Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BA246155, William Pounders, Judge.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Lomel Hamilton was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The trial court sentenced appellant to a term of 25 years to life in prison. The court imposed various fees, including a $20 security assessment pursuant to section 1465.8, subdivision (a)(1).
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant appeals from the judgment of conviction, contending that the trial court erred in admitting statements he made in a telephone call to police. Appellant further contends that the court erred in imposing the $20 security assessment. We affirm the judgment of conviction.
Facts
On July 3, 2001, Shereece Rankin and Charles Jordan were driving together to the house of Jordan's sister Paulette. Rankin's boyfriend Timothy Johnson ("Sinister") was a member of the Swan Bloods gang, and Jordan was associated with Swan Bloods gang members. During the ride, co-defendant James Collins called Jordan and asked about Rankin's whereabouts. Jordan told Collins that he was with Rankin and that they were driving together to Paulette's home. Collins ("Kandyman" or "KT") and appellant ("Footlong") were also members of the Swan Bloods gang.
Collins was convicted of Rankin's murder by a separate jury.
Once at Paulette's home, Rankin and Paulette had an altercation, Rankin fell into a kiddy pool and got wet, and Rankin then walked away in the direction of Avalon. After Rankin left, Collins stopped by and asked Jordan where Rankin was. Collins told him where she had gone.
Jordan saw Collins park his car next to a group of young Swan Bloods gang members, including appellant, and then saw appellant enter Collins's car. Jordan then saw Collins drive toward the area of 78th Street and Avalon and stop the car. There, appellant got out and walked toward 78th Street and Avalon. Shortly thereafter, Jordan heard gunshots. Jordan walked to the location of the gunshots and saw Rankin lying on the sidewalk on Avalon near 78th Street.
About 15 minutes after the shooting, Melvin Wince, another Swan Bloods gang member, and Darnell Wells, both of whom knew appellant and Collins, saw appellant in possession of a handgun at Wells's home. Appellant told them that Collins had picked him up and told him to kill Rankin and that he did so even though he did not know Rankin. Appellant followed Collins's command because Collins was his "big homie." Wince recognized the handgun in appellant's possession as Collins's handgun. Appellant opened the handgun and showed Wells the expended shell casings.
About a week after the shooting, Wells overheard Collins telling appellant to get rid of the handgun which had been used to kill Rankin. At some other time, appellant told Demetrius Henson, another Swan Bloods gang member, that he had shot Rankin at Collins's behest.
Los Angeles Police Detective Michelle Esquivel was assigned to investigate Rankin's murder and responded to the crime scene, which was in the heart of the area claimed by the Swan Bloods gang. There, she saw the victim lying on the sidewalk. Rankin, who had been shot in the back of her head and right shoulder, was dead. Detective Esquivel did not see any shell casings near the crime scene. The detective found a copper fragment in front of the victim's face. Rankin had a tattoo on her breast that said, "189 percent Sinister."
Within days of the murder, Detective Esquivel returned to the crime scene and observed graffiti nearby. The graffiti referred to the Swan Bloods gang and Rankin.
On July 6, 2001, Detective Esquivel interviewed Charles Jordan, whose attorney had requested the appointment. Jordan gave a brief statement and told the detective that he would rather speak to Detective Radtke. Subsequently, Jordan made a couple of appointments with the police that he did not keep. The case was then reassigned to Detective Dan Myers for investigation purposes.
On August 9, 2002, Detective Myers interviewed Henson and tape-recorded the interview. During the interview, Henson brought up the names of Collins and appellant and said that Collins persuaded appellant to shoot Rankin. Detective Myers also showed Henson a photographic lineup, and Henson selected Collins's photograph from the lineup. Henson said a picture of Wells was not the person he knew as Footlong.
On November 14, 2002, Detectives Myers and Baker interviewed Wince and tape-recorded the interview. Wince stated that he saw appellant running with a gun after the Rankin shooting and that appellant told him that he had killed Rankin since Collins told him to do so. Wince believed that appellant obeyed Collins because Collins was his "big homie." Wince also mentioned that Collins had told him there was a "personal thing" between Collins and Sinister.
