Opinion
C040342.
7-23-2003
THE PEOPLE, Plaintiff and Respondent, v. BENITO JULIAN LUNA, JR., Defendant and Appellant.
Following a bench trial, defendant Benito Julian Luna, Jr., was convicted of first degree murder (Pen. Code, § 187, subd. (a) — count one) and attempted robbery (Pen. Code, §§ 664/211 — count two). The trial court also found true related enhancements (Pen. Code, § 12022.53, subds. (c), (d)), and sentenced defendant to state prison for life without the possibility of parole and to a consecutive term of 25 years to life.
On appeal, defendant claims that his confession to police was involuntary and that the trial court therefore erred by admitting it over his objection. We disagree and shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Underlying
Crime
On the evening of April 30, 2000, Christina Connery and Brandon and Aryan Carrafa held a party at their apartment to celebrate a friends birthday. Several guests were present, including the murder victim, Adam Todd.
Brandon and a friend went to a nearby store to get some drinks and snacks. On their way back, they passed defendant and two other men who were all wearing knit caps (or possibly rolled-up ski masks). Because the apartment had been robbed by three men just a few weeks earlier, Brandon became concerned. Thus, after Brandon and his friend returned to the apartment, they told the others that there might be another robbery.
Aryan retrieved a gun and went with many of the others to the back bedroom. And sure enough, the robbers entered the apartment after kicking in the front door. One robber, who was wearing a ski mask, pushed open the bedroom door, and Aryan shot him. The robber moaned and fell back, and the door shut. Another shot was thereafter heard. Adam Todds body was later found on the floor in the living room. He had been shot from no more than one foot away, and the bullet had entered his back in a downward angle. It was determined that the bullet could not have been fired from Aryans gun.
Later that same night, defendants wife asked a nursing student who lived down the street to come to their home. When she arrived, she saw that defendant had a wound above his right clavicle. She told defendant that she thought it was a bullet wound, but he told her to just fix it. She cleaned and dressed the wound and told him to see a doctor.
At trial, Brandon identified defendant, based on his appearance, as the robber who had been shot. Christina Connery identified defendant as one of the three robbers who came into the apartment, and another guest identified defendant as one of the three men that he and Brandon had passed before the robbery.
Defendant eventually confessed to police. He admitted that he had kicked in the apartment door and that a man in the back bedroom had shot him. He claimed, however, that after being shot, he accidentally discharged the shot that killed the victim. At defendants request, his wife recovered the gun that he claimed he had used and gave it to police. It was determined that the bullet that killed the victim could have been fired from that gun.
II. Evidentiary Hearing on Confession
The sole issue on appeal hinges upon the voluntariness of defendants confession. Defendant claims that his confession "was elicited by promises of leniency and by a . . . visit with his family."
Defendant initially spoke with police on May 2, 2000, and then again on May 4, 2000, when he eventually confessed. Most of the interviews were videotaped and entered into evidence, and the trial court also received transcripts of the interviews.
But it was a private conversation on May 4 between defendant and a police supervisor, which was not videotaped, which prompted defendant to confess. The trial court heard extensive evidence on what occurred during that conversation.
The following is a summary of the interviews, including the private conversation on May 4 that gave rise to the confession.
A. Pre-Confession Taped Interviews with Police
1. May 2 interview
On May 2, 2000, police took defendant to the police station for questioning. Detectives David Wright and Elaine Stevenson advised him of his Miranda rights, and he acknowledged that he understood them.
Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602] (Miranda).
During the interview, defendant said that he had recently used methamphetamine. One of the detectives checked defendants arm and noticed injection marks that were apparently made in the last 24 hours.
Defendant also claimed that he had been at home on or about the time of the incident. When asked how he injured his shoulder, defendant claimed that he had slipped and fallen on a board with a nail in it.
