Opinion
B158884.
10-8-2003
THE PEOPLE, Plaintiff and Respondent, v. JOSE DE LA CRUZ, Defendant and Appellant.
Gail Harper, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Zee Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jose De La Cruz was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code
section 187, subdivision (a). The jury found true the allegation that appellant personally used a firearm within the meaning of sections 12022.5, subdivision (a)(1) and 12022.53, subdivision (b), and personally discharged a firearm within the meaning of section 12022.53, subdivision (c). The trial court sentenced appellant to 25 years to life in state prison for the murder conviction, plus a 20-year term for the section 12022.53, subdivision (c), firearm enhancement.Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting appellants statement to police and evidence of his gang affiliation, and that he received ineffective assistance of counsel in connection with the handling of those two issues in the trial court. We affirm the judgment of conviction.
Facts
In the early morning hours of April 18, 1999, Kenneth Wilson and Julius Williams returned to Williamss apartment in a 1984 Cadillac. Wilson parked the Cadillac in front of a driveway and helped Williams, who was intoxicated, up to his apartment.
A neighbor, Joe Jimenez, saw a dark-colored van pull up two houses south of Williamss apartment building as Wilson and Williams were going upstairs. The vans passenger got out of the van and spoke with the vans driver.
Wilson came back downstairs to move the Cadillac to a legal parking place. Jimenez heard several gunshots. He looked outside and saw the vans passenger running toward the Cadillac and firing a gun. Jimenezs wife called 911. Jimenez saw the van drive away quickly.
Williams and his girlfriend Shunita heard five to ten rapid gunshots. They realized Wilson was outside, looked out the window and saw that the Cadillac had hit a car on the other side of the street. They ran outside and found Wilson in the drivers seat of the Cadillac, bleeding and gasping for breath. He was dead when paramedics arrived.
Police officers investigating the killing concluded that one shotgun and two nine millimeter guns were used in the shooting. Wilson was killed with a nine-millimeter bullet.
In February 2000, police arrested appellant and Gilbert Saldana. Los Angeles Police Detective John Berdin had acquired information that appellant, Saldana, Merced Cambero and Jesse Diaz were involved in Wilsons murder. At least some of the information came from Diaz, who was in prison for other crimes. Diaz admitted that he was present at the murder but claimed that the other three men were the shooters. Berdin and Detective Andrew Teague, who had been investigating the Wilson murder since its occurrence, questioned appellant after his arrest.
Appellant eventually confessed. The questioning and confession were videotaped and later transcribed. Appellant told police that prior to the shooting, the four men had gone to an area near Williamss apartment and spray-painted graffiti. The men took guns with them because this area was in "enemy" territory claimed by the Dog Town gang. Diaz drove the van. Appellant had a shotgun, Cambero had a .257 magnum and Saldana had a nine-millimeter handgun. As they were leaving the area, someone in the van noticed the Cadillac. Diaz said: "Look, theres a nigger. Fuck it. Do you want to shoot a nigger?" One person in the van said no and one said yes. One of the other men got out of the car and started shooting. Appellant got out and started shooting at the back of the Cadillac. Appellant claimed that Wilson was killed by the first shot fired and that he did not fire that shot. Appellant indicated that the other two shooters were Saldana and Cambero. Appellant disposed of the shotgun later.
Detective Berdin testified that he told appellant that Diaz said that someone in the van said "Hey, you guys want to kill this nigger?" and that someone in the van replied, "Yeah, sure, why not?"
At trial, the prosecution introduced evidence that appellant, Diaz, Cambero and Saldana were members of the 43rd Street clique of the Avenues gang. The primary rival of the Avenues gang was the Dog Town gang. An area near Williamss apartment was controlled by the Dog Town gang. According to a detective familiar with the Avenues gang, Avenues gang members hated African-Americans and targeted African-Americans who were not gang members for crimes.
Discussion
1. Motion to suppress
Appellant contends the prosecution failed to prove that he knowingly and voluntarily waived his Miranda rights or that his confession was voluntary, and that the trial court therefore erred in denying appellants motion to suppress his confession. We see no error.
