Opinion
D073443
08-22-2018
THE PEOPLE, Plaintiff and Respondent, v. HERBERT CORNEJO MENDEZ, Defendant and Appellant.
Patricia L. Brisbois, 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, Arlene A. Sevidal and Elizabeth Renner, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. INF1301168) APPEAL from a judgment of the Superior Court of Riverside County, Victoria E. Cameron, Judge. Conditionally reversed and remanded. Patricia L. Brisbois, 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, Arlene A. Sevidal and Elizabeth Renner, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Herbert Cornejo Mendez was convicted of the first degree murder of Angel Palacios, with the special circumstance of lying-in-wait, with personal use of a deadly weapon. (Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(15), 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The primary evidence against Mendez was provided by Mendez's confessions to law enforcement officials. Mendez contends that the first two confessions, which were conducted by an FBI agent in El Salvador, were involuntary, and that these confessions tainted the voluntariness of his two later confessions to a Riverside County Deputy Sheriff, so that all his confessions must be excluded.
Mendez moved to exclude his statements as involuntary. He asserted that his free will was overborne because it was induced by a false promise of assistance by the FBI agent, after he told the agent that he feared that gang members in El Salvador would kill him because he had not followed gang orders. Mendez said that the agent promised him a visa and refuge in the United States if he confessed to a murder. The FBI agent did not record his interviews with Mendez.
The trial court decided the motion to exclude after hearing oral argument only, without testimony from Mendez and the agent. The court failed to make a fair and reliable determination of the voluntariness of the confession by failing to hold an evidentiary hearing as required by Jackson v. Denno (1964) 378 U.S. 368, 394 (Jackson). There is no actual evidence in the record to support the trial court's ruling. We conditionally reverse the conviction and remand for the trial court to hold an evidentiary hearing on Mendez's claim. If after a hearing the trial court finds any of Mendez's confessions were voluntary, the judgment will be reinstated.
FACTS
The facts are brief because we remand the case for further proceedings on a preliminary fact, and no other issues about the conviction have been raised.
In early September 2005, a Caltrans worker found the body of Angel Palacios on the side of eastbound Interstate 10, near the Eagle Mountain Road exit in Riverside County. The body was in an advanced state of decomposition and clothed only in shorts and boxers. Palacios's last contacts were several telephone calls with Laura Grijalva on August 26, 2005. He told her that two friends were driving him back to Tucson, Arizona. Palacios never arrived in Arizona.
Palacios had 30 to 40 sharp force injuries, consisting of stabbing wounds, chopping wounds and incised wounds. The chopping wounds could have been caused by a machete. Palacios also had three or four blunt force injuries on the top and back of his head, caused with force great enough to depress his skull. The cause of death was multiple sharp force trauma.
Investigators could not find any information about the murder. The investigation went cold.
In February 2013, Mendez was deported to El Salvador from the United States due to his illegal entry. When deportees arrived in El Salvador, they were held in a room at the airport while facilitators checked for warrants and helped the deportees find family members and transportation. The FBI had a program of gathering information from gang members when they arrived in El Salvador. FBI agents asked known gang members about the structure of the gang and about unsolved crimes in the United States and El Salvador. FBI Special Agent Bret Curtis was working in this program in El Salvador when Mendez arrived in 2013.
Mendez was a member of Mara Salvatrucha-13 (MS-13), a gang that operated in both El Salvador and the United States. Agent Curtis interviewed Mendez at the airport in El Salvador. Mendez was not in custody. Per FBI policy, the interviews were not recorded because the agents were gathering information, not interviewing suspects.
Agent Curtis testified that at the beginning of the interview, he told Mendez there was a possibility of working as an informant for the FBI. Mendez said that he wanted to go back to the United States because he was afraid that members of MS-13 would kill him and his family. Mendez testified that Agent Curtis said that he could help Mendez get a visa to go back to the United States if Mendez told him about a crime at which he was present. According to Agent Curtis, Mendez repeatedly asked about the witness protection program. The agent said he would look into that program, but made no promises to Mendez. Mendez eventually told Agent Curtis about several murders in California and in El Salvador.