Detective Wright explained that the police were investigating a home invasion in which someone was killed and one of the perpetrators was shot, and that the detectives did not believe the injured perpetrator was the killer. Defendant continued to insist that he was at home on the night of the incident. When police took defendant home following their questioning, they looked for a board with a nail but were unable to find one.
Witnesses subsequently identified defendant based on a photo lineup, and police obtained a warrant for his arrest.
2. Morning and early afternoon interview on May 4
On May 4, 2000, defendant was arrested at a motel in Roseville, where he was registered under another name. In his motel room, police found some marijuana but no methamphetamine or related paraphernalia.
Defendant was taken to the police station and again interviewed by Detectives Wright and Stevenson. One of defendants hands was handcuffed to a table for most of the time that he was in the interview room. At one point, defendant said that he had recently injected methamphetamine and was under the influence of it. Later, defendant complained that he had "cotton mouth" and had been running a temperature. But defendant was generally alert, coherent, and responsive, as will become apparent from the following summary of his conversation with detectives. However, Detective Wright did notice that defendants wound appeared to be in the beginning stage of infection. During the conversation with defendant, the detectives indicated that he would receive medical treatment after he was booked.
When the detectives initially entered the room, defendant asked if he was "still" being charged with murder and said that he was not involved. He claimed that he had been shot in an apparent retaliatory incident because he had testified against a gang. Detective Wright reminded defendant of his Miranda rights, and he acknowledged he understood them. Defendant indicated that he would like to talk to the detectives, but commented, "This other dude . . . was . . . saying . . . I better come in here and talk to you right, and calling me names, and shit like that." Detective Wright emphasized that they only wanted defendant to talk as long as he wished to do so and not because someone had threatened him. Defendant wanted to call his wife to tell her where he was, but Wright said that she already knew. Defendant then began to discuss the circumstances of the alleged incident in which he was shot.
The detectives were skeptical of defendants claims of innocence. They indicated that they knew that he was involved in the incident that they were investigating and described some of the evidence against him, including the fact that witnesses had identified him. Detective Wright told defendant that he would be arrested and booked for residential robbery and murder. But Wright said that they wanted to give defendant the opportunity to explain what had happened, although it was up to him whether to tell them. Defendant continued to maintain his innocence. Wright said that the district attorney had the option of charging defendant as if he had been the shooter, and suggested that after defendant was booked into the jail and had an attorney, he should have his attorney contact the district attorney to see if they could negotiate some type of deal.
Shortly before he left the interview room, defendant asked how the detectives knew that he was involved and whether there might be any deals available. Detective Stevenson told defendant that it was up to his lawyer and the district attorney to discuss deals and that she did not know what could be arranged. But Stevenson cited some examples in which a possible life sentence had been reduced to a term of 10 or 15 years or the death penalty had been avoided. Still, she concluded by reiterating that she did not know what could be arranged by defendants attorney and the district attorney and that it was "completely up to them."
Defendant expressed concern for his wife and stepson, and Detective Stevenson agreed to tell them that defendant loved them. Defendant also indicated that he wanted to see them. Detective Stevenson told defendant that his wife was "already" planning to come the next day. When defendant asked about being able to "give her a kiss bye," Stevenson said that he would probably not be able to do so.
Defendant and other witnesses often referred to defendants stepson as his son.
In preparation for his transportation to the main jail, defendant was escorted from the interview room by Sergeant Craig Hill, the homicide supervisor, and Deputy Sheriff Marcie Minter.
B. Sergeant Hills Conversation with Defendant
The subsequent conversation between defendant and Sergeant Hill is a matter of dispute and the basis for defendants claim that his confession was involuntary.
Sergeant Hill had participated in defendants arrest and had been briefed on the questioning.
Deputy Minter rode in the elevator with Sergeant Hill and defendant before the two left for the jail. According to Minter, Hill spoke in a calm and friendly voice but told defendant that he should have told the truth, he had "kind of fucked himself," and "things like that." Minter acknowledged that she had told an investigator from the district attorneys office that what occurred had made her uncomfortable. But although Minter initially said that she did not remember why it made her uncomfortable, she later referred to the fact that it was not being recorded.
