People v. Ramos

KENNARD, J., Concurring and Dissenting.

I concur with the majority’s affirmance of the special circumstance finding, but I cannot join the majority in affirming the death judgment against defendant Marcelino Ramos.

Because the trial court did not permit defense counsel to adequately question prospective jurors about their death penalty views, there is an unacceptable risk that the jury that returned the death verdict was not impartial.

A defendant’s right to an impartial jury includes the right to an adequate voir dire to identify unqualified jurors. (Morgan v. Illinois (1992) 504 U.S. 719, 729-730 [ 112 S.Ct. 2222, 2229-2230 , 119 L.Ed.2d 492 ].) In a capital case, a prospective juror is unqualified if the juror’s views on capital punishment would prevent or substantially impair the performance of the juror’s duties as a juror in accordance with the court’s instructions and the juror’s oath. (Wainwright v. Witt (1985) 469 U.S. 412, 424 [ 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 ].) Under California law, a jury determines penalty in a capital case by a process of weighing aggravating and mitigating circumstances. (Pen. Code, § 190.3; see People v. Bacigalupo (1993) 6 Cal.4th 457, 467-470 [ 24 Cal.Rptr.2d 808 , 862 P.2d 808 ].) “A prospective juror who *1186 would invariably vote either for or against the death penalty because of one or more circumstances likely to be present in the case being tried, without regard to the strength of aggravating and mitigating circumstances, is therefore subject to challenge for cause . . . (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ]; see also People v. Livaditis (1992) 2 Cal.4th 759, 772-773 [ 9 Cal.Rptr.2d 72 , 831 P.2d 297 ]; People v. Pinholster (1992) 1 Cal.4th 865, 917-918 [ 4 Cal.Rptr.2d 765 , 824 P.2d 571 ].) To identify such jurors, prosecutors and defense attorneys must be permitted to inquire on voir dire “whether [the prospective jurors] would always or never vote for the death penalty in cases involving any generalized facts . . . that [are] likely to be shown by the evidence at trial.” (People v. Kirkpatrick, supra, at p. 1004 .)

Here, the record shows that the trial court prohibited defense counsel from inquiring whether prospective jurors would vote for a verdict of death “automatically” or “without considering the defendant’s life history” if the evidence showed that defendant committed a murder that was “intentional,” “premeditated,” or “planned in advance.” Because the evidence showed that the capital murder committed by defendant was intentional, premeditated, and planned in advance, the trial court erred to defendant’s prejudice in barring defense counsel from asking whether prospective jurors would automatically vote for the death penalty for such a murder.

The trial court made its ruling after the first day of individual voir dire of prospective jurors on their death penalty views. During that first day, which included the death penalty voir dire of one of the jurors who eventually participated in defendant’s death verdict, defense counsel was permitted to ask questions such as, “Would you automatically impose the death penalty in any execution-style type murder that occurs in the course of a robbery?” Jurors who responded in the affirmative were excused for cause.

Thereafter, the trial court informed counsel that it had reconsidered the appropriateness of the previous day’s voir dire and had concluded that “telling a juror that the circumstance of the crime is a particular type of description, that tends to put the juror in the position of prejudging the case.” The court added: “I think what I may end up doing is precluding any description of the circumstances of the offense.” Defense counsel protested that this would be “directly contra to the law.” Defense counsel also said: “I think I need to ask the question about how they feel about automatically imposing a death penalty in a case where there’s an intentional, premeditated, planned-in-advance killing.” Before voir dire resumed, the court instructed counsel “not to get into asking the juror how they would evaluate premeditated or intentional killing.” Defense counsel asked if the court *1187 would permit this question: “If, after [the prosecutor] puts on evidence of the circumstances of the crime, you believe that the evidence shows it was planned, premeditated, and cruel, would you impose death without considering any other evidence about the defendant and his background?” The prosecutor said he objected to that form of question on voir dire. The court said, “I don’t think you’re entitled to ask that question,” and the court stated that “if it is objected to, I will sustain the objection.”

During the remainder of the death qualification voir dire, including the voir dire of the other 11 jurors who participated in the death verdict, defense counsel was not permitted to and did not ask jurors whether they would automatically vote for the death penalty if the murder was intentional, premeditated, or planned in advance. The only exceptions were on rare occasions when a prospective juror raised the subject by volunteering that he or she thought the death penalty should be imposed for such crimes.

Because the trial court did not permit defense counsel to inquire whether the prospective jurors would always vote for the death penalty in cases involving certain generalized facts likely to be shown by the evidence at trial—specifically, a murder that was intentional, premeditated, and planned in advance—the voir dire was inadequate to identify unqualified jurors. This error requires reversal of the judgment of death. (Morgan v. Illinois, supra, 504 U.S. 719, 739 [ 112 S.Ct. 2222, 2235 ].) Accordingly, I would reverse the judgment as to penalty only and remand for a new penalty trial before jurors whose impartiality has been adequately tested.

Appellant’s petition for a rehearing was denied September 17, 1997. Kennard, J., was of the opinion that the petition should be granted.