Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS031394A
ELIA, J.On May 5, 2004, the Monterey County District Attorney filed an amended information charging appellant with one count of first degree murder. (Pen. Code, § 187, subd. (a).) The information alleged that the murder was committed for the benefit of, at the direction of, or in association with a Sureno criminal street gang. (§ 186.22, subd. (b)(l).) In addition, the information alleged that in the commission of the murder appellant personally discharged a firearm, to wit a .32 caliber handgun. (§ 12022.53, subd. (d).)
Unless noted, all statutory references are to the Penal Code.
Jury trial commenced on May 9, 2005, and concluded on May 16, 2005. On May 18, 2005, after deliberating for two-and-a-half hours, the jury found appellant guilty of first degree murder and found true both enhancements.
On July 15, 2005, the trial court sentenced appellant to an aggregate term of 50 years to life in state prison.
On July 22, 2005, appellant filed a notice of appeal.
On appeal, appellant raises eight issues. First he contends that the denial of his motions to exclude pretrial statements that he made violated his right to counsel and privilege against self-incrimination because police officers continued to interrogate him despite his unambiguous invocation of his rights. Second, admission of his statements violated his right to due process and privilege against self-incrimination because the statements were involuntary. Third, the trial court erred "by refusing to give [his] requested instruction on factors relevant to evaluating the credibility of his statement, especially in light of other instructions that the jury must decide whether the statement was 'voluntary.' " Fourth, his rights to due process and a fair trial were violated because the trial court failed to instruct the jury that the prosecution had the burden of proving he did not act with an actual but unreasonable belief in the need to defend himself. Fifth, his right to instructions on the defense theory of the case was violated when the trial court refused to give instructions on the prosecution's burden to prove that he did not act in self-defense. Sixth, this court should strike a no contact order because it was not actually imposed by the lower court, was not authorized by law, and was unconstitutionally vague. Seventh, imposition of a court security fee violated the prohibitions against retroactive and ex post facto application of statutes. Eighth, the clerk's minutes and abstract of judgment should be modified to correct the sentence length, date of conviction and presentence custody credits.
The People concede the sixth and eighth issues. We agree. In addition, we agree with appellant's seventh contention regarding the court security fee. Accordingly, we will order the trial court to correct the abstract of judgment to correct the sentence length, date of conviction and presentence custody credits. We strike the no contact order and court security fee. In all other respects, we affirm.
Subsequently, Feigley filed a petition for writ of habeas corpus, which this court ordered considered with the appeal. In his writ petition, Feigley presents three arguments why his trial counsel provided ineffective assistance of counsel. First, he was deprived of the effective assistance of counsel because trial counsel failed to object to admission of his confession on the ground that it was involuntary. Second, trial counsel provided ineffective assistance by failing to investigate and present evidence of his borderline mental retardation in support of the motion to suppress his confession and in support of his argument to the jury that his confession was not credible. Third, trial counsel provided ineffective assistance by failing to investigate and present evidence of his mental retardation in support of the claim that he acted in self-defense and lacked the mental intent for murder or a gang enhancement. We have disposed of the habeas petition by separate order filed this day. (See Cal. Rules of Court, rule 8.264(b)(2)(A).)
Facts
Stephanie Gonzales testified that in February 2003 she was attending Montorro High School in Salinas. Her boyfriend, 17-year old David Mendoza, Jr., attended North High School. Sometimes he would pick her up after school in the parking lot of the Rodeo Market.
On February 20, 2003, Stephanie got out of school at 3:06 p.m. and walked down Sherwood Drive with her friends Kymanie and Elizabeth. While they were waiting to cross the street at the corner of La Posada and Sherwood, Stephanie saw a man running towards them from near the Rodeo Market. The man was wearing a gray hooded jacket, white t-shirt and blue jeans. He was holding his pants as if he was carrying something in them. The man made eye contact with Stephanie. As he did so, he tried to pull up the hood of his jacket, but he did not succeed. He ran around the corner toward some apartments.
When Detective Gerry Davis interviewed Stephanie, she said the man had his head down and she saw only the side of his face; she did not say that they made eye contact.
Stephanie and her friends crossed the street to the market, but Mendoza's car was not parked in the usual location. Stephanie walked around the parking area, saw Mendoza's car and walked up to it. She saw that Mendoza was slouched in the driver's seat and he did not respond. Stephanie gave him "mouth-to-mouth" and he took a breath and seemed to be choking. After a few minutes, Stephanie went into the market to call the police, but was told that the police had already been called. She was able to flag down a passing deputy sheriff. Stephanie, Kymanie and Elizabeth stayed by the car until the police arrived. Kymanie got in the car and was holding Mendoza up and talking to him.
Around the same time, Nik Dorado was working in an apartment building behind the Rodeo Market when he heard what sounded like five gunshots in quick succession. Dorado went outside. He saw that people were running toward the market. However, he saw one man jogging away from the area. Dorado described the man as big man with short hair and no facial hair, 18-30 years old, wearing a gray sweatshirt and blue pants. He had his right hand in his pocket. It seemed to Dorado as though the man made a gesture and then a nearby car drove off. He did say that he thought this could have been a coincidence.
Hortencia Yanez, who lived near the Rodeo Market, also heard three or four shots. She looked out her window a minute or two later and saw a person inside a car, leaning back. After another one or two minutes, Yanez looked out the window again and saw two girls and a boy approach the car. One of the girls started screaming and went toward the store. She saw an officer, who had been stopped waiting for the stop light, come over to the car.
The parties stipulated that Detective Maldonado, if recalled, would say Yanez told him that when she heard the shots, she grabbed her baby and lay on floor for a while.
Officer Gabriel Carvey was dispatched to the Rodeo Market at 3:23 p.m. When he arrived at the market three minutes later, he found Mendoza in the car. Mendoza was unconscious and had no pulse. Officer Carvey and Detective Kenneth Wynne, who arrived a little later, examined the scene. The blue Oldsmobile that Mendoza had been in was parked on the north side of the Rodeo market and the driver's side window was down. Mendoza had been wearing a red shirt over a white t-shirt. There were six bullet holes in the left sleeve and one in the chest with an exit hole in the back. The officers searched the car and found Mendoza's identification on the driver's seat and a cell phone on the floor under the steering wheel. They did not find any weapons. However, there were seven .32 caliber casings on the ground near the rear driver's side of the car and one expended bullet on the floor of the car behind the driver's seat. The location of the casings indicated the gun was a semi-automatic revolver and that the shooter had been standing between the wall of the market and the car.
Officer Burnett testified that gang members or a girlfriend of a gang member might remove or hide a weapon at a crime scene before the police arrive.
Forensic pathologist Dr. John Hain performed an autopsy on Mendoza. He opined that the cause of death was seven gunshot wounds in Mendoza's left shoulder, upper forearm, and chest; six bullets were removed from his body. Several of the bullets entered Mendoza's body in close proximity to each other. One of the bullets severed Mendoza's spinal cord, another passed through the aorta, and two passed through the heart. The wounds probably caused Mendoza to become unconscious within 10 seconds and die within a few minutes. The pattern of the wounds was consistent with Mendoza sitting in the driver's seat and turning away as shots were fired from a gun held at his chest level, though he conceded that the shooting could also have happened some other way.
Scott Armstrong, a criminalist with the state Department of Justice, examined the bullet found inside the car and those removed from Mendoza's body. He determined that they were Remington .32 caliber rounds. All were fired from the same gun.
On the day David Mendoza was shot, Detectives Richard Maldonado and Gerry Davis showed Stephanie Gonzales about 20 photographs of local men generally matching the description of the man she had seen leaving the area of the market. These included a photograph of appellant. Stephanie thought one of the photographs "kind of" looked like the man she had seen, but she was not sure and did not pick anyone out.
About a month later, the police showed Stephanie several photographic line-ups, including one with a different, apparently more recent, photograph of appellant. This time, Stephanie was positive that appellant was the man she had seen near the Rodeo Market. According to Stephanie, she could tell by his eyes.
The police showed Nik Dorado photo line-ups, including one with the older photograph of appellant, but Dorado could not identify anyone as the man he saw near the market.
Salinas Police Officer Scott Gemette testified he approached appellant on Atlantic Street in Salinas on March 23, 2003. Appellant was holding a piece of cloth made of sweatshirt material. When appellant saw the officer, he ran into his apartment, but eventually came out and talked to the officer. Appellant denied he had had anything in his hands and refused to allow Officer Gemette to search the apartment.
On March 31, 2003, pursuant to a search warrant, Detective Heath Johnson helped search appellant's house. During the search, officers forced open a locked dresser in a hallway. In the dresser, among other items, they found a box of .32-caliber Remington ammunition, which had originally contained 50 rounds. There were 18 rounds left in the box. These bullets were the same type and weight as those at the homicide scene, but it was not possible to tell whether they all came from the same box. The officers found a recent cell phone bill and earnings statement addressed to appellant, as well as a newspaper article about Mendoza's death.
Other officers found numerous other items in or behind the locked dresser. These included a loaded .380 caliber handgun, a holster, a nightstick, and a variety of ammunition. In addition, officers found clothing, including a blue Nike jacket, a Dallas Cowboys jersey, a shirt with "Southsiders" and "13" on it, blue and black beanies (one with "Players 69" written on it), and a kerchief with gang drawings. Additional items included photographs depicting other people wearing the clothing found in the dresser, and letters addressed to "Steven," "Pit" and "Pit Bull."
Detective Johnson testified that he did not know whether any of the clothing actually belonged to appellant or whether any of the letters were addressed to appellant. Neither the ammunition nor the gun could be connected to the Mendoza killing. Furthermore, Johnson conceded that the jackets and beanies were not necessarily gang-related, and that none of the clothing matched that worn by the man seen leaving the Rodeo Market.
On March 31, 2003 Detective Gerry Davis interviewed appellant. During most of the interview, appellant insisted that he had been out of town when Mendoza was killed and did not know anything about the murder. Eventually, appellant admitted he had been in town and had heard about the shooting. Then, he admitted he was at the Rodeo Market that day, but not when the shooting occurred. Later, appellant said that he saw the shooting, but that he was not the one who did it. Appellant said he had heard someone say that Mendoza was killed because he did something he should not have done and was a Norteno "at a place at the wrong day at the wrong time."
Finally, appellant admitted that he shot Mendoza. He explained that he had been walking to the store and was carrying a gun, "for protection," when he saw Mendoza, with whom he had had a dispute in the past. Appellant walked over to talk to Mendoza, saw him reach for something, and thought he was grabbing a gun or a bar. On a reflex, appellant reacted and shot him.
A videotape of appellant's statement was played at trial and admitted into evidence as People's Exhibit 82. The jury was also provided with a transcript, designated People's Exhibit 82A.
Appellant said that the shooting did not have anything to do with gangs and that he did not tell anyone about it. He knew Mendoza was a "buster" or Norteno, but so are some of his relatives and he gets along with them. Appellant denied being currently active in a gang, but said that he hangs out with Surenos and he would "back up my people." He had just had a "La Posada" tattoo put on his neck, but that was because La Posada was his neighborhood; he was planning to add his cousin's name and "RIP" to it.
Detective Burnett, the former gang intelligence officer for the Salinas police department, testified regarding gangs and gang activity in Salinas. One of the local Sureno gangs is called "La Posada Trece," and the Rodeo Market is on the outskirts of that gang's "stronghold." The primary activities of Sureno gang members are homicides, robberies, assaults with deadly weapons and drug sales.