However, according to Detective Stevenson, about a year after defendant had been arrested, Minter told her that Hill had told defendant that "he was screwed, that he was going to go to prison for a long time for this offense, and that he could call the D.A.s Office and work a deal and maybe get him less time."
Sergeant Hill did not remember the conversation in the elevator. But he testified that he never agreed to go to the district attorneys office to negotiate some type of lenient arrangement for defendant. Hill further explained that he spoke with defendant during the short ride to the jail and that they continued to talk for an additional "45 minutes or so" in the garage at the jail. Hill was never hostile to defendant. Defendant was initially very calm but became more emotional as they spoke. He remained alert and coherent and never said that he did not want to talk to Hill. Defendant was not "fidgeting," nor did he appear "wired at all."
Sergeant Hill allowed defendant to smoke while they were in the garage. And Hill even shifted defendants handcuffs from the back to the front at some point.
During their conversation, Hill told defendant that he "should have done the right thing" and told the truth, indicating that it would be better because his stepson would find out eventually. Hill said that it was better that defendant tell police so that they would not have to question his family. But Hill never threatened defendant or his family. When specifically asked about whether he had threatened to arrest defendants wife, Hill said that he had not threatened to arrest her if defendant simply refused to talk, but had indicated that she could be arrested if police determined that she had withheld information.
Defendant asked questions about how the robbers had been identified if they wore masks. At some point, defendant said that he could not "tell on them," apparently referring to his confederates, and at that point Hill felt that defendant wanted to tell his side of the story. But although defendant wanted to see his wife before giving a statement, Hill said that he could visit with his family only after speaking with Detectives Stevenson and Wright again. Defendant asked about a possible deal, but Hill told defendant that he was not in a position to make any type of deal. Defendant eventually admitted his involvement in the crimes under investigation, and Hill took defendant back to speak with Wright and Stevenson.
At the suppression hearing, defendant contradicted Sergeant Hills account of their conversation. Defendant claimed that his stomach had been upset when he spoke with Hill, that he was initially "really high on drugs," and that Hill intimidated him. Defendant also said that in addition to the handcuffs, he was wearing leg irons. Defendant said that he was crying at some points when Hill spoke with him and also shaking because of the drugs.
On the other hand, defendant acknowledged that he was facing a life sentence as a third-strike offender, that he was "no rookie in the criminal justice system," and that he had spoken with a lot of police officers in the past. He agreed with the prosecutor that "you talk to them if you want to" and "if you dont want to, you dont talk to them."
Defendant said that Sergeant Hill had told him that he had "fucked up" and should have told the truth, but that he (Hill) could talk to the district attorney (whom he knew personally) about a reduced sentence. Sergeant Hill also talked about "doing the right thing for [his] stepson, showing him that being truthful and honest is the right thing to do." Hill told defendant that if he did not come forward, the police would arrest his wife and put his stepson in a foster home. On the other hand, Hill promised an hour-long visit with his family if he confessed. Defendant testified that he was scared and was also concerned about his wife because she had had a recent tubal pregnancy. Hill let him smoke while they talked even before he decided to confess.
When asked to summarize the deal that he reached with Sergeant Hill, defendant testified: "That . . . I was gonna be able to smoke while Im giving the confession. I was going to be allowed to visit my wife and stepson, medical attention, and that he would go to the D.A.s Office for leniency for confessing but I had to do all — I had to confess before the promises [were] given to me." Defendant acknowledged that Hill did not promise any particular sentence, but defendant thought that it would be in the 10- to 15-year range. Hill told defendant that the deal was between the two of them and indicated that defendant should not tell the others about it. When directly asked why he did not later tell Detectives Wright and Stevenson about it, defendant responded: "I felt that since they were saying that I cant make deals, um, if I would have said something to them, that what me and Craig Hill talked about, that all the deals would have been off pretty much."
