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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Respondent, v. Richard RAMIREZ, Defendant and Appellant.

Cr. 10926.

Decided: June 30, 1981

Thomas V. Siporin, Los Gatos, under appointment by the Court of Appeal, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Nancy Sweet and Ronald S. Prager, Deputy Attys. Gen., for plaintiff and respondent.

A jury found defendant guilty of robbery in count one (§ 211),1 assault with a deadly weapon in counts two and four (§ 245, subd. (a)), and assault with intent to commit murder in count three.  (§ 217.)   As to each count defendant was found to have been armed with (§ 12022, subd. (a)) and to have used (§ 12022.5)) a firearm.   The jury found untrue the allegation that defendant personally inflicted great bodily harm within the meaning of section 12022.7.   Defendant's application for probation was denied and he was sentenced to state prison for the upper term of six years on count three with an additional term of two years for the “armed” and “use” findings.   As to counts one, two and four, defendant was sentenced to the middle term of three years for each count, all of which were ordered to run concurrent with count three.   Execution of those sentences was stayed pending service of sentence in count three, thereafter to be permanently stayed.   Defendant received 136 days of presentence credit.

On appeal defendant contends:  (1) the court's failure to permit defendant to show on the record the extent of jury contamination was a denial of due process;  (2) the court erroneously failed to instruct the jury on diminished capacity;  (3) because “express malice” must be proven in a section 217 prosecution it was error to instruct as to “implied malice”;  and (4) there were various sentencing errors.

At about ten minutes before midnight, on February 11, 1980, William Mariano and Shirley Carillo were getting into Mariano's automobile, which was parked in a lot in Old Sacramento.   As Mariano began opening the passenger's door, defendant Ramirez and his codefendant Duran suddenly approached.   Ramirez stood facing Mariano, aiming a gun at Mariano's chest, while Duran placed a gun to the left side of Mariano's head.  “Give me your money,” ordered defendant as he probed Mariano's pockets.

Ms. Carillo said, “Why don't you guys leave us alone?”, to which defendant responded by pointing his gun at her and warning, “If you don't shut up bitch, you're going to get it next.”   She heeded the threat and defendant turned his gun back toward Mariano.

Suddenly, Mariano heard a gunshot to the side of his head.   Thinking he had been shot, he grabbed the side of his head and fell to his knees and discovered he had not been hit.   As he started to get up another shot went off, this time hitting Mariano's upper left arm.   He looked behind him and saw defendant putting the gun into his pants as he fled.

A midnight jogger heard the shots and saw two males with dark complexion run out of the parking lot entrance, get into a blue, American car and drive off.   The jogger flagged down a police patrol car and told what he had witnessed.

Police set up a road block through which the assailant's car sped precipitating a dangerous high-speed chase through stop signs and red lights.   During the chase the blue car twice veered into and struck the pursuing squad car.   Eventually the suspects were seen running from their vehicle, which had come to rest atop a curb on the wrong side of the street.   An officer ran after the fleeing defendant, who nimbly leaped over a fence.   The officer shouted to defendant to freeze or be shot.   Defendant stopped and was apprehended.

The defense was defendant did not commit the charged offense.   He testified on February 11, 1980, he went to Old Sacramento with someone known to him only as “Joker.”   Before leaving Delia Hernandez' house at about 10:10 p. m., he had consumed about half a bottle of Baccardi.   He first went to the Reno Club, leaving at around 10:40 p. m.   He then went to Steamboat and Navigation in Old Sacramento where he remained until almost midnight.   He did not drink alcohol at either club, but he did drink some Baccardi in the car.

Joker had been waiting in defendant's car.   Defendant entered on the passenger side when he heard two gunshots.   He told Joker “Let's leave” and gave Joker the keys because defendant was “too loaded to drive.”   He saw a police car but told Joker to proceed “[be]cause my little brother wasn't buried yet, and I wanted to stay out for his funeral, and I knew if I would have stopped, I didn't have an I.D. on me, and if you're out past 10:00 in Sacramento, if you don't got an I.D., they take you in, plus I had a warrant.”

A police car, chasing them from Old Sacramento, struck them in the back.