Detective Burnett described specific predicate offenses committed by people identified as Sureno gang members. According to Detective Burnett, Nich, Jaime and Jesse Albertos are Las Posadas Trece members, who informants had identified as the highest level Surenos in Salinas. On Thanksgiving Day 2002, the Albertos's brother Adrian was shot when Nortenos approached Surenos during a football game and a fight broke out. Detective Burnett opined that gang culture demanded retaliation for such a killing and said that there was a rash of gang crimes after Adrian Albertos was killed, including several shootings of people wearing red shirts.
Appellant was not involved in any of these crimes.
Detective Burnett testified that although the Albertos had moved to Bakersfield, they still have contact with local Surenos.
Detective Burnett reviewed records documenting appellant's alleged past gang activities. Burnett prepared a list of about nine prior police contacts between November 1996 and April 1998 during which appellant had been in the company of alleged Sureno members, wearing blue clothes, or admitted to being a La Posada Trece member. Burnett also reviewed records showing that appellant was involved in gang incidents while incarcerated in the California Youth Authority. Appellant returned to Salinas in 2002 and when police contacted him on February 18, 2003, he was with another Sureno gang member, whose nickname is "Trigger." During that contact, appellant said he used to be a Sureno, but wasn't active anymore.
Mark Lazzarini, a gang intelligence officer with the Salinas police department, took photographs of appellant when he was arrested in March 2003. Appellant had a "La Posada" tattoo on his neck that seemed fresh because it was red and there was a layer of Vaseline on it. Lazzarini and Burnett opined that appellant had other tattoos with Sureno gang significance, including three dots below one eye, a"sur" on top of the right hand, and "La Posada and "13"on his knees.
Detective Burnett testified that items found during the search of appellant's house had gang relevance. She said it is common for Sureno gang members to keep news articles about crimes they commit and to wear blue clothes and Dallas Cowboys gear. In addition, some of the clothing was imprinted with gang logos and nicknames. She identified people in the photographs found in the dresser in appellant's home as being Sureno members wearing gang insignia and making gang signs. She opined that the letters found in appellant's house were from gang members and discussed gang activities. Burnett testified that the weapons found in appellant's house might be shared and traded by gang members.
Monterey County jail staff testified that appellant had contact with gang members and conducted gang activities while he was in custody pending trial. Sheriff's Deputy Brandon Smith said that when appellant was booked, he admitted that he was a La Posada Trece member with the nickname "Bubbus." Accordingly, appellant was housed in cell 207 in G pod, which is designated for Sureno or Mexican Mafia gang members. When Smith searched appellant's cell in November 2003, he found a letter addressed to appellant that said "Southside La Posada Trece," a paper that said "LP-13" and a piece of cardboard in the window that said "LP" and "XIII."
On June 17, 2004, Deputy Kim Robinson, found "kites" or notes in G pod cell 206 wrapped in Saran wrap. Deputy Jose Lizarraga reviewed these notes. They were signed by "Bubbus, La Posada Trece Mafiosos." Although Lizzaraga did not know who wrote them, they appeared to be in appellant's handwriting. Lizzaraga believed the kites were addressed to Sureno members or associates housed in other parts of the jail. They contained various commands and directions. Lizarraga concluded that the person who wrote the notes was the Sureno "shot caller" or leader in G-pod. In a search of appellant's cell on June 18, 2004, Lizzaraga found drawings and graffiti including the words "Bubbus LP," "LPT" and "13."
Deputy Lizarraga admitted that a shot caller could direct another person to write kites, so that the actual writer might only be a conduit. Also, he admitted that because appellant was in a double cell, it was possible the graffiti was composed by his cellmate. Lizarraga testified that a gang member will only follow an order signed by someone with authority in the gang, but since the kites were intercepted, there was no verification as to whether the person who signed them actually had any authority.
The prosecution presented evidence that appellant had been in contact with members of the Albertos family while he was in jail. Martin Sanchez, an investigator for the District Attorney's office, testified that Nich and Jaime Albertos's phone number in Bakersfield was in an address book taken from appellant when he was arrested. Sanchez reviewed recordings of calls made from the jail's G-pod to that number. Portions of two of those calls, placed on February 2 and 14, 2004, were played to the jury. During those calls, a man who identified himself as "Bubbus" spoke with "Nick." They discussed various people's legal cases and transfers, including those of "Trigger" and "Player"; Nick also arranged for "Leo" to put some money in Bubbus's jail account. In discussing the charges pending against him, Bubbus said, "We stopped one person that was sweet."
All phone calls made by jail inmates are taped. A tracking system records the date of the call, what part of the jail it originated from, and the number called.
In the record this name is spelled either Nick or Nich.
Jail records showed that Leo Evangelista and "Nich" put $150 on appellant's account in February 2004 and that "Leo" and "Nich" sent another $100 in May 2004. Detective Burnett examined visiting records from the jail. She concluded that four people who were believed to be gang members visited appellant.
Lizarraga conceded that appellant's family and friends made over 50 deposits while appellant was in jail, and that there is nothing significant in itself if a person puts money on an inmate's books.
Based on appellant's tattoos, admissions, and contact with other gang members, Detective Burnett opined that appellant was a street gang member on the day that he killed Mendoza. Further, she opined that a Sureno who sees someone in Sureno territory wearing a red shirt would assume the person is a Norteno. A Sureno's normal reaction would be to attack that person to show Nortenos they are not allowed in that area. Alternatively, a Sureno will have to attack if he doesn't want to be ostracized by his own gang. Such an attack enhances both the member's reputation and the gang's power and instills fear in other members of the community so the gang can commit more crimes without being reported. Burnett opined that appellant's apparent rise in status in the gang was consistent with him having done a service for the gang by killing the son of a high-ranking Norteno member. However, Detective Burnett admitted that even gang members sometimes have a legitimate need to defend themselves.
Detective Burnett testified that Mendoza was not a Norteno gang member. However, Mendoza's father had been an active Norteno in the past, and Mendoza's brother, cousins and uncles are active gang members.
Appellant testified in his own defense that he grew up in an unsafe area on the east side of Salinas. He admitted his nickname was Bubbus and that he has been connected with the La Posada Trece gang since age 11. He has known the Albertos family a long time. He started getting gang tattoos at age 12. He got the "La Posada" tattoo on his neck before Mendoza died; it was red when he was arrested only because he "went over it."
On the morning of February 20, 2003, he went out to eat. Then, he went to the Lakeview Apartments down the street from the Rodeo Market. He "hung out" there for an hour or so. In the afternoon, he walked to the Rodeo Market. As was his habit, he was carrying a .32 caliber semi-automatic for protection because the area is dangerous. He went into the store and bought beer and cigarettes, then he started to walk back to the apartments. He heard someone whistle and noticed a parked car, but he did not recognize the person who was in it. Thinking it might be a friend, he walked up to the car. When he got close, he recognized the person in the car as someone from his sister's old school. He and the guy in the car had "mad-dogged" or stared at each other a few times in the past.
Appellant testified he had never talked to Mendoza before, and did not know who he was or know anything about his family. He did not see the color of Mendoza's shirt. When he approached the car, Mendoza punched him in the face. Appellant testified that he swung back, but did not connect. He saw Mendoza try to open the car door and reach under his seat. He did not know what Mendoza was reaching for and figured it was probably a gun or weapon. He felt his life was in danger, so he pulled out his gun and shot all seven bullets. It all happened "real quick." Appellant said that he was not thinking that he was shooting a Norteno or that shooting Mendoza was going to benefit the Surenos or enhance his standing. After the shooting, he left the area, hid out and then went home. He threw the gun away in the trash.
Discussion
Appellant's Pretrial Statements-Miranda
Appellant contends that the denial of his motions to exclude pretrial statements that he made violated his right to counsel and privilege against self-incrimination because police officers continued to interrogate him despite his unambiguous invocation of his rights.
Background.
When appellant was arrested on March 31, 2003, he was taken to the police station, where, according to appellant, he waited in a holding cell for two or three hours. Then, he was taken to an interview room, where law enforcement officers, primarily Detective Gerry Davis, interviewed him. The interview was videotaped and the videotape was transcribed.
Detective Davis began by asking appellant for identification information, which appellant provided. When appellant asked, "What's all this for," Davis told appellant that he was under arrest for the murder of David Mendoza. Davis read appellant the "Miranda rights" pursuant to Miranda v. Arizona (1966) 384 U.S. 436 and asked him, "Do you understand those rights?" The defense interpreted appellant's reply as, "I prefer to wait till I talk to an attorney for all this." As interpreted by the prosecutor, appellant's reply was, "I prefer before you try to talk to an attorney for all this." Davis continued questioning as follows:
GD is Detective Gerry Davis. SF is appellant.
"GD: Is that what you are asking for?
SF: 'Cause,
GD: Did you understand the rights?
SF: Some of them I understand.
GD: Which one of them didn't you understand? I want to make sure that you understand okay? You have been arrested before, right?
SF: Yeah, I have been locked up in the system in for five years and a half.
GD: Okay, and when you have been arrested before you've had your rights read to you right?
SF: I was younger back then. I was barely, I was barely fifteen when I went in.
GD: Okay, well you watch TV and they read their people's rights on TV and stuff. So, let me, which one, what didn't you understand?
SF: Like, I understand the first two.
GD: Okay. You have the right to remain silent. Do you understand that one?
SF: Yeah.
GD: Okay, anything you say may be used against you in court. Do you understand? Is that one of the ones that you understand?
SF: Yeah like the one, that's like saying like, like, if you remain silent it's like, it's like, when are you talking trying to speak or something and you just like side track someone and they start talking and all that. I already know that one there.
GD: Okay, you have the right to the presence of an attorney, before and during any questioning. Is that, is that one of the ones you understand?
SF: Yeah I understand that one.
GD: Okay if you cannot afford an attorney, one will be appointed for you, free of charge before any questioning if you want. Is that, do you understand that one?
SF: [NODS HEAD YES.]
GD: So, everything I have read to you so far you understand right?
SF: Yeah.
GD: Okay.
SF: It's like w, w, w. Like these questions right here. That you are going to ask me. Like what is it for?
GD: I want to talk to you about the murder of David Mendoza. And since you are in custody I have to advise you of your rights. You understood those rights correct?
SF: Yes.
GD: Okay, so now I want to talk to you about the case that I am working on.
SF: Meaning, like, like, what are you, uh, like an attorney or?
GD: I am not an attorney.
SF: Are you a police officer?
GD: I am a police detective. He's a police detective and we have been working this case since the day it happened. And now you have been arrested for that murder and I would like to talk to you about that.
SF: Well makes you guys bring it down on me for?
GD: Well let me uh, because, first of all, okay, do you want to talk about this?
SF: Yeah, 'cause it is something I didn't do.
GD: Okay. So it is okay if I ask you questions and all that?
SF: Yeah."
Detective Davis told appellant that four eyewitnesses identified his photograph and a Rodeo Market video camera recorded him shooting Mendoza. Appellant said that at the time of the shooting he was in "Bosso, Texas." Detective Davis said that appellant's mother and sister had already confirmed he was in town. Immediately, appellant said, "No. I ain't going to say nothing more. I want an attorney. 'Cause man, homes."
The interrogation continued as follows:
"GD: Is that what you want?
SF: This is too much. You guys been on me since I have been out, for no reason. Always stopping me. Like the last time when I was out and then now you guys want to get me for something else. For something serious. That I didn't even do. Come on man. And there is an officer out there that's got a grudge on me.
