Filed 7/16/26 P. v. Ramos CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089896
Plaintiff and Respondent,
(Super. Ct. No. MCR047799A)
v.
ABEL ANDREW RAMOS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
Amanda K. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Darren K. Indermill and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
In 2016, defendant Abel Andrew Ramos pled guilty to attempted murder,
burglary, receiving stolen property, illegal possession of firearms, and attempted escape
from prison. Ramos was sentenced to a total term of 21 years to life. In 2024, Ramos
filed a petition for resentencing under Penal Code section 1172.6.1 After appointing
counsel and holding an evidentiary hearing, the trial court denied Ramos’s petition. On
appeal, Ramos argues the denial of his section 1172.6 petition should be reversed because
there was insufficient evidence that he possessed the specific intent to kill. We affirm.
BACKGROUND
2013 Arrest and Charges
Around 4:00 a.m. on December 3, 2013, Madera County Sheriff’s Deputy Darrell
Swengel was engaged in a high speed chase with a red pickup truck. During the chase,
Swengel reported gunshots were being fired at him. The pickup was able to escape after
driving into an orchard. Later that morning, however, the pickup was discovered
abandoned. Law enforcement found a hotel receipt in the pickup that had a room number
on it. Officers went to the hotel and arrested Ramos and Mario Valdez.
On December 5, 2013, the Madera County District Attorney filed a 42-count
criminal complaint against Ramos, Valdez, and Jose Sanchez. In part, the charging
document alleged attempted murder, felon in possession of a firearm, and burglary
offenses against Ramos.
2014 Preliminary Hearing Testimony
On May 23, 2014, the Madera County Superior Court held a preliminary hearing
and heard testimony from Madera County Sheriff’s deputies.
1. Swengel’s Testimony
Swengel testified in part that he was on patrol and looking for a red Dodge pickup
truck with a loud exhaust that had been involved in an attempted gas theft the previous
night. Swengel found this truck in Fairmead shortly before 4:00 a.m. and noticed that it
1 All further statutory references are to the Penal Code.
2.
was exceeding the posted 25-mile-per-hour speed limit Swengel began to follow the
pickup and had to drive at a high rate of speed to keep up. Swengel accelerated to over
100 miles per hour and got within 100 yards of the truck.
As Swengel and the pickup went under an overpass, Swengel heard 10 to
12 popping sounds, which he believed were gunshots. Swengel advised dispatch that he
was pursuing the pickup and had possibly been fired upon; he then engaged his siren and
red and blue lights. Swengel and the pickup kept driving at a speed of around 100 miles
per hour.
As they approached an S-curve in the road, the pickup slowed to about 80 miles
per hour. Swengel got to within 100 yards of the pickup and then heard another 10 to
12 shots. Although the posted speed limit around the S-curve was 55 miles per hour,
Swengel explained it was not a real steep turn and someone going 100 miles per hour
would not necessarily need to slow down. After the gunshots ended, the pickup again
sped up to 100 miles per hour.
As the pickup came to an intersection, it slowed a little again. As the pickup
slowed, Swengel observed six to eight muzzle blasts coming from the rear slider window
of the truck and heard corresponding gunshots. After the gunshots were fired, the pickup
sped up. Swengel was fairly confident that the occupants of the truck were shooting at
him and stayed about a quarter of a mile back while continuing to maintain a speed of
about 100 miles per hour. As they passed a point where the road curved and turned into a
different road, Swengel observed more muzzle blasts and testified that the occupants had
fired another 10 to 12 gunshots in his direction.
After appearing to nearly hit a tree, the pickup turned off the road, entered an
orchard, and stopped. Swengel became concerned that the occupants were going to
ambush him and decided to wait until backup units arrived. Although other patrol
vehicles arrived, the pickup took off and was able to escape through the orchard.
Swengel testified he had been around firearms and was familiar with the sound of
gunshots. Swengel also testified that it was possible for rocks to kick up and hit the
3.
patrol vehicle. But there was no dirt or dust that got kicked up during the pursuit, and the
popping noises he heard sounded different from instances in which rocks had hit his
patrol vehicle. During the second volley of gunshots, however, Swengel thought he
heard something kick up and hit the undercarriage of his patrol vehicle, but he was not
sure what that might have been. Further, several days prior to the pursuit, Swengel
checked for damage to his patrol vehicle and found none.
