Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VA093974. Larry S. Knupp, Judge.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Ricardo Bejarano appeals from a judgment entered upon his conviction by jury of embezzlement of property of a value exceeding $400 (Pen. Code, § 487, subd. (a)). The trial court sentenced him to state prison for the upper term of three years for the embezzlement conviction and to a consecutive eight months for violating probation in connection with a prior conviction of possession for sale of a controlled substance (Health & Saf. Code, § 11378). Defendant contends that (1) the trial court erred in allowing his coerced confession into evidence; (2) defense counsel’s failure to object to admission of the confession constituted ineffective assistance of counsel; (3) imposition of an upper term sentence violated his right to trial by jury and confrontation guaranteed by the Sixth Amendment to the United States Constitution, as articulated in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S.__ [127 S.Ct. 856] (Cunningham); and (4) the trial court committed jurisdictional error in imposing a lab fee of $100. Respondent contends that the trial court erred in failing to impose (a) a $50 state penalty assessment pursuant to section 1464; (b) a $35 county penalty assessment pursuant to Government Code section 76000, subdivision (a); (c) a 20 percent state surcharge, or $10, on the drug laboratory fine pursuant to section 1465.7, subdivisions (a) and (b); and (d) a state construction penalty of $67.50, pursuant to Government Code section 70372.
All further statutory references are to the Penal Code unless otherwise indicated.
We modify the assessed fees and otherwise affirm the judgment.
FACTUAL BACKGROUND
Defendant was a driver for One Way Trucking Company (One Way) who delivered meat and poultry from a Los Angeles poultry company to a restaurant in Fresno. Between December 2005 and January 2006, the period during which defendant worked for One Way, the restaurant complained that poultry was missing from its shipments brought by defendant. One Way was advised of the missing items.
On January 20, 2006, defendant picked up a truck from One Way to make his delivery. In an effort to determine the source of the previous losses, five poultry company employees conducted a special count of the items being shipped. The truck was securely locked, with defendant having the keys. When defendant arrived at the restaurant with the shipment, the kitchen manager checked the incoming order and found missing items totaling $1,528.18. One Way suspended defendant pending investigation. After defendant’s suspension, the restaurant experienced no further missing items in One Way shipments from the poultry company.
Huntington Park Police Detective Richard Maretti arrested and questioned defendant. Defendant initially denied taking any of the shipped items. But when confronted with incriminating evidence, he admitted taking some. He told the detective he was going through hard times, had a baby on the way, and needed money. He explained how he took the items by selling individual cases of the meat and poultry for between $12 and $30 a case to people at a gas station along his route. Defendant wrote an apology to the poultry company indicating his willingness to make restitution.
At trial, defendant testified on his own behalf, denying that he took any of the missing items. He stated that he falsely confessed because he was on probation for possession of drugs for sale, and “the detective told [him] that he would try to help [him] out talking to the D.A. So [he] wouldn’t get a bigger punishment.”
DISCUSSION
I. Coerced Confession
A. The interrogation
After his arrest on February 8, 2006, defendant was brought to the police station where defendant was advised on his Miranda rights. After defendant waived his right to remain silent, Detective Maretti conducted a video recorded interview which lasted approximately 70 minutes. Detective Maretti began by telling defendant that the victim wanted to be compensated for its property and was not “so intent on criminal prosecution.” The detective gave the defendant the opportunity to explain “about the items that were missing, the meat and all that.” Defendant denied having any idea that the items were missing.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Detective Maretti then summarized some of the incriminating evidence he had accumulated. He told defendant that on January 20, 2006, five or six people at the poultry company had counted the items placed into defendant’s truck to make sure the count was accurate before he left. When defendant arrived at the restaurant, 13 cases were missing. Detective Maretti questioned defendant about a statement from the restaurant kitchen manager which reported that when defendant arrived at the restaurant, defendant began removing pallets from the truck outside of the security area and with no one else present. Detective Maretti then asked defendant what he thought a judge or jury using common sense would think about the situation. Defendant said others would think he was involved because he was “the only one being responsible for [the shipment].” He acknowledged that the facts looked bad for him. He nonetheless continued to deny involvement in misappropriating any of the items for much of the interview, claiming he did not know any items were missing and that the truck had not been broken into.
