Opinion
A147411
10-18-2018
THE PEOPLE, Plaintiff and Respondent, v. ROY DONOVAN LACY, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[CHANGE IN JUDGMENT] THE COURT: It is ordered that the opinion filed herein on October 18, 2018, be modified in the following particulars: 1. On page 1, the first paragraph is deleted and the following paragraph is inserted in its place:
Defendant Roy Lacy was convicted of six counts of robbery, arising from robberies at three bank branches in January 2013. The jury heard eyewitness testimony identifying Lacy as the robber and viewed security images depicting him robbing each branch. The court admitted portions of Lacy's recorded statement confessing to all three robberies. Lacy contends his confession in Florida should have been excluded because officers ignored his unequivocal invocation of the right to counsel under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and coerced the statements through promises that he could serve any Florida prison sentence concurrently with a California sentence in California and avoid a life sentence. Lacy also contends the trial court erred by not excluding a statement in his confession. Finally, he contends that the matter should be remanded to give the trial court an opportunity to exercise its newly acquired discretion to dismiss the sentencing enhancements for prior serious felony convictions under amendments to Penal Code sections 667, subdivision (a) and 1385, subdivision (b), effective
January 1, 2019 (Senate Bill No. 1393 (2017-2018 Reg. Sess.).) We find no error in the admission of Lacy's statements, but agree we must remand the matter so that the trial court may consider whether to strike the enhancements. In all other respects, the judgment is affirmed.2. On page 16, after part I of the Discussion, add part II to the Discussion as follows:
II. Remand is required for the trial court to consider whether to strike the prior serious felony enhancements.3. On page 16, the Disposition is deleted and the following Disposition is inserted in its place:
Under the current versions of sections 667, subdivision (a) and 1385, subdivision (b) the court is required to impose a five-year consecutive term for "any person convicted of a serious felony who previously has been convicted of a serious felony" (§ 667 subd. (a)), and the court has no discretion "to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667." (§ 1385, subd. (b).) On September 30, 2018, the Governor signed Senate Bill 1393 which, effective January 1, 2019, amends these statutes to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) Because Lacy's judgment will not be final by the effective date of the amendments, he will be entitled to the benefit of the new law. (In re Estrada (1965) 63 Cal.2d 740, 744-745.) Therefore, we agree with Lacy that the matter should be remanded so the trial court may exercise its discretion to determine whether to dismiss or strike the enhancements.
Lacy's convictions are affirmed, but the case is remanded with directions to consider, after January 1, 2019, whether to strike the enhancements imposed under section 667, subdivision (a), and to resentence Lacy accordingly.The petition for rehearing is denied. There is a change in the judgment. Dated: November 16, 2018
Pollak, J. Acting P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. SC189115A)
Defendant Roy Lacy was convicted of six counts of robbery, arising from robberies at three bank branches in January 2013. The jury heard eyewitness testimony identifying Lacy as the robber and viewed security images depicting him robbing each branch. The court admitted portions of Lacy's recorded statement confessing to all three robberies. Lacy contends his confession in Florida should have been excluded because officers ignored his unequivocal invocation of the right to counsel under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and coerced the statements through promises that he could serve any Florida prison sentence concurrently with a California sentence in California and avoid a life sentence. Lacy also contends the trial court erred by not excluding a statement in his confession. We affirm.
BACKGROUND
I. Procedural Background
A first amended information charged Lacy with seven counts of robbery (Pen. Code, § 211; counts 1, 3, 4, 5, 6, 7, and 8) and one count of receiving a stolen vehicle (§ 496d, subd. (a); count 2). The amended information also alleged Lacy had two prior strike convictions, two five-year serious felony prior convictions, and four prior prison terms. (§§ 667, subds. (b)-(i), 667, subd. (a), 667.5, subd. (b), 1170.12.) Prior to trial, the court granted the People's motion to dismiss counts 1 and 2.
All subsequent citations are to the California Penal Code unless otherwise noted.