Mendez told Agent Curtis that a leader of the MS-13 gang, Mauricio Aguilar, ordered Mendez to kill Palacios, a fellow MS-13 gang member, because Aguilar thought that Palacios planned to kill Aguilar and take over his cocaine-selling business. Mendez and two fellow gang members drove Palacios to Arizona where he had family. While driving east on Interstate 10, east of Indio, they parked on the side of the road on the pretext of stopping to urinate. Mendez and another of the gang members struck Palacios repeatedly with a machete until they killed him.
Agent Curtis talked with Investigator Nelson Gomez of the Riverside Sheriff's Office, who confirmed that the unsolved murder of Palacios had occurred years earlier. He talked with Mendez about the murder again a few weeks later, in another unrecorded interview in El Salvador. Investigator Gomez then interviewed Mendez about the murder telephonically by Skype. During this interview, Agent Curtis and Investigator Gomez discussed getting a parole visa for Mendez to return to the United States. Agent Curtis never told Mendez about the limited nature of the visa, or the amount of custody he would receive for participating in the murder.
The FBI provided Mendez with lodging in a hotel and money for food while they waited for Investigator Gomez to obtain an arrest warrant. The FBI gave Mendez an airline ticket to the United States. According to Mendez, Agent Curtis told him that he had to repeat the same story about the Palacios murder that Mendez had given to him, or he would lose his visa to enter the United States. Mendez was arrested when the plane landed in the United States. In Riverside County, Investigator Gomez interviewed Mendez again while he was in custody. Investigator Gomez advised Mendez of his rights, and Mendez said he understood them. Mendez told Investigator Gomez about the crime again, and that he was afraid that MS-13 would kill him if he returned to El Salvador.
At trial, Mendez denied participating in Palacios's murder and said he learned the information from other gang members.
DISCUSSION
I. A Full, Fair and Reliable Hearing is Necessary to Determine if a Confession is Voluntary
Mendez contends that all his statements to Agent Curtis and to Investigator Gomez were involuntary because they were induced by Agent Curtis's promise to get him a visa to, and refuge in, the United States after Mendez told the agent that he believed MS-13 would kill him if he remained in El Salvador. The trial court found that Mendez's statements were voluntary, based only on arguments by the attorneys. The trial court did not hold an evidentiary hearing on the question of voluntariness, and the interviews in El Salvador were not recorded. Thus, there was no admissible evidence, much less substantial evidence, that supported the trial court's finding. This case must be remanded for the trial court to hold an evidentiary hearing on the circumstances of Mendez's unrecorded confessions to Agent Curtis. Only then can the trial court make a full, fair and reliable determination of the voluntary nature of those confessions. (Jackson, supra, 378 U.S. at pp. 392-394; People v. Bennett (1976) 58 Cal.App.3d 230, 236 (Bennett).)
The conviction is conditionally reversed. It may be reinstated if the trial court finds, after a full hearing, that all the confessions were voluntary. If the court finds that all the confessions were involuntary, the conviction will remain reversed because no evidence supports Mendez's conviction other than his confessions. (Jackson, supra, 378 U.S. at p. 396.) If the trial court finds some of the confessions were voluntary, it can retry Mendez with those confessions.
A. Background
Mendez moved in limine to exclude his statements to Agent Curtis and to Investigator Gomez claiming they were involuntary. His attorney asserted in a written motion that Mendez was in fear for his life when he returned to El Salvador because he had failed to follow the orders of an MS-13 gang leader. He had previously been kidnapped and beaten by the gang for not following orders. Defense counsel said that Mendez expressly told both the FBI agent and the Riverside Deputy Sheriff that he was in fear for his life if he remained in El Salvador. Counsel claimed that knowing of this fear, Agent Curtis offered to provide a visa to return to the United States in exchange for information. Mendez implicated himself in the murder of Palacios to secure the refuge promised by Agent Curtis. His confession was not voluntary.