Detective Maretti then informed defendant that he was going to be booked for grand theft. He said that everything defendant said would go into a report and be turned over to the district attorney who would decide whether to file a case. He warned that once he turned the case over to the district attorney, it was “out of [his] hands,” and added: “I do have some leeway. I do. I work hand in hand with the district attorneys on a lot of cases. So I do have some leeway to talk about certain cases. [¶] Leeway means--means if somebody--if somebody comes in who I feel is being honest with me okay. He says, hey, listen--it usually admits I did something wrong. Hey, listen, I fucked up, I made a mistake, okay. I go to the D.A. and I can explain to them what this person said to me. He was cooperative, he’s apologized, . . . whatever the case is. . . . He’ll agree to pay back the victim in small increments. You know the[y] were going through hard times. Okay. And they--and we go that route, then we try to resolve it.”
After these comments, defendant continued to deny involvement, until he finally stated: “[I]f it’s gonna help me what if I say, okay? Okay it was me, you know.” Detective Maretti then emphatically stated: “No, no, no, it doesn’t work that way man. I don’t want--I don’t want anybody to admit anything they don’t do. . . . That’s wrong, okay. That’s wrong.” Defendant then stated that maybe someone miscounted. Detective Maretti emphasized that everyone makes mistakes and they feel better by “coming clean.” He sympathized with defendant’s personal circumstances but acknowledged that “based on my experience it’s not looking good. It doesn’t look good for you . . . .” Detective Maretti opined that the matter might be resolved by paying the company back and writing a letter of apology. He told defendant that, “If you want to own up to a mistake, . . . it will make you look better. . . . I’ll just talk to the D.A., tell him you are cooperating and you made a mistake. . . . I have a lot of pull with the D.A., okay. I can’t promise you. They can’t promise--or they’ll say, you know, take off, you’re free. They may make you pay it back, you know. But at least it’s better than you saying you deny it deny, deny, deny, owing up to what you did, ‘cause I know you acted like. . . .” Defendant then said, “I be honest with you. I’ll say I did it.” Detective Maretti again cautioned: “I don’t want you to say you did it if you didn’t do it, okay.”
Defendant then admitted taking the missing cases. When told that approximately 28 boxes had been taken over a period of time, he said that that sounded about right. He described selling the boxes off the freeway, at Pixley, for between $12 and $30 a box. Defendant did not unwrap the “shrink wrap” in which the cases were secured to the pallets, but pushed the cases through the wrap. He said he made approximately $275 from the sales and wanted to repay the company. Detective Maretti said he would tell defendant’s probation officer and the district attorney that he had been honest and would make sure the poultry company and the district attorney received any letter defendant wrote in apology.
B. Contentions
Defendant contends that introducing the videotaped confession into evidence violated due process. He argues that it was involuntary “because it was the result of psychological pressure and coercion[,] . . . consist[ing] of a promise of benefit or leniency in exchange for the confession.”
The People contend that defendant forfeited this claim by failing to raise it in the trial court. They assert that the failure to raise a claim of involuntary confession in the trial court generally forfeits it, and the narrow exception for confessions that are involuntary “as a matter of law” is inapplicable here. We agree.
While the People use the term “waiver” in reference to defendant’s failure to preserve this claim, the correct term which we use in this opinion is “forfeiture.” “Waiver” is the express relinquishment of a known right whereas “forfeiture” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.)
C. Forfeiture
The weight of authority indicates that claims of involuntariness of confessions will not generally be addressed for the first time on appeal. (People v. Ray (1996) 13 Cal.4th 313, 339 [involuntary confession claim based upon promise of lenity forfeited for failure to object in trial court]; People v. Mayfield (1993) 5 Cal.4th 142, 172 [involuntary confession claim based upon improper inducement forfeited for failure to object in trial court].) In re Cameron (1968) 68 Cal.2d 487, 503, upon which defendant relies, relates to a narrow exception to the forfeiture rule for cases where the confession has been obtained by such egregious means or under such egregious circumstances that the confession is involuntary as a matter of law. There, the defendant was under the influence of Thorazine at the time of his confession. No such extreme circumstances were presented here. People v. Hinds (1984) 154 Cal.App.3d 222, 237, also cited by defendant, relied upon In re Cameron and involved a defendant who was interrogated after invoking his right to remain silent and to have counsel. Defendant did not invoke those rights here.
Even if we were to conclude that defendant did not forfeit this claim, we would nonetheless reject it on the merits.