To the extent that appellant contends generally that the trial courts findings are suspect because there are indications in the record that the trial court did not view the entire videotape of the interview or read the entire transcript before ruling, we do not agree. The court did view the first fifteen minutes or so of the videotape, which is the most relevant section for determining the validity of the Miranda waiver. Further, key portions from the transcript concerning the detectives implied promises to appellant, were read into the record during the hearing on the motion to suppress. These implied promises were at the heart of appellants argument that his confession was not voluntary.
Although the defense asked the trial court to view the entire videotape, the court stated: "I am mostly interested in the beginning part in terms of the visual." The court then took a 15-minute recess to view the tape. It is not clear whether the court read the entire transcript of the interview.
a. Waiver of Miranda rights
Detective Teague advised appellant of his Miranda rights. When asked at the motion to suppress whether he inquired of appellant if he gave up those rights, the detective stated: "I am not required to do that." Thus, appellant did not expressly waive his Miranda rights.
The court later appropriately reprimanded the detective for this comment, stating: "And to the extent, detective, you suggest that it is not necessary [to ask if the suspect gives up his rights], I think you better rethink your position. I think thats totally inappropriate for you to take a policy position that you dont have to ask those next questions [about waiver], and I think that youve created a problem here that could have been avoided completely. I am telling you that directly."
The prosecution must show by a preponderance of the evidence that the defendant knowingly and voluntarily waived his Miranda rights. (People v. Whitson (1998) 17 Cal.4th 229, 248.) On appeal, the trial courts findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial courts finding as to whether the defendants statement was obtained in violation of his Miranda rights is subject to independent review. (People v. Bradford (1997) 14 Cal.4th 1005, 1021-1033.)
A defendants waiver of his Miranda rights may be express or implied. (People v. Whitson, supra, 17 Cal.4th at p. 248.) In order to find a valid implied waiver, the totality of the circumstances must show that the relinquishment of the right was the product of a free and deliberate choice rather than intimidation, coercion or deception and the relinquishment of the right was made with full awareness of the nature of the right and the consequences of the decision to abandon it. (People v. Whitson, supra, 17 Cal.4th at p. 247.)
Factors to be considered in determining whether a valid implied waiver exists are whether the defendant has the mental ability to understand his rights, whether his judgment is affected by pain or drugs, whether he has previously been advised of and waived his rights, and whether the police used improper tactics, lengthy questioning or trickery or deceit. (People v. Whitson, supra, 17 Cal.4th at pp. 237-241, 248-250.)
Here, following a hearing on appellants motion to suppress, the court found that appellant impliedly waived his Miranda rights. The court found that the initial encounter between appellant and the detectives was friendly and non-coercive. The court observed that appellant "shows a willingness to speak thats readily apparent from his responses." The court noted that the detectives did ask some questions before reading appellant his rights that went beyond "booking" questions, but found that those questions were not coercive. The court also found that appellant did not appear tired, overwrought with emotion or upset in any way and that the four hours appellant spent in custody before being interviewed did not qualify as something that would wear down appellants will. The court saw no evidence that appellants judgment was clouded or impaired. The court noted that there was "no question of any pain or medication or substance abuse or substance use that might affect him . . . [and] no evidence of any low intelligence or suggestibility." The court noted that appellant had been advised of his rights in the past and that "I dont believe that even at the age of eighteen that Mr. De Le Cruz qualifies as a tender juvenile who didnt understand what was going on." The court also pointed out that appellant never asked for an attorney and never asked to terminate the interview.
There is substantial evidence to support all of the trial courts findings. We agree that these facts show a valid implied waiver.
b. Confession
In order for a defendants confession to be admissible at trial, the prosecution must show by a preponderance of the evidence that the confession was made voluntarily. (People v. Boyette (2002) 29 Cal.4th 381, 411.)
On appeal, the trial courts findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial courts finding as to the voluntariness of the confession is subject to independent review. (People v. Boyette, supra, 29 Cal.4th at p. 411.)
The voluntariness of a confession is determined by the totality of the circumstances, including the characteristics of the accused and the details of the interrogation. (People v. Hill (1992) 3 Cal.4th 959, 981, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046.)