The People did not file written opposition to Mendez's motion. In a trial brief, the People contended that Mendez was not in custody when Agent Curtis interviewed him, so that Miranda warnings were not required. The People also asserted that Investigator Gomez advised Mendez of his rights before the last interview. Mendez said he understood his rights and continued to talk with the investigator. Defense counsel agreed that Mendez was told of and waived his rights at the fourth interview, when he was in custody, and that he was not in custody during the preceding three interviews, but continued to maintain that none of Mendez's statements were voluntary because all were induced by, or a product of, Agent Curtis's promise of a visa to the United States.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
The trial court heard oral argument on Mendez's motion to exclude his statements to Agent Curtis and Investigator Gomez because they were not voluntary. Defense counsel said that Mendez told Agent Curtis that he was in fear for his life because MS-13 members in El Salvador would kill him. Counsel said that the FBI agent promised Mendez refuge in the United States in exchange for information. Counsel continued that Mendez gave Agent Curtis information about other homicides that he was not involved in, but Agent Curtis told him that was not enough for help and refuge. Defense counsel claimed that Mendez falsely implicated himself in the Palacios murder to obtain refuge in the United States. She said that Mendez repeatedly mentioned his fear of being killed by MS-13 in El Salvador. Agent Curtis talked with Mendez about a visa to the United States. At the end of the third interview over Skype, Agent Curtis and Investigator Gomez talked about a parole visa as the only way to get Mendez back into the United States. Mendez understood this discussion of a visa as confirmation that he would get refuge in the United States. Counsel acknowledged that Mendez asked about jail time, and that he knew he would have to spend some time in jail, but he had no idea of the severity of the punishment he would face.
The trial court ruled the statements admissible. It stated that Mendez was not in custody when he told Agent Curtis about the murder. Mendez understood that he would do jail time. The interviews were voluntary and Mendez was read his Miranda rights in the last interview. The court stated that the officers repeatedly told Mendez that he was not getting any benefit, and that the FBI agent documented that he made no promises to Mendez.
The record contains no documentation that Agent Curtis made no promises to Mendez.
B. Analysis
"Both the state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial." (People v. Wall (2017) 3 Cal.5th 1048, 1065-1066 (Wall), citations and internal quotation marks omitted.) This constitutional mandate applies to aliens who are questioned by United States law enforcement officers in a foreign country. (United States v. Straker (D.C. Cir. 2015) 800 F.3d 570, 612.) The Fifth Amendment's privilege against self-incrimination ensures trustworthiness of the statements and deters misconduct by law enforcement officers. It therefore applies whenever American law enforcement agents are interrogating suspects, both inside and outside the United States. Also, the constitutional violation occurs in an American court when a coerced statement is used against a defendant in an American criminal proceeding. (In re Terrorist Bombings of U.S. Embassies in East Africa (2d Cir. 2008) 552 F.3d 177, 198-203; United States v. Clarke (D.C. Dist. 2009) 611 F.Supp.2d 12, 29-30.) Coerced statements are therefore excluded from criminal courts even when the declarant is not a citizen and when the interrogation occurs outside the United States.
The touchstone of coercion is an overbearing of the individual's free will. "A confession is involuntary if 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." (Wall, supra, 3 Cal.5th at pp. 1065-1066, citations and internal quotation marks omitted.) Coercion goes beyond physical force and includes psychological coercion. " '[W]here a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary and inadmissible as a matter of law.' " (Id. at p. 1066, quoting People v. Boyde (1988) 46 Cal.3d 212, 238; People v. Tully (2012) 54 Cal.4th 952, 985 (Tully).) An express or implied promise of advantage must be the actual motivation for the confession to be coercive. " 'This rule raises two separate questions: was a promise of leniency either expressly made or implied, and if so, did that promise motivate the subject to speak?' " (Tully, at p. 986.)
" 'The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made.' " (Wall, supra, 3 Cal.5th at p. 1066, quoting People v. Carrington (2009) 47 Cal.4th 145, 169.) The determination of the voluntary character of the confession is based on the totality of the circumstances. No single factor is determinative. The court may look at the details of the interview, such as the demeanor of the officer and the length, location, and continuity of the questioning, but also the characteristics of the defendant, including the defendant's maturity, education, and physical and mental health, and personal circumstances. This list is not exclusive. (Ibid.; People v. Duff (2014) 58 Cal.4th 527, 556 (Duff).) " 'On appeal, we conduct an independent review of the trial court's legal determination' as to the voluntariness of a confession." (Wall, at p. 1066, quoting People v. Williams (2010) 49 Cal.4th 405, 425.) We rely on the trial court's factual findings to the extent they are supported by substantial evidence. (Wall, at p. 1066.)