D. Standard of Review
We independently review the voluntariness of a confession by consideration of the record in its entirety, including “‘all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation.’” (People v. Benson (1990) 52 Cal.3d 754, 779; People v. Hogan (1982)31 Cal.3d 815, 841, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836.) The trial court’s findings as to the circumstances surrounding the confession including the characteristics of the accused and the details of the interrogation are clearly subject to review under the deferential substantial evidence standard. (People v. Benson, supra, at p. 779.) The burden is on the prosecution to prove by a preponderance of the evidence the voluntariness of a recorded statement made after the giving of Miranda warnings. (People v. Sapp (2003) 31 Cal.4th 240, 267.)
E. Voluntariness
A voluntary confession or statement is one that is a product of the confessor’s “free [will] and unconstrained choice.” (People v. Memro (1995) 11 Cal.4th 786, 827.) The Fifth and Fourteenth Amendments to the United States Constitution preclude admission of a confession or statement that is involuntary. (People v. Boyette (2002) 29 Cal.4th 381, 411.) Use of a statement obtained by force, fear, promise of immunity or reward is a denial of due process under federal and state Constitutions. (Malloy v. Hogan (1964) 378 U.S. 1, 7; People v. Clark (1993) 5 Cal.4th 950, 988.) The question raised by the due process clause where psychological coercion is claimed “is whether the influences brought to bear upon the accused were ‘such as to overbear [the defendant’s] will to resist and bring about confessions not freely self-determined.’” (People v. Hogan, supra, 31 Cal.3d at p. 841.)
The gravamen of defendant’s contention is that his confession was involuntary and coerced because it was induced by promises of leniency. “‘It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . .’” (People v. Holloway (2004) 33 Cal.4th 96, 115.) “‘“When the benefit pointed out by the police . . . is merely that which flows naturally from a truthful and honest course of conduct,” the subsequent statement will not be considered involuntarily made.’” (Ibid.; People v. Hill (1967) 66 Cal.2d 536, 549-550.) Further, in order for a promise of leniency or advantage to the accused to invalidate a confession and render it involuntary, it must be a motivating cause of the confession. (People v. Hogan, supra, 31 Cal.3d at p. 838.) “The line ‘can be a fine one’ [citation] between urging a suspect to tell the truth by factually outlining the benefits that may flow from confessing, which is permissible, and impliedly promising lenient treatment in exchange for a confession, which is not. [Detective Maretti did not cross] that line by . . . suggesting that defendant might benefit in an unspecified manner from giving a truthful, mitigated account of events.” (People v. Holloway, supra, at p. 117.)
We conclude from all of the circumstances here that defendant’s free will was not overcome by coercion. His interview was not unduly lengthy, lasting no more than an hour and 10 minutes. There was no evidence that he was subjected to any physical discomfort or deprivation, such as sleep, food or use of bathroom facilities, or that any threats, express or implicit, had been made. The transcript of the interrogation suggests that defendant was fully in control of his faculties, understood what was being said, and had sufficient intelligence and maturity to participate in the exercise.
Detective Maretti’s comment to defendant that the victim was not “so intent on criminal prosecution,” did not promise leniency but merely suggested that the victim of a property crime is likely more interested in recouping his or her loss than seeing that the perpetrator is punished. Even if this comment is viewed as an implied promise that defendant would not be prosecuted, it was not a motivating cause of the confession. Indeed for quite awhile after it was made, defendant continued to deny guilt. A substantial time elapse between an implied promise and an incriminating statement is evidence that the promise was not a motivating factor for the incriminating statement. (People v. Cahill (1994) 22 Cal.App.4th 296, 316; see also People v. Williams (1997) 16 Cal.4th 635, 660-661 [promise not motivating factor where defendant maintained innocence after it was made].)
Detective Maretti also stated that he had “pull” with the district attorney, could report to the district attorney that defendant was honest and cooperative, and that it would be better for defendant if the detective gave such a report than if he reported that defendant denied involvement. These statements contained no specific promise but merely indicated the obvious; it would be more beneficial to defendant to cooperate. Moreover, the statements were immediately followed by the detective’s admonition that he could promise defendant nothing, suggesting that all decisions were in the hands of the district attorney. Detective Maretti’s “‘offers of intercession with the district attorney amounted to truthful implications that [defendant’s] cooperation might be useful in later plea bargain negotiations.’” (People v. Ramos (2004) 121 Cal.App.4th 1194, 1203; see also People v. Jones (1998) 17 Cal.4th 279, 297-298.) This benefit naturally flowed from the truth. Detective Maretti’s encouragement to defendant to tell the truth because he would feel better if he “c[ame] clean” and it would “make [him] look better,” similarly informed defendant of the benefits that naturally flow from the truth (see People v. Spears (1991) 228 Cal.App.3d 1, 27-28) and was not a promise of leniency. Defendant’s confession came only after Detective Maretti showed sympathy for defendant, noting that he did not appear to be a career criminal but as someone who made a mistake and that a confession would make him feel better and put this behind him.