With respect to his injury, defendant indicated that someone looked at it when he was later booked in the jail. A couple of weeks later, a doctor actually treated the injury.
C. Videotaped Confession
Defendant was brought back to the interview room to speak with Detectives Wright and Stevenson.
Defendant subsequently said: "So how can we help each other?" Detective Wright responded by reminding defendant of his Miranda rights, and defendant asked whether he would have to testify "against them." Detective Wright assured him that he did not have to testify unless he wanted to do so. But Detective Wright also told defendant that anything he told police would be in the record and available to the attorneys of anyone arrested in the case.
Detective Stevenson asked if that answered defendants question, and defendant responded, "Um — yeah, but like I was telling him — um — cant — there be another way that I could set em up of, you know what Im saying, like where we jump a fence at, fingerprints and shit like that. You know what Im saying?"
Detective Wright explained that they were concerned about the homicide in this case and that it was not like a drug case where a controlled buy could be arranged. Defendant said, "So its putting my wife and stepson in danger more jeopardy then." Detective Wright told defendant that it was "putting everybody in a lot of jeopardy," but that the police were going to do what it took to solve the murder and he could not make defendant any promises.
Detective Wright emphasized: "Only the district attorneys office can make promises. We cant, and I want you to know ahead of time before you say anything else we do not have the authority to make any promises, or threats, or anything to you. . . . Its totally up to the D.A.s office. We are just basically the people who get the facts and give it to the D.A.s office, and Im not gonna mislead you and make you think that we can work deals out with you or anything like that. . . ." Defendant responded: "I didnt — all — Ill say it. I just want to be able to explain to my wife. You know what Im sayin? I need to talk to her, and then I can give you these guys." Wright answered, "Well, we — we can arrange for you to meet with your wife, but in order for you to talk to us we just need you to be able — we need you to be willing to talk to us — um — on your own — your own — basically, your own decision. Your wife and your stepson are not here right now. Theyve already been taken home."
Defendant subsequently said: "Um — like I was talking to the other guy, you know, Ill tell you the truth, you know what Im sayin, now. [P] . . . [P] I know you cant make promises. Just let me see my wife. You know what Im sayin? Um — I dont know the streets[] names and stuff. I just know how to get there to where they all are."
Defendant then proceeded to tell the detectives about other men involved in the robbery and to describe what had occurred. But defendant continued to express concern about his confederates learning that he had told on them.
Defendant later acknowledged that he was "through" and did not want to protect anyone other than his wife and stepson. Defendant asked about "the other guy," apparently referring to Sergeant Hill. Detective Wright indicated that Hill may have been going to pick up defendants wife and stepson. Detective Wright also told defendant that he could not make any promises but would see if they could be brought into the interview room.
When Detective Stevenson later asked defendant why he was "finally telling" them what had happened, he said: "Just not being with my wife and my stepson, fucking I wish I could die. You know? Thought about that when the [SWAT team] came."
When Detective Stevenson again asked defendant why he had told police what had happened and what had changed since earlier that afternoon, defendant answered: "All kinds. You know what Im saying? I never wanted to rat my friends out. You know what Im saying? Especially Albert. Were like brothers." Detective Stevenson said, "But?" and defendant continued, "My wife, and my stepson, my father. Theres times that after this happened you guys came around talking. Just wanted to go out and blast myself. . . . Ill never get to hold my wife again or my stepson."
Defendant later referred to someone else who was involved in the offenses and again asked about a deal. The detectives reiterated that it was normally the responsibility of the defense attorney and prosecutor to negotiate deals in these types of cases. Defendant remarked that he could get "twenty-five to life" and did not "see them dropping it." The detectives allowed defendant to smoke during part of his discussion with them.