In response to questions by defense counsel, Swengel clarified or reiterated that:
(1) there were only two instances in which he saw muzzle blasts; (2) he turned on his
siren and red and blue lights after the first time gunshots were fired; (3) before each
instance of gunfire, the truck would slow down a little and he would get closer to the
pickup; (4) the closest that he got to the pickup was between 50 and 100 yards; (5) he was
not confident that there were shots being fired at him until the first time he saw muzzle
blasts; (6) the third and fourth gunshot volleys occurred after the S-curve; and (7) based
on the muzzle blasts, he could tell that a firearm was being pointed in his direction.
2. Deputy Benny Romiti’s Testimony
In part, Romiti testified to his post-chase observations of Swengel’s patrol vehicle.
Romiti found a gouge, or a striation/graze, in the lens of the driver’s side spotlight.
Based on his training and experience, Romiti testified that the graze was consistent with a
bullet strike. The spotlight was located six inches to the left and 18 inches in front of the
driver’s seat. Romiti also learned that other deputies located two bullet strike marks on
the undercarriage of the patrol vehicle. Romiti had not inspected Swengel’s patrol
vehicle prior to the incident.
Romiti also testified about his in-custody interview with Ramos. Ramos said that
he and Valdez were leaving a friend’s house around 2:00 a.m. or 3:00 a.m. in a red
pickup truck and that Valdez was driving. As they left the friend’s house, they passed a
marked Madera County Sheriff’s patrol vehicle and saw the patrol vehicle begin to
follow them. Ramos told Romiti that the pickup contained stolen property, including
stolen guns, and that Valdez said they should try and get away because there was only
4.
one patrol vehicle following them. Ramos admitted that he fired more than one gun at
the patrol vehicle during the pursuit. Ramos said that he was shooting at the patrol
vehicle because he was nervous due to the pickup being filled with stolen property
(including guns) and he was trying to keep the patrol vehicle from getting too close.
Ramos said that he did not have the intent to kill the deputy and only wanted to make the
deputy back off so that he and Valdez could escape.
Ramos’s Plea and Sentence
On March 21, 2016, the Madera County District Attorney filed a second amended
information. In relevant part, the second amended information charged Ramos with:
attempted murder (§§ 664/187, subd. (a); count 1); burglary (§ 459; count 4); receiving
stolen property (§ 496, subd. (a); count 5); illegal possession of a firearm (§ 29800,
subd. (a)(1); counts 6, 7); and attempted escape from prison (§ 4532, subd. (b)(1);
count 29).
On April 18, 2016, Ramos pled guilty to counts 1, 4, 5, 6, 7, and 29 pursuant to a
stipulation.
On May 23, 2016, the trial court imposed the stipulated sentence. The court
imposed a total sentence of 21 years to life as follows: four years on count 4; two years
on count 29, consecutive to count 4; three years each on counts 5, 6, and 7, to run
concurrently with count 4; and 15 years to life on count 1, consecutive to count 4.
Petition for Resentencing
On August 7, 2024, Ramos filed a petition for resentencing under section 1172.6.
On October 23, 2024, the People conceded that Ramos had made a prima facie
showing under section 1172.6 and requested that the trial court set an evidentiary hearing.
Evidentiary Hearing
On April 28, 2025, the trial court held an evidentiary hearing on Ramos’s
section 1172.6 petition. At the evidentiary hearing, the trial court considered transcripts
from Ramos’s May 2014 preliminary hearing and took live testimony from Ramos and
members of the Madera County Sheriff’s Department.
5.
1. Deputy John Grayson’s Testimony
Grayson testified in part that he recorded in-custody telephone calls by Ramos. In
a conversation to possibly Ramos’s brother, Ramos said that he was sorry, he did not
know what he was doing, he was under the influence of drugs, and he was going to jail
because they were shooting at a cop. In a separate call to an unknown person, Ramos
said that he had gotten in trouble the previous night for shooting at a cop. Grayson
testified that prior to the phone calls, either he or another deputy told Ramos that he
(Ramos) was going to jail for shooting at a cop.
