Opinion
H029442
5-25-2007
THE PEOPLE, Plaintiff and Respondent, v. WILLIAM VASQUEZ MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
Defendant William Martinez was convicted after jury trial of one count of attempted premeditated murder (Pen. Code, §§ 664, subd. (a), 187, 189), and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury further found that defendant personally used a deadly and dangerous weapon during the commission of the offenses, to wit, a knife during the attempted murder and one assault, and an automobile during the other assault (§§ 12022, subd. (b)(1), 1192.7); and that all the offenses were committed for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)). The trial court denied defendants motion for a new trial and sentenced him to the indeterminate term of 15 years to life, consecutive to the determinate term of one year.
All further statutory references are to the Penal Code.
On appeal defendant contends that (1) the trial court prejudicially erred in denying his motion to suppress evidence; (2) the prosecution prejudicially failed to preserve material evidence; (3) counsels failure to timely request preservation of that evidence constituted ineffective assistance; and (4) the trial court prejudicially erred in giving CALJIC No. 3.02. We disagree with all of these contentions and therefore affirm the judgment.
II. BACKGROUND
Defendant was charged by first amended information, along with Isaac Rene Marquez, with one count of attempted premeditated murder (§§ 664, subd. (a), 187, 189; count 1), and three counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 2-4). The information further alleged that defendant personally used a deadly and dangerous weapon during the commission of all four offenses, to wit, a knife during the commission of counts 1 through 3, and an automobile during the commission of count 4 (§§ 12022, subd. (b)(1), 1192.7); and that all the offenses were committed for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)).
Pursuant to section 1538.5, defendant filed a motion to suppress evidence, observations, and the fruits thereof, relating to a search and seizure by police officers on June 12, 2003, the day of the alleged offenses. The People filed opposition to the motion. Following a hearing, the trial court denied the motion on April 7, 2004.
On October 28, 2004, defendant filed a motion to dismiss the information, arguing that the vehicle used by the complaining witness on the date of the alleged offenses was material evidence that the prosecution failed to preserve. Following a hearing, the court denied the motion on November 3, 2004. On the same day, the court granted Marquezs motion to dismiss the charges against him pursuant to section 1382.
A. The Prosecutions Case
1. The June 12, 2003 incident
Sometime around noon on June 12, 2003, Martin Franco was driving a white Subaru on King Road with Rigoberto Martinez Vasquez in the passenger seat. A white Suzuki driven by defendant and with another male as a passenger pulled up beside the Subaru. Franco saw the passenger make a Norteno-gang hand signal, showing four fingers, and he heard the derogatory term "scrap" being yelled. Franco, who used to be a member of a Sureno gang, and who has gang tattoos, "flipped them" and accelerated, but the Suzuki followed him and repeatedly bumped into the sides and the rear of the Subaru. The Subaru also hit the Suzuki once when the Suzuki blocked its exit from a parking lot.
Franco testified that he has prior convictions for giving a false name to police.
Vasquez testified that he has prior convictions for auto burglary, giving a false name to police, and misdemeanor reckless driving. He was deported and he returned to this country without permission.
Franco turned on Story Road and had to stop behind traffic at the light at Story and McLaughlin. While Franco was stopped, the Suzuki rammed the Subaru from the rear, causing it to hit a truck in front of it. Franco got out of the Subaru and ran across the street when he saw defendant get out of the Suzuki with a knife in his hand and start to follow him. Looking back, Franco saw the passenger get out of the Suzuki with a knife in his hand and run to the passenger side of the Subaru. Franco saw Vasquez trying to take off his seatbelt inside the Subaru, and then saw defendant return to help defendants passenger. Franco ran to a nearby public phone and called the police. The police arrived about 10 to 15 minutes later. The next time Franco saw Vasquez, he was in an ambulance and unconscious.
Vasquez received stab wounds to his left chest, his left hand, his right leg, and two places on his left leg. He was still inside the Subaru when he was stabbed. He kicked at the stabber, causing the stabber to fall, and then he ran. He heard the Suzuki driver yell at the stabber to chase after him. Vasquez ran to a store and the store owner helped him call the police. The police and an ambulance came. Vasquez lied to the police and told them that he had been at a bus stop. He eventually passed out. Vasquez identified Marquez at trial as the stabber.
Franco described the Suzuki driver to the police as an Hispanic male with short hair and a pony tail, wearing gray pants and a black Raiders jersey. He described the passenger as a shorter and heavier Hispanic male with short hair, wearing black shorts and a white or gray shirt, and having a tattoo on his arm. At the police station around 6:40 p.m., on June 12, 2003, three people were shown to Franco and he identified two of them; he identified defendant as the driver and Marquez as the passenger of the Suzuki. Franco also identified defendant at trial as the driver of the Suzuki.
Vasquez described his stabber to the police as having a little patch of hair under his lip and wearing black baggy shorts and a red 49ers jersey. On June 24, 2003, Vasquez was shown a photo lineup, and he identified Marquez as the stabber but could not identify defendant as the Suzuki driver.
Around 2:45 p.m. on June 12, 2003, Marquez was driving a dark SUV, with defendant and a third person as passengers, about three or four miles from Story and McLaughlin, when San Jose Police Sergeant David Newman contacted them. All three of the SUV passengers were immediately taken to the police station.
The parties stipulated that the Suzuki was seized by San Jose police at 10:00 p.m. on June 12, 2003, at 567 South 8th Street in San Jose, and that on that date Marquez lived at 447 South 7th Street. The parties further stipulated that the Suzuki is owned by defendants girlfriend. Fingerprints taken by police from the inside window of the drivers door of the Suzuki matched defendants prints. Paint chips taken from the Subaru and Suzuki indicate that the Subaru and Suzuki very likely came in contact with each other. The police found a blue bandana inside the glove compartment and a red baseball cap on the drivers seat of the Suzuki.
2. The gang evidence
San Jose Police Detective Nicholas Speaks testified as an expert in Hispanic criminal street gangs. Norteno gang members identify with the color red, and the number 14. Sureno gang members associate with the color blue and the number 13. One of the primary activities of Norteno gangs is to assault Sureno gang members, who are their rivals. When challenging Sureno gang members, Norteno gang members will commonly display four fingers. On June 6, 2002, a validated Norteno gang member, along with eight to ten others, several of them wearing red, severely beat a victim perceived to be a Sureno gang member. On October 17, 1997, two Norteno gang members, along with several others, threw items at a Sureno gang member outside the victims home, which was in Norteno gang territory. The victim was hit in the head with a brick, and the group fled when the victim was able to get inside his home and the victims mother started to come outside.