The detectives showed Wince a photographic lineup. Wince circled appellant's photograph and signed his name at the bottom of the form. Wince wrote in the identification form, "Footlong was the shooter of Shereece on 78th and Avalon." Wince also selected Collins's photograph from another lineup and wrote down, "[K]andyman was the person who gave Footlong the gun that killed Shereece . . . and he['s] the one who dropped Footlong to kill her . . . ." Wince identified Wells as being with him at the time of the shooting.
On January 8, 2003, Los Angeles Police Officer Robert Quiroz transported Wells to Los Padrinos Juvenile Hall. During the trip, Wells struck up a conversation about crimes committed by Swan Bloods gang members, including the murder of Sinister's girlfriend in Swan Bloods turf. Officer Quiroz was not involved in the Rankin murder investigation, but decided to tape the conversation. Wells told Officer Quiroz that Collins had given a gun to appellant, drove him around, pointed out Rankin, and told appellant to kill Rankin. Officer Quiroz later mentioned his conversation with Wells to the officers investigating Rankin's murder and gave them a copy of the tape.
On March 25, 2003, Detective Myers spoke to Jordan about the Rankin murder. At the time, Jordan appeared lucid. He did not appear to be under the influence of narcotics. Jordan told the detective about Collins's telephone call and visit to Paulette's home to look for Rankin on July 3, 2001. He also told them that Collins drove to where a group of young gang members were congregated, picked appellant up, drove toward Avalon on 78th Street and stopped the car there, allowing appellant to exit. Jordan said that he saw appellant walk south on Avalon. Jordan then heard gunshots, went to the location of the gunshots, and saw Rankin lying on the sidewalk.
On March 28, 2003, Detectives Myers and Baker interviewed Wells at a probation camp, where he was incarcerated. The interview was tape-recorded. The detectives did not consider Wells a suspect in the Rankin shooting at that time and told him so. Wells stated that appellant had admitted killing Rankin because Collins, who was his "big homie," told him to do it. Wells also told the detectives that appellant had shown him the murder weapon. Wells believed that appellant came to Wells's home after the shooting hoping to see Collins there, since Collins was involved with Wells's mother at the time. Wells also said that he overheard Collins telling appellant to get rid of the gun about a week later.
The detective showed Wells a photographic line-up. Wells selected appellant's photograph from a lineup and wrote, "Card E is the person that told me that he killed Shereece. I know him as Footlong." Wells also selected Collins's photograph from another lineup and wrote down, "I overheard [K]andyman and Footlong conversation, and [K]andyman told Footlong to get rid of the gun that killed Shereece." Wells did not want to go to court because his family still lived in the neighborhood.
At trial, Jordan, Henson, Wince and Wells all repudiated their pre-trial statements to police to one degree or another.
Jordan claimed not to remember the pertinent events and claimed that some of his prior statements were lies. Detective Myers testified that during the trial proceedings, Jordan told the detective that he was concerned about testifying in this case and that he wanted to have his family's support before doing so. He finally decided not to testify. The final portion of Jordan's conversation with the detective, after Jordan spoke on the telephone with his family, was recorded. During this portion of the conversation, Jordan repeatedly stated he did not want to testify because of his family's safety and lack of support, even though he was close to Rankin. Jordan also agreed that Collins was looking for Rankin and that he had seen Collins picking appellant up and then dropping him off to kill Rankin. Jordan also agreed Collins was responsible for Rankin's murder.
Henson denied any personal knowledge of the shooting and denied speaking with appellant about the shooting. He claimed that, in the police interview, he merely said what the police wanted him to say.
Wince also denied any knowledge of the shooting. He claimed that in his police interview, he only repeated what the police told him. He did so because the police had offered to drop a narcotics case against him. At the time of trial, he was in prison on a narcotics conviction.
Wells, too, denied that appellant had confessed to him. He claimed that he had lied in his police interview, for various reasons, including a dislike of Collins and appellant, fear because he was a suspect in the trial, and police promises of a house and early release from probation camp.
At trial, Detective John Radtke testified as an expert on the Swan Bloods gang. In July 2001, there were about 450 members of the Swan Bloods gang. Their "turf" had the following boundaries: 74th Street on the north, Manchester Boulevard on the south. Central Avenue on the east, and Main Street on the west. The Swan Bloods controlled drug trafficking and other criminal activities in this area. The primary activities of the gang included: murders, robberies, shootings, and narcotics dealing. The Swan Bloods' main rival was the East Coast Crips gang. Payback and retaliation were expected in the gang culture. Gang culture also valued its own version of respect, which was equated with fear and power. Young gang members would get "respect" within the gang by committing crimes for the gang. If a gang member failed to "put in work" for the gang, he could be "disciplined" by the gang and subject to assaults, robberies, or even death. Snitching against the gang was considered a serious affront to the gang and could result in the snitch's death.
