People v. Ramos CA6

Opinion

Filed 8/27/26 P. v. Ramos CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H052921 (Monterey County Plaintiff and Respondent, Super. Ct. Nos. SS150446A & SS150594A) v.

VICTOR RAMOS,

Defendant and Appellant.

In 2016, defendant Victor Ramos pled no contest to various charges in two separate cases (Case Nos. SS150446A and SS150594A), including second degree murder (Pen. Code, § 187, subd. (a))1, attempted murder (§ § 664, 187, subd. (a)), street terrorism (§ 186.22, subd. (b)(1)(a)), and associated firearm and gang enhancements. The trial court sentenced Ramos to a stipulated term of 25 years to life in prison on case No. SS150446A, consecutive to a determinate term of seven years and eight months in prison on case No. SS150594A. In 2024, Ramos filed a petition requesting that his convictions for second degree murder and attempted murder in both cases be vacated and he be resentenced pursuant to section 1172.6. (Stats. 2022, ch. 58, § 10, eff. June 30, 2022; see also Stats. 2021, ch. 551, § 2, eff. Jan. 1, 2022.) The trial court found that Ramos had demonstrated a prima facie case for relief in both cases and issued orders to show cause pursuant to section 1 Undesignated statutory references are to the Penal Code. 1172.6, subdivision (c). Following an evidentiary hearing on January 17, 2025, the trial court denied Ramos’s petition as to both cases. Ramos now appeals the trial court’s order, arguing that there was insufficient evidence to support the trial court’s finding that he was guilty of attempted murder under current law. He further argues that the trial court improperly admitted and relied on gang expert testimony in determining his guilt, and erred in failing to consider his youth and inexperience at the time of the offense in evaluating whether he possessed the requisite intent to kill. For the reasons explained below, we find no merit to Ramos’s claims and affirm the trial court’s denial of the petition. I. FACTUAL AND PROCEDURAL BACKGROUND A. Procedural Background 1. Charges, Plea, and Original Sentence On July 19, 2016,2 the Monterey County District Attorney filed an amended information against Ramos in case No. SS150446A charging him with second degree murder of Abraham Lizama (§ 187, subd. (a); count 1), as well as allegations that Ramos personally used a firearm, a handgun (§ 12022.5, subd. (a)) and committed the offense for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(5)). On the same date, the Monterey County District Attorney also filed an amended information against Ramos and a co-defendant, Hugo Puga Guido (Puga) in case No. SS150594A charging him with the attempted second degree murder of John Does 1 and 23 (§§ 664, 187, subd. (a); count 1), attempted murder with premeditation (§§ 664, 187, subd. (a); count 2), street terrorism (§ 186.22, subd. (a), count 3), and shooting 2 The amended information filed in both cases was pursuant to the stipulated plea agreement reached by Ramos and the People. 3 The victims were designated as “John Doe,” and their actual names do not appear in the record.

2 at an occupied motor vehicle (§ 246; count 4). The amended information in case No. SS150594A also included allegations that counts 2 and 3 were violent offenses committed by Ramos for the benefit of, at the direction of, or in association with a criminal street gang, (§ 186.22, subd. (b)(1)(B) & (C)). Also on July 19, 2016, Ramos entered a plea of no contest in case No. SS150446A to the second degree murder of Abraham Lizama (§ 187, subd. (a); count 1) and admitted the gang and firearm enhancement allegations (§§ 186.22, subd. (b)(5), 12022.5, subd. (a)). Ramos also entered a plea of no contest in case No. SS150594A to the attempted second degree murder of John Does 1 and 2 (§§ 664, 187, subd. (a); count 1) and street terrorism (§ 186.22, subd. (a); count 3). In exchange for his plea, the remaining charges and allegations were dismissed, and the parties agreed Ramos would serve a stipulated sentence of 25 years in state prison on case No. SS150446A, consecutive to a stipulated sentence of seven years and eight months in state prison on case No. SS150594A. On August 18, 2016, the trial court sentenced Ramos in accordance with the plea agreement to 25 years to life in prison on case No. SS150446A, consisting of 15 years to life for second degree murder (count 1), a consecutive term of 10 years for the firearm enhancement, and a concurrent term of 15 years to life on the gang allegation. In case No. SS150594A, the trial court sentenced Ramos in accordance with the plea agreement to seven years and eight months in prison, consisting of the middle term of seven years for attempted murder (count 1) and a consecutive term of eight months (one-third the midterm) for street terrorism (count 3), with his sentence to be served consecutive to case No. SS150446A. 2. Section 1172.6 Proceedings a. 2024 Petition and Response Senate Bill No. 1437 (2017–2018 Reg. Sess.) (Senate Bill 1437) took effect on January 1, 2019, imposing a number of “statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 3 1, subd. (b).) Senate Bill 1437 added what is now designated as section 1172.6, which allowed a person convicted in a case involving felony murder or murder under the natural and probable consequences doctrine to file a petition with the sentencing court to vacate the conviction and to be resentenced. Senate Bill No. 775 (2021–2022 Reg. Sess.) (Senate Bill 775), which took effect on January 1, 2022, later “[c]larifie[d] that persons who were convicted of attempted murder or manslaughter under a theory of felony murder and the natural [and] probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.” (Stats. 2021, ch. 551, § 1, subd. (a).) On March 4, 2024, Ramos filed a petition for resentencing in both cases pursuant to Senate Bill 1437. Although the People opposed Ramos’s petition for the murder charge in case No. SS150446A on the basis that Ramos was the actual killer, the People conceded that Ramos had made a prima facie case for relief for the attempted murder charge in case No. SS150594A, while arguing that Ramos was guilty under current law as a direct aider and abettor. The trial court subsequently found that Ramos had made a prima facie case for relief on both cases, issued orders to show cause, and set an evidentiary hearing. b. Evidentiary Hearing and Decision On January 17, 2025, the trial court held an evidentiary hearing on Ramos’s petition. The People did not present any live testimony, but submitted the preliminary hearing transcripts and four stipulations the parties had agreed upon regarding victim and witness observations. The defense presented testimony from several witnesses, including Ramos. At the conclusion of the hearing and after hearing final argument from both parties, the trial court denied Ramos’s petition and found that he was guilty in both cases under current law. For the murder charge in case No. SS150446A, the trial court found that the People had proven beyond a reasonable doubt that Ramos was the actual killer and acted with intent to kill. As to the attempted murder charge in case No. SS150594A, 4 the trial court concluded that the offense was “an aiding and abetting” where Ramos aided and abetted in the attempted murder of the alleged victim committed by his co- defendant Puga, and shared the same specific intent to kill. Ramos timely appealed. B. Factual Background4 Victim 2 (V2)5 and Victim 3 (V3), were both “dropouts” of the Sureño gang. On the night of February 18, 2015, V2 and V3 met Ramos and Puga, whom V2 knew as Sureño gang members, in the parking lot of a bar, Las Potrancas. After a brief conversation with Ramos about police presence in the area, V2 and V3 left the bar and drove to another location in Salinas to buy drugs. After V2 had purchased the drugs and gotten back in his car, he observed a black SUV, which he had seen Ramos driving earlier at Las Potrancas, approach him with Ramos in the driver’s seat, Puga in the back passenger’s seat directly behind Ramos, and two other occupants that V2 did not know. The driver’s side was facing V2, with the window next to Puga rolled down, and the vehicle’s headlights were off. As the vehicle slowly approached, V2 heard approximately 10 gunshots and saw Puga shooting a handgun out of the back passenger’s seat. V2 estimated that as the shots were being fired, the distance between the passenger side of his vehicle and the SUV was approximately “a car size,” with enough room for one vehicle to pass through. Although V2 and V3 were not hit by any bullets, the bullets hit V2’s car from the trunk to the front rim, with the last bullet hitting the front tire. Two bullets also shattered the back passenger window and landed inside the car. V2 attempted to follow the SUV, but was unable to do so because of the damaged tire.

