Opinion
H029201
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. RAMESH RAMDATH JAGASSAR et al., Defendants and Appellants.
Defendants Ramesh Ramdath Jagassar and Lookman Ramoutar appeal a judgment of conviction for conspiracy to obstruct justice and perjury. The charges arose from testimony given by both defendants in a prior divorce proceeding between defendant Ramoutar and his wife, Julie Turner. At the divorce trial, Ramoutar testified that he had been robbed of $47,000. Ramoutars friend, Jagassar, testified that he participated in the robbery, which he alleged was planned by Turner and her boyfriend. Jagassar claimed he was to act as the "look-out" for the robbery that would be carried out by a hired man. The present appeal is of the criminal case in which the prosecution asserted defendants testimony in the divorce trial was perjury.
Defendants assert two claims on appeal. The first is that the trial court committed reversible error by failing to instruct the jury on specific intent to commit the crime of obstruction of justice. In addition, defendants assert the trial court erred by imposing the court security fee pursuant to Penal Code section 1465.8. Finding no error, we affirm.
BACKGROUND
Turner and Ramoutar were married in 1979, and experienced marital problems off and on for a period of years. In October 1995, Turner left the family home, and Ramoutar remained to care for the couples two daughters and his 17-year-old son from a previous relationship, Christopher ("Chris") Ramoutar. A few days after Turner left, Ramoutar told Chris to skip school and to meet him at the Orchard Supply Hardware store in San Jose. Chris did as his father asked, and met Ramoutar at the store around 8:00 a.m.
From the parking lot of Orchard Supply Hardware, Chris and Ramoutar drove to several banks, with Chris waiting as his father went into each. At the last bank, located at the Pruneyard Shopping Center in Campbell, Ramoutar emerged from the bank with a canvas bag.
Around noon that same day, Ramoutar and Chris went to the Santa Clara Animal Shelter, where Ramoutar obtained a rabbit. The two then went to the parking lot of a local restaurant, where Ramoutar ordered Chris to kill the rabbit. Chris refused, and Ramoutar eventually killed the rabbit, obtaining a container full of rabbit blood before discarding the rabbit in a dumpster.
The two then went to the First Baptist Church in Milpitas, where Ramoutar told Chris to hide the money from the banks in a crawlspace under the church. Ramoutar told Chris the money was to be kept from Turner.
After hiding the money, Ramoutar and Chris went back to the Pruneyard Shopping Center and parked. When they arrived, Ramoutar asked Chris to hit him in the face so it would appear he had been mugged. Chris eventually complied, and Ramoutar told him to go home. Chris told no one of his involvement in the bogus robbery for two years.
After Chris left, Ramoutar called the police to report a robbery. Officer Tejero of the Campbell Police Department responded to the call. Ramoutar told him he had been taking money out of banks all day and was robbed at his last stop. Ramoutar told Tejero the robber had come up to him asking for directions and then took out a gun and demanded that he be let into Ramoutars car. Once inside the car, the robber told Ramoutar to drive to the west end of the Pruneyard parking lot near Highway 17. The robber then took the bag of money, hit Ramoutar on the head with the pistol, jumped the fence, and was last seen on the embankment of Highway 17.
Tejero was suspicious of Ramoutars story from the outset, based on Ramoutars shabby dress and inexpensive car, as well as the condition of the fence Ramoutar claimed the robber scaled. Although he had reservations about the account, Tejero took Ramoutars report of the robbery, and alerted the California Highway Patrol.
Sergeant Chris Milosovich was assigned to investigate the robbery. Like Tejero, Milosovich was skeptical of Ramoutars story, because of his calm demeanor when reporting the robbery and his later failure to call for information about the status of the investigation. Milosovich also thought the amount stolen in the robbery was "unusual." After doing some investigation, but developing no other leads, Milosovich left the case open.
Ramoutar left California in December 1995 and did not return until the following December. In the interim, Turner obtained a default judgment in her divorce from Ramoutar.
In 1997, the default judgment was set aside. Chris opened up to Turner about his involvement in the bogus robbery and asked to speak to the police. Chris talked to Milosovich and told him about the events on the day of the alleged robbery and that Ramoutar had the entire thing planned in advance. Milosovich requested that the district attorney file a complaint against Ramoutar for a violation of section 148.5, filing a false police report. The complaint never issued.
