Opinion
C091320
11-23-2021
THE PEOPLE, Plaintiff and Respondent, v. JESUS ESTEBAN PEREZ, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. CRF190001822A)
RAYE, P. J.
Defendant Jesus Esteban Perez appeals a judgment entered following his conviction by jury of murder (Pen. Code, § 187, subd. (a)), felony evading of an officer under circumstances demonstrating a disregard for the safety of others or property (Veh. Code, § 2800.2), unlawful possession by a felon of a firearm and ammunition (§§ 29800, subd. (a)(1), 30305, subd. (a)(1)), and misdemeanor resisting or obstructing a police officer (§ 148, subd. (a)(1)). The jury also found true the special enhancement allegations that as to the murder, defendant had personally discharged a firearm causing death (§ 12022.53, subd. (d)) and that he was armed while evading (§ 12022, subd. (a)(1)). The trial court determined in a bifurcated proceeding that defendant had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12), a prior serious felony conviction (§ 667, subd. (a)), and three prior prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to an aggregate indeterminate term of 80 years to life for the murder (including enhancements) and an aggregate determinate term of seven years and four months for the remaining counts.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends his trial counsel was prejudicially ineffective for failing to move to exclude evidence of an allegedly involuntary previous statement of a testifying witness, which was given to authorities. As we shall explain, we disagree and will affirm the judgment.
I. BACKGROUND
We limit our recitation of the facts and procedural history given defendant's limited issues on appeal. It suffices to say that the People's theory was that defendant shot the victim Paramjit Randhawa and then fled in his fiancee S. J. 's blue Honda Civic shortly after S.J. and her son M.S. discovered the body. The People presented evidence that authorities responding to the crime scene attempted to stop defendant, who was still in the Honda Civic. He was "sweating" and appeared "frantic." The officer, with his cruiser's lights activated, did a U-turn so that he was behind the Honda Civic, learned from dispatch that the car was registered to the person who had called 911, and activated his cruiser's siren. Defendant was slow to pull over, and when he did, he furtively moved about, causing the responding officer to draw his gun and announce himself. In response, defendant shouted "No" three times and then took off, increasing his speed to approximately 80 miles per hour. Defendant ultimately lost control and crashed the Honda Civic through a fence, rolling it over several times before it came to rest in a field. Defendant fled on foot, but was apprehended a short time later.
Recovered near the crash site was an empty shotgun. Recovered from within the Honda Civic itself were three shotgun shells that were consistent with parts of the shotgun ammunition (specifically the distinctive wads) recovered near the murder victim's body and from the victim's head. Similar ammunition was recovered from the defendant's pocket, along the route that defendant had fled, and by S.J. 's house. An expert opined that one spent shell found along the chase route had cycled through the recovered shotgun.
To further link defendant to the shotgun that was believed to have killed the victim, the People called M.S. as a witness. Given defendant's challenge to the admission of an excerpt of M.S.'s July 19, 2019 statement to Sutter County Detective Carlos Mendoza, we will recount the relevant testimony of M. S. and Mendoza in the discussion section herein.
The jury reviewed the excerpt of M. S. 's interview, as well as the 911 call by S.J. during deliberations.
Defendant, on the other hand, testified that he did not commit the murder and had been merely going to buy tools and a part for his truck when he fled from authorities, reaching a top speed of approximately 80 to 90 miles per hour. Defendant, who was a convicted felon on parole, conceded he knew that he was not allowed to be in possession of a firearm and that there was a shotgun in the car he was driving. Worried about this, and in light of negative experiences with law enforcement, defendant fled rather than submitting to questioning. Defendant denied carrying the gun to the car. Defendant also denied knowing, harboring any ill will towards, or killing the victim.
II. DISCUSSION
Defendant's lone contention on appeal is that his trial counsel was prejudicially ineffective for failing to move to exclude evidence of M.S. 's allegedly involuntary statement given to authorities on or around July 19. We disagree.
A. Background
On direct examination, M.S. testified he was playing his video game when his mother asked him to accompany her to check out a sound. They discovered a body in the orchard and went back to the house for a cell phone. While waiting for his mother to return with the phone, M.S. saw defendant get into M.S. 's mother's Honda Civic with a three-foot long black stick that he held at his right side. Defendant then left.
On cross-examination, M.S. relayed he was 18 years old and had been interviewed by authorities four or five times. One of those times was sometime in July after his mother had been arrested. During this interview, the police accused him of lying and suggested how long his mother remained in jail would depend on what he told authorities. They told him they would contact the district attorney to have her released if he "decided to say that he saw [defendant] with a black stick," and after he admitted he saw defendant with the black stick, his mother was indeed released.
M.S. was 17 years old at the time of the challenged interview, but 18 years old by the time of trial.
Prior to this interview, M.S. had repeatedly denied ever seeing defendant with a gun and had never mentioned seeing him with a black stick. At trial, M.S. was not sure if what he saw him with "was exactly a gun," but he confirmed that he had "seen him with something." The gun in the picture authorities showed him appeared bigger than the stick he had seen. M.S. Had never seen defendant with a "firearm." Further, M.S. had never seen defendant talk to the victim, nor was he aware of any relationship they might have had. M. S. told police that shortly after discovering the victim, he saw a blue truck with a camper shell speeding away down the road, but the police did not believe him.
