Metropolitan News-Enterprise


Friday, June 25, 2021


Page 1


C.A. Takes Judge to Task for Following Order in Footnote

That Direction, It Declares, Was Merely Dictum; Judge Should Have Adhered Strictly to Dispositional Paragraph


By a MetNews Staff Writer


A Los Angeles Superior Court judge has been faulted by the Court of Appeal for this district for failing to follow its instruction as to what to do on remand in resentencing a defendant, although Div. Two’s 2019 opinion directed that the defendant be sentenced for robbery on the first count, which is what Judge Bruce F. Marrs carried out.

The judge should not have followed what was spelled out in dictum in a footnote, but should have adhered to what was prescribed in the dispositional paragraph, Justice Victoria Chavez said in Wednesday’s opinion, which was not certified for publication.

Chavez also authored the earlier opinion—filed Oct. 22, 2019, initially not earmarked for publication, but certified for publication on Nov. 6, 2019—which reversed Marrs’s summary denial of Raymond Salvador Ramirez petition to vacate his 2003 murder conviction, pursuant to Penal Code §1170.95, and for a resentencing on the other counts. That statute, which went into effect on Jan. 1, 2019, provides a procedure for judicial invalidation of murder convictions that were based on the centuries-old felony-murder rule where the defendant would not be subject to prosecution for murder under the current statute.

Penal Code §189 now requires that the defendant have been the “actual killer” or “with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree” or “was a major participant in the underlying felony and acted with reckless indifference to human life.”

2019 Opinion

In her 2019 opinion, Chavez declared that Ramirez, a look-out in an armed robbery, qualified for relief under §1170.95. She observed that the maximum sentence that could be imposed on the remaining counts would be eight years in prison, and specified in footnote 4 that “[t]he maximum would be calculated as follows: assuming that count 5, conspiracy to commit robbery would again be stayed…the base term, robbery in count 1, would carry the high term of five years….”

Count 1 had been the murder count.

Chavez set forth in the dispositional paragraph:

“The order denying defendant’s petition to vacate his murder conviction and for resentencing is reversed. The matter is remanded to the superior court with directions to grant the petition, vacate defendant’s murder conviction, and resentence him on the remaining counts.”

In resentencing Ramirez on Feb. 26, 2020, Marrs said that “Count 1 is converted by order of the Court of Appeals to a robbery,” and  sentenced the defendant to five years on that count.

Chavez’s Perception

Chavez, in her opinion reversing the judgment, recited that Marrs “amended the information on its own motion and made count 1 a robbery conviction” and that he “erred in converting the murder conviction to robbery.” 

She wrote:

“An appellate court’s decision is found in the disposition section of its opinion, and it is the disposition which constitutes the judgment on appeal….Here, the trial court stated that it intended to follow the appellate court’s orders ‘exactly,’ but then ruled that dicta in a footnote of the opinion represented the appellate court’s orders. It did not. The trial court referred to footnote 4, in which we attempted to calculate to defendant’s assertion that ‘resentencing on the previously stayed counts would yield a maximum sentence of eight years in prison.’…We mistakenly included count 1, and in any event, we did not convert count 1 to robbery, we did not suggest the high term, and we had no intention of suggesting to the court how to resentence defendant.

“Our directions on remand were stated in the disposition, not in a footnote. As the trial court did not follow the directions given, its orders after remand are void….We shall therefore again order the trial court to vacate the murder conviction and resentence.”

Chavez said that a count alleging murder could not be transformed into something else given that §1170.95 specifies that where a murder conviction is vacated, the defendant is to be “resentenced on any remaining counts.” There is no need, in light of the disposition, to reach the issue of whether Ramirez was subjected to double jeopardy because the new count 1 was based on the same conduct alleged in the existing count 2, she wrote.

The case is People v. Ramirez, B306029.


Copyright 2021, Metropolitan News Company