Answering a hypothetical based on the evidence elicited about the Rankin murder, Detective Radtke opined the murder was committed at the direction of, or in association with, the Swan Bloods gang. Detective Radtke opined that appellant could have been disciplined for failing to follow Collins's command to kill Rankin.
Following the presentation of the gang evidence, Detective Myers testified about a telephone call he received from appellant. On April 2, 2003, Detective Myers got a telephone call at his office from appellant, his wife, and mother. A tape-recording of the conversation was played at trial. Appellant said in the interview that Collins drove up next to him and made him get in the car. Collins gave appellant a gun, pointed out the woman to appellant, and said, "You got to handle your business." Collins left appellant on the corner, and appellant walked up to the woman and shot her.
Detective Myers had previously spoken to appellant about the murder on October 16, 2002. At that time, appellant denied any involvement in the murder.
Appellant did not present any evidence on his behalf.
Discussion
1. Admission of appellant's confession
Appellant made three statements to police. In the first, he denied involvement in the Rankin murder. In the second, he invoked his right to counsel. Detectives continued to question him, however, and he eventually admitted that he shot Rankin. The third statement was made by appellant over the telephone from jail. In this telephonic statement, appellant confirmed the contents of the second statement. The prosecution did not seek to admit the second statement.
Appellant contends that the trial court erred in admitting his telephonic statement to police because that statement was a continuation of, and inextricably linked to the second statement, which was inadmissible because it was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. We see no error.
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda v. Arizona, supra, 384 U.S. 436, we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence. [Citations.]" (People v. Walsh (1993) 6 Cal.4th 215, 235-236, internal quotation marks omitted.)
Here, the trial court did not make any specific findings of fact in connection with its ruling. The court stated: "The subsequent interview, which was tape recorded where Mr. Hamilton, his mother, his what, wife or girlfriend contacted the detective, and that was taped, I felt was separate and independent of the prior incident or conversation." The court added that on the basis of People v. Bradford (1997) 14 Cal.4th 1005 at page 1042 and People v. Peevy (1998) 17 Cal.4th 1184 at page 1202, the court found that conversation was admissible.
Under Miranda, a person being interrogated while in custody must be advised of the right to remain silent, that any statement made can be used against him or her, and that he or she has the right to presence of an attorney, retained or appointed. (Stansbury v. California (1994) 511 U.S. 318, 326.) The prosecution has the burden to show the defendant waived his constitutional rights knowingly, intelligently, and voluntarily, by a preponderance of evidence. (People v. Clark (1993) 5 Cal.4th 950, 986-987 & fn. 12.)
In Edwards v. Arizona (1981) 451 U.S. 477, the Supreme Court explained that all interrogation must cease where a defendant clearly invokes his right to counsel, "unless the accused himself initiates further communication, exchanges, or conversations with the police. [Citations.]" (People v. Marshall (1990) 50 Cal.3d 907, 925-926, internal quotation marks omitted; Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045-1046 [103 S.Ct. 2830, 77 L.Ed.2d 405] [no violation of Edwards where defendant initiates further conversation by making statements which "evince[] a willingness and a desire for a generalized discussion about the investigation"].) "An accused initiates further communication, exchanges, or conversations of the requisite nature when he speaks words or engages in conduct that can be fairly said to represent a desire on his part to open up a more generalized discussion relating directly or indirectly to the investigation. [Citation.]" (People v. San Nicolas (2004) 34 Cal.4th 614, 642, internal quotation marks omitted.)
If a defendant initiates further conversation, the prosecution must "demonstrate by a preponderance of the evidence that defendant made a knowing and intelligent waiver of [his previously invoked right to counsel] 'under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities. [Citation.]" (People v. Bradford, supra, 14 Cal.4th at p. 1035; Oregon v. Bradshaw (1983) 462 U.S. 1039, 1044.) A defendant's initiation is "strong" but not dispositive evidence of a knowing and intelligent waiver. (Id. at p. 1036; see North Carolina v. Butler (1979) 441 U.S. 369, 373, 375-376 ["course of conduct indicating waiver" can support a finding of an implied waiver].)
