People v. Ramos

• Decision Date: 07 July 1997
• Docket Number: No. S005499,S005499
• Citation: 15 Cal.4th 1133,64 Cal.Rptr.2d 892,938 P.2d 950
• Parties: , 938 P.2d 950, 97 Cal. Daily Op. Serv. 5341, 97 Cal. Daily Op. Serv. 5405, 97 Daily Journal D.A.R. 8678 The PEOPLE, Plaintiff and Respondent, v. Marcelino RAMOS, Defendant and Appellant.
• Court: California Supreme Court

Page 892

64 Cal.Rptr.2d 892

15 Cal.4th 1133, 938 P.2d 950, 97 Cal. Daily Op. Serv. 5341,

97 Cal. Daily Op. Serv. 5405,

97 Daily Journal D.A.R. 8678

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

No. S005499.

Supreme Court of California.

July 7, 1997.

Rehearing Denied Sept. 17, 1997.

[15 Cal.4th 1146] [938 P.2d 959] Michael Laurence, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Frederick R. Millar, Jr., and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

BROWN, Justice.

Defendant 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. A jury convicted both defendants on all counts, and found the murder and attempted murder to be of the first degree. As to defendant, the jury further found true the special circumstance allegation that the murder was committed while he was engaged in the commission of robbery. (Pen.Code, § 190.2, former subd. (a)(17)(i).) It found the special circumstance not true as to Gaitan. (See People v. Ramos (1982) 30 Cal.3d 553, 562, 180 Cal.Rptr. 266, 639 P.2d 908 (Ramos I ).)

The jury returned a penalty phase verdict of death. On automatic appeal, this court reversed the sentence because the trial court had given the "Briggs Instruction," informing the jury life without possibility of parole could be commuted by the Governor. (Ramos I, supra, 30 Cal.3d at pp. 591-602, 180 Cal.Rptr. 266, 639 P.2d 908.) The United States Supreme Court reversed that judgment, concluding the instruction did not violate the federal Constitution. (California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171.) On remand, this court reversed the special circumstance finding and penalty judgment because the trial court failed to instruct the jury it must determine defendant intended to kill the victim, as then required under Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862. (People v. Ramos (1984) 37 Cal.3d The matter returned to the trial court for further proceedings on the special circumstance allegation and penalty. Relying on People v. Anderson (1987) 43 Cal.3d 1104, 240 Cal.Rptr. 585, 742 P.2d 1306, the court indicated it would not instruct on intent to kill. Defendant waived jury and admitted the truth of the special circumstance allegation. However, he reserved the right to present evidence relating to his intent, which he did in conjunction with a new trial motion. A jury returned a second penalty verdict of death. The trial court denied the motion for a new trial and for modification of sentence. (Pen.Code, § 190.4, subd. (e).) This appeal is automatic. (Pen.Code, § 1239, subd. (b); further unspecified statutory references are to the Penal Code.) For the reasons that follow, we affirm the judgment.

                136, 150, 207 Cal.Rptr. 800, 689 P.2d 430 (Ramos II ).)   We further held the Briggs Instruction violated the due process clause of the California Constitution.  (Id., at pp. 150-159, 207 Cal.Rptr. 800, 689 P.2d 430.)
                

I. FACTS

A. Prosecution's Penalty Phase Evidence

The prosecution introduced evidence of the circumstances of defendant's crimes substantially as it was presented at the guilt phase trial.

Late on the night of June 2, 1979, Katharyn Parrott and Kevin Pickrell were working at a Taco Bell restaurant in Santa Ana, California. They planned to close at 1 a.m. Just before closing, Gaitan entered the establishment and placed a large food order. While Parrott was preparing the order, defendant entered. Pickrell recognized defendant as a coworker employed at the Taco Bell as a janitor. Defendant asked to check his schedule, and Pickrell admitted him behind the front counter.