GD: I don't know anything about that.
SF: And
GD: So what are you asking me for?
SF: Man, I am willing to work with you guys 'cause this ain't, I didn't do this. You know what I mean. And, man, it's like for something I didn't even do man. And then, I even stopped there twice and walked in to that store. And I know those persons that work there. They would of, they would, they would have said something. You know what I mean. And then for them to just come at me like this, telling me I did this.
GD: Okay, one of the last things you said was you didn't want to say anything else 'cause you wanted an attorney. Do you want to talk about this? 'Cause if you, if you ask for an attorney I can't talk to you about this.
SF: Well like for you guys, what is this going to lead to? What we are talking about?
GD: Your, I explained to you when I read you your rights that anything that you say may be used against you in court. Okay, and you understood that right?
SF: Yes.
GD: So you need, you need to make a decision.
SF: I am willing to talk to you guys.
GD: I am sorry[,] what?
SF: I will talk to you."
Appellant asked what would happen and whether he would be going to court if he talked. Davis reiterated that anything appellant said could be used against him in court, and that he had to decide whether he wanted to talk to Davis or talk to a lawyer. Appellant confirmed that he wanted to talk to Davis.
Detective Davis repeatedly accused appellant of lying about his involvement in Mendoza's murder. Detective Davis repeated that he had proof that appellant killed Mendoza but he needed to "understand why. Why it happened." Davis told appellant that this was his "opportunity to tell [his] side of the story." When appellant protested that the allegations were "bullshit," Davis again asked him if he wanted to talk or "go with the rights that I read you?" Appellant said, "The reason that I start to talk anyways to you is cause you have to make a police report," and then said he did want to talk.
Detective Davis told appellant about the evidence that the police had allegedly gathered, telling appellant they had witnesses who saw him do it, had the killing on videotape, and had matched the bullets that killed Mendoza with those found in appellant's house. Appellant continued to protest that he didn't do it. Davis continued to insist that he did.
At one point, Detective Davis told appellant he would look ridiculous in court denying involvement when there were four eyewitnesses and a videotape of the crime. Davis told appellant that it was his opportunity to explain why it happened because once they were "done here" he was "never going to have the opportunity to tell [his] side of the story again." Davis said that unless appellant told the police why he did it, he was going to look like a "cold-blooded killer."
Detective Davis told appellant that he should make a statement because "what takes place in this room right now, could have an impact on whether or not [he spent] the rest of [his] life behind prison bars."
Eventually, appellant admitted that he had not been out of town on the day of the shooting. Then, he said he had been at the Rodeo market on the day of the shooting, but hours before the shooting. Thereafter, Detective Davis described in detail the evidence that he had against appellant. He told appellant that people were not going to believe him and this was his only chance to say why he did it. At this point, appellant said, "I just need to get an attorney. I want an attorney man." Detective Davis asked him, "Is that what you want?" Appellant confirmed that it was. Detective Davis told appellant that he was being charged with first degree murder, and gang and firearm enhancements. He told appellant that it was the "worst that anything could ever get, ever. It will never get any worse for you than right now." Detective Davis refused to answer when appellant started to ask him a question and ended the interrogation. It appears that the tape was turned off.
When the tape was turned on again, the following conversation took place:
"GD: Before we start talking um, you just have to make sure we understand that since we last talked, you ended it by saying you wanted an attorney. Okay. You are re-, you are asking this contact right? [NODS HEAD YES.] I didn't ask you did I?
SF: [NODS HEAD NO.]
GD: You are asking for me right?
SF: [NODS HEAD YES.]
GD: Okay, do you remember the rights that I advised you of?
SF: Yeah.
GD: You still remember those. [NODS HEAD YES.] Okay would you like to talk to me more about the case?
SF: Like,
GD: Would you like to talk some more about it?
SF: Yes I was there, at the time right there when the incident happened but I ain't the one that did it you know."
The interview continued as before. Appellant continued to deny killing Mendoza and Davis continued to say that appellant was lying and that the police had proof against him. Davis told appellant to think about whether he would "rather go before a judge or a jury and have them think that [he] cooperated . . . or not cooperated." The interview continued:
"SF: Well, and then if I go through a judge I am going to have to get an attorney too.
GD: Okay, well I already explained to you that if you can't afford an attorney one will be appointed to represent you. So if you don't have any money you don't have to worry about that. The court will make sure you have an attorney. Okay?
SF: And then like so you're just trying to step up to help and then the attorney, if you get an attorney, they do their part too?
GD: Yes. But right now, we are beyond the point of whether or not you did it."
Once, more, Davis reiterated that the police knew appellant did it and this was his opportunity to explain what happened. When appellant again said he didn't do it, Davis responded, "Okay, well then, I don't know what else to say. I cannot help you, I cannot help people, I cannot help you make people see who you really are if you want to continue with that."
Davis said that if appellant explained why he killed Mendoza, "the why" could make a difference in the case and the way people looked at him. Appellant said he had heard someone say Mendoza was killed because he was a Norteno "at a place at the wrong day at the wrong time." Davis again insisted that appellant was the killer.
Finally, about 20 minutes after the interview resumed, appellant admitted he shot Mendoza. He said that he and Mendoza had a past dispute and when he saw Mendoza sitting in the car, he walked over to talk to him. He saw Mendoza reaching for something, and thinking that it was a gun or bar, he shot him. The interrogation continued for another 20 minutes, with discussion of the details of the shooting, appellant's gang history and juvenile record, and the disposition of the gun.
On January 22, 2004, defense counsel filed a motion to exclude appellant's statements at trial on the ground that they were taken in violation of his constitutional rights. The prosecutor responded by arguing that there was no Miranda violation. On February 5, 2004, the court held a suppression hearing, at which Detective Davis testified that appellant was "very difficult to understand. At times he mumble[d]. Sometimes, he speaks very quietly. Sometimes some of the things he [said] just don't make sense." With respect to his request for an attorney, Detective Davis testified that it was "kind of mumbled, and I caught the word 'attorney.' It wasn't until later, when I went and sat down with the transcript - - with the tape that I was able to figure out what he had said."
The court ruled that appellant's first request for an attorney was difficult to understand. Furthermore, "there was not a clear request for counsel and . . . there was, in fact, a waiver of rights, and Detective Davis was free to question him." Moreover, appellant's second request for counsel was also ambiguous, and "nothing in Miranda precludes the police from clarifying whether he understands the questions relating to constitutional rights and whether he intends to waive them." The court ruled that the detectives were correct in terminating the interrogation after appellant's third unequivocal request for an attorney, but ruled that appellant voluntarily reinitiated contact.
Over a year later, on the same day that the jury trial was set to begin, the court held a second suppression hearing. The thrust of the renewed motion to suppress was that after appellant invoked his right to counsel and the detectives stopped questioning him, appellant "did call the officer back, but it was instigated by the officer and . . . there will be testimony to that effect."
In the interim, the case was assigned to a different judge.
Subsequently, appellant took the stand and testified that when police officers arrested him at his home, he told them he wanted to speak to a lawyer. During the police interrogation he asked for a lawyer "four different times," but the detectives did not provide one. However, after the fourth time, the detectives took him to the "holding tank." Then, after two or three minutes, Detective Davis came into the cell and said, " 'why are you playing games?' " Five minutes later, appellant told another officer that he wanted to speak to Detective Davis. Immediately, Detective Davis came and took appellant back to the interrogation room. When defense counsel asked appellant why he asked to speak to Detective Davis, appellant replied, "I don't know." Thereafter, defense counsel asked appellant if it had "anything to do with Detective Davis coming to talk to [him] in the holding cell?" Appellant stated that Detective Davis's remark "just got to me." Appellant testified that he told "the officers" that he was under the influence of methamphetamine and heroin. Later, defense counsel asked appellant what effect Detective Davis's comment had on him. Appellant testified that he wanted to "find out what [was] really going on."
It is unclear from the record whether appellant was referring to the arresting officers or the detectives who interviewed him.
The prosecutor asked the court if she could have Detective Davis testify regarding his alleged comment about "playing games." The court stated that even if the officer made the remark, there was no violation of Miranda. Appellant was "clearly motivated by his own reasons and interests." Nevertheless, Detective Davis testified that he did not have contact with appellant in the holding cell until he was told that appellant wanted to speak to him. Detective Davis denied that he made any comment to appellant about "playing games." Further, Detective Davis testified that appellant did not appear to be under the influence of any drugs.
The court clarified that it granted the motion for a second suppression hearing only to hear evidence that was not presented at the original hearing. The court ruled that appellant's testimony was consistent, "he did initiate the interview. He says he did. He wanted his own interests dealt with and observed. He wanted them to know what his state of mind was on the date that this happened or allegedly happened. And it doesn't amount to a violation of Miranda, so that motion is denied."
The court stated that it could not "relitigate the issues" previously decided by Judge Duffy.
During the trial, the videotape of appellant's interview was played for the jury. Afterwards, defense counsel lodged another objection, which the court overruled. Prior to sentencing, the court considered appellant's motion for a new trial, but opined that appellant's confession was "rightly admitted" and denied the motion.
Appellant argues that he made "repeated requests for an attorney, prior to, at the beginning of, and mid-way through the interrogation. There was nothing ambiguous about any of these requests."
The court in Miranda v. Arizona, supra, 384 U.S. 436, at pages 444-445 , held that if a defendant "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." (Italics added.) Although he need not "speak with the discrimination of an Oxford don," a suspect must articulate his desire for counsel clearly enough that a reasonable police officer in the circumstances would understand that he is requesting an attorney. (Smith v. Illinois (1984) 469 U.S. 91, 95.) "Doubts must be resolved in favor of protecting the constitutional claim," and courts must "give a broad, rather than a narrow, interpretation to a defendant's request for counsel . . . ." (Michigan v. Jackson (1986) 475 U.S. 625, 633.)
In California before 1994, if a suspect requested counsel, precedent held that it did not need to be unequivocal or absolute to invoke Miranda. (People v. Thompson (1990) 50 Cal.3d 134, 165.) The Miranda holding was construed by California courts to mean that "a suspect may invoke his right to silence by any words or conduct reasonably inconsistent with a present willingness to discuss his case freely and completely." (People v. Duran (1983) 140 Cal.App.3d 485, 492, italics added.) Thus, courts found invocations of the right to counsel where suspects stated "Do you think we need an attorney" or "I guess we need a lawyer" (People v. Superior Court (Zolnay) (1975) 15 Cal.3d 729, 736, cert. den. (1976) 429 U.S. 816), "Well, maybe I should talk to my attorney" (People v. Munoz (1978) 83 Cal.App.3d 993, 995), and "Well then I think it's better that I have an attorney here" and "Have you got an attorney right here present, close" (Duran, supra, 140 Cal.App.3d at pp. 490-492). These holdings preceded Davis v. United States (1994) 512 U.S. 452 and the adoption of Article I, section 28, subdivision (d) of the California Constitution, requiring our courts to apply federal standards in deciding whether to exclude a confession for violating Miranda. (People v. Crittenden (1994) 9 Cal.4th 83, 129 [noting California's adoption of federal standard, requiring invocation of right to counsel be unambiguous and unequivocal]; People v. Cunningham (2001) 25 Cal.4th 926, 993.)
