People v. Ramirez CA2/8

Opinion

Filed 9/22/26 P. v. Ramirez CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION EIGHT

THE PEOPLE, B343001

Plaintiff and Respondent, Los Angeles County Super. Ct. No. KA129559 v.

JOSE RAMIREZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Juan C. Dominguez, Judge. Affirmed in part and modified in part. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________ Jose Ramirez shot and killed Eduardo Ruiz. The People charged Ramirez with first degree premeditated, willful, and deliberate murder, possession of a firearm by a felon, and unlawful possession of ammunition. A jury found Ramirez guilty as charged, rejecting his theory that he killed in imperfect self- defense. We affirm the judgment, rejecting Ramirez’s arguments that: (1) insufficient evidence supports the jury’s finding that he killed with premeditation and deliberation; and (2) the jury was misled regarding the imperfect self-defense instructions. We agree with the parties, however, that Ramirez’s sentence for his conviction for unlawful possession of ammunition should be stayed because it arises from the same, indivisible act underlying his conviction for possession of a firearm by a felon. We, therefore, modify the judgment accordingly. I. The shooting occurred after a romantic breakup involving Ramirez’s distant cousin, Destiny Zendejas, and Edmundo Ruiz, who was, in Ramirez’s own words, “like family” to him. (Because Edmundo and the victim, Eduardo, share the same surname, we refer to each by his first name.) Zendejas broke up with Edmundo in September 2021. The breakup was not amicable. According to Zendejas, several of her family members, including Ramirez, were unhappy with the breakup. They had taken Edmundo’s side and stopped talking to her. At trial, Ramirez testified Zendejas and Edmundo “had just barely broke up” when she started dating Eduardo. Zendejas and Edmundo have one child, Mason. Mason was three years old at the time of the shooting. Back then, Edmundo had custody of Mason, and Zendejas had visitation. After her 2 visits, Zendejas customarily dropped Mason off where Edmundo lived, or at another location at Edmundo’s request. At around 10:00 or 10:30 p.m. on February 9, 2022, Eduardo drove Zendejas and Mason so Zendejas could return Mason to Edmundo. Upon their arrival at Edmundo’s residence, Zendejas called Edmundo. Edmundo told her he was at an address on Gilman Street about a one-minute drive away. Eduardo then drove Zendejas and Mason to that address. Zendejas had not dropped Mason off to Edmundo at the Gilman Street location before. This is where the shooting occurred. Much of the evidence of the shooting derives from surveillance videos the People obtained and the court admitted into evidence at trial. When Eduardo, Zendejas, and Mason arrived at the new address, Edmundo was standing in the middle of the street. A woman named Mary Martinez was standing nearby, next to a red car parked along the sidewalk. Ramirez was sitting in the driver’s seat of a white car parked in the driveway directly behind the red car. Eduardo stopped his vehicle in the middle of the street, right by where Edmundo was standing. Zendejas got out of Eduardo’s car, helped Mason out, and told him to go with Edmundo. At the same time Zendejas alighted from her car, Ramirez got out of his. Ramirez held a firearm in his right hand, which he promptly tucked into his jacket pocket. He then walked around the back of the red car and approached the passenger side of Eduardo’s car. The parties presented conflicting evidence of what happened next. Per the People’s evidence, Ramirez stated: “ ‘You 3 got a problem, fool?’ ” He then stepped back and leaned against the red car. In response, Eduardo got out of his car, walked around behind it, and, while calmly approaching Ramirez, stated: “[N]o . . . , I’m just trying to make sure everything’s all right with my girl, and I just wanted to tell my little man bye.” At that point, Ramirez drew his gun and shot Eduardo from a few feet away. Ramirez offered a different account. He testified that, upon Zendejas’s arrival with Mason, he got out of his car, approached her vehicle, and peered inside because he “wanted to be nosey” and find out who was in the car with her. He did not say anything to Eduardo, whom he had never seen or met before. A few seconds later, Ramirez testified, Eduardo got out of the car and, while looking and pointing at Ramirez, stated: “ ‘What the fuck are you looking at?’ ‘Do you want any problems?’ ” Ramirez’s mind started racing. He was confused why Eduardo was speaking to him in this way. Ramirez “got scared” as Eduardo started to approach him. According to Ramirez, Eduardo was “yelling at [him]” and reached behind his back with his right hand, causing Ramirez to believe Eduardo “had a gun or something.” In response, Ramirez fired his weapon “to get [Eduardo] away.” Ramirez testified that when he did so, he felt threatened, was scared for his life, and did not want to kill Eduardo. The surveillance videos show that Eduardo, upon getting shot, fell to the ground, screaming. Twenty seconds later, he and Zendejas got back into their car, and Eduardo drove away. All the while, Ramirez loitered in the area between the red and white cars. Thereafter, Ramirez, Edmundo, Martinez, and Mason remained at the scene for another minute. The adults 4 chatted amongst themselves, behaving as though nothing remarkable had happened. Martinez then observed she had locked her keys inside the red car. At that point, all of them got into Ramirez’s car, and Ramirez drove away. Ramirez testified that, after the incident, he dropped Edmundo, Martinez, and Mason off down the street. He then drove around and, at some point, broke up his gun with a hammer. Around midday the next day, Ramirez went to his mother’s home, driving a black BMW. Police arrested him upon his arrival. They searched his car and found a black “cloth baggie” containing 10 rounds of 9-millimeter live ammunition. Those rounds had the same head-stamp as a live round and a cartridge casing that the police had found at the Gilman Street address the night before, shortly after the shooting occurred. On February 12, 2022, a few days after his arrest, Ramirez called his girlfriend from jail. Ramirez’s girlfriend told him Edmundo had been charged with child endangerment. Ramirez responded: “That’s it?” His girlfriend then stated: “Yep. You’re the one, you’re the one that’s being the fall guy.” Ramirez noted Edmundo had told Ramirez “he got this already,” and that “if it got worse for [Ramirez] . . . [Edmundo] was gonna take the heat.” Later on in the conversation, when told again that Edmundo had been charged with child endangerment, Ramirez stated: “Only that? Only that? . . . [¶] . . . That’s crazy. That’s fucking crazy, huh. . . . [¶] That means he said something then.” A little over a month later, Eduardo died from complications arising from the gunshot wound to his abdomen. The People charged Ramirez with first degree premeditated, willful, and deliberate murder (Pen. Code, § 187, 5 subd. (a); count five); possession of firearm by a felon (§ 29800, subd. (a)(1); count two); and unlawful possession of ammunition (§ 30305, subd. (a)(1); count three). The People also alleged Ramirez personally used a firearm to commit the murder (§ 12022.5, subd. (a)) and had suffered a prior strike conviction (§§ 667, subd. (d), 1170.12, subd. (b)). At trial, Ramirez admitted to shooting Eduardo but asked the jury to acquit him of murder and convict him of manslaughter, arguing the evidence showed he killed in imperfect self-defense. The jury found him guilty as charged and found true the firearm-use allegation attached to count five. Subsequently, Ramirez admitted the strike. The trial court imposed a sentence of 67 years and 4 months to life in state prison, consisting of a term of 25 years to life for the murder conviction, doubled to 50 years pursuant to the Three Strikes law, plus an additional 10 years for the firearm enhancement; a consecutive term of 3 years for the firearm possession conviction, doubled to 6 years pursuant the Three Strikes law; and a consecutive term of 8 months for the ammunition possession conviction, doubled to 16 months pursuant to the Three Strikes law. Ramirez timely appealed. II. A. There was substantial evidence that Ramirez killed Eduardo with premeditation and deliberation. “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).) A “willful, deliberate, and premeditated killing” constitutes first degree murder. (§ 189, subd. (a).) “ ‘ “ ‘In this context, 6 “premeditated” means “considered beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.” ’ ” [Citation.] “ ‘An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.’ ” [Citations.] “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .” ’ ” (People v. Morales (2020) 10 Cal.5th 76, 88 (Morales).) In People v. Anderson (1968) 70 Cal.2d 15, our Supreme Court “identified ‘three basic categories’ of evidence [it] has generally found sufficient to sustain a finding of premeditation and deliberation: (1) planning activity, or ‘facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing’; (2) motive, or ‘facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a “motive” to kill the victim’; and (3) manner of killing, or ‘facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a “preconceived design” to take his victim’s life in a particular way for a “reason” . . . .’ ” (Morales, supra, 10 Cal.5th at pp. 88–89, quoting Anderson, at pp. 26–27.) The Supreme Court has since “ ‘ “emphasized that [Anderson’s] guidelines are descriptive and neither normative nor exhaustive, and that reviewing courts need not accord them any particular weight.” ’ [Citation.] Anderson 7 provides ‘a framework to aid in appellate review,’ but it does not ‘define the elements of first degree murder or alter the substantive law of murder in any way.’ ” (Morales, at p. 89.) “ ‘When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.] Our review must ‘ “presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” ’ [Citation.] Even where . . . the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might ‘ “ ‘be reasonably reconciled with the defendant’s innocence.’ ” ’ [Citations.] The relevant inquiry is whether, in light of all the evidence, a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” (People v. Gomez (2018) 6 Cal.5th 243, 278.) Ramirez contends his murder conviction must be reversed because the record lacks sufficient evidence “to provide proof beyond a reasonable doubt that the homicide was the result of [his] preexisting thought and reflection.” In support, Ramirez emphasizes his testimony that he killed spontaneously, out of fear for his life, rather than pursuant to a pre-formed plan, minimizes the evidence relating to his alleged motive for killing Eduardo, and implores us to draw, from the evidence on the nature of the killing, inferences favorable to his position. This line of argument does not engage with the applicable standard of appellate review. “[T]he relevant question on appeal 8 is not whether we are convinced beyond a reasonable doubt, but whether” the record contains adequate evidence from which “any rational trier of fact could have been persuaded beyond a reasonable doubt that [Ramirez] premeditated the murder.” (People v. Perez (1992) 2 Cal.4th 1117, 1127 (Perez).) Viewing the record in the light most favorable to the judgment, and drawing all inferences in support thereof, we conclude the answer to this question is “yes.” As to Ramirez’s motive, Zendejas testified at trial that she was not on speaking terms with her family, who took Edmundo’s side after Zendejas broke up with him. During an interview with the police, Zendejas noted Ramirez was one of the relatives who was “really upset about” the breakup. Ramirez also shared a close relationship with Edmundo, stating during his police interview they were “like family,” such that Mason “calls [him] uncle.” And at trial, Ramirez testified Zendejas was “never at home” because she was “always with” her new boyfriend, even though she and Edmundo “had just barely broke up.” Based on this evidence, a rational juror could reasonably infer Ramirez’s motive was to avenge the disrespect or emotional harm Edmundo suffered when Zendejas broke up with Edmundo and started dating Eduardo soon thereafter. With respect to planning, Ramirez testified he accompanied Edmundo in picking up Mason from Zendejas simply because he had “nowhere else to go” that evening. Ramirez did not testify, and the record does not otherwise suggest, he joined Edmundo out of concern for Edmundo’s safety based, for example, on prior conflicts occurring during custody exchanges with Zendejas. Nonetheless, Ramirez brought a loaded semi-automatic pistol with him to the Gilman Street address. Also, Ramirez’s 9 statements during his jailhouse call suggest he and Edmundo planned the shooting. On this point, Ramirez noted Edmundo previously agreed to “take the heat” for him. Ramirez expressed frustration and surprise upon learning Edmundo had apparently reneged on that promise, as Edmundo had only been charged with child endangerment and Ramirez was being treated as “the fall guy.” Ramirez mused Edmundo “said something” to receive such a lenient charge. Additionally, the video footage admitted into evidence at trial showed Ramirez armed himself with the