THE PEOPLE, Plaintiff and Respondent, v. MARCELINO RAMOS, Defendant and Appellant.
Crim. No. 21352
Supreme Court of California
Nov. 1, 1984
37 Cal.3d 136
Alan M. Caplan, under appointment by the Supreme Court, Bushnell, Caplan, Fielding & Rudy, Quin Denvir, State Public Defender, Ezra
George Deukmejian and John K. Van de Kamp, Attorneys General, Robert H. Philibosian and Steve White, Chief Assistant Attorneys General, Daniel J. Kremer and Hanley D. Mayfield, Assistant Attorneys General, Richard D. Garske, Patricia D. Benke, Michael D. Wellington, Jay M. Bloom and Harley D. Mayfield, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion
KAUS, J.---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 [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.) 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.” (Id. at p. 1014.) 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, 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, retrial
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.) 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
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
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 convictions or even arrests, no history of violence in any other setting, and that defendant was only 21 years old at the time of the offenses.
After about three hours of deliberation, the jury returned a verdict of death.
II
As noted, defendant‘s initial contention is that a reversal of the special circumstance finding and penalty judgment is required under our decision in Carlos, where we concluded---contrary to the trial court‘s ruling in this case---that an intentional killing is a required element of the “felonymurder” special circumstance set forth in
In DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 178-180, however, we explained that an exception to the law of the case doctrine “has . . . been applied to cases where the controlling rules of law have been altered or clarified by a decision intervening between the first and second determinations of the appellate courts. [Citation.]” (Ibid.) Carlos is, of course, just such a clarifying, intervening decision. Consequently, the law of the case doctrine is no bar to this claim.
On the merits, the Attorney General does not suggest that the trial court ruling is compatible with Carlos. Instead, he argues that reversal is not required either (1) because Carlos’ interpretation of the special circumstance provision should not be applied to cases tried before the Carlos decision, or (2) because the error was not prejudicial. Under our recent holding in Garcia, neither contention has merit.
On the retroactivity point, Garcia makes clear that “[t]he Carlos holding should apply retroactively to all cases not yet final.” (36 Cal.3d at p. 549.) Accordingly, Carlos is fully applicable here.
With respect to the question of prejudice, Garcia concludes after a detailed analysis of recent federal decisions “that the United States Supreme Court would find the error [in failing to instruct the jury on the requisite intent] reversible per se” (id., at p. 554), subject only to a few, narrow exceptions. As set forth in Garcia, the only instances in which a failure to give a proper intent instruction under Carlos may not require reversal of a special circumstance finding are (1) ” ‘if the erroneous instruction was given in connection with an offense for which the defendant was acquitted and if the instruction had no bearing on the offense for which he was convicted,‘” (36 Cal.3d at p. 554 [quoting Connecticut v. Johnson (1983) 460 U.S. 73, at p. 87]), (2) ” ‘if the defendant conceded the issue of intent‘” (36 Cal.3d at p. 554 [quoting Connecticut v. Johnson, supra, 460 U.S. at p. 87]), (3) if ” ‘the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions‘” (36 Cal.3d at pp. 554-555 [quoting People v. Sedeno (1974) 10 Cal.3d 703, 721]), or (4) under limited circumstances, if “the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.” (36 Cal.3d at p. 556 [relying on standard drawn from People v. Cantrell (1973) 8 Cal.3d 672, 685 and People v. Thornton (1974) 11 Cal.3d 738].)
In discussing this last exception---which has its source in the Cantrell and Thornton cases---Garcia explains: “In many cases it will be difficult to apply the Cantrell-Thornton analysis to Carlos error. If the defendant in a pre-Carlos trial was unaware that intent to kill was an element of the felony-murder special circumstance, he might through ignorance fail to present evidence worthy of consideration on that matter. We could not in such cases affirm a special circumstance finding on the ground that defendant did not introduce evidence sufficient to raise a material issue. But there may also be cases where the parties recognized that intent to kill was in issue, presented all evidence at their command on that issue, and in which the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.1 In such a case the reasoning of Cantrell and Thornton may avoid a meaningless retrial.” (36 Cal.3d at p. 556.) Garcia goes on to note, however, that because it is not clear that the Cantrell-Thornton exception will be approved by the federal high court, “pending further guidance from the United States Supreme Court, we will apply the reasoning of Cantrell and Thornton only to those cases clearly falling within the ambit of that reasoning so as not to detract substantially from the per se character of the high court‘s rule.” (Ibid.)
