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State Of Oklahoma v Julio Juarez Ramos

S-2013-510

Filed: Jun. 9, 2015

Not for publication

Prevailing Party: State Of Oklahoma

Summary

Julio Juarez Ramos and Isidro Juarez Ramos were accused of murdering Antonio Lopez Velasquez in Oklahoma. They argued that their statements to police should be kept out of court, saying they weren’t told about their rights. Initially, a district court agreed, but then decided they were immune from prosecution under the "Stand Your Ground" law because they acted in self-defense when Velasquez entered their home unlawfully. The State of Oklahoma appealed this decision, claiming the court shouldn't have dismissed the charges. The Oklahoma Court of Criminal Appeals said the State couldn't appeal the district court's order because the law only allows appeals in certain circumstances. The court agreed that the Ramos brothers were justified in their actions and upheld the district court’s decision, letting them go free. There were disagreements among the judges about whether the State should be allowed to appeal at all. State of Oklahoma appealed his conviction for murder. Conviction and sentence were affirmed. Judge Lumpkin dissented.

Decision

The Order and Judgment of the District Court of Woodward County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there a violation of the Vienna Convention on Consular Relations (VCCR) regarding the suppression of the Appellees' statements to police?
  • Did the Appellees waive their rights to remain silent and consult with counsel before custodial interrogation, thus affecting the application of Miranda v. Arizona?
  • Was the District Court's ruling on Appellees' motions to dismiss the charges based on the statutory immunity from prosecution provided by the Stand Your Ground law justified?
  • Is there statutory authority for the State to appeal a ruling granting Stand Your Ground immunity under 21 O.S.Supp.2006, section 1289.25?
  • Did the Appellees qualify for the protections of the Stand Your Ground law despite being non-citizens of the United States?
  • Was the State's argument that the Appellees were engaged in unlawful activity at the time of the victim's death a valid reason to deny benefits under the Stand Your Ground law?
  • Did the District Court's decision to grant immunity involve the proper application of evidentiary facts beyond the face of the information?
  • Is the order granting immunity from prosecution a legal bar against future prosecution, and how does it affect the State's appeal rights?
  • Can a defendant seek pre-trial appellate review of a denial of Stand Your Ground immunity through a petition for writ of prohibition?
  • Is the standard for a defendant to prove entitlement to Stand Your Ground immunity by a preponderance of the evidence?

Findings

  • the court erred in affirming the suppression of statements due to insufficient waiver of rights under Miranda
  • the court erred in affirming the dismissal of the charges based on immunity under the Stand Your Ground law
  • the court erred in accepting state appeals regarding the sufficiency of evidence supporting the applicability of Stand Your Ground immunity
  • the court found that the order dismissing the charges was not appealable under section 1053
  • the court held that the burden of proof for Stand Your Ground immunity lies with the defendant
  • the court stated a defendant must assert entitlement to Stand Your Ground immunity before trial, or the immunity is waived
  • the court ruled that an individual does not lose Stand Your Ground immunity based solely on immigration status
  • the district court's order granting immunity barred further prosecution and rendered the State's appeal moot
  • the court affirmed the order and judgment of the District Court of Woodward County

S-2013-510

Jun. 9, 2015

State Of Oklahoma

Appellant

v

Julio Juarez Ramos

Appellee

SUMMARY OPINION

The State of Oklahoma, Appellant, appeals two rulings of the District Court of Woodward County. Appellees, Julio Juarez Ramos and Isidro Juarez Ramos, were jointly charged with committing the first-degree murder of Antonio Lopez Velasquez on or about May 16, 2009. Appellees were bound over for trial after preliminary examination. In district court, Appellees moved to suppress their statements to police, citing the investigating officers’ failure to advise them of their rights under the Vienna Convention on Consular Relations (VCCR). The district court initially suppressed Appellees’ statements for violations of the VCCR, but this Court reversed. State v. Ramos, 2013 OK CR 3, 297 P.3d 1251.