4 Because Ramos does not challenge the trial court’s order denying his petition as to the murder charge in case No. SS150446A, we shall only discuss the facts of the attempted murder charge in case No. SS150594A, which we derive from the preliminary hearing transcript. 5 We refer to the victims in the case as “Victim 2” and “Victim 3” in accordance with their designations in the preliminary hearing transcript.

5 II. DISCUSSION A. Sufficiency of Evidence Ramos contends that there was no substantial evidence to support the trial court’s conclusion that he was guilty under current law as a direct aider and abettor for attempted murder. He argues that because the People did not present any live testimony at the evidentiary hearing and relied on a “cold” record of documents only, the trial court’s factual determinations, including any credibility assessments, were based on speculation and surmise. He further claims that there was no substantial evidence demonstrating that he possessed the intent to kill or aided and abetted Puga, the actual shooter, in the commission of the attempted murder. 1. Relevant Procedural Background a. Prosecution’s Case At the January 17, 2025 evidentiary hearing, the People submitted the preliminary hearing transcript into evidence, as well as several stipulations regarding witness and victim statements. With respect to case No. SS150594A, the People and Ramos’s counsel stipulated that V2 had made the following statements to the police following the incident: “Victim 2 identified Hugo Guido Puga (aka Demon) as the guy who shot him. He told police it was over a girl. The driver during the shooting was Victor Ramos and they were in Victor Ramos’ car. Victor was arrested for murder couple days prior. The right front passenger was a guy named Hugo who[m] Victim 2 did not know. Demon rolled the window completely down; Demon was the only shooter. [¶] “Victim 2 identified both Victor Ramos and Hugo Puga in a lineup. Victim 2 told law enforcement that when he was at the bar on Williams Road he had seen Victor Ramos and “Demon.” [Law enforcement] asked Victim 2 where RJZ1 [6] was when the 6 Although not stated in the record, RJZ1 appears to have been another friend of V2 and V3 who was present during the shooting.

6 shooting occurred. He said RJZ1 was at the bar initially and that he was going to buy drugs for RJZ1. He said that RJZ1 followed him to First Avenue and parked a short distance away from him so he could buy drugs for RJZ1. [¶] “When Victim 2 was on First Avenue, he bought the drugs for RJZ1 and handed the drugs to RJZ1. Right when he handed the drugs to RJZ1 he heard Victim 3 say that ‘they were coming.’ [¶] “Victim 2 said he heard the first shots and at first he thought Victim 3 and RJZ1 were messing with him because the shots were faint. Then he heard the back window shatter and saw the suspect vehicle along the side of his vehicle and the left rear passenger shooting from inside of the vehicle. Victim 2 said that when the shooting happened the suspect vehicle was about 10 [inches] away and that their windows were down. He said that he could clearly see the shooter and the driver.” b. Defense Case The defense presented testimony from forensic psychiatrist Doctor Carolyn Murphy7 and Ramos’s current girlfriend, who briefly testified that she had been dating Ramos for seven to eight months and knew him as an honest person. Ramos also testified during the hearing. Ramos stated that he had gone out with Puga to a bar on Williams Road, and saw V2 and V3 in the parking lot, where they had a brief, friendly conversation. Puga then asked Ramos to give him a ride, and sat in the passenger’s seat directly behind Ramos. Ramos was unaware that Puga had a gun on him at the time. As Puga directed Ramos on where to drive, Ramos turned onto a street near Gardener Avenue in Salinas and approached a vehicle, which he did not know belonged to the victims. Ramos then heard multiple gunshots, and turned around to ask Puga “what was that?” Ramos testified that he was “in shock,” did not know the victims were 7 Because Dr. Murphy’s testimony pertains to Ramos’s claim regarding consideration of his youth at the time of the offense, we shall discuss this testimony in further detail below.

