People v. Ramos, Cr. 21352

• Court: United States State Supreme Court (California)
• Citation: 689 P.2d 430,37 Cal.3d 136,207 Cal.Rptr. 800
• Docket Number: Cr. 21352
• Parties: , 689 P.2d 430, 53 USLW 2259 The PEOPLE, Plaintiff and Respondent, v. Marcelino RAMOS, Defendant and Appellant.
• Decision Date: 01 November 1984

Page 800

207 Cal.Rptr. 800

37 Cal.3d 136, 689 P.2d 430, 53 USLW 2259

The PEOPLE, Plaintiff and Respondent, v. Marcelino RAMOS, Defendant and Appellant.

Cr. 21352.

Supreme Court of California,

In Bank.

Nov. 1, 1984.

Rehearing Denied Dec. 13, 1984.

Alan M. Caplan, San Francisco, under appointment by the Supreme Court, Bushnell, Caplan, Fielding & Rudy, San Francisco, Quin Denvir, State Public Defender, Ezra Hendon and Alice V. Collins, Deputy State Public Defenders, for defendant and appellant.

George Deukmejian and John K. Van de Kamp, Attys. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Richard D. Garske, Patricia D. Benke, Michael D. Wellington, Jay M. Bloom and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Justice.

This case is before us on remand from the United States Supreme Court. When it was last here, we concluded that no reversible error had occurred at the guilt phase of defendant's trial, but that an instruction given at the penalty phase--the so-called Briggs Instruction, described below--violated the federal Constitution and required a reversal of the penalty judgment and a remand for further proceedings. (People v. Ramos (1982) 30 Cal.3d 553, 180 Cal.Rptr. 266, 639 P.2d 908 [Ramos I ].) In light of our ruling on the Briggs Instruction, we did not reach other claims of error raised by defendant. The United States Supreme Court granted certiorari to review our decision, and ultimately concluded, in a five to four holding, that the Briggs Instruction did not violate the federal Constitution. (California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171.) Recognizing that its resolution of the single federal constitutional issue before it left a variety of issues still to be determined by this court, the high court remanded the matter to us "for further proceedings not inconsistent with [its] opinion." (103 S.Ct. at p. 3460.) We granted the parties leave to file supplemental briefs and set the case for reargument.

Defendant initially contends that under this court's recent decision in Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, a remand for a new determination of both special circumstances and penalty is required. He points out that at trial his counsel explicitly requested a ruling that the People had the burden of proving an intentional killing as an element of the felony-murder special circumstance with which he was charged; the trial court denied the request, interpreting the statute as omitting any such intent-to-kill requirement. Although the Attorney General acknowledges that the trial court erred in light of our holding in Carlos, he seeks to avoid a reversal and remand on several theories. As we shall explain, however, we conclude that under the principles established in People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826, retrial of the special circumstance and penalty phases, before a properly instructed jury, is required.

In light of this conclusion, we need address only one additional issue on which we believe guidance should be provided for retrial: the question of the validity of the Briggs Instruction under the state Constitution. For the reasons discussed below, we conclude that, considered in light of longstanding California principles and authorities, the Briggs Instruction is incompatible with state constitutional doctrine and that juries should not be instructed pursuant to its terms.

I

The facts of the case are set forth in Ramos I. (30 Cal.3d at pp. 563-566, 180 Cal.Rptr. 266, 639 P.2d 908.) We briefly review only those relevant to the issues now before us.

Kevin Pickrell, one of the victims of the offenses in question, was the prosecution's principal witness at trial. He testified that in the early morning hours of June 3, 1979, he and Kathryn Parrott were working at a Taco Bell restaurant in Santa Ana, California. Just before the restaurant's closing time, a customer, later identified as codefendant Ruben Gaitan, entered and placed an order. While the order was being filled, defendant Ramos entered. Pickrell recognized defendant because he was employed at that time as a janitor at the Taco Bell. Defendant asked to check his work schedule and Pickrell permitted him to enter the work area in the rear of the store.