pistol upon getting out of his car, placing the weapon into his jacket pocket while keeping his hand inside as he approached Eduardo. The evidence also suggests that after exiting his vehicle, but before interacting with Eduardo, Ramirez pulled back the slide of his pistol to prepare it for firing. The People’s firearm expert testified that, after placing a loaded magazine into a semi-automatic pistol, the shooter must pull back the slide and release it forward, causing the slide to pick up the first round and place it into the gun’s chamber for firing. But if the shooter pulls the slide back when a live round is already in the chamber, “[t]he live round will be drawn out, and it will be ejected out of the gun.” At trial, Ramirez noted “it’s possible” that he pulled the slide back before approaching Eduardo. Consistent with this evidence, police discovered a live round at the scene of the shooting. Accordingly, the evidence relating to Ramirez’s actions leading up to the killing “ ‘supports the inference that he planned a violent encounter.’ ” (People v. Elliot (2005) 37 Cal.4th 453, 471; see People v. Romero (2008) 44 Cal.4th 386, 401 [jury could infer defendant planned the killing because he brought a gun to 10 the shooting location]; see also People v. Salazar (2016) 63 Cal.4th 214, 245 [same].) Finally, with respect to the manner of the killing, Zendejas’s statements to the police and the People’s video footage reflect that, armed with a loaded pistol in his pocket, Ramirez baited Eduardo into getting out of his car by stating: “ ‘You got a problem, fool?’ ” Per the same evidence, Eduardo then tried to de-escalate the situation, walking calmly toward Ramirez while stating: “[N]o . . . I’m just trying to make sure everything’s all right with my girl, and I just want to tell my little man bye.” Without further warning, or any other aggression by Eduardo, Ramirez drew his gun and shot Eduardo in the stomach from a few feet away. This manner of killing — an unprovoked gunshot to the abdomen, “a vital area of the body[,] at close range” — demonstrates premeditation and deliberation. (People v. Koontz (2002) 27 Cal.4th 1041, 1055, 1082 (Koontz)]; see People v. Marks (2003) 31 Cal.4th 197, 230 [a close-range shooting without provocation or evidence of a struggle reflects premeditation and deliberation]; see also People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295 [same].) Ramirez’s calm and collected behavior after the shooting is additional evidence the killing was premeditated and deliberate. (See Perez, supra, 2 Cal.4th at p. 1128 [noting jury could consider the defendant’s conduct after fatally stabbing the victim, in relation to the manner of the killing, to infer premeditation and deliberation]; see also People v. Disa (2016) 1 Cal.App.5th 654, 667 [“a reasonable jury could take into account defendant’s calm behavior after the killing” to find premeditation and deliberation]; cf. Koontz, supra, 27 Cal.4th at p. 1082 [defendant’s efforts to prevent a witness from calling an ambulance after the 11 shooting took place demonstrated premeditation and deliberation].) The video footage shows Ramirez did not immediately flee the scene or exhibit any distress after shooting Eduardo. While Eduardo was lying on the ground, screaming, Ramirez casually paced nearby with his hands in his pockets. After Eduardo and Zendejas drove away, Ramirez loitered at the scene for another minute, chatting with Edmundo and Martinez and behaving as though nothing out of the ordinary had happened, until he drove away. In sum, substantial evidence shows Ramirez killed with premeditation and deliberation. We, therefore, “must affirm” his murder conviction as supported by adequate evidence, “even if there is also substantial evidence to support a contrary conclusion and the jury might have reached a different result if it had believed other evidence.” (People v. Riley (2015) 240 Cal.App.4th 1152, 1165–1166.) B. The trial court’s instructions did not mislead the jury into ignoring the imperfect self-defense instruction and the principles of People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry). “[A] criminal defendant is entitled to the benefit of a jury’s reasonable doubt with respect to all crimes with lesser degrees or related or included offenses.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1262.) Consequently, “when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense.” (Dewberry, supra, 51 Cal.2d at p. 555.)

