Opinion
B217126
09-07-2011
THE PEOPLE, Plaintiff and Respondent, v. SHAWNA LOUISE LOOS et al., Defendants and Appellants.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Shawna Louise Loos. Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Richard De La Cerra. Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant Randy Morgan. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. GA074860)
APPEAL from judgments of the Superior Court of Los Angeles County, Dorothy L. Shubin, Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Shawna Louise Loos.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant Richard De La Cerra.
Carlo Andreani, under appointment by the Court of Appeal, for Defendant and Appellant Randy Morgan.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
Defendants and appellants, Shawna Louise Loos, Randy Morgan and Richard De La Cerra, appeal the judgments entered following their convictions for selling or attempting to sell a person, with a prior prison term enhancement (De La Cerra only) (Pen. Code, §§ 181, 667.5). De La Cerra was sentenced to a four-year prison term; Loos and Morgan were granted probation.
All further statutory references are to the Penal Code unless otherwise specified.
The judgments are affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution case.
Testifying in exchange for immunity, Wayne Jensen testified defendant Loos asked for his help in selling her baby. Loos told him that, unknown to her parents, she was eight months pregnant, that "she was tired of living underneath her mother, and she wanted to get some money. . . . [S]he kept . . . saying . . . 'I got to get some money.' " Loos did not know who the baby's father was, although she could narrow it down to a couple of possibilities. Jensen contacted Glen Sires, a mutual acquaintance, and told him Loos wanted to give up her baby and make some money. Sires said he might know someone who would be interested in adopting.
Subsequently, Sires took Jensen and Loos to meet defendant De La Cerra at the automobile body shop De La Cerra owned in Pasadena. De La Cerra made a video with Loos. In the video, Loos said she had a three-year-old son, she had been maintaining her prenatal care, and she was scheduled for a cesarean section in a week. Loos said the baby would be a boy, and that the father was a Spanish/Polish man with blond hair. De La Cerra wanted to show Loos's video to a female doctor.
Jensen testified that, as they were leaving the body shop, he asked if everything was legal and he was told," 'Yes. Everything's legal.' They have lawyers on it and everything, the adoption agency and stuff like that."
It is unclear from Jensen's testimony who said this, although the implication is that it was De La Cerra and/or Sires.
Jensen testified that on the drive home from De La Cerra's body shop, Loos said she was going to get thirty or forty thousand dollars. In a later conversation, Loos told Jensen she would give him $5,000. Sires at one point said both he and Jensen would receive $5,000, and that Loos would get $40,000.
Meanwhile, De La Cerra had asked an acquaintance, Morayma Erazo, if she knew anyone interested in adopting a child. Erazo mentioned this to her neighbor, Sylvia Ortega, who worked at Foothill Presbyterian Hospital. Ortega passed along the name of Michele Vargas, a doctor at the hospital who had been waiting four years to adopt a baby. Erzao gave Vargas's name to De La Cerra.
De La Cerra called Vargas and said he knew a woman who was about to give birth and wanted to put the child up for adoption. Vargas agreed to visit his body shop the next day.
De La Cerra also talked to defendant Morgan, a friend who regularly referred customers to the body shop in return for a finder's fee, and who occasionally assisted De La Cerra with business deals. De La Cerra asked Morgan to be present when he showed Vargas the Loos video.
Dr. Vargas and her husband went to De La Cerra's body shop the next day. While they were waiting in the reception area, they struck up a conversation with Morgan, who said he was a close friend of the baby's father. Morgan said the father was married and afraid his family would learn of Loos's pregnancy. Morgan said the father "was very eager to sign away his parental rights, that he didn't want to have any legal connection to this child."
At this point, De La Cerra joined the conversation. He told the Vargases "he had been married for more than ten years and that he and his wife were trying to have a baby and that they were going to adopt this baby, but that recently his wife told him that she wanted to try one more time, that she didn't want to adopt this baby and so that was why he felt that it was urgent to get this baby placed." In actuality, De La Cerra was not married. De La Cerra corroborated Morgan's story about the baby's father not wanting to have any legal ties to the child.
Vargas testified De La Cerra said "he had a video that he wanted to show us . . . of the mother explaining her situation and maybe [it would] help us feel more comfortable and then he also had photographs . . . of the pregnant woman and her biological son that she already had so that we could see that she could produce beautiful children." De La Cerra played the video and showed the Vargases a photograph of Loos's three-year-old son.
After watching the video, Vargas asked De La Cerra what Loos needed. Vargas testified she was referring to expenses for grief counseling in order to help Loos cope with the trauma of giving up her baby. De La Cerra replied that Loos had been accompanied by two uncles and the uncles had "mentioned $250,000." Vargas said, "Wow, I heard of private adoptions being expensive, but I've never heard of anything like this." At that point, Morgan said: "Well, make us an offer." De La Cerra remarked he didn't think the quoted amount was particularly high, saying: "Well, I make that amount in a month. So for me that's no problem." Vargas replied, "I don't make that in a year and that is completely un-doable." Vargas testified she then said: "Here's the situation. If . . . she wants someone to adopt this baby and be good parents and raise their child in a wonderful environment with good education and good schools and lots of love, you've come to the right place. That's my husband and me. We'd love to do that. But if you come here for 250,000, if you want $250,000, you're not looking at the right place." The Vargases got up to leave and De La Cerra said he would be in touch.
The next day, De La Cerra left Vargas a phone message which said something like, "Things are in your favor, give me a call." A day or two later she received a second message: "Things have turned. You should give me a call." Vargas returned both calls, but no one answered and she never spoke to either De La Cerra or Morgan again. Vargas testified she never met Loos.
Loos gave birth to her baby on October 11, 2008.
All further calendar references are to the year 2008 unless otherwise specified.
Erazo testified De La Cerra called to tell her the baby had been born, that Dr. Vargas had not called him back, and that he was going to adopt the baby himself. Erazo went with De La Cerra to the hospital and met Loos, who said she was confident De La Cerra would adopt her baby. A few days later, Erazo saw the baby at the body shop. De La Cerra said Loos had given him custody until the adoption process was complete.
Elmira Peraza testified she had known De La Cerra for 12 years. Sometime in October, he called to say he was going to adopt a baby who was not yet born. When Peraza spoke to him again, De La Cerra said he was going to pick up the baby at the hospital. Peraza offered to help. They went shopping for baby supplies. De La Cerra "was very excited that he was going to be a father." De La Cerra said he needed to give Loos $1,000 she could take home and show her mother in order to support a cover story that Loos had been working on the weekend she gave birth.
