ ” [Citations.] “The true test is not the duration of
time as much as it is the extent of the reflection. Thoughts may
follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly . . . .” ’ ” (People v. Morales
(2020) 10 Cal.5th 76, 88 (Morales).)
In People v. Anderson (1968) 70 Cal.2d 15, our Supreme
Court “identified ‘three basic categories’ of evidence [it] has
generally found sufficient to sustain a finding of premeditation
and deliberation: (1) planning activity, or ‘facts about how and
what defendant did prior to the actual killing which show that
the defendant was engaged in activity directed toward, and
explicable as intended to result in, the killing’; (2) motive, or
‘facts about the defendant’s prior relationship and/or conduct
with the victim from which the jury could reasonably infer a
“motive” to kill the victim’; and (3) manner of killing, or ‘facts
about the nature of the killing from which the jury could infer
that the manner of killing was so particular and exacting that the
defendant must have intentionally killed according to a
“preconceived design” to take his victim’s life in a particular way
for a “reason” . . . .’ ” (Morales, supra, 10 Cal.5th at pp. 88–89,
quoting Anderson, at pp. 26–27.) The Supreme Court has since
“ ‘ “emphasized that [Anderson’s] guidelines are descriptive and
neither normative nor exhaustive, and that reviewing courts need
not accord them any particular weight.” ’ [Citation.] Anderson
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provides ‘a framework to aid in appellate review,’ but it does not
‘define the elements of first degree murder or alter the
substantive law of murder in any way.’ ” (Morales, at p. 89.)
“ ‘When the sufficiency of the evidence to support a
conviction is challenged on appeal, we review the entire record in
the light most favorable to the judgment to determine whether it
contains evidence that is reasonable, credible, and of solid value
from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’ [Citation.] Our review must
‘ “presume in support of the judgment the existence of every fact
the jury could reasonably have deduced from the evidence.” ’
[Citation.] Even where . . . the evidence of guilt is largely
circumstantial, our task is not to resolve credibility issues or
evidentiary conflicts, nor is it to inquire whether the evidence
might ‘ “ ‘be reasonably reconciled with the defendant’s
innocence.’ ” ’ [Citations.] The relevant inquiry is whether, in
light of all the evidence, a reasonable trier of fact could have
found the defendant guilty beyond a reasonable doubt.” (People
v. Gomez (2018) 6 Cal.5th 243, 278.)
Ramirez contends his murder conviction must be reversed
because the record lacks sufficient evidence “to provide proof
beyond a reasonable doubt that the homicide was the result of
[his] preexisting thought and reflection.” In support, Ramirez
emphasizes his testimony that he killed spontaneously, out of
fear for his life, rather than pursuant to a pre-formed plan,
minimizes the evidence relating to his alleged motive for killing
Eduardo, and implores us to draw, from the evidence on the
nature of the killing, inferences favorable to his position.
This line of argument does not engage with the applicable
standard of appellate review. “[T]he relevant question on appeal
8
is not whether we are convinced beyond a reasonable doubt, but
whether” the record contains adequate evidence from which “any
rational trier of fact could have been persuaded beyond a
reasonable doubt that [Ramirez] premeditated the murder.”
(People v. Perez (1992) 2 Cal.4th 1117, 1127 (Perez).) Viewing the
record in the light most favorable to the judgment, and drawing
all inferences in support thereof, we conclude the answer to this
question is “yes.”
As to Ramirez’s motive, Zendejas testified at trial that she
was not on speaking terms with her family, who took Edmundo’s
side after Zendejas broke up with him. During an interview with
the police, Zendejas noted Ramirez was one of the relatives who
was “really upset about” the breakup. Ramirez also shared a
close relationship with Edmundo, stating during his police
interview they were “like family,” such that Mason “calls [him]
uncle.” And at trial, Ramirez testified Zendejas was “never at
home” because she was “always with” her new boyfriend, even
though she and Edmundo “had just barely broke up.” Based on
this evidence, a rational juror could reasonably infer Ramirez’s
motive was to avenge the disrespect or emotional harm Edmundo
suffered when Zendejas broke up with Edmundo and started
dating Eduardo soon thereafter.
With respect to planning, Ramirez testified he accompanied
Edmundo in picking up Mason from Zendejas simply because he
had “nowhere else to go” that evening. Ramirez did not testify,
and the record does not otherwise suggest, he joined Edmundo
out of concern for Edmundo’s safety based, for example, on prior
conflicts occurring during custody exchanges with Zendejas.