The jury found Lacy guilty on the six remaining robbery counts and found the prior conviction allegations true. The court sentenced Lacy to 105 years to life in state prison, and Lacy's timely notice of appeal followed.
II. Factual Background
A. January 4, 2013 Robbery—Counts 3 and 4
Kelli Childers was an Assistant Customer Service Manager at the East Francisco Boulevard branch of WestAmerica Bank in San Rafael. At approximately 5:00 p.m., Childers was working as a teller when she observed a man approach the branch, walking aggressively and wearing a hoodie, sunglasses, and a "beanie." Immediately suspicious, Childers triggered a silent alarm when the man arrived at the exterior doors. The man entered the branch and approached Childers with his "right hand raised" and his other hand in his pocket, demanding "[h]undreds and 50's now." Lacking the demanded denominations, Childers gave him only "20's, 10's, five's, and one's."
The man then approached the adjacent teller, Annette Nichols, pushed her customer out of the way, and demanded "hundreds and 50's from her." After taking some money from Nichols and demanding more, the man said to Childers and Nichols, "There better not be any dye packs or bait money. If there is, I'm gonna come back and stab you." Childers felt afraid and threatened. She did not see a weapon, but "the implication of his hand in his pocket" combined with the verbal threat, motivated her to comply. The man left the bank, and Childers called 911 and followed bank procedures for responding to a robbery.
Nichols and fellow employee Saul Alcantara testified to similar physical descriptions of the robber. Nichols and Alcantara were both "scared" and concerned for their safety and that of their colleagues. Nichols confirmed that the robber threatened to "cut" her if she did not comply with his demands. Alcantara identified the robber as Lacy, while Nichols indicated Lacy shared certain physical features with the robber.
At the time of the robbery, Benjamin Nichols was leaving work at a nearby film production studio and saw a man "acting in a suspicious manner." Nichols could see the man "had on sunglasses, a beanie, a dark sweatshirt and a tank top." Nichols watched as the man dove into the bushes and removed some of his clothes, including "the stocking cap, his sunglasses, and his hoodie." When the man left the area a few minutes later, he was wearing a white tank top and blue jeans.
An officer investigating the robbery recovered and booked the discarded clothing because it matched the description of clothing worn by the robber. A criminalist recovered DNA from the knit cap and testified it was consistent with Lacy's profile, indicating Lacy had worn the cap.
B. January 10, 2013 Robbery—Counts 5 and 6
Jessica Grajeda, a branch manager at the 300 Ignacio Boulevard branch of WestAmerica Bank in Novato, observed a man she identified as Lacy enter the bank wearing sunglasses, a hoodie, and "breathing mask" around his neck at approximately 4:00 p.m. He was acting "a little jumpy." Thinking he might try to rob the bank, Grajeda activated the silent alarm. Grajeda saw the man approach teller Jose Carranza and demand money, stating, "I want your second drawer. I want large bills." The man's tone was "aggressive," and Grajeda was scared and concerned he might have a weapon. Carranza complied, and the man approached another teller, Jacob Nunez, with the same demand. After taking the money from Nunez, the man left the bank.
Carranza and Nunez corroborated Grajeda's physical description of the robber and identified the robber as Lacy. They testified to being frightened because the robber might have a weapon.
C. January 25, 2013 Robbery—Counts 7 and 8
Michael Diaz was a service manager and teller at the One Mitchell Boulevard branch of WestAmerica Bank in San Rafael. At approximately 1:30 p.m., a man, wearing sunglasses, a gray hooded sweatshirt, and "a black standard hat," "approached a teller window and asked for the teller to pretty much give him all her money." The teller, Nicole Foster, complied with the man's demand. The man then said to Diaz, "Mike, come over to your teller window. Mike, give me all your fucking money." The man demanded "hundreds, 50's and 20's." Diaz complied, and the man left the bank. Diaz was "[p]retty scared" and did not know whether the man had a weapon. The man acted in "a threatening manner," and to Diaz it seemed the man "was very much willing to do whatever it took to take that money." Diaz identified the man as Lacy.