Detective Speaks further testified that, in his opinion, Marquez and defendant are Norteno gang members, and that the stabbing on June 12, 2003, was committed in association with, and for the benefit of, a Norteno street gang. Marquez has been associated with a Norteno gang, he frequents the gang territory, he has been contacted by police while with validated Norteno gang members, and he has participated in crimes against Sureno gang members. He has Norteno gang tattoos and he was wearing a red 49ers jersey when he was stopped by police on June 12, 2003. Defendant has associated with validated Norteno gang members while wearing red clothing, he has Norteno gang tattoos, he has admitted to officers and CYA staff that he is a Norteno gang member, and he has participated in group attacks by Norteno gang members on Sureno gang members. Franco was a validated Sureno gang member and Vasquez is a Sureno gang associate. Defendant and Marquez displayed a Norteno gang sign and yelled an insult to Sureno gang members on June 12, 2003; Franco admitted that he "flip[ped] off" the Norteno gang members, which is a direct insult that cannot go unchallenged; and the two cars hit and sideswiped each other during the incident.
B. The Defense Case
Detective Speaks testified that defendant has not admitted being a member of a Norteno gang, and no Norteno gang member has ever stated that defendant belongs to his gang. Defendant participated in a gang renunciation program at CYA to have gang tattoos removed, but defendant also participated in a gang-related attack at CYA following his involvement in that program. The detective was not aware of any evidence that any of the men involved in the June 12, 2003 incident knew each other prior to that incident.
Robert Lindskog testified as an expert in accident reconstruction that, in his opinion, based upon his examination of the Suzuki and photographs of the Subaru, the Subaru steered into the side of the Suzuki. The Suzuki also received damage to its rear bumper from the side, but the damage was not caused by being rear-ended by the Subaru. The Subaru received damage to its rear bumper but not to its front bumper, and the damage to its rear bumper was not caused by being rear-ended by the Suzuki, unless it was rear-ended at a very low speed.
Dr. Richard Kline testified that he treated Vasquez at San Jose Medical Center for stab wounds on the afternoon of June 12, 2003. Vasquezs chest wound and right leg wounds were superficial, and he was awake and alert. After treatment, all of his wounds were non-life-threatening. However, the laceration to his left hand severed the tendon of a finger, resulting in his inability to flex that finger and requiring surgery.
C. Rebuttal Evidence
Detective Speaks testified that the distance the Subaru traveled from the first confrontation to where it stopped at Story and McLaughlin is one mile. In that stretch of road, there are several intersections or exits a driver could take.
San Jose Police Officer Kevin Cassidy testified as an expert in accident reconstruction that, in his opinion after having examined the Suzuki and photos of the Subaru, the damage to the rear bumper of the Suzuki was caused by a sideswiping collision and not a rear-end collision. However, it is possible that the Subaru rear-ended the Suzuki. It appears that the Subaru was rear-ended by a vehicle going about 15 miles per hour, and that the right front damage to the Subaru was caused by contact with the left front of the Suzuki while the Subaru was going faster than the Suzuki.
D. The Verdicts and Sentencing
On December 2, 2004, the jury found defendant guilty of attempted premeditated murder (§§ 664, subd. (a), 187, 189), and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)). The jury further found that defendant personally used a deadly or dangerous weapon during the commission of the offenses, to wit, a knife during the attempted murder and one assault, and an automobile during the other assault (§§ 12022, subd. (b)(1), 1192.7); and that all the offenses were committed for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)). The jury found defendant not guilty of a third count of assault with a deadly weapon.
On June 29, 2005, defendant filed a motion for new trial. On October 6, 2005, the trial court denied the motion for new trial and sentenced defendant to the indeterminate term of 15 years to life, consecutive to the determinate term of one year.
III. DISCUSSION
A. The Motion to Suppress
1. The hearing on the motion
Defendant filed a motion to suppress evidence, observations, and the fruits thereof, relating to a search and seizure by police on June 12, 2003. (§ 1538.5.) Defendant contended that he was unlawfully detained and arrested without probable cause, and that any statements he made to police were coerced and involuntary, thereby requiring suppression of all resulting physical evidence seized. The prosecutor filed opposition to the motion, contending that defendant was lawfully detained and was later arrested with probable cause, and that his statement regarding the location of the Suzuki was not coerced. The trial court held a four-day hearing on the motion. The evidence at the hearing was as follows.
On June 12, 2003, around noon, San Jose Police Sergeant David Newman and Officer John Hutchings were dispatched to a report of a hit-and-run and stabbing at Story and McLaughlin. The suspect vehicle was a white Suzuki with front end damage. The driver of the suspect vehicle was described as an Hispanic male, 22 to 23 years old, 140 pounds, 58", with a Mongolian-style haircut and wearing a black shirt and gray pants. The passenger of the suspect vehicle, who was involved in the stabbing, was described as an Hispanic male, 22 to 23 years old, 59", with a husky build and wearing a white jersey, possibly with a Raiders emblem, and black shorts. The suspects were also described as Norteno gang members. Hutchings recalled that he had contact with defendant when defendant was driving a white Suzuki in March 2003 near where the current stabbing incident began on King Road. At the time of that March 2003 encounter, defendant had long hair but not a ponytail, and he otherwise matched the general description of the Suzuki driver. Defendant was wearing a large hooded red sweatshirt associated with Nortenos, and subsequently Hutchings learned that defendant was a validated Norteno gang member. Hutchings told Newman about his contact with defendant.
Sergeant Newman described a Mongolian-style haircut as "a very closely shaved head [with] a small patch on top, it could be anywhere from a very short pigtail to a very long ponytail."
Sergeant Newman contacted the gang investigation unit and learned that defendant had also been stopped on March 25, 2003, driving a 1998 white Suzuki with license plate 4BPX977. Defendant was described as an Hispanic male, 25, 58", 150 pounds, and associating with a Norteno gang. Newman obtained a photograph of defendant and some associated addresses. Newman parked his unmarked patrol car near one of the addresses and saw a big, dark SUV with three people inside turn into the street and pass the patrol car. The front passenger appeared to Newman to be defendant, and the two of them made eye contact. From what Newman could see, the clothing of the SUVs occupants did not match the suspects clothing, and Newman could not tell whether the front passenger had facial tattoos matching defendants picture or whether he had a Mongolian-style haircut. Newman stopped the vehicle at 2:45 p.m., requested assistance, and asked the driver, Marquez, for identification. Marquez said that his license was suspended. Newman asked the SUVs occupants to stay in the vehicle then waited for assistance.