No single factor is dispositive in determining voluntariness. (People v. Williams (1997) 16 Cal.4th 635, 661.) A confession obtained through threats or any express or implied promises of leniency or advantage may be deemed involuntary if those promises or threats were the motivating factor for the confession. (Id. at pp. 660-661.) "The offer of promise of [a] benefit need not be expressed, but may be implied from equivocal language not otherwise made clear." (People v. Hill (1967) 66 Cal.2d 536, 549.)
Following the hearing on the motion to suppress, the court found that appellants statement was voluntary. With regard to appellants claim that his statement was not voluntary because it was procured by false promises of leniency, the court specifically found: "I did not hear any improper promises or threats. [¶] To the extent that, Ms. Mulroney [appellants trial counsel], you suggest that the inference was made that in fact if [appellant] was a good person and said what [the detectives] wanted him to say theyd go to the D.A.s office, I think that inference is not something that rises to the level of that kind of deceit or improper threats or promises."
The interview was videotaped and transcribed, so there is no dispute about what the detectives said to appellant during the interview. However, we cannot agree with the trial courts legal conclusion that the detectives statement did not amount to implied promises of leniency.[]
We do agree with the trial courts conclusion that the detectives did not threaten appellant. Appellant contends that the detectives threatened him by telling him that he would be "bending over" for other inmates in prison. The detectives did not use the phrase "bending over" in connection with prison. The phrase was used in the detectives arguments to appellant that he was being taken advantage of by Diaz and Saldana. There is nothing in the record to indicate that appellant considered the words to be threatening.
Detective Teagues own testimony at the hearing on the motion to suppress shows that the detectives did intend to imply to appellant that there would be advantages to him from cooperating. Detective Teague read the following passage from the interview at appellants counsels request: "See, heres where we get back to the part where its, Oh, pick me, pick me. Mr. D.A. please pick me. " Detective Teague then commented: "trying to let him know that he should be a witness or its better to be a witness than a suspect." [Emphasis added.]
The detectives efforts to convince appellant that he would be better off as a witness were extensive:
"Whats — whats happening here, Jose, is since Jessie decided to come forward and talk . . . whats going to happen now is a scramble. Its a scramble to - - somebodys going to talk to the D.A, and theyre going to go, Oh, pick me. Pick me. Please pick me. I want to tell so I dont get the whole thing. Pick me. Pick me. Okay? Because that — that option is still out there, okay? Its still out there."
"See. Heres where we get back to the part where its, Oh, pick me, pick me. Mr. D.A., please pick me. We know youre there. We got two people telling me you were there, two people who were in the van with you telling me you were there, okay?"
"And Gilbert told, oh, about this much of the truth. And he thinks hes making himself look good. And hes trying to put the whole thing on you, okay? Now, to get to the point where you can be in the position where you can go to the D.A., Pick me. Pick me, first thing we have to get past is this point of I wasnt there. Because we know its not true, okay? . . . Three weapons were used. One weapon killed him, okay, just one weapon. I dont know how he managed it but he ducked and dodged a lot of stuff. This is a pie that can be cut in three pieces. Everybody gets an equal slice or you can be the fellow that goes and claims, This is bad enough. I dont want a piece of this pie. I dont. Because in a situation like this, Jose . . . People — they dont want to stand next to you. They dont. People start pointing fingers."
"So the only evidence were going to have is the evidence that Ive just described to you and Mr. Jessie Diaz sitting there, describing the murder of this man. Okay? And youre going to sit there with your head down like this. Youre going to want to get up and say, I didnt do it. I didnt have it. I know who did it and it wasnt me. [¶] . . . But hes not going to be able to say that because when in court, when he — when he had the opportunity to talk now and — when hes in court, hes going to be amazed. And youre going to look back and youre going to say. I know that — I know that looking back is 20/20 vision and theres just nothing I can do about it now. Ive got to take my lumps. And its a 25-to-life lump, no 50 percent and out in 12 and a half, its 85 percent now. And most of the guys that I know who do 25-to-life, do life because when you get inside the prison system, youre going to have to perform. And you know that. Youre not a little boy. You know."
"Jessie told me what happened. And Gilberts putting everything on you. And its time to be a standup guy and be the — be the guy that the D.A. can say, Hey, okay. I want to pick you. You tell me what happened. I want to hear your side of the story."