Nicole Foster corroborated Diaz's testimony and identified Lacy as the robber.
D. Trial Evidence of Lacy's Confession to the Three Robberies
San Diego Sheriff's Sergeant Robert Samuels, a member of a state-federal joint task force, and FBI special agent Matthew Perkins interrogated Lacy in Florida in June 2013. Samuels testified that Lacy admitted to committing all three of the January 2013 California bank robberies. Portions of the audio recording made by Samuels (and corresponding transcripts) were played to the jury. The jury heard Lacy admit that he was "guilty as fuck," identify himself as the robber depicted in security images from each bank branch, and describe his methods and spoils.
DISCUSSION
I. Admission of Lacy's Confession
Prior to trial, Lacy moved to exclude his statement to police as involuntary and obtained in violation of Miranda. At the hearing on the statement's admissibility the only evidence was a recording and the parties' transcripts of the interrogation of Lacy.
The record contains two transcripts of Lacy's complete interrogation: one submitted by the defense and one by the prosecution. The transcripts are materially identical, and we have referred to both in summarizing the interrogation.
A. The Interrogation
1. Before Miranda Advisement
Lacy was interviewed in Florida, where he was in custody on other charges. As the interrogation began, Samuels explained that he and Perkins were in Florida to talk with Lacy about "things that you did out in California." Samuels acknowledged that Lacy had a public defender "down here for your Florida case" and that "we don't want to get into any Florida stuff." Samuels told Lacy they wanted to hear his "side of the story" and explained Lacy's willingness to accept responsibility could be considered at sentencing.
Samuels told Lacy he was a San Diego deputy sheriff working with Perkins on "federal matters . . . some of which cross over into state type stuff." Samuels explained, "we're both here basically . . . representing the federal side of the house[.]" Lacy then asked, "So is that who's going to be prosecuting this?" and Samuels responded, "it hasn't been determined yet." Lacy stated he had written to the local FBI or U.S. Attorney's Office in Florida to indicate his willingness to help "close" his multiple open cases, telling Samuels and Perkins: "You know, obviously I know about these cases. I did them." Lacy explained he hoped federal law enforcement would "pick up" his two Florida cases, because he did not want "to spend a bunch of time" in the Florida "system" since he is not from there and did not "know a soul" in Florida.
In response, Samuels explained that, from what he'd been told, Lacy's Florida cases were "going to be prosecuted on the state side" and that "the U.S. Attorney's Office is not interested in the case." Perkins confirmed Samuels's understanding. Lacy replied that he faced enhancements in his Florida cases, so "it'd be a while before you guys came and got me anyways, you know, if they -could, I'm not going to lie, I'm guilty as fuck, you know?"
Samuels said Lacy would have to "go through the process here in Florida" before being prosecuted on his California cases. Samuels told Lacy his Florida time "can be served anywhere," and that it was "not like you're going to do . . . 10 years out here and then 10 years later. . . ." He confirmed Lacy's assessment that "it's going to be like a concurrent type of sentence."
Samuels added, "I mean you know as well as I do things change, whatnot. But [from] all the discussion we've had, I really honestly can't see—it'll blow me away if anything other than what I just laid out for you occurs." Samuels reiterated that he did not "know if it's going to be federal or state," but that "the goal here is to make it as quick and easy and painless for everybody involved and just get it handled and move on." Lacy replied, "Okay," and Samuels read Lacy his Miranda rights.
2. Miranda Advisement and Waiver
Lacy does not dispute that Samuels adequately advised him of his Miranda rights, but focuses on the subsequent colloquy:
"[Samuels]: Do you understand all those rights?
"[Lacy]: Yeah.
"[Samuels]: Okay. Understanding your rights, do you want to speak with us?