After other officers, including Officer Hutchings, arrived, Sergeant Newman asked each SUV occupant to individually exit the car, and the officers pat-searched and handcuffed them. Newman and Hutchings noted that defendant, the front passenger, had a Mongolian-style haircut and was wearing gray pants. Marquez was wearing a red 49ers jersey and black sweatpants. Hutchings searched defendant and took him aside, unhandcuffed. He told defendant that an accident had occurred earlier that day, that he thought the Suzuki associated with defendant might be involved, that an investigation was occurring, and that he wanted defendant to accompany him to the police station in order to talk to detectives about it. Defendant said that he did not have anything to say to the police, but that he would accompany Hutchings to the police station if Hutchings wanted him to. Hutchings told defendant that, because he was going voluntarily, Hutchings would give him a ride in the patrol car and he would be handcuffed for officer safety reasons, but he would be unhandcuffed upon their arrival. Defendant said "yeah, do whatever you want," and was then handcuffed and placed in the back of a patrol car.
Officer Hutchings and his partner drove defendant to the witness interview center at the police station. The doors to the individual interview rooms at the center are not locked because witnesses go there voluntarily; if witnesses decline to be interviewed, they are escorted out of the building. One needs a key to open the door to the interview center from outside, but the door can be opened from the inside without a key. Upon their arrival at the gated parking lot of the center, Officer Hutchings unhandcuffed defendant and told him that he was free to leave. Defendant voluntarily entered the center alongside Hutchings and behind his partner. Hutchings spoke to defendant in an interview room with the door open. He did not Mirandize defendant. He completed a witness interview information sheet, during which time defendant said that his girlfriends name was Mona Hernandez. Hutchings knew that Hernandez was one of two registered owners of the white Suzuki. Hutchings reminded defendant that he was not under arrest and that he was free to leave. Hutchings advised detectives that defendant was ready to be interviewed, then waited nearby.
Miranda v. Arizona (1966) 384 U.S. 436.
Detectives Ted Reckas and Speaks interviewed defendant with the door closed. They did not Mirandize defendant, but Reckas told him that he was not in custody and that he was free to leave. Defendant said that the Suzuki belonged to his girlfriend and that she was driving it that day. Defendant became upset and said, " `arrest me or let me go. " When Reckas asked defendant why he was being so defensive, defendant said, "`I dont want to say anything else. " The detectives left the room and defendant remained.
The detectives told Officer Hutchings that they were done interviewing defendant and that defendant would not make a statement. Hutchings re-entered the interview room, leaving the door open, and sat across from defendant, in silence, for several minutes. Defendant put his head down on the table, closed his eyes, and crossed his arms. Hutchings then stated that he was puzzled as to why defendant would not provide the location of the Suzuki so that officers could look at it and rule him out as a suspect. Hutchings truthfully stated that officers were now looking for a white Suzuki with front-end damage, that there was a real possibility that they would make a traffic stop on defendants Suzuki, and that officers might respond to the stop with guns drawn and take the occupants out of the vehicle at gunpoint. He further truthfully stated that, if Hernandez or their child were in the vehicle at the time, they might be in danger. Defendant said that Hutchings should talk to Hernandez since the Suzuki was her car.
Officer Hutchings went right outside the interview room and called the number for Hernandez that defendant had previously given him. Hernandez answered the phone. Hutchings identified himself and told Hernandez that he was investigating a crime and that the suspect was described as leaving the scene in a white Suzuki similar to the one registered to her. Hutchings said that defendant was at the police station and would not say where the Suzuki was, but defendant had suggested that Hutchings talk to the cars owner. He asked Hernandez whether she knew the location of her car, and Hernandez said that she was not going to give any information until she spoke to defendant. Hutchings offered to put defendant on the line, but Hernandez said that she wanted to speak to defendant in person. Hutchings asked defendant, who was standing in the interview room doorway, whether he would like to speak with Hernandez on the phone, but defendant answered negatively. Hutchings told Hernandez that, if she was unwilling to cooperate, it would lead him to believe that she was concealing evidence. He also said that, if he found that to be the case, he would have her charged as an accessory and for impeding the investigation. He then ended the conversation and hung up the phone.
Officer Hutchings returned to the interview room and told defendant that, because defendant and Hernandez were unwilling to provide any information on the location of the Suzuki, he could only conclude that they were involved in the crime. He said that defendant was under arrest, placed defendant in handcuffs, and took defendant through a secure door to the preprocessing center. He told defendant that Hernandez would be coming to the station for an interview, and that she would be arrested as an accomplice if she did not cooperate. He placed defendant in a holding cell.
Officer Hutchings determined where Hernandez had been speaking from and directed officers to that home. Officers looked for the Suzuki there and searched the home. They found Hernandez and requested that she go to the police station with the Suzuki. Hernandezs mother drove her to the police station three to four hours after defendant was arrested.
Officer Hutchings spoke to Hernandez and her mother in the same witness interview room where he had spoken to defendant. Hutchings told Hernandez that defendant was arrested for being the driver of the white Suzuki involved in a stabbing at Story and McLaughlin. He requested that she, as the registered owner, present the Suzuki so that it could be examined by police. Hernandez said that she did not know where the Suzuki was. Hutchings asked Hernandez whether she remembered lending the car to anyone that day, and she replied that she did not lend it to anyone. Hutchings told Hernandez that, if she did not know the location of the car and did not lend it to anyone, she should report the car as stolen. Hernandez said that she did not want to report the car as stolen. Hutchings said that he felt that it was unreasonable for the owner of a car to not have any interest in its whereabouts, and that he believed she was willfully concealing the car in order to impede the investigation. He then arrested Hernandez for being an accessory to an assault with a deadly weapon and for obstructing a peace officer in the performance of his duty.
Officer Hutchings handcuffed Hernandez and had her taken to the preprocessing center. He separately went to the preprocessing center to inform the detectives about Hernandezs arrest. Defendant, who could see Hernandez from his holding cell, started yelling. Staff directed Hutchings to contact defendant to find out why he was yelling, and Hutchings did so. Defendant asked Hutchings why Hernandez was there, and Hutchings told defendant that Hernandez was under arrest. Defendant asked why, and Hutchings told defendant that, because Hernandez said that she did not know where the Suzuki was but would not report it stolen, he had no choice but to believe that Hernandez was concealing evidence in order to protect defendant.