Within a minute or two defendant emerged from the back with a rifle partially covered by a coat. Pickrell thought it was some sort of joke and began laughing, but defendant told him he was not kidding. He directed Gaitan to hop over the counter, and ordered Pickrell and Parrott to enter the restaurant's walk-in refrigerator at the rear of the store and to face the back wall. Pickrell testified that defendant acted in a manner unlike any time he had seen him in the past, almost as though he did not recognize Pickrell or Parrott; Pickrell suspected that defendant might have been under the influence of a drug.

While Parrott and Pickrell remained in the refrigerator, defendant left and entered the refrigerator several times, asking about the keys to the restaurant safe and telling them to keep quiet. He then directed Parrott and Pickrell--who were still facing the rear wall--to kneel on the floor, remove their hats and say their prayers. He also told Parrott to place a rag in her mouth.

Pickrell testified that the next thing he remembered was hearing a dull "thud" and feeling Parrott fall toward him. Almost simultaneously, he felt a sharp blow to the back of his head and fell forward. Sometime thereafter, he felt another blow to his head followed by a ringing in his ears; he testified, however, that he never heard a gunshot, nor smelled smoke.

When he heard no movement in the building, Pickrell got up and called the police. On their arrival, they found that Parrott was dead. Later medical examination revealed that she had two lacerations on the back of her head, apparently caused by a blow from a blunt, heavy object at or near the time of death, and that she had died of a gunshot wound to the head. A medical examination of Pickrell disclosed similar lacerations on the back of his head and a piece of tissue missing from his right ear which could have been caused by a glancing gunshot.

On the basis of Pickrell's identification, defendant and Gaitan were arrested that same day. The police obtained a search warrant for their apartment and found additional evidence tying them to the robbery.

At the conclusion of the prosecution's case--and outside the presence of the jury--defense counsel requested a ruling from the court on the elements of the felony-murder special circumstance with which defendant was charged. Counsel took the position that in order to establish the special circumstance the People were required to prove both that the killing occurred during the commission of a robbery and that the killing was intentional. The trial court rejected the argument and ruled that the special circumstance could be established under the felony-murder doctrine, in which an intent to kill is not a required element.

Defense counsel then set forth an offer of proof for the record. He stated: "For the record, Mr. Ramos' defense would have been that he did indeed commit the robbery and he did indeed perpetrate this crime, but he did not intend to kill either one of the victims, and that the fact that Miss [Parrott] died was an accident.... In view of the court's ruling that that's not a defense, Mr. Ramos will offer no defense."

True to counsel's word, defendant presented no evidence at the guilt/special circumstance phase. On this state of the evidence, the jury found defendant guilty on all counts and also found true the charged special circumstance.

At the penalty phase, the defense presented considerable evidence of defendant's childhood and background, disclosing that he and his brother were adopted as infants, but his adoptive father died when he was 8 and his adoptive mother when he was 13 or 14. From that time on he lived alone with his older brother, stopped attending school and church regularly and began associating with a "bad" element, including codefendant Gaitan--his closest friend.

A psychiatrist and a psychologist who had interviewed and conducted several tests on defendant testified on his behalf. Their testing revealed that defendant had congenital brain damage, had a full scale IQ of 75--putting him in the "borderline retardation" category--and was "borderline schizophrenic."

In addition, defendant testified on his own behalf. He admitted committing the robbery and shooting Parrott and Pickrell, but expressly denied intending to kill them. He explained that at first he simply hit each of the victims on the head with a metal pipe and left them unconscious in the refrigerator. When he came into the front part of the store, however, Gaitan told him that the two must be killed to prevent them from identifying him or Gaitan. He then reentered the refrigerator, intending only to make it look as though he had killed the two victims if Gaitan came in to check: "I said to myself: In order for [Gaitan] to think that I would kill them, I'll make it look like--in case he decides to come in and check, you know. So then I walked towards them. I stood a foot away from each person. I pointed the gun slightly upward at an angled position to graze them or something, because I never shot a weapon at that close a range before ... My intentions were not to kill them; my intentions were to just graze them, kind of knock them out ... I pointed the weapon at an angled position, like upwards, to sort of graze them, and I fired the shot ... After I shot, I turned around and I looked at Mr. Pickrell, Kevin, and I went back in back of him about a foot away, and I fired an angle position at him, too."

Finally, the defense established that this incident was defendant's first involvement with the law, that he had no prior...