Opinion
D074317
02-19-2020
THE PEOPLE, Plaintiff and Respondent, v. CHRISTINA DANIEL, Defendant and Appellant.
Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD266853) APPEAL from a judgment of the Superior Court of San Diego County, Leo Valentine, Jr., Judge. Affirmed and remanded for sentencing. Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Genevieve Herbert, Deputy Attorneys General for Plaintiff and Respondent.
Jasmine Ruiz was found pinned under an abandoned car in an alley; an autopsy revealed a fatal stab wound to the neck. Six days after her murder, Christina Daniel confessed to police that she stabbed and ran over her friend Ruiz after they got into a fight. She made statements admitting guilt in recorded conversations with her sisters and her fiancé. Daniel was subsequently charged with one count of murder (Pen. Code, § 187, subd. (a)), and it was alleged she personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). At trial, Daniel testified that Ruiz was the aggressor and she stabbed Ruiz in self-defense. The jury convicted Daniel of second degree murder and found the weapon use allegation to be true. The trial court sentenced her as a second-strike offender to a total term of 30 years to life plus six years, which included a formerly mandatory five-year enhancement applicable to defendants who have suffered a prior serious felony conviction.
Unless otherwise specified, statutory references are to the Penal Code.
Daniel now contends (1) she received constitutionally deficient representation from trial counsel and the trial court abused its discretion when it denied her request for a new trial on this basis; (2) the trial court abused its discretion in declining to strike her prior strike; (3) her case should be remanded for the trial court to determine if she is eligible for pretrial mental health diversion; and (4) remand for resentencing is appropriate for the trial court to consider whether to exercise its discretion to strike the five-year enhancement for her prior serious felony conviction. We conclude remand for resentencing is warranted to allow the trial court to consider whether to strike the five-year enhancement. We reject the remainder of Daniel's claims and affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
A. Amended Information
An amended information charged Daniel with one count of murder (§ 187, subd. (a)), and alleged she personally used a deadly and dangerous weapon, a knife, within the meaning of section 12022, subdivision (b)(1). It further alleged that Daniel had two prison prior convictions (§§ 667.5, subd. (b), 668), a serious felony prior conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)), and a strike prior conviction (§§ 667, subd. (b)-(i), 1170.12, 668).
B. Trial
1. Witness Testimony and Crime Scene Investigation
Sixteen-year-old Martha O. testified that around 10:00 a.m. on April 20, 2016, she was in her second-story bedroom when she heard fighting and arguing from the alley below. From her window, she observed a car parked below. A male wearing a light-colored shirt was standing outside of the car and a male wearing a dark shirt was in the driver's seat. A woman was lying on the rear driver's side seat with her legs hanging out from the car. The car was moving slowly. Martha thought the woman was being raped and ran downstairs to the alley. When she got there, the car had crashed into a telephone pole. She observed two men run away in the direction of a nearby elementary school. The man in the back (wearing the dark shirt) called in Spanish to the one in front (in the light-colored shirt) to wait. One man had a dark rag wrapped around his hand, as if he might have been injured. Martha also saw a woman who was running; the woman had blood on her. Martha testified the blood appeared to be " 'rubbed on her' " as if someone else had gotten their blood on her. Martha asked her if she was okay but received no reply. The woman continued running through a gate with a blue tarp. Then Martha heard crying and screaming and ran toward the car. She saw another female under the car and saw blood. Two other people appeared in the alley, and Martha told them to call an ambulance. Martha comforted the woman under the car, then ran upstairs to lock her apartment and grab her iPod. She returned to the alley and recorded a video of the scene, which was played for the jury. The woman under the car became unconscious before the ambulance arrived. She died at the scene.
Salvador P. lives in a house adjacent to the alley where the crime occurred. Around 10:00 a.m. on April 20, 2016, he heard a woman's voice calling, "Oh, my God. Oh, my God," and then heard a car "trying to take off," and then "crash into something." As he stepped outside, through his fence he saw two Latino men run by; one wearing a light-colored shirt and one wearing a dark shirt. He could only see them from the shoulder up. The man in the dark shirt was running slower than the other man, and he motioned for the other man to slow down and wait for him. Salvador saw his neighbor (Martha) come down the stairs from her house and heard her calling for help. He called 911.
The victim was subsequently identified as Ruiz. An autopsy revealed the cause of death was a stab wound to the right side of her neck. The wound was consistent with a single-edged blade and was approximately two and a half inches deep. The medical examiner determined the blade transected Ruiz's anterior jugular vein, penetrated her trachea, and struck the vertebrae of her spine. Ruiz also had cuts on her elbow, arm, and wrist consistent with a sharp instrument; cuts on the back of her hand; contusions on the back of her hand; and blunt force and thermal injuries. The medical examiner testified that the contusions on the back of Ruiz's hand were not over the knuckles, and thus not consistent with injuries that could be sustained when punching someone or something.
Tony A. lived in a home with a blue fence that backed to the alley. When police first questioned Tony the morning of the incident, he denied knowing anything about Ruiz's homicide and did not tell them he had seen Daniel that day. However, he subsequently admitted that Daniel had come to his home the morning of April 20. Tony testified that Daniel was a friend of his, and she had been staying at his home for a few nights. The night before the incident, she had been at his home with her friend Ruiz. Tony testified that on the morning of April 20, Daniel came into his home "hysterical" and with blood on her. She did not appear to be injured. She gave him a knife, which he hid inside a wall heater in his home. Tony told investigators that Daniel's niece, who at the time was also staying with Tony, helped Daniel "get cleaned up." Tony testified Daniel asked for his help and said he had to "get [her] out of here," but he did not have any means of transportation and told her to leave. Detectives later found a knife in the bottom of a wall heater in Tony's house.
Detectives investigating the scene found bloodstains and a trail of blood leading toward a nearby elementary school. The stairs and fence near the back of Tony's residence also had bloodstains on them. Near the telephone pole, detectives found one of Ruiz's tennis shoes and a pair of black slip-on shoes. At the elementary school, investigators discovered bloodstains on the ground and the school's double-door entrance. On a nearby windowsill, detectives found a towelette with blood on it. There were also bloodstains on the street as well as a trail of blood around the school that stopped along an adjacent street.
Samuel Y. confirmed to police that the white sedan crashed in the alley was his. He told police he had loaned it to someone he knew as "Trips," whose real name was Ruiz, and she had failed to return the car to him.
A homicide detective conducted a search of the vehicle. There was "a lot of blood" throughout the car's interior, especially on the driver's seat and the driver's side rear passenger seat and door. The detective discovered an open folding knife on the floorboard of the driver's side rear seat. The detective also found a sweatshirt, a purse, a small quantity of methamphetamine, a spoon, and two casino cards. On the rear floorboard, he found a grocery bag with breakfast items and a receipt with a timestamp of 9:38 a.m. that morning. The detective estimated the grocery store was roughly a five-to 10-minute drive from the scene of the crime. Video surveillance footage retrieved from the store depicted Daniel and a man named Marco Gutierrez.
2. DNA Evidence
A crime scene specialist took swabs from various areas inside the car, stains in the alley, and items discovered at the scene. She also swabbed the knife discovered in Tony's wall heater, which appeared to have bloodstains, lint fibers, and hair on it. A criminalist for the San Diego Police Department analyzed DNA obtained from evidence at the scene and compared it to reference samples from Daniel, Ruiz, and Gutierrez.