Defendant then volunteered that he would tell Hutchings where the car was if Hutchings released Hernandez. Hutchings did not Mirandize defendant but said, "Im listening." Defendant said that, if Hutchings brought Hernandez into the holding cell, he would tell her where the car was and instruct her to tell Hutchings. Hutchings told defendant that, if Hernandez told him where the car was after speaking to defendant, he would have no way of knowing when she learned where the car was; it would not exonerate her from being an accomplice. Defendant said that he would not say anything then, so Hutchings left.
Defendant called Officer Hutchings back a few minutes later and asked if he could talk with Hernandez. Hutchings said that allowing defendant to talk to Hernandez would not clear her of her involvement in the crime. At this time, Hutchings stated that he would release Hernandez if defendant told him where the car was. Defendant then told Hutchings that the car was parked behind a duplex on 7th Street, between William and San Salvador. Officers went to the area where defendant said that he had parked the car, but could not locate the car. Hutchings told defendant that the car was not where he said it was, so Hernandez could not be released. Defendant suggested that somebody could have stolen the car or had it towed, and said that Hutchings had an obligation to release Hernandez simply because he gave a location where the car would be.
The 400 block of 7th Street is between William and San Salvador, and the parties stipulated at trial that Marquez lived at 447 South 7th Street.
Hutchings then directed the officers to continue and expand their search, and they eventually found the car a few blocks from where defendant said it was. Hutchings told defendant that the car had been found, that he was going to give defendant the benefit of the doubt that defendant was mistaken as to where the car had been parked, and that, therefore, Hernandez would be released. Hernandez was released and was allowed to speak with defendant.
Hernandez testified that she considers defendant family, that defendant generally has permission to drive both of her cars, and that he does not need to ask her for permission each time he wants to do so. In June 2003, defendant drove the Suzuki when he wanted or needed to, and she did not monitor his use. They shared the cars keys; defendant did not have his own key. Before June 12, 2003, she kept the original key in their room. She did not have the original key with her on June 12, 2003, and has not had it since that date.
The parties stipulated that there was no arrest or search warrant prior to seizure of the Suzuki.
In denying the motion to suppress the court ruled: "Im going to find there was probable cause for the initial car stop. Further, Im going to find that the transportation of Mr. Martinez in handcuffs to the police station following the initial car stop was without probable cause, therefore [a] seizure violating the Fourth Amendment. [¶] And in the courts view, . . . the issue is whether or not thereafter there was some intervening event or events of significance that break the causal connection between the illegal detention and statements the defendant made. [¶] Im going to find that from the time that the handcuffs were removed from Mr. Martinez at the police station, he was no longer being illegally detained. Im going to find that the circumstances at the interview center at the police station were such that a reasonable person would believe that they were free to leave and that they were there voluntarily. [¶] Im going to find that circumstance is a sufficient circumstance in attenuation of the illegal seizure that had previously taken place. [¶] Ill find that there was a reasonable cause for Mr. Martinezs arrest at or about the time he was arrested at the interview center and that his arrest did not violate the Fourth Amendment. [¶] Ancillary, Ill find that there was probable cause for the arrest of [Ms. Hernandez]. Ill find that Mr. Martinezs statements as to the location of the car following the arrest of [Ms. Hernandez] were free and voluntary. [¶] As a result, I will deny the motion to suppress the evidence which was located following the statements as to the location of the car."
Defendant contends that the trial court erred by denying his motion to suppress evidence derived from the traffic stop, the subsequent detention, and the coerced statements to Officer Hutchings. He argues that the vehicle stop of the dark SUV was unlawful, that his detention at the police station was an unconstitutional seizure, and that his statements as to the location of the Suzuki were obtained by improper coercive tactics. The Attorney General argues that the vehicle stop of the SUV was lawful, that defendant was voluntarily interviewed at the police station, that Hernandezs arrest was proper and did not cause defendant to make an involuntary statement, and that, even if defendants statement regarding the location of the Suzuki was involuntary, admission of the statement was harmless error.
2. Analysis
"`"An appellate courts review of a trial courts ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.]"" (People v. Ayala (2000) 23 Cal.4th 225, 255.) " ` "The courts resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominately one of law, . . . is also subject to independent review." [Citation.]" (Ibid.)
The trial court found that the stop of the dark SUV was lawful, but that defendant was subsequently unlawfully detained when he was taken to the police station in handcuffs. However, the court then found that defendants subsequent interview at the station was voluntary, that he was thereafter lawfully arrested, and that his subsequent statement regarding the whereabouts of the Suzuki was voluntary and not coerced. We will address each of the findings seriatim.
a. The car stop
"The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. In Terry [v. Ohio (1968) 392 U.S. 1], and subsequent cases, [the] Court has held that, consistent with the Fourth Amendment, police may stop persons in the absence of probable cause under limited circumstances. [Citation]. In particular, the Court has noted that law enforcement agents may briefly stop a moving automobile to investigate a reasonable suspicion that its occupants are involved in criminal activity. [Citation.]" (United States v. Hensley (1985) 469 U.S. 221, 226.) In addition, "if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion." (Id. at p. 229.) "Although stopping a car and detaining its occupants constitute a seizure within the meaning of the Fourth Amendment, the governmental interest in investigating an officers reasonable suspicion, based on specific and articulable facts, may outweigh the Fourth Amendment interest of the driver and passengers in remaining secure from the intrusion. [Citation.]" (Id. at p. 226.)
"As the United States Supreme Court has explained, reasonable suspicion is `something more than an "inchoate and unparticularized suspicion or `hunch," (United States v. Sokolow (1989) 490 U.S. 1, 7 . . .), but something less than probable cause, which has been described as ` "a fair probability that contraband or evidence of a crime will be found" (ibid). In the words of the high court: `Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. . . . Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the "totality of the circumstances—the whole picture," [citation], that must be taken into account when evaluating whether there is reasonable suspicion. (Alabama v. White [(1990)] 496 U.S. [325,] 330 . . . .)" (People v. Bennett (1998) 17 Cal.4th 373, 387.)
Here, Sergeant Newman had information from fellow officers that the suspects in a stabbing incident were associated with a white Suzuki and were Norteno gang members or associates, and Newman had the general descriptions of the suspects. Newman knew that defendant was associated with a white Suzuki, he understood defendant to be a Norteno gang member, and he understood defendant to match the general description of the driver of the white Suzuki involved in the stabbing. Thus, Newman had a reasonable suspicion that defendant was involved in or wanted in connection with the stabbing incident that had occurred a few hours earlier. Newman obtained a photo of defendant and went to one of the several addresses he had for defendant. There he saw a dark SUV pull out into the road and pass him. He then made eye contact with the front passenger and he believed that passenger to be defendant. Thus, Newman had a reasonable suspicion that the front passenger in the SUV was involved in or wanted in connection with the stabbing incident at the time he instituted the car stop.