Under Garcia‘s standards, reversal is required in this case. To begin with, it is clear that none of the first three exceptions is applicable here. As in Garcia, “[t]he omitted instruction on intent related to the special circumstance found to be true, not to some crime or special circumstance of which defendant was acquitted,” “[d]efendant did not concede intent,” and “[t]he jury did not find that he intended to kill in connection with some other, proper instruction.” (Id. at pp. 556-557.)2
That leaves only the fourth exception---Cantrell-Thornton. As noted above, with respect to this exception Garcia suggests that “there may . . . be cases where the parties recognized that intent to kill was in issue, presented all evidence at their command on that issue, and in which the record not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration.” (36 Cal.3d at p. 556.) The Attorney General argues that the absence of an intent-to-kill instruction at the special circumstance phase should be found harmless under this exception based on the evidence on intent, or defendant‘s lack of such intent, that was presented at the penalty phase.
This is not a case, however, in which we can properly find that the record “not only establishes the necessary intent as a matter of law but shows the contrary evidence not worthy of consideration,” particularly in light of Garcia‘s caveat that we will apply this exception “only to those cases clearly falling within the ambit of that reasoning so as not to detract substantially from the per se character of the high court‘s rule.” (Italics added.) (Ibid.) As discussed above, defendant expressly testified at the penalty phase that when he shot Parrott and Pickrell, he did not intend to kill them but intended only to graze them, attempting to mislead his accomplice into believing they had been killed.3 Although defendant‘s testimony was self-serving and implausible, the undeniable fact is that Pickrell---although shot at very close range---was in fact only grazed by the bullet. In addition, both the medical evidence of the lacerations suffered by the victims on the back of their heads, and Pickrell‘s testimony that he did not hear any gunshots or smell any smoke but simply felt a blow to his head, are consistent with defendant‘s testimony that he initially simply knocked the victims out with the metal pipe he was carrying and only later shot them at his accomplice‘s direction.
The Attorney General argues that even if the question of intent-to-kill cannot be decided as a matter of law, reversal is not warranted here because we can tell that the jury---after hearing defendant‘s evidence at the penalty phase---in fact determined that he did intend to kill. The Attorney General points to the fact that during closing argument at the penalty phase the prosecutor told the jury at one point that “[i]f you do not feel that this is an execution murder, you should not return the penalty of death.” Since the jury did return a death sentence, the Attorney General reasons that it necessarily found an intent-to-kill.
There are several flaws in this reasoning. First, the jury was, of course, not bound to accept the prosecutor‘s suggestion and was free, under the court‘s instructions, to impose a death sentence without finding an intentional killing. Second, even assuming the jury chose to follow the quoted statement, there is nothing in that remark which told the jury that it had to find beyond a reasonable doubt that defendant intended to kill before it could return a death sentence; if the jury had been properly instructed at the special circumstance stage, it would have been told that the prosecution had to establish an intent-to-kill under that demanding standard of proof. Finally, although the prosecutor did make the above remark at one point in his closing argument, at other points he emphasized that under the applicable instructions of the 1978 law the jury was required to return a death sentence so long as it found that the aggravating factors present in the case outweighed the mitigating factors. Since, according to the prosecutor‘s argument, there were numerous aggravating factors in this case and only a few, much less significant mitigating factors, the jury could well have believed that it was required to return a death sentence because the totality of the aggravating factors “outweighed” the mitigating factors, without regard to whether the killing was intentional or not. Under these circumstances, we cannot find that the sentence which the jury returned establishes that it properly found an intent to kill under the applicable beyond-a-reasonable-doubt standard.4
Accordingly, we conclude that defendant is entitled to a reversal of the special circumstance finding and penalty judgment, and a remand for a new trial of the special circumstance phase before a jury that is properly instructed that in order to sustain the special circumstance finding the prosecution must prove, beyond a reasonable doubt, that defendant intended to kill the victim.
III
In light of this conclusion, there is no need to address the bulk of the penalty phase issues raised by defendant. The parties have, however, extensively briefed the question of the validity of the Briggs Instruction under the California Constitution, and for guidance both at retrial and in other cases we believe that it is appropriate to resolve that issue at this time.