With respect to the bloodstains on the walkway and towelette found near the school, the DNA was consistent with an individual designated "unknown male No. 1." Daniel, Gutierrez, and Ruiz were all excluded as potential contributors.
With respect to the knife recovered from the car, a bloodstain on the handle contained a mixture of two individuals, with strong support for including Ruiz and inconclusive results as to Daniel. Gutierrez and unknown male No. 1 were excluded as contributors. A bloodstain on the blade of that knife contained DNA from four contributors with strong support for including Daniel; inconclusive results as to Gutierrez and Ruiz; and unknown male No. 1 excluded. The handle of the knife indicated four contributors with strong support for including Daniel. Ruiz, Gutierrez, and unknown male No. 1 were all excluded as contributors.
With respect to the knife recovered from Tony's house, testing of the textured area on the handle of the knife indicated a mixture of three individuals, with strong support for including Ruiz; limited support for including Daniel; an inconclusive result as to Gutierrez; and unknown male No. 1 was excluded. The handle of the knife recovered from Tony's house indicated a mixture of three individuals, with strong support for including Ruiz; moderate support for including Daniel; an inconclusive result as to Gutierrez; and unknown male No. 1 was excluded as a contributor. The blade of the knife recovered from Tony's residence indicated a mixture of two individuals, with strong support for including Ruiz and Daniel. Gutierrez and unknown male No. 1 were both excluded as contributors.
Additionally, Ruiz was found to be a strong contributor for DNA on swabs taken from the car keys; the gear shift of the car; bloodstains from the car's rear middle seats; the interior door handle of the car; and a bloodstain on the steering wheel cover.
The DNA of unknown male No. 1 was consistent only with the DNA in bloodstains on the concrete walkway and the towelette; his DNA did not match any of the swabs taken from inside the vehicle. He was also excluded as a contributor of DNA on swabs taken from the knife recovered inside the car and the knife discovered inside Tony's residence.
3. Video Surveillance Footage
Video from surveillance cameras at a casino showed Daniel and the victim moving about the casino and gambling between approximately 5:00 and 6:00 a.m. that morning.
Video from surveillance cameras overlooking the alley showed a white sedan proceeding northbound through the alley around 10:00 a.m. that morning. Less than two minutes later, the videos showed two males running southbound through the alley.
4. Daniel's Confession and Multiple Admissions
Detectives interviewed Daniel while she was in police custody the night of April 26. A video of the recorded interview was played for the jury. When first questioned, Daniel said she had heard Ruiz died, but she had not seen her since November. She told the detectives she had gotten out of prison in November, and then gone to Mexico because she wanted to get high, and she had just returned three days prior. She also said that she had just met Gutierrez three days prior. Detectives showed Daniel an image from the grocery store's surveillance footage of her and Gutierrez together on April 20 (more than three days before her interview). Daniel initially denied it was her in the photo, even when detectives pointed out her visible tattoos. She claimed to know nothing about Ruiz's murder. She denied stabbing Ruiz and said she wanted a lawyer. The police returned her to a holding cell with Gutierrez.
Daniel talked about seeing people and reconnecting with family after being released from prison and mentioned her brother was "still" a "missing person."
Soon after, Daniel stated she wanted to speak to the detectives again. Based on this request, the detectives conducted a second interview. During this interview, Daniel admitted she was with Ruiz the morning of the murder. Initially, she denied stabbing Ruiz. She also denied Gutierrez was there. She then admitted she "was there," but insisted two other guys (not Gutierrez) were in the car. She admitted Ruiz was stabbed in the neck, and then "[t]hey ran her over," and afterward she threw the knife in a trash can inside Tony's house. The detectives expressed doubt about Daniel's statement that Gutierrez was not present, noting that he was wearing the same clothes in the surveillance footage from both the grocery store and the alley. Daniel stated, "Fine, I stabbed her. I did. I did. [¶] . . . [¶] I stabbed her—that's how I stabbed her, and I ran her over." She said she was in the back seat and she grabbed Ruiz from the back and started stabbing her. She continued to deny that Gutierrez was there, insisting there were two other males in the car. She said, "It was me. I stabbed her. And then she got out of the car and I ran her over." She repeated that she grabbed Ruiz from the back and started stabbing her. Ruiz tried to get out of the car, but Daniel held her by her hair. Daniel jumped into the front seat when she saw a truck drive by. Ruiz rolled out and fell from the car, and Daniel backed the car up and ran Ruiz over before crashing into a pole. Then she exited the vehicle from the passenger side, taking Ruiz's phone with her. She said that she later burned the clothes she was wearing and Ruiz's phone in a fire "[i]n the canyon somewhere." She again said she threw the knife in the trash at Tony's house. Daniel claimed to have anger issues, stating, "I go from, like, zero to 100," and she said she had been doing lots of drugs and was still high. She said that she and Ruiz had spent all their money at a casino earlier that morning, then she had gone to get groceries with Gutierrez and dropped him off, and when she returned to Tony's, Ruiz and "the other guy" were in the alley arguing.
Daniel was read her Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) at the outset of both interviews. She stated she understood her rights and waived her rights to remain silent and to an attorney.
Daniel stated she did not know the "real names" of these two individuals, and she was not willing to provide their nicknames.
The detectives did not believe certain aspects of Daniel's confession. They told her they believed she stabbed Ruiz but believed Gutierrez ran her over. Daniel continued to insist Gutierrez was not there. She said, "I'm tellin' you I did it. I stabbed her, and then I ran her over. There is no other way to say that." She also said, "I promise you I killed her." One of the detectives asked her, "[W]hat's so good about [Gutierrez] that you would cover for him?" Daniel answered, "I'm not covering for him. I just don't want somebody to go down for something I did."
Gutierrez was originally charged with Daniel as a codefendant. Charges against him included assault with a deadly weapon (a car) inflicting great bodily injury (Pen. Code, §§ 245, subd. (a)(1), 1192.7, subd. (c)(23), 12022.7, subd. (a)) and hit and run with injury (Veh. Code, § 20001, subd. (a); Pen. Code, § 12022.7, subd. (a)). Although Gutierrez's plea is not part of the record, both parties represented that he ultimately pled to one count of hit and run resulting in injury or death (Veh. Code, § 20001, subd. (a)), and the People stated he was sentenced to a prison term of three years.
On April 28, during a recorded jail call, Daniel told her fiancé, Cody D., that she was never getting out of prison and she was looking at the death penalty. She said, "I talked to the detective. Everybody's tellin' on me. Tony turned me in babe. Why'd he do that?" She told him, "That motherfucker told them that I gave him the knife. Babe they have everything I'm done. I'm done for this."
An audio recording of the call was played for the jury.
The next day, Cody visited Daniel in jail. She told him, "I'm gonna get the death penalty 'cause the way I killed her." She said she had confessed "[b]ecause I left my blood and my hair was in and my feet was in the car. Tony's telling—everybody's telling on me, babe. What was I supposed to do?" She said, "I have it coming, babe. I shouldn't have did what I did."
Cody and Daniel spoke via telephone, through a viewing window. A video of their conversation was played for the jury.