At the hospital, De La Cerra and Peraza escorted Loos and the baby to De La Cerra's car. De La Cerra drove to a gas station where two men were waiting in a car. Loos left the baby in De La Cerra's car and got into the car with the two men. De La Cerra then drove to Morgan's house. Peraza stayed for several hours to help settle the baby. During this time, De La Cerra kept talking about becoming a father and Peraza did not hear any talk about money.
A few days later, Peraza went to De La Cerra's body shop to have her car worked on. The baby was there, in a storage room inside the shop's office. Peraza decided to stay and take care of the baby before going off to work. Police officers arrived ten minutes later and found Peraza with the baby.
Los Angeles Police Officer Susan Gomez testified she went to De La Cerra's body shop on October 16 after receiving an anonymous tip "regarding a baby for sale." Gomez testified, "It was an anonymous caller, and she was apparently a nurse. She got information from a third party, it was third party information that there was a baby for sale there. That's all I had." When Gomez asked De La Cerra if there was a baby on the premises, he replied, "Baby? No. What baby?" Gomez testified: "I told him that we received an anonymous call regarding a baby for sale and he asked me something like, 'Who would say that? Who called?' [¶] And I told him, 'I don't know. It was an anonymous call.' " De La Cerra seemed nervous. At this point another officer arrived and when they told De La Cerra they "were going to check the premises to make sure everything was okay," De La Cerra's "face dropped."
Officer David Llanes found a locked door in the body shop's office and asked De La Cerra to open it. De La Cerra said he didn't have the key. When Llanes remarked it was unlikely the owner of the business would not have a key, De La Cerra "became really evasive and nervous." Llanes asked if there was a baby behind the door and De La Cerra denied it. After Llanes indicated the officers were not going to leave without first checking the locked room, De La Cerra opened the door. Peraza was inside sitting on a couch, holding the baby.
Later that day, De La Cerra was interviewed at the police station. He said he paid $250 to the hospital for Loos's cesarean section, but denied having given any money directly to Loos. De La Cerra said he and Loos had never discussed money, and that if Loos "had any money from him . . . she may have taken it from him." De La Cerra denied a doctor had come to his body shop to inquire about adopting the baby.
There were text messages on De La Cerra's cell phone. On October 7, Erazo had texted: "I saw Dr. Vargas and she said that it was all bull. So suspicious. And that she wasn't even allowed to meet with the mother. She felt it was a scam. I apologized." On October 10, Erazo had texted: "Well, she wants to talk to mom only cause she's the only one who can legally give the baby away. No one else . . . . Dr. Vargas wants to speak to the mother directly."
Officer Gomez spoke to Loos, who explained she had not told her parents about her pregnancy and how she hoped to put the baby up for adoption. Loos said she had asked Jensen for help. He put her in touch with Sires, who in turn introduced her to De La Cerra, who promised to find a good home for the baby. There was no plan for De La Cerra to adopt the child himself. On the weekend scheduled for the cesarean section, Loos told her parents she would be working in Las Vegas. De La Cerra assisted this deception by giving her $600 she could claim to have earned in Las Vegas.
The police recorded a conversation between De La Cerra and Sires after they were arrested. De La Cerra told Sires he realized "[t]he only thing against us is the doctor, she knew the dollar amount."
Detective Kevin Okamoto interviewed Morgan. Morgan said De La Cerra had called him about a woman who did not want to keep her baby; De La Cerra said he had found a doctor who wanted to adopt it. He asked Morgan to be there when he met with the doctor and her husband. Morgan initially told Okamoto he had been at De La Cerra's body shop on the day of this meeting by chance because he had accompanied a friend who was taking her car to be repaired; Morgan later acknowledged De La Cerra had arranged for him to be there in advance. Morgan admitted telling the Vargases he was a friend of the baby's father, but that was just a story to make them feel more comfortable about the adoption. Morgan initially said he invented this story on the spot, but then admitted he and De La Cerra had worked it out in advance. When the Vargases asked if an attorney was involved, Morgan said yes because that's what De La Cerra had told him.
Morgan told Okamoto that, when the Vargases balked at the $250,000 figure, he said "that's too much" and advised De La Cerra to consult with Loos and come up with a more reasonable figure. Morgan initially denied having told the Vargases to "make us an offer," but then acknowledged he "could have" told the Vargases, "Well, why don't you make an offer then," or "make him an offer."
After meeting with the Vargases, De La Cerra told Morgan how the money would be divided up: "[Sires] gets some money and . . . the baby gets his money, and [De La Cerra] gets the rest." Morgan denied having been promised any money himself. When Morgan saw De La Cerra at the hospital after the baby was born, and De La Cerra said the Vargases were not returning his calls, Morgan urged him to continue calling them.
Okamoto also interviewed Loos, who acknowledged knowing women who had been paid for putting their babies up for adoption. Loos also acknowledged she and Jensen had discussed money during their initial conversation, but she told Okamoto that she was not really interested in money - just finding a good home for her baby. De La Cerra and everyone else told her what they were doing was legal. She was told there was a doctor interested in adopting the baby and Sires said they would get $250,000. Loos told him that number was ridiculous. A figure of $30,000 was subsequently mentioned. Loos claimed she never asked how much money she would receive. De La Cerra gave her $600 to make her parents believe she had made money in Las Vegas during the time she was in the hospital giving birth.
2. De La Cerra's defense evidence.
In late September, De La Cerra asked his sister, Rebeca, who is a criminal attorney, if she knew anyone interested in adopting a baby and told her about Loos's pregnancy. Rebeca advised him to talk to an adoption expert. Subsequently, De La Cerra informed her there was a female doctor who was interested in adopting the baby. His text message said: "I found a doctor lady. She has been on a wait list for three years, and she said money is not a problem." But after that, De La Cerra "shifted from trying to find a home for the baby with another [sic] couple, to himself wanting to keep the baby, and adopt the baby himself."
David Herriford, an attorney, testified he spoke to De La Cerra in late September. De La Cerra asked for advice on how to do an adoption. Herriford, who does not handle such matters, referred him to another attorney.
During the first week of October, Linda Kotis, the director of an agency dealing with adoptions and foster families, was called by a man who asked for information about private adoptions. Kotis referred the man to Attorney Mark Hirabayashi.
During a phone call, De La Cerra told Hirabayashi he was interested in possibly adopting a baby who was about to be born. Hirabayashi advised him a private adoption would require a home study by a licensed adoption agency costing $4,500, and that attorney's fees would amount to approximately $2,500, plus $250 an hour if other services were required, such as a termination of the birth father's rights. Hirabayashi never met with De La Cerra or performed any legal services for him.
