Francisco Ramirez, Jr. v. Pat Vasques

MEMORANDUM **

Petitioner Francisco Ramon Ramirez, Jr. (“Ramirez”) appeals the denial of his federal habeas petition. Ramirez, who was convicted of voluntary manslaughter, contends that the state court Apprendi/Blakely 1 error of failing to submit aggravating circumstances to a jury was not harmless. We agree, and reverse and remand.

Ramirez was charged with murder in the shooting death of his sister’s boyfriend, but presented a self-defense/defense-of-another theory to the jury. After five days of deliberation, the jury convicted Ramirez of the lesser-included offense of voluntary manslaughter, and thus did not fully accept either the prosecution’s or de *552 fense’s version of the facts. In sentencing, however, the state court found several aggravating factors applied (reciting in large part the prosecution’s view of the evidence) and sentenced Ramirez to an aggravated term on the use of a firearm charge.

In light of Apprendi, Blakely, and Cunningham v. California, 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007), it was error for the state court to have failed to submit the aggravating factors to the jury for determination. “Even where constitutional error is found, ‘in…

dissenting:

I respectfully dissent. I have no doubt that the jury would have found at least one *553 aggravating factor, Butler v. Curry, 528 F.3d 624, 648 (9th Cir.2008), either sophistication or “great violence ... or other acts disclosing a high degree of cruelty, viciousness, or callousness,” Cal. R. Ct. 4.421(a)(1), (a)(8). Ramirez had much more than routine familiarity with firearms, having served for ten years in the military during which he was qualified in the use of weapons. He was under the influence of methamphetamine. He selected the deadlier of the firearms in his vehicle, which had a five-round magazine. He used expanding bullets (forbidden in warfare since the 1880s), which disintegrate on impact to cause the greatest damage to the human body; at close range he fired three shots, each of which required separate aim, and separate pulls of the trigger, and which shot the victim’s heart out of his body. The result was not just any killing, but dramatic overkill. Accordingly, I would affirm, because the Cunningham v. California, 549 U.S. 270 , 127 S.Ct. 856 , 166 L.Ed.2d 856 (2007), error was harmless under the Brecht v. Abrahamson, 507 U.S. 619 , 113 S.Ct. 1710 , 123…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT NOV 04 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FRANCISCO RAMON RAMIREZ, JR., No. 12-55231

Petitioner - Appellant, D.C. No. 5:08-cv-01042-GW-AJW

v.

MEMORANDUM

PAT L. VASQUES, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted October 7, 2014 Pasadena, California

Before: HAWKINS and GRABER, Circuit Judges, and SEDWICK,** District Judge.

Petitioner Francisco Ramon Ramirez, Jr. (“Ramirez”) appeals the denial of his

federal habeas petition. Ramirez, who was convicted of voluntary manslaughter,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John W. Sedwick, United States District Judge for the District of Alaska, sitting by designation. contends that the state court Apprendi/Blakely1 error of failing to submit aggravating

circumstances to a jury was not harmless. We agree, and reverse and…