Here, Agent Curtis did not record his interviews with Mendez, and the trial court did not conduct an evidentiary hearing to elicit the details of the confessions. Mendez was not able to provide the full basis of his contention because the trial court heard no testimony from him. Accordingly, Mendez did not receive a full, fair and reliable determination of the circumstances of his unrecorded confessions before the trial court ruled on the voluntary nature of those confessions. (Jackson, supra, 378 U.S. at p. 391.) Due process entitles a defendant to "a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually and reliably determined." (Id. at p. 380.) When making the preliminary determination of the voluntary nature of the confession, the trial court should not consider whether the defendant's confession is true or false, or whether he committed the crime or not. (Id. at pp. 376-377.) The essential elements of due process accorded in a hearing include the defendant's right to a full and fair opportunity to be heard, as well as to cross-examine adverse witnesses. (People v. Smithson (2000) 79 Cal.App.4th 480, 496; Jackson, at p. 391 [right to full and reliable hearing]; People v. Rowe (1972) 22 Cal.App.3d 1023, 1030 (Rowe) [if the People make a prima facie showing of voluntariness, defendant must have an opportunity to overcome that showing].)
In Jackson, the defendant was interviewed in a hospital, shortly after he had been shot twice. (Jackson, supra, 378 U.S. at pp. 371-372.) Pursuant to state procedure at the time, when a question was raised about the voluntariness of a confession, the trial court submitted the question of voluntariness to the jury. The trial court told the jury to disregard the confession entirely if it found that it was involuntary. (Id. at p. 374.) The Supreme Court found that this procedure violated the defendant's right to due process because it did not ensure a reliable determination of voluntariness of confession, and did not adequately protect the defendant's right to be free of conviction based on a coerced confession. The defendant was entitled to a hearing on the question of the voluntariness of his confession. (Id. at p. 377.) The court remanded the case to the state court to hold "an adequate evidentiary hearing productive of reliable results concerning the voluntariness of his confession." (Id. at p. 394.)
California courts have found Jackson to require an evidentiary hearing of the voluntariness of a confession, as a preliminary fact that must be decided by the trial court. (People v. Hoyos (2007) 41 Cal.4th 872, 897-898 ["under the federal due process clause, a defendant has a right to an evidentiary hearing on the issue of his confession's voluntariness,"] abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610, 636, 641; Matylinsky v. Budge (9th Cir. 2009) 577 F.3d 1083, 1094, fn. 5 ["A Jackson v. Denno . . . hearing is an evidentiary hearing, outside the presence of the jury, where the court inquires as to the voluntariness of the defendant's confession"]; Rowe, supra, 22 Cal.App.3d at pp. 1029-1031 [necessity of evidentiary hearing on voluntariness of confession]; Cramer v. Shay (1979) 94 Cal.App.3d 242, 246 (Cramer) ["Jackson v. Denno . . . held that a voir dire hearing must be held outside the presence of the jury to determine the admissibility of the confession"]; Bennett, supra, 58 Cal.App.3d at p. 236 ["[t]hat a defendant is entitled to a voir dire hearing on the Miranda question before his extrajudicial statements are admitted into evidence is beyond question"].) Sections 402 and 405 of the Evidence Code require the trial court to determine preliminary facts, including the voluntariness of a confession. (People v. Torrez (1987) 188 Cal.App.3d 723, 730-733 (Torrez); People v. Fowler (1980) 109 Cal.App.3d 557, 563-564 (Fowler) overruled on other grounds by People v. Humphrey (1982) 138 Cal.App.3d 881, 882; Cramer, supra, 94 Cal.App.3d at pp. 245-248; Bennett, supra, 58 Cal.App.3d at pp. 235-237; Rowe, supra, 22 Cal.App.3d at pp. 1029-1031.)