2. Sergeant Jeff Noland’s Testimony
Noland testified that he and another deputy took Swengel’s patrol vehicle to a
garage in order examine it for damage. Noland had extensive experience regarding
firearms and bullet strikes. Noland observed what appeared to be a bullet strike on the
lower support bracket of the radiator, which was behind the license plate. Because there
was no hole in the license plate, Noland testified it appeared that a bullet had ricocheted
up off the ground and went up under the license plate and struck the support bracket. The
strike appeared to be fresh because it was not covered in dust or grime. Noland also
observed a chunk that was missing from the front driver’s side tire that appeared to be
consistent with a bullet strike. This strike also appeared to be fresh based on the way that
the rubber had broken away, and it did not appear that the tire had been driven a
considerable distance.
3. Identification Specialist Josephina Roderick’s Testimony
Roderick testified that she processed the pickup. As part of the processing, she
found 33 spent .22-caliber shell casings, two .30-caliber shell casings, and nine
.38-caliber shell casings.
4. Ramos’s Testimony
Ramos testified that he was a passenger in the red pickup truck, Valdez was the
driver, and there were no other occupants. Ramos was not sober and was under the
influence of alcohol, marijuana, and methamphetamine. Ramos was aware that there
6.
were firearms in the pickup and that neither he nor Valdez were supposed to possess
them.
Ramos testified that Valdez was driving at a high rate of speed and they noticed a
vehicle coming up fast behind them. As the other vehicle was coming up, Valdez began
to shoot. Valdez had grabbed a .38 revolver with his left hand, pointed the gun out the
back window with his left hand across his body, shot five rounds, and held onto the
steering wheel with his right hand. Ramos then grabbed a .22 from the floorboard,
opened the rear window more, pointed the gun in a downward direction, and began to
shoot. Ramos shot the gun in both upward and downward directions because he just
wanted to get away and was not trying to hurt anyone. Ramos explained that he had been
around firearms since a young age and, if he had wanted to shoot the patrol vehicle, he
could have done so.
Ramos admitted that he fired a second volley with a .22-caliber and then shot a
.38-caliber pistol, while Valdez shot a .30-caliber in the direction of Swengel. Ramos
explained that Valdez grabbed the .30-caliber pistol from the floorboard, held the gun
with his left hand, reached across his body, and fired out the back of the pickup over his
right shoulder, all while driving the pickup with his right hand. Ramos testified that it
was not true that, as the pickup truck would slow down, and Swengel would get closer,
gunshot volleys would be fired. After Ramos fired the guns, red and blue lights came on
from the vehicle behind them, and Ramos realized that it was a police vehicle. Ramos
believed that they needed to escape because they had stolen guns in the pickup. Ramos
was also afraid that if they stopped, the police officer would kill them because they had
shot at him. Ramos did not discharge any weapons after he saw the red and blue lights
come on. The reason that Ramos did not fire any further was because he recognized that
law enforcement was following them. Ramos explained that the pickup subsequently hit
a tree as they were coming around the corner, but Valdez recovered, drove into an
orchard, saw that Swengel did not follow, and escaped out the back of the orchard.
7.
After he was arrested at the hotel, Ramos testified he voluntarily made statements
to the deputies. Ramos testified he told the deputies more than once that he was not
trying to hurt anyone when he fired out the back of the pickup but was just trying to get
away. Ramos also testified he was told he would be going to jail for attempted murder
and that he had been arrested for shooting at a deputy. When he said on the telephone
that he was going to jail for shooting at a cop, he was not making an admission; rather, he
was just repeating what had been told to him by the deputies.
5. Lieutenant Robert Blehm’s Testimony
Blehm testified as rebuttal witness. In part, Blehm testified that he had
interviewed Ramos after the arrest. Blehm testified that Ramos initially said he was not
in the pickup. Ramos then stated he was in the pickup with Valdez and a third person
and that the third person was the one who shot at Swengel. Ramos then said that Valdez
was the shooter. Ultimately, Ramos admitted that he was the sole shooter and that he had
fired every shot during the chase. Blehm testified that only after he had suggested a
scenario in which Ramos was shooting only in order to escape did Ramos admit to firing
the guns for the purpose of escaping from the patrol vehicle; Blehm had no recollection
of Ramos saying that he fired at the patrol vehicle with the intent to harm the driver.