7 going to be shot at, and did not want them to get shot. He also was unaware that Puga and V2 had any disagreement over a girl. On cross-examination, Ramos described himself as a Sureño associate, where he was not a full member of the gang but periodically hung out with Sureño gang members. He had been introduced to Puga in the beginning of 2015, but had never hung out with him prior to the night of the shooting. While Ramos was familiar with the term “dropout” and knew that this meant someone who was no longer a part of the gang, he stated he was not aware at the time of the shooting that V2 was a Sureño dropout. 2. Applicable Legal Principles and Standard of Review As noted above, effective January 1, 2019, Senate Bill 1437 “amend[ed] the felony murder rule and the natural and probable consequences doctrine . . . to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) To that end, the bill amended section 188, subdivision (a)(3), which now requires that all principals must act with express or implied malice to be convicted of the crime of murder, with the exception of felony murder under section 189, subdivision (e). (Stats. 2018, ch. 1015, § 2.) A felony murder conviction under section 189, subdivision (e), as amended by Senate Bill 1437, requires that the defendant be the actual killer, an aider and abettor to the murder who acted with intent to kill, or a major participant in the underlying felony who acted with reckless indifference to human life. (Stats. 2018, ch. 1015, § 3.) In addition to the amendments to sections 188 and 189 described above, Senate Bill 1437 added what is now section 1172.6. (Stats. 2018, ch. 1015, § 4; Stats. 2022, ch. 58, § 10.) As relevant here, section 1172.6 allows a person convicted of murder under prior law to petition the court to vacate their conviction and be resentenced on any remaining counts. (§ 1172.6, subd. (a).) Effective January 1, 2022, Senate Bill 775 (2020–2021 Reg. Sess.) amended section 1172.6 to, among other things, “[c]larif[y] that 8 persons who were convicted of attempted murder . . . under a theory of felony murder and the natural probable consequences doctrine are permitted the same relief as those persons convicted of murder under the same theories.” (Sen. Bill No. 775, Stats. 2021, ch. 551, § 1(a).) Accordingly, section 1172.6, subdivision (a) provides that “[a] person convicted of … attempted murder under the natural and probable consequences doctrine … may file a petition with the court … to have the petitioner’s … attempted murder … conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply: [¶] (1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of … attempted murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of … attempted murder … following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of … attempted murder. [¶] (3) The petitioner could not presently be convicted of … attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.” Where the petitioner has made the requisite prima facie showing he or she is entitled to relief under section 1172.6, “the court must issue an order to show cause (§ 1172.6, subd. (c)) and hold an evidentiary hearing at which the prosecution bears the burden ‘to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder’ under the law as amended … .” (People v. Wilson (2023) 14 Cal.5th 839, 869.) At this hearing, “the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended … . If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.” (§ 1172.6, subd. (d)(3).) “Ordinarily, a trial court's denial of a section 1172.6 petition is reviewed for substantial evidence.” (People v. Reyes (2023) 14 Cal.5th 981, 988 (Reyes).) Thus, we 9 examine the entire “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.’ ” ’ ” (Ibid.) In conducting our review, we presume in support of the judgment the existence of every fact that can be reasonably deduced from the evidence, whether direct or circumstantial. (People v. Brooks (2017) 3 Cal.5th 1, 57–58.) That the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Thomas (2017) 15 Cal.App.5th 1063, 1071 [defendant on substantial evidence review “bears an ‘enormous burden’ ”].) a. The Reliance on a “Cold” Record Does Not Require This Court to Independently Review the Trial Court’s Order Ramos argues that because the People did not present any live testimony during the evidentiary hearing and relied entirely on a “cold” record of documentary evidence, we should independently review the trial court’s decision without deference to its factual findings. In making this argument, Ramos primarily relies on the California Supreme Court’s decision in People v. Vivar (2021) 11 Cal.5th 510 (Vivar). In Vivar, the high court concluded that for rulings on a section 1473.7 motion to withdraw a plea due to adverse immigration consequences, the appellate court must review the ruling independently. (Vivar, supra, at pp. 526–528) In reaching this decision, the court noted that because such motions are often brought many years after a defendant has entered his or her plea, the judge ruling on the motion “may never have participated in any of the underlying proceedings and must rely entirely on a cold record.” (Id. at pp. 526–527.) Therefore, although the trial court’s factual findings are generally afforded deference, the Vivar court found “no reason to conclude the trial court has the same special purchase on the question at issue” when utilizing a cold record and making factual findings not based on personal observations. (Id. at p. 527.)