"[Lacy]: Uh, I don't mind after something you said, like, about with the, getting sentenced out here and then getting shipped out there right away. . . . [¶] . . . [¶] . . . It's something that I, I really, really want to ask my attorney about, you know? [¶] . . . [¶] . . . [be]cause just to make sure. Because, uh, because like I said, not to be an asshole . . . [¶] . . . [¶] . . . or anything, I, I don't want to sit here and say anything, right? And then get stuck out here thirty years and then be like, Oh, well, I'm waiting to be sixty years old, then . . . [¶] . . . [¶] . . . come out, you know what I'm saying?
"[Samuels]: No, yeah, I understand.
"[Lacy]: So . . . that's something . . . I mean, if [you're] for sure that that's what's going to happen, then, you know what I'm saying, I don't mind. And if I do speak on anything, I'm not going to say anything about . . . [¶] . . . [¶] . . . anybody else but myself."
"[Samuels]: Okay.
"[Perkins]: Alright.
"[Samuels]: Yeah, I mean how 'bout if we just start talking then? You know, and . . . we'll let you know what we know and then go from there.
"[Lacy]: Okay."
Before getting to the details of Lacy's confession, Samuels added "just to give you another level of assurance as far as what I laid out before . . . I really don't see it happening any other way. [L]ike I said[,] I would be very surprised if . . . you ended up staying down here for any significant amount of time and not being brought back to California. I just . . . don't see it happening because . . . there's the interest of justice basically, and there's the statute of limitations. And there's all these other things that are involved in, uh, why you wouldn't just stay here in Florida and serve out a long sentence and come back, you know, five, 10, 15 years later, whatever, and start over. It . . . just doesn't make any sense."
Lacy mentioned his prior criminal history and the possibility he would be "looking at three strikes if the state picks it up." He continued, "and that's basically where I'm at right now. If the feds pick this up, I'll let you guys know anything you want to know, as long as it's about me." Samuels responded, "I can't tell you that the feds are going to pick this up." Samuels continued, "I don't want to speak about what your sentence can be . . . [¶] . . . [¶] . . . but, uh, I feel pretty comfortable saying that you're not going to get life in prison on either side. I mean again that's not for me . . . to decide." Lacy responded, "Right, right," and Samuels added, "I just don't see that occurring." Perkins added, "Well, and as you know, too, though . . . what benefits you is, you know, like the whole cooperation, things like that. Willing to accept responsibility, and all those kinds of things."
Samuels and Perkins, though, explained that "any time off" or "deal" was not up to them: "W[e] just . . . investigate it. We present it to them. They then kind of, whatever." Samuels noted, "Yeah, but generally speaking if you're cooperative," and Lacy responded, "They look at it."
3. Lacy's Confession
Lacy did not contest that he was responsible for the three robberies in this case. During the interrogation, he identified himself in images from all three robberies. Lacy explained why he targeted certain branches and recalled details of what he was wearing during the robberies. Lacy also confessed to robbing several other banks in California.
4. Post-confession Discussion
As the interview wound down, Samuels asked Lacy what amount of prison time he expected to serve for these bank robberies. Lacy stated he expected to serve 20-25 years based on his criminal history and his escape from a halfway house. Lacy speculated his sentence would be "[p]robably on the high end of it because, you know, I have committed more crimes."
After further discussion about the prognosis for his Florida cases, Samuels opined, "Well, I guess if there's . . . any good news here, it's that . . . whatever you get here and whatever you get in California will most likely be served concurrently. So at least—even if worst case scenario, you got the high end here, the high end there, you're not doing 120 years or so[.]" Samuels continued, "I've talked to the people out there. And . . . the intention is to once you're—got the sentence here, we would then bring you guys out there and . . . it wouldn't make sense either for you to go out there to be sentenced and then to have them send you back over here to serve your California sentence. . . . [N]one of that makes sense. I mean sometimes in the criminal justice system, things don't always make sense, even to me, but I don't see that happening. Especially since . . . you're from California. . . . [I] don't see them doing that. I'm sure they would leave you guys in California where you'd have better access to family and all that other good stuff."