Blehm also testified that he had extensive experience with firearms and how
firearms ejected shell casings. Based on the type of weapons recovered from the pickup,
the fact that shell casings were primarily located on the driver’s side, and assuming the
weapons were fired out the back of the truck, Blehm opined that the .22-caliber and the
.30-caliber guns were fired from the passenger side. Because the .38-caliber was a
revolver, Blehm had no opinions about the location of the shooter based on the .38 shell
casings. However, considering that the driver was driving at 100 miles per hour, Blehm
opined it would be virtually impossible or highly unlikely for the driver to have been able
to maintain control of the truck and simultaneously fire out the rear window.
8.
Trial Court’s Decision
On May 5, 2025, the trial court orally denied Ramos’s section 1172.6 petition.
The court stated it found Ramos’s testimony to be not credible and the evidence
established beyond a reasonable doubt that Ramos was guilty of attempted murder.
Specifically, the court found:
“Much of the argument of the defense relies on the testimony of
[Ramos]. And the Court finds that [Ramos’s] testimony was not credible
for a number of reasons.
“[Ramos] testified that he didn’t realize it was a law enforcement
officer until he saw the red lights and siren and, at that time, he stopped
shooting. And that is not what happened in this case. The Court—the
testimony at the preliminary hearing from … Swengel was, in fact, that
after the first volley, he turned on his lights and siren. And there were
four volleys of shots in this case. That is inconsistent with [Ramos’s]
testimony.
“Even more important, [Ramos’s] statement to … Romiti, as
testified by … Romiti at the preliminary hearing, was that he saw the
deputy’s patrol vehicle just as—after he left his friend’s house in Fairmead
and they passed by it, and he saw the patrol vehicle follow their truck. And
that is inconsistent with [Ramos’s] testimony.
“The Court finds that his testimony that the driver fired shots is also
not believable. It is not credible to believe that a driver of a truck trying to
elude law enforcement, driving at speeds between 80 and 100 miles an
hour, would, at the same time, be shooting a firearm outside the back
window of that truck. The Court believes that it was [Ramos] that was
shooting at the law enforcement officer.
“[Ramos] testified that … there were two .38-caliber revolvers in the
truck, and that—[the] Court does not believe that testimony either.
[Ramos] said no guns were removed from the truck. There was only one
.38-caliber revolver found in the truck. It is clear from the testimony that
that revolver was fired more than six times; that it was reloaded.
“The testimony in this matter is [Ramos] shot at least 44 times at the
deputy. [Ramos] even used the words that he shot at a deputy or ‘a cop.’
The truck slowed down before each volley of shots to better the chances of
shooting the deputy, which indicates an intent. The mere number of shots
also indicates an attempt. The patrol vehicle was struck at least three times.
9.
The most significant that the Court finds is that the spotlight, within
18 inches of … Swengel, was struck.
“The Court finds that there’s beyond a reasonable doubt that
[Ramos] is guilty of attempted murder, and the motion under
[section] 1172.6 is denied.”
On May 27, 2025, Ramos appealed the trial court’s decision.
DISCUSSION
I. PARTIES’ ARGUMENTS
Ramos avers the trial court improperly inferred that he had an intent to kill
Swengel. Ramos argues the physical evidence does not support an inference of an intent
to kill. Specifically, Ramos points out the deputies could not determine with certainty
whether the three marks on the patrol vehicle were actually bullet marks or whether the
marks pre-dated the chase; the times the pickup slowed down could have been due to the
curves in the road; the number of shots fired without hitting Swengel indicated an intent
to frighten but not to kill; and if the three marks on the patrol vehicle were gunshots, then
they were ricochets from the ground, which shows he was aiming at the ground. Ramos
also argues the court improperly found his testimony generally to be not credible and
unreasonably credited only harmful testimony or focused on minor inconsistencies.