The car in which defendant was riding stalled.   While the car was still moving, defendant jumped out and ran through the parking lot.   At one point he jumped over a fence and heard an officer yell “Freeze or you're dead.”   He froze.

On cross-examination he testified he told Joker to drive on when he saw the police “[b]ecause I was too loaded.   I was high, I didn't want to wreck her car.”

Defendant's brother, Emanuel Ramirez, submitted an affidavit to the court which stated, “In the hallway, outside the courtroom prior to commencing jury instructions, I overheard juror number 6, who sits in the last seat of the back row of the jury box, ask juror number 5, the tall blonde gentleman, ‘I wonder when this is going to be over.’   In response, juror number 5 stated, ‘It's going to be over quick.’ ”

Attorney for codefendant Duran moved for a mistrial or in the alternative replacement of juror number five with the alternate.   The court denied the motion for mistrial, but granted the motion to substitute the alternate for juror number 5, and instructed the jury to set aside all past deliberations and begin anew.   Neither defendant's nor codefendant's attorney requested the court to conduct any individual voir dire regarding possible contamination.


 Defendant now complains he was denied due process by “the trial court's failure to allow appellant to show on the record the extent of jury contamination.”   The contention is meritless.

Defendant's protestations to the contrary, the remark of juror number 5 was ambiguous and innocuous.  (Cf. People v. Brown (1976) 61 Cal.App.3d 476, 479, 132 Cal.Rptr. 217;  People v. Goodale (1939) 33 Cal.App.2d 80, 84–85, 91 P.2d 163.)   We concur in the trial court's characterization that the subject remark “doesn't mean much more than the fact that the trial is drawing to an end, and its going to be over soon, or quick.   It doesn't indicate a frame of mind one way or the other with regard to a verdict or any preconceived determination to decide the case one way or the other.”   Under the circumstances the substitution of juror number 5 with the alternate was certainly sufficient to preserve the integrity of the proceeding.   There was no denial of due process.


 Defendant further contends the court should have instructed, sua sponte, on diminished capacity as the defendant testified he drank some Baccardi and was “too loaded” to drive.   However, at trial defendant did not rely upon the defense of diminished capacity;  rather his defense was he was not involved in the commission of the offenses with which he was charged.   “[T]he duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense and the defense is not inconsistent with the defendant's theory of the case.”  (People v. Sedeno (1974) 10 Cal.3d 703, 716, 112 Cal.Rptr. 1, 518 P.2d 913.) 2  Accordingly, in this case the trial judge was not required to instruct, sua sponte, on diminished capacity.

 Furthermore, there was insufficient competent evidence of diminished capacity to warrant the instruction.  (See People v. Flannel (1979) 25 Cal.3d 668, 684–686, 160 Cal.Rptr. 84, 603 P.2d 1;  People v. Carr (1972) 8 Cal.3d 287, 294, 104 Cal.Rptr. 705, 502 P.2d 513.)   Defendant testified on the day in question he consumed about half a quart of Baccardi, but he denied drinking anything more after leaving the car and going from one club to another.   He told his companion to drive because “I was too loaded.”   Neither the victims nor other witnesses who observed the defendant on the night in question testified that defendant appeared intoxicated.   His own conduct during commission of the offenses and subsequent flight belie the assertion of intoxication.


 Defendant next contends the court erred by instructing on implied malice.   The jury was instructed as to the following:  (1) that section 217 requires a specific intent to murder (CALJIC No. 9.01);  (2) that murder is the unlawful killing of a human being with malice aforethought (CALJIC No. 8.10);  (3) that “malice” may be either “express” or “implied”;  (4) that malice is express when there is manifested an intent unlawfully to kill a person and implied when the killing results from an act involving a high degree of probability that it will result in death, which act is done for a base antisocial purpose and with wanton disregard for human life.  (CALJIC No. 8.11, as modified.3  )

Defendant relies primarily upon People v. Martinez (1980) 105 Cal.App.3d 938, 165 Cal.Rptr. 11, in support of the assertion that the malice component of section 217 4 is limited to express malice (i. e. intent-to-kill malice) and does not include implied malice (i. e. wanton malice).