The trial court properly found that Sergeant Newmans stop of the SUV was reasonable within the meaning of the Fourth Amendment. The trial court then found that Officer Hutchingss transportation of defendant to the police station while handcuffed was without probable cause and thus violated the Fourth Amendment, but that, once the handcuffs were removed from defendant at the police station, he was no longer being illegally detained and the circumstances attenuated the illegal procedure that had previously taken place. The court also found that defendants subsequent arrest did not violate the Fourth Amendment.
b. Defendants statements prior to his arrest
Not all evidence is " `fruit of the poisonous tree " simply because it would not have come to light but for the illegal actions of the police. (Wong Sun v. United States (1963) 371 U.S. 471, 487-488.) Where there are intervening factors between the initial unlawful police conduct and the later confession or admission, the prosecution may argue that a defendants statements became " `so attenuated as to dissipate the taint. [Citation.] " (Id. at p. 491.) In addition to the giving or lack of Miranda warnings, we consider the temporal proximity of the defendants statements and the unconstitutional police conduct, " `. . . the presence of intervening circumstances [and] particularly, the purpose and flagrancy of the official misconduct[.] [Citations.]" (People v. Gonzalez (1998) 64 Cal.App.4th 432, 441.)
"`Two discrete inquires are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is . . . reconstructed, the court must apply an objective test to resolve "the ultimate inquiry": "[was] there a `formal arrest or restraint on freedom on movement of the degree associated with a formal arrest." [Citations.] The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a "mixed question of law and fact". . . . [Citation.] Accordingly, we apply a deferential substantial evidence standard [citation] to the trial courts conclusions regarding ` "basic, primary, or historical facts: facts, `in the sense of recital of external events and the credibility of their narrators . . . ." (Thompson v. Keohane [(1995)] 516 U.S. [99,] 110. . . .) Having determined the propriety of the courts findings under that standard, we independently decide whether `a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave. (Id. at p. 112. . . .)" (People v. Ochoa (1998) 19 Cal.4th 353, 401-402.)
In this case, after defendant arrived at the police station with Officer Hutchings and his partner, Hutchings removed defendants handcuffs and told him that he was free to leave. Defendant voluntarily entered the witness interview center alongside Hutchings and behind his partner. Hutchings took defendant to an interview room and left the door open while he filled out a witness interview sheet. After completing the sheet, Hutchings reminded defendant that he was not under arrest and that he was free to leave. Defendant remained.
Defendant was then interviewed by two detectives in the same room, but with the door closed. The detectives did not Mirandize defendant, but they reminded him that he was not in custody and that he was free to leave. When defendant refused to answer any questions, the detectives left the room. Defendant again remained.
Officer Hutchings returned to the room and truthfully told defendant that officers were looking for a white Suzuki and that they might stop his and order the occupants out at gunpoint. Defendant told Hutchings to talk to the registered owner of his Suzuki. Hutchings called a number defendant had given, and defendant could hear Hutchings talk to Hernandez. When neither defendant nor Hernandez would give Hutchings the location of the Suzuki, Hutchings arrested defendant for the stabbing that had occurred earlier that day.
"Although the circumstances of each case must certainly influence a determination of whether a suspect is `in custody for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a `formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. [Citation.]" (California v. Beheler (1983) 463 U.S. 1121, 1125.) Thus, the appropriate standard is the " `totality of the circumstances. " (Ibid.) Courts will consider the following: (1) the site of the interrogation; (2) whether the investigation has focused on the subject; (3) whether the objective indicia of arrest are present; and (4) the length and form of questioning. (People v. Boyer (1989) 48 Cal.3d 247, 272, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824.)
Here Miranda advisements were required only after defendant was formally arrested at the police station. During the time the officers interviewed defendant prior to that point, there was no " `restraint on [defendants] freedom of movement of the degree associated with a formal arrest." (California v. Beheler, supra, 463 U.S. at p. 1125.) Officers stopped the car in which defendant was a passenger because of the reasonable belief that defendant, the front passenger, was involved in or wanted in connection with an earlier stabbing incident. Defendant said that he had nothing to say to the police regarding the earlier stabbing incident, but he voluntarily agreed to go to the police station with two officers. At the station, officers questioned him for a short period of time in an interview room after removing his handcuffs and repeatedly telling him that he was not in custody and that he was free to leave at any time. The officers neither physically restrained defendant nor displayed their weapons during the interviews. A reasonable person in this situation would have understood that he or she could have refused to answer the officers questions or ended the encounter at any point. Defendant in fact told two detectives that he did not want to say anything and the detectives left. Thereafter, because neither defendant nor Hernandez would provide the location of Hernandezs white Suzuki, Hutchings placed defendant under arrest.
Even if we were to find that Miranda advisements were required prior to defendants arrest, defendant made no statements to the police prior to his arrest. He repeatedly said that he had nothing to say, and he refused to say anything more. Thus, the trial court did not err in concluding that no statements that defendant made prior to his arrest warranted suppression.
c. Defendants post-arrest statements
Preliminarily, we find that the trial court properly concluded that Officer Hutchingss arrest of defendant was valid. An arrest must be based upon probable cause. (Gerstein v. Pugh (1975) 420 U.S. 103, 111-112.) "Determining whether an officer had cause to arrest requires two analytically distinct steps, each with its own standard of review. First, the court ascertains when the arrest occurred and what the arresting officer then knew; second, the court decides whether the officers knowledge at the time of arrest constituted adequate cause. On appeal, a reviewing court must accept the trial courts express or implied findings on disputed factual issues in the first step of the inquiry if they are supported by substantial evidence, but a reviewing court must use its independent judgment to review the second step of the inquiry. [Citations.]" (People v. Price (1991) 1 Cal.4th 324, 409; see also People v. Adair (2003) 29 Cal.4th 895, 904.)
At the time of defendants arrest, Hutchings was aware of defendants association with a white Suzuki and his association with a Norteno street gang. Hutchings was also aware that defendant had a Mongolian-style haircut, and that he otherwise matched the general description of the driver of a white Suzuki involved in a gang-related stabbing earlier that day. In addition, defendant was in a dark SUV at the time it was stopped along with Marquez, who matched the general description of the stabber. Defendant and the registered owner of the white Suzuki, defendants girlfriend, refused to cooperate with officers request for information regarding the whereabouts of the car, even though they were informed that presentation of the car could help rule defendant out as a suspect in the stabbing. We find that these facts, known to the arresting officer, would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that defendant was involved in the stabbing incident. (People v. Adair, supra, 29 Cal.4th at p. 904.)