Our Supreme Court comprehensively discussed the issue of the invocation of the right to counsel in People v. Gonzalez (2005) 34 Cal.4th 1111. Applying Davis v. United States, supra, 512 U.S. 452 (Davis), in which "the United States Supreme Court held that a defendant's invocation of the right to counsel during custodial interrogation . . . must be unambiguous and unequivocal to be valid," (Gonzalez, supra, at p. 1116.) Gonzalez repeated the standard of review as follows. "Davis now provides the standard by which we assess whether a defendant's reference to counsel constituted an unambiguous and unequivocal invocation of the right to counsel. [Citations.] [¶] Consistent with Davis, a reviewing court--like the trial court in the first instance--must ask whether, in light of the circumstances, a reasonable officer would have understood a defendant's reference to an attorney to be an unequivocal and unambiguous request for counsel, without regard to the defendant's subjective ability or capacity to articulate his or her desire for counsel, and with no further requirement imposed upon the officers to ask clarifying questions of the defendant. [Citation.] In reviewing the issue, moreover, the reviewing court must 'accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. [The reviewing court] independently determine[s] from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " (Id. at p. 1125.)
After reviewing the videotape, and applying Gonzalez and Davis, we agree with the trial court that appellant's second alleged request for counsel was ambiguous and equivocal. It is significant that counsel could not agree on exactly what it was that appellant said. Defense counsel interpreted appellant's alleged request for counsel as, "I prefer to wait till I talk to an attorney for all this." On the other hand, the prosecutor interpreted appellant's statement to be, "I prefer before you try to talk to an attorney for all this."
With respect to appellant's argument that he requested an attorney before he ever spoke to Detective Davis, appellant's motion to suppress his statements expressly applied to his alleged requests for counsel during his interview with Detective Davis. Defense counsel told the court that "after [appellant] was arrested, he was taken in and he told the officers he wanted to speak to a lawyer. And instead of providing him with one, instead of stopping the questioning, they kept asking him again if he wanted a lawyer, even though he just told him that several times. . . . [¶] . . . I've got the transcript and I've got the exact locations of each time he asked for a lawyer." Since there was no transcript of what took place before Detective Davis started his interrogation of appellant, it is quite apparent that defense counsel was concerned with appellant's alleged requests for counsel during this interview. Defense counsel never argued that the police violated appellant's invocation of his right to an attorney at the time he was arrested. Accordingly, he cannot raise that claim for the first time on appeal. (People v. Gunnerson (1977) 74 Cal.App.3d 370, 382.) Although technically, this is not a new ground for appeal, the trial court was never given the opportunity to rule on this evidence.
Davis imposes no requirement upon the interrogating officer to ask clarifying questions following an equivocal invocation. However, if a suspect "expresses ambiguous remarks falling short of a clear waiver or invocation of his Miranda rights," officers may "continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights." (People v. Johnson (1993) 6 Cal.4th 1, 27.) Here, the trial court properly considered that the officers could ask clarifying questions under the circumstances present in this case. We agree with the trial court that we do not "know how more meticulous or painstaking an interviewer can be to make sure that there was or was not a waiver, and it appears that there was a waiver in the context of that entire statement."
As to appellant's third alleged request for counsel, appellant said, "I want an attorney." However, after a pause, appellant continued by saying, "cause, man, homes." " '[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him' [citations] . . . 'unless the accused himself initiates further communication, exchanges, or conversations with the police.' [Citations.]" (People v. Neal (2003) 31 Cal.4th 63, 80) Here, after his unambiguous request for counsel, appellant continued to speak. Detective Davis could have allowed appellant to keep talking, instead he tried to clarify whether appellant wanted a lawyer or wanted to keep talking. By asking for a lawyer and then continuing to speak, appellant created an inherently ambiguous situation. Given that once before he had mentioned an attorney and then continued to ask Detective Davis questions about why he was being accused of the murder it was reasonable for Detective Davis to clarify what appellant wanted to do. (Davis, supra, 512 U.S. at pp. 461-462, ["If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him"].)
As respondent points out, it is instructive to compare appellant's third and fourth requests for counsel. In both instances, appellant said, "I want an attorney." In both instances, Detective Davis asked, "Is that what you want?" In the fourth instance, appellant replied, "Yeah." Detective Davis terminated the interview. On the other hand, in the third instance, appellant replied to the same question with a long substantive denial that he committed the crime.
Under these circumstances, it was reasonable for Detective Davis to assume that appellant wanted to continue talking about the crime. Even so, Detective Davis did the prudent thing and reminded appellant that he had mentioned wanting a lawyer. Then, he told appellant that he had to decide if he wanted a lawyer or wanted to keep talking. Appellant replied by saying, "I am willing to talk to you guys. . . . I will talk to you." When taken in context, it is evident that appellant waived his right to counsel. This was not a case where the officers simply changed the subject of questioning to avoid giving effect to appellant's invocation of his right to counsel. (See People v. Clark (1992) 3 Cal.4th 41, 122.)
As noted, after appellant's fourth request for counsel, Detective Davis ended the interview and took appellant to a holding cell. Approximately 15 minutes later, appellant asked to speak to Detective Davis. Soon thereafter, appellant confessed to the crime. More than a year after the first suppression hearing, appellant testified for the first time that Detective Davis came by and said, " 'why are you playing games?' " The trial court ruled that even if Detective Davis approached appellant in the holding cell and asked that question, there was no Miranda violation because appellant was "clearly motivated by his own reasons and interest."
Appellant asserts that regardless of whether Detective Davis initiated contact, appellant's resulting confession was tainted by the extensive prior Miranda violations. Moreover, the evidence supports a finding that Detective Davis did impermissibly initiate further contact with appellant.
As the Fourth Amendment "fruit of the poisonous tree" doctrine does not apply to Miranda violations (Oregon v. Elstad (1985) 470 U.S.298, 303-305; cf. Wong Sun v. United States (1963) 371 U.S. 471, 487), the accused must show "actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will" if later statements are to be inadmissible.
Relying on Collazo v. Estelle (9th Cir 1991) 940 F.2d 411 and People v. Neal, supra, 31 Cal.4th 63 (Neal), appellant argues that even if he initiated contact, his waiver of his rights was not voluntary because the circumstances show that it was the product of the prior Miranda violations. The scenario here, however, differs from Collazo v. Estelle, supra, 940 F.2d 411 (Collazo). In Collazo, the 9th Circuit Court of Appeals found reversible error in the admission of a confession obtained after an interrogating officer attempted to discourage a suspect from talking with a lawyer by predicting a lawyer would direct him not to speak with the police and "it might be worse" for the suspect. (Id. at pp. 414, 416, 420.) A necessary predicate in Collazo was a finding that the defendant's confession following a second interrogation, "was the product of the coercive statements made by the police during the first illegal interrogation." (Id. at p. 421, italics added.)
In Neal, the investigating officer continued to badger the defendant into confessing despite the defendant's invocation of both his right to remain silent and his right to counsel "7 to 10 times." (Neal, supra, 31 Cal.4th at p. 81.) In addition, the officer in Neal improperly threatened the defendant by telling him that the officer had the power to take him "all the way to Timbuktu" and then improperly promised the defendant to let him off "closer to home" if the defendant cooperated. (Id. at p. 73.) The officer in Neal intentionally continued interrogating the defendant in deliberate violation of Miranda, in order to be able to impeach him, in spite of the defendant's invocation of both his right to remain silent and right to counsel. The officer obtained only an exculpatory statement. The following day, after defendant initiated further contact, the officer elicited defendant's two confessions. (Id. at p. 78.) In Neal, the Supreme Court concluded, "[I]n light of all the surrounding circumstances-including [the officer's] deliberate violation of Miranda; the circumstance that defendant remained in custody without being provided access to counsel before requesting to speak to [the officer]; defendant's youth, inexperience, minimal education, and low intelligence; the deprivation and isolation imposed on defendant during his confinement; and the promise and the threat [the officer] made to defendant during the initial interrogation after questioning should have ceased-defendant's initiation of further contact with [the officer], and his two subsequent confessions, were involuntary." (Ibid.) Again, the necessary predicate in Neal was a finding of something improper during the first interview.
Here, we have found that there was no Miranda violation and no coercive statements made during the first part of the interview. Accordingly, we find that appellant voluntarily initiated the second part of the interview.
See section concerning the voluntariness of appellant's confession.
As to appellant's contention that there was evidence to support a finding that Detective Davis impermissibly initiated further contact with appellant, appellant asserts there was no lower court ruling for this court to defer to. It appears that appellant suggests that we should decide de novo whether Detective Davis made the statement.
Contrary to appellant's assertion, the trial court did decide that Detective Davis was more credible than appellant and impliedly ruled that Detective Davis did not make the "why are you playing games" statement when the court denied appellant's motion for a new trial, ruling that the confession was "rightly admitted." Since we must defer to the trial court's resolution of credibility issues, we decline to decide de novo that Detective Davis made the statement. (People v. Leyba (1981) 29 Cal.3d 591, 596-597, [" 'the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court's findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence' "].)
Furthermore, we find that the trial court's implied finding that Detective Davis did not make the "playing games" statement supported by substantial evidence. Detective Davis testified that he did not have contact with appellant in the holding cell until he was told that appellant wanted to speak to him. In addition, he denied that he made any comment to appellant about "playing games."
Accordingly, we conclude that appellant reinitiated contact voluntarily and that his subsequent confession was properly admitted.
Appellant's Pretrial Statements-Voluntariness
As noted appellant contends the trial court should have suppressed his pretrial statements because his Miranda rights were violated. Alternatively, appellant contends that the trial court should have suppressed his pretrial statements because they were involuntary. Appellant argues that although defense counsel did not object to the admission of his statements on involuntariness grounds, this court should address the issue because it is a pure question of law based on undisputed facts or because trial counsel provided ineffective assistance of counsel in failing to raise the issue below.
Twice appellant moved to have his confession suppressed on the ground that Detective Davis ignored his request for counsel. However, counsel did not argue that the confession was involuntary. In fact, during the first suppression hearing counsel clarified that he was "not trying to say, in terms of a voluntariness of any statements, that there was any badgering or force applied or any forceful coercion . . . ."
Respondent argues that appellant has forfeited his claim by failing to raise it below, and that contrary to appellant's assertions, this is not a pure question of law, nor are the facts undisputed. We agree with respondent. However, because appellant has raised a claim of ineffective assistance of counsel we exercise our discretion and address this issue on that ground.
"To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel's representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel's failings, the result would have been more favorable to the petitioner. (Strickland v. Washington (1984) 466 U.S. 668, 687 . . .; In re Wilson (1992) 3 Cal.4th 945, 950 . . . .) 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' (Strickland, supra, 466 U.S. at p. 694 . . . .)" (In re Neely (1993) 6 Cal.4th 901, 908-909.)
"Judicial scrutiny of counsel's performance must be highly deferential. . . . 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." (Strickland v. Washington, supra, 466 U.S. at p. 689.) "Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Id. at p. 690; see Lockhart v. Fretwell (1993) 506 U.S. 364, 381.)
"A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Strickland v. Washington, supra, 466 U.S. at p. 690.)
Appellant bears a burden that is difficult to carry on direct appeal. (People v. Lucas (1995) 12 Cal.4th 415, 436.) "[I]f the record sheds no light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for an explanation and failed to provide one, or there could be no satisfactory explanation for counsel's performance." (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) "Nevertheless, deference is not abdication; it cannot shield counsel's performance from meaningful scrutiny or automatically validate challenged acts and omissions." (In re Jones (1996) 13 Cal.4th 552, 561.)