Nonetheless, Ramirez brought a loaded semi-automatic pistol
with him to the Gilman Street address. Also, Ramirez’s
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statements during his jailhouse call suggest he and Edmundo
planned the shooting. On this point, Ramirez noted Edmundo
previously agreed to “take the heat” for him. Ramirez expressed
frustration and surprise upon learning Edmundo had apparently
reneged on that promise, as Edmundo had only been charged
with child endangerment and Ramirez was being treated as “the
fall guy.” Ramirez mused Edmundo “said something” to receive
such a lenient charge.
Additionally, the video footage admitted into evidence at
trial showed Ramirez armed himself with the pistol upon getting
out of his car, placing the weapon into his jacket pocket while
keeping his hand inside as he approached Eduardo. The evidence
also suggests that after exiting his vehicle, but before interacting
with Eduardo, Ramirez pulled back the slide of his pistol to
prepare it for firing. The People’s firearm expert testified that,
after placing a loaded magazine into a semi-automatic pistol, the
shooter must pull back the slide and release it forward, causing
the slide to pick up the first round and place it into the gun’s
chamber for firing. But if the shooter pulls the slide back when a
live round is already in the chamber, “[t]he live round will be
drawn out, and it will be ejected out of the gun.” At trial,
Ramirez noted “it’s possible” that he pulled the slide back before
approaching Eduardo. Consistent with this evidence, police
discovered a live round at the scene of the shooting.
Accordingly, the evidence relating to Ramirez’s actions
leading up to the killing “ ‘supports the inference that he planned
a violent encounter.’ ” (People v. Elliot (2005) 37 Cal.4th 453,
471; see People v. Romero (2008) 44 Cal.4th 386, 401 [jury could
infer defendant planned the killing because he brought a gun to
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the shooting location]; see also People v. Salazar (2016) 63
Cal.4th 214, 245 [same].)
Finally, with respect to the manner of the killing,
Zendejas’s statements to the police and the People’s video footage
reflect that, armed with a loaded pistol in his pocket, Ramirez
baited Eduardo into getting out of his car by stating: “ ‘You got a
problem, fool?’ ” Per the same evidence, Eduardo then tried to
de-escalate the situation, walking calmly toward Ramirez while
stating: “[N]o . . . I’m just trying to make sure everything’s all
right with my girl, and I just want to tell my little man bye.”
Without further warning, or any other aggression by Eduardo,
Ramirez drew his gun and shot Eduardo in the stomach from a
few feet away. This manner of killing — an unprovoked gunshot
to the abdomen, “a vital area of the body[,] at close range” —
demonstrates premeditation and deliberation. (People v. Koontz
(2002) 27 Cal.4th 1041, 1055, 1082 (Koontz)]; see People v. Marks
(2003) 31 Cal.4th 197, 230 [a close-range shooting without
provocation or evidence of a struggle reflects premeditation and
deliberation]; see also People v. Gonzales and Soliz (2011) 52
Cal.4th 254, 295 [same].)
Ramirez’s calm and collected behavior after the shooting is
additional evidence the killing was premeditated and deliberate.
(See Perez, supra, 2 Cal.4th at p. 1128 [noting jury could consider
the defendant’s conduct after fatally stabbing the victim, in
relation to the manner of the killing, to infer premeditation and
deliberation]; see also People v. Disa (2016) 1 Cal.App.5th 654,
667 [“a reasonable jury could take into account defendant’s calm
behavior after the killing” to find premeditation and
deliberation]; cf. Koontz, supra, 27 Cal.4th at p. 1082 [defendant’s
efforts to prevent a witness from calling an ambulance after the
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shooting took place demonstrated premeditation and
deliberation].) The video footage shows Ramirez did not
immediately flee the scene or exhibit any distress after shooting
Eduardo. While Eduardo was lying on the ground, screaming,
Ramirez casually paced nearby with his hands in his pockets.
After Eduardo and Zendejas drove away, Ramirez loitered at the
scene for another minute, chatting with Edmundo and Martinez
and behaving as though nothing out of the ordinary had
happened, until he drove away.
In sum, substantial evidence shows Ramirez killed with
premeditation and deliberation. We, therefore, “must affirm” his
murder conviction as supported by adequate evidence, “even if
there is also substantial evidence to support a contrary
conclusion and the jury might have reached a different result if it
had believed other evidence.” (People v. Riley (2015) 240
Cal.App.4th 1152, 1165–1166.)
B.
The trial court’s instructions did not mislead the jury into
ignoring the imperfect self-defense instruction and the principles
of People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry).