Under both federal and state law, the prosecution has the burden of proving by a preponderance of the evidence that a defendants pretrial statement was voluntary. (Lego v. Twomey (1972) 404 U.S. 477, 489; People v. Sapp (2003) 31 Cal.4th 240, 267.) "Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the `totality of [the] circumstances. [Citations.]" (People v. Neal (2003) 31 Cal.4th 63, 79; see also Withrow v. Williams (1993) 507 U.S. 680, 693-694.) Among the factors to be considered are " `the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity as well as `the defendants maturity [citation]; education [citation]; physical condition [citation]; and mental health. [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 660.)
A statement to police is voluntary if the suspects decision to speak is entirely "self-motivated" because he freely and voluntarily chooses to speak without any form of compulsion or promise of reward. (People v. Thompson (1980) 27 Cal.3d 303, 327-328.) No single factor is dispositive in determining the question of voluntariness. (People v. Williams, supra, 16 Cal.4th at p. 660.) "[T]he admissibility of a [statement to police] turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendants will was in fact overborne. [Citations.]" (Miller v. Fenton (1985) 474 U.S. 104, 116.) Police are prohibited from using psychological ploys that, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable. (People v. Jones (1998) 17 Cal.4th 279, 297-298; People v. Ray (1996) 13 Cal.4th 313, 340.) Where an officer makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the accuseds decision to make a statement, the statement is involuntary. (People v. Boyde (1988) 46 Cal.3d 212, 238; People v. Hogan (1982) 31 Cal.3d 815, 838, disapproved on another point in People v. Cooper (1991) 53 Cal.3d 771, 836.)
When the police merely point out a benefit that flows naturally from a truthful and honest course of conduct, a subsequent statement will not be considered involuntary. (People v. Hill (1967) 66 Cal.2d 536, 549; People v. Thompson (1990) 50 Cal.3d 134, 170.) A police officer does not invalidate a defendants subsequent statement by merely commenting on the realities of the situation. (In re Gomez (1966) 64 Cal.2d 591, 593-594; People v. Seaton (1983) 146 Cal.App.3d 67, 74.) Similarly, police comments to the effect that the accused would "feel better" or would be "helping himself by cooperating" do not alone establish improper inducement. (People v. Jackson (1980) 28 Cal.3d 264, 299-300, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)
On appeal, a trial courts determination of the voluntariness of a statement to police is reviewed de novo, while the trial courts historical findings of fact surrounding the statement are reviewed under the deferential substantial-evidence standard. (People v. Williams, supra, 16 Cal.4th at pp. 659-660.)
Here, defendant was under a lawful arrest and in a holding cell when he initiated the contact with Hutchings by yelling. Hutchings was asked by staff to find out why defendant was yelling, and defendant asked Hutchings why Hernandez was also under arrest. Hutchings told defendant that Hernandez was under arrest for concealing evidence in order to protect defendant. Defendant then offered to tell Hutchings where the car was if Hutchings released Hernandez. Hutchings did not initiate or otherwise coerce defendants proposal, but said "Im listening." Defendant then said that if Hutchings brought Hernandez into the holding cell he would tell her where the car was and instruct her to tell Hutchings. When Hutchings responded that if Hernandez told Hutchings where the car was after defendant talked to her it would not exonerate her from the charges against her, Hutchings was merely commenting on the realities of the situation. Defendant said that he would not say anything then, so Hutchings left.
A few minutes later, defendant called Hutchings back. At this time, Hutchings volunteered that he would release Hernandez if defendant told him where the car was. Although Hutchings did not promise that the police would drop the charges against Hernandez, his promise to release Hernandez from custody if defendant told him where the car was did not merely point out a benefit that would flow naturally from a truthful and honest course of conduct (People v. Hill, supra, 66 Cal.2d at p. 549; People v. Thompson, supra, 50 Cal.3d at p. 170), nor was it merely a comment on the realities of the situation (In re Gomez, supra, 64 Cal.2d at pp. 593-594; People v. Seaton, supra, 146 Cal.App.3d at p. 74). As a result of Hutchingss promise, defendant told Hutchings where he had parked the Suzuki. Thus, Hutchingss promise of a benefit could be considered to be a motivating cause of defendants decision to disclose the location of the Suzuki. (People v. Jackson, supra, 28 Cal.3d at p. 299; People v. Boyde, supra, 46 Cal.3d at p. 238; People v. Hogan, supra, 36 Cal.3d at p. 838.) Although the officers did not find the car where defendant said it was, the officers continued and expanded their search and as soon as the car was found Hernandez was released.
The Attorney General contends that, even if this court were to find that the trial court erred in finding defendants statement about the location of the Suzuki to be voluntary and thus admissible, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) The Attorney General argues that, given the information that the police already knew at the time defendant made his statement to Hutchings, it is reasonably probable that the police would have soon discovered the Suzuki. Defendant contends that this theory was never advanced below, and was not the basis for the trial courts ruling, therefore the argument has been waived. We determine that, even if we assume that defendants post-arrest statements concerning the incorrect location of the Suzuki were involuntary, we would find that the vehicle would have been inevitably discovered.
"If a judgment rests on admissible evidence it will not be reversed because the trial court admitted that evidence upon a different theory, a mistaken theory, or one not raised below. [Citations.]" (People v. Brown (2004) 33 Cal.4th 892, 901.) " ` "No rule of decision is better or more firmly established by authority, nor one resting on a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for the wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." [Citation.] " (People v. Zapien (1993) 4 Cal.4th 929, 972; People v. Brown, supra, 33 Cal.4th at p. 901.)
There is an exception to this principle. The principle does not apply "when the `new theory was not supported by the record made at the first hearing and would have necessitated the taking of considerably more evidence, [or when] the defendant had no notice of the new theory and thus no opportunity to present evidence in opposition. [Citation.]" (People v. Brown, supra, 33 Cal.4th at p. 901, fn. omitted.) Thus, although the inevitable discovery doctrine was not presented to the trial court below, it may be applied on appeal if the factual basis for the theory is fully set forth in the record. (People v. Robles (2000) 23 Cal.4th 789, 801, fn. 7; People v. Brown, supra, 33 Cal.4th at p. 901.)
"Under the inevitable discovery doctrine, illegally seized evidence may be used where it would have been discovered by the police through lawful means. As the United States Supreme Court has explained, the doctrine `is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered. (Murray v. United States (1988) 487 U.S. 533, 539.) The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct. (Nix v. Williams (1984) 467 U.S. 431, 443, fn. 4.) The burden of establishing that illegally seized evidence is admissible under the rule rests with the government. [Citations.]" (People v. Robles, supra, 23 Cal.4th at pp. 800-801, fn. omitted.)