On redirect, M.S. clarified that he saw the blue truck speeding away as they were headed back to the house to get the phone. When presented in court with the actual shotgun defendant was accused of using, M.S. testified that he could not tell whether defendant was holding a gun or a stick because he had been holding it to his side, but whatever he had been holding was "around" the size of the gun presented in court. Before he told Detective Mendoza about seeing the stick, the detective had repeatedly admonished him to tell the truth. And M.S. did tell the detective the truth, specifically, that he had seen "[defendant] with the black stick."
On direct examination, Detective Mendoza testified that he interviewed M.S. two times related to the investigation, once at his house and once at the Sutter County Sheriffs office. The July 19, 2019 interview at the Sheriffs office was recorded and lasted a "couple hours." Detective Mendoza thought M.S. was holding back and admonished him five to 10 times to tell him the whole truth. The detective denied ever threatening him or implying anything would happen to M. S. or his family for failure to give a statement. Without objection, a video excerpt of approximately five minutes of this interview was entered into evidence as People's Exhibit No. 71 and played for the jury. The jury was also provided with a transcript of the audio of that video to assist them. Detective Mendoza did not tell M. S. he needed to say anything that was played in the video. Rather, M.S. was only told to tell the truth.
In fact, the trial court specifically asked defense counsel whether he wanted an Evidence Code section 402 hearing on that video, and defense counsel declined.
On cross-examination, Detective Mendoza conceded he and M.S. discussed how long M.S. 's mother might remain in custody, and Detective Mendoza commented, "I don't know. It just depends if you want to help your mom out. That's up to you." He also agreed that he had told M.S. that he had reached out to the district attorney and "Victim Witness" and that they could help him. M.S. had previously told authorities that he did not "want to be involved," and Detective Mendoza believed there was more he could tell them. Detective Mendoza denied that M. S.' s helping his mother necessitated a statement implicating defendant, but rather all that was required was that he tell them the truth. He also represented that M.S. would be free to leave with his sister when she arrived, and Detective Mendoza would also follow up with the district attorney regarding M.S. 's mother, but only if he told them the whole truth.
On redirect, Detective Mendoza clarified M.S. was not under arrest and was free to leave during the interview, but that he needed a ride. Detective Mendoza did not raise his voice or yell at him during the interview, and M.S. was afforded at least one break to speak with his sister. Detective Mendoza repeatedly implored M. S. to tell him the whole truth and believed M.S. was holding back because he had previously said that he did not want to be involved and did not want to testify. Detective Mendoza never asked for specifics regarding defendant and never promised that the district attorney would do anything specific with regard to M.S. 's mother's arrest.
B. Analysis
Defendant contends M.S.'s July 19 statement that M.S. saw defendant getting into the Honda Civic with a gun was coerced. Because defendant seeks to suppress a third party witness statement, he bears the burden of showing M.S.'s statement was coerced. (People v. Badgett (1995) 10 Cal.4th33O, 348; People v. Quiroz (2013) 215 Cal.App.4th 65, 78.) Whether a statement was coerced is an intensive factual question that requires an evaluation of the totality of the circumstances (People v. Dykes (2009) 46 Cal.4th 731, 752) and is subject to de novo review (People v. Richardson (2008) 43 Cal.4th 959, 992-993; Quiroz, at p. 78). Recognizing he has forfeited this claim by failing to object below (People v. Kennedy (2005) 36 Cal.4th 595, 611-612, disapproved on other grounds as stated in People v. Williams (2010) 49 Cal.4th 405, 459), defendant argues his counsel was prejudicially ineffective for failing to move to exclude that statement on this basis.
"To show ineffective assistance of counsel, defendant has the burden of proving that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. [Citations.] [¶] Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight. [Citation.] 'When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation. If the record sheds no light on why counsel acted or failed to act in the manner challenged, "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation" [citation], the contention must be rejected.' [Citation.] A reviewing court will not second-guess trial counsel's reasonable tactical decisions." (People v. Kelly (1992) 1 Cal.4th 495, 519-520.)"' [E]ven "debatable trial tactics" do not "constitute a deprivation of the effective assistance of counsel." '" (People v. Weaver (2001) 26 Cal.4th 876, 928.) Effective assistance is not perfect assistance.
Defendant contends there could be no explanation for counsel's failure to move to exclude the July 19 statement. We disagree. Defense counsel did more than fail to object. Counsel specifically declined the trial court's invitation to hold an evidentiary hearing concerning this evidence and then elicited information concerning that statement and the circumstances under which it was given. Counsel did this presumably in a strategy to lessen the impact not only of the information within M. S. 's statement of July 19, but also his trial testimony that M.S. saw defendant getting into the Honda Civic with a black stick the morning of the murder and that whatever defendant had been carrying was "around" the size of the gun presented in court. Counsel then posited in closing argument that M.S. "loves his mama" and that "it was clear how that interview went." We will not second guess this tactical decision. (People v. Kelly, supra, 1 Cal.4th at pp. 519-520.) Accordingly, this claim fails.
III. DISPOSITION
The judgment is affirmed.
We concur: HULL, J., RENNER, J.