The divorce trial took place in 2001. In that action, Ramoutar and his close friend, defendant Jagassar, testified that Turner and her then boyfriend Bolen planned a robbery of Ramoutar that occurred at the Pruneyard Shopping Center in October 1995. Jagassar testified that Turner and Bolen planned the robbery, and the robbery was carried out by a hired man named John Harris. Jagassar claimed he was the "look-out" and that he and Turners son, Anthony, were in a car and picked Harris up on Highway 17 after the robbery. Later, all five of them met at the First Baptist Church in Milpitas to split the money.
Turner first heard the accusations of her involvement in the robbery during the divorce trial, and denied them. Milosovich first saw Jagassar at the divorce trial. Ramoutar never mentioned Jagassar during the investigation of the robbery, and Jagassar never came forward to report his claim of a robbery conspiracy involving Turner and Bolen.
Chris also testified during the divorce proceedings, and explained his involvement in Ramoutars bogus robbery plan.
As a result of testimony about the robbery given in the divorce trial, both Ramoutar and Jagassar were charged by indictment with conspiracy to obstruct justice (§ 182, subd. (a)(5)) and perjury (§ 118). Following the filing of the indictment in this case, Jagassar and Ramoutar were tried and convicted on all counts. The court suspended imposition of sentence and placed defendants on three years of probation, with a county jail term.
DISCUSSION
On appeal, defendants assert the trial court committed reversible error by failing to instruct the jury on specific intent to commit the crime of obstruction of justice, and the trial court erred by imposing the court security fee pursuant to section 1465.8.
I. Instructional Error
Defendants argue the conspiracy instruction omitted the specific intent element, thereby violating their right to due process.
The jury was given a modified version of CALJIC 6.10, the general instruction on conspiracy. The instruction stated: "a conspiracy is an agreement entered into between two or more persons with the specific intent to conspire to pervert or obstruct justice followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement."
The instruction omitted a clause from the first paragraph of CALJIC 6.10. In particular, the omitted language, which should have followed the word "justice," provided that "and with the further specific intent to commit that crime." (CALJIC No. 6.10, italics added.) Relying upon People v. Marks (1988) 45 Cal.3d 1335, 1345, defendants claim the omission deleted the specific intent requirement for conspiracy and that therefore defendants conspiracy conviction should be reversed.
In People v. Marks, supra, 45 Cal.3d 1335, the court stated, "The court instructed the jury with CALJIC No. 6.10 (1974 rev.), which states in part: `A conspiracy is an agreement entered into between two or more persons with the specific intent to agree to commit the public offense of murder . . . . The court on its own motion and without explanation deleted from the standard instruction the additional required language in the instruction that the agreement must be `with the further specific intent to commit such offense. (Italics added [by Marks].) Conspiracy requires a dual specific intent: `(a) the intent to agree, or conspire, and (b) the intent to commit the offense, which is the object of the conspiracy. (People v. Horn (1974) 12 Cal.3d 290 . . . .) This dual intent is carefully explained in the Use Note to CALJIC No. 6.10. We can only speculate as to why the trial court chose to modify the standard instruction. As a result of the deletion, the instruction was silent as to the intent required to commit the underlying crime of murder. We caution the trial court not to modify the standard instruction in the event of retrial." (Id. at p. 1345.)
Marks was followed byPeople v. Miller (1996) 46 Cal.App.4th 412, disapproved on other grounds in People v. Cortez (1998) 18 Cal.4th 1223, 1240. In Miller, gang members shot at police officers. One of the gang members alleged to be a shooter (a finding rejected by the jury) as well as other gang members got into the defendants car after the shooting. The defendant was charged with attempted murder and conspiracy to commit a premeditated and deliberated murder. The Miller court held it was reversible error to omit the "with the further specific intent" language because the court had specifically limited the murder and premeditated and deliberated instructions to the attempted murder charges; the jurors were not told that the conspiracy charge required the defendant to intend to kill the officers, and were not instructed on premeditation and deliberation in the context of the conspiracy.
It is important to note that, although in Marks and Miller the judgments were reversed based on the error in the conspiracy instruction, they are factually distinguishable from the present case. In both Marks and Miller there were other instructional errors in addition to the conspiracy instruction error. The combined instructional errors in those cases presented a danger that the jury could have returned a guilty verdict even if they found the defendant did not join the conspiracy until after the target crime had occurred. Unlike Marks and Miller, here there were no additional errors in the conspiracy instructions, nor was there a failure to instruct the jury on the elements of the target offense. Further, no instructions were given that suggested that an individual could be convicted of a conspiracy that he joined after the target offense had occurred.
And, in the present case, in addition to instructing the jury on conspiracy, the court also instructed the jury on the elements of the obstruction of justice, reminded the jury that defendants had been charged with conspiracy to commit that crime, and thus reinforced the need to find defendants intended to commit the obstruction of justice.