10 In opposition, the Attorney General argues that the reasoning in Vivar is inapposite to the instant matter because that decision was specifically limited to section 1473.4 motions, based on their unique context, and therefore inapplicable to the denial of a petition for resentencing under section 1172.6. We agree. In Vivar, the California Supreme Court specifically noted that its decision only addressed the independent standard of review under section 1473.4, and, “nothing we say here disturbs a familiar postulate: when reviewing a ruling under the substantial evidence standard, ‘an appellate court should defer to the factual determinations made by the trial court,’ regardless of ‘whether the trial court’s ruling[s are based] on oral testimony or declarations.’ ” (Vivar, supra, 11 Cal.5th at p. 528, fn. 7.) Moreover, as the Attorney General correctly notes, other appellate courts have uniformly rejected the same argument made here by Ramos that the trial court’s denial of a section 1172.6 resentencing petition based on a “cold” record should be subject to independent review. For example, in People v. Underwood (2024) 99 Cal.App.5th 303, 313–314 (Underwood), the First District Court of Appeal rejected the defendant’s argument, based on Vivar, that the denial of his section 1172.6 resentencing petition should be reviewed independently because the trial court’s findings were based on a record consisting solely of documentary evidence, including transcripts from two prior trials and a prior parole hearing, without any new evidence or testimony. In making its ruling, the court emphasized that unlike a trial court’s decision in section 1473.4, which involved predominantly legal questions, a trial court’s decision in denying a petition section 1172.6 following an evidentiary hearing is “predominantly a question of fact.” (Underwood, supra, at pp. 313–314.) The Underwood court further noted that its decision mirrored those from other appellate courts who had considered and rejected the same argument made by defendants who relied on Vivar in support. (Ibid.) In reviewing Underwood, as well as the jurisprudence from other appellate courts that have rejected the same argument made by Ramos (see, e.g., People v. Njoku (2023)

11 95 Cal.App.5th 27, 34; People v. Werntz (2023) 90 Cal.App.5th 1093, 1110; People v. Sifuentes (2022) 83 Cal.App.5th 217, 232–233), we find these decisions persuasive and agree with their analysis related to this argument. Like those cases, the issue of whether Ramos aided and abetted Puga in the attempted murder of V2 with an intent to kill is predominantly a question of fact that is traditionally reviewed for substantial evidence. (See Reyes, supra, 14 Cal.5th at p. 988.) Accordingly, we find no basis to conclude that the decision here should be independently reviewed due to the trial court’s reliance on the documentary evidence presented at the evidentiary hearing.8 We therefore shall review the trial court’s denial of Ramos’s petition for substantial evidence. 3. Ramos’s Liability as a Direct Aider and Abettor a. Aider and Abettor Liability for Attempted Murder Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a).) Malice “may be expressed or implied.” (§ 188, subd. (a).) “Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.” (§ 188, subd. (a)(1) “Attempted murder,” like express malice murder, “requires the specific intent to kill … .” (People v. Sanchez (2016) 63 Cal.4th 411, 457 (Sanchez).) “ ‘[U]nder direct aiding and abetting principles, an accomplice is guilty of an offense perpetrated by another [e.g., murder] if the accomplice aids the commission of that offense with “knowledge of the direct perpetrator’s unlawful intent and [with] an intent to assist in achieving those unlawful ends.” ’ ” (People v. Curiel (2023) 15 Cal.5th 433, 463 (Curiel).) “ ‘[P]roof of aider and abettor liability requires proof in three distinct 8 Further, the judge who heard Ramos’s evidentiary hearing was, in fact, the same judge who had presided over the preliminary hearing, who specifically stated that she recalled V2’s demeanor and testimony at that hearing and found him to be credible. Accordingly, we find no merit to Ramos’s claim that independent review should apply because the trial court’s decision was based “not on viewing any live witnesses other than [himself.]”