Approximately a minute later, defendant emerged from the back carrying a rifle partially covered with a jacket. Thinking it was a joke, Pickrell began laughing; but defendant informed him that he was not kidding. He told Gaitan to hop over the front counter and then directed both Pickrell and Parrott inside the restaurant's walk-in refrigerator. According to Pickrell defendant acted oddly, almost as though he did not recognize Pickrell and Parrott.

Defendant entered and left the refrigerator several times. He asked about the keys to the safe and repeatedly told Pickrell and Parrott to keep quiet. When defendant entered for the last time, he told the two employees to kneel on the floor and remove their hats. He had Parrott place a rag in her mouth.

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

Pickrell was treated at a nearby hospital 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 Katharyn Parrott indicated 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. At the retrial, the examining pathologist stated the object could have been the butt of a rifle.

Defendant and Gaitan were arrested the next day. Pursuant to a warrant, a search of their apartment yielded over $1,000, approximately the amount taken from the Taco Bell. Additional seized items included torn pieces of a diagram of the Taco Bell and pieces of a Mexican food order form. (See Ramos I B. Defendant's Penalty Phase Evidence

supra, 30 Cal.3d at pp. 563-564, 180 Cal.Rptr. 266, 639 P.2d 908.)

The defense presented a variety of witnesses. Some were called to impeach certain prosecution witnesses including David Lam, a jailhouse informant. Others gave evidence concerning defendant's childhood, learning difficulties, and other aspects of his background.

With respect to defendant's background, witnesses described his early life in San Antonio, Texas, where he was adopted at birth by Mario and Camilla Ybarra because his mother would not care for him; the Ybarras also adopted defendant's older half-brother, but the two apparently were not close. The family lived in a lower income Hispanic neighborhood in which young boys were vulnerable to gang influence. Mario died when defendant was five years old. Camilla was deeply devoted to her religious activities in the Church of la Luz del Mundo and raised defendant very strictly. When defendant became a teenager, Camilla developed health complications from diabetes and died when he was 14. During her illness, defendant was very attentive and helped with chores and other household responsibilities. Following her death, he and his brother struggled to support themselves.

Numerous witnesses described defendant as religious, well behaved, protective of others, and helpful prior to Camilla's death. Thereafter, however, he ceased going to church regularly. He began to associate with Gaitan, with whom he drank alcohol and smoked marijuana; nevertheless, he had no previous contacts with the law. Gaitan's father was an abusive alcoholic. When Gaitan's mother died, defendant went with him to California. Mutual friends described Gaitan as more intelligent and a leader, defendant as a slow thinker and a follower. Defendant's low intelligence level, possibly the result of mild organic brain damage, was confirmed by psychological testing after his arrest. Other witnesses spoke of defendant's return to religion following his incarceration on death row, as well as his positive adjustment to prison life.

Defendant testified in his own behalf and recounted his childhood, his religious upbringing, and the deaths of his father and mother. After his mother died, he became less involved with his church and stopped attending school. He and his brother had severe financial problems, in part because their guardian aunt failed to provide for them. After he left school, defendant had a series of jobs to support himself, but was unable to advance because of his low intelligence. He then met Gaitan. The two joined the National Guard from which defendant was honorably discharged. They traveled to California because Gaitan had problems with his probation officer. After arriving, defendant had several jobs and stayed at various locations in Orange County.

Defendant stated he never considered robbing the Taco Bell until Gaitan raised the possibility the night of the crimes. He did not intend to kill any of the other employees, only knock them out. He had a bus ticket to Denver and was going to leave town. During the robbery, however, he became angry and shot the rifle. While in prison, he wrote a letter to the victim's mother expressing his remorse. He also formed a prayer group and studied for his high school equivalency certificate. He acknowledged some disciplinary problems in prison and jail, but offered explanations for his misconduct.

C. Prosecution's Rebuttal Evidence

In rebuttal, the prosecution called Deputy Sheriff Cejka, the night patrol officer at the Orange County jail where defendant was housed before and during his penalty retrial. Cejka testified to an incident in which defendant used abusive language and made a possible threat after Cejka shined his flashlight in defendant's...