People v. Ramirez CA2/3

INTRODUCTION

In 1992, defendant Aliver Antonio Ramirez was convicted of second degree murder. He appeals from the denial of his petition for recall and resentencing under Penal Code section 1170.95. Defendant contends that the court engaged in improper fact-finding by relying on the opinion in his prior appeal. Based on the instructions at trial, however, the jury could not convict defendant of murder unless it concluded he acted with malice aforethought.1 Because defendant could not have been convicted under a now-invalid theory of murder, he is ineligible for relief as a matter of law. We therefore affirm.

BACKGROUND2

By information dated September 25, 1990, defendant was charged with one count of murder (Pen. Code,3 § 187, subd. (a); count 1), three counts of assault with a firearm (§ 245, subd. (a)(2); counts 2–4), and one count of grand theft auto (former § 487; count 5). The information also alleged defendant personally used a firearm (§ 12022.5) in counts 1–4 and personally inflicted great bodily injury in counts 2–4. After a trial, the jury convicted defendant of counts 1, 2, and 3, and found the related allegations true. It set the degree of murder at second degree.…