For reasons that follow, we are convinced that appellant's confession was voluntary and any motion to suppress on the ground that it was involuntary would have been futile. Accordingly, trial counsel did not render ineffective assistance of counsel by failing to bring a motion to suppress appellant's confession as involuntary. (See People v. Torrez (1995) 31 Cal.App.4th 1084, 1091 [defense counsel does not have to make "futile motions" or "indulge in idle acts to appear competent"].)
Due process requirements prohibit the use at trial of involuntary statements obtained by coercive police questioning. (Colorado v. Connelly (1986) 479 U.S. 157, 167; People v. Benson (1990) 52 Cal.3d 754, 778.) Accordingly, under both federal and state law, before a defendant's pretrial statement may be admitted into evidence, the prosecution has the burden of proving by a preponderance of the evidence that the statement was voluntary. (Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Sapp (2003) 31 Cal.4th 240, 267.)
We apply a "totality of circumstances" test to determine the voluntariness of a confession. (Withrow v. Williams (1993) 507 U.S. 680, 693; People v. Williams (1997) 16 Cal.4th 635, 660.) Among the factors to be considered are " 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (People v. Williams, supra, 16 Cal.4th at p. 660.)
A confession is voluntary if the suspect's decision to speak is entirely "self-motivated" because he freely and voluntarily chooses to speak without any form of compulsion or promise of reward. (People v. Thompson (1980) 27 Cal.3d 303, 327-328.) No single factor is dispositive in determining the question of voluntariness. (People v. Williams, supra, 16 Cal.4th at p. 660.) Lies told by the police to a suspect under questioning do not render the confession involuntary per se. The court must look to see whether the deception is reasonably likely to procure an untrue confession. (People v. Farnam (2002) 28 Cal.4th 107, 182.) Similarly, police trickery, by itself, does not render a confession involuntary (People v. Thompson (1990) 50 Cal.3d 134, 167), because subterfuge is not necessarily coercive. (People v. Felix (1977) 72 Cal.App.3d 879, 885-886.)
A trial court's determination of the voluntariness of a confession is reviewed de novo, while the trial court's historical findings of fact surrounding the confession are reviewed under the deferential substantial evidence standard. (Williams, supra, 16 Cal.4th at pp. 659-660.) Here, however, this issue was not explicitly addressed below, so there was no determination of the voluntariness of the confession and no findings of historical fact. Nevertheless, we apply de novo review in determining the voluntariness of appellant's confession, "we independently examine the record, but, to the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence. [Citation.]" (People Weaver (2001) 26 Cal.4th 876, 921.)
If the defendant is led to believe he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, the prosecution, or the court, in consideration of making the statement, even if truthful, such motivation is deemed to render the statement involuntary. (People v. Holloway (2004) 33 Cal.4th 96, 115.) A confession is involuntary if it is obtained by an express or implied promise of leniency or advantage to the accused, and if it is a motivating cause of the confession. (People v Ray (1996) 13 Cal.4th 313, 339.) However, mere advice or exhortation that it would be better to tell the truth, when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary when the benefit pointed out is merely that which flows naturally from a truthful statement. (People v. Holloway, supra, 33 Cal.4th at p. 115.)
Appellant asserts that Detective Davis made numerous promises of leniency to him. Detective Davis told him that the police had extensive evidence proving he was the killer, and effectively told him that a murder conviction was a fait accompli if he did not give a statement. Further, Detective Davis indicated that he could help him avoid such a conviction if he confessed to being the killer and said why he did it. After interrogating him for some time and failing to gain a confession, Detective Davis told him he should make a statement: " 'Cause what takes place in this room right now, could have an impact on whether or not you spend the rest of your life behind prison bars." Then Detective Davis asked, "Would you rather go before a judge or a jury and have them think that you cooperated, okay, or not cooperated. Which do you think would be better?" By this time, he had started to be convinced that Detective Davis was offering to help him avoid a murder conviction, as evidenced by the following exchange: " 'SF: And then like so you're just trying to step up to help and then the attorney, if you get an attorney, they do their part too? [¶] GD: Yes. But right now, we are beyond the point of whether or not you did it. . . .' "
When he continued to claim his innocence, Detective Davis told him his recalcitrance was preventing Davis from "helping" him: " 'GD- Okay, well then, I don't know what else to say. I cannot help you, I cannot help people, I cannot help you make people see who you really are if you want to continue with that.' "
Further, appellant asserts that again Detective Davis said that the police had already proved the case, but that if he explained why he killed Mendoza, " 'the why' " could make a difference in the outcome. A few minutes later, he finally confessed.
Appellant argues that not only did Detective Davis tell him that the case against him was already proven and make express and implied offers of leniency, he also told him that he would never have another opportunity to speak in his own defense. For example, Detective Davis told him, " 'Now is your opportunity, if there was a reason why this happened. Now is the opportunity to tell us. You are never going to have the opportunity to tell your side of the story again.' " Detective Davis reiterated this, telling him that if he didn't confess, " 'anything you say later on does not matter one bit.' " His choices were made clear - refuse to talk and be convicted of murder or confess to Davis and obtain his help in achieving some less onerous outcome.
In addition, appellant asserts that Detective Davis's continued questioning of him despite his repeated invocations of his rights and his limited education and low intelligence supports a finding of coercion.
Accordingly, appellant argues the totality of the circumstances show that his incriminating statements were involuntary. After reviewing the entire transcript and recording of appellant's interview by Detective Davis, we disagree.
At the outset, Detective Davis made it clear to appellant that he was under arrest for the murder of Mendoza. During the interrogation, Detective Davis reiterated that appellant "was going to jail for the murder of David Mendoza."
None of Detective Davis's exhortations to appellant to tell his side of the story conveyed expressly or implicitly that Detective Davis was going to help appellant avoid a murder conviction. Rather, they reflected the fact that appellant had one chance to cooperate with the police and tell his version of the facts before he was charged with murder. (See United States v. Gamez (9th Cir. 2002) 301 F.3d 1138, 1144, [officer's "comment that it would 'behoove' [defendant] to disclose what he knew about [the victim's] murder and that this was his 'last chance' to come forward does not amount to coercion"].)
Moreover, Detective Davis's pleas to appellant to help him show people who appellant really was, was no more than another way of telling appellant that if he had a "reason" or "excuse" for Mendez's murder that appellant would not be seen as a cold-blooded murderer. This is not a case where the detectives threatened negative consequences unless appellant confessed. (See People v. Denney (1984) 152 Cal.App.3d 530, 544 [defendant "pressured by the implied threat that he would get the gas chamber if he did not confess"].)
In People v. Denney, supra, 152 Cal.App.3d 530, the police preceded mention of the death penalty with a hypothetical story in which the actual triggerman in an "accidental" felony/homicide, who cooperated with the police, received only a five-year manslaughter sentence, while those who refused to cooperate were sentenced to life in prison without possibility of parole. (Id. at p. 536.) Then, when the suspect invoked his right to counsel, the police told him if he insisted on the presence of counsel, they couldn't "help" him, and that " 'We want to keep you from getting the gas chamber.' " (Id. at p. 539.) In Denney, unlike this case, it is evident the police suggested that the only way to avoid the death penalty would be to confess, and the hypothetical illustrated that cooperation with the police would lead to a lighter sentence regardless of the confessor's actual degree of culpability.
Furthermore, Detective Davis's statement that what appellant told him "could have an impact on whether or not [he] spen[t] the rest of [his] life behind prison bars" was a true statement, but it did not imply that appellant would receive lenient treatment if he confessed. All the statement implied was that if appellant had justification for the killing of Mendoza, then a murder conviction might not stand.
As to the other factors that appellant urges we should consider in determining the voluntariness of his confession, we note that here we have found no Miranda violation. As to appellant's claim that his low intelligence and intoxication made him more susceptible to coercion, we note that Detective Davis methodically explained to appellant his Miranda rights and appellant stated that he understood each one. In addition, we note that this was not the first time appellant had been arrested and subjected to police questioning. (See People v. Riva (2003) 112 Cal.App.4th 981, 989.) Furthermore, Detective Davis testified that appellant did not claim to be under the influence nor did he appear to be so. Since we must resolve any conflicts in the evidence in favor of the People (People v. Weaver, supra, 26 Cal.4th at p. 921), we find substantial evidence to support the conclusion that appellant understood his rights and was not under the influence of drugs.
Detective Davis treated appellant with respect. The length of the interview shows that there was not a "course of conduct on the part of the interrogator designed to break the will of the accused." (People v. Ramos (2004) 121 Cal.App.4th 1194, 1203.) The interview lasted approximately 45 minutes before it was terminated by appellant and after a 15 to 20 minute break the interview resumed. Shortly thereafter, appellant confessed. This was not a situation like Neal, supra, 31 Cal.4th at pages 83-84, where appellant was held incommunicado and without food for more than 24 hours.
In conclusion, we find that appellant's confession was voluntary and was not the result of police coercion such that his will was "overbourne by the circumstances." (People v. Guerra (2006) 37 Cal.4th 1067, 1093.) We find the crucial element of coercive police conduct to be missing in this case. (Ibid. [coercive police conduct is a " 'necessary predicate' " to a finding that a confession was involuntary.)
Accordingly, since appellant's confession was voluntary, it would have been futile for defense counsel to object to its admission on this ground. Therefore, we reject appellant's claim of ineffective assistance of counsel.
Refusal to Give a Defense Requested Jury Instruction: Credibility of Appellant's Confession
Appellant contends that the trial court erred by refusing to give a jury instruction concerning how to judge the voluntariness and credibility of his confession.
Background
During trial, the prosecutor noted that defense counsel's opening argument discussed the officers' Miranda violations and coercion in extracting appellant's confession. The prosecutor asked that defense counsel not be allowed to question Detective Davis on such matters. The court replied that even though it had found appellant's statements admissible, the defense could argue that the confession was involuntary because "If it's involuntary, then the jury, that's a matter of fact for the jury." The defense could also argue that the confession "shouldn't be given any weight because it was forced from the defendant."
The prosecutor proposed that the court instruct the jury that the confession was legally admissible so that they wouldn't be "exercising their own Miranda discretion based on what they've seen on TV." The court opined: "I think the instruction will have to say it's up to them to find that the confession or admission by the defendant was voluntary. And if they find it was not, then to give it whatever weight they think it should be. But it has nothing to do with - their job is not to decide whether or not any legal issue was - it's a factual issue they still have."
The court allowed defense counsel to cross-examine Detective Davis on the circumstances of the interrogation, including Detective Davis's use of ruses and why he continued the interrogation after appellant asked for an attorney and said that he wanted to stop the interrogation. Detective Davis testified that appellant's first two statements about an attorney were not clear, that he continued questioning because he didn't understand what appellant said, and that appellant then kept talking of his own accord.
Midway through this cross-examination, the court interjected: "Let me put the jury in the picture here. I don't want it to be confusing for the jury. [¶] This is not a legal question, Ladies and Gentlemen. You're the triers of the law here - you're the triers of the fact. The issue before the Court with regard to whether the case of Miranda versus Arizona apply has been determined by the Court and it was determined that there was no violation of Miranda versus Arizona. That's not to be determined by you. But it is important that you determine the credibility of the confession or any admission the defendant made as to whether it was voluntary because, if it was involuntary, you may not decide to accept it at all. [¶] I'm not giving you any indication of what I think. It's up to you. The attorney's asking with regard - you must have heard that on television at times. That's not really up to you, whether or not what the defendant said in an out-of-court confession or admission was true in whole or in part. [¶] I will tell you now and at the end of the case that a confession or admission by a defendant made outside of court must be viewed by you with caution. Okay?"
