Ramos

Defendant Marcelino Ramos and his codefendant Ruben Gaitan (not a party to this appeal) were charged with two counts of robbery, *1147 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.) The United States Supreme Court reversed that judgment, concluding the instruction did not violate the federal Constitution.…

I concur in the opinion of the court prepared by Justice Brown.

After careful review, I cannot deem reversible whatever error the superior court may have committed by assertedly not permitting defendant to ask prospective jurors, in accordance with language that would subsequently appear in People v. Kirkpatrick (1994) 7 Cal.4th 988, 1004 [ 30 Cal.Rptr.2d 818 , 874 P.2d 248 ], “whether they would always . . . vote for the death penalty in cases involving any generalized facts . . . that were likely to be shown by the evidence at trial.” The error, if such it be, is a violation solely of California decisional law. It is subject to review for harmlessness. (See id. at p. 1005.) In my view, it survives scrutiny. Notwithstanding any restriction by the superior court, there was in fact inquiry that was adequate to determine that none of the 12 persons who would be sworn as jurors and actually vote for the death penalty held “views on capital punishment” that “would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424 [ 105 S.Ct. 844, 852 , 83 L.Ed.2d 841 ], quoting…

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…