Lacy said it would "be a godsend if I could get you guys to pick up the two [Florida cases]. Like I said . . . I'll plead guilty on every single thing, you know." When Lacy again wondered if his Florida and California sentences would be concurrent, Samuels replied, "That's the plan." Samuels and Perkins ended this part of the conversation, however, by noting that "the ultimate decision on that won't be ours" and that it concerned "[d]efinitely a much higher pay grade than us," though they would still be "involved in it."
5. Trial Court's Ruling
Having listened to the recording of the interrogation and reviewed the parties' transcripts, the court admitted Lacy's confession subject to substantial redactions. The court concluded Lacy impliedly waived his right to counsel and gave his statements to the officers voluntarily. "[I]t is absolutely clear to me that the defendant wanted to talk to the agents" and that he "wanted to confess," the court explained. The court found "not one suggestion" anywhere that jurisdictional or sentencing issues were tied to whether or not Lacy confessed. The officers made no express or implied promises to Lacy, the court found, and all their comments to Lacy were "non-committal." The court also concluded Lacy had not made an unambiguous or unequivocal request for counsel to help him during the interrogation. Lacy's statement that he wanted to speak with his attorney, the court found, referred only to his Florida cases and "how fast he could get out of Florida."
B. Standard of Review
"In reviewing the trial court's denial of a suppression motion on Miranda and involuntariness grounds, ' " 'we accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.' " ' [Citations.] Where, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review." (People v. Duff (2014) 58 Cal.4th 527, 551.)
C. Analysis
" ' "As a prophylactic safeguard to protect a suspect's Fifth Amendment privilege against self-incrimination, the United States Supreme Court, in Miranda, required law enforcement agencies to advise a suspect, before any custodial law enforcement questioning, that 'he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.' [Citations.]" ' [Citation.] [¶] " ' " '[I]f the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial' [citation] . . . ." [Citation.] "Critically, however, a suspect can waive these rights." ' " (People v. McCurdy (2014) 59 Cal.4th 1063, 1085-1086; see People v. Stitely (2005) 35 Cal.4th 514, 535.)
1. Lacy's Request for a Lawyer
Lacy argues the officers violated his right to counsel by not ending the interrogation when he said he "really, really" wanted to ask his attorney whether he would receive concurrent sentences in the Florida and California cases. Lacy contends his statement was an "unequivocal request for counsel" to discuss "the implications of making a confession before speaking with the officers." The officers ignored his request, Lacy continues, and "proceeded on their 'own terms' as if [he] 'had requested nothing' in the hope that [he] would incriminate himself." We are not persuaded.
"For a statement to qualify as an invocation of the right to an attorney . . . the defendant 'must unambiguously request counsel.' " (People v. Cunningham (2015) 61 Cal.4th 609, 646 (Cunningham); see Davis v. United States (1994) 512 U.S. 452, 459 (Davis); Edwards v. Arizona (1981) 451 U.S. 477, 484-485 (Edwards); People v. Neal (2003) 31 Cal.4th 63, 67; People v. Storm (2002) 28 Cal.4th 1007, 1021; People v. Bradford (1997) 14 Cal.4th 1005, 1033-1034.) If a defendant "invokes the right to counsel during questioning, officers must cease interrogation unless the defendant's counsel is present or the defendant initiates further exchanges, communications, or conversations." (Cunningham, supra, 61 Cal.4th at p. 646.)
" '[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 on the officers to ask clarifying questions of the defendant.' " (Cunningham, supra, 61 Cal.4th at p. 646.) "But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." (Davis, supra, 512 U.S. at p. 459.)
The trial court here concluded that Lacy's statement that he "really, really" wanted to talk to his attorney about sentencing issues on his Florida cases was not an unequivocal invocation of his right to counsel in this case. The court found that "any officer would reasonably conclude that the defendant wanted to talk to his Florida lawyer about how fast he could get out of Florida, not about the interrogation that was potentially about to happen" concerning the California crimes.
