People v. Ramos

• Decision Date: 25 January 1982
• Docket Number: Cr. 21352
• Court: California Supreme Court
• Parties: , 639 P.2d 908 The PEOPLE, Plaintiff and Respondent, v. Marcelino RAMOS, Defendant and Appellant.

Page 266

180 Cal.Rptr. 266

30 Cal.3d 553, 639 P.2d 908

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

Cr. 21352.

Supreme Court of California,

In Bank.

Jan. 25, 1982.

As Modified on Denial of Rehearing Feb. 24, 1982.

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

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Richard D. Garske, Patricia D. Benke, Michael D. Wellington and Harley D. Mayfield, Deputy Attys. Gen., for plaintiff and respondent.

TOBRINER, ^* Justice.

Appellant Marcelino Ramos and his codefendant Ruben Gaitan (not a party to this appeal) were charged with two counts of robbery, one count of murder, and one count of attempted murder in connection with a robbery and shooting incident at an Orange County fast food establishment which occurred in June of 1979. A jury convicted both defendants on all counts, and found the murder and attempted murder to be of the first degree. The jury further found with respect to appellant that the charged "special circumstance" was true, i.e., that the murder was committed while appellant was engaged in the commission of a robbery. (Pen.Code, § 190.2(a)(17)(i).) It did not find the charged "special circumstance" true with respect to codefendant Gaitan.

The special circumstance finding initiated a second phase penalty trial to determine whether or not appellant should suffer the death penalty. This phase lasted approximately one week. On December 11, 1979, the jury returned a verdict of death. The appeal to this court is automatic. (Cal.Const., art. VI, § 11; Pen.Code, § 1239, subd. (b).)

The instant case is our first opportunity to consider a judgment of death imposed pursuant to the 1978 death penalty initiative approved by voters on November 7 of that year. Popularly known as the Briggs Initiative, the 1978 law contains several significant changes from the 1977 law, the constitutionality of which was approved by four members of this court in People v. Jackson (1980) 28 Cal.3d 264, 168 Cal.Rptr. 264, 618 P.2d 149. Without offering any opinion as to other possible challenges, we have concluded that several recent United States Supreme Court cases mandate our holding unconstitutional on due process grounds the portion of the 1978 statute which requires the penalty phase jury to be instructed regarding the Governor's power to commute a sentence of life imprisonment without possibility of parole. Accordingly, the judgment of death must be reversed due to the use of this unconstitutional "Briggs Instruction." The judgment of guilt as to the murder, attempted murder, and robbery counts is affirmed.

I. STATEMENT OF FACTS

Late on the night of June 2, 1979, Kathryn Parrott and Kevin Pickrell were working at a Taco Bell restaurant located in Santa Ana, California. They were due to close at 1 a. m. Just prior to that time, however, a customer later identified as codefendant Gaitan entered the establishment and placed a food order. While the order was being prepared, appellant entered. Pickrell recognized him because appellant was currently employed at the Taco Bell as a janitor. Appellant asked to check his work schedule and Pickrell admitted him to the work area behind the front counter.

Approximately a minute later, appellant emerged from the back carrying a rifle partially covered with a coat. Thinking it was some sort of joke, Pickrell began laughing, but appellant informed him that he wasn't kidding. He advised Gaitan to hop over the front counter and then directed both Pickrell and Parrott inside the restaurant's walk-in refrigerator, facing the back wall. Pickrell testified that appellant 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 appellant might have been under the influence of some type of drug.

A substantial period of time elapsed during which appellant entered and emerged from the walk-in refrigerator on several occasions. He inquired about the keys to the restaurant safe and repeatedly told Pickrell and Parrott to keep quiet. When appellant entered for the last time, he instructed Pickrell and Parrott to kneel on the floor of the refrigerator and remove their hats. He told Parrott to place a rag in her mouth. During this entire period of time, Pickrell and Parrott could not see appellant because they had their backs to him.