3. Loos's defense evidence.
Loos testified in her own behalf. At the time of her pregnancy, she was unemployed and living with her parents. She had known Jensen for several years, knew he used methamphetamine, and knew he was not particularly reliable. In late September, she told him she was pregnant and wanted the baby adopted into a good home. When Jensen told her "he could profit from the situation," Loos said she just wanted the baby to have a good home. Jensen contacted Sires, whom Loos knew to be another methamphetamine user. Sires contacted De La Cerra.
A few days later, Sires said a doctor had been located who was interested in the adoption. On October 3, Loos went to De La Cerra's body shop with Sires and Jensen to make a video to show the doctor. Loos testified she did not discuss money with De La Cerra. After leaving the body shop, either Jensen or Sires said they could possibly get $30,000 for the adoption, but Loos told them "that was crazy and money wasn't an issue."
The next day, De La Cerra told Loos he had shown the video to the doctor. Over the next few days, Loos tried to talk to Sires, Jensen and De La Cerra about her desire to meet the doctor. De La Cerra did not return her phone calls. Jensen told her not to talk to anyone else but him.
At some point, either Sires or Jensen mentioned $250,000, a number Loos testified she dismissed as ridiculous:
"A. It just seems like a lot, and to pay that amount for a baby, it seemed not right.
"Q. Why?
"A. It's illegal. And I mean, there is nothing - you know, I mean if I had some doctor bills or something, the money would help out for it, but I didn't have anything, I didn't have doctor bills. I had the medical [insurance]. So I mean there was nothing, you know, and like I said, I never wanted money."
On Friday, October 10, Loos told her parents she would be working in Las Vegas that coming weekend. De La Cerra was going to give her some money which she could tell her parents she had earned in Las Vegas.
At the hospital, Loos told the staff De La Cerra was the baby's father. De La Cerra paid for the baby's circumcision; all the other hospital costs were paid by Loos's medical insurance. At the hospital, De La Cerra introduced Loos to Morgan and said the baby would be staying at Morgan's house. De La Cerra said he might have been interested in adopting the baby "if things maybe were different."
Loos left the hospital with De La Cerra and the baby on Monday night, October 13. However, she did not go to Morgan's house as planned because her mother called to ask where she was. De La Cerra gave Loos $900, of which she gave $100 to Sires. Loos's understanding was that she was going to return the remaining $800 to De La Cerra the next time she saw him.
Loos was planning to take the baby to the pediatrician on October 16, but the Pasadena police contacted her that day to say her baby had been found at the body shop and that De La Cerra was in custody.
4. Morgan's defense evidence.
Defendant Morgan did not present any evidence in his own behalf.
CONTENTIONS
1. The defendants were improperly convicted of attempting to sell a person in violation of section 181.
2. Loos's police statement should have been suppressed.
3. The trial court erroneously answered a jury question during deliberations.
4. The trial court misinstructed the jury on the definition of "knowingly."
5. De La Cerra was denied the effective assistance of counsel.
6. There was cumulative error.
7. A recent amendment to the presentence custody credit statute (§ 4019) should be applied retroactively.
DISCUSSION
1. Defendants were properly convicted for violating section 181.
Defendants contend they were improperly convicted of violating section 181, which proscribes an attempt to sell one person to another, either because the statute did not apply to their conduct or because the statute is unconstitutional. These claims are meritless.
a. Section 181 applies because the defendants tried to sell a baby.
Section 181 provides: "Every person who holds, or attempts to hold, any person in involuntary servitude, or assumes, or attempts to assume, rights of ownership over any person, or who sells, or attempts to sell, any person to another, or receives money or anything of value, in consideration of placing any person in the custody, or under the power or control of another, or who buys, or attempts to buy, any person, or pays money, or delivers anything of value, to another, in consideration of having any person placed in his custody, or under his power or control, or who knowingly aids or assists in any manner any one thus offending, is punishable by imprisonment in the state prison for two, three or four years." (Italics added.)
Defendants argue section 181 did not apply to their conduct because: (1) a fetus is not a "person" within the meaning of the statute; and, (2) there was insufficient evidence of an attempted sale. Neither argument is persuasive.
Defendants argue that, at most, the evidence showed they attempted to sell a fetus, not a person, because they had negotiated with the Vargases a week before the baby was born. The trial court rejected this argument below, concluding the defendants had been trying to sell the baby upon his birth. The trial court reasoned the evidence showed the defendants were "not saying Ms. Loos has a fetus, and we are selling this to you. They are not offering to sell the unborn child and saying . . . we will arrange to give you the unborn child. Clearly they are discussing this baby [sic] is to be born. [¶] When the baby is born, I think we all agree that is a person, that person will be sold to you."
We agree with the trial court's analysis. The evidence showed the defendants intended to sell Loos's child once he was born. They were not intending to sell the Vargases an unborn fetus. Hence, section 181 was applicable to their conduct.
We also conclude there was sufficient evidence of an attempted sale.
An attempt to commit a crime consists of (1) the specific intent to commit the target crime, and (2) a direct but ineffectual act done towards its commission. (People v. Swain (1996) 12 Cal.4th 593, 604.) Specific intent must often be inferred from circumstantial evidence. (People v. Cole (1985) 165 Cal.App.3d 41, 48.) When "it is not clear from a suspect's acts what he intends to do, an observer cannot reasonably conclude that a crime will be committed; but when the acts are such that any rational person would believe a crime is about to be consummated absent an intervening force, the attempt is underway . . . ." (People v. Dillon (1983) 34 Cal.3d 441, 455.)
" '[T]here is a material difference between the preparation antecedent to an offense and the actual attempt to commit it. The preparation consists of devising or arranging the means or measures necessary for the commission of the offense, while the attempt is the direct movement toward its commission after the preparations are made. In other words, to constitute an attempt the acts of the defendant must go so far that they would result in the accomplishment of the crime unless frustrated by extraneous circumstances. [Citations.]' [Citations.]" (People v. Memro (1985) 38 Cal.3d 658, 698, disapproved on another ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) " '[W]henever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of that design will constitute an attempt, and the courts should not destroy the practical and common-sense administration of the law with subtleties as to what constitutes preparation and what constitutes an act done toward the commission of a crime.' [Citations.]" (Ibid)
Morgan asserts the prosecution failed to prove either the intent element or any act beyond mere preparation. Not so. The evidence plainly showed the defendants had devised a plan to sell Loos's baby to the Vargas, and that they were on the verge of completing the sale when negotiations broke down. As the Attorney General points out, the evidence shows "[t]hey put that plan into action by making a promotional video, by locating a potential buyer, by showing the video to Vargas, by offering a price to Dr. Vargas, and by [concocting] a story about [the baby's] father." De La Cerra in effect told Vargas she could have the baby for $250,000. When Vargas expressed shock at the quoted price, Morgan suggested she make a counter-offer and De La Cerra subsequently called her in an effort to keep the negotiations going. As the Attorney General notes, "If Dr. Vargas had accepted the offer, then the contract would have been formed and Dr. Vargas would have taken possession of [the baby] a few days later."