When defendants wife and stepson were available, Detective Stevenson told defendant that he would not have the whole night to talk to them. Defendant said, "Yeah. He said he was gonna try to give me an hour and stuff." Although defendant was left alone with them, the videotape continued to record their conversation. Defendants wife asked at one point why he did "this," apparently referring to his confession. Defendant said, "Cuz they wanted me to roll over on everybody. I did it so I could see you guys." Referring to Hill, defendant said, "[He] kept talkin about shit. Said, come on. Come on, man. Know what Im sayin? You know thats your kid." Defendant told his wife that he was facing a potential life sentence, although he later suggested that "maybe" the D.A. would work for him.
Sergeant Hill subsequently returned and spoke with defendant. Defendant promised to have his wife arrange to get the gun that he had used in the crime. Hill responded, "Okay. Everything else is pretty squared away, though, as far as your honest answers?" Defendant agreed but subsequently asked, "What else can I give to beat this?" Hill indicated that defendant should not be so concerned about escaping responsibility for his actions and that he should face the consequences. Defendant agreed, but he complained about "doin time" and mused "that means I can never have babies."
D. The Trial Courts Ruling
After oral argument, the trial court gave a lengthy explanation of its decision. The court commented that it did not think that there was an issue concerning defendants wound, his drug intoxication, or "the visitation" — although the visitation was "closer." The court concluded that the case turned on the credibility of defendant and Hill, and said that it believed that Hill was truthful about being unable to recall what had happened in the elevator. The court questioned defendants credibility based on his criminal record but further commented that "both sides" were "trying to protect themselves."
The court found no direct indication in the transcript of a purported deal between defendant and Hill and emphasized that it was difficult to believe defendants explanation that Hill had told him to keep any such arrangement between themselves. In conflict with any arrangement, the court noted that defendant had stated that he had understood his life was over. The court also observed that defendant knew that he could be charged as the shooter and that the detectives had warned him that they could not make any promises.
Further, the court emphasized that defendant told his wife that he had confessed so that he could see his family. The court stated, "Thats the motivating factor. Because he testified [that] his prime concern was with his wife, wanting to see her, especially after the tubal pregnancy and miscarriage."
Referring to Deputy Minters purported conversation with Detective Stevenson that recounted that Hill had told defendant that Hill could call the district attorneys office to work out a deal, the court commented that Minters credibility "suffers so that we dont know what to believe." The court explained: "Maybe she told Elaine Stevenson what Stevenson says. Maybe she didnt. She said she didnt. And then even if she did tell Stevenson that, maybe it was true or maybe it wasnt. [P] Doesnt sound like she meant it to be any sort of an official report or wanted any action done. It sounded — for all I can tell it was just gossip. You know sort of just like between you and me. Probably maybe realized that Stevenson wouldnt do anything about it. [P] At any rate, I think the bottom line is that, um, I just dont believe that Hill said I will go over to the D.A.s Office and get you less time." The court found by a preponderance of the evidence that "that promise of leniency was not in fact made."
The court concluded: "Its just hard for this Court to believe that youve got the subordinates like Wright and Stevenson who are so conscientious that theyre working for a supervisor that is just absolutely out of control as far as caring about peoples constitutional rights. [P] Just doesnt — I — I — I watched them all testify and, um, and again I think the bottom line — the main issue is the credibility of Hill versus [defendant]. And I think the nod has to go to Craig Hill. So I will accept his representation that he never said it."
While discussing the matter with the parties before actually rendering its decision, the court acknowledged the possibility that Hill was "selectively remembering what happened." But the court said it was hard for it to "swallow" that arguably one of the most experienced and knowledgeable homicide detectives committed such a blatant violation of someones constitutional rights in the presence of a subordinate.
Finally, as to defendants physical and mental condition, the court noted that defendant was responsive, although he appeared to be somewhat sleepy. The court further found that defendant was lucid, his speech was not slurred, and there was no pressure or intimidation from the detectives.