12 The trial court instructed the jury on the elements of first and second degree murder with CALCRIM Nos. 520 and 521. It then instructed the jury on voluntary manslaughter based on imperfect self-defense, a lesser-included offense of murder, with CALCRIM No. 571. As relevant here, the imperfect self-defense instruction stated: “A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because he acted in imperfect self-defense.” It further stated: “The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder.” Ramirez acknowledges that, in so doing, this instruction “satisf[ied] the Dewberry requirement.” According to Ramirez, error arose from remarks the trial court made the day after giving the above instructions. The court informed the jury it would receive verdict forms and instructions about those forms, but the court first wanted to provide additional explanation about the multiple forms pertaining to count five, the homicide count, because they “may be a little bit confusing.” The trial court stated: “As to count [five], there are three possible verdicts. We have first degree murder, second degree murder, [and] voluntary . . . manslaughter.” It continued: “So you folks must decide whether the defendant is guilty or not guilty of first degree murder, guilty or not guilty of second degree murder, [and] guilty or not guilty of voluntary manslaughter. You must decide these in order. Okay? So, in order for you to go to second degree murder, you must find the defendant not guilty of first degree murder. If you find the defendant not guilty of 13 first degree murder, then you move on to second degree murder and you determine whether or not the defendant is guilty of second degree murder. If . . . all of you find that the defendant is not guilty of second degree murder, then you move on to voluntary manslaughter and make a determination whether or not he is guilty of voluntary manslaughter. He cannot be guilty of more than one of these offenses, for the same act. Okay? That make sense? [¶] So start off – you can approach this in any way you want, but the bottom line is you have to decide first degree, second degree, third degree. If you find the defendant is guilty of first degree, you stop. If you find not guilty of first degree but guilty of second degree, you stop. If you find the defendant not guilty of second degree murder, then you go on to voluntary manslaughter and then you make your determination.” Ramirez asserts the trial court’s comments misled the jury into believing it had to consider whether he was guilty of voluntary manslaughter only after acquitting him of first and second degree murder. Because the jury found him guilty of first degree murder, the argument goes, it could ignore the imperfect self-defense instruction containing the Dewberry principle Ramirez asserts was critical for the jury to consider. We review Ramirez’s instructional error claim de novo. (People v. Mitchell (2019) 7 Cal.5th 561, 579.) We “consider whether there is a reasonable likelihood that the trial court’s instructions caused the jury to misapply the law in violation of the Constitution.” (Ibid.) We view “the challenged instruction . . . ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible 14 manner.’ ” (Ibid.) Applying this standard, we discern no instructional error requiring reversal. Ramirez does not sufficiently account for the context in which the trial court made its verdict-form comments. The court explained, at the outset, that those remarks sought to clarify its forthcoming instruction governing the verdict forms the jury would have to fill out based on their findings on “whether [Ramirez] is guilty or not guilty of first degree murder, guilty or not guilty of second degree murder, guilty or not guilty of voluntary manslaughter.” Then, immediately after making the allegedly offending comments, the court gave CALCRIM No. 640, which the parties do not dispute correctly instructed the jury that (1) it could consider the homicide charges in any order but (2) the court could only accept verdicts for the lesser charges if the jury had first found Ramirez not guilty of the greater charges. The trial court’s prefatory comments “spoke much of returning verdicts and findings,” and a reasonable juror would have likely understood those comments, in the context of all the instructions given, “to govern how the jury was to return its verdicts and findings after it completed its deliberations on the charges and allegations.” (People v. Berryman (1993) 6 Cal.4th 1048, 1077, fn. omitted, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Regardless, there is no reasonable likelihood