Appellees then moved to suppress their statements on grounds that they did not waive their rights to remain silent and consult with counsel before custodial interrogation, and the use of their resulting statements violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Following a May 16, 2013, hearing, the district court granted the Appellees’ motions to suppress their statements. The State again appealed. We initially accepted jurisdiction of the appeal under Title 22, O.S.2011, section 1053 (5). On August 26, 2014, this Court retained jurisdiction of the State’s appeal but remanded for further proceedings on Appellees’ then-pending motions to dismiss the charges based on the statutory immunity from prosecution provided by 21 O.S.Supp.2006, section 1289.25, the so-called Stand Your Ground law.

On September 8, 2014, the district court conducted a further hearing and granted Appellees’ motions to dismiss the charges of murder, finding Appellees were immune from prosecution. The State of Oklahoma now appeals this ruling as well. Appellees argue there is no statutory authority for a State appeal from an order granting Stand Your Ground immunity from prosecution under section 1289.25. Oklahoma’s Stand Your Ground law provides that a person using lethal defensive force is presumed to have held a reasonable fear of imminent peril of death or great bodily harm from an intruder who unlawfully and forcibly entered or was entering a dwelling, residence, or occupied vehicle; or had removed or was attempting to remove someone from the dwelling, residence, or occupied vehicle against their will, where the person knew or had reason to believe an unlawful forcible entry or removal was occurring or had occurred. § 1289.25 (B)(1) and (2).

Section 1289.25 (F) created the statutory immunity from prosecution that gives rise to the instant appeal: A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term ‘criminal prosecution’ includes charging or prosecuting the defendant (emphasis added).

The State’s right of appeal to this Court rests upon statutory authority; it exists only when expressly authorized, City of Elk City v. Taylor, 2007 OK CR 15, 7, 157 P.3d 1152, 1154; and cannot be enlarged by construction. State V. Sayerwinnie, 2007 OK CR 11, I 4, 157 P.3d 137, 138. Title 22, O.S.2011, section 1053, provides that the State may appeal in the following cases and no other:
1. Upon judgment for the defendant on quashing or setting aside an indictment or information;
2. Upon an order of the court arresting the judgment;
3. Upon a question reserved by the state or a municipality;
4. Upon judgment for the defendant on a motion to quash for insufficient evidence in a felony matter;
5. Upon a pretrial order, decision, or judgment suppressing or excluding evidence where appellate review of the issue would be in the best interests of justice; and
6. Upon a pretrial order, decision or judgment suppressing or excluding evidence in cases alleging violation of any provisions of Section 13.1 of Title 21 of the Oklahoma Statutes.

The State’s right to appeal is determined by whether the order of dismissal based on Stand Your Ground immunity falls within these statutory provisions. Considering the relevant provisions, we first conclude that the order appealed here is not a judgment for the defendant on quashing or setting aside an indictment or information, appealable by the State under section 1053 (1).

In State v. Hammond, 1989 OK CR 25, 775 P.2d 826, the Court held that 22 O.S., section 493 is the sole statutory authority for the setting aside of an information or indictment, and has been strictly construed to remedy defects evident on the face of the information and certain errors in the grand jury process. Further, an order setting aside the information under section 493 is no bar to a further prosecution for the same offense by a technically proper criminal information. 22 O.S.2011, § 501.

We also conclude that the trial court’s order is not a judgment for the defendant on a motion to quash for insufficient evidence in a felony matter appealable under section 1053 (4). The defendant’s burden on such a motion is to establish beyond the face of the indictment or information that there is insufficient evidence to prove any one of the necessary elements of the charged offense. 22 O.S.2011, § 504.1(A). However, the Legislature also limited the scope of this remedy, providing that judgment for the defendant on a motion to quash for insufficient evidence shall not be a bar to a further prosecution for the same offense. § 504.1 (D) (emphasis added).