The Attorney General argues that the Suzuki would have been discovered without any help from defendant because the police knew the license plate number and the owner of the white Suzuki they were looking for, they knew that it had front-end damage, and there was no evidence that the Suzuki had been hidden or disguised in any way. We also observe that the record shows that Marquez and defendant were together in the SUV stopped by the police a few hours after the stabbing; that defendant was arrested around 5:00 p.m.; that Franco identified defendant as the driver of the Suzuki and Marquez as the passenger around 6:40 p.m.; that Marquez lived on the 400 block of South 7th Street; that Hernandez was not arrested until around 9:00 p.m.; that the police were out looking for Hernandezs car at the time defendant offered to tell Hutchings where to find the car; that even though defendant provided incorrect information concerning the location of the car, the police continued and expanded their search; and that the police found the Suzuki around 10:00 p.m. on the 500 block of South 8th Street, a few blocks away from both Marquezs residence and where defendant said the car would be located. As the police had reason to believe that both defendant and Marquez were involved in the stabbing incident, and the police were out looking for the Suzuki at the time Hutchings spoke with defendant, it is reasonable to infer that the police would have been looking in the area around Marquezs residence for the Suzuki even if defendant had not provided the information that he did.
At trial, as stated above, the parties stipulated that the Suzuki was seized by San Jose police at 10:00 p.m. on June 12, 2003 at 567 South 8th Street and that on that date Marquez lived at 447 South 7th Street.
Given this state of the record, we conclude that the factual basis for the inevitable discovery doctrine was fully set forth in the record. We further conclude that the People have met their burden of legally and factually demonstrating that the inevitable discovery doctrine may be properly applied in this case. Accordingly, even if we were to find that the trial court erred in determining that defendants post-arrest statements were involuntary and thus improperly admitted, evidence of the ownership and the whereabouts of the Suzuki on the evening of June 12, 2003, as well as defendants fingerprints on the inside drivers window, the photographs, and the paint chips, were properly admitted at trial, and any error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
B. Preservation of the Subaru
One officer took 84 photos in the case, including photos of Vasquez, the Subaru and the Suzuki at the scene on June 12, 2003, the day of the stabbing incident and defendants arrest. The photos of the Subaru included ones of its interior and all four exterior sides. The officer also took samples of paint from the right front of the Subaru, where all the major damage was, including a control sample and possible transfer samples. The car was towed to the police garage, a secure facility, the same day. There, the Subaru was processed by a crime scene investigator who took additional photos and fingerprint and blood samples.
The Subaru was released on August 6, 2003, in order to free up space at the police garage. Prior to that time, neither the police nor the District Attorney had received a request from the defense to preserve the Subaru. The Suzuki remained in police custody.
On April 8, 2004, defense counsel informed the court that it was her "intention . . . to possibly retain an accident reconstruction expert, or at least a collision expert," who would need to obtain exact measurements of the alleged sideswiping damage to the Subaru in order "to try to ascertain the angles of impact." However, counsel learned the day before that the Subaru had been released. Thus, she requested that the court order the prosecution to make the car available for inspection. The prosecutor informed the court that he had just learned that week that defendant wanted to inspect the Subaru. Prior to that time, he had officers attempt to locate the car for him but the victims no longer owned it. He stated that the prosecution intended to use the photographs of the Subaru as well as the paint samples, and that the condition of the Subaru could be very different now than it was in June 2003.
On April 12, 2004, the date set for motions in limine, defendant requested a one-week continuance in order in part to attempt to locate the Subaru. Because the court anticipated that it would be one week before evidence would be presented to the jury, and that this would be sufficient time for the necessary investigation, the court denied the request "without prejudice in the event circumstances change." Trial did not start that week as the court had anticipated because defendants appointed counsel had to be relieved due to a conflict of interest.
New counsel substituted in June 28, 2004. On October 28, 2004, counsel filed a motion to dismiss the information, contending that the prosecutions failure to preserve the Subaru as an item of material evidence pursuant to California v. Trombetta (1984) 467 U.S. 479, required the dismissal. Defendants contention was based on his claim that the Suzuki was initially struck from behind by the Subaru and that he could no longer analyze whether paint was transferred from the rear of the Suzuki to the front of the Subaru. At the hearing on the motion on November 3, 2004, defense counsel informed the court that, based on an examination of the Suzuki and the photos of the Subaru, the defense expert was prepared to testify that "the Subaru was the aggressor vehicle, and the Suzuki was the victim vehicle," but that counsel hoped "to do a complete and thorough investigation." The court denied the motion because there "really wasnt any willful effort by law enforcement to suppress evidence that would be of an exculpatory value to the defendant."
Defendant now contends that the prosecutions failure to preserve the Subaru violated his right to due process. He argues that preservation of the exculpatory value of the Subaru was apparent before it was released, and that it was also apparent that defendant could not obtain comparable evidence by other means. Thus, the release of the Subaru was in bad faith.
"Law enforcement agencies have a duty, under the due process clause of the Fourteenth Amendment, to preserve evidence `that might be expected to play a significant role in the suspects defense. (California v. Trombetta[, supra,] 467 U.S. 479, 488 . . . ; accord, People v. Beeler (1995) 9 Cal.4th 953, 976 . . . .) To fall within the scope of this duty, the evidence `must both posses an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. (California v. Trombetta, supra, 467 at p. 489 . . . ; People v. Beeler, supra, 9 Cal.4th at p. 976.) The states responsibility is further limited when the defendants challenge is to `the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant. (Arizona v. Youngblood (1988) 488 U.S. 51, 57 . . . .) In such case, `unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. (Id. at p. 58 . . . ; accord, People v. Beeler, supra, 9 Cal.4th at p. 976.)" (People v. Roybal (1998) 19 Cal.4th 481, 509-510; People v. Carter (2005) 36 Cal.4th 1215, 1246.)
"[R]equiring a defendant to show bad faith on the part of the police both limits the extent of the polices obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." (Arizona v. Youngblood, supra, 488 U.S. at p. 58; see also Illinois v. Fisher (2004) 540 U. S. 544, 549 (per curiam) ["the applicability of the bad-faith requirement in Youngblood depended not on the centrality of the contested evidence to the prosecutions case or the defendants defense, but on the distinction between `material exculpatory evidence and `potentially useful evidence"].)