"Again, Ill tell you again. When we sit in the courtroom, you look up there and you see that big bronze seal over there and you see the judge there and youre going to look over and say, I had one shot and I pissed it down my leg. They sat there and they gave me an extra hour of their time because they know whats up. And they give me a chance to talk about it and I didnt do it. [¶] And ten years from now, when youre — youre scratching your — your initials in the — in the wall of the different cell in a different prison, youre going to be saying, They gave me a shot and I pissed it away. They gave me a shot. There arent other people that gave me a shot. Nobody else — nobody else ever gave me a shot but they know whats up. And they — they cant do anything about it because they werent there. They dont know. But they have a feeling. They have a belief about whats going on here."
These implied promises that appellant would receive some undisclosed advantage if he confessed as to none if he did not were improper. Although we differ with the trial court as to the characterization of the detectives statements, we agree with the trial court that those statements did not induce appellant to confess.
Before and while confessing, appellant made statements which suggest that he was skeptical of the detectives statements that admitting that he was at the scene of the murder would help him. Just before confessing, appellant asked: "How is that going to help me if I tell you guys?" The detectives did not respond to that question. After appellant had given some information about riding around in the van, he asked: "Anything I tell you, thats going to help me, right?" The detectives responded by saying that lying wouldnt help appellant.
The detectives interspersed their implied promises with statements that Jessie Diaz and Gilbert Saldana were giving versions of the killing which exonerated themselves and shifted the blame to appellant for firing the fatal shot, in the hopes of themselves getting a better deal. The detectives also told appellant that Jessie Diazs deal with the police would not be honored if detectives determined that Diaz had lied.
"So you probably think that the guy that had the shotgun is the guy that killed [Wilson], right - - just by the amount of the bullets that went into the car. . . . Thats what Gilbert thought, too. [Redaction in original] And Gilbert, being the thinking man that he is, is thinking, hmm I got my choice, a .9 millimeter, I got a shotgun or I got a .357. I dont want to have that shotgun, not me."
"Jessie says you had the shotgun and Gilbert says you got the shotgun."
"Gilbert was in here. And he shoveled a lot on you, the majority on you cause he looked at the pictures just like you did, saw all those nice shotgun pellet strikes into the car and he thinks to himself, I dont want the shotgun. I dont want the shotgun. [¶] Hes got a good strong idea that the person who fired the shotgun killed this man."
"And I think that these two older boys are working you over and youre going to take it. Youre just going to bend over and take it. Now, I could be wrong. They could be right on. And you can be the cold-blooded killer that they would like us to believe that you are."
After the last statement, appellant asserted: "I aint no fuckin killer." The detectives then repeated at length that Jessie and Gilbert were looking out for themselves and placing the blame on appellant.
It was these statements which prompted appellant to talk. Appellant told detectives that he didnt believe that Gilbert would have blamed him. He asked the detectives to bring Gilbert in to talk with him "and then see if he says that he did that and that so and so." Detective Berdin asked: "Would that make a difference to you?" Appellant replied: "Yeah, it makes a difference to me very much." [Italics added.]
When appellant did begin to talk about the killing, his initial statements were that the other two men were lying. Appellants first substantive statement about the crime was: "First of all, hes lying." Appellants next four statements were: (1) "Hes lying." (2) "Well, hes lying about the part where they — something about they picked him up. He was drinking or whatever. Hes lying." (3) "Hes lying about that." and (4) "He was lying. Thats bullshit."
Appellant then started to backtrack, saying that he wasnt there, and that he didnt know if someone in the van said "Lets kill a nigger." Then appellant said: "You can talk to me honestly, right? Youre telling me the truth, right - - about — no, about this but — . . . — I mean about Gilbert." Teague responded: "Yeah." Appellant then said: "But its kind of hard to believe but thats why." Detective Teague responded: "Just like its hard to believe that Jessies - - that Jessies doing this. But Gilbert - - he listened to this, saw enough of the pictures and yeah, I aint lying to you."
Appellant then confessed.
Thus, we agree with the trial court that the detectives statements, however characterized, did not induce appellant to confess and that appellants confession was voluntary.