By contrast, Appellees’ claim of immunity under the Stand Your Ground law involves the adjudication of evidentiary facts beyond the face of the information; and the order finding that Appellees are immune clearly bars further prosecution. The district court’s order granting Stand Your Ground immunity is neither a judgment setting aside the information nor a judgment quashing it for insufficient evidence subject to its re-filing at some future date, either of which would be appealable under sections 1053 (1) and (4). The immunity granted by the Stand Your Ground law bars further criminal prosecution, which the statute defines as charging or prosecuting the defendant for the use of force. § 1289.25 (F). An order granting immunity does not merely set aside or quash the information for a facial defect or insufficient evidence. Such an order assumes the charging information is in proper form and represents a judicial finding that the use of force was justified under the statute and not criminally prosecutable.

In State v. Campbell, 1998 OK CR 38, 965 P.2d 991, the Appellee in a non-jury trial moved to dismiss a charge of escape, arguing that any further prosecution was barred by the constitutional prohibition against double jeopardy. At the close of the State’s case, the trial court agreed and dismissed the case on grounds of former jeopardy. The State appealed, and Appellee moved to dismiss the appeal as unauthorized by section 1053. The Court held:

[T]he State can only bring this appeal if it is authorized by one of the limited instances listed in Section 1053 of Title 22 of the Oklahoma Statutes. This statutory authority cannot be enlarged by construction. The Legislature has not written an express provision for the State to appeal from an order of the trial court sustaining a plea of former jeopardy and dismissing the defendant. The question is whether this appeal falls within one of the authorized appeals.

The Court in Campbell found, as we do here, that the district court’s dismissal of the charge on the ground of former jeopardy was not entered as a result of a motion to quash or set aside the indictment or information, and thus could not be appealed under section 1053 (1).

The State argued, in the alternative, that section 1053 (3) authorized its appeal of a reserved question of law. The Court agreed:

To pursue such an appeal, there must be a judgment of acquittal or an order of the court which expressly bars further prosecution. In this case, the District Court found Appellee’s double jeopardy rights were being violated and held that further prosecution of Case No. CF-96-71 was barred. Therefore, there is no limitation precluding the State from appealing, on a reserved question of law, the District Court’s order holding that the State’s criminal prosecution of Appellee was a violation of double jeopardy (emphasis added).

The district court’s order in the present case and the order dismissing the charge on grounds of double jeopardy in Campbell both involved a legal bar to further prosecution, for which the only State appeal currently authorized is a reserved question of law. § 1053 (3).

We decline to enlarge section 1053 by construction. The Legislature may broaden our authority to review Stand Your Ground dismissals by statutory amendment if it chooses. This Court’s limited authority to review such orders vests trial courts with a formidable power to dismiss charges for allegedly criminal assaults, batteries, and homicides, but this is nothing new. We trust that trial courts do not lightly exercise the power to grant immunity from criminal prosecution, and leave the wisdom of this policy for the judgment of the Legislature.

This case presents some additional unresolved procedural questions concerning pre-trial claims of Stand Your Ground immunity. Title 21, section 1289.25 (G) provides that law enforcement officials may use standard procedures for investigating the use of force, and may not arrest the person for using force without probable cause that the force that was used was unlawful. The statute thus establishes probable cause that the use of force was unlawful as a sufficient ground to arrest and detain a person to answer a charge arising from the use of force.

Where the charge is a felony, absent a waiver by the defendant, a magistrate must conduct a preliminary examination and order the defendant held to answer if the evidence shows sufficient cause, which is equivalent to probable cause, to believe the defendant guilty of an offense. Okla. Const. art. II, § 17; 22 O.S.2011, §§ 258 (7), 264; State V. Heath, 2011 OK CR 5, 1 7, 246 P.3d 723, 725. We therefore hold that a person can be arrested, charged, and held to answer a criminal charge for a use of force allegedly authorized by section 1289.25 based upon probable cause that the use of force was unlawful.

We also hold that a defendant must assert entitlement to Stand Your Ground immunity before trial, or the immunity is waived. State U. Jones, 311 P.3d 1125, 1130-1133 (Kan. 2013). The claim of immunity is properly presented at district court arraignment by the defendant filing a motion to dismiss and request for evidentiary hearing. At the hearing, the trial court should consider relevant evidence and argument, and determine whether the defendant can show, by a preponderance of the evidence, that the use of allegedly defensive force warrants Stand Your Ground immunity.