In the recent case of Saleh v. Fleming (9th Cir. 2008) ___ F.3d ___ [2008 DJDAR 79], the United Stated Court of Appeal for the Ninth Circuit held that Miranda warnings were not required when a suspect initiates further conversation while not in custody within the meaning of Miranda. In Saleh, the defendant was questioned in jail by a detective, who continued to question him after he requested an attorney. The next day, the defendant called the detective from jail. The Ninth Circuit upheld the state court of appeal's finding that the defendant was not in custody, noting that he "freely placed the phone call and his freedom to terminate the discussion of [the crime] was unaffected by his unrelated incarceration." (Id. at p. __.)
Appellant first contends that he did not initiate discussions because the telephone call was placed by his wife, and there is no indication that appellant requested his wife to make the call.
It is well-settled under federal law that a suspect may initiate discussions with police through a third party. (See, e.g., Van Hook v. Anderson (6th Cir. 2007) 488 F.3d 411; United States v. Michaud (9th Cir. 2001) 268 F.3d 728, 737-738; (discussion initiated through cell-mate), cert. den. (2002) 537 U.S. 867; United States v. Gonzalez (11 Cir. 1999) 183 F.3d 1315, 1323-1324 (discussion initiated through wife), cert. den. (2000) 528 U.S. 1144; United States v. Gaddy (11th Cir.1990) 894 F.2d 1307, 1310-1311 (discussion initiated through aunt).)
Here, there was evidence that appellant requested his wife to contact Detective Myers, or at least agreed with her that it would be a useful idea. Detective Myers testified that inmates at county jail could not receive incoming calls. Thus, appellant must have initiated the call to his wife. Further, it is reasonable to infer that appellant provided his wife with some contact information about the detective. There would appear to be no other way for her to know who to call.
Even assuming for the sake of argument that it was appellant's wife's idea, and appellant simply agreed with it, this would be sufficient for these purposes. The purpose of the prophylactic rule of Edwards is to prevent police from badgering a witness after he has invoked his right to counsel.
Once on the telephone line, appellant's comments made it clear that he wanted his family to understand what had transpired with Detective Myers, and to seek police protection if necessary. He sought assistance from Detective Myers in communicating events because he did not feel free to tell his family details over the payphone from county jail with inmates listening in. Appellant agreed to confirm or correct what Detective Myers said on the telephone.
We understand appellant's request to Detective Myers to explain the situation to appellant's wife and mother and his willingness to confirm Detective Myers's statements as showing a desire "to open up a more generalized discussion relating directly or indirectly to the investigation." (People v. San Nicolas, supra, 34 Cal.4th at p. 642, internal quotation marks omitted.) Thus, appellant initiated the conversation within the meaning of Edwards v. Arizona, supra.
Appellant contends that even if he initiated a discussion with Detective Myers, he did not waive his right to counsel. We do not agree.
The prosecution has the burden of showing that a defendant made a knowing and intelligent waiver of his previously invoked right to counsel "'under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.' [Citation.]" (People v. Bradford, supra, 14 Cal.4th at p. 1035; Oregon v. Bradshaw, supra, 462 U.S. at p. 1044.) The prosecution must offer "facts relevant to the suspect's state of mind showing a valid waiver. [Citations.]" (People v. Peevy (1998) 17 Cal.4th 1184, 1199-1200, original italics.) This is so because proof of a waiver of the right to counsel depends upon whether the accused possessed "'a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' [Citations.]" (Id. at p. 1200.) An accused initiation of contact is strong, but not sufficient evidence of waiver. (People v. Bradford, supra, 14 Cal.4th at p. 1036.)
Initially, Detective Myers did not discuss the details of the case on the telephone. Then appellant said: "So that's why I'm not really – so won't you – I'm letting you – I'm giving you a chance." Detective Myers agreed to tell appellant's family what appellant had told him. As Detective Myers told appellant's family what appellant's account of events, appellant generally agreed with the detective's statements. Appellant supplemented and corrected the detective when necessary. For example, at one point, Detective Myers said, "You get into the car with Candy Man?" Appellant replied, "Yes. He pulled up and made me get in the car, yes." At another point, the detective said, "[Y]ou later had a conversation with Candy Man and asked him what you should do with the gun, correct?" Appellant replied, "No." Detective Myers asked, "Oh, you didn't tell him that." Appellant replied, "I never told you that. No."