Under California law, the trier of fact---the jury, unless it is waived---has the responsibility of fixing the defendant‘s sentence between two alternative punishments: death or confinement for life without possibility of parole. (
In Ramos I, we evaluated this instruction in light of federal constitutional principles that had been set forth in a number of recent United States Supreme Court death penalty decisions and concluded that the instruction was incompatible with the federal authorities in two separate respects. (30 Cal.3d at pp. 590-602.) First, we concluded that the instruction, by directing the jury‘s attention to the possibility of a future gubernatorial commutation, conflicted with a line of decisions which had established “that in capital cases the Eighth Amendment requires that the decision whether a
The United States Supreme Court granted certiorari and, in a closely divided decision, disagreed with our conclusion that the Briggs Instruction conflicted with the principles enunciated in its earlier decisions. (California v. Ramos, supra, 463 U.S. 992.) In response to the claim that the instruction‘s focus on the gubernatorial commutation power improperly injected an irrelevant factor---a factor which did not relate to the character or background of the offender or the circumstances of the offense---into the capital sentencing process, the majority reasoned that the instruction actually invited the jury to consider the “future dangerousness” of the defendant rather than the actions of some future governor, and, relying heavily on its decision in Jurek v. Texas (1976) 428 U.S. 262, held that such consideration was constitutionally permissible. The court also rejected the contention that the incomplete nature of the instruction---the omission of the fact that the death penalty, as well as life without possibility of parole, is subject to gubernatorial commutation---violated federal constitutional standards: it reasoned that advising the jury that a death sentence may also be commuted would not necessarily benefit a defendant because then the jurors---informed that their decision was not final---might “approach their sentencing decision with less appreciation for the gravity of their choice and for the moral responsibility reposed in them as sentencers.” (463 U.S. at p. 1011.) Although the majority thus upheld the instruction against defendant‘s federal constitutional challenge, the court made clear that the validity of the Briggs Instruction under the California Constitution remained to be decided by this court on remand. (463 U.S. at p. 997, fn. 7.)
A
We begin with the misleading character of the instruction. Under the California Constitution, the Governor‘s power of commutation or pardon extends equally to a sentence of death and to a sentence of life without possibility of parole. (
In People v. Arbuckle (1978) 22 Cal.3d 749, 754-755, we observed that the “[r]eliability of the information considered [at the sentencing stage] is the key issue in determining fundamental fairness.” In a variety of instances, California cases have condemned prosecutorial arguments to the jury which contained misleading statements of law with respect to postconviction proceedings or the defendant‘s potential release. (See, e.g., People v. Modesto (1967) 66
The Attorney General attempts to defend the Briggs Instruction by arguing, on a number of different theories, that a defendant is in effect not prejudiced by the incomplete nature of the instruction. He suggests first that a jury that is concerned about a defendant‘s potential release through gubernatorial commutation would not be any less inclined to vote for the death penalty if it were informed that even a death sentence would not necessarily prevent such release. But the pernicious effect of the Briggs Instruction is that it may lead a jury that does not believe that the death penalty is necessary, but fears a future commutation, to return a death penalty in the mistaken belief that that sentence alone will preclude any possible release. Because an accurately informed jury would at least realize that the possibility of gubernatorial action cannot be avoided in any event, it is less likely to return a death sentence when it is not convinced that death is warranted. The prejudice to the defendant is manifest.8
The Attorney General alternatively contends that the “half-truth” of the Briggs Instruction is justifiable because the “other half” of the truth---informing the jury that a death sentence can also be commuted---would inject additional prejudice, creating the risk that the jury might be less hesitant to impose the death penalty if it realized that the Governor could exercise leniency if he concluded that the jury had made a mistake in imposing death. It is undoubtedly true---as we discuss below---that an instruction which informs the jury of the Governor‘s power to commute a death sentence does pose a danger of diminishing the jury‘s sense of responsibility, creating the risk that the jury may “pass the buck” to the Governor and not take personal responsibility for its sentencing decision. Indeed, this is the point made by
Finally, and somewhat inconsistently with the immediately preceding contention, the Attorney General argues that the incomplete nature of the Briggs Instruction is not likely to be prejudicial because jurors can be expected to know, as a matter of common knowledge, that a death sentence, as well as a sentence of life without possibility of parole, is subject to the Governor‘s commutation or pardon power. We doubt that the precise scope of the Governor‘s commutation power under the California Constitution is a matter of common knowledge.9 But even if a juror began the proceedings under the general impression that the Governor‘s power applied to both sentences, we think that the wording of the Briggs Instruction is reasonably likely to lead the juror to conclude that the commutation power only applies to life without possibility of parole. The negative implication of the instruction is simply too strong to be ignored.
Accordingly, we conclude that the misleading nature of the instruction alone is enough to condemn it as an unconstitutional denial of due process.