Morgan argues there was no attempted sale because Dr. Vargas testified "[n]obody asked me for money," and that De La Cerra never said anything like "give me 'X' amount of money and you can have the baby." But even if the offer were phrased in terms of how much money Loos or her alleged uncles wanted, it is clear an asking price was conveyed to the Vargases.
Morgan argues that, even if an offer to sell the baby had been extended to the Vargases, "their unequivocal . . . rejection terminated the offer." This argument is incompatible with our decision in People v. Delvalle (1994) 26 Cal.App.4th 869, which affirmed a conviction for violating section 181. Delvalle had approached a mother walking with her four-year-old daughter and asked if she would sell him the child. In response to Delvalle's assertion this conduct amounted to mere preparation because it was " 'nothing more than a . . . "solicitation" to purchase' " the child (People v. Delvalle, supra, at p. 875), we said: "Delvalle repeatedly approached Orozco and asked her to give or sell the child to him. . . . This conduct went beyond mere preparation. But for Orozco's resolute refusal of Delvalle's overtures, the crime would have been committed." (Id. at p. 877.) As we noted: "Neither refusal of the victim to comply with the accused nor the ultimate impossibility of completion of the offense prevents the commission of an attempt. [Citations.]" (Id. at p. 876.)
The defendants here were properly convicted because section 181 applied to their conduct.
b. Section 181 is constitutional.
Defendants also contend section 181 is unconstitutionally vague and overbroad. This claim is meritless.
(1) Legal principles.
"[T]he underpinning of a vagueness challenge is the due process concept of 'fair warning.' [Citation.] The rule of fair warning consists of 'the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders' [citation], protections that are 'embodied in the due process clauses of the federal and California Constitutions. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, § 7).' [Citation.]" (In re Sheena K (2007) 40 Cal.4th 875, 890.) Several factors are involved: " ' "First . . . we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." ' [Citations.]" (Williams v. Garcetti (1993) 5 Cal.4th 561, 567-568.)
"The starting point of our analysis is 'the strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language." ' [Citation.]" (Williams v. Garcetti, supra, 5 Cal.4th at p. 568.) "In examining statutes challenged on vagueness grounds, courts have looked not merely at the hypothetical cases to which the statute has uncertain applicability, but also at the act allegedly committed by the charged defendant. The presumptive validity of a legislative act militates against invalidating a statute merely '. . . because difficulty is found in determining whether certain marginal offenses fall within . . . [its] language. [¶] Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.' [Citations.] We are not obliged to '. . . consider every conceivable situation which might arise under the language of the statute . . . .' [citation], so long as that language may be given '. . . a reasonable and practical construction in accordance with the probable intent of the Legislature' and encompassing the conduct of the defendants [citation]." (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 492.)
"Like a vagueness challenge, an overbreadth challenge implicates the constitutional interest in due process of law. (U.S. Const., Amends. V, XIV; Cal. Const., art. I, §§ 7, subd. (a), 24.) The overbreadth doctrine provides that 'a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' [Citation.]" (Williams v. Garcetti, supra, 5 Cal.4th at p. 577.) "Nevertheless, a facial overbreadth challenge is difficult to sustain. The high court has emphasized that '[a]pplication of the overbreadth doctrine . . . is, manifestly, strong medicine. It has been employed . . . sparingly and only as a last resort.' [Citation.] Consequently, to justify a conclusion of facial overbreadth, 'the overbreadth of a statute must not only be real, but substantial as well . . . . ' [Citation.]" (Ibid.)
There is a " 'strong presumption that legislative enactments "must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears . . . ." ' [Citation.]" (Williams v. Garcetti, supra, 5 Cal.4th at p. 568.)
(2) Discussion.
Morgan argues section 181 is unconstitutionally vague because the statute fails to give adequate notice of the forbidden conduct. However, we agree with the Attorney General that section 181 "is not vague at all - it applies to an exchange of a person for 'money or anything of value.' Under the terms of the statute, any consideration is enough to trigger criminal liability. Appellant Morgan does not appear to dispute that the request of $250,000 in exchange for the baby satisfies this language." Morgan's reliance on Goodman v. District of Columbia (D.C. 1947) 50 A.2d 812, is misplaced. That case merely held an attorney's well-intentioned acts on behalf of a mother, who had asked him to arrange a private adoption, did not excuse his violation of a statute which plainly forbade performing such "child-placing" acts without the proper license to do so.
To the extent Morgan suggests it was improper to apply section 181 to what was in essence a "private adoption" situation, we note that People v. Daniel (1987) 195 Cal.App.3d 623, concluded: "While appellant contends he cannot be convicted of attempting to sell his child because he anticipated that she would be adopted, courts in other jurisdictions have not been reluctant to term similar transactions ' "dealing in humanity." ' . . . Similarly, we hold that demanding money to consent to an adoption constitutes an attempted sale and is a violation of Penal Code section 181." (Id. at p. 627.)
Morgan's reliance on Johnson v. Calvert (1993) 5 Cal.4th 84, a case involving a surrogate mother contract, to support his overbreadth claim is similarly meritless. Morgan argues: "Section 181 is clearly overbroad. A surrogate mother 'attempts to sell' and 'receives money' in consideration for placing the child in 'the custody, or under the power or control of another' and the contracting parent 'buys, or attempts to buy, any person, or pays money . . . to another, in consideration of having any person placed in his custody, or under his power or control,' but no section 181 violation occurs under compulsion" of Johnson.