An evidentiary hearing may not be required when the interview was recorded because the facts surrounding the admission or confession are undisputed. (Duff, supra, 58 Cal.4th at p. 551.)
Evidence Code section 402 provides:
"(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
"(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.
"(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute."
Evidence Code section 405 provides:
"With respect to preliminary fact determinations not governed by Section 403 or 404:
"(a) When the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rule of law under which the question arises. The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises.
"(b) If a preliminary fact is also a fact in issue in the action:
"(1) The jury shall not be informed of the court's determination as to the existence or nonexistence of the preliminary fact.
"(2) If the proffered evidence is admitted, the jury shall not be instructed to disregard the evidence if its determination of the fact differs from the court's determination of the preliminary fact."
The defendant's objection to admission of a statement is sufficient to trigger the trial court's obligation to hold an evidentiary hearing without a specific request to do so. (Bennett, supra, 58 Cal.App.3d at pp. 235-236; Fowler, supra, 109 Cal.App.3d at p. 563.) The hearing must be full and fair, with an opportunity for the defendant to fully present his defense. In Bennett, the defendant objected to admission of testimony from a psychiatrist who interviewed the defendant apparently at the behest of the police. The trial court admitted the evidence without an evidentiary hearing into the circumstances of the interview. The appellate court found this to be error. The defendant was entitled to an evidentiary hearing on the voluntariness of his statements before they were admitted. The obligation was triggered by the defendant's timely objection. (Bennett, at pp. 235-236.) The judgment was reversed because the People did not meet their burden of demonstrating that the defendant knowingly and intelligently waived his rights. (Id. at pp. 239-240.) Similarly, in Cramer, the appellate court found the failure to hold an evidentiary hearing on the voluntariness of the statement was constitutional error under Jackson that was not harmless beyond a reasonable doubt. (Cramer, supra, 94 Cal.App.3d at p. 247.) In Rowe, defendant was permitted brief questioning of the police officer as to the voluntary nature of the confessions. The trial court did not permit defendant to cross-examine the officer or to call his own witnesses to attack the voluntariness of the confessions. (Rowe, supra, 22 Cal.App.3d at p. 1028.) The Rowe court found the trial court's failure to give the defendant an opportunity to overcome the prima facie showing of voluntariness was grave error. (Id. at p. 1031.) In Torrez and Fowler, the question was whether it was error to hold the hearing on voluntariness in front of the jury, under Evidence Code sections 405, subdivision (b)(1), and 402, subdivision (b). The Torrez court found that it was error, and the Fowler court found it was not. (Torrez, supra, 188 Cal.App.3d at pp. 731-733; Fowler, supra, 109 Cal.App.3d at pp. 563-565.)
These sections appear to be contradictory. Evidence Code section 405, subdivision (b)(1), requires that the determination of the voluntariness of a confession be held outside the presence of the jury—"[t]he jury shall not be informed of the court's determination as to the existence or nonexistence of the preliminary fact," if the fact is at issue in the case. Section 402, subdivision (b), on the other hand, requires an in camera hearing only "if any party so requests." --------
Fowler, Torrez, Bennett, Rowe and Cramer all recognized the necessity of holding an evidentiary hearing when a defendant objected that his statement was not voluntary. Indeed, the Fowler court stated clearly the obligation to hold a hearing: "[A] defendant in a criminal case has a constitutional right at some stage of the proceedings to have a fair hearing and a reliable determination on the issue of voluntariness. This hearing must be by the court, not the jury. The right to such a hearing is triggered by an objection on any grounds to the admission of the incriminating statement." (Fowler, supra, 109 Cal.App.3d at p. 563, citing Jackson, supra, 378 U.S. at pp. 376-383, other citations omitted.)
The trial court violated Mendez's due process right by not holding a full and fair hearing as required by Jackson. (Jackson, supra, 378 U.S. at pp. 376-383, 391, 394; Torrez, supra, 188 Cal.App.3d at pp. 730-733; Fowler, supra, 109 Cal.App.3d at p. 563; Cramer, supra, 94 Cal.App.3d at pp. 245-248; Bennett, supra, 58 Cal.App.3d at pp. 235-237; Rowe, supra, 22 Cal.App.3d at pp. 1030-1031.) We are not confident on this record that Mendez's initial confession to Agent Curtis was not induced by a promise of a significant advantage.