B
Furthermore, even if the Briggs Instruction were modified so that it was totally accurate, the instruction would still violate the state constitutional due process guarantee because its reference to the commutation power invites the jury to consider matters that are both totally speculative and that should not, in any event, influence the jury‘s determination.
Over 20 years ago, in People v. Morse (1964) 60 Cal.2d 631, 636-653, we examined at length the propriety of an instruction which permitted a sentencing jury to consider a variety of potential postconviction actions by other governmental enti-
Morse‘s conclusion in this regard is supported by the overwhelming majority of decisions from our sister states.10 These numerous decisions---which are by no means confined to the capital sentencing context---reflect a broad consensus that jury consideration of such matters is incompatible with a fair trial.
As the authorities explain, there are a variety of reasons why such consideration is improper. The first and perhaps most obvious problem is the speculative nature of the inquiry that the instruction invites. One principal difficulty, of course, lies in attempting to predict what a particular defendant is likely to be like some 10, 15, 20 or more years in the future when commutation may be considered. In People v. Murtishaw (1981) 29 Cal.3d 733, 767-775, we reviewed the recent scientific studies demonstrating the general unreliability of attempts to forecast future violence and concluded that in general expert testimony of a defendant‘s alleged future dangerousness is not sufficiently reliable to be even considered at the penalty phase of a capital trial.
In the present context, moreover, the problems of prediction are of an entirely different, and greater, magnitude. Here, the jury must attempt to
Furthermore, the problems posed by jury consideration of the possibility of future commutation extend much deeper than the threshold problems arising from the speculativeness of the inquiry. As a number of cases point out, any instruction which draws the jury‘s attention to the possibility of future actions by a governor or parole board is likely to affect the jury‘s decisionmaking process in either of two illegitimate---though very different---ways, diverting the jury from its proper function.
The first vice of such an instruction---touched on already---is that it may tend to diminish the jury‘s sense of responsibility for its action. As the Supreme Court of Delaware explained: “[K]nowledge on the part of the jury that there is possible review by other governmental authorities may cause that jury to avoid its responsibility. . . . [S]uch comment may imply to a jury that if it mistakenly convicts an innocent man, or mistakenly fails to recommend mercy, the error may be corrected by others; under such circumstances, a conviction is more likely and a recommendation of mercy less likely.” (Smith v. State, supra, 317 A.2d 20, 25.)
For just this reason, over a quarter of a century ago we held in People v. Linden, supra, 52 Cal.2d 1, 27, that it is improper for a prosecutor to advise the jury of the automatic appeal to this court whenever the death penalty is
Second, in addition to diminishing the jury‘s appreciation of its personal responsibility for the sentencing decision, an instruction on the possibility of commutation invites the jury to go beyond its proper role and attempt to “preempt” the Governor‘s constitutional authority by imposing a sentence that will at least minimize the opportunity for such a commutation. As the Supreme Court of Louisiana explained: “[P]ermitting a jury to consider the governor‘s possible grant of a pardon induces it to pass judgment upon the very issue entrusted only to the governor and Board of Pardons and could prevent them from deciding the issue at the proper time. [Citation.] The jury could conclude that the governor will improperly pardon dangerous offenders or commute their sentences, thereby encouraging it to pre-empt the governor‘s power and defeat the constitutional design by opting for the death penalty.” (State v. Lindsey, supra, 404 So.2d 466, 487.)
The impropriety in suggesting to a jury that it may base its sentencing decision on such a consideration is plain. As the New Jersey Supreme Court declared in State v. White, supra, 27 N.J. 158, 177-178: “It is no more proper for a jury to conclude that death be the penalty because a life sentence may be commuted or the defendant paroled, than it would be for a trial judge in other criminal causes deliberately to impose an excessive sentence to frustrate the statutory scheme committing parole to another agency.”
Thus, upon analysis, it becomes clear that the Briggs Instruction in reality serves no legitimate purpose. By drawing the jury‘s attention to the Governor‘s commutation power, the instruction invites the jury to second-guess a future Governor‘s exercise of his constitutional authority and to impose a harsher sentence than it might otherwise impose simply out of fear that the Governor and the parole authorities will make a mistake and will release the defendant while he is still dangerous. To permit a jury to act in this fashion is inconsistent with a defendant‘s right under the California Constitution to have the commutation decision made by the Governor and undermines the fairness of the jury‘s determination.
IV
For the reasons discussed in part II, the judgment is reversed insofar as it relates to the special circumstance finding and penalty. On the issue of guilt, the judgment is affirmed.