“[A] criminal defendant is entitled to the benefit of a jury’s
reasonable doubt with respect to all crimes with lesser degrees or
related or included offenses.” (People v. Musselwhite (1998) 17
Cal.4th 1216, 1262.) Consequently, “when the evidence is
sufficient to support a finding of guilt of both the offense charged
and a lesser included offense, the jury must be instructed that if
they entertain a reasonable doubt as to which offense has been
committed, they must find the defendant guilty only of the lesser
offense.” (Dewberry, supra, 51 Cal.2d at p. 555.)
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The trial court instructed the jury on the elements of first
and second degree murder with CALCRIM Nos. 520 and 521. It
then instructed the jury on voluntary manslaughter based on
imperfect self-defense, a lesser-included offense of murder, with
CALCRIM No. 571. As relevant here, the imperfect self-defense
instruction stated: “A killing that would otherwise be murder is
reduced to voluntary manslaughter if the defendant killed a
person because he acted in imperfect self-defense.” It further
stated: “The People have the burden of proving beyond a
reasonable doubt that the defendant was not acting in imperfect
self-defense. If the People have not met this burden, you must
find the defendant not guilty of murder.” Ramirez acknowledges
that, in so doing, this instruction “satisf[ied] the Dewberry
requirement.”
According to Ramirez, error arose from remarks the trial
court made the day after giving the above instructions. The court
informed the jury it would receive verdict forms and instructions
about those forms, but the court first wanted to provide
additional explanation about the multiple forms pertaining to
count five, the homicide count, because they “may be a little bit
confusing.”
The trial court stated: “As to count [five], there are three
possible verdicts. We have first degree murder, second degree
murder, [and] voluntary . . . manslaughter.” It continued: “So
you folks must decide whether the defendant is guilty or not
guilty of first degree murder, guilty or not guilty of second degree
murder, [and] guilty or not guilty of voluntary manslaughter.
You must decide these in order. Okay? So, in order for you to go
to second degree murder, you must find the defendant not guilty
of first degree murder. If you find the defendant not guilty of
13
first degree murder, then you move on to second degree murder
and you determine whether or not the defendant is guilty of
second degree murder. If . . . all of you find that the defendant is
not guilty of second degree murder, then you move on to
voluntary manslaughter and make a determination whether or
not he is guilty of voluntary manslaughter. He cannot be guilty
of more than one of these offenses, for the same act. Okay? That
make sense? [¶] So start off – you can approach this in any way
you want, but the bottom line is you have to decide first degree,
second degree, third degree. If you find the defendant is guilty of
first degree, you stop. If you find not guilty of first degree but
guilty of second degree, you stop. If you find the defendant not
guilty of second degree murder, then you go on to voluntary
manslaughter and then you make your determination.”
Ramirez asserts the trial court’s comments misled the jury
into believing it had to consider whether he was guilty of
voluntary manslaughter only after acquitting him of first and
second degree murder. Because the jury found him guilty of first
degree murder, the argument goes, it could ignore the imperfect
self-defense instruction containing the Dewberry principle
Ramirez asserts was critical for the jury to consider.
We review Ramirez’s instructional error claim de novo.
(People v. Mitchell (2019) 7 Cal.5th 561, 579.) We “consider
whether there is a reasonable likelihood that the trial court’s
instructions caused the jury to misapply the law in violation of
the Constitution.” (Ibid.) We view “the challenged
instruction . . . ‘in the context of the instructions as a whole and
the trial record to determine whether there is a reasonable
likelihood the jury applied the instruction in an impermissible
14
manner.’ ” (Ibid.) Applying this standard, we discern no
instructional error requiring reversal.
Ramirez does not sufficiently account for the context in
which the trial court made its verdict-form comments. The court
explained, at the outset, that those remarks sought to clarify its
forthcoming instruction governing the verdict forms the jury
would have to fill out based on their findings on “whether
[Ramirez] is guilty or not guilty of first degree murder, guilty or
not guilty of second degree murder, guilty or not guilty of
voluntary manslaughter.” Then, immediately after making the
allegedly offending comments, the court gave CALCRIM No. 640,
which the parties do not dispute correctly instructed the jury that
(1) it could consider the homicide charges in any order but (2) the
court could only accept verdicts for the lesser charges if the jury
had first found Ramirez not guilty of the greater charges. The
trial court’s prefatory comments “spoke much of returning
verdicts and findings,” and a reasonable juror would have likely
understood those comments, in the context of all the instructions
given, “to govern how the jury was to return its verdicts and
findings after it completed its deliberations on the charges and
allegations.” (People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn.
omitted, overruled on another ground in People v. Hill (1998) 17
Cal.4th 800, 823, fn. 1.)
