Francisco Ramirez, Jr. v. Pat Vasques , 592 F. App'x 550 ( 2014 )

NOT FOR PUBLICATION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 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
defense’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(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 § 2254
proceedings a court must [also] assess the prejudicial impact of constitutional error’
under the Brecht [v. Abrahamson, 507 U.S. 619 (1993)] standard.” Merolillo v. Yates,
663 F.3d 444, 454 (9th Cir.2011) (quoting Fry v. Pliler, 551 U.S. 112, 121–22 (2007))
(first alteration in original); see also Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.
1
Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542
U.S. 296 (2004).
2
2010) (“We apply the Brecht test without regard for the state court’s harmlessness
determination.”).
Under Brecht, habeas petitioners are entitled to relief if “the error had
substantial and injurious effect or influence in determining the jury’s verdict.” 507
U.S. at 637 (internal quotation marks and citation omitted). “Where the record is so
evenly balanced that a judge ‘feels himself in virtual equipoise as to the harmlessness
of the error’ and has ‘grave doubt about whether an error affected a jury [substantially
and injuriously], the judge must treat the error as if it did so.’” Merolillo, 663 F.3d
at 454 (quoting O'Neal v. McAninch, 513 U.S. 432, 435–38 (1995)) (alteration in
original) (internal quotation marks omitted).
We have such doubts here. Although one view of the evidence–that espoused
by the prosecution–could likely support one or more of the aggravating factors found
by the state court, the jury did not fully accept that version of events. In light of its
verdict, we cannot conclude with confidence that, if it had been asked, the jury would
have found that (1) Ramirez committed the crime with “planning, sophistication or
professionalism,” see People v. Sandoval, 41 Cal. 4th 825, 841 (2007); or (2) the
victim, who was armed with a loaded gun which he had shown Ramirez earlier, was
“particularly vulnerable,” see id. at 842; or (3) the crime, although involving violence
and bodily harm, necessarily revealed a “high degree of cruelty, viciousness or
3
callousness on the part of the perpetrator,” see People v. Nevill, 167 Cal. App. 3d 198,
206 (1985). As the California Supreme Court itself has noted, many of California’s
aggravating circumstances are “vague or subjective,” and thus “it may be difficult for
a reviewing court to conclude with confidence that, had the issue been submitted to
the jury, the jury would have assessed the facts in the same manner as did the trial
court.” People v. Boyce, 59 Cal. 4th 572, 728–29 (2014) (quoting Sandoval, 41
Cal. 4th at 840); see also Sandoval, 41 Cal. 4th at 840 (“Many of the aggravating
circumstances described in the rules require an imprecise quantitative or comparative
evaluation of the facts.”).
We cannot conclude the error here was harmless. We therefore reverse the
district court’s denial of the writ and remand for further proceedings consistent with
this decision.
REVERSED AND REMANDED.
4
FILED
Ramirez v. Vasques, No. 12-55231 NOV 04 2014
MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting: U.S. COURT OF APPEALS
I respectfully dissent. I have no doubt that the jury would have found at
least one 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(2007), error was harmless under the Brecht v. Abrahamson, 507 U.S. 619 (1993),
standard.