A few days later, Daniel spoke with her sister Gloria on a recorded jail call. Daniel told her she "already pleaded guilty" "[f]or what [she] did to that girl." She told her sister that Ruiz was "talking shit" about her missing brother. Daniel also stated, "Fuck her. I'm glad I did that. I'm glad I did that. [¶] . . . [¶] Fuck her." Gloria told her not to say that and Daniel replied, "Gloria she's a fucked up person. She burned me with a hot pipe. You should see the scar I have on my arm. Fuck her Gloria. She's a fuckin' piece of shit. I fuckin' hate her for talkin' about my brother like that." Gloria said, "then self-defense." Daniel said, "because we started arguing over something else because of these—these guys that were at my house right there on—at Tony's right. And then she was, 'You know what Tina fuck you bitch. You're gonna get yours.' I'm like, 'I'm gonna get mine. Fuck you bitch.' She goes, 'That's why my—my drain is still clogged because your brother.' Gloria what the fuck was I supposed to do? And then I said, 'What. Bitch . . . ' " Daniel continued, "Nobody is gonna talk shit about my brother because my brother ain't no fuckin' rat. My brother is no fuckin' snitch. [¶] . . . [¶] Fuck her. I'm glad it happened to her." Daniel said she "took off on her" after Ruiz burned her with a pipe. Gloria again suggested self-defense, and Daniel said, "that's not self-defense Gloria." Daniel said, "No, no. I socked her. I socked her and then she socked me back."
The next day, on another recorded jail call, Daniel told her other sister Linda that she had gone on a "killing spree." She told her she had not gotten charged yet for murder, only "the other thing that I did with Gloria." Daniel said she believed Tony told on her and that "he's gonna have to go bye-bye."
In People v. Daniel (Oct. 31, 2019, D074433) [nonpub. opn.], this court affirmed Daniel's conviction for attempted murder (§§ 664, 187, subd. (a)) and assault with a deadly weapon (§ 245, subd. (a)(1)) in connection with a stabbing incident that occurred in November 2015. The victim was Gloria's boyfriend.
5. Daniel's Testimony at Trial
Daniel testified that she stabbed Ruiz in self-defense. She said she had met Ruiz, who went by the nickname Trips, years ago in juvenile hall and they were friends. They also served time in prison together, where they developed a sexual relationship. When she was released from prison in November 2015, she spoke with Ruiz on the phone, but they were not able to meet up until early April. Ruiz came in a white sedan and stayed with her at Tony's, where Daniel was staying. They spent their time getting high, "doing crystal" (methamphetamine) and "doing heroin," going with "different guys, random guys," going to casinos, and partying.
The morning before the incident, Daniel and Ruiz were at Tony's house, "getting high," and went to a casino to get more heroin. They returned to Tony's house and smoked. Daniel's niece (who also stayed at Tony's) woke up and was hungry. Daniel had spent all her money, so she called and asked Gutierrez if he would buy groceries; he said yes but she and Ruiz had to go get him. They took the white sedan to Gutierrez's house. They picked up another man Daniel knew as "Boy" on the way. Boy and Ruiz had a sexual relationship, which Daniel knew because she and Gutierrez had a "foursome" with them. Daniel and Gutierrez went to the grocery store while Ruiz and Boy stayed at Gutierrez's house. When they returned to Gutierrez's house, Ruiz and Boy were arguing. Ruiz did not want to drive Boy back to Tony's house, but Daniel "calmed [her] down" and she agreed. Ruiz drove while Daniel sat in the passenger seat, Boy sat behind Daniel in the rear passenger side seat, and Gutierrez sat in the rear driver's side seat. Ruiz drove erratically and became angry again with Boy when she believed he was talking to another girl on the phone. Ruiz wanted to leave Boy and Gutierrez on the side of the freeway, but Daniel persuaded her not to. As they pulled up to Tony's, Ruiz began yelling at Daniel for siding with Boy. Ruiz started "talking shit," which hurt Daniel's feelings. Daniel began yelling at Ruiz and told her to calm down. The men began yelling at Ruiz for yelling at Daniel. After Ruiz kept calling Daniel "bitch," Daniel told Ruiz to "get her shit and get the fuck out of my house and not to come back." Boy made a comment about Ruiz "being back on the streets," which prompted Ruiz to swing at him. At this point, they had pulled into the alley near Tony's back fence with the blue tarp. When Daniel turned, she saw a knife in Ruiz's right hand. Daniel put her hands up, then grabbed Ruiz's wrist and clawed at her, trying to grab her other arm. Meanwhile, Ruiz hammered Daniel's face with her left hand. Daniel screamed to the guys for help and heard three punches, while someone said, "Get the fuck off her, bitch." Daniel said she "knew that the guys weren't helping [her]," so she "started pushing and swinging" to get Ruiz off her, and Ruiz "actually got off." When she did, Daniel opened the door and tried to get out, but she was stuck in the seat belt. She looked toward Ruiz to make sure Ruiz was not "coming at [her] again" and noticed Ruiz holding her hand to her neck and saw blood coming down her neck through her fingers. Daniel tried to help Ruiz but Ruiz pushed her away. She tried to have the men help her take Ruiz to the hospital. Gutierrez jumped into the driver's seat, while Boy tried to get Ruiz into the rear passenger seat. However, Ruiz began struggling to breathe, and Boy told Gutierrez they needed to "get the fuck out of there." Gutierrez got out of the car and began to leave. Daniel followed him, asking for help, but he told Daniel they had to leave and to run. Daniel then heard a crash and saw the car parked by the pole. She did not see Ruiz and wondered where she had gone. Daniel then saw Boy running toward the school. Gutierrez tried to pull her along with him, and put a knife in her hand saying, "grab this and run."
Daniel testified she then ran to Tony's. She asked him to help her, but he told her she had to leave. She threw the knife on a bed and left. She learned later that afternoon that Ruiz was under the car and had died.
Daniel testified that she lied during her police interviews about being the driver because she did not want to "tell on anybody" and "be labeled a snitch." She thought her brother, who had been missing for 10 years, had been killed because "they thought he was a snitch." She said there were "rumors that my brother's chopped up somewhere in Mexico." She claimed that one of the police detectives had told her that someone named "Chubs" killed her brother. She also claimed that, at the time she made the various jail phone calls, she had been taking prescription medication and using illicit drugs that she had brought into jail.
The detective's statement regarding her brother (see footnote 16, post) is an area Daniel contends her trial counsel failed to investigate.
On cross-examination, Daniel claimed she had lied throughout her police interviews and made up the confessions during her jail calls. She testified Gutierrez told her not to tell the truth when they were in the holding cell; she said the first thing he told her was "no cantas," which means, "don't sing." She claimed she lied because she was covering for Gutierrez and did not want to be labeled a snitch. The prosecutor asked Daniel, "Who stabbed [Ruiz] . . . if it wasn't you?" Daniel replied, "It had to be me. It had to have been." She said, "It was like so quick. She had a knife. We were pulling. I just—everything just happened so fast. It had to have been me. It couldn't have been anybody else." She also testified that she was fighting with Ruiz and believed she had stabbed her. She testified she did not remember any of the jail calls because she was extremely high at the time, but it was not true that Ruiz burned her with a hot pipe or that Ruiz talked about Daniel's brother.
6. Closing Arguments
In closing arguments, the prosecutor argued that evidence of Daniel's guilt was overwhelming: she fled the scene of the crime, hid evidence, and lied to police. The prosecutor further argued the deep stab wound to the neck indicated a blow intended to kill.