2. Gang evidence
Appellant contends that because there was no gang allegation in this case and because the victim was not a gang member, evidence of appellants gang affiliation was not relevant and was highly prejudicial. He concludes that the trial court erred in admitting the gang evidence. We see no abuse of discretion in the trial courts decision.
"[G]ang evidence is admissible if relevant to motive or identity, so long as its probative value is not outweighed by its prejudicial effect." (People v. Williams (1997) 16 Cal.4th 153, 193.) Such evidence is subject to a balancing test under Evidence Code section 352 to determine whether the probative value of the evidence outweighs the danger of undue prejudice. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1369.) The trial court should carefully scrutinize gang evidence before admitting it. (People v. Williams, supra, 16 Cal.4th at p. 193.) However, a trial courts decision to admit gang evidence will not be disturbed on appeal unless the courts decision exceeds the bounds of reason. (People v. Olguin, supra, 31 Cal.App.4th at p. 1369.)
Here, appellants gang membership was relevant and necessary to show motive. Apart from gang evidence, the only evidence of motive was appellants statement that Diaz said: "Look, theres a nigger. Fuck it. Do you want to shoot a nigger?" This showed a racial motivation on Diazs part. However, Diaz was apparently not one of the shooters, and did not fire the fatal shot. Saldana, who may have responded "Nah" to Diazs question, appears to have fired the fatal shot. Saldanas motive for shooting Wilson was not clear from the verbal exchange inside the van. Similarly, appellant did not participate in the verbal exchange inside the van and so his motive for shooting was not clear from that exchange.
Detective Berdin testified that he told appellant that Diaz said that someone in the van said "Hey, you guys want to kill this nigger?" and that someone in the van replied, "Yeah, sure, why not?" This statement sheds little light on Saldanas or appellants motivation.
Evidence that members of the Avenues gang hated African-Americans and had targeted them for crimes did provide a motive for appellant, Saldana, and Cambero to shoot Wilson, an African-American. The prosecutions gang expert specifically testified that Avenues gang members had targeted African-Americans who were not members of any gang. Further, evidence that appellant and the others in the van were in the same gang and had driven into the territory of a rival gang carrying loaded weapons and intending to place graffiti in the rival gangs territory supports an inference that the men were looking for a violent confrontation. This was relevant to intent.
3. Ineffective assistance of counsel
Appellant points out that his counsel did not object to all of the gang evidence and did not object to Detective Berlins opinions about appellants veracity. He contends that these failures to object constituted ineffective assistance of counsel.
Appellant has the burden of proving ineffective assistance of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) In order to establish such a claim, appellant must show that his counsels performance fell below an objective standard of reasonableness, and that, but for counsels error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Strickland v. Washington, supra, 466 U.S. at p. 694.)
Appellants trial counsel did acknowledge that appellants gang moniker and the fact of his gang membership was relevant to show that he knew the other three men involved in the shooting. Counsel objected to all other gang evidence. However, as we discuss above, all of the gang evidence, including the appellants gang moniker and the fact of his gang membership, was relevant and admissible. Any objection by appellants counsel to this evidence would have been futile, and so counsel was not deficient in failing to object.
Appellants counsel also failed to object to Detective Berdins testimony that he continued interviewing appellant because "there was no doubt in my mind that [appellant] had played a part in the homicide of Kenneth Wilson" and because "I knew he was lying about [not knowing Gilbert Saldana] and some of the other things we had discussed already." We agree that Detective Berdins opinions were not relevant and that an objection to the questions seeking those opinions would have been sustained. However, we see no probability or possibility that appellant would have received a more favorable verdict in the absence of the detectives comments. The jury was aware that appellant initially denied knowing Saldana or being involved in the murder in any way, then later admitted that he knew Saldana and was one of the shooters. Thus, the jury knew that appellant was a liar. Detective Berdins comments added nothing to this direct knowledge.
Later, when appellants counsel did object to a question asking the detective why he did something during the interview, the trial court sustained the objection on the ground that the detectives state of mind was irrelevant.
Disposition
The judgment is affirmed.
We concur, GRIGNON, Acting P.J. MOSK, J.