The People contend the trial court’s judgment is sufficiently supported. The
People argue substantial evidence shows that Ramos harbored the intent to kill because
he fired dozens of bullets at Swengel during a high speed chase, which resulted in
Swengel’s patrol vehicle being struck three times. The People argue that Ramos’s
contrary arguments are improper requests to reweigh the evidence.
II. LEGAL STANDARDS
A. Section 1172.6
In 2019, the Legislature altered the substantive law of murder by: (1) narrowing
the scope of the felony-murder rule, and (2) for non-felony-murder cases, requiring that a
principal in a crime must act with malice aforethought, but prohibiting malice from being
imputed to a person solely because of his participation in a crime. (People v. Curiel
10.
(2023) 15 Cal.5th 433, 448–449; see also People v. Emanuel (2025) 17 Cal.5th 867, 879–
880 (Emanuel).) The Legislature also provided for a petition for resentencing to those
who had been previously convicted of murder under a theory that had been amended by
the 2019 law. (Emanual, at p. 880; Curiel, at p. 449; § 1172.6.) If a defendant files a
petition for resentencing that includes an attestation that he could not presently be
convicted of murder or attempted murder in light of the 2019 legislative changes, and the
trial court finds that the defendant has made a prima facie case for relief, then the trial
court must issue an order to show cause and hold an evidentiary hearing. (Emanuel, at
p. 880; Curiel, at pp. 449–450; see § 1172.6, subds. (a)(3), (c).) At the evidentiary
hearing, the prosecution bears the burden to prove beyond a reasonable doubt that the
defendant is guilty of murder or attempted murder under existing law. (Emanuel, at
p. 880; Curiel, at p. 450.) At the evidentiary hearing, the trial court acts as an
independent factfinder (People v. Gudiel (2024) 107 Cal.App.5th 848, 858 (Gudiel)), and
it may consider the evidence admitted at the defendant’s prior trial as well as new or
additional evidence offered by the parties (People v. Oyler (2025) 17 Cal.5th 756, 836
(Oyler)). If the prosecution fails to meet its burden, then the defendant’s murder
conviction must be vacated, and the defendant will be resentenced on any remaining
charges. (Emanuel, at pp. 880–881; Oyler, at p. 836.)
The denial of a section 1172.6 petition following an evidentiary hearing is
reviewed for substantial evidence. (Emanuel, supra, 17 Cal.5th at p. 885; People v.
Reyes (2023) 14 Cal.5th 981, 988.) Under this standard, appellate courts view the record
“ ‘ “ ‘in the light most favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.’ ” ’ ” (Reyes, at p. 988; see Emanuel, at p. 885.) Appellate courts must
presume in support of the judgment the existence of every fact that can be reasonably
deduced from the evidence, whether direct or circumstantial. (Oyler, supra, 17 Cal.5th at
p. 820; Gudiel, supra, 107 Cal.App.5th at p. 858.) Appellate courts will not reweigh
11.
evidence or reassess witness credibility, and all evidentiary conflicts and questions of
credibility are resolved in favor of the judgment. (Oyler, at p. 820; People v. Grandberry
(2025) 116 Cal.App.5th 934, 946; see also People v. Alvarez (2025) 18 Cal.5th 387, 470
(Alvarez) [“[I]t is the exclusive province of the [finder of fact] to determine the credibility
of a witness ….”].) The power of reviewing courts to assess the sufficiency of the
evidence begins and ends with a determination as to whether any substantial evidence
supports the conviction. (People v. Bassett (1968) 69 Cal.2d 122, 138; People v. Ghipriel
(2016) 1 Cal.App.5th 828, 832.) As long as the circumstances reasonably justify the
jury’s findings, the conviction may not be reversed simply because the circumstances
also may reasonably be reconciled with a contrary finding. (Oyler, at p. 820.)
B. Attempted Murder
“To prove the crime of attempted murder, the prosecution must establish ‘the
specific intent to kill and the commission of a direct but ineffectual act toward
accomplishing the intended killing.’ ” (People v. Canizales (2019) 7 Cal.5th 591, 602.)