When appellant took the stand he testified about the interrogation. He said that he had taken a large amount of heroin and methamphetamine on the day he was interrogated. He asked for a lawyer four or five times, but the police kept on asking him questions and he kept talking because "they didn't want to provide me with a lawyer." Finally, the police told him he could get a lawyer and took him back to the holding cell. However, a few minutes later, Detective Davis opened the door and asked him why he was playing games and then left. Appellant said that he was wondering what was going on, so he stopped a passing officer and asked to speak to Detective Davis so he could ask him what he had meant. It was not his intention to talk about the case. Detective Davis took him back to the interview room and asked him if he wanted to speak to him. Appellant testified he said yes and started asking a question, but Davis cut him off and started talking about the case.
In rebuttal, Detective Davis denied approaching appellant in the holding cell and asking why he was playing games. Detective Davis also said that appellant didn't act as if he was under the influence of drugs.
The court addressed the voluntariness and reliability of the confession when the court instructed the jury. The trial court defined confessions and admissions, and told the jury: "You are the exclusive judges as to whether the defendant made a confession or an admission, and if so, whether that statement is true in whole or in part."
Further, the court instructed the jury that they were "not to consider the legal admissibility or legal voluntariness of [appellant's] statement. This is a legal issue which had been decided by a Judge. [¶] Evidence of the circumstances under which the confession or admission was obtained may be considered by you as to the weight or credibility you choose to give the statement."
The court refused to give an instruction proffered by defense counsel, which read as follows: "In determining the voluntariness of any statement alleged to have been made by the defendant, consider all the circumstances in evidence surrounding the making of THE statement, including but not limited to: [¶] 1 The defendant's age; [¶] 2. The defendant's intelligence; [¶] 3. Whether or not the defendant was given any advice of his constitutional rights; [¶] 4. The length of the detention; [¶] 5. Whether the questioning was repeated and/or prolonged; [¶] 6. Any physical punishments or hardships such as deprivation of food or sleep. [¶] If after considering all the evidence you determine that a statement, confession, admission or act or omission was made or done knowingly and voluntarily, you may give it such weight as you feel it deserves under the circumstances." The trial court wrote on the instruction: "rejected-not a jury issue as stated."
In closing arguments, defense counsel argued that appellant was under the influence when he confessed. In addition, defense counsel argued that the techniques used by the police to obtain the confession violated appellant's rights.
In contradiction of Evidence Code section 405, the trial court erroneously told the jury that it could determine whether appellant's confession was voluntary.
Appellant argues that he "had a right to have the jury consider evidence showing that his statement was obtained under circumstances that might affect its credibility and a right to proper instructions on how to weigh that evidence."
In Jackson v. Denno (1964) 378 U.S. 368, the Supreme Court held unconstitutional the New York practice whereby a confession was submitted to a jury for its determination of voluntariness without the trial judge having first satisfied himself it was voluntary. The opinion recognizes that some states followed the "orthodox" rule where the judge solely and finally determined the voluntariness of the confession, and some states followed the "Massachusetts" procedure where the jury passes on voluntariness only after the judge has independently resolved the issue against the accused. There is little room for doubt that the Supreme Court classified the California practice as being the "Massachusetts" procedure. An appendix to the separate opinion of Mr. Justice Black appends a table, which lists California in the "Massachusetts" category. (Id. at p. 418.) The majority opinion has an appendix listing states where it is unclear whether the Massachusetts or New York procedure is used. (Id. at p. 379, fn. 9.) California is not in that listing.
The California Supreme Court in People v. Gonzales (1944) 24 Cal.2d 870, 876, spelled out the duty of the trial court to afford the defendant a hearing, at which there was an opportunity to present evidence on the issue of voluntariness. The court noted, "It is the function of the court in the first instance to resolve any conflict in the evidence on the subject [citations], and if the court concludes that the confession was not free and voluntary it has the power and is in duty bound to withhold it from the jury's consideration. However, if there is evidence that the confession was free and voluntary, it is within the court's discretion to permit it to be read to the jury, and to submit to the jury for its determination the question whether under all the circumstances the confession was made freely and voluntarily. [Citations.] In such a case the court passes preliminarily on the question of the voluntary nature of the confession and its admissibility and although it may determine that the confession is voluntary and admissible, its ruling is not binding on the jury; and it is for that body 'to determine in the last analysis whether a confession is freely and voluntarily made.' [Citations.] The jury determines the issue of the nature of the confession, that is, whether it is voluntary or involuntary, on all the evidence on the issue; and the court is not required to receive evidence out of the hearing of the jury for the purpose of determining preliminarily the question of admissibility. . . ." (Id. at pp. 876-877.)
With the adoption of the Evidence Code, effective January 1, 1967, California changed its law from the "Massachusetts" rule outlined in the Gonzales opinion to the "orthodox" rule which gives the trial judge the final responsibility of determining admissibility. (People v. Lindsey (1972) 27 Cal.App.3d 622, 631.) As the Supreme Court explained in People v. Burton (1971) 6 Cal.3d 375, 389 (Burton), "Prior to the enactment of section 405 of the Evidence Code, effective January 1, 1967, the law was as [appellant in this case] now urges. We held in People v. Gonzales (1944) 24 Cal.2d 870 . . . that once the trial judge had made an initial determination that the confession was voluntary, the defendant was entitled to present evidence to the jury for its final determination as to voluntariness. In People v. Bevins (1960) 54 Cal.2d 71 . . ., we held that the court had a duty to instruct the jury sua sponte to determine for itself the voluntariness of the confession, and if it found it involuntary, then to disregard the confession altogether."
"The Legislature by enacting section 405 of the Evidence Code specifically rejected this rule. In the legislative committee comment to the section, the reason for the change is carefully explained: 'The existing law is based on the belief that a jury, in determining the defendant's guilt or innocence, can and will refuse to consider a confession that it has determined was involuntary even though it believes that the confession is true. Section 405, on the other hand, proceeds upon the belief it is unrealistic to expect a jury to perform such a feat. Corroborating facts stated in a confession cannot but assist the jury in resolving other conflicts in the evidence. The question of voluntariness will inevitably become merged with the question of guilt and the truth of the confession; and, as a result of this merger, the admitted confession will inevitably be considered on the issue of guilt. The defendant will receive a greater degree of protection if the court is deprived of the power to shift its fact-determining responsibility to the jury and is required to exclude a confession whenever it is not persuaded that the confession was voluntary.' " (Burton, supra, 6 Cal.3d at p. 389.)
The instruction given by the court to the jury that they were not "to consider the legal admissibility or legal voluntariness of [appellant's] statement" that it is a "legal issue which has been decided by a Judge" is a correct statement of the law as it stands now in California.
Accordingly, we turn to whether or not the court instructed the jury correctly regarding its function with regard to appellant's confession. As noted, the court instructed the jury that they were "the exclusive judges as to whether the defendant made a confession or an admission. And if so, whether that statement is true in whole or in part." Further, the court instructed the jury, "[e]vidence of the circumstances under which the confession or admission was obtained may be considered by you as to the weight or credibility you choose to give the statement." Appellant concedes that this "instruction was correct insofar as it stated that it was up to the jury to determine the statement's truth and credibility."
We find problems with appellant's contention that the trial court's refusal to give the defense requested instruction was error. Specifically, the first part of the instruction refers to "determining the voluntariness" of any statement, alleged to have been made by appellant and the final paragraph refers to the jury determining that a statement, confession, admission or omission was made or done "knowingly and voluntarily." That was not the job of the jury. Rather, they were charged with determining the statement's truth and credibility. As noted, they were so instructed.
Appellant contends, however, that if the trial court objected to the word voluntary and the discussion of knowingly and voluntarily in the final paragraph, the court should have modified the instruction accordingly. Appellant cites People v. Fudge (1994) 7 Cal.4th 1075, 1110 (Fudge) and People v. Falsetta (1999) 21 Cal.4th 903, 924 (Falsetta) for this proposition.
Neither case is on point. Falsetta and Fudge support the proposition that when the defendant requests an instruction on an issue on which he is entitled to have the jury instructed, but the instruction is faulty in some respect, the trial court has a duty "to tailor defendant's proposed instruction to give the jury some guidance" on the issue rather than deny the instruction outright. (Falsetta, supra, 21 Cal.4th at pp. 922-924, and see Fudge, supra, 7 Cal.4th at p. 1110.) Here the trial court adequately instructed the jury on their role with respect to appellant's confession. If the trial court had changed the wording of appellant's instruction so that it concerned credibility, not only would the purpose of the instruction have changed, but also the court could have properly refused to give an instruction that merely elaborates on the general instructions already given. (People v. Hendricks (1988) 44 Cal.3d 635, 643.)
Appellant asserts that the trial court gave conflicting and confusing instructions and failed to provide the jury with guidance on how to weigh his statement. Respondent concedes that the trial court should not have told the jury that appellant's admission or confession was legally admissible. However, respondent points out that the other instructions made it clear that the trial court's determination of admissibility did not influence the jury's evaluation of the credibility of appellant's confession. We agree. As noted, the trial court instructed the jury that they were the exclusive judges as to whether appellant made an admission or confession and that they could consider the circumstances under which the admission or confession was made to decide the weight or credibility of the statement.
In deciding whether instructional error occurred, we must determine whether it is reasonably likely the trial court's instructions caused the jury to misapply the law. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Cain (1995) 10 Cal.4th 1, 36.) We must assume that jurors are intelligent persons capable of understanding, correlating, and following all instructions. (People v. Phillips (1985) 41 Cal.3d 29, 58.)
In sum, the jury received ample instruction that it could make its own determination whether appellant's confession was credible and trustworthy. Accordingly, it is not reasonably likely that the trial court's instructions caused the jury to misapply the law. Even if they did, appellant would have received the benefit of that misapplication. If the jurors had remembered the statement made by the trial judge that they could determine whether appellant's confession was voluntary, it gave appellant two opportunities to have his confession nullified – once by the trial court and once by the jury. Appellant has no basis to complain.
Instructions on Imperfect Self-Defense: Burden of Proof
Appellant contends that the trial court violated his due process and fair trial rights because it failed to instruct the jury that the prosecution had the burden of proving he did not act with an actual but unreasonable belief in the need to defend himself.
Specifically, appellant asserts that where evidence in a murder case indicates the defendant may have acted in imperfect self-defense, the trial court must instruct the jury that the prosecution has the burden of proving beyond a reasonable doubt the absence of an actual but unreasonable belief in the need to act in self-defense. Thus, implicitly appellant's position is that in order to prove the malice element of murder the prosecution must prove the absence of imperfect self-defense beyond a reasonable doubt and the jury must be so instructed.
Appellant concedes that the trial court generally instructed the jury that the burden was on the prosecution to prove elements of the offense beyond a reasonable doubt. Further, that the trial court instructed the jury on the elements of murder, listing the elements that the prosecution must prove as " '1. A human being was killed; 2. The killing was unlawful; and 3: The killing was done with malice aforethought.' " Nonetheless, appellant argues that at no point did the court instruct the jury that in order to find him guilty of murder, it had to affirmatively find that he did not act in unreasonable self-defense. Nor was the jury instructed that in order to prove malice, the prosecution had to prove beyond a reasonable doubt that he did not act in unreasonable self-defense.
The court defined malice for the jury.