12 areas: (a) the direct perpetrator’s actus reus—a crime committed by the direct perpetrator [e.g., murder or attempted murder], (b) the aider and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime.’ ” (People v. Vargas (2022) 84 Cal.App.5th 943, 953–954; see Curiel, supra, 15 Cal.5th at p. 467; see also People v. Nguyen (2015) 61 Cal.4th 1015, 1054 (Nguyen) [“ ‘[t]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing’ ”].) b. Trial Court’s Findings Regarding Direct Aider and Abettor Liability In finding that Ramos was guilty under current law as a direct aider and abettor of attempted murder, the trial court stated as follows: “Now I’m going to the date of February the 18th of 2015. At the preliminary hearing, the victim testified about seeing the Defendant at a bar out near Williams Road on the 18th of February. He testified about leaving the bar, about coming back, and then ultimately leaving the bar with his friend. [¶] “And that actually was consistent with Mr. Ramos’ testimony today. Again, where that testimony diverged was where the actual shooting occurred. [¶] “Mr. Ramos today told us that he was driving and there was only one person in the back seat and that person he identified today. It’s very odd that there would be only one other person in the car and that person would be in the back seat directly behind the driver would be consistent with knowing that the person who was the passenger was there to do something other than just to get a ride somewhere. [¶] “He—and now I’m going to—the testimony of Victim 2 was that he saw the Defendant driving the car slowly in Victim 2’s direction with the passenger in the back seat. And that the passenger in the back seat shot ten times at Victim 2 and at the other 13 passenger who was in Victim 2’s car. [¶] “Victim 2 described himself as a Sureño dropout and described defendant, Mr. Ramos, as a Sureño. [¶] “Again, I was able to see Victim 2 when he testified. He testified in a fashion that appeared to be believable. [¶] “Mr. Ramos today is—it’s similar to his testimony in the murder case, testifies to pretty much all of the details that Victim 2 testified to until we get to the shooting itself where Mr. Ramos said he knew nothing about what was going on and unbelievably, kind of was unable to discuss what happened or describe what happened after he heard the first gunshot. We know that there were ten gunshots. They saw holes in the car. And I believe it was ten holes in the car. [¶] “And if he really did not know what was going on when he heard the first gunshot, something you would have expected him to react in some form or fashion, but he didn’t. He continued to drive slowly by and allow ten—I’m sorry, nine more shots to go off and hit the car breaking the window, and obviously being pointed at both at Victim 2 as well as the passenger who was in Victim 2’s vehicle. [¶] “I do find this is an aiding and abetting where Victor Hugo Ramos was the driver. He knew what was happening when he got in that car and had the passenger get behind him and when he drove towards where Victim 2 and his passenger were. He knew he aided and abetted the attempt to kill the shooting of Victim 2 and his passenger. He had the same intent as the shooter and that intent was an intent to kill, a specific intent to kill. [¶] “This was not a natural and probable consequences situation. It was one that was planned and was executed pursuant to the plan that was clear by the evidence that was presented to the Court both in the preliminary hearing testimony as well as the documents that have stipulations that have been entered into today. [¶] … 14 “So I’m going to leave the—and I find all of the evidence has been presented to the standard of beyond a reasonable doubt. So I am not going to modify the convictions or the sentences[.]” c. Substantial Evidence Supported The Trial Court’s Finding that Ramos Was Guilty Under Current Law As A Direct Aider and Abettor i. Ramos’s Conduct Assisted in the Achievement of the Attempted Murder The actus reus required for direct aiding and abetting is twofold: it requires both the direct perpetrator’s commission of a crime and conduct by the aider and abettor that assists in the achievement of this crime. (See Curiel, supra, 15 Cal.5th at p. 467.) “To be guilty of a crime as an aider and abettor, a person must ‘aid[] the [direct] perpetrator by acts or encourage[] him [or her] by words or gestures.’ ” (People v. Lee (2003) 31 Cal.4th 613, 623.) “ ‘Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.’ ” (Nguyen, supra, 61 Cal.4th at p. 1054.) With that said, mere presence at the scene is not sufficient; liability for aiding and abetting “ ‘ “require[s] some affirmative action” ’ that assists or encourages the commission of the crime.” (In Re K.M. (2022) 75 Cal.App.5th 323, 329.) In arguing that he lacked the requisite actus reus for aider and abettor liability, Ramos contends that there was no evidence presented that his physical actions aided and abetted Puga in committing the crime of attempted murder. Ramos argues that apart from him driving his vehicle past the victim’s vehicle, no evidence was presented indicating that he changed speeds or took any other action “so as to facilitate the shooting.” Ramos further claims that the trial court adopted the People’s incorrect characterization that he had deliberately slowed the vehicle on approach, even though the only evidence presented regarding Ramos’s speed was V2’s testimony that the vehicle was “going slow.”