DISCUSSION
As noted earlier, defendant claims that his confession was involuntary under the federal and state Constitutions because it "was elicited by promises of leniency and by a contact visit with his family."
I. The Legal Standards
"A defendants admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. [Citations.] A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. . . . [P] In deciding the question of voluntariness, the United States Supreme Court has directed courts to consider the totality of circumstances. [Citations.] Relevant are the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity as well as the defendants maturity [citation]; education [citation]; physical condition [citation]; and mental health. [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 659-660, 941 P.2d 752.) The ultimate question " is whether defendants choice to confess was not "essentially free" because his will was overborne." (People v. Massie (1998) 19 Cal.4th 550, 576, 967 P.2d 29.)
"On appeal, the trial courts findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial courts finding as to the voluntariness of the confession is subject to independent review." (People v. Massie, supra, 19 Cal.4th at p. 576.)
II. Promise of Leniency
Defendant complains that "the courts factual findings were not supported by substantial evidence."
Defendant argues that "the court accepted Hills version of his contact with [defendant] because, in its view, neither [defendant] nor Minter were credible, and it was unthinkable that an experienced detective would violate a suspects constitutional rights." But defendant asserts that his own credibility was corroborated by his subsequent comments to police and his family and by Stevensons second-hand account of the conversation in the elevator, whereas Minters account of the elevator conversation was biased, and the trial court acted unreasonably to the extent that it credited Hill because he was an experienced police detective. He explains that his comments about how he and Wright could help each other at the beginning of the May 4 interview after his conversation with Hill showed that "[defendant] was responding to Hills offer of a deal." And he argues that his question to Detective Stevenson — "like I was telling him [Hill] . . . [could] there be another way that I could set em up" — suggested that there was a deal.
First, defendant significantly overstates the extent to which his account of what occurred is corroborated by his statements during the interviews. Defendants cited comments were ambiguous, including his question to the detectives asking how they could help each other and his later inquiry concerning whether there was any other way of setting up his confederates.
Second, and more significantly than his ambiguous comments, defendant made many comments that belie his contention of a promise of leniency. Indeed, when defendant was directly asked why he had decided to confess, he did not refer to any supposed arrangement for leniency. Instead, he answered, "Just not being with my wife and my stepson, fucking I wish I could die. You know? Thought about that when the [SWAT team] came." Asked a second time what had changed from earlier in the afternoon, defendant said, "All kinds. You know what Im saying? I never wanted to rat my friends out. You know what Im saying? Especially Albert. Were like brothers."
Moreover, just before he confessed, defendant said, "I know you cant make promises. Just let me see my wife. You know what Im sayin?" And after he confessed, defendant did not ask for performance of any leniency arrangement but instead asked, "Can I work a deal with him?"
These are not the statements of someone who made an arrangement for leniency before he confessed.
And defendants explanation that Hill had told him not to tell the others is patently suspect, particularly in light of the fact that when he was alone with his wife and stepson and she asked him why he did "this," he again failed to refer to any arrangement for leniency. Instead, he said, "Cuz they wanted me to roll over on everybody. I did it so I could see you guys." Indeed, referring specifically to Hill while talking with his wife, defendant did not refer to any arrangement, but said, "[He] kept talkin about shit. Said, come on. Come on, man. Know what Im sayin? You know thats your kid." Additionally, in direct conflict with an arrangement for leniency, defendant told his wife that he was facing a potential life sentence, although he speculated that "maybe" the D.A. would work for him.
Accordingly, defendants own statements to the detectives, immediately before and after he confessed — including his failure to refer to any arrangement when directly asked why he confessed — and his statements to his wife giving other reasons for his decision to confess, are substantial evidence that no arrangement for leniency had been promised.