After independently reviewing the transcripts of Lacy's interview, we agree with the trial court that Lacy's invocation of counsel was neither unambiguous nor unequivocal. A reasonable officer in the circumstances would not have understood Lacy's statement to be a request to consult with an attorney before continuing with the interrogation. Rather, substantial evidence shows Lacy made the statement in the context of wondering how he could avoid serving any of his anticipated prison time in Florida. Lacy clearly referred to this context when he said that he wanted to ask his attorney "to make sure" of what Samuels had said about "getting sentenced out here and then getting shipped out there right away." "Here" clearly meant Florida, where Lacy gave his confession, and "there" meant California. Nothing in the record indicates Lacy sought the assistance of counsel to get him through the interrogation, which the officers had indicated would concern only Lacy's California crimes. Even if reasonable officers in the situation thought Lacy might have been invoking his right to counsel during the interview, they were not required to cease questioning Lacy. (Davis, supra, 512 U.S. at p. 459.)
Where a defendant invokes his right to counsel, but continues speaking, we review for substantial evidence whether the defendant initiated the ongoing dialogue. (People v. Mickey (1991) 54 Cal.3d 612, 649.) " '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." ' " (People v. San Nicolas (2004) 34 Cal.4th 614, 642; accord, People v. Waidla (2000) 22 Cal.4th 690, 727.)
Had Lacy unambiguously invoked counsel, we find substantial evidence supports the trial court's finding that he immediately initiated further conversation with the officers. Lacy argues he did not re-initiate dialogue with the officers after his unequivocal request, "because he did not indicate that he wanted to engage in a generalized discussion about the crimes," but continued speaking with them to ensure "that, if he admitted the California crimes, he would serve concurrent sentences in California for the Florida and California crimes." As the trial court correctly observed, however, Lacy never stopped talking, even interrupting what Samuels might have intended as an acknowledgment of Lacy's mention of his attorney—"No. Yeah, I understand"—to announce that he would say "nothing about anybody else by myself" and continue talking. A reasonable officer would have understood Lacy's continuation of the conversation to represent his desire to discuss the California investigation generally. Indeed, when Perkins suggested shortly thereafter "how about if we just start talking and . . . we'll let you know what we know," Lacy responded affirmatively. The record reflects Lacy went on to detail his participation in each of the charged offenses. That Lacy never reasserted his right to counsel reinforces our conclusion that he did not unambiguously or unequivocally invoke that right.
The interview transcripts differ on whether Lacy's affirmative response was "Sounds [fine]" or "Okay." Either way, the transcripts indicates Lacy agreed to continue speaking with the officers.
2. Validity of Miranda Waiver
Lacy contends the trial court should have excluded his confession as involuntary because the officers induced it by indicating "he would serve concurrent sentences in the California and Florida cases in a California prison, and that he would not be subject to a life sentence." Again, we are not persuaded.
The law governing the voluntariness of statements to police was summarized in People v. Linton (2013) 56 Cal.4th 1146 at pages 1176-1177: " ' "A statement is involuntary if it is not the product of ' "a rational intellect and free will." ' [Citation.] The test for determining whether a confession is voluntary is whether the defendant's 'will was overborne at the time he confessed.' " ' [Citations.] [¶] ' "A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked. [Citation.]" [Citation.]' [Citation.] A confession is not rendered involuntary by coercive police activity that is not the 'motivating cause' of the defendant's confession. [Citation.] [¶] 'The prosecution has the burden of establishing by a preponderance of the evidence that a defendant's confession was voluntarily made.' [Citation.] 'Whether a confession was voluntary depends upon the totality of the circumstances.' "
A statement made in exchange for a promise of more lenient treatment may be involuntary. (E.g., People v. Vasila (1995) 38 Cal.App.4th 865, 874.) " 'The requisite causal connection between promise and confession must be more than "but for": causation-in-fact is insufficient.' [Citation.] 'This rule raises two separate questions: was a promise of leniency either expressly made or implied, and if so, did that promise motivate the subject to speak?' [Citation.] To answer these questions ' "an examination must be made of 'all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.' " ' " (People v. Tully (2012) 54 Cal.4th 952, 986.) A "promise" is not restricted to representations concerning the future conduct of the person making the promise, but also describes "promises of action or inaction by third persons, as in a guaranty, and even to a promise of the occurrence of events not within human control, as in a warranty of an existing or past fact." (People v. Cahill (1994) 22 Cal.App.4th 296, 311.)