15 In reviewing the evidence in the light most favorable to the judgment, and the trial court’s basis for its findings, we find there was substantial evidence for the court to conclude that Ramos’s actions served to aid and encourage Puga’s commission of attempted murder. In addition to V2’s testimony that Ramos was driving slowly, V2 also stated that: (1) Ramos’s headlights were off, even though it was night; (2) Puga began shooting out of the left rear passenger window only after the driver’s side of Ramos’s vehicle was facing V2’s vehicle; (3) there was only one car length’s distance between Ramos’s vehicle and the passenger side of V2’s vehicle; and (4) a total of 10 shots were fired at V2’s vehicle from the trunk all the way to the front rim before Ramos drove away. The trial court also indicated in its findings that it found V2’s prior testimony to be credible, based on the judge having observed him at the preliminary hearing. The judge reasonably concluded that Ramos’s actions of driving slowly enough to allow 10 shots to be fired at V2’s vehicle and shatter the passenger window, did not reflect the reaction of someone who was completely unaware of what was happening until the first shot was fired. Consequently, there was substantial evidence to support the trial court’s finding that Ramos’s combined actions of driving towards V2 slowly with his headlights off, approaching with the driver’s side (the same side that Puga was also seated) facing V2’s vehicle, continuing to drive by close enough for 10 shots to be fired and directly hit the vehicle, and then driving away, aided Puga in the commission of attempted murder. ii. The Totality of the Evidence Demonstrated that Ramos Possessed the Intent to Kill To demonstrate the requisite mens rea for direct aider and abettor liability for attempted murder, the defendant must have acted with the “knowledge of the direct perpetrator’s intent to kill and with the purpose of facilitating the direct perpetrator’s accomplishment of the intended killing—which means that the person guilty of attempted 16 murder as an aider and abettor must intend to kill.’ ” (Nguyen, supra, 61 Cal.4th at p. 1054.) Ramos argues that based on the “paucity of evidence” regarding his state of mind at the time of the killing, the trial court improperly relied solely on Ramos’s alleged gang affiliation, and V2’s status as a “dropout,” to determine that he possessed the required intent to kill. Ramos further argues that there was insufficient circumstantial evidence to demonstrate an intent to kill, particularly given that Ramos’s prior interaction with V2 before the shooting was friendly and there was no evidence presented to reflect Ramos was aware Puga had a gun and planned to shoot out the window. Finally, Ramos claims that the trial court’s reasoning was based on “speculative inferences,” namely, that Ramos was not being truthful about his state of mind at the time of the shooting, and Ramos continued to drive slowly after the first shot was fired despite there being no evidence of this being true. In this case, the Attorney General acknowledges that there was no direct evidence of Ramos’s intent to kill. However, the Attorney General argues that there was substantial circumstantial evidence to support the trial court’s finding that Ramos had the intent to kill. For example, the Attorney General cites the trial court’s comments regarding the odd seating arrangement of Puga sitting behind Ramos when they were allegedly the only two occupants of the vehicle, which could reasonably be viewed as a deliberate plan to allow Puga to shoot. The Attorney General further contends that even if Ramos had been unaware of Puga’s plan to shoot at V2 and V3 until the first shot was fired, the trial court reasonably concluded that Ramos’s subsequent actions of driving the car slowly and closely enough for an additional nine shots to be fired, reflected that he quickly formed the requisite intent to kill and took action to assist Puga in doing so. Lastly, the Attorney General notes that there was evidence presented of potential motives, including V2’s involvement with Puga’s former girlfriend, as well as V2’s and V3’s 17 status as Sureño dropouts while Puga and Ramos remained actively associated with the gang. In reviewing whether there was substantial evidence to support a trial court’s denial of a section 1172.6 petition, “ ‘ “ ‘[w]e resolve neither credibility issues nor evidentiary conflicts … .’ [Citation.]” [Citation.]’ [Citation.]” (People v. Schell (2022) 84 Cal.App.5th 437, 442 (Schell).) Accordingly, it was the role of the factfinder—here, the trial court—to assess the credibility of Ramos’s testimony and resolve any conflicts between Ramos’s testimony and V2’s statements. Therefore, the court was not obligated to accept Ramos’s testimony that he was simply giving Puga a ride and was unaware of what was happening until the shooting began (particularly when, as the court stated, he claimed a similar unawareness regarding the circumstances of the murder in case No. SS150446A), and such a determination regarding Ramos’s credibility shall not be disturbed on appeal. (See Schell, supra, at p. 442.) Further, in reviewing the evidence in the light most favorable to the judgment, we find that there was substantial circumstantial evidence to demonstrate Ramos knew about Puga’s intent to kill V2 and shared the same intent. As the trial court noted in its findings, the seating arrangement of Puga being seated behind Ramos, as opposed to sitting next to him, was unusual, and therefore could be reasonably viewed as indicative of Ramos’s knowledge that Puga was in the car to do something apart from simply getting a ride. Similarly, as described above, even after the first shot was fired, Ramos continued to drive the car so that Puga could fire nine more shots that all hit the vehicle. Based on such actions, there was substantial evidence for the court to reasonably infer that Ramos: (1) was aware of Puga’s intent to target V2 prior to the shooting; and (2) by driving in a manner that allowed Puga not only to fire nine more shots, but fired them close enough to shatter the passenger window and pop the front tire, Ramos shared the same intent. (See Sanchez, supra, 63 Cal.4th 411, 457 [direct evidence of intent rarely exists but may be inferred from circumstances of the crime and the defendant’s acts]; see 18 also People v. Vang (2001) 87 Cal.App.4th 554, 564 [number and placement of shots by use of a high-powered weapon creates reasonable inference of an intent to kill].) In conclusion, we find that there was substantial evidence to support the court’s holding that Ramos was guilty of attempted murder under current law as a direct aider and abettor. B. Admission of Gang Expert Testimony Ramos next argues that the trial court improperly allowed the People to introduce gang expert testimony from the preliminary hearing. Ramos claims that because his gang allegation was not at issue at the hearing, admission of the testimony was legally inadmissible under current law and did not prove any fact at issue in the proceedings. Ramos further argues that the evidence was more prejudicial than probative because it did not serve to demonstrate Ramos’s motive or intent and was “highly inflammatory.” 1. Relevant Procedural Background Prior to the evidentiary hearing, defense counsel filed a motion requesting that all gang evidence and testimony be excluded. Counsel argued that such evidence was not relevant to demonstrate whether Ramos had acted with malice or possessed the requisite intent and was more prejudicial than probative. Counsel further noted that Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 699) (Assembly Bill 333), had modified the elements required to prove active participation in a criminal street gang. At the outset of the hearing, the People stated that while some portions of the gang testimony from the preliminary hearing transcripts could be hearsay or possibly barred by Sanchez, supra, 63 Cal.4th 6659, the gang evidence should be admissible for context as to Ramos’s motive and intent. Defense counsel submitted on his briefing, and the trial court 9 This case provides, in relevant part, that case-specific testimony by a gang expert as to the defendant’s police contacts of which he had no personal knowledge but presented as true statements of fact was inadmissible hearsay. (Sanchez, supra, 63 Cal.4th at p. 670.)