The trial court instructed the jury with the lesser offense of voluntary manslaughter, based on appellant's testimony that after Mendoza hit him and reached for something under his seat, he shot Mendoza because he feared for his life. The instruction informed the jury, "[e]very human being who unlawfully kills another human being without malice aforethought but either with an intent to kill or with a conscious disregard [for human life] is guilty of voluntary manslaughter in violation of Penal Code Section 192(a). [¶] There is no malice aforethought if the killing occurred in the actual, but unreasonable belief in the necessity to defend one's self against imminent [peril] to life or great bodily injury."
In addition to CALJIC 2.90, which as given by the trial court states "[a] defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt," the trial court gave the jury the following instructions: CALJIC No. 8.10 - "A killing is unlawful, if it was not justifiable." CALJIC No. 5.17 - "A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully, but does not harbor malice aforethought is not guilty of murder. . . . Such an actual but unreasonable belief is not a defense to the crime of voluntary manslaughter." CALJIC No. 8.40 - "Every [person] who unlawfully kills another human being without malice aforethought, but either with an intent to kill or with conscious disregard, is guilty of voluntary manslaughter . . . . [¶] There is no malice aforethought if the killing occurred in the actual, but unreasonable belief in the necessity to defend one's self against imminent [peril] to life or great bodily injury." CALJIC No. 5.15 - "Upon a trial of a charge of murder, a killing is lawful if it was justifiable. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty."
Appellant claims these instructions were inadequate because the trial court did not give CALJIC No. 8.50 [Murder and Manslaughter Distinguished] or its equivalent.
CALJIC No. 8.50 provides: "The distinction between murder [other than felony-murder] and manslaughter is that murder [other than felony-murder] requires malice while manslaughter does not. [¶] When the act causing death, though unlawful is done [in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation,] [or] [in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury,] the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent. [¶] To establish that a killing is murder [other than felony murder] and not manslaughter the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the death was not done [in the heat of passion or is excited by a sudden quarrel] [or] [in the actual, even though unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury]."
As respondent points out, the comment to CALJIC No. 8.50 states that where there is an appropriate factual basis that an actual but unreasonable belief in the need to defend negates malice aforethought the instruction should be given sua sponte. The authority for this comes from People v. Flannel (1979) 25 Cal.3d 668, 680-683 (Flannel) (superseded by statute on another ground as stated in In re Christian S. (1994) 7 Cal.4th 768, 777).
However, Flannel held only that as a general principle of law, trial courts should instruct sua sponte "that a genuine but unreasonably held belief negates the mental state of malice aforethought that is necessary for a murder conviction." (Flannel, supra, 25 Cal.3d at p. 682.) Flannel said nothing about instructing on the burden of proof. Here pursuant to CALJIC No. 5.17 the court instructed the jury that "[a] person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury kills unlawfully, but does not harbor malice aforethought and is not guilty of murder . . . ." Accordingly, the instruction here complied with Flannel.
Relying on Mullaney v. Wilbur (1975) 421 U.S. 684, 704 (Mullaney), appellant argues that when a factual circumstance negates an element of the crime, as imperfect self-defense negates malice, due process requires the prosecution to prove the absence of that circumstance beyond a reasonable doubt.
The Maine law under consideration in Mullaney was unusual, in that, absent justification or excuse, all intentional or criminally reckless killings were presumed to be murder, unless the defendant proved that the killing was committed in the heat of passion. (Mullaney, supra, 421 U.S. at pp. 691-692.) Thus, the People benefited from a statutory presumption that all homicide was murder, and punishable as such by life imprisonment.
The vice of the law at issue in Mullaney was the presumption, which is at odds with the traditional view of the burden of proof in a criminal case. In Patterson v. New York (1977) 432 U.S. 197, 215, the Supreme Court clarified this when it cautioned that all Mullaney held was that the state must prove "every ingredient of an offense" and that it cannot shift to the defendant any part of that burden by means of a presumption.
The court in Patterson v. New Jersey cautioned that Mullaney could not be read to impose on the state the burden to prove every fact that criminalizes an act. (Patterson v. New Jersey, supra, 432 U.S. at p. 214.)
People v. Rios (2000) 23 Cal.4th 450 (Rios), to which appellant also cites, is equally unavailing. In Rios, our state Supreme Court rejected the defendant's assertion that in order to prove the charged crime of voluntary manslaughter the prosecution must prove the defendant killed in the heat of passion upon sufficient provocation or in the actual but unreasonable belief in the need for self-defense (referred to as imperfect self-defense). The court held that where the crime charged is voluntary manslaughter, the prosecution must prove the killing was intentional and unlawful. (People v. Rios, supra, 23 Cal.4th at p. 454.) In addition, the court held that heat of passion and imperfect self-defense are issues when the crime is murder because they negate the element of malice and thus reduce the crime from murder to manslaughter. (Ibid.) Malice is not an element of voluntary manslaughter. Therefore, the court held "neither heat of passion nor imperfect self-defense is an element of voluntary manslaughter that the People must affirmatively prove beyond reasonable doubt in order to obtain a conviction for that offense." (Ibid.) "However, provocation and imperfect self-defense, though they do not justify or excuse an intentional or consciously indifferent homicide, mitigate the offense by negating the murder element of malice, and thus limit the crime to manslaughter." (Ibid.) Thus, "where murder liability is at issue, evidence of heat of passion or imperfect self-defense bears on whether an intentional or consciously indifferent criminal homicide was malicious, and thus murder, or nonmalicious, and thus the lesser offense of voluntary manslaughter. In such cases, the People may have to prove the absence of provocation, or of any belief in the need for self-defense, in order to establish the malice element of murder." (Ibid.)
In Rios, the defendant had been retried for voluntary manslaughter after having been acquitted of murder. The defendant claimed in effect that if the jury believed that he killed intentionally and unlawfully but without provocation or in self-defense, then the jury also would have to acquit the defendant of voluntary manslaughter. (People v. Rios, supra, 23 Cal.4th at pp. 454-455.)
Even if this excerpt from Rios was not dicta, it falls far short of imposing a sua sponte obligation on trial courts to instruct the jury that in order to prove murder/malice the prosecution had the burden of proving the absence of unreasonable self-defense as appellant now urges.
Whether Mullaney and Rios can be interpreted to hold that in every murder case the jury must be instructed that it is the People who have the burden to affirmatively prove that appellant "did not act in unreasonable self-defense" in order to prove murder/malice is doubtful.
In determining the impact of the court's instructions on the jury and deciding whether there is a reasonable likelihood that the jury misunderstood or misapplied them, we must also consider the arguments of counsel. (People v. Young (2005) 34 Cal.4th 1149, 1202.) Here, in closing argument the prosecutor stated, "I have to show beyond a reasonable doubt it's not self-defense." Similarly, defense counsel argued, "Now, the prosecution's job, in this case, they're [sic] burden or their job, as I call it, is to prove guilt. My burden is that I have no burden. . . . I do not have to present evidence. I don't have to prove innocence. It's already assumed. I don't have to prove anything in this case. . . . They have to prove the complete opposite."
We find no basis to conclude the jury misinterpreted the instructions as given by the court or was confused in any manner as to who bore the burden of proving that appellant did not act with an actual but unreasonable belief in the need to defend himself. As noted, the court instructed the jury that the prosecution had the burden of proving appellant guilty beyond a reasonable doubt and of proving malice for murder. The jury was aware that to find appellant guilty of murder, the prosecution had to prove he acted with malice, and that malice is absent if the killing occurred in the actual but unreasonable belief in the necessity to defend one's self. Accordingly, we fail to see how the jury could have jumped to the conclusion that the prosecution did not have the burden of proving appellant did not act with an actual but unreasonable belief in the need to defend himself. Theoretically, once the jury decided that the prosecution proved appellant acted with malice, by necessity the prosecution proved that appellant did not act with an actual but unreasonable belief in the need to defend himself.
Moreover, the instructions informed the jury that to convict appellant of voluntary manslaughter, the prosecution had to prove the homicide was unlawful, that is, not justifiable lacking perfect self-defense or imperfect self-defense. Expressly, the instructions indicated that the prosecution had to prove the homicide was unlawful beyond a reasonable doubt ["The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable"].
Furthermore, if the instructions were susceptible of the interpretation appellant now asserts, counsel likely would have objected at trial on this basis. Such an omission suggests that " 'the potential for [confusion] argued now was not apparent to one on the spot.' " (People v. Keenan (1988) 46 Cal.3d 478, 535.)
Accordingly, we reject appellant's challenge to the instructions as given.
Instructions on the Prosecution's Burden to Prove Appellant Did Not Act in Self-Defense
The trial court instructed the jury with CALJIC Nos. 5.13 [Justifiable homicide-lawful defense of self or another]; 5.15 [Charge of murder-burden of proof re justification or excuse]; 8.40 [Voluntary manslaughter defined]; and 2.90 [Presumption of innocence-reasonable doubt-burden of proof].
CALJIC No. 5.15 provides: "Upon a trial of a charge of murder, a killing is lawful if it was justifiable. The burden is on the prosecution to prove beyond a reasonable doubt that the homicide was unlawful, that is, not justifiable. If you have a reasonable doubt that the homicide was unlawful, you must find the defendant not guilty." Appellant sought to modify that instruction by adding the word "alone" so it stated, "The burden is on the prosecution alone . . . ." The trial court hand-wrote, "rejected-redundant surplusage."
Appellant also requested an instruction that would have provided: "It is not necessary for the defendant to establish self-defense by evidence sufficient to satisfy the jury that the self-defense was true, but if the evidence is sufficient to raise a reasonable doubt as to whether the defendant was justified, then he is entitled to an acquittal." The trial court hand-wrote, "5.15 has clearer statement rejected."
Appellant contends that his right to instructions on the defense theory of the case was violated by the trial court's refusal to give his requested instructions. He argues that he was entitled to such instructions and the error in not giving them requires reversal.
The trial court must instruct upon every theory of the case supported by substantial evidence. This duty extends to defenses relied upon by the defendant which are supported by substantial evidence and are not inconsistent with the defendant's theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157.) "Self-defense negates culpability for assaultive crimes, whether or not the assault results in death." (People v. Adrian (1982) 135 Cal.App.3d 335, 340 (Adrian).) The theory of self-defense "go[es] directly to guilt or innocence" and in matters that go directly to guilt or innocence, "the burden of persuasion is on the state." (Id. at pp. 340-341, citing § 1096.)
Instructional claims involve questions of law and are entitled to independent and de novo review. (People v. Alvarez (1996) 14 Cal.4th 155, 217.) " ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." ' " (People v. Smithey (1999) 20 Cal.4th 936, 987.)
Appellant acknowledges that both parties in closing argument explained to the jury that the prosecution did have the burden of proving that he did not act in reasonable self-defense, and that the homicide was therefore not lawful. Furthermore, he acknowledges that the instructions stated the same thing, and that the trial court gave the standard CALJIC instruction on the burden of proof for reasonable self-defense.
Nevertheless, appellant contends that the requested instructions would have provided a "correct and clearer definition of the burden of proof, and [he] was entitled to have that instruction given to the jury." We disagree.