It is also noteworthy that Detective Maretti cautioned defendant against making a false statement. When defendant continued to deny taking any of the missing items but suggested that if it would help him he would admit to the crime, the detective said, “No, no, no, it doesn’t work that way man. . . . I don’t want anybody to admit anything they don’t do. . . . That’s wrong, okay. That’s wrong.” Defendant was thereby cautioned not to admit committing the crime for any benefit, unless it was the truth.
After the confession, defendant provided a detailed description of his crime, including how he removed the cases from the pallet, the price paid for them, and the location where they were sold. This detail provides added evidence of the reliability of the confession. The primary reason for precluding involuntary confessions being the lack of reliability. (Jackson v. Denno (1964) 378 U.S. 368, 385-386.)
While each case must be evaluated on its own unique facts, it is readily apparent that the facts here are different from those presented in cases finding confessions to be involuntary. (See, i.e., People v. Cahill, supra, 22 Cal.App.4th at pp. 314-315 [implied that defendant would not be tried for first degree murder if he made certain admissions]; People v. Flores (1983) 144 Cal.App.3d 459, 470-471 [implied defendant would avoid the death penalty by confessing]; In re Shawn D. (1993)20 Cal.App.4th 200, 212-213 [16-year-old defendant who suffered from post-traumatic stress disorder, officers lied about evidence, exaggerated possibility he could be tried as an adult and suggested girlfriend would get into trouble]; People v. Esqueda (1993) 17 Cal.App.4th 1450, 1485-1486 [suspect questioned for nearly eight hours, was exhausted, had nothing to eat, got sick upon being shown autopsy photographs of the victim, indicated on several occasions that he no longer wanted to talk, had been drinking and was obviously distraught, and was impliedly told he would not go to prison if he said it was an accident]; People v. Vasila (1995) 38 Cal.App.4th 865, 875 [promises that federal prosecution would not be instituted and he would be released on his own recognizance]; People v. Neal (2003) 31 Cal.4th 63, 81-85 [investigators continued interrogation after defendant invoked his right to remain silent and to counsel]; People v. Jimenez (1978) 21 Cal.3d 595, 611, disapproved on other grounds in People v. Cahill (1993) 5 Cal.4th at p. 510, fn. 17 [investigator told defendant he could get the death penalty if he did not admit the offense].)
F. Ineffective Assistance of Counsel
Defendant contends that if he forfeited his involuntary confession claim because it was not raised in the trial court, he suffered ineffective assistance of counsel by virtue of his attorney’s failure to object to its admission into evidence. This contention is without merit.
The standard for establishing ineffective assistance of counsel is well settled. The “‘defendant bears the burden of showing, first, that counsel’s performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’” (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053; see also Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)
Because we have concluded in part IE, ante, that defendant’s confession was not coerced and that the trial court therefore did not err in allowing it to be admitted into evidence, it is not reasonably probable that the verdict would have been more favorable to defendant had defense counsel objected to its admission.
II. Cunningham Error
Defendant contends that the upper term sentence imposed violated his Sixth and Fourteenth Amendment rights to a jury trial and due process, as articulated in Apprendi and its progeny, and that this matter must be remanded for resentencing. He argues that the aggravating factors were not decided by a jury beyond a reasonable doubt. This contention is without merit.
In Blakely, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is “the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant,” must be determined by a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 303.) In Cunningham, contrary to the California Supreme Court’s conclusion in People v. Black (2005) 35 Cal.4th 1238 (Black I), the United States Supreme Court held that under California’s determinate sentencing law, the middle term is the statutory maximum and the upper term may not constitutionally be imposed unless the factors authorizing it are found by a jury beyond a reasonable doubt. (Cunningham, supra, 127 S.Ct. at p. 871.)