19 ruled that while it would exclude any testimony that would not be admissible pursuant to the Evidence Code or Sanchez, “I don’t think I can ignore the gang background in these cases. [¶] Both victims—I shouldn’t say ‘both victims.’ The victim in the attempted murder matter and Jane Doe in the murder case, both themselves testified about gang background and kind of the—their own involvement in gangs, as well as the involvement of others who were around during this time period in 2015, as well as Mr. Ramos’s involvement during that time period. [¶] And I think that that is certainly foundational in understanding kind of what was going on in both of these cases, and I think context is a good word to use under these circumstances. The witnesses themselves provide those contexts, and then the officers provide another layer to put that in perspective. [¶] So, as I say, I do intend to follow the law and—in pulling apart and using the appropriate portions of the officer’s testimony.” The People subsequently submitted the preliminary hearing transcript into evidence, which included testimony from Salinas Police Department Officer Derek Gibson. Gibson testified that Sureños in Monterey County had a number of common signs, symbols, colors, and names they associated with, including the number 13, the color blue, and the acronyms MPT (for the Mexican Pride Locos subset) and LPT (for the La Pasada Trese subset). Gibson noted that there were a number of particular neighborhoods in Salinas that Sureño members identified themselves by, including Hebron. Gibson confirmed that in February 2015, the Sureños in Monterey County were an ongoing organization, with their primary activities including homicides and attempted homicides, among other offenses. Gibson had also conducted an investigation into Ramos and Puga, and their criminal activities, and believed, based on his investigation, that both Ramos and Puga were active participants in the Sureño gang as of February 18, 2015. Gibson also testified that once members were accepted into the gang, they were expected to “put in work” by committing crimes on behalf of the gang. Gibson noted that 20 if someone dropped out of the gang, news of the dropout would typically circulate amongst friends and family members of incarcerated gang members, and eventually reach members who were out on the streets. Gibson indicated that apart from rival gang members, dropouts were common targets of gang violence, particularly from 2013 onwards; this was rumored to be attributable to the Mexican Mafia being dissatisfied with how the Salinas Sureños were functioning. Gibson also noted that in committing a violent crime against a dropout, such as a drive-by shooting, the perpetrator may want another gang member to accompany him to be the driver and witness the crime, which would bolster the perpetrator’s reputation in the gang. Gibson was then given a hypothetical scenario, which mirrored the facts of the offense in the underlying case, and concluded that such a crime could have been committed for the benefit of or at the direction of the Sureño street gang, based on orders that Salinas Sureño members had been given to injure and kill dropout members. At the conclusion of the evidentiary hearing, the trial court briefly mentioned the gang testimony in its findings by noting that V2 had described himself as a Sureño dropout and described Ramos as a Sureño. 2. Applicable Law and Standard of Review Section 1172.6, subdivision (d)(3) provides that at an evidentiary hearing, “[t]he admission of evidence in the hearing shall be governed by the Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed.” “T]he People are generally entitled to introduce evidence of a defendant’s gang affiliation and activity if it is relevant to the charged offense. [Citation.] ‘Evidence of the defendant’s gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or 21 fear, or other issues pertinent to guilt of the charged crime.’ ” (People v. Chhoun (2021) 11 Cal.5th 1, 31.) Notwithstanding the passage of Assembly Bill 333 and the changes in the required elements to prove active participation in a gang, evidence of a gang affiliation remains admissible for this limited purpose. (People v. Garcia (2024) 107 Cal.App.5th 1040, 1049–1050 (Garcia).) “If gang ‘evidence is found to be relevant, the trial court must carefully scrutinize [such] evidence before admitting it because of its potentially inflammatory impact on the jury.’ [Citation.] Under Evidence Code section 352, the trial court may, in its discretion, exclude gang evidence if its probative value is substantially outweighed by the probability that its admission will create substantial danger of undue prejudice. The decision on whether gang evidence is relevant and not unduly prejudicial rests within the broad discretion of the trial court. [Citation.] We will not disturb a trial court’s exercise of discretion ‘ “ ‘except on a showing that the [trial] court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ’ The appellant bears the burden to demonstrate abuse of discretion and prejudice.” (Garcia, supra, 107 Cal.App.5th at p. 1050.) “Erroneous admission of gang-related evidence, particularly regarding criminal activities, has frequently been found to be reversible error, because of its inflammatory nature and tendency to imply criminal disposition, or actual culpability.” (People v. Bojorquez (2002) 104 Cal.App.4th 335, 345.) We apply the Watson10 test to determine whether the erroneous admission of gang evidence was prejudicial. (See People v. Tran (2022) 13 Cal.5th 1169, 1208–1209 (Tran).) Under this test, the defendant must demonstrate a reasonable likelihood that the exclusion of the evidence would have 10 People v. Watson (1956) 46 Cal.2d 818, 836 22 resulted in a more favorable outcome. (Id. at p. 1209.) 3. The Trial Court Did Not Abuse Its Discretion in Admitting the Gang Testimony For the Limited Purposes of Demonstrating Motive Ramos argues that Gibson’s testimony did not establish that he was a member of the Sureño gang in the manner now required by Assembly Bill 333, thus making it “insufficient and, by itself arguably inadmissible.” However, as noted above, case law has established that Assembly Bill 333 did not alter or otherwise prevent the introduction of evidence of a defendant’s gang affiliation to prove motive, intent, or other issues pertinent to the charged crime. (See Garcia, supra, 107 Cal.App.5th at pp. 1049–1050.) Accordingly, we do not conclude that the testimony was inadmissible simply because it may have no longer been sufficient to prove Ramos’s active membership in the gang as required under section 186.22. Moreover, in reviewing the preliminary hearing transcript, as well as the trial court’s ruling limiting the admission of the gang testimony to provide context for the crimes committed, we find no merit to Ramos’s contention that the gang testimony was irrelevant and therefore inadmissible as substantially more prejudicial than probative under Evidence Code section 352. V2’s testimony at the preliminary hearing indicated that he was a Sureño dropout and Ramos was a Sureño member, while Ramos testified at the evidentiary hearing that he was associated with the Sureño gang at the time of the shooting. Accordingly, Gibson’s testimony regarding the increase in attacks on Sureño dropouts around the time of the offense, as well as his opinion that the hypothetical situation posed could have been gang-motivated, was probative and relevant as to whether Ramos and Puga had a motive for shooting V2. (See Sanchez, supra, 63 Cal.4th at p. 685 [noting that gang experts “can rely on information within their personal knowledge, and they can give an opinion based on a hypothetical including case-specific facts that are properly proven”].) In addition, given that both Ramos and V2 described their initial meeting at the bar immediately prior to the shooting as uneventful and 23 cordial, the gang evidence regarding Ramos’s and V2’s current status with the gang was probative and relevant as to Ramos’s and Puga’s motive to attack V2 shortly thereafter. Further, apart from generally stating that gang loyalties and cultural orientation was “particular prejudicial,” Ramos fails to identify any specific portion of the gang evidence introduced at the hearing that was so unduly prejudicial as to outweigh its probative value. (See Garcia, supra, 107 Cal.App.5th at p. 1050.) Lastly, even if we were to assume, without deciding, that the admission of the testimony was erroneous, Ramos fails to demonstrate a reasonable likelihood that he would have achieved a better result if the evidence had been excluded.11 Indeed, while the trial court mentioned V2’s and Ramos’s gang affiliations in making its findings, we find no basis from this finding to conclude that the introduction of the gang evidence played a crucial role in the trial court’s decision that Ramos was guilty as a direct aider and abettor under current law. Accordingly, we conclude that Ramos has failed to demonstrate the trial court abused its discretion in the admission of the gang expert testimony. C. Consideration of Ramos’s Youth Ramos finally claims that the trial court failed to properly consider the evidence he presented at the hearing regarding his youth and immaturity, based on him being 22 years old at the time of the offense. Ramos argues that his actions reflected the “hallmark features” of youth, including impetuousness, immaturity, and failure to appreciate risks, such that the trial court should have considered such evidence in determining whether he could appreciate the consequences of his actions and form the requisite intent to kill. During the evidentiary hearing, defense counsel presented expert testimony from Dr. Carolyn Murphy, a licensed psychiatrist, regarding brain development in adolescents 11 Ramos claims that the federal constitutional error standard set forth in Chapman v. California (1967) 386 U.S. 18 should apply, an argument that the California Supreme Court explicitly rejected in Tran, supra, 13 Cal.5th at pp. 1208–1209.