We acknowledge that in People v. Sanchez (1947) 30 Cal.2d 560, 571, the Supreme Court held that the following self-defense instruction in a homicide case is proper: " '[I]t is not necessary for the defendant to establish self-defense by evidence sufficient to satisfy the jury that the self-defense was true, but if the evidence is sufficient to raise a reasonable doubt as to whether the defendant was justified, then he is entitled to an acquittal.' " However, a court may properly refuse to give an instruction that merely elaborates on the general instructions already given. (People v. Hendricks, supra, 44 Cal.3d 635, 643.) The court gave CALJIC Nos. 5.15 and 5.13, which together adequately covered the issue of who had the burden of proof of showing that the homicide was not justified. (Adrian, supra, 135 Cal.App.3d. at p. 342, fn. 7 ["As to homicide cases, the function performed by the Sanchez instruction is now fulfilled by CALJIC No. 5.15"].) Since the proposed instruction, even if properly drafted, "merely elaborated upon the general instruction[s]," refusal to give it was not error. (People v. Anderson (1966) 64 Cal.2d 633, 640-641.) Although defendant's requested instructions may have been correct statements of the law, "the law requires only that the trial court correctly instruct on any points of law pertinent to the issue. [Citation.] When the jury is properly instructed as to pertinent legal principles, the court need not restate those principles merely in another way. [Citation.]" (Ibid.)
As given by the trial court CALJIC NO. 5.13 provides: "Homicide is justifiable and not unlawful when committed by a person in the defense of himself if he actually and reasonably believed that the individual killed intended to commit a forcible and atrocious crime and that there was imminent danger of that crime being accomplished. A person may act upon appearances whether the danger is real or merely apparent."
Furthermore, the addition of the word "alone" to CALJIC No 5.15 would have added nothing to the explanation of who carried the burden of proof. The point of the requested "word" was readily apparent from the instructions given, and nothing in the particular circumstances of this case suggested a need for additional clarification.
Accordingly, we conclude that the trial court did not err in refusing to give appellant's requested instructions.
The No Contact Order
Appellant complains that the abstract of judgment contains a no contact order that was not imposed by the trial court. Respondent agrees that the order was not properly imposed and that this court should strike the order.
The July 15, 2005 minute order indicates that the judgment included an order that appellant "[h]ave no contact with the Mendoza family or Jane Doe, including telephonic, written or second party contacts or via computer." Similarly, the abstract of judgment indicates, "Have no contact with the Mendoza Family or Jane." However, when the trial court orally pronounced judgment the court never mentioned a no-contact order.
It appears from the record with which we were provided that the word "Doe" may have been eliminated by the hole punch.
"An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell (2001) 26 Cal.4th 181, 185.) When there is a conflict between the reporter's transcript and the abstract of judgment, the trial court's oral pronouncement prevails. (Id. at p. 188.)
Our review of the record reveals that the trial court did not impose a no-contact order. Accordingly, we will order the trial court to correct the abstract of judgment. (See People v. Mitchell, supra, 26 Cal.4th at p. 188.)
The Court Security Fee
The abstract of judgment includes an order that appellant pay a $20 court security fee pursuant to section 1465.8, subdivision (a)(1).
Appellant contends that the imposition of a court security fee violates the prohibition against retroactive and ex post facto application of statutes. Respondent does not address the issue of retroactivity. Rather, respondent jumps straight to ex post facto analysis and argues that section 3, which states that no part of the Penal Code is retroactive, unless expressly so declared, does not apply because it applies only to punishment and the $20 charge is de minimis and properly denominated as a "fee," not a fine. Implicitly, respondent concedes that the statute was applied retroactively.
Section 1465.8, subdivision (a)(1) provides, in relevant part, "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense, including a traffic offense, except [certain] parking offenses. . . ." The statute went into effect on August 17, 2003. (Stats. 2003, ch. 159, § 25.) Appellant committed his crime on February 20, 2003.
"It is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate, or the Legislature, intended otherwise." (Tapia v. Superior Court (1991) 53 Cal.3d 282, 287.) If the wording of the statute is unclear, the legislative history must "clearly" indicate that the Legislature intended the law to be retroactive in order for it to have retroactive application. (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 221-222.)
The text of section 1465.8 is silent on the question of retroactivity. Furthermore, we do not find in the legislative history an unequivocal and "clear" legislative intent to give the statute retroactive effect. Section 1465.8 was simply part of fiscal legislation, passed to effectuate the 2003-2004 state budget. (Stats. 2003, ch. 159, § 25; see People v. Wallace (2004) 120 Cal.App.4th 867, 871-873 discussing Assembly Bill 1759, of which section 1465.8 was a part.) There is no indication that the Legislature ever considered retroactivity.
The next step in the analysis is to decide whether application of section 1465.8 in this case gave the law retroactive effect. Section 1465.8 applies to "every conviction for a criminal offense." Application of a law is retroactive if it attaches new legal consequences to conduct completed before the law's effective date. (People v. Grant (1999) 20 Cal.4th 150, 157.) California courts have held that the date of the offense controls the issue of retroactivity even when the statute imposes a civil liability and even when "conviction" triggers application of the statute. (Fox v. Alexis (1985) 38 Cal.3d 621; cf., People v. Palomar (1985) 171 Cal.App.3d 131; People v. Vega-Hernandez (1986) 179 Cal.App.3d 1084.) The date of the offense, February 20, 2003, preceded the effective date of section 1465.8, imposition of the fee. Thus, in this case it was a retrospective application of the law. Since we have concluded that the Legislature did not intend the statute to have retrospective effect, it was error to apply it in this case. Accordingly, we do not need to consider appellant's ex post facto challenge.
The issue of section 1465.8's retroactivity is currently pending before the California Supreme Court. (People v. Carmichael, S141415, People v. Alford, S142508, review granted May 10, 2006.) In People v. Carmichael, Division Two of the First District held that imposition of the $20 security fee to crimes that occurred before the effective statute was improper, because such fee is a new legal consequence attached to the offense for which a defendant is convicted, and, therefore, increases the defendant's liability for conduct that occurred before the effective date of the statute. In People v. Alford, Division One of the First District disagreed with Carmichael, and held that the provisions of section 1465.8 were intended to apply retroactively. The primary basis for the Alford court's reasoning was that the security fee is administrative rather than penal, and as such, its imposition does not amount to greater punishment for a defendant.
We are aware that section 1465.8 has been upheld against a challenge that it violated the prohibition against ex post facto legislation when applied to conduct preceding its effective date. (People v. Wallace, supra, 120 Cal.App.4th at p. 870 (Wallace).) However, Wallace does not resolve the retroactivity issue. In an ex post facto challenge, the questions to be resolved are "whether the Legislature intended the provision to constitute punishment and, if not, whether the provision is so punitive in nature or effect that it must be found to constitute punishment despite the Legislature's contrary intent." (People v. Castellanos (1999) 21 Cal.4th 785, 795, [application of sex offender registration requirement to defendant whose offenses were committed before effective date of relevant statute did not violate ex post facto prohibition].) Wallace held section 1465.8 was enacted for a nonpunitive purpose, as the stated purpose of the legislation was to " 'ensure and maintain adequate funding for court security,' " and was not so punitive as to override the legislative intent because it imposed a minimal burden, did not meet traditional aims of punishment and was rationally related to a nonpunitive purpose. (Wallace, supra, 120 Cal.App.4th at pp. 875-876.) Before we get to the ex post facto analysis, however, the first issue to be decided is whether section 1465.8 attached a new legal consequence to, and increased appellant's liability for, conduct that occurred before it became effective, regardless of whether the fee constituted "punishment" within the meaning of the ex post facto clause.
Errors in the Abstract of Judgment
Appellant contends that the clerk's minute order and the abstract of judgment should be modified to correct the sentence length, date of conviction and presentence custody credits. Respondent concedes the issue.
Generally, discrepancies between the judgment as orally pronounced and as entered are presumably the result of clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471.)
"It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases." (In re Candelario (1970) 3 Cal.3d 702, 705.) "The court may correct such errors on its own motion or upon the application of the parties." (Ibid.)
"Courts may correct clerical errors at any time, and appellate courts . . . that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.]" (People v. Mitchell, supra, 26 Cal.4th at p. 185.)
This nunc pro tunc authority is limited to true clerical errors. "An amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error, . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion." (In re Candelario, supra, 3 Cal.3d at p. 705.) "The distinction between clerical error and judicial error is 'whether the error was made in rendering the judgment, or in recording the judgment rendered.' " (Ibid.)
The July 15, 2005 minute order and the abstract of judgment indicate that appellant was sentenced to 50 years to life without the possibility of parole. The transcript of the sentencing hearing confirms that the court sentenced appellant to a life sentence with an aggregate minimum term of 50 years as follows: "[F]or the conviction for the crime of murder . . . in the first degree . . . that you be sentenced to a term of 25 years to life in the Department of Corrections. [¶] With regard to the enhancement . . . that you used a weapon. . . . the Court, consecutive to and in addition to the sentence just imposed, imposes another term of 25 years, for a total term of 50 years to life." The court did not indicate that appellant would be ineligible for parole. As noted, earlier "[a]n abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize." (People v. Mitchell, supra, 26 Cal.4th at p. 185.) When there is a conflict between the reporter's transcript and the abstract of judgment, the trial court's oral pronouncement prevails. (Id. at p. 188.) Accordingly, we will order the trial court to correct the minute order and abstract of judgment to remove any indication that appellant is ineligible for parole.
Similarly, the abstract of judgment indicates that the date of conviction was July 15, 2003. The record indicates, however, that the date of appellant's conviction was May 18, 2005. Accordingly, we will order the trial court to correct the abstract of judgment to reflect a conviction date of May 18, 2005.
Finally, appellant asserts that his presentence credits were miscalculated and that he should receive 838 days instead of 836 days of presentence credits. Respondent agrees that appellant was taken into custody on March 31, 2003, and remained in custody through July 15, 2005. Accordingly, respondent asserts that this court should order the trial court clerk to amend the abstract of judgment to reflect that appellant has 838 actual days of presentence credit.
We remind the parties that " '[t]he appropriate method of correction of errors of this kind is to move for correction in the trial court. It is the obligation of the [trial] court, under section 2900.5, to calculate the number of credit days and include same in the abstract of judgment . . . . If a dispute arises as to the correct calculation of credit days, such should be presented on noticed motion "for resolution to the court which imposed the sentence and which has ready access to the information necessary to resolve the dispute. . . ." ' [Citations.] If the appellant is unable to obtain relief in the trial court, the postjudgment order denying modification of the sentence is an appealable order. [Citation.]" (People v. Salazar (1994) 29 Cal.App.4th 1550, 1557.)
However, when other issues are litigated on appeal, defense counsel is not required to file a motion to correct a presentence award of credits in order to raise that question on appeal. (People v. Florez (2005) 132 Cal.App.4th 314, rehearing denied (Sept. 19, 2005), review denied (Dec. 14, 2005).) For that reason, we will address this issue.
The court's oral pronouncement of judgment included awarding appellant 836 days of presentence credit. However, there appears to be a miscalculation of the presentence credits in the probation report, which the court repeated when it pronounced judgment. Appellant was in custody in 2003 for 276 days, in 2004 for 366 days (a leap year) and in 2005 for 196 days. Accordingly, he spent 838 days in presentence custody. (See People v. Smith (1989) 211 Cal.App.3d 523, 526 [defendant awarded to full day of presentence credit for each partial day served, including the day he is sentenced to prison].) Consequently, we will order the abstract of judgment amended to award appellant 838 days of presentence custody credit.
Disposition
The trial court is ordered to amend the abstract of judgment to correct the sentence length, date of conviction and presentence custody credits. We strike the no contact order and court security fee. We affirm the judgment as so modified.
WE CONCUR: RUSHING, P. J., PREMO, J.
For the sake of clarity, however, we will refer to appellant's alleged requests for counsel during his interview with Detective Davis as instances two, three and four.