Third, the absence of any promise of leniency is further supported by the fact that after he spoke with Hill and before he gave his confession, defendant was warned repeatedly by Detective Wright that the police were not in a position to make any promises and that only the district attorneys office could make promises. Wright emphasized: "Only the district attorneys office can make promises. We cant, and I want you to know ahead of time before you say anything else we do not have the authority to make any promises, or threats, or anything to you. . . . Its totally up to the D.A.s office. . . . Im not gonna mislead you and make you think that we can work deals out with you or anything like that." Defendant even acknowledged: "I know you cant make promises."
Although defendant argues that Detective Stevensons second-hand account of the elevator conversation between her and Deputy Minter is the most credible, the trial court did not have to credit Stevensons testimony on this point, which, after all, reported a conversation that was made a year after the event and which recounted a conversation that had none of the earmarks of precision. Rather, the court reasonably commented on the informal circumstances in which the statement was purportedly made and noted that even if Minter had said it, she may not have meant it to be more than gossip. The court emphasized that the bottom line was that it did not believe that Sergeant Hill had "said I will go over to the D.A.s Office and get you less time."
We conclude that substantial evidence supports the trial courts finding that no promise of leniency was made. "The trier of fact is the sole judge of that credibility [citation], because only the trier of fact has the opportunity to observe and hear the witnesses." (People v. Jackson (1992) 10 Cal.App.4th 13, 20.) And in crediting Hills testimony, the court emphasized that it watched all the witnesses testify.
""To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions."" (People v. Barnes (1986) 42 Cal.3d 284, 306, 228 Cal. Rptr. 228, 721 P.2d 110; cf. People v. Franz (2001) 88 Cal.App.4th 1426, 1447.) Here, Hills testimony concerning the absence of promises is neither impossible nor obviously false. To the contrary, his testimony that no promises were made is consistent with the fact that defendant never told the detectives or his wife of any such deal when directly asked about the reason that he decided to confess.
Defendant also complains that given the academic literature concerning a police code of silence, "the courts reluctance to believe that an officer would violate someones constitutional rights is . . . not based on substantial evidence." But the courts comment that it was hard to believe that subordinates like Wright and Stevenson would work for a supervisor who did not care about peoples constitutional rights did not suggest that the court failed to evaluate the evidence. To the contrary, immediately after the court made this comment, the court emphasized that it "watched them [the witnesses] all testify" and that the "nod" went to Hill over defendant on the issue of credibility. Accordingly, there was substantial evidence to support the trial courts findings.
III. Family Visit
Defendant also argues that "by promising [him] a contact visit if he told the truth, Hill exploited one of [defendants] weaknesses."
It is true that Hill at one point testified that he told defendant that if he spoke again with Detectives Wright and Stevenson and was truthful, Hill would arrange a visit for him with his wife and stepson. And defendant told his wife that he had confessed "so I could see you guys."
But defendant knew that he would have the opportunity for visits with his family on later occasions, and in fact, Detective Stevenson told defendant before his conversation with Hill on May 4 that his wife was planning on visiting him the following day.
Moreover, just before he confessed, defendant told detectives that he needed to talk with his wife and "then I can give you these guys," but Detective Wright answered, "We need you to be willing to talk to us — um — on your own . . . . Your wife and your son are not here right now. Theyve already been taken home." Defendant then said, "I know you cant make promises. Just let me see my wife." Yet, defendant then proceeded to relate the identities of his confederates and the circumstances of the crime, despite the absence of any promises from the detectives concerning a visit.
Given the totality of the circumstances, there is no reason to believe that "defendants choice to confess was not "essentially free" because his will was overborne" by the inducement of a days earlier contact with his family. (People v. Massie, supra, 19 Cal.4th at p. 576.) "Such an ephemeral benefit cannot reasonably be regarded as sufficient to cause a person to admit against his will the killing of another human being." (People v. Morris (1991) 53 Cal.3d 152, 201, 279 Cal. Rptr. 720, 807 P.2d 949, disapproved on another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, 889 P.2d 588.)