the jury evaluated Ramirez’s liability for first degree murder without considering CALCRIM No. 571, the imperfect self-defense instruction. CALCRIM No. 200 instructed the jury to “[p]ay careful attention to all of these instructions and consider them together.” (Italics added.) We presume the jury understood and followed this instruction, which called on the jury to consider 15 CALCRIM No. 571 together with CALCRIM Nos. 520 and 521 when deciding whether Ramirez was guilty of first degree murder. (See People v. Buenrostro (2018) 6 Cal.5th 367, 431 [“We presume jurors understand and follow the instructions they are given”]; see also People v. Dennis (1998) 17 Cal.4th 468, 537 [“Other instructions implicitly told the jury that its deliberations should include consideration of the lesser offenses”].) CALCRIM No. 571 was integral to the definition of murder, instructing that a killing in imperfect self-defense is not murder, that the People bore the burden of disproving self-defense, and that if the People did not meet that burden a murder verdict was unavailable. (Cf. People v. Schuller (2023) 15 Cal.5th 237, 243–244, 254 [instruction on imperfect self-defense is integral to defining the malice required for murder].) In addition, during closing argument, the prosecutor expressly referenced the imperfect self-defense instruction and argued, at length, why he believed the evidence did not show Ramirez bore the requisite state of mind to be convicted of voluntary manslaughter, rather than murder. Ramirez’s counsel responded by asking the jury to find Ramirez guilty only of manslaughter because the evidence showed he killed out of fear, and “the law requires that . . . if [the People] cannot prove . . . beyond a reasonable doubt that he was operating in imperfect self-defense, he’s not guilty of murder.” The parties’ closing arguments, then, correctly emphasized the jury’s obligation to consider CALCRIM No. 571 in deciding Ramirez’s liability for first degree murder. (See People v. Hughes (2002) 27 Cal.4th 287, 341 [ambiguous instruction did not lead the jury astray because counsels’ closing arguments highlighted the 16 instruction’s correct interpretation]; see also People v. Nelson (2016) 1 Cal.5th 513, 545 [same].) For these reasons, we conclude there is no reasonable likelihood that, in finding Ramirez guilty of first degree murder, the jury ignored CALCRIM No. 571 or its provision conveying the principles required under Dewberry. We, therefore, reject Ramirez’s instructional error claim. C. Lastly, Ramirez argues that his sentence on count three, unlawful possession of ammunition, must be stayed because the People elected to base that count on the conduct underlying count two, possession of a firearm by a felon. Agreeing with Ramirez, the People assert we may modify the judgment to reflect the sentence is stayed. Penal Code section 654, subdivision (a), provides: “An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” “Courts have found section 654 prohibits punishing a defendant for both being a felon in possession of a firearm and unlawful possession of ammunition when all of the ammunition in question was loaded into the firearm or had been fired from it.” (People v. Broadbent (2020) 47 Cal.App.5th 917, 922.) Having reviewed the record, Ramirez’s sentence on count three should be stayed under Penal Code section 654. During closing argument, the prosecutor asserted Ramirez admitted guilt on counts two and three by testifying he “had a loaded semiautomatic handgun in his pocket” when he exited his car and walked toward Eduardo’s vehicle. The prosecutor relied solely on 17 this act to seek Ramirez’s conviction on counts two and three, arguing to the jury: “You don’t need any other evidence. He admitted to it.” Because a stay of Ramirez’s 16-month sentence on count three results in a “relatively minor” reduction in his total sentence, we will modify the judgment instead of remanding the case for further proceedings. (See People v. Burns (1984) 158 Cal.App.3d 1178, 1184 [“[S]taying execution of the penalty imposed for the lesser offense remains the preferred remedy where the reduction in sentence would be relatively minor . . .”].) DISPOSITION We modify the judgment to state that, pursuant to Penal Code section 654, the sentence on count three is stayed. We affirm the judgment as modified. The trial court shall amend the abstract of judgment to reflect that the sentence on count three is stayed pursuant to section 654 and shall forward the amended abstract of judgment to the Department of Corrections and Rehabilitation.

SCHERB, J.

We concur:

STRATTON, P. J.

WILEY, J.