Skip to content
Name: People v. Ramirez
Case #: B218413
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 11/12/2010

Where the court has a sua sponte duty to instruct on heat-of-passion manslaughter as a lesser offense to murder and fails to do so, the verdict is subject to reversal if there is a reasonable probability that the error affected the outcome. Appellant came to the assistance of a fellow gang member, Gerardo, who had confronted a member of an opposing gang, Boothe. According to the evidence, Boothe may have punched Gerardo and appellant. Appellant then started shooting and Boothe was killed. Appellant was convicted of first degree murder and firearm charges. On appeal, the court agreed with appellant that the trial court should have instructed on voluntary manslaughter based on a heat-of-passion theory. The court rejected respondent’s argument that the error was harmless because, by finding that appellant acted willfully, deliberately, and with premeditation, the jury necessarily found that he did not act under the heat of passion. As the Supreme Court found in People v. Berry (1976) 18 Cal.3d 509, the erroneous omission of an instruction on heat-of-passion voluntary manslaughter is not rendered harmless by the jury finding appellant guilty of first, rather than second, degree murder. Here, the court found the failure to instruct not to be harmless because the evidence against appellant was not so overwhelming as to show there was no reasonable probability that a more favorable outcome would have occurred if the jury had been properly instructed.