Mendez's confession at his first, noncustodial interview may have been involuntary if it was psychologically induced by promises made by Agent Curtis, combined with Mendez's feeling of vulnerability due to the MS-13 threat. (Wall, supra, 3 Cal.5th at p. 1066; Tully, supra, 54 Cal.4th at p. 985.) Mendez's subsequent confessions were the result of his initial confession, as there was no evidence tying Mendez to the murder other than his confessions. If Mendez's noncustodial confessions to Agent Curtis were psychologically coerced, they could have tainted the subsequent interviews, including Inspector Gomez's last interview at which he advised Mendez of his Miranda rights. (See People v. Jones (2017) 7 Cal.App.5th 787, 809-810 [due process prohibits admission of involuntary statement, separate and apart from Fifth Amendment protection against self-incrimination provided by Miranda]; Mincey v. Arizona (1978) 437 U.S. 385, 397 & fn. 12 [statement must be voluntary to be admissible, and question of voluntary nature is separate from Miranda warnings given in custodial interrogation].)
Subsequent confessions that are the result of involuntary confessions are subject to exclusion. (Leyra v. Denno (1954) 347 U.S. 556, 561; People v. McWhorter (2009) 47 Cal.4th 318, 359 (McWhorter).) There is a rebuttable presumption that subsequent confessions are the product of the first "because of the psychological or practical disadvantages of having let the cat out of the bag by confessing." (McWhorter, at p. 359, citation and internal quotation marks omitted.) The People have the burden of proving "a break in the causative chain between the first confession and the subsequent confession." (Ibid.) " 'The degree of attenuation that suffices to dissipate the taint 'requires at least an intervening independent act by the defendant or a third party' to break the causal chain in such a way that the second confession is not in fact obtained by exploitation of the illegality.' " (Id. at p. 360.)
The People point out that many of the factors for rebutting the presumption of taint that were relied upon in McWhorter are present here. The interviews were conducted by two different officers. Several days passed between the interviews by Agent Curtis and the interviews by Inspector Gomez, particularly the last one. Mendez was advised of his Miranda rights before he made the last statement. The defendant in McWhorter, however, was mature, sophisticated and articulate. The second officer did not exploit the coercive threat that was used in the first interview. The defendant recanted his earlier statement in the second interview. (McWhorter, supra, 47 Cal.4th at pp. 360-361.) We have no information about Mendez's personal characteristics here, except that Mendez had no idea about the severity of his crime and the amount of prison time that he would serve. If, on remand, the trial court determines that Agent Curtis induced Mendez's confessions unlawfully, the People will have the opportunity to rebut the presumption that the subsequent interviews were the product of any illegality at the earlier confessions.
Both parties agree that the conviction would have to be reversed without any of Mendez's confessions. There is no evidence of Mendez's guilt other than his statements. As in Jackson, we reverse the judgment and remand this case to the trial court to hold an evidentiary hearing on the voluntariness of Mendez's confessions. (Jackson, supra, 378 U.S. at pp. 394-395.) If the trial court concludes after a full hearing that Mendez was not induced by promises such that his free will was overborne, the judgment may be reinstated. If, however, the trial court finds that Agent Curtis made promises that overbore Mendez's free will, the People may attempt to show that his confessions to Investigator Gomez were not obtained as a result of his confessions to Agent Curtis because an intervening independent act broke the chain of causation from any coercive statements by Agent Curtis. (McWhorter, 47 Cal.4th at p. 360.) If so, Mendez can be retried with his confessions to Investigator Gomez. If not, the judgment will remain reversed. (Ibid.) II. The Abstract Has Been Corrected.
The People state in the respondent's brief that the abstract of judgment incorrectly shows a sentence of life with the possibility of parole. But the abstract was subsequently corrected, as Mendez points out.
DISPOSITION
We conditionally reverse the judgment and remand to the trial court to hold an evidentiary hearing on the voluntariness of Mendez's confessions.
BENKE, J. WE CONCUR: MCCONNELL, P. J. DATO, J.