Indeed, our state Supreme Court has found that similar, relatively insignificant inducements have not rendered confessions involuntary. (See People v. Morris, supra, 53 Cal.3d at p. 201 [five-minute talk with girlfriend]; People v. Hendricks (1987) 43 Cal.3d 584, 591, 238 Cal. Rptr. 66, 737 P.2d 1350 [defendant provided with whiskey and Bible].)
For the same reasons, any leniency shown by police with respect to allowing defendant to smoke is not the type of inducement that can render his confession involuntary. Moreover, Hill let defendant smoke even before he decided to confess.
IV. Totality of the
Circumstances
Defendant also claims that the trial court did not properly consider evidence of his mental and physical state at the time of the police interviews. He explains: "First, it found that [defendants] drug use was a non-issue because he seemed sleepy rather than agitated on the videotape. But whether [defendants] drug reaction was waning rather than waxing, it was a factor in evaluating his response to interrogation. [Citation.] Second, while [defendant] may not have appeared to be in pain, he told Wright and Stevenson that he was feverish and that the wound appeared to be infected. This too should have been considered by the court."
Defendant concludes: "Finally, the bunch of carrots was offered to [defendant] after an acrimonious interrogation by Wright and Stevenson, who did not disguise their disbelief and who suggested, repeatedly, that they knew [defendant] was not the shooter." Defendant claims that in light of the totality of the circumstances, the trial court erred in finding the confession to be voluntary. We disagree.
First, the trial court reasonably determined that under the circumstances defendants mental condition was not a significant issue. The court specifically found that defendant was "lucid" and commented that his speech was not slurred. In fact, defendant was mentally alert and well oriented to his surroundings and the seriousness of the situation, as evidenced by his lengthy discussion with the detectives before his eventual confession. Defendant initially sought to explain that he was innocent, and when it became clear that the detectives did not believe him, he began to hint at the possibility of some type of negotiated agreement. Defendant continued to evaluate and consider the potential dangers of disclosing to police what had occurred even after speaking with Hill. Under the circumstances, there is simply no reason to believe that defendants confession was the result of the police taking advantage of his mental state or weakened condition. Defendant appears to have acted in the manner that he thought best with a full appreciation for the seriousness of his situation.
Second, when police arrested defendant on May 4 at a motel, police found some marijuana but no methamphetamine or related paraphernalia.
Third, to the extent that police expressed doubts as to defendants initial denial of responsibility, there is nothing improper about that police conduct. The detectives had information that defendant was involved, and he gave two suspect explanations for how he sustained the injury to his shoulder, including that he had fallen on a board with a nail in it. Moreover, defendant admitted at the evidentiary hearing that both Detectives Stevenson and Wright had been "very nice" to him.
Fourth, to the extent that Sergeant Hill sought to convince defendant to confess by speaking about defendants family, we likewise find nothing improper in that conduct. The court credited Hills testimony over defendants, and Hills testimony does not indicate that he made any improper threats. At most, Hill indicated that defendants stepson would appreciate his honesty and that his wife might be arrested if it was later revealed that she had concealed information. But "investigating officers are not precluded from discussing any advantage or other consequence that will naturally accrue in the event the accused speaks truthfully about the crime. [Citation.] The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable." (People v. Ray (1996) 13 Cal.4th 313, 340, 914 P.2d 846.)
In short, the trial court did not err in concluding that defendants confession was voluntary under the totality of the circumstances. Defendant was repeatedly advised of his Miranda rights; he was experienced with the criminal justice system and knew he did not have to talk; he was repeatedly told that no promises could be made and even acknowledged that he knew that; Detectives Stevenson and Wright used no subterfuges to elicit his confession and instead made extensive efforts to ensure that defendant gave a voluntary statement; and the record unequivocally indicates that defendant continued to reflect on his situation and the potential consequences of his actions before, during, and after his confession. He ultimately decided to unburden himself with a full appreciation of the relevant circumstances and the consequences.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., RAYE, J.