Daniel's defense attorney argued that, even accepting the prosecution's version of events, the evidence at worst suggested the incident amounted to manslaughter, and the evidence overall suggested either self-defense or "even perhaps maybe wrongly accused of this crime." He discussed how Daniel and Ruiz were longtime friends and cast doubt on Daniel's initial confession, pointing out that even the detectives did not believe Daniel was telling the truth about the incident. He argued that Daniel was afraid of being labeled a snitch, which is why she did not tell the truth. He pointed out that Martha—an independent witness—testified that she saw the car rolling and a man in a dark shirt (Gutierrez) was driving, and one man had a rag wrapped around his hand as if he were injured. A trail of blood, which belonged to the unknown male, or Boy, ran from the car toward the school, showing that he had been injured. In all, he argued, it amounted to reasonable doubt as to Daniel's guilt.
7. Instructions
Among other instructions, the jury was instructed on justifiable homicide (self-defense or defense of others), first and second degree murder, provocation, voluntary manslaughter (heat of passion and imperfect self-defense), and voluntary intoxication.
8. Jury Verdict
The jury found Daniel guilty of second degree murder (§ 187, subd. (a)) and found true the allegation that she personally used a deadly and dangerous weapon (a knife) (§ 12022, subd. (b)(1)).
C. Sentencing
Daniel admitted a prior strike conviction, a serious felony conviction, and a prison prior conviction. The trial court sentenced her to a total prison term of 30 years to life plus six years, comprised of an indeterminate term of 15 years to life, doubled for the prior strike (§§ 667, subd. (b)-(i), 1170.12, 668); a consecutive one-year term for the weapon enhancement (§ 12022, subd. (b)(1)); plus a consecutive five-year term for the prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)).
The prosecutor dismissed an additional alleged prison prior conviction.
DISCUSSION
I.
Daniel Has Not Established Ineffective Assistance of Trial Counsel
Daniel contends the trial court erred in denying her posttrial motion to dismiss or for a new trial based on her contention that trial counsel provided deficient representation. (§§ 1385, 1181.) Specifically, Daniel contends her counsel (1) failed to consult with a false confessions expert to assess the merits of filing a motion to suppress her confession; (2) failed to properly investigate the DNA evidence; and (3) failed to interview or investigate four key witnesses. Alternatively, Daniel contends this court should independently determine that her trial counsel provided constitutionally ineffective assistance. We reject these contentions.
A. Additional Background
After the jury returned its verdict, Daniel requested a Marsden hearing. After a brief hearing, the trial court granted Daniel's request, relieved trial counsel Attorney D., and appointed Attorney G. Prior to sentencing, Attorney G. moved pursuant to sections 1385 and 1181 to dismiss the case or for a new trial, arguing that trial counsel's representation was ineffective. Daniel submitted various police reports, a transcript of the holding cell recording between Daniel and Gutierrez, a letter Daniel wrote to the trial court regarding her desire for additional DNA testing, a psychological assessment of Daniel obtained for the motion, and transcripts of two lengthy interviews of Attorney D., conducted by Attorney G. The transcripts reflect that, over the course of two days, Attorney G. went through 58 pages of case notes Attorney D. had logged during his representation of Daniel. Attorney G. questioned Attorney D. regarding the investigation he conducted, the trial strategies he developed, and some theories and investigations he did not pursue.
People v. Marsden (1970) 2 Cal.3d 118.
Both parties recognize there is some ambiguity in the record as to whether the trial court relied on trial counsel's interview statements in ruling on Daniel's motion for a new trial. The parties extensively quote and rely on trial counsel's interview statements in their briefs. Like the parties, we assume the trial court considered this evidence and we therefore consider the transcripts on appeal.
Daniel argued that her dysfunctional childhood, during which she endured abuse and mistreatment, drove her to associate with gangs, and that her trial attorney failed her by failing to develop an informed trial strategy. In particular, she claimed counsel was ineffective for failing to obtain a false confessions expert with a view to attempting to suppress her confessions to police, failing to conduct independent review of certain evidence, and failing to independently investigate certain witnesses. She requested that the court "fashion a remedy for the injustice that resulted."
After oral argument, the trial court concluded that counsel's purported errors and omissions did not prejudice Daniel. Specifically, the trial court noted that Daniel's confession to the police was largely corroborated by her testimony at trial, in which she continued to take responsibility for the killing. The case was presented to the jury such that they understood others in the car might have been responsible for Ruiz's death; however, Daniel took responsibility in her trial testimony. The trial court questioned what value additional DNA testing might have had, especially in light of Daniel's testimony that she killed Ruiz. The trial court declined to conclude Daniel's trial counsel provided ineffective assistance and emphasized that it did not disagree with the jury, and, based on the evidence at trial, "it was at the very least a second-degree murder."
B. Governing Legal Principles
Although it is not one of the statutory grounds for a new trial set forth in section 1181, ineffective assistance of counsel is a valid ground for a new trial. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) On appeal from the denial of a new trial motion based on a claim of ineffective assistance, we apply the standard of review applicable to mixed questions of law and fact, i.e., we defer to the trial court's express or implied factual findings if supported by substantial evidence, and we review de novo the ultimate issue of whether a defendant's constitutional rights were violated. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.) "The trial judge is the one best situated to determine the competency of defendant's trial counsel. Where, as here, defendant is represented by different counsel at the motion for a new trial and the issue is called to the trial court's attention, the trial judge's decision is especially entitled to great weight and we defer to his fact finding power. Absent a showing of clear and unmistakable abuse, we will not disturb his decision." (People v. Wallin (1981) 124 Cal.App.3d 479, 483.)
To establish a denial of the right to effective assistance of counsel, a defendant must show (1) his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687, 691-694 (Strickland); People v. Scott (1997) 15 Cal.4th 1188, 1211.) To establish prejudice, the defendant must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland, at p. 694.) "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." (Id. at p. 693.) "A defendant must prove prejudice that is a ' "demonstrable reality," not simply speculation.' " (People v. Fairbank (1997) 16 Cal.4th 1223, 1241.)
"It is defendant's burden to demonstrate the inadequacy of trial counsel." (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).) In determining whether counsel's performance was deficient, we exercise deferential scrutiny, primarily because of "the danger of second-guessing." (People v. Ledesma (1987) 43 Cal.3d 171, 216.) "[W]e make every effort to avoid the distorting effects of hindsight and to evaluate counsel's conduct from counsel's perspective at the time." (People v. Dennis (1998) 17 Cal.4th 468, 541; see Lucas, at p. 437 ["[T]here is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' "].)
C. Analysis
1. Failure to Consult a False Confessions Expert
Daniel claims her trial counsel was ineffective in failing to consult with a false confessions expert to assess the merits of moving to suppress her second police interview. As possible grounds for suppression—which she contends her counsel failed to investigate and pursue—Daniel points to the alleged "coercion, duress or undue influence" exerted by codefendant Gutierrez, and the alleged "promise" one of the interviewing detectives made to find out what happened to her missing brother who was believed to have been murdered. These areas, according to Daniel, "provided fertile ground for both reasonable investigation and expert examination," and a false confessions expert in particular "could have helped the jury understand how police-induced false confessions occur." We reject these contentions.
Trial counsel explained he considered issues relating to a potential motion to suppress his client's confession. He reviewed the videotaped interview and concluded Daniel was coherent, appeared to understand the questions, and did not appear "high." Counsel further considered the fact that Daniel herself reinitiated police contact before confessing, and noted that she demonstrated no signs of being "forced or pressured or anything like that" when she interacted with Gutierrez in the holding cell before confessing.