In Martinez the court affirmed the order granting a new trial stating, “We agree that the appropriate murder definitions were given;  however, as previously noted, the jury was also instructed that they could find intent to kill, pursuant to CALJIC No. 8.31 by implication where the defendant did act with a high degree of probability that it would result in death;  and that malice could be implied if the killing was the result of the perpetration of an inherently dangerous felony.   The instructions were not merely inconsistent or confusing but would appear to inform the jury that although specific intent was an element of the crime, the intent could be implied from the facts of the case ․ that is not the law.”  (P. 945, 165 Cal.Rptr. 11.)

In the instant case, the court did not give CALJIC No. 8.31 or instruct that malice could be implied if the killing was the result of the perpetration of an inherently dangerous felony.

The Martinez opinion suggests that an intent to kill is essential to the offense of assault with intent to commit murder, and in that context the court noted that the case of People v. Mize (1889) 80 Cal. 41, 22 P. 80, has yet to be overruled.   In Mize the Supreme Court held it was error to instruct the jury an intent to murder would be established if the jury found the assailant aimed and fired a pistol at the victim with either deliberation and premeditation or reckless disregard of human life under circumstances likely to kill the defendant.  (P. 44, 22 P. 80.)   The court stated:  “It is doubtless true that, as a general rule, a man is presumed to have intended that which he has done, or that which is the immediate and natural consequence of his act, but where an act becomes criminal only when it has been performed with a particular intent, that intent must be alleged and proved ․  This charge withdrew from the jury the consideration of the question whether the defendants intended to kill [the victim].”  (Pp. 44–45, 22 P. 80.)   In Mize the court concluded that because defendants asserted self-defense, it was error to allow the jury to presume murderous intent simply as a consequence of the shooting.  (P. 45, 22 P. 80)5  Thus, the focus of error in Mize was upon the instruction which permitted the jury to infer murderous intent simply on the basis of the assault.

In People v. Heffington (1973) 32 Cal.App.3d 1, 107 Cal.Rptr. 859, this court stated:  “Assault with intent to commit murder is one form of attempted murder, but it is punishable under Penal Code section 217 rather than section 664.   The crime of assault with intent to commit murder requires proof of a specific intent to murder, but without regard to any distinction between first and second degree murder.  (See People v. Bernard, 28 Cal.2d 207, 214, 169 P.2d 636;  People v. Moles, 10 Cal.App.3d 611, 615–616, 89 Cal.Rptr. 226;  People v. Meriweather, 263 Cal.App.2d 559, 563, 69 Cal.Rptr. 880;  People v. Mason, 183 Cal.App.2d 168, 175, 6 Cal.Rptr. 649.)   Both first and second degree murder require existence of the state of mind known as malice;  aside from felony murder, a specific intent to kill is a necessary ingredient of first degree murder but not of second degree murder.  (People v. Conley, 64 Cal.2d 310, 320, 49 Cal.Rptr. 815, 411 P.2d 911;  People v. Gorshen, 51 Cal.2d 716, 730–732, 336 P.2d 492.)   Hence, it is incorrect to say that assault with intent to commit murder requires proof of specific intent to kill;  more accurately, one should speak of specific intent to commit murder.   (People v. Moles, supra, 10 Cal.App.3d at pp. 615–616 [89 Cal.Rptr. 226];  cf. People v. Sartain, 268 Cal.App.2d 486, 73 Cal.Rptr. 799, and cases cited.)”  (P. 11, 107 Cal.Rptr. 859.)

That analysis comports with pertinent statutory language.  Section 217 speaks of assault with intent to murder, not merely assault with intent to kill.   Section 187 defines murder as the unlawful killing of a human being with malice aforethought.   Section 188 explains that malice may be either express or implied.