But the Johnson holding was based on the fact the birth mother was being paid for having a zygote implanted in her womb and carrying it to term. In upholding the legality of a surrogacy agreement, Johnson rejected an argument the agreement violated the social policy embodied in section 273 (paying or being paid for consent to adopt a child): "Gestational surrogacy differs in crucial respects from adoption and so is not subject to the adoption statutes. The parties voluntarily agreed to participate in in vitro fertilization and related medical procedures before the child was conceived; at the time when Anna entered into the contract, therefore, she was not vulnerable to financial inducements to part with her own expected offspring. As discussed above, Anna was not the genetic mother of the child. The payments to Anna under the contract were meant to compensate her for her services in gestating the fetus and undergoing labor, rather than for giving up 'parental' rights to the child." (Johnson v. Calvert, supra, 5 Cal.4th at p. 96.) Johnson indicated surrogacy contracts violated neither section 273 nor section 181. (See Johnson v. Calvert, supra, at p. 95.)
We conclude the defendants have not overcome the strong presumption that legislation must be upheld unless its unconstitutionality clearly appears. (See Williams v. Garcetti, supra, 5 Cal.4th at p. 568.)
2. Loos's police statements were properly admitted.
Loos contends her constitutional rights were violated by the admission of police statements taken in violation of her right to remain silent and her right to counsel. Her Sixth Amendment claim is predicated on the fact she was interrogated after a criminal complaint had already been filed. Her Fifth Amendment claim is predicated on the assertion she did not impliedly waive her Miranda rights before speaking to the police. Neither claim has merit.
Miranda v. Arizona (1966) 384 U.S. 436 (86 S.Ct. 1602).
a. Legal principles.
A defendant's waiver of Miranda rights may be express or implied. "[D]ecisions of the United States Supreme Court and of this court have held that . . . an express waiver [of Miranda rights] is not required where a defendant's actions make clear that a waiver is intended." (People v. Whitson (1998) 17 Cal.4th 229, 250.) "Once the defendant has been informed of his rights, and indicates that he understands those rights, it would seem that his choosing to speak and not requesting a lawyer is sufficient evidence that he knows of his rights and chooses not to exercise them." (People v. Johnson (1969) 70 Cal.2d 541, 558, disapproved on another point in People v. DeVaughn (1977) 18 Cal.3d 889, 899, fn. 8].)
"Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." (Berguis v. Thompkins (2010) 130 S.Ct. 2250, 2262 .) "As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. [Citations.]" (Ibid.) "The Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions." (Id. at p. 2263.) Berguis found an implied waiver on the facts in that case because: there was no contention the defendant did not understand his rights; by answering a detective's question about whether he had prayed for forgiveness after shooting the victim, the defendant indicated he was waiving the right to remain silent; and, there was no evidence the defendant's statement had been coerced. (Id. at pp. 2262-2263.) "In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police." (Id. at p. 2264.)
b. Discussion.
Okamoto began his interrogation of Loos by saying: "We need to talk to you in regards to some of the stuff that obviously this investigation has been on going[;] I don't know what you know in regards to who's been contacted, who's been arrested, who's out. Okay." When Loos interjected, "All I know is that one guy Glen, he's been trying to call me but . . . ," Okamoto interrupted her and said: "Basically you're in a police department and prior to us talking to you we have to advise you of your rights. Kind of how we did last time." Okamoto then proceeded to advise Loos of her Miranda rights, each of which Loos said she understood. Thereafter, Loos answered his questions.
Loos acknowledges she was given a proper Miranda warning and that, after saying she understood her rights, she continued speaking to Okamoto. Loos does not contend she misunderstood her Miranda rights, and therefore the only question is whether she impliedly waived her rights by giving an uncoerced statement. Loos asserts she only gave a statement because Okamoto engaged in improper trickery, psychological coercion, threats and false promises of leniency. This assertion is not supported by the record.
Loos did not testify at the suppression hearing, and at trial she did not say anything about how Okamoto's statements had affected her. Hence, there is no evidence from her to show her statements were caused by anything improper Okamoto did. Such causation evidence is key to showing coercion because, for instance, a threat renders a confession involuntary "only if the threat actually induces [the person being interrogated] to make the statement." (People v. Lucas (1995) 12 Cal.4th 415, 442; see also People v. Thompson (1990) 50 Cal.3d 134, 166 [in cases of claimed psychological coercion, question is whether influences brought to bear overcame defendant's will to resist and resulted in a confession not freely self-determined].) Similarly, an improper promise of leniency does not render a statement involuntary unless, given all the circumstances, the promise was a motivating cause of the statement. (People v. Vasila (1995) 38 Cal.App.4th 865, 874; People v. Cahill (1994) 22 Cal.App.4th 296, 316.)
Such testimony is generally relied on to make at least a prima facie showing of a coerced confession. (See, e.g., People v. Jimenez (1978) 21 Cal.3d 595, 611, disapproved on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17 ["defendant testified that he was scared by this talk about the death penalty and that he made his statements to the officers because [one] had told him that if he talked about the case, . . . the jury would go lighter on him"]; People v. McClary (1977) 20 Cal.3d 218, 229, disapproved on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17 [defendant testified she gave statement as result of pressure exerted by officers]; People v. Johnson (1969) 70 Cal.2d 469, 475 [defendant testified "he thought he had to talk [because of] 'the way they were asking the questions, and the way the conversation was going on off the tape' "].)
The evidence of causation here is extremely thin. Loos complains that, "instead of immediately questioning" her after giving the Miranda advisement, "Okamoto began a diatribe about lying and telling the truth that lasted for quite a while before Ms. Loos finally answered any questions." But this alleged "diatribe" did not take long at all, and we fail to see how Okamoto's relatively brief introductory remarks could have vitiated Loos's implied Miranda waiver.
Loos complains "Okamoto resorted to psychological pressure to elicit" her statements by telling her "that 'now' was her chance to talk, and if she did not she would not be able to tell her story when the case goes to trial, deceiving her into thinking . . . if she did not talk to him she would have no right to testify in her defense if the case went to trial." She also complains he said "the DA would show leniency when it came to punishment if the truth was told." But Okamoto's vague comment about the district attorney showing leniency related to Morgan, not Loos. Okamoto did not say Loos would forfeit her right to testify at trial; what he told her is that if she lied now the jury would not believe her at trial even if she testified truthfully. Similarly, a comment by Okamoto about enhancing Loos's bail, and making her look like "the bad guy," occurred after Loos admitted there had been talk about money from the very beginning of her contact with Jensen.
Okamoto said: "And I told [Morgan's] attorney, I said 'If he's willing to tell us the truth' I said 'Maybe the D.A. will show some lenience in regards to the punishment phase.' "
Okamoto said: "[N]ow is your time to tell the truth. Because at this point the jury's going to listen to [Sires] and [Jensen] and [Morgan] and you won't be able to speak. Because all we're going to say is we can't believe anything she says because we have twenty different stories from her."