Pickrell testified that the next thing he remembered was feeling Kathryn Parrott fall toward him. Almost simultaneously, he felt a sharp blow to the back of his head and also fell over. Sometime subsequent to that, he felt another blow to his head followed by a ringing in his ears. He testified that he never heard a gunshot or smelled smoke. He lay on the floor until he could hear no movement in the building. He then got up, discovered Parrott's body next to him, and reported the incident to police. When police arrived, they found that Parrott was dead.

Pickrell was treated in the emergency room of a nearby hospital that night for lacerations on the back of his head. The treating physician also noted two smaller lacerations behind the right ear and a piece of tissue missing from the ear itself, which could have been caused by a glancing gunshot. The autopsy performed on the body of Kathryn Parrott indicated that she had died of a gunshot wound to the head. The examination also disclosed two lacerations to the back of the head, inflicted at or near the time of death, most probably caused by a blow from a blunt, heavy object.

Appellant and Gaitan were arrested on June 3. A search pursuant to a warrant of the apartment in which they were living yielded over $1,000, which roughly approximated the amount of money taken in the Taco Bell robbery. Additional items seized included torn pieces of a diagram of the Taco Bell restaurant and pieces of a Mexican food order form.

Trial commenced on November 26, 1979. Defense counsel presented no evidence at the guilt phase and appellant did not take the stand on his own behalf. ¹ Counsel also offered no closing argument. Not surprisingly, on December 6 the jury returned a verdict of guilty as to all counts and also found the charged special circumstance to be true as to appellant. As already noted, although the jury found codefendant Gaitan guilty of first degree murder and robbery, it did not find the charged special circumstance to be true as to him.

The evidence presented by the prosecution at the penalty phase consisted of some photographs of two rifles seized during the search of the apartment, a letter and will written by appellant, and testimony by David Lam, who allegedly overheard portions of some remarks made by appellant while both men were occupying a holding cell at the county courthouse. Lam testified that he heard appellant admit shooting the victims and say that he enjoyed hearing them beg for their lives.

The presentation of defense evidence consumed the largest portion of time during the penalty phase, providing considerable background information concerning appellant's childhood and adolescence in San Antonio, Texas. He and his brother were adopted as infants. His adoptive father died when he was 8; his mother died when he was 13 or 14. From that point on, appellant and his brother (who was two years older) lived by themselves, although some supervision was provided by a maternal aunt.

Psychological testing placed appellant in the borderline retardation category, with a full scale IQ of 75. He was diagnosed as having congenital brain damage. One psychologist characterized him as borderline schizophrenic.

Testimony by friends and family in San Antonio indicated that after the death of his mother, appellant began associating with a "bad" element. His closest friend among this new group was Ruben Gaitan. Appellant's brother, Mario, testified that Gaitan became the leader of the pair because of appellant's suggestible personality. Gaitan was very excited by terrorism and terrorist-type activities; he was known to possess several weapons. Mario stated that he continually warned appellant to stay away from Gaitan but the warnings were to no avail. Mario explained that he lent his brother the money to come to California only on the condition that he would not go with Gaitan. Gaitan decided to come to California with appellant at the last moment and appellant did not resist. Testimony by several individuals indicated that both before and after leaving San Antonio, appellant was unsuccessful at holding down any job more involved than menial janitorial work.

Appellant also testified on his own behalf at the penalty phase. He admitted the robbery and shooting the victims, but he denied intending to kill them. He explained that he had hit each one on the head with a metal pipe, but that Gaitan instructed him that each must be killed to prevent their identifying appellant and himself. Appellant then re-entered the refrigerator, intending to make it look as though he had killed both Parrott and Pickrell. He testified: "My intentions were not to kill them; my intentions were to just graze them, kind of knock them out because I wasn't too sure, and since I hadn't checked them before, if they were knocked out or not, and when I walked back in, I didn't check if they were knocked out or not.... 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 went in back of him about a foot away, and I fired at an angle position at him, too."

Appellant also admitted to regular and heavy use of drugs and alcohol. He recalled having ingested both...