Because direct evidence of an intent to kill is rare, the intent to kill ordinarily is inferred
from the defendant’s statements and actions and the circumstances surrounding the crime.
(Ibid.; People v. Foster (2021) 61 Cal.App.5th 430, 440.)
III. ANALYSIS
The trial court found beyond a reasonable doubt that Ramos was guilty of
attempted murder. Implicit within this conclusion is the necessary finding that Ramos
intended to kill Swengel. (People v. Canizales, supra, 7 Cal.5th at p. 602.) Viewing the
evidence in the light most favorable to the trial court’s judgment (Emanuel, supra, 17
Cal.5th at p. 885), we are satisfied that substantial evidence supports the court’s implicit
finding (People v. Orozco (2012) 209 Cal.App.4th 726, 735; People v. Pacheco (1972)
27 Cal.App.3d 70, 78). Specifically, it is well established that, irrespective of whether a
bullet hits its mark, purposefully shooting a firearm at another person without legal
excuse and at close range generally gives rise to an inference that the shooter acted with
an intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 742; People v. Foster, supra, 61
12.
Cal.App.5th at p. 440.) That inference is supported in this case because the court’s oral
findings and the surrounding circumstances show that Ramos knew Swengel was law
enforcement and shot multiple rounds and volleys at Swengel at a relatively close range
in order to kill Swengel and escape the pursuit.
First, the trial court accepted Romiti’s testimony regarding postarrest statements
by Ramos. In one such statement, Ramos confirmed that he and Valdez passed
Swengel’s patrol vehicle and saw when the patrol vehicle began to follow them.
Although Ramos testified that he did not know that a sheriff’s patrol vehicle was
following until after shots had been fired and after Swengel turned on the red and blue
lights, the court was not required to believe Ramos’s testimony over Romiti’s. (Alvarez,
supra, 18 Cal.5th at p. 470; Oyler, supra, 17 Cal.5th at pp. 820, 827.) Therefore, the trial
court could conclude Ramos knew that the vehicle approaching him was law enforcement
before any shots were fired. (Oyler, at p. 820; Gudiel, supra, 107 Cal.App.5th at p. 858.)
Second, the court found that Ramos, and only Ramos, fired shots at Swengel. This
finding is supported by Blehm’s rebuttal testimony. Blehm testified that Ramos gave
multiple postarrest accounts of the shooting but ultimately admitted that he alone had
fired all shots. Additionally, Ramos admitted that he fired a .22-caliber and a .38-caliber
in Swengel’s direction. Although Ramos testified that Valdez shot first and also fired
two different guns, the court disbelieved this testimony. Considering Ramos’s rather
implausible description of Valdez reaching across his body and shooting the gun with his
left arm across his body, all while steering with his right hand and driving at over 100
miles per hour, the court had more than a sufficient basis to disbelieve Ramos. (Alvarez,
supra, 18 Cal.5th at p. 470; Oyler, supra, 17 Cal.5th at pp. 820, 827.)
Third, and relatedly, in two separate recorded phone calls after he was arrested,
Grayson testified that Ramos admitted to having shot at a cop. Although Ramos testified
he was not making an admission but was only repeating what he had been told by the
deputies, the trial court was not required to believe Ramos’s explanation. (Alvarez,
supra, 18 Cal.5th at p. 470; Oyler, supra, 17 Cal.5th at pp. 820, 827.) Moreover,
13.
Grayson described that Ramos apologized to a possible family member and tried to
blame drugs for his actions. This indicates that Ramos knew he had engaged in unlawful
behavior and had indeed shot at cops, but that he was trying to mitigate his actions by
blaming drug use.