An even more powerful indication there was no causation is the fact that, throughout the interrogation, Loos insisted her only real concern was finding a good home for the baby. What's most notable about the entire interrogation is the way Loos stuck to her story that, although both Jensen and Sires talked about the money they were going to make by helping Loos get rid of her baby, her only intention was to find the child a good home. (See People v. Williams (1997) 16 Cal.4th 635, 660 [no causation shown because, although defendant dropped initial claim of total innocence and admitted his presence at murder scene, he maintained he had played no role in the killings].) In the face of Loos's insistence on her innocent intent, Okamoto finally threw up his hands in frustration and terminated the interrogation. During closing argument, both the prosecutor and Loos's defense counsel commented on the fact that, throughout the interrogation, Loos kept saying money was not her object.
Defense counsel told the jury: "Throughout the interrogation, Detective Okamoto is relentless. The accusations continue unabated. . . . [¶] And throughout all of this, Shawna Loos remains steadfast and resolute. She never waivers, not for moment. Why? Because . . . she's innocent. Because . . . she is telling the truth." The prosecutor conceded Loos had maintained her innocence, but argued it was all a big lie: "Ms. Loos has said over and over again to Detective Okamoto, here in court, that she . . . didn't want the money, she didn't care about the money. She didn't want the money. She only wanted one thing: to find a good home for her baby. That was her intent. That is what she says her intent was. But her actions unfortunately point to a different conclusion." "Now, Ms. Loos certainly did tell Detective Okamoto many times that, yes, I knew about the money but I stressed to [Sires] and I stressed to [Jensen], that I wanted a good home for the baby. How much can we trust Ms. Loos? I mean, we know she is a very good liar. . . . [¶] It wouldn't be that difficult for her to lie to Detective Okamoto during her interview and say all I wanted was a good home for the baby, I didn't want the money."
We conclude there was no Miranda violation because of Loos's implied waiver.
Citing People v. Viray (2005) 134 Cal.App.4th 1186, 1195, for the rule that "the typical California criminal prosecution commences, for purposes of the rule of Massiah [v. United States (1964) 377 U.S. 201], no later than the point at which the prosecutor files a criminal complaint," Loos argues her Sixth Amendment right to counsel was violated because she was interrogated after the criminal complaint was filed. However, even if the rule of Viray applies in this case, Loos waived her Sixth Amendment right to counsel when she voluntarily spoke to Detective Okamoto after having been given Miranda warnings. (See Montejo v. Louisiana (2009) 129 S.Ct. 2079, 2085 ["Our precedents . . . place beyond doubt that the Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is voluntary, knowing, and intelligent. [Citations.] The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. [Citation.] And when a defendant is read his Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment[.]"].)
Massiah "holds that the government violates a defendant's Sixth Amendment right to counsel when it introduces into evidence incriminating statements deliberately elicited from the defendant by agents of the state, outside the presence of counsel, after the commencement of criminal proceedings." (People v. Viray, supra, 134 Cal.App.4th at p. 1194.)
In sum, we conclude Loos's police statements were properly admitted into evidence.
Given this holding, we need not reach Loos's alternative claim that without her police statement there was insufficient corroborating evidence to permit the admission of Jensen's accomplice testimony.
3. Trial court properly answered the jury's question.
Defendants contend the trial court erred when it responded to a jury question, during deliberations, about the baby's status under section 181. This claim is meritless.
During deliberations, the jury sent out this question: "Is [the baby] a person prior to the date of his birth within the meaning of Penal Code section 181 (Jury Instructions page 26)?" The defendants argued the trial court should tell the jury "no," but the prosecutor argued the correct answer was "yes." The trial court concluded neither response adequately explained the law, and instead told the jury: "Yes, if you determine that [the baby] is a person upon his birth."
The Attorney General argues there was no error because, by phrasing its answer this way, the trial court clarified that the relevant question was whether the defendants intended to transfer possession of the baby to the Vargases after his birth: "By comparison, if the court had simply answered the jury's question by saying, 'No,' then the court would have misled the jury into thinking that [defendants] were not guilty if their attempts to sell occurred before [the baby] was born. . . . [S]uch a conclusion would have been incorrect." We agree with this reasoning and conclude the trial court correctly answered the jury's question.
4. No prejudice resulted from giving CALJIC No. 1.21.
Defendants contend the trial court erroneously instructed the jury with CALJIC No. 1.21, defining the term "knowingly." While we agree this instruction should not have been given, it is clear there was no resulting prejudice.
The trial court instructed the jury: "The word 'knowingly' means with knowledge of the existence of the fact in question. Knowledge of the unlawfulness of any act or omission is not required." Morgan argues this instruction was inconsistent with a portion of the aiding and abetting instruction which said: "A person aids and abets the commission or attempted commission of a crime when he or she [acts]: [¶] (1) With knowledge of the unlawful purpose of the perpetrator . . . ."
The Attorney General agrees CALJIC No. 1.21 was inapplicable to the facts of this case and should not have been given, but argues there was no resulting harm. "Giving an instruction that is correct as to the law but irrelevant or inapplicable is error. [Citation.] Nonetheless, giving an irrelevant or inapplicable instruction is generally ' "only a technical error which does not constitute ground for reversal." ' [Citation.]" (People v. Cross (2008) 45 Cal.4th 58, 67.) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (Id. at pp. 67-68.)
There was no such likelihood of misunderstanding here. The trial court gave CALJIC No. 1.21 as one of its introductory instructions defining certain terms, but subsequently gave more specific instructions advising that the defendants could be guilty of aiding and abetting only if they knew they were aiding the commission of an unlawful act.
After explaining the elements of a section 181 violation, the trial court said:
"A person aids and abets the commission or attempted commission of a crime when he or she:
"(1) With knowledge of the unlawful purpose of the perpetrator; and
"(2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime; and
"(3) By act or advice, aids, promotes, encourages or instigates the commission of the crime.
. . . . . .
. . . . . .
"Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." (Italics added.)
The trial court also said: "Merely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator, and without the intent or purpose of committing, encouraging or facilitating the commission of the crime, is not criminal. Thus a person who assents to, or aids or assists in the commission of a crime without that knowledge and without that intent for [sic]purpose, is not an accomplice in the commission of the crime." (Italics added.)