Bird, C. J., Mosk, J., Broussard, J., Reynoso, J., and Grodin, J., concurred.
LUCAS, J., Concurring and Dissenting.---I concur in the majority opinion insofar as it affirms the judgment of guilt. I also reluctantly concur in the reversal of the judgment insofar as it relates to the special circumstances finding and penalty, under compulsion of People v. Garcia (1984) 36 Cal.3d 539, a case which, in my view, was incorrectly decided. (See People v. Whitt (1984) 36 Cal.3d 724, 749 [dis. opn.].) The present case involves a coldblooded, execution-style murder, and it is inconceivable to me that the jury would have failed to find an intent to kill had it been instructed on that
In addition, I dissent to the majority‘s further holding that the so-called “Briggs Instruction” is unconstitutional, a holding which seemingly will result in summarily reversing 20 to 30 other capital cases wherein similar instructions were given. I suggest that such a wasteful result is wholly unjustified in light of the harmless contents of the challenged instruction.
Nearly three years ago, a majority of this court ruled that the Briggs Instruction was invalid under the federal Constitution, despite Justice Richardson‘s admonition, in dissent, that no case had ever suggested any constitutional infirmity in informing the jurors regarding the Governor‘s commutation power. (People v. Ramos (1982) 30 Cal.3d 553, 602-603 [Ramos I].) The case was reviewed by the United States Supreme Court where, as the dissent had predicted, the majority‘s holding was firmly discredited. (California v. Ramos (1983) 463 U.S. 992.) In the meantime, of course, this case (and dozens of other automatic appeals raising the same issue) sat in abeyance, gathering dust.
Today, the majority attempts to resurrect its prior holding by relying upon the state Constitution, an issue left open in Ramos I (see 30 Cal.3d at p. 600, fn. 24). In other words, by reason of the majority‘s initial refusal to confront the independent state ground issue, the parties have wasted about three years which could have been spent retrying this case and all other affected cases.
In any event, the majority now reiterates its Ramos I analysis to the effect that the Briggs Instruction denied the accused due process because it is “misleading” and invites the jury to “speculate” regarding future exercise of the commutation power. Both points are convincingly refuted by the high court‘s contrary analysis in California v. Ramos, supra, and by the dissent in Ramos I. Accordingly, I only briefly discuss those points here.
1. Instruction Not Misleading
The majority contends that the Briggs instruction is misleading because it fails to inform the jury that the Governor may commute a death sentence as well as a life-without-parole sentence. There are two conclusive responses to that argument: First, most jurors already know of the Governor‘s commutation power, a matter of common knowledge in the community. (See Ramos I, 30 Cal.3d at p. 604, and cases cited [dis. opn. by Richardson, J.].) Second, any instruction which attempted to emphasize the Governor‘s power to commute a death sentence would be declared invalid as tending to
2. Instruction Not an Invitation to Speculate
The majority also suggests that the Briggs Instruction invites the jury to speculate regarding an irrelevant factor, namely, the possible future exercise of the Governor‘s power to commute a sentence of life without parole. As the Ramos I dissent pointed out, “To the contrary, the instruction is purely informational, explaining to those jurors who might otherwise be misled that a sentence denominated ‘life imprisonment without possibility of parole’ is nonetheless subject to possible commutation by the Governor. [Citation.]” (30 Cal.3d at p. 603.)
The United States Supreme Court agreed, observing that the challenged instruction “was merely an accurate statement of a potential sentencing alternative. . . . The Briggs Instruction thus corrects a misconception and supplies the jury with accurate information for its deliberation in selecting an appropriate sentence.” (463 U.S. at p. 1009.) As the high court explained, the instruction brings to the jury‘s attention “the possibility that the defendant may be returned to society,” thereby properly inviting the jury “to assess whether the defendant is someone whose probable future behavior makes it undesirable that he be permitted to return to society.” (Id. at p. 1003.)
3. Conclusion
As I have indicated, the majority now relies exclusively upon the state Constitution to support its invalidation of the Briggs Instruction. In my view, not only does this holding come three years too late, but it also frustrates the spirit, if not the letter, of the very Constitution on which the majority so belatedly relies.
In my view, the Briggs Instruction is constitutional. The majority‘s contrary holding ignores the people‘s will as expressed in their own Constitution. I respectfully dissent to that holding.
Respondent‘s petition for a rehearing was denied December 13, 1984. Lucas, J., was of the opinion that the petition should be granted.