Appellant contends that some "warning" was required to be given before the resumption of the interrogation, and since such a warning was not given, he could not be found to have waived his right to counsel for the second interview. A re-advisement of rights is not an absolute requirement for a valid waiver after a suspect initiates contact.
Prior to his in-person interview, appellant was advised of his right to counsel. He showed that he understood its importance by invoking it four times. Appellant did not have an opportunity to directly contact an attorney himself during the interview. Once the interview was over, however, appellant was sent back to jail. Appellant clearly had the ability to make telephone calls from jail. Appellant did not contact Detective Myers until the next day. Then, before speaking with Detective Myers, appellant spoke with family members twice before requesting them to help him contact the detective. If appellant had wanted to seek an attorney before re-initiating contact, he had opportunity to do so. Thus, under the totality of the circumstances, appellant's conduct showed a waiver of his right to counsel during his telephone interview.
Appellant spoke to his mother the night of his in-person interview and then with his wife and his mother the next day.
2. Security fee
Appellant contends that the trial court violated his right to due process by its ex post facto imposition of a $20 security fee pursuant to section 1465.8, subdivision (a)(1). This section went into effect in 2003, two years after the offense in this case was committed.
Appellant acknowledges that this court has previously held that imposition of this security fee is not subject to the limitations of the ex post facto clause. (People v. Wallace (2004) 120 Cal.App.4th 867.) Appellant explains that this issue is now before the Supreme Court in People v. Alford (2006) 137 Cal.App.4th 612, review granted May 10, 2006 (S142508) and that he makes his claim to preserve it pending resolution of Alford.
Appellant has given us no reason to reconsider our ruling in Wallace, and so we reject his claim.
Disposition
The judgment is affirmed.
I concur: TURNER, P. J.,
KRIEGLER, J., Dissenting
I respectfully dissent. Defendant invoked his right to counsel four times during his initial in-custody interrogation. His invocations were ignored and questioning continued. After an extended period of interrogation, defendant prevailed upon the detectives to turn off the tape recorder. The transcript reflects that the recorder was turned off for 15 minutes. When the recorder was turned on, defendant confessed to the killing.
The next day, defendant’s mother called the detective, who engaged in a multi-party conversation with defendant, who was in custody at the county jail. Defendant’s wife was also a party to the conversation. The apparent purpose of this call was to deal with defendant’s concerns about the safety of his family and himself. Defendant could not speak freely of the crime because he was using a pay phone at the jail. As a result, the detective made statements to defendant regarding the crime. In response, defendant either acknowledged the detective’s statement was true or, in some instances, denied it. The parties agreed at trial, and on appeal, that this was a confession.
Where, as here, the facts are not in dispute, we apply a de novo standard of review. (People v. Waidla (2000) 22 Cal.4th 690, 730.) There is no dispute that defendant’s rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) were repeatedly violated, as defendant expressly asked for an attorney four times during questioning. At the point of invocation of the right to counsel, the police were obligated to cease questioning. “If, however, [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. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” (Id. at pp. 444-445.)
Our Supreme Court does not lightly overlook the seriousness of this type of intentional constitutional violation. (People v. Neal (2003) 31 Cal.4th 63, 82 [to speak of a detective’s “‘blatant disregard’” of Miranda “is to understate its blameworthiness”]; People v. Bradford (1997) 14 Cal.4th 1005, 1042 [“We agree that [the detectives’] conduct in deliberately interrogating defendant after defendant had invoked his right to counsel was unethical and it is strongly disapproved”].) A confession following four express invocations of the right to counsel is in clear violation of Miranda.
The law is equally well settled that after an invocation, a suspect is not subject to custodial interrogation at a later time in the absence of counsel, unless the accused initiates further communication with the police. (Edwards v. Arizona (1981) 451 U.S. 477, 484-485; People v. Bradford (1997) 15 Cal.4th 1229, 1310 -1311; People v. Crittenden (1994) 9 Cal.4th 83, 128.) “But even if a conversation taking place after the accused has ‘expressed his desire to deal with the police only through counsel,’ is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation.” (Oregon v. Bradshaw (1983) 462 U.S. 1039, 1044.) It is wrong to state that an accused’s initiation of contact with police is alone sufficient to allow further questioning, in the absence of proof of “a waiver of the previously asserted right to counsel. The inquiries are separate, and clarity of application is not gained by melding them together.” (Id. at p. 1045.)