Because immunity from prosecution is effectively lost if the defendant is erroneously forced to stand trial, a defendant may seek pre-trial appellate review of a trial court’s denial of Stand Your Ground immunity by filing a petition for writ of prohibition in this Court. Todd V. Lansdown, 1987 OK CR 167, IT 8, 747 P.2d 312, 315 (granting writ of prohibition to prohibit trial of murder charge in violation of double jeopardy); Sussman v. District Court, 1969 OK CR 185, 455 P.2d 724 (granting timely filed application for writ of prohibition where prosecution was barred by former jeopardy).

Failure to timely seek pre-trial appellate review of the denial of Stand Your Ground immunity waives the issue.

We now turn to the questions reserved for appeal by the State. The State of Oklahoma argued three propositions to the district court in opposing the Appellees’ request for immunity:
1. The Appellees were not citizens of the State of Oklahoma and as a result are not entitled to the benefit of the Stand Your Ground law;
2. At the time of the victim’s death the Appellees were engaged in an unlawful activity and as a result are not entitled to benefit from the provisions of the Stand Your Ground law;
3. The Appellees have not shown an unlawful and forcible entry and as a result are not entitled to the benefit of the Stand Your Ground law.

In its supplemental brief, the State argues for the first time on appeal that the district court lacked jurisdiction to enter a ruling on remand from this Court because the court retained jurisdiction of the State’s earlier appeal. We summarily reject this argument. This Court retained jurisdiction of the State’s appeal of the ruling suppressing evidence and remanded for further proceedings on the Stand Your Ground motions then pending before the trial court. This Court’s remand order did not limit the trial court’s jurisdiction to enter a judgment on Appellees’ pending motions.

Given the limited scope of our review, the State’s third argument provides a logical starting point. The State argued below that the Appellees had not shown an unlawful and forcible entry, and therefore were not entitled to the benefit of the Stand Your Ground law. In State v. Anderson, 1998 OK CR 67, 972 P.2d 32, we addressed a reserved question of law concerning whether an invited guest was an occupant whose use of deadly force against an intruder was entitled to statutory protection under an earlier version of section 1289.25, then known as the Make My Day law.

We there noted that a state appeal on a reserved question of law does not address any part of the trial or proceedings except the precise legal issue reserved. If we should undertake to determine the applicability of the law to a given set of facts, we would constantly be engaged in a re-trial of every case involving an acquittal. This, in the Court’s opinion, was not the purpose of giving the State the right to appeal upon a Reserved Question of Law.

The Appellee in Anderson had been acquitted by a jury, but we find a similar limitation on our review of the court’s application of law to facts applies here, especially given the absence of any statutory appellate authority to reverse the judgment granting immunity. The district court, applying the correct version of the statute, found from the evidence that the decedent forcefully entered the residence without permission of the Appellees, at which point the Appellees used presumptively justified force against him as permitted by the Stand Your Ground law. This determination clearly involves the trial court’s application of the governing law to a given (and disputed) set of evidentiary facts. We find the correctness of this decision is beyond the scope of a reserved question of law, and provides no basis for relief.

The State’s two remaining arguments concern the general application of the statute. Citing the statutory preamble in section 1289.25(A), where the Legislature recognized that the citizens of the State of Oklahoma have a right to expect absolute safety within their homes, the State argued that only citizens of the State of Oklahoma are entitled to immunity for authorized uses of force under the Stand Your Ground law. We disagree. In Anderson, we said the following about the Legislature’s use of the term occupant in an earlier version of the statute:

Reading the statute in its entirety, we find it a study in contradiction or compromise. The preamble seems to clearly set forth the intent of the law-that the citizens of the State of Oklahoma have a right to expect absolute safety within their own homes. However, the terms resident, homeowner or other such restrictive terms were not used in the remainder of the statute. Likewise, the all encompassing term any person was not used (emphasis added).