Following Cunningham, in the recent case of People v. Black (2007) 41 Cal.4th 799 (Black II), the California Supreme Court reasoned that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Black II, supra, at p. 813.) Citing federal circuit decisions stating that the prior conviction exception may be found using the preponderance of the evidence standard, Black II also concluded that “[t]he high court never has suggested that the requirement of proof beyond a reasonable doubt could be severed from the right to jury trial for purposes of applying the [prior convictions exception].” (Black II, supra, at p. 820, fn. 9.)
The United States Supreme Court has consistently stated that the right to a jury trial does not apply to the fact of a prior conviction. (Blakely, supra, 542 U.S. at p. 301.) This exception is not to be read too narrowly. (Black II, supra, 41 Cal.4th at p. 819.) The fact of a prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) It has also been concluded that this exception relates more broadly to the issue of “‘recidivism.’” (People v. Thomas (2001) 91 Cal.App.4th 212, 221-222, cited with approval in People v. McGee (2006) 38 Cal.4th 682, 700-703.) Factors such as being on probation at the time of the offense and previously being unsuccessful on probation come within the recidivism exception. Both may be ascertained simply by examining the records of prior convictions. (Black II, supra, at p. 819.)
The issue of whether a defendant’s probation or parole status is properly considered by the trial court as within an exception to Cunningham is currently pending before the California Supreme Court. (People v. Towne, review granted July 14, 2004, S125677.)
At sentencing the court found circumstances in aggravation, justifying a high term commitment to include: “the manner in which the crime was carried out indicates planning, sophistication and professionalism. It involves an actual taking of, damage of a considerable amount of value. He took advantage of a position of trust which he had been granted by his employer. He was on probation when the crime was committed.”
Applying Black II here, we conclude that defendant was not deprived of due process or his constitutional right to a jury trial by imposition of the upper term. That sentence was based on at least one aggravating factor that satisfied the Sixth Amendment and made him eligible for the upper term sentence. (Black II, supra, 41Cal.4th at p. 813.) The trial court found that defendant was on probation at the time he committed the charged offense. This factor is within the recidivism exception, as it can be readily determined by reviewing the records of the prior convictions, and is therefore properly decided by the judge. (See Black II, supra, at pp. 818-820.) This single factor made defendant eligible for an upper term sentence.
III. Court Fees
A. Laboratory Fee-- Health and Safety Code Section 11372.5, subdivision (a)
In defendant’s judgment of conviction for his drug violation, the trial court imposed a $100 laboratory fee. Defendant contends and respondent concedes that the trial court committed jurisdictional error in imposing that fee as Health and Safety Code section 11372.5 authorizes imposition of only a $50 laboratory fee for each drug conviction. We agree.
Health and Safety Code section 11372.5, subdivision (a) provides in pertinent part: “Every person who is convicted of a violation of Section . . . 11378 . . . shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for each separate offense.” Defendant was convicted of only one offense listed in Health and Safety Code section 11372.5, and hence it authorizes a fee of only $50, not the $100 that the trial court imposed. The trial court had jurisdiction only to impose the authorized fee. Consequently, the judgment must be modified to impose a $50 laboratory fee. (See People v. Martinez (1998) 65 Cal.App.4th 1511, 1519.)
B. Other Mandatory Fees
The attorney general contends that the trial court failed to impose various mandatory fees, including a state penalty assessment under section 1464 ($10 for each $10 or fraction thereof on any “fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses”); a county penalty assessment under Government Code section 76000 ($7 for every $10 or fraction thereof on any “fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses”); a 20 percent state surcharge on the drug laboratory fee pursuant to section 1465.7 (“levied on the base fine used to calculate the state penalty assessment as specified in subdivision (a) of Section 1464”); and a state construction penalty under Government Code section 70372, subdivision (a) ($5 for every $10 or fraction thereof on any “fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses”). The attorney general argues that a state penalty of $50, a county penalty of $35, a state surcharge on the laboratory fee of $10, and a state construction fee of $67.50 are required. Defendant has not disputed this claim.
We conclude that the attorney general’s request for these assessments is meritorious. In each case, the statutory language is mandatory and allows for no exception to imposition of the assessment.
We correct, however, the amount of the requested construction fee which we calculate to be $70, as follows: $25 on the $50 laboratory fee, $25 on the $50 state penalty assessment, and $20 on the $35 county penalty assessment.
DISPOSITION
The judgment is modified and the abstract of judgment is ordered corrected to reflect the reduction in the lab fee to $50 and the imposition of a state penalty fee of $50, a county penalty of $35, a state surcharge of $10, and a state construction fee of $70. In all other respects the judgment is affirmed..
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.