24 and young adults. Dr. Murphy testified that because the prefrontal cortex is still developing until an individual’s mid to late twenties, adolescents and young adults are less mature and have less developed impulse control, decision making, judgment, and ability to exercise foresight. They are also more susceptible to peer pressure and more influenced by incentives and immediate rewards, as opposed to understanding or anticipating consequences of their actions over time. Dr. Murphy acknowledged that she had not met Ramos personally or evaluated him, and also testified on cross-examination that a 22-year-old would be able to form the intent to kill and understand that shooting someone with a gun might kill them. At the conclusion of the hearing, the trial court briefly indicated in its findings that it did not find Dr. Murphy’s testimony impacted Ramos’s ability to form the specific intent required for aider and abettor liability. Recent appellate authorities that have discussed the relevance of a defendant's youth in section 1172.6 proceedings have only done so with respect to whether the defendant acted with (1) reckless indifference to human life, or (2) implied malice (i.e., acting with a conscious disregard for human life and knowledge that the conduct endangers the life of another). (See People v. Pittman (2023) 96 Cal.App.5th 400 (Pittman); see also People v. Jimenez (2024) 103 Cal.App.5th 994 (Jimenez).) The Pittman and Jimenez decisions concluded that a trial court should consider a defendant’s youthfulness in determining whether the defendant harbored one of the aforementioned mental states because, “youth is relevant to a criminal defendant’s ability to perceive [the] risk[s] and consequences” of his or her conduct. (Pittman, supra, at p. 417; see Jimenez, supra, at pp. 1003–1004.) However, in the instant case, the specific intent required for direct aiding and abettor liability is an intent to kill, or express malice. Ramos cites no legal authority requiring a court to consider youth when determining whether a defendant acted with express malice. Further, given that a defendant who acts with express malice intends that his or her conduct result in death, or, in the case of an aider and abettor, intends that the 25 primary perpetrator’s conduct results in death, we cannot conclude that a finding of express malice somehow implicate concerns about a youthful defendant's perception of risk. (See People v. Diaz (2026) 118 Cal.App.5th 545, 560 [“express malice does not implicate to the same degree the concerns that arise when evaluating whether a youthful defendant’s perception of risks supports a finding of reckless indifference or implied malice”].) Accordingly, Ramos’s youth was less directly relevant to whether he actually formed a specific mental state that required no appreciation of its consequences. Further, even assuming that consideration of Ramos’s youth was required in evaluating his specific intent to kill, Ramos’s testimony indicating that he did not fully appreciate the consequences of giving Puga a ride, or following the directions that Puga gave him, is not dispositive. In its findings, the trial court determined that such testimony was not credible, based on the unusual seating arrangement and Ramos’s lack of reaction after the first shot that would suggest he was unaware of what was happening, particularly when he continued to drive slowly and closely enough for Puga to fire nine more shots that all hit V2’s vehicle. As noted above, such credibility findings were solely for the trial court to make, and we shall not disturb them on appeal. (See Schell, supra, 84 Cal.App.5th at p. 442.) Therefore, we find no merit to Ramos’s claim of error. III. DISPOSITION The order denying Ramos’s Penal Code section 1172.6 petition is affirmed.

26 ___________________________________ Wilson, J.

WE CONCUR:

__________________________________________ Lie, Acting P. J.

_________________________________________ Chung, J.* People v. Ramos H052921 * Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6 of the California Constitution.