Regardless, there is no reasonable likelihood the jury
evaluated Ramirez’s liability for first degree murder without
considering CALCRIM No. 571, the imperfect self-defense
instruction. CALCRIM No. 200 instructed the jury to “[p]ay
careful attention to all of these instructions and consider them
together.” (Italics added.) We presume the jury understood and
followed this instruction, which called on the jury to consider
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CALCRIM No. 571 together with CALCRIM Nos. 520 and 521
when deciding whether Ramirez was guilty of first degree
murder. (See People v. Buenrostro (2018) 6 Cal.5th 367, 431 [“We
presume jurors understand and follow the instructions they are
given”]; see also People v. Dennis (1998) 17 Cal.4th 468, 537
[“Other instructions implicitly told the jury that its deliberations
should include consideration of the lesser offenses”].) CALCRIM
No. 571 was integral to the definition of murder, instructing that
a killing in imperfect self-defense is not murder, that the People
bore the burden of disproving self-defense, and that if the People
did not meet that burden a murder verdict was unavailable. (Cf.
People v. Schuller (2023) 15 Cal.5th 237, 243–244, 254
[instruction on imperfect self-defense is integral to defining the
malice required for murder].)
In addition, during closing argument, the prosecutor
expressly referenced the imperfect self-defense instruction and
argued, at length, why he believed the evidence did not show
Ramirez bore the requisite state of mind to be convicted of
voluntary manslaughter, rather than murder. Ramirez’s counsel
responded by asking the jury to find Ramirez guilty only of
manslaughter because the evidence showed he killed out of fear,
and “the law requires that . . . if [the People] cannot
prove . . . beyond a reasonable doubt that he was operating in
imperfect self-defense, he’s not guilty of murder.” The parties’
closing arguments, then, correctly emphasized the jury’s
obligation to consider CALCRIM No. 571 in deciding Ramirez’s
liability for first degree murder. (See People v. Hughes (2002) 27
Cal.4th 287, 341 [ambiguous instruction did not lead the jury
astray because counsels’ closing arguments highlighted the
16
instruction’s correct interpretation]; see also People v. Nelson
(2016) 1 Cal.5th 513, 545 [same].)
For these reasons, we conclude there is no reasonable
likelihood that, in finding Ramirez guilty of first degree murder,
the jury ignored CALCRIM No. 571 or its provision conveying the
principles required under Dewberry. We, therefore, reject
Ramirez’s instructional error claim.
C.
Lastly, Ramirez argues that his sentence on count three,
unlawful possession of ammunition, must be stayed because the
People elected to base that count on the conduct underlying count
two, possession of a firearm by a felon. Agreeing with Ramirez,
the People assert we may modify the judgment to reflect the
sentence is stayed.
Penal Code section 654, subdivision (a), provides: “An act
or omission that is punishable in different ways by different
provisions of law may be punished under either of such
provisions, but in no case shall the act or omission be punished
under more than one provision.” “Courts have found section 654
prohibits punishing a defendant for both being a felon in
possession of a firearm and unlawful possession of ammunition
when all of the ammunition in question was loaded into the
firearm or had been fired from it.” (People v. Broadbent (2020) 47
Cal.App.5th 917, 922.)
Having reviewed the record, Ramirez’s sentence on count
three should be stayed under Penal Code section 654. During
closing argument, the prosecutor asserted Ramirez admitted
guilt on counts two and three by testifying he “had a loaded
semiautomatic handgun in his pocket” when he exited his car and
walked toward Eduardo’s vehicle. The prosecutor relied solely on
17
this act to seek Ramirez’s conviction on counts two and three,
arguing to the jury: “You don’t need any other evidence. He
admitted to it.”
Because a stay of Ramirez’s 16-month sentence on count
three results in a “relatively minor” reduction in his total
sentence, we will modify the judgment instead of remanding the
case for further proceedings. (See People v. Burns (1984) 158
Cal.App.3d 1178, 1184 [“[S]taying execution of the penalty
imposed for the lesser offense remains the preferred remedy
where the reduction in sentence would be relatively minor . . .”].)
DISPOSITION
We modify the judgment to state that, pursuant to Penal
Code section 654, the sentence on count three is stayed. We
affirm the judgment as modified. The trial court shall amend the
abstract of judgment to reflect that the sentence on count three is
stayed pursuant to section 654 and shall forward the amended
abstract of judgment to the Department of Corrections and
Rehabilitation.
SCHERB, J.
We concur:
STRATTON, P. J.
WILEY, J.
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