There is no doubt the trial court properly found that defendant initiated the telephone conversation one day after the police obtained his confession by violating Miranda. We must therefore determine if the prosecution demonstrated that defendant indicated a waiver of his right to counsel in the telephone conversation. The record is totally devoid of any such indication. Defendant did not indicate a desire to speak without counsel in order to clarify facts with the detective, nor did he express an intent to disclose additional facts. What the record does establish is that defendant, a sixteen-year-old murder suspect, was concerned for his safety and that of his loved ones, because of what he had disclosed in an unconstitutional interview the day before. Other than the fact defendant initiated the new contact, there is nothing to suggest that he impliedly waived counsel. Cases upholding a waiver of the right to counsel generally involve a readvisement of rights pursuant to Miranda, a factor absolutely lacking in this case. (See People v. Bradford, supra, 15 Cal.4th at p. 1311.)
The remaining issue is whether the erroneous introduction of defendant’s telephonic confession was prejudicial. Guidance is found in People v. Neal, supra, 31 Cal.4th at page 86. “At the outset, we observe that the erroneous denial of defendant's motion to suppress his two confessions is subject to harmless error analysis under the beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman).” The Chapman test is generally applicable to error under the United States Constitution, including, specifically, the erroneous admission of involuntary statements (Arizona v. Fulminante (1991) 499 U.S. 279, 310), which here includes defendant’s confessions.
“The beyond-a-reasonable-doubt standard of Chapman ‘requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ (Chapman, supra, 386 U.S. at p. 24.) ‘To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.’ (Yates v. Evatt (1991) 500 U.S. 391, 403.) Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is ‘whether the . . . verdict actually rendered in this trial was surely unattributable to the error.’ (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)
“In Chapman, the court stated that ‘error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot . . . be conceived of as harmless.’ (Chapman, supra, 386 U.S. at p. 24.) Even if, as a general matter, Chapman’s statement might appear overly broad, in the specific context of a confession it carries its greatest force. Indeed, in People v. Cahill [(1993)] 5 Cal.4th 478, we expressed a ‘recognition that confessions, “‘as a class,’” “‘[a]lmost invariably’” will provide persuasive evidence of a defendant’s guilt [citation], . . . that such confessions often operate “‘as a kind of evidentiary bombshell which shatters the defense’” [citation], . . . [and therefore] that the improper admission of a confession is much more likely to affect the outcome of a trial than are other categories of evidence, and thus is much more likely to be prejudicial. . . .’ (Id. at p. 503.) We acknowledged, however, that the erroneous admission of any given confession ‘might be found harmless, for example, (1) when the defendant was apprehended by the police in the course of committing the crime, (2) when there are numerous, disinterested reliable eyewitnesses to the crime whose testimony is confirmed by a wealth of uncontroverted physical evidence, or (3) in a case in which the prosecution introduced, in addition to the confession, a videotape of the commission of the crime. . . .’ (Id. at p. 505.) But we emphasized that although the erroneous admission of a confession might be harmless in a particular case, it nevertheless is ‘likely to be prejudicial in many cases.’ (Id. at p. 503.)” (People v. Neal, supra, 31 Cal.4th at pp. 86-87.)
Application of the Chapman harmless error test compels a finding of prejudicial error. The prosecution case against defendant, excluding his unlawful confession, consists of the out of court statements by four violent gang members, each of whom recanted at trial. Although the out-of-court statements of the four recanting witnesses constitute substantial evidence of guilt, the evidence is far from overwhelming. None of the types of evidence our Supreme Court looks to in finding harmless error after erroneous admission of a confession—apprehension of defendant in the course of committing the crime, numerous disinterested reliable eyewitnesses to the crime whose testimony is confirmed by a wealth of uncontroverted physical evidence, or a videotape of the commission of the crime—are present in this case.
Moreover, it is apparent that the unlawful confession was an important part of the prosecution case, and it certainly played a role in the jury’s verdict. In his closing argument, the prosecutor described the confession as the most damaging evidence against defendant. The tape-recorded confession corroborated the out-of-court statements by witnesses otherwise devoid of credibility. This record does not support a finding that the verdict was surely unattributable to defendant’s confession.
I would reverse the judgment.