Furthermore, during closing argument, the prosecutor said: "In order to be considered an aider and abettor, to be guilty under the law of aiding and abetting, one has to have the knowledge of the unlawful purpose. And with the intent of encouraging or committing the crime, they have to have acted or aided, that is, through act or advice, aided or furthered the crime in some way, promoting it in some way. [¶] Again, they have to know the unlawful purpose and with the intent to commit the crime, to further the crime, they have to have helped in some way." (Italics added.)
Instructional error can sometimes be cured by closing argument. (See People v. Visciotti (1992) 2 Cal.4th 1, 58-59 [improper intent instructions were harmless error where closing arguments made jury aware specific intent to kill was element of attempted murder]; People v. Maurer (1995) 32 Cal.App.4th 1121, 1130 [closing argument can be relevant consideration in determining prejudice from conflicting instructions].)
Morgan's defense counsel made the same point during closing argument: "[I]n order to be an aider and abettor, you have to know what the intent, the criminal intent, of the actual perpetrator was. That would have been, he had to know that this was a sale of the baby." "Now, if he didn't know what the criminal purpose of the perpetrator, the seller of the baby was, then he could not have been an aider and abettor, because that is required by the statute. In other words, a person aids and abets the commission or attempted commission of a crime when he or she, one, with knowledge of the unlawful purpose of the perpetrator . . . ." (Italics added.)
Given these closing arguments and the other instructions, we do not believe the jury would have been confused by CALJIC No. 1.21. Thus there was no resulting prejudice.
5. De La Cerra was not denied effective assistance of counsel.
De La Cerra claims his conviction must be reversed because he was denied the effective assistance of trial counsel. This claim is meritless.
a. Legal principles.
A claim of ineffective assistance of counsel has two components: " 'First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' [Citation.] To establish ineffectiveness, a 'defendant must show that counsel's representation fell below an objective standard of reasonableness.' [Citation.] To establish prejudice he 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citation.]" (Williams v. Taylor (2000) 529 U.S. 362, 390-391 .) "[T]he burden of proof that the defendant must meet in order to establish [an] entitlement to relief on an ineffective-assistance claim is preponderance of the evidence." (People v. Ledesma (1987) 43 Cal.3d 171, 218.)
An appellate court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies." (Strickland v. Washington (1984) 466 U.S. 668, 697 .)
b. No objection to evidence of anonymous tip.
Officer Susan Gomez testified she received an anonymous telephone call reporting there was a baby for sale at De La Cerra's automobile body shop. Based on this information, Gomez went to the body shop and confronted De La Cerra, who denied there was a baby on the premises. De La Cerra contends defense counsel should have objected to this evidence: "[T]o the extent the caller's statements were not offered for the truth of the matter asserted, perhaps to explain how Officer Gomez learned of De La Cerra's automobile body shop, they still were inadmissible because the reason why Gomez first went to the shop was irrelevant. Gomez's testimony was relevant only in so far as what occurred once she arrived at the shop and what she observed and discovered thereafter."
We disagree. The evidence about the anonymous tip led to substantial consciousness of guilt evidence because Gomez testified De La Cerra got nervous when she told him about the phone call and he denied the baby was there. As the Attorney General points out: "The highly relevant point of the evidence was that when confronted with the information that someone had told the police that a baby was for sale at the body shop, appellant De La Cerra panicked, lied about the baby's presence, and desperately tried to prevent the police from finding the baby." Thus, the evidence explained not merely why police went to the body shop, but was "part of the evidence showing that when the officers explained the reason for their visit . . . [De La Cerra] lied and attempted to hide the baby. Thus, the evidence was highly relevant."
De La Cerra's reliance on People v. Lucero (1998) 64 Cal.App.4th 1107, is misplaced. In Lucero, the extra-judicial statement was a witness's assertion that a shoeprint found at the crime scene had been left by the robber, and the alleged non-hearsay justification for admitting the statement was to explain why the defendant had been arrested. However, the officer's reason for arresting the defendant was not a relevant issue at trial. Here, on the other hand, De La Cerra's consciousness of guilt was a relevant issue at trial and, therefore, what Gomez told De La Cerra about the anonymous tip was probative because it gave context to his response.
De La Cerra also argues that even if relevant, the evidence could have been excluded as more prejudicial than probative: "The caller was clearly someone who had inside information . . . and was directly implicating Mr. De La Cerra in the commission of a crime. Even if the purpose of introducing it into evidence was to explain De La Cerra's reaction . . . it does not change the fact that the jury was privy to an allegation from an inside source that De La Cerra was attempting to sell Shawna Loos's baby." Given the circumstances of this case, we disagree with De La Cerra's suggestion this "inside information" would have constituted powerful inculpatory evidence. Moreover, the jury heard evidence indicating the ultimate source for this anonymous tip was none other than Dr. Vargas herself.
When Morgan was informed, during his police interview, about the anonymous tip, he said: "That had to be . . . Sylvia [Ortega]; cause she knows . . . the Vargases . . . ."
There was no ineffective assistance of counsel on this ground because a motion to exclude the evidence would have properly been denied.
c. No objection to Morgan's reference to De La Cerra's
parole status.
During his police interview. Morgan professed surprise that De La Cerra would be involved in the illegal sale of a baby, saying he "didn't think [De La Cerra] would be . . . that dumb. . . . For him to be on parole I would think he would try to do nothing crazy like that." De La Cerra argues defense counsel should have moved to redact this statement because it amounted to impermissible propensity evidence.
We agree defense counsel should have tried to exclude this reference to De La Cerra's parole status, but we also conclude there was no resulting prejudice. The statement was not admitted as propensity evidence; it had come in inadvertently, something spontaneously thrown up by Morgan. The statement was extremely brief and fleeting, and it was never mentioned by the prosecutor. By comparison, the evidence of De La Cerra's guilt was overwhelming. (See People v. Bolden (2002) 29 Cal.4th 515, 555 [brief and fleeting reference to defendant's parole status did not warrant mistrial because it was "not significant in the context of the entire guilt trial"].)
d. No objection to detectives' comments about De La Cerra's guilt.
De La Cerra argues defense counsel should have moved to redact from
Morgan's police interview statements by the detectives expressing belief in De La Cerra's guilt and the Vargases' credibility. We do not agree De La Cerra could have been prejudiced by these statements.
As the Attorney General points out, the jury would most probably have understood these statements as nothing more than interrogation techniques intended to elicit information from Morgan, rather than actual opinions about De La Cerra's guilt and the Vargas's credibility. Indeed, Okamoto testified he had learned in interrogation courses that one standard technique is to lie to a suspect in order to provoke a response. Moreover, the statements were not offered as evidence of the detectives' true opinions, but only to show the context in which Morgan's statements had been made.
e. No objection to Bruton/Aranda evidence.