The 2006 version of the statute applied in this case is broader in scope and uses the very all encompassing term we mentioned in Anderson: Any person who knew or had reason to believe that an unlawful and forcible act was occurring or had occurred is justified in using defensive force against an unlawful intruder defined by the statute. § 1289.25(B)(2). Despite the preamble’s mention of the safety of citizens, the substantive law draws no distinctions based on citizenship. We will not force upon the statute a meaning contrary to its plain language.

The State next argues that Appellees are excluded from the protections of the Stand Your Ground law because they are foreign nationals who entered and were present in the United States without permission at the time of the use of force. The State points to language in the statute providing that the presumption of justifiable force granted in subsection 1289.25(B) does not apply if the person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, occupied vehicle, or place of business to further an unlawful activity. § 1289.25(C)(2). We considered the meaning of this language in Dawkins U. State, 2011 OK CR 1, 252 P.3d 214, and found the defendant’s illegal possession of a sawed-off shotgun used in the deadly force incident was unlawful activity sufficient to deny the protection of the Stand Your Ground law.

Though the Court rejected any requirement of a causal nexus between the illegal activity and the use of force, we also said that not every infraction of the law would vitiate the protections of the statute:

[T]he Legislature’s intent was to exclude from the benefit of this statute persons who are actively committing a crime, not persons who have or may have committed a crime in the past. Examples of current crimes include, but are not limited to, use of an illegal weapon in commission of the homicide, possession of illegal drugs on the premises, or an ongoing assault by the defendant against another person in the residence.

[T]he Legislature did not intend to prohibit use of the right of defense to persons who may have committed minor infractions of the law. Examples of such infractions include, but are not limited to, persons who are illegally parked or have outdated vehicle registration, have outstanding warrants for minor offenses, or are in arrears with child support payments.

Contrary to Appellant’s argument, [a]s a general rule, it is not a crime for a removable alien to remain present in the United States. Arizona v. United States, 567 U.S. 132 S.Ct. 2492, 2505, 183 L.Ed.2d 351 (2012)(citing INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984)).

We see an important difference between a foreign national’s immigration status and an activity involving the illegal use of weapons, drugs, violence, or the premises sufficient to warrant the statutory exclusion. The district court found that the Appellees were gainfully employed and renting their residence when the decedent unlawfully and forcibly entered. The court found no evidence that criminal activity was ongoing in the residence, or that it served as other than the Appellees’ home. The trial court properly found that Appellees’ status as undocumented foreign nationals provided no statutory basis for denying the protections of the Stand Your Ground law in the use of force against an intruder.

The district court’s dismissal of the charges of murder on the basis of immunity from criminal prosecution renders the State’s appeal of the order suppressing evidence moot. We therefore decline to address the issues presented in that aspect of the appeal.

DECISION

The Order and Judgment of the District Court of Woodward County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

**APPEARANCES AT TRIAL**
LARRY MONARD
P.O. BOX 5440
OKLAHOMA CITY, OK 73154
DISTRICT ATTORNEY

A.J. LAUBHAN
1600 MAIN ST., STE. 5
WOODWARD, OK 73801
ATTORNEY FOR ISIDRO RAMOS

CHRISTOPHER M. BORING
DISTRICT ATTORNEY
1600 MAIN ST., STE. 5
WOODWARD, OK 73801
ATTORNEYS FOR APPELLANT

NEWELL WRIGHT
P.O. BOX 1494
CLINTON, OK 73601
ATTORNEY FOR JULIO RAMOS

JAMES LOCKARD
P.O. BOX 926
NORMAN, OK 73070-0926
ATTORNEY FOR ISIDRO RAMOS

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Footnotes:

  1. State v. Ramos, 2013 OK CR 3, 297 P.3d 1251.
  2. 21 O.S.Supp.2006, § 1289.25.
  3. Laws 2011, Ch. 106, § 1.
  4. City of Elk City v. Taylor, 2007 OK CR 15, 7, 157 P.3d 1152, 1154.
  5. State v. Sayerwinnie, 2007 OK CR 11, I 4, 157 P.3d 137, 138.
  6. 22 O.S.2011, § 493.
  7. 22 O.S.2011, § 504.1.
  8. State v. Hammond, 1989 OK CR 25, 775 P.2d 826.
  9. State v. Young, 1994 OK CR 25, 874 P.2d 57.
  10. 22 O.S.2011, § 501.
  11. 22 O.S.2011, §§ 258 (7), 264;
  12. Okla. Const. art. II, § 17.
  13. State v. Heath, 2011 OK CR 5, 1 7, 246 P.3d 723, 725.
  14. State U. Jones, 311 P.3d 1125, 1130-1133 (Kan. 2013).
  15. Guenther v. State, 740 P.2d 976 (Colo. 1987).
  16. Black's Law Dictionary, 751 (6th ed. 1990).
  17. Dawkins v. State, 2011 OK CR 1, I 14, 252 P.3d 214, 219.
  18. Arizona v. United States, 567 U.S. 132 S.Ct. 2492, 2505, 183 L.Ed.2d 351 (2012).
  19. 21 O.S.Supp.2006, § 1289.25(F).

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 701.8 (2011) - Homicide
  • Okla. Stat. tit. 21 § 1289.25 (2011) - Stand Your Ground Law
  • Okla. Stat. tit. 22 § 1053 (2011) - State Appeal
  • Okla. Stat. tit. 22 § 493 (2011) - Setting Aside Indictments
  • Okla. Stat. tit. 22 § 504 (2011) - Motion to Demur
  • Okla. Stat. tit. 22 § 504.1 (2011) - Motion to Quash for Insufficient Evidence
  • Okla. Stat. tit. 22 § 258 (2011) - Preliminary Examination
  • Okla. Stat. tit. 22 § 264 (2011) - Cause for Arrest
  • Okla. Stat. tit. 21 § 1289.25 (G) (2011) - Investigation Procedures
  • Okla. Const. art. II, § 17 - Rights of the Accused
  • Okla. Stat. tit. 21 § 701.10b (2011) - Capital Offense Procedures
  • Okla. Stat. tit. 22 § 1175.4 (2011) - Incompetency Proceedings

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

  • State v. Ramos, 2013 OK CR 3, 297 P.3d 1251
  • City of Elk City v. Taylor, 2007 OK CR 15, 7, 157 P.3d 1152, 1154
  • State v. Sayerwinnie, 2007 OK CR 11, I 4, 157 P.3d 137, 138
  • State v. Hammond, 1989 OK CR 25, 775 P.2d 826
  • State v. Young, 1994 OK CR 25, 874 P.2d 57
  • State v. Robinson, 1975 OK CR 237, I 5, 544 P.2d 545
  • State v. Campbell, 1998 OK CR 38, 965 P.2d 991
  • City of Norman v. Taylor, 2008 OK CR 22, I 8, 189 P.3d 726
  • State v. Heath, 2011 OK CR 5, I 7, 246 P.3d 723
  • State U. Jones, 311 P.3d 1125, 1130-1133 (Kan. 2013)
  • Guenther v. State, 740 P.2d 976 (Colo. 1987)
  • Little v. State, 21 Okl.Cr. 1, 14, 204 P. 305
  • Seitsinger v. State, 50 Okl.Cr. 299, 302, 297 P. 312
  • Darity v. State, 2009 OK CR 27, I 5, 220 P.3d 731
  • Arizona v. United States, 567 U.S. 132 S.Ct. 2492 (2012)
  • INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984)
  • Dawkins v. State, 2011 OK CR 1, 252 P.3d 214
  • Allen v. District Court of Washington County, 1990 OK CR 83, 803 P.2d 1164
  • Murphy v. State, 2002 OK CR 32, 54 P.3d 556
  • Sussman v. District Court, 1969 OK CR 185, 455 P.2d 724
  • Hutchens v. District Court of Pottawatomie County, 1967 OK CR 10, 423 P.2d 474

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