When interviewed by new counsel handling her new trial motion, Daniel's trial counsel acknowledged that: Gutierrez told Daniel "don't sing" or "be quiet" in Spanish; Daniel stated she was "just protecting" Gutierrez and did not want to "rat" or "snitch" on him or the unknown male; one of the detectives told Daniel she would help find out what happened to her brother "to persuade her somehow to cooperate"; and at one point, Daniel claimed Gutierrez or the unknown male killed the victim. However, trial counsel noted that, despite these facts, Daniel also said she killed the victim and she was unwilling to explain what role Gutierrez and the other male played. Trial counsel considered arguing that Gutierrez or the other male committed the crime and discussed a third-party culpability defense with Daniel, but ultimately focused on "self-defense and defense of others" based on her statements to him, her statements to police and her family after being arrested, the circumstances of the crime, and the admissible evidence. Not filing a motion to suppress was a reasonable tactical decision under the circumstances here.
Daniel nonetheless argues her counsel settled on a self-defense strategy too soon and without adequate investigation. She contends he should have more fully considered grounds for filing a suppression motion before he decided to "forego challenging the validity of [her Miranda] waiver or the voluntariness of the statement." But even on appeal, Daniel identifies no theory supporting a meritorious motion to suppress. (Kimmelman v. Morrison (1986) 477 U.S. 365, 375 [where a claim of ineffective assistance is premised on the failure to file a timely motion to suppress evidence, the defendant must show (1) a failure to provide objectively reasonable representation, (2) that the motion would have been meritorious, and (3) "that there is a reasonable probability that the verdict would have been different absent the excludable evidence"]; see People v. Gonzalez (1998) 64 Cal.App.4th 432, 438 [counsel has the duty to research and file meritorious motions, but "[w]hen the alleged deficiency is the failure to make a suppression motion, the defendant must show, in addition, the motion would have been successful"].) The factors Daniel relies upon—Daniel's interactions with Gutierrez, the detective's statements about her brother, and her motivation to protect others—do not establish that a motion to suppress would have had merit.
Daniel has not shown that she would have prevailed on a motion to suppress her confession based on her interactions with Gutierrez in the holding cell. Daniel contends her counsel should have considered and sought to obtain evidence to support the claim that Gutierrez was "trying to sweet-talk her into taking the blame for the conduct of one or both of the men in the car." For example, Daniel testified that Gutierrez quietly told her in Spanish not to "sing" to the police while they were alone in the cell. Daniel contends on appeal that transcribing their conversation was a "good start," but counsel should have also obtained technical assistance to enhance the audio. Even if these additional steps had been taken, Daniel could not establish that her confession was involuntary, or that a motion to suppress her subsequent confession to the detectives would have had any merit.
The jury heard the audio recording. For her new trial motion, Daniel did not submit evidence establishing that taking these proposed steps would have revealed any communications between Daniel and Gutierrez other than what was already presented to the jury.
A confession is involuntary if it is not the product of a rational intellect and a free will, such that the defendant's will was overborne at the time he confessed. (People v. Sanchez (2019) 7 Cal.5th 14, 50 (Sanchez).) Daniel suggests her confession was involuntary as a result of pressure exerted by Gutierrez. What is missing here, however, is the crucial element of police coercion. (Id. at p. 50 ["Police coercion is, indeed, crucial. To be considered involuntary, a confession must result from coercive state activity."]; Colorado v. Connelly (1986) 479 U.S. 157, 170-171 [rejecting defendant's argument that a Miranda waiver should be held invalid "whenever the defendant feels compelled to waive his rights by reason of any compulsion, even if the compulsion does not flow from the police"].) Even if Gutierrez had tried to persuade Daniel to confess, that alone is not sufficient to show her confession was involuntary and therefore inadmissible. " 'The Fifth Amendment is not "concerned with moral and psychological pressures to confess emanating from sources other than official coercion." ' " (People v. Hensley (2014) 59 Cal.4th 788, 812 (Hensley).)
Daniel also has failed to show she would have had a meritorious motion to suppress based on her desire to protect Gutierrez and the other male. (See People v. Kendrick (1961) 56 Cal.2d 71, 86 [defendant's hope that a confession would exonerate others did not make the confession involuntary]; People v. Abbott (1958) 156 Cal.App.2d 601, 605 ["The fact, alone, that the principal motive for a confession is that it will probably result in the exoneration of another person who is suspected of complicity in the offense does not render the confession involuntary."].) Moreover, the record reflects that Daniel was "protecting" Gutierrez by preventing him from being implicated in a crime that she committed. At the outset of her confession, Daniel stated, "Well, charging [Gutierrez] for something—he didn't do it—" She later said, "I'm not covering for [Gutierrez]. I just don't want somebody to go down for something I did." The transcript of her conversation with Gutierrez in the holding cell further supports this conclusion. She stated: "I'm not going to say what I saw so just don't trip, but I can't let you go down for something you didn't do babe," and, "I'm so sorry baby, I fucked up. I already know, like who told them. (laughs) Fuck, I'm glad I came back. Because if they would've got you by yourself and never got me, and you went down for something you didn't do, I would've fucking gone crazy anyway."
Daniel also has not shown she could have successfully relied on her conversation with the detective to suppress her confession. In her appellate brief, Daniel characterizes the detective's statement about her brother as a "promise." This interpretation is strained and not supported by the record. Daniel did not testify that the detective made any explicit promise in exchange for her confession; an implied promise cannot reasonably be inferred from the transcript of her interview; and the detective denied offering assistance in exchange for Daniel's confession. There also are no allegations that the detective threatened Daniel, or made any promises of leniency to coerce her confession, which could reasonably support a suppression motion. And the videotaped interview does not show the detectives engaged in " ' "psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." ' " (People v. Cunningham (2015) 61 Cal.4th 609, 643.)
Daniel's entire testimony on this issue is as follows: "Q. [By defense counsel:] Now, [the detective] was—testified briefly that there was a—that something came up with your brother. [¶] When did that conversation come up? [¶] A. It was the second time during the interview she had told me that because I wasn't—I wasn't cooperating in the beginning. I didn't want to tell on anybody. She had told me that she knew who killed my brother and that she— [¶] . . . [¶] She told me it was this guy named Chubs. And, you know, there's rumors that my brother's chopped up somewhere in Mexico. But it's been ten years. [¶] . . . [¶] They still can't find him. . . . And you're still not looking for him."
The relevant testimony on this issue is as follows: "Q. [By defense counsel:] Did you offer to help her about her brother? [¶] A. I—I don't recall exactly the details about her brother. It became clear to me at some point during our interaction with her that her brother may have been missing. But as far as if you're asking if we offered to find her brother in return for her telling us what she knows, no. [¶] Q. When you say during your interaction, was the interaction during the course of this video interview, or was it a previous interview or discussions? [¶] A. I don't recall in what format it was, if it was before the interview or after. She had talked about how her brother was missing. She even brought that up in the interview. [¶] . . . [¶] Q. . . . So you never made any offer to help her regarding her brother; correct? [¶] A. What I recall is that she brought it up in passing. And then it was something that because we didn't have a clear understanding of what she was talking about, we said, Well, we'll try and look into that. I mean that's the basis of it. [¶] Q. When was it brought up in passing? That's what I'm trying to figure out. [¶] A. I don't recall when. During our interaction, that was brought up. She had mentioned it in the interview. And then it was discussed at some point, but it was not an offer. [¶] . . . [¶] I said we can try to look into that. I didn't know any of the details about her brother when she brought that up." (Italics added.)