In this case, the Subaru was "potentially useful" evidence and not "material exculpatory" evidence. The tests defendant wanted to perform on the Subaru may have been able to confirm that at some point the Subaru hit the Suzuki from behind, but that would not have exonerated defendant from the assault and attempted murder charges. Those charges were based on evidence that Vasquez was stabbed after the Subaru was sideswiped and hit from behind by the Suzuki. Accordingly, defendant was required to show bad faith on the part of the police, and this he could not do. The police released the Subaru in order to free up space at the police garage after taking numerous photographs and paint, fingerprint, and blood samples. All of these were preserved and made available to the defense. In addition, the defense expert was prepared to testify in support of defendants theory of defense even without examining the Subaru. Accordingly, the failure to preserve the Subaru did not deny defendant due process.
Defendant further contends that former defense counsels failure to request preservation of the Subaru prior to its release constitutes ineffective assistance. He argues that there is no satisfactory explanation for counsels failure to lodge a timely request that the police hold the Subaru for defense examination. "[D]efense counsel had to know that relevant, if not dispositive, evidence could be derived from both the car designated as the weapon and from any vehicle occupied by the victims. Yet no request was lodged. There is no justifiable basis for this failure. It could not possibly have been motivated by a strategy for gaining a tactical advantage." "[T]he case was close and the prosecutor placed heavy emphasis on evidence derived from the Subaru in his closing argument. Under these circumstances, . . . there was a reasonable probability that, but for defense counsels failure to make a timely request that the authorities hold the Subaru, there would have been a more favorable outcome to [defendant]."
The record on appeal does not disclose the identity of defense counsel prior to the preliminary hearing in December 2003.
"Defendant has the burden of proving ineffective assistance of counsel. [Citation.] To prevail on a claim of ineffective assistance of counsel, a defendant ` "must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice." [Citation.] A court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate `a reasonable probability that, but for counsels 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.]" (People v. Maury (2003) 30 Cal.4th 342, 389.)
The record does not support defendants claim of ineffective assistance. There is nothing in the record indicating that, at the time the Subaru was released, relevant and dispositive evidence could have been taken from the Subaru that was not available from the photos and samples already taken. Therefore, there is a satisfactory explanation for counsels failure to request preservation of the Subaru. In addition, defendant has not shown prejudice from the failure to request preservation. A defense expert testified, based on his examination of the Suzuki and photos of the Subaru, that the Suzuki was the aggressor vehicle. In addition, the further tests that defendant wished to perform on the Subaru would not have exonerated him from the assault and attempted murder charges. Accordingly, we find no reasonable probability of a more favorable outcome had counsel requested preservation of the Subaru.
B. CALJIC No. 3.02
Defendant requested that the court not instruct the jury with CALJIC No. 3.02, arguing that the instruction "largely reduces the governments burden of proof, and in a sense that it creates an implied presumption and that [it] even reduces the intent that is necessary to otherwise prove the crime." The court overruled defendants objection, and instructed the jury as follows: "One who aids and abets another in the commission of a crime is not only guilty of those crimes, but is also guilty of any other crime committed by a principal which is a natural and probable consequence of the crimes originally aided and abetted. [¶] Now, in order to find the defendant in this case, William Martinez, guilty of the crime of attempted murder and also the enhancements alleged, this was done willfully and deliberately and premeditated[, i]n the offenses in count one, you must be satisfied beyond a reasonable doubt that 1) the crimes of assault were committed; 2) the defendant aided and abetted in those crimes; and 3) that a co-principal in that crime committed the crime of attempted murder, and that the crimes of attempted murder and the enhancements, that was done willfully, deliberately and with premeditation[,] were a natural and probable consequence of the commission of the crime of assault. [¶] Now, in determining whether the consequence is `natural and probable you must apply an objective test, based not on what the defendant actually intended, or [sic] what a person of reasonable and ordinary prudence would have expected likely to occur. The issue is to be decided in light of all of circumstances surrounding the incident. A `natural consequence is one which is within the normal range of outcomes that may reasonably be expected to occur if nothing unusual has intervened. `Probable means likely to happen. [¶] You are not required to unanimously agree as to which originally contemplated the crime, the defendant aided and abetted, so long as youre satisfied beyond a reasonable doubt and unanimously agree that the defendant aided and abetted the commission of an identified and defined target crime and that the crime of attempted murder was a natural and probable consequence of the commission of that target crime."
Defendant now contends that the objective negligence standard of the natural and probable consequences doctrine as embodied in CALJIC No. 3.02 violates due process by permitting criminal liability without any actual awareness or intent. "CALJIC No. 3.02 permitted the jury to convict [defendant] of attempted premeditated and deliberate murder simply because, under an objective standard, a reasonable person would have foreseen that death might result from the attack by the Suzuki passenger on Rigoberto [Vasquez], notwithstanding that [defendant] had no intent to kill, no malice aforethought, and did not have the requisite mental state to support a finding of premeditation and deliberation. As such, it permitted him to be convicted based on a non-rebuttable presumption founded in a finding of negligence; a presumption which would not have substituted for proof of the required mental state in order to convict the actual stabber."
Our Supreme Court has previously rejected defendants arguments in People v. Coffman and Marlow (2004) 34 Cal.4th 1, 106-108. Under the natural and probable consequences doctrine, "an aider and abettor `is guilty not only of the offense he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed by the person he aids and abets. " (Id. at pp. 106-107.) "We agree with the . . . court [in People v. Nguyen (1993) 21 Cal.App.4th 518, 535,] that CALJIC No. 3.02 correctly instructs the jury on the natural and probable consequences doctrine. To the extent [the defendant] contends that imposition of liability for murder on an aider and abettor under this doctrine violates due process by substituting a presumption for, or otherwise excusing, proof of the required mental state, [he or] she is mistaken." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 107.) "Finally, we reject the premise of [the defendants] argument that the application of the natural and probable consequences doctrine in capital cases unconstitutionally predicates murder liability on mere negligence. Liability as an aider and abettor requires knowledge that the perpetrator intends to commit a criminal act together with the intent to encourage or facilitate such act; in a case in which an offense that the perpetrator actually commits is different from the originally intended crime, the natural and probable consequences doctrine limits liability to those offense that are reasonably foreseeable consequences of the act originally aided and abetted. (See People v. Nguyen, supra, 21 Cal.App.4th at p. 531.)" (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 108.) We are bound by our Supreme Courts opinion. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Defendant seeks to distinguish his case from that in Coffman and Marlow. He argues that, in that case, the jury also found true special circumstances allegations, so it necessarily found that the defendant possessed the intent to kill. (See People v. Coffman and Marlow, supra, 34 Cal.4th at p. 108