Finally, De La Cerra contends defense counsel should have sought to exclude portions of Morgan's police statement because they violated the Bruton/Aranda rule. As we explained in People v. Orozco (1993) 20 Cal.App.4th 1554, 1564: "The essential holding of Bruton v. United States (1968) 391 U.S. 123 . . . , is that a defendant is deprived of the Sixth Amendment right to confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the defendant who made it. . . ."
Bruton v. United States (1968) 391 U.S. 123 (88 S.Ct. 1620); People v. Aranda (1965) 63 Cal.2d 518.
De La Cerra argues that, although some portions of Morgan's police interview were redacted, the jury still heard his assertions that De La Cerra had quoted the Vargases a price of $250,000, that he was "pretty sure" De La Cerra was going to be paid, and that De La Cerra had told him " 'Glenn gets some money and . . . the baby gets his money and . . . he [i.e., De La Cerra] gets the rest.['] " De La Cerra argues these statements directly implicated him in the illegal sale of Loos's baby and, although "there may have been other evidence that circumstantially suggested that De La Cerra had intended to receive money in exchange for the sale of Loos's baby, Morgan's statements were the only ones directly implicating him in the baby-for-sale scheme." But De La Cerra is overlooking the fact that even the circumstantial evidence of his central role in the affair was overwhelming. For instance, that De La Cerra had asked for $250,000 for the baby was overwhelmingly proved by Dr. Vargas's testimony and the secretly recorded conversation in which De La Cerra told Sires: "The only thing against us is the doctor, she knew the dollar amount."
6. There was no cumulative error.
Defendants contend their convictions must be reversed for cumulative error. However, we have found at most only a few insignificant errors that were clearly harmless. The trial was not fundamentally unfair. (See People v. Jenkins (2000) 22 Cal.4th 900, 1056 ["Defendant contends the cumulative prejudicial effect of the various errors he has raised on appeal requires reversal of the guilt and penalty judgments. We have rejected his assignments of error, with limited exceptions in which we found the error to be nonprejudicial. Considered together, any errors were nonprejudicial. Contrary to defendant's contention, his trial was not fundamentally unfair, even if we consider the cumulative impact of the few errors that occurred."].)
7. Section 4019 amendment is not retroactive.
The defendants contend they are entitled to a recalculation of their presentence custody credits under a recent amendment to section 4019. This claim is meritless.
This claim directly concerns only De La Cerra because both Loos and Morgan were granted probation.
Under section 2900.5, a defendant sentenced to state prison is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 permits a defendant to earn additional presentence credit for good behavior and work performance. (§ 4019, subds. (b), (c).) The credits authorized by section 4019 collectively are referred to as conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.) The version of section 4019 in effect at the time De La Cerra was sentenced to state prison allowed for six days of custody credit for every four days of custody. (Former § 4019, subds. (b), (c), (f); Stats. 1982, ch. 1234, p. 4553, § 7.)
Effective January 25, 2010, an amended version of section 4019 permitted defendants to earn conduct credits at twice the previous rate, that is, up to four days of custody credit for every two days of custody, subject to exceptions not relevant here. (Former § 4019, subds. (b)(1), (c)(1), (f); Stats. 2009-2010, 3d Ex. Sess., ch. 28 (S.B.18), § 50, eff. Jan. 25, 2010.) However, effective September 28, 2010, the statute has been rewritten to again award conduct credit at the rate of six days of custody credit for every four days of custody. (§ 4019, subds. (b), (c), (f); Stats.2010, ch. 426 (S.B.76), § 2, eff. Sept. 28, 2010.)
De La Cerra argues he is entitled to the benefit of the amendment to section 4019 in effect after January 25, 2010 because that statute became effective before his case was final. (See In re Estrada (1965) 63 Cal.2d 740.)
The question whether the amendment to section 4019 that became effective on January 25, 2010 should be applied retroactively has caused a split of authority in the Courts of Appeal. The California Supreme Court has granted review to consider the issue. Pending a decision on this matter by our high court, we believe the amendment does not apply retroactively.
The lead cases are People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, which held the amendment does not apply retroactively, and People v. Brown (2010) 182 Cal.App.4th 1354 review granted June 9, 2010, S181963, which held it does apply retroactively.
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As a general rule, a new or amended statute is presumed to operate prospectively rather than retroactively in the absence of a clear and compelling indication the Legislature intended otherwise. (People v. Alford (2007) 42 Cal.4th 749, 753; Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208-1209.) This principle is codified in section 3, which provides: "No part of [the Penal Code] is retroactive, unless expressly so declared." "To ascertain whether a statute should be applied retroactively, legislative intent is the 'paramount' consideration[.]" (People v. Nasalga (1996) 12 Cal.4th 784, 792.) Because the Legislature did not specify whether it intended the amendment to section 4019 to have retroactive application, we consider other factors to determine the Legislature's intent. (See In re Estrada, supra, 63 Cal.2d at p. 744.)
De La Cerra relies on Estrada, which held a statutory amendment reducing a term of imprisonment operated retroactively. (In re Estrada, supra, 63 Cal.2d at p. 748.) However, the amendment to section 4019 does not necessarily lessen a defendant's punishment. Rather, the amendment increases conduct credit which, in our view, is not equivalent to mitigation of punishment. Because the amendment to section 4019 does not reduce punishment as such, it is different from the reduction in the prison term at issue in Estrada.
There are further reasons for concluding this amendment is not retroactive. The purpose of conduct credits is to encourage good behavior by incarcerated defendants prior to sentencing (see People v. Silva (2003) 114 Cal.App.4th 122, 127-128; People v. Guzman (1995) 40 Cal.App.4th 691, 695), but applying the amendment retroactively would not further that objective because it is not possible to influence behavior after it has occurred. The Legislature did expressly provide for retroactive application of another provision of the amendatory legislation. (See § 2933.3, subd. (d), as amended by Stats. 2009-2010, 3d Ex. Sess., ch. 28 (S.B.18), § 41 [retroactive application of provision increasing conduct credits for inmates who complete training as firefighters after July 1, 2009].) Finally, the more generous provisions of section 4019 in effect after January 25, 2010, have been eliminated by the Legislature effective September 28, 2010.
In sum, pending resolution of the issue by our Supreme Court, we conclude the amendment to section 4019 does not operate retroactively.
DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P.J. We concur:
CROSKEY, J.
ALDRICH, J.