Even if the detective had falsely promised to help find Daniel's brother (or the person who murdered him), this type of deception does not establish that Daniel's confession was involuntary. "It is well settled that law enforcement may confront a witness with what they know. [Citation.] They may also discuss any advantages that ' "naturally accrue" ' from making a truthful statement. [Citations.] They may explain the possible consequences of the failure to cooperate as long as their explanation does not amount to a threat contingent upon the witness changing [his or] her story. [Citations.] They may even engage in deception as long as it is not of a type 'reasonably likely to produce an untrue statement.' " (People v. Quiroz (2013) 215 Cal.App.4th 65, 79; accord Hensley, supra, 59 Cal.4th at p. 812; see also People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 ["Police officers are . . . at liberty to utilize deceptive stratagems to trick a guilty person into confessing."]; People v. Jones (1998) 17 Cal.4th 279, 299 [deceptive statements that a detective "knew more than he did or could prove more than he could" are permissible].) Daniel has not shown how the detective's offer to help, even if it was made, was reasonably likely to produce a false confession here.
In addition, there is no causal link between the purported promise and Daniel's confession. Daniel contends in her appellate brief that she did not cooperate with the police until after the detective told her she knew who killed her brother. But she fails to acknowledge that she repeatedly continued to deny her guilt after the purported comments by the detective as well. The record therefore contradicts her assertion that the detective's comments caused her to make an involuntary confession. (People v. Linton (2013) 56 Cal.4th 1146, 1176 [coercive police activity does not render the confession involuntary unless the promise and the inducement are causally linked]; People v. McWhorter (2009) 47 Cal.4th 318, 347 [the statement and the inducement must be causally linked].)
The same causal link is missing with respect to the alleged pressure exerted by Gutierrez because, even after her conversation with him in the holding cell, she continued to deny stabbing the victim.
More fundamentally, Daniel has not shown that consulting a false confessions expert would have made any difference to the outcome of her case. A defendant claiming ineffective assistance of counsel based on the failure to call an expert witness "must do more than surmise that defense experts might have provided more favorable testimony." (Lucas, supra, 12 Cal.4th at p. 448, fn. 5.) Here, Daniel did not identify a false confessions expert in her new trial motion, explain what that expert would say, or submit a supporting declaration of the expert's proffered testimony. There is no evidence that an expert was prepared to opine that the detectives' interrogation methods were likely to produce a false confession, or even that Daniel's personal characteristics made her more susceptible to making a false confession. (See People v. Son (2000) 79 Cal.App.4th 224, 241 [where "there was no evidence that police engaged in tactics wearing down [defendant] into making false admissions," the appellate court determined "the proffered expert testimony on police tactics was irrelevant"].) In short, we are left with speculation regarding both the existence and probative value of any expert testimony that Daniel's trial counsel might have presented. Claims regarding defense experts "must be supported by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for exonerating the accused. [Citations.] We cannot evaluate alleged deficiencies in counsel's representation solely on defendant's unsubstantiated speculation." (People v. Cox (1991) 53 Cal.3d 618, 662 (Cox), disapproved of on other grounds by People v. Doolin (2009) 45 Cal.4th 390.) Daniel therefore has not established that her counsel's representation was deficient in failing to confer with and retain an expert in an attempt to suppress her confession. Daniel's trial counsel made a reasonable tactical decision in concluding that Daniel's decision to confess was the product of her free will, not the result of coercive police tactics, and that it therefore was voluntarily made. (Sanchez, supra, 7 Cal.5th at p. 50.)
In requesting a continuance to file Daniel's new trial motion, her new counsel recognized there were "certain procedural prerequisites" for filing such a motion "which is the retention of experts, the filing of declarations, and framing the issues so that [the People] can respond." But there is no indication in the record that an expert was retained.
2. Failure to Interview or Investigate Witnesses
The decisions "whether to put on witnesses are matters of trial tactics and strategy which a reviewing court generally may not second-guess." (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) "Whether to call certain witnesses is also a matter of trial tactics, unless the decision results from unreasonable failure to investigate." (People v. Bolin (1998) 18 Cal.4th 297, 334.)
Daniel contends her trial counsel was ineffective in failing to interview or investigate four witnesses: (1) Martha; (2) Freeman D.; (3) Gutierrez; and (4) Tony. Daniel surmises that interviewing these witnesses and taking other investigative steps, like obtaining Gutierrez's change of plea transcript or seeking field identification (FI) cards, could have revealed the identity of the unknown male, established inconsistencies in the witnesses' statements, and provided a more informed basis for selecting the appropriate defense to pursue. We reject these arguments as speculative.
To prevail on her claim of ineffective assistance based on these asserted grounds, Daniel "must carry [her] burden of proving prejudice as a 'demonstrable reality' not simply speculation as to the effect of the errors or omissions of counsel" by "demonstrat[ing] that counsel knew or should have known that further investigation was necessary, and must establish the nature and relevance of the evidence that counsel failed to present or discover." (People v. Williams (1988) 44 Cal.3d 883, 937 (Williams).) Her claim that counsel failed to call or investigate these witnesses "must be supported by declarations or other proffered testimony establishing both the substance of the omitted evidence and its likelihood for [a more favorable determination]." (Cox, supra, 53 Cal.3d at p. 662.) Daniel offers no such evidence here—she has not provided any declarations establishing that these witnesses could have identified the unknown male, or that they had any information that would have exonerated Daniel or assisted in her defense.
Further, defense counsel explained some of his reasons for concluding that interviewing these witnesses would not be fruitful. He explained that Martha did not witness the stabbing which occurred inside the vehicle; Tony obtained the knife used to kill the victim from Daniel but did not witness the stabbing; and Gutierrez may have been charged with less serious crimes because the "police felt that they couldn't prove that he was involved in the murder," or "they felt that he was less culpable." In hindsight, it is easy to proclaim that more could have been done. But "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." (Strickland, supra, 466 U.S. at p. 689; see People v. Miller (1972) 7 Cal.3d 562, 573 ["[E]ven 'debatable trial tactics' do not 'constitute a deprivation of the effective assistance of counsel.' "]; see In re Cudjo (1999) 20 Cal.4th 673, 693 ["To say that [defense counsel] could have taken other investigative steps is not to say that he should have taken them. Rather, to determine whether [defense counsel] performed an adequate investigation of [victim's husband's] potential culpability, we evaluate his decision not to investigate further 'for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.' "].) Applying this standard, the trial court did not err in rejecting Daniel's argument that her counsel was ineffective in failing to interview or investigate these witnesses.
3. Failure to Investigate the DNA Evidence
Daniel contends her trial counsel rendered ineffective assistance by failing to adequately investigate the DNA evidence. Daniel further asserts, consistent with her arguments ante, that he likely failed to conduct additional DNA testing "because he had already committed himself to a self-defense theory."