Fourth, Swengel’s testimony shows that he was fired upon on four separate
occasions. On each occasion and right before shots were fired, the pickup truck slowed
down, which caused Swengel to get closer to the truck. Once Swengel was close, Ramos
fired a total of 44 rounds over the course of four separate volleys. Further, Ramos
admitted that he and Valdez were scared and did not want to get caught because they
were unlawfully in possession of stolen firearms and had shot at Swengel. The trial court
could infer from Ramos’s knowledge of his own unlawful conduct, the number of shots
fired, the number of separate volleys fired, and the slower speeds and shorter distances
involved when the shots were fired (which would make hitting Swengel easier) that
Ramos acted under a concerted plan and intent to shoot Swengel and thus, end the pursuit
and ensure escape without further police interference. (See Oyler, supra, 17 Cal.5th at
p. 820; Gudiel, supra, 107 Cal.App.5th at p. 858; see also State v. Smith (La. Ct. App. 2d
Cir. 2024) 400 So.3d 1244, 1250 [“[F]light and attempt to avoid apprehension are
circumstances from which a trier of fact may infer a guilty conscience.”].)
Fifth, and finally, the testimony of Noland and Romiti indicated that the patrol
vehicle was struck three times by bullets: once in the middle of the undercarriage, once
on the driver’s side front tire, and once on the driver’s side spotlight. Although the
deputies could not definitively say that bullets had hit the vehicle, the facts that the patrol
vehicle was being shot at hours before it was examined, the marks were consistent with
bullet strikes, and the marks did not appear to be old are sufficient for the trial court to
have concluded that Swengel’s patrol vehicle was actually hit by three rounds fired by
Ramos. (Oyler, supra, 17 Cal.5th at p. 820; Gudiel, supra, 107 Cal.App.5th at p. 858.)
The court could reasonably infer that because the vehicle was struck three times, and with
14.
one of the strikes coming within inches of hitting Swengel, Ramos was attempting to
shoot Swengel. (Oyler, at p. 820; Gudiel, at p. 858.)
Ramos argues the trial court’s credibility determinations were unreasonable and
that it was improper to credit only his harmful testimony. However, as the trier of fact, it
was entirely within the court’s prerogative to believe some aspects of Ramos’s testimony
and disbelieve others. (In re Lopez (2023) 14 Cal.5th 562, 591; People v. Brown (2014)
59 Cal.4th 86, 106–107.) Further, the court as the trier of fact made credibility
determinations and resolved conflicts in the evidence by accepting the testimony of the
deputies and largely rejecting the testimony of Ramos. (Alvarez, supra, 18 Cal.5th at
p. 470; Oyler, supra, 17 Cal.5th at pp. 820, 827.) This was appropriate as there was
nothing in the deputies’ testimony that was so outlandish or improbable that the court
should have rejected it. (See Oyler, p. 827.) To the contrary, it was Ramos’s testimony
regarding Valdez shooting that was improbable, and Blehm’s rebuttal testimony indicates
that Ramos was shifting his stories about his role in the shooting. Both of these
considerations reflect negatively on Ramos’s credibility. In short, we accept the court’s
credibility determinations regarding Ramos’s testimony. (Alvarez, at p. 470; Oyler, at
p. 820.)
Ramos also argues the evidence shows he did not intend to kill Swengel because
none of the deputies could definitively say that any of the three strikes to the patrol
vehicle were actually caused by bullets as opposed to rocks, the truck could have been
slowing down due to road conditions, and the number of shots fired were indicative of an
attempt to escape. However, that substantial evidence may support findings that are
contrary to the court’s judgment is not dispositive. (Oyler, supra, 17 Cal.5th at p. 820;
People v. Helzer (2024) 15 Cal.5th 622, 646.) On a substantial evidence review, we are
obligated to view the evidence in the light most favorable to the judgment and make
inferences in favor of the evidence; we do not reweigh the evidence or view it in the light
most favorable to a rejected defense. (See Oyler, at p. 820; see also Helzer, at p. 646.)
Ramos’s arguments essentially amount to an improper invitation to reweigh the evidence,
15.
which we will not do. (Oyler, at p. 820.) Because substantial evidence exists that Ramos
had the specific intent to kill Swengel, our review must end. (People v. Bassett, supra,
69 Cal.2d at p. 138; People v. Ghipriel, supra, 1 Cal.App.5th at p. 832.)
Accordingly, we conclude that substantial evidence supports the trial court’s
findings and the denial of Ramos’s section 1172.6 petition.
DISPOSITION
The judgment is affirmed.
HARRELL, J.
WE CONCUR:
FRANSON, Acting P. J.
DESANTOS, J.
16.