There is no evidence that the officers promised Lacy that he could serve his California and Florida sentences concurrently in California or that he could avoid a life sentence by confessing to the California robberies. Lacy does not identify any specific quid pro quo in the record. Nor can we infer any promises of leniency under the circumstances of the interview. Lacy suggests he "would have understood from the officers' statements" that "they were familiar with the laws and practices relating to concurrent sentencing in separate jurisdictions and could "assert with confidence that if [Lacy] were to admit the California crimes, he would be able to serve concurrent sentences in California for the Florida and California cases" and that "he would not serve a life sentence if he admitted the crimes." Yet, as the trial court found, the officers' comments about sentencing, even though at times communicated as "assurances," were always equivocal and non-committal, consistently attended by the officers' indications that "things change," "things don't always make sense" in the criminal justice system, and that the "ultimate decision" on Lacy's sentencing would not be theirs and would be left to those with "a much higher pay grade than us." Further, the officers made their comments only in response to Lacy raising the sentencing issue himself.
For express or implied promises of leniency to render a statement involuntary, they must be causally related to the making of the statement. (See People v. Tully, supra, 54 Cal.4th at pp. 985-986.) There is no evidence to support Lacy's claim that "he asserted he did not want to have any discussion about the crimes unless they assured him that, if he admitted the California crimes, he would serve concurrent sentences." The record also shows Lacy was familiar with the criminal justice system and, as the trial court noted, had "specific things to accomplish" by speaking to the officers. At most, the record indicates that Lacy hoped to maximize any favorable consequences of his confession, which he was already predisposed to give. That Lacy ultimately did not realize these benefits does not render his confession involuntary.
3. Harmless Error
Even if the trial court had erred by admitting Lacy's statements, the error would have been harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 60.) The prosecution presented substantial evidence—independent of the confession—to support each of his convictions. Lacy's defense was to concede guilt as to theft, but to deny that he had used force or fear to take the money from the tellers or to prevent the tellers from resisting to defeat the robbery charges. Defense counsel argued that Lacy's statements to Samuels and Perkins showed no evidence he had used "force or fear."
Therefore, admitting his statements added nothing to the prosecution's evidence on the sole disputed element of the robbery offenses: his use of force or fear. That element of each charge was proved through the bank employees' testimony—evidence not challenged on appeal. His confession was not necessary for the jury to return guilty verdicts.
D. Admission of Specific Statement
Lacy also objected specifically to the inclusion of his statement, "it'd be a while before you guys came and got me anyways, you know, if they could, because, I'm not going to lie, I'm guilty as fuck, you know?" Lacy argued this admission should be excluded because it was unclear whether he was speaking about the Florida or the California charges and would confuse and mislead the jury. The court concluded "this is an admission by the defendant, and a fair inference is that he's admitting that he's guilty of the California incidents that the police were there to talk to him about."
Lacy's argument that the trial court erred, and that the error implicates his constitutional rights to due process and to a fair trial is unavailing. We review a trial court's evidentiary rulings for abuse of discretion. (Evid. Code, § 352; People v. Peoples (2016) 62 Cal.4th 718, 743.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) We agree with the trial court that, in the context of Lacy's monologue, this brief admission was not unduly prejudicial. (Evid. Code, § 352.)
DISPOSITION
The judgment is affirmed.
/s/_________
Ross, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------