In analyzing claims of instructional error, we apply the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Flood (1998) 18 Cal.4th 470, 490 [applying Watson standard in determining whether instruction removed an element of the crime from the jurys consideration].) Under Watson, reversal is warranted only on a determination that it is reasonably probable that defendant would have obtained a more favorable result in the absence of any error. (People v. Watson, supra, 46 Cal.2d at pp. 836-838.) As a general rule, " `if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis. . . . Where a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. [Citations.]" (People v. Flood, supra, at p. 492, quoting Rose v. Clark (1986) 478 U.S. 570, 579.) Instructional error such as that claimed here is "ordinary trial error whose prejudicial effect may be assessed in light of the entire record." (People v. Flood, supra, at p. 503.)
In this case, after reviewing the entire trial record, we conclude that defendants guilt was established beyond a reasonable doubt. We do not find it reasonably probable that a more favorable result would have occurred had the court separately instructed as to the specific intent to agree and the specific intent to obstruct justice. Moreover, in addition to finding that defendants had committed an act of perjury in furtherance of a conspiracy, the jury found also found that defendants were guilty of the crime of perjury, a specific intent crime. In light of that conclusion, we find no prejudice from the asserted instructional error. (People v. Flood, supra, 18 Cal.4th at p. 492.)
II. Retroactivity
Defendants assert that the trial court erred in imposing a $ 20 security fee under section 1465.8, because the incident on which the conviction is based occurred before the effective date of the statute. Defendants argument is based on section 3, which provides: "No part of [the Penal Code] is retroactive, unless expressly so declared." This, defendants contend, prohibits the retroactive application of a law in the absence of a clear indication by the Legislature that it intended the law to be applied retroactively.
Section 1465.8, which applies a $20 court security fee to "every conviction for a criminal offense" (§ 1465.8, subd. (a)(1)), was enacted August 2, 2003, and became effective on August 17, 2003. (Stats. 2003, ch. 159, §§ 25, 27, p. 1513.) The crime in this case occurred in June 2001, and defendant convicted on July 1, 2005. The court stayed imposition of sentence on August 5, 2005.
"It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise." (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) If the wording of the statue is unclear, the legislative history must "clearly" indicate that the Legislature intended the law to be retroactive in order for it to have retroactive application. (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 221-222.)
Citing People v. Grant (1999) 20 Cal.4th 150, 157, the Attorney General argues that the critical question for determining retroactivity is "whether the last act or event necessary to trigger application of the statute occurred before or after the statutes effective date." Grant involved the crime of continuous sexual abuse of a child, as defined in section 288.5. One of the elements of that crime is the commission of "three or more acts of substantial sexual conduct" over a specified period of time. (§ 288.5, subd. (a).) The appellate court concluded that the defendant could be convicted "only if the course of conduct constituting the offense of continuous sexual abuse was completed after the new law became effective. Because the last act necessary to trigger application of section 288.5 was an act of molestation that defendant committed after section 288.5s effective date, defendants conviction was not a retroactive application of section 288.5 and therefore not a violation of the statutory prohibition against retroactive application of the Penal Code." (People v. Grant, supra, 20 Cal.4th at p. 158.)
In this case, the Attorney General asserts that for the purposes of imposing the security fee pursuant to section 1465.8, the last act necessary to trigger application of the statute is a conviction. The case of People v. Bailey (2002) 101 Cal.App.4th 238 supports this position. In Bailey, this court held a gang registration requirement could be imposed as a condition of probation under section 186.30 where the conviction occurred after the effective date of the statute, even though the offenses were committed before its enactment. In addressing the defendants retroactivity challenge, the court stated: "Section 3 provides that no part of the Penal Code is retroactive unless `expressly so declared. The Supreme Court has construed this language to include either `an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citations.] We believe that the Legislature expressed its intent that the registration requirement `apply to any person convicted in a criminal court of certain offenses. (§ 186.30.) Because defendant was convicted after the effective date of section 186.30, the law applies to him." (Id. at p. 243.)
Section 1465.8 expressly applies to "any person convicted in a criminal court." Under the analysis set forth in Bailey, defendants conviction in 2005 after the statutes effective date in 2003 would qualify for imposition of the security fee. The trial court did not err in imposing this fee.
DISPOSITION
The judgment is affirmed.
We Concur:
Premo, Acting, P.J.
Elia, J. --------------- Notes: All further statutory references are to the Penal Code.