In defining “implied malice” the Supreme Court has explained that, “murder may be committed without express malice, i. e., without a specific intent to take human life.   To be so committed, however, unless the felony-murder rule is applicable, ‘the defendant must intend to commit acts that are likely to cause death and that show a conscious disregard for human life.’  (People v. Thomas (1953) 41 Cal.2d 470, 479 [261 P.2d 1] (concurring opinion).)   In other words, to make possible a conviction of murder based on implied malice, there must first be a finding that although there was no deliberately formed and premeditated intent to kill, the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'  (People v. Phillips (1966) 64 Cal.2d 574, 587 [51 Cal.Rptr. 225, 414 P.2d 353].)  ․ [Thus in the case of killing by torture] [t]he defendant need not intend that his victim die as a result of the torture, since his intention to commit acts that involve a substantial risk to human life makes him guilty of first degree murder if a death results.  (People v. Tubby, supra, 34 Cal.2d 72, 77 [207 P.2d 51].)'  (People v. Thomas, supra, 41 Cal.2d 470, 478 [261 P.2d 1] (concurring opinion).)”  (People v. Mattison (1971) 4 Cal.3d 177, 182–183, 93 Cal.Rptr. 185, 481 P.2d 193.)

To summarize, murder may be committed either by a person who intends to kill or by a person who intends to commit an act or acts likely to cause death and who acts with conscious disregard for life.6  Although the second person may not care whether the victim lives or dies, he, as well as the first, may be convicted of murder pursuant to sections 187 and 188 if the victim dies.   In either case, if the victim survives, the assailant may be convicted of assault with intent to commit murder pursuant to section 217.  (See People v. Logan (1966) 244 Cal.App.2d 795, 797–798, 53 Cal.Rptr. 549.)   Accordingly, we hold it was not error for the court to instruct the jury on implied malice where defendant had been charged under section 217.7


 Defendant asserts various sentencing errors.   First he contends the probation officer incorrectly computed the state prison recommendation by double use of the same facts—the “armed” and “use” findings—for aggravation as well as enhancement.   However, the court specifically struck these findings as aggravating factors, and limited their application to enhancement.   There was no dual use by the court as prohibited by rule 441 of the California Rules of Court and section 1170, subdivision (b).  (See People v. Dozier (1979) 90 Cal.App.3d 174, 178, 153 Cal.Rptr. 53.)

 Defendant posits a similar argument with respect to other of the judge's stated reasons for imposing the upper term.   In reference to rule 421, subdivision (a)(3) the judge stated, “having been confronted in a public parking lot by two subjects suggests that the victims were vulnerable”, and in reference to subdivision (a)(8) the judge stated, “confronting the victims and demanding money from them suggests premeditation.”   Defendant contends “confrontation” was an element of the assault and therefore was improperly used as a factor in aggravation.   The contention is meritless.   The judge's first reference to confrontation was stated in the context of vulnerability, due to multiple assailants.   The second reference occurred in the context of premeditation indicating the assault was a purposeful, preplanned scheme;   “․ more than a random amalgamation of individuals ․”  (People v. Ramos (1980) 106 Cal.App.3d 591, 608–609, 165 Cal.Rptr. 179.)

A further factor in aggravation to which defendant objects was “the danger to the public and the police officers in the flight attempt, “because defendant was not driving the car.   Defendant testified he directed the driver to run the road block.   This certainly establishes his complicity in the dangerous escapade.

 Defendant disputes the court's determination the victims were “particularly vulnerable” (Cal. Rules of Court, rule 421(a)(3)), contending that the victims were young and healthy, Mariano having recently been discharged from military service.   We note the attack was late at night, in a somewhat isolated area, and defendant was assisted by an accomplice.   We discern no error.  (See People v. Ramos, supra, 106 Cal.App.3d at pp. 607–608, 165 Cal.Rptr. 179;  People v. Eades (1979) 95 Cal.App.3d 688, 689–690, 157 Cal.Rptr. 223.)

 Citing People v. Simpson (1979) 90 Cal.App.3d 919, 926–928, 154 Cal.Rptr. 249, defendant argues the trial court erroneously failed to consider defendant's alcoholism as a mitigating factor.   In Simpson defendant broke into a liquor store, taking $250 worth of liquor and cigarettes.   Probation reports revealed defendant suffered from alcoholism.   However, the court did not even consider defendant's alcoholism as a mitigating circumstance and therefore could not be viewed as having exercised its discretion.  (P. 927, 154 Cal.Rptr. 249.)   In the instant case there was no comparable evidence of alcoholism.   Defendant testified he had been drinking during the day in question.   The court considered this evidence, found defendant was not intoxicated at the time of the offense and accordingly refused to treat it as a mitigating circumstance.   No error appears.

 Also without merit is the contention the court should have ordered defendant committed to the California Youth Authority (CYA) instead of state prison.   Commitment to CYA was considered but rejected in light of defendant's many prior offenses and the trend of increasing seriousness.   We perceive no abuse in the exercise of discretion under Welfare and Institutions Code, section 1731.5.  (See People v. Martin (1980) 108 Cal.App.3d 1014, 1020–1021, 167 Cal.Rptr. 33;  People v. Hutson (1963) 221 Cal.App.2d 751, 754, 34 Cal.Rptr. 790.)

 Finally, defendant argues that although the court properly stayed execution of sentences on counts one, two and four (People v. Williams (1975) 51 Cal.App.3d 65), the court violated section 654 by using facts subsumed in those counts as aggravating circumstances.   We disagree.   Pursuant to section 1170, subdivision (b), the sentencing judge may consider circumstances in aggravation or mitigation of the crime.  “Circumstances” include “practically everything which has a legitimate bearing” on the matter in issue.  (People v. Guevara (1979) 88 Cal.App.3d 86, 93, 151 Cal.Rptr. 511.)   Section 654 does not prevent the sentencing judge from considering circumstances in aggravation of the unstayed sentence even where those circumstances comprise offenses for which separate sentences must be stayed pursuant to section 654.8

The judgment is affirmed.


1.   Unless otherwise indicated, statutory references are to the Penal Code.

2.   Disapproved on another point in People v. Flannel (1979) 25 Cal.3d 668, 684, footnote 12, 160 Cal.Rptr. 84, 603 P.2d 1.

3.   Deleted from CALJIC No. 8.11 was that part which states malice is implied “when the killing is a direct causal result of the perpetration or the attempt to perpetrate a felony inherently dangerous to human life.”

4.   Section 217 provided:  “Every person who assaults another with intent to commit murder, is punishable by imprisonment in the state prison for two, four, or six years.”   Section 217 was repealed by Stats.1980, ch. 300, § 2, p. 613.

5.   See People v. Mendenhall (1902) 135 Cal. 344, 67 P. 325.   Although a minority of the court concurred in the lead opinion which addressed substantially the same issue presently under discussion, a judgment of conviction under section 217 was affirmed despite an instruction on implied malice.   The opinion stated Mize was not controlling on the issue of implied malice and limited Mize to the holding that it is error to instruct that “there may be murder in either degree without an intent to kill when there is an attempt to perpetuate some other felony.”  (P. 348, 67 P. 325.)   In the instant case no such instruction was given.

6.   Implied malice does not translate to implied intent to kill.   Implied malice connotes a specific mental state encompassing these elements:  Knowledge that the act involves a high probability that death will result;  a specific intent to do the act despite such knowledge;  a base, antisocial purpose with wanton disregard for human life.

7.   To the extent that People v. Martinez, supra, 105 Cal.App.3d 938, 165 Cal.Rptr. 11 suggests that a conviction under section 217 is sustainable only where the jury finds express malice we disagree.   We are cognizant of but not compelled by other authorities which likewise suggest that an intent to kill is required.  (See e. g., Perkins on Criminal Law (1969) chapter 6, section 3, p. 573;  La Fave & Scott, Criminal Law, ch. 6, pp. 428, 429.)

8.   Cf. People v. Cortez (1980) 103 Cal.App.3d 491, 496, 163 Cal.Rptr. 1, and People v. Guevara, supra, 88 Cal.App.3d at pages 92–94, 151 Cal.Rptr. 511.   Where facts regarding dismissed counts are transactionally related to the offense to which a defendant pleads guilty, such facts may be considered in aggravation.

CARR, Associate Justice.

PARAS, Acting P. J., concurs. REYNOSO, J., concurs in the result.