To establish ineffective assistance of counsel based on an alleged failure to investigate, a defendant "must prove that counsel failed to make particular investigations and that the omissions resulted in the denial of or inadequate presentation of a potentially meritorious defense." (In re Sixto (1989) 48 Cal.3d 1247, 1257.) Daniel has failed to describe how additional DNA testing would have assisted her, or that it was unreasonable to conclude that self-defense was her best option under the circumstances. Although she contends that her counsel "fail[ed] to delve more thoroughly into the DNA evidence," she has not shown that any helpful information would have been uncovered with additional testing. As previously indicated, the defendant "must demonstrate that counsel knew or should have known that further investigation was necessary, and must establish the nature and relevance of the evidence that counsel failed to present or discover." (Williams, supra, 44 Cal.3d at p. 937.) " ' "[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." ' " (In re Thomas (2006) 37 Cal.4th 1249, 1258.)
Daniel claims independent testing might have detected errors casting doubt on the validity of the DNA evidence connecting her to the murder weapon, and excluding the unknown male as a contributor, or the defense could have requested a reference sample from Tony (the person who Daniel gave the knife to) to see if his DNA was present at the scene. As the trial court recognized, however, it is not clear that additional DNA evidence would have provided the jury with information that would have changed its verdict. The jury was already aware that four individuals were in the vehicle, so the presence of their DNA at the scene does not assist Daniel—particularly where she took the stand and "said that she was the one" who killed the victim. We agree with the trial court's rejection of Daniel's speculative claims regarding additional DNA testing.
Although evidence indicated that two individuals other than Daniel and the victim (the two men) were present at the time of the murder, the physical evidence showed only Ruiz's blood inside the car, and only Ruiz and Daniel's DNA on the murder weapon. Moreover, the one witness who observed the men and Daniel at the scene of the crime described only Daniel as covered in blood.
4. Prejudice
The trial court did not err in denying Daniel's new trial motion, and we deny Daniel's alternative request for this court to conclude her counsel was ineffective. Like the trial court, we conclude Daniel has failed to show her counsel provided ineffective assistance in failing to consult a false confessions expert, failing to interview witnesses, and failing to adequately investigate the DNA evidence. To summarize: Daniel has not shown that a motion to suppress her confession would have been successful. (See People v. Thompson (2010) 49 Cal.4th 79, 122 ["[c]ounsel is not ineffective for failing to make frivolous or futile motions"].) There is no evidence of police coercion, or the type of deception that would reasonably cause her to make a false confession. Even on appeal, Daniel fails to show that a false confessions expert was available to testify at her trial, or what the expert would have said to undermine the validity of her confession. Daniel's speculation that an expert would have assisted her defense is insufficient to show her counsel provided ineffective assistance. Similarly, Daniel has not shown that any of the four witnesses would have provided favorable testimony, or that additional DNA testing would have helped her defense.
The DNA evidence showed that only Ruiz's blood was in the car, Ruiz's and Daniel's DNA were on the murder weapon, and neither Gutierrez nor the unidentified male's DNA were on the murder weapon. Nothing in the record casts doubt on the accuracy or reliability of the DNA analysis.
Even assuming counsel's performance was deficient, Daniel cannot show she was prejudiced. During multiple, separate recorded conversations with her sisters and fiancé, she again—repeatedly—admitted culpability for her crime. Daniel told her fiancé that she would receive the death penalty for the way she killed the victim, that she should not have done what she did, and that she confessed because she left her blood and hair in the vehicle. Daniel told one sister that she had gone on a "killing spree," that she could not wait to get discovery to see who had told on her, and that Tony "[is] gonna have to go bye-bye" for telling on her. Daniel told her other sister that she had already confessed for what she did to Ruiz, that the victim was "talking shit" about her missing brother, that she hated Ruiz (calling her a "stupid bitch" and "piece of shit") for talking about her brother in a negative way, and that she was "glad it happened." In response to prompting by her sister suggesting that it was self-defense, Daniel emphasized that it was "not self-defense."
At trial, Daniel claimed that almost everything she said in her taped confession was a lie but Daniel still proceeded to testify that she was responsible for killing Ruiz. She was asked who stabbed Ruiz, and responded, "It had to be me. It had to have been," and "It couldn't have been anybody else." And as already discussed, the physical DNA evidence further supported Daniel's conviction. Thus, even if trial counsel had taken all the additional measures proposed by Daniel in her new trial motion, there was overwhelming evidence of her guilt and therefore no prejudice resulting from counsel's alleged defects.
These were not Daniel's only admissions of guilt at trial—she made repeated admissions. She was asked if her "code" about not "snitching" "extends not only to not snitching on other people but wanting to take responsibility for things that other people do?" She responded, "It is my fault. This is all my fault. Like I said, this is my fault." When asked if she was angry about the two men leaving her "after [she] stabbed [her] friend," she said, "I'm angry at myself. I can't blame anybody. This is my fault."
In sum, we conclude that Daniel failed to meet her burden under either prong of the Strickland analysis: she did not establish that her trial counsel performed below an objective standard of reasonableness under prevailing professional norms, or that there was a reasonable probability of a different outcome if he had taken the additional steps she proposes. (Strickland, supra, 466 U.S. at pp. 687, 691-692.) Accordingly, the trial court properly denied Daniel's motion for a new trial, and we deny Daniel's alternative request to independently find that her trial counsel provided ineffective assistance.
II.
The Trial Court Did Not Abuse Its Discretion in Denying Daniel's Romero Motion
Daniel contends the trial court erred when it denied her Romero motion to dismiss a prior strike because, in light of the "unusually tragic aspects of Daniel's formative experiences," the trial court's decision that she came within the spirit of the "Three Strikes" sentencing scheme was unreasonable. We disagree.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Daniel explained that, from a very early age, she suffered from sexual abuse, physical abuse, homelessness, drug and alcohol abuse (starting marijuana and methamphetamine use at the age of 12), depression, and suicidal ideation, and that the gang she joined "influenced her to begin engaging in criminal behavior in her teen years."
In the trial court, Daniel argued her background and mental health justify the exercise of the court's discretion under section 1385. The prosecutor countered that, in addition to Daniel's prior strike conviction for carjacking, she was previously convicted for felony car theft in 2004, and within months of being released from prison and while still on parole, she committed an attempted murder and the present offense of murder. The trial court impliedly denied Daniel's Romero motion, sentencing her as a second strike offender.
See footnote 8, ante.
On a silent record, we presume the trial court correctly applied the law. (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
Section 1385, subdivision (a), gives the trial court discretion to dismiss a prior conviction, including a qualifying strike conviction, " ' "in furtherance of justice." ' " (Romero, supra, 13 Cal.4th at p. 530; In re Large (2007) 41 Cal.4th 538, 543 (Large) ["trial courts in cases charged under the Three Strikes law may, in the exercise of their sound discretion, dismiss prior felony conviction allegations in furtherance of justice under section 1385, subdivision (a)"].) "[W]hen facing a motion to dismiss a strike allegation, the trial court 'must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of [the defendant's] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' " (People v. Vargas (2014) 59 Cal.4th 635, 641 (Vargas).)
" '[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial court's power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper.' " (Large, supra, 41 Cal.4th at p. 550.) " '[B]ecause the circumstances must be "extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack" [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary.' " (Vargas, supra, 59 Cal.4th at p. 641.)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 375.) " 'The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' " (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.) Daniel has not established the trial court abused its discretion in denying her Romero motion.
As noted, Daniel contends that her difficult upbringing, which included homelessness, physical abuse, sexual abuse, and substance abuse, places her outside the spirit of the Three Strikes law. She argues that the "extraordinarily callous parenting" she experienced drove her to become involved with gangs and criminal conduct at a young age, and led to her convictions for car theft (Veh. Code, § 10851, subd. (a)), and carjacking (Pen. Code, § 215, subd. (a)). She emphasizes a psychological report which diagnosed her with post-traumatic stress disorder, depressive disorder, and substance abuse issues. While Daniel's background is tragic, we are not persuaded that this case presents extraordinary circumstances such that Daniel "falls outside the spirit of the three strikes scheme." (Vargas, supra, 59 Cal.4th at p. 641.) Daniel has engaged in increasingly violent crimes over a short period of time—she was on parole when she committed the instant offense and had only been out of custody for about six months when she committed the charged murder and a separate attempted murder—and has not taken steps to address her substance abuse and mental health problems that may have contributed to her crimes. The trial court could properly rely on these facts in declining to dismiss Daniel's prior strike conviction. (Carmony, supra, 33 Cal.4th at pp. 378-379.) There is nothing in the record to suggest that the court's decision to deny Daniel's Romero motion in this case was "so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
Daniel contends the trial court "appears to have applied [the Three Strikes] law without fully considering the factors militating in favor of dismissing the strike." The trial court's failure to specifically refer to the matters cited by Daniel in denying the Romero motion is not determinative because we assume the trial court followed the law and considered all appropriate factors even on a silent record. (Carmony, supra, 33 Cal.4th at p. 378; People v. Myers (1999) 69 Cal.App.4th 305, 310 ["The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary."].)
III.
Daniel Is Ineligible for Pretrial Mental Health Diversion
Daniel contends we must remand this matter to allow the trial court to consider whether to grant her mental health diversion under section 1001.36, which sets forth a pretrial diversion program for certain defendants diagnosed with qualifying mental disorders. (§ 1001.36, subd. (a).) If a defendant meets the criteria specified in the statute, the trial court may postpone criminal proceedings to allow the defendant to undergo mental health treatment. (§ 1001.36, subds. (a), (c).) If the defendant performs satisfactorily in diversion, the trial court shall dismiss the criminal charges against the defendant that were the subject of the criminal proceedings at the time of the initial diversion. (§ 1001.36, subd. (e).)
There is a split of authority concerning the retroactivity of section 1001.36. We do not need to address this issue, however, because we conclude Daniel is categorically excluded from diversion under the current statute. Section 1001.36 was enacted and became effective on June 27, 2018 (after Ruiz's murder). (Stats. 2018, ch. 34, § 24.) Effective January 1, 2019, the Legislature amended section 1001.36 to exclude defendants charged with murder. (§ 1001.36, subd. (b)(2)(A); Stats. 2018, ch. 1005, § 1.)
Compare People v. Frahs (2018) 27 Cal.App.5th 784, 791, review granted December 27, 2018, S252220; People v. Weaver (2019) 36 Cal.App.5th 1103, 1120-1122, review granted October 9, 2019, S257049; People v. Hughes (2019) 39 Cal.App.5th 886, 896, review granted November 26, 2019, S258541; and People v. Burns (2019) 38 Cal.App.5th 776, 789, review granted October 30, 2019, S257738 [all concluding statute is retroactive], with People v. Craine (2019) 35 Cal.App.5th 744, 760, review granted September 11, 2019, S256671; People v. Torres (2019) 39 Cal.App.5th 849, 855; and People v. Khan (2019) 41 Cal.App.5th 460, 493, review granted January 29, 2020, S259498 [all concluding statute does not apply retroactively].
Daniel contends that applying the amended section 1001.36, rather than the unamended version, would violate the federal and state prohibitions on ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) She is incorrect. As our Supreme Court has explained, " ' "any statute [1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged of a crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." ' " (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294; accord, People v. White (2017) 2 Cal.5th 349, 360.) "Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." (Weaver v. Graham (1981) 450 U.S. 24, 28-29 (Weaver); accord, In re Vicks (2013) 56 Cal.4th 274, 287.)
"Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense." (Weaver, supra, 450 U.S. at pp. 30-31.)
On the date of Daniel's offense, she would not have been eligible for mental health diversion (because the program did not exist yet). Similarly, under amended section 1001.36, she is not eligible for mental health diversion (because she is categorically excluded). The amendment to section 1001.36 did not increase the punishment Daniel faced, when compared with the date of the commission of her offense, because in both instances mental health diversion would be unavailable to Daniel. The amended statute does not violate the constitutional prohibitions on ex post facto laws as applied to Daniel.
Daniel relies on People v. Perez (1998) 68 Cal.App.4th 346, but it is distinguishable. Perez considered a statutory amendment that replaced a pretrial drug diversion program with a deferred entry of judgment program. (Id. at p. 351.) The defendant in Perez committed his offense while the diversion program was in effect, but the trial court applied the later-enacted deferred entry of judgment program to his case. (Id. at pp. 349-350.) Perez held that such application "arguably" violates ex post facto principles: "[A]pplication of the 1997 amendments to section 1000 to pre-1997 conduct can be viewed as making a defendant's punishment more burdensome than the applicable punishment at the time of the commission of the alleged conduct. [Citation.] Therefore, application of 1997 section 1000 to conduct committed before January 1, 1997, arguably is a prohibited application of an ex post facto law." (Id. at p. 356, fn. omitted.)
Unlike in Perez, applying amended section 1001.36 to Daniel does not result in any greater punishment than Daniel faced when she committed her offense. In both cases, as noted, pretrial mental health diversion would not be available to her. Daniel has not established any ex post facto violation.
Because we conclude that Daniel is ineligible for mental health diversion on this basis, we decline to consider the Attorney General's alternate arguments that section 667, subdivision (c)(2) renders her statutorily ineligible for diversion or that remand would be futile here.
IV.
Remand for Resentencing to Exercise Discretion as to Whether to Strike the Previously
Mandatory Five-year Sentencing Enhancement
Daniel contends she is entitled to remand for resentencing pursuant to sections 667 and 1385, as amended by Senate Bill No. 1393, which, effective January 1, 2019, allows the trial court to exercise discretion to strike a formerly mandatory five-year enhancement applicable to defendants who have suffered a prior serious felony conviction. (Stats. 2018, ch. 1013, §§ 1-2.) Under the previous versions of these statutes, the trial court was required to impose a five-year consecutive term for "[a]ny person convicted of a serious felony who previously has been convicted of a serious felony" (former § 667, subd. (a)(1)), and the court had no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667" (former § 1385, subd. (b)). (See People v. Williams (1987) 196 Cal.App.3d 1157, 1160 [former section 1385 "remove[d] from the trial court all discretion to strike the prior felony convictions, thus rendering imposition of a five-year enhancement for each such prior conviction a certainty"].)
Daniel contends, and the Attorney General concedes, the amendments apply here because Daniel's conviction is not yet final. We agree. (People v. Jimenez (2019) 32 Cal.App.5th 409, 426; People v. Garcia (2018) 28 Cal.App.5th 961, 973 [concluding the Legislature intended Senate Bill No. 1393 to "apply to all cases to which it could constitutionally be applied, that is, to all cases not yet final" when the legislation went into effect].) We thus remand for resentencing but express no opinion as to how the trial court should exercise its discretion.
DISPOSITION
The sentence is vacated, and the matter is remanded to allow the trial court to exercise its discretion to determine whether to strike the five-year enhancement under Penal Code sections 667, subdivision (a)(1) and 1385. In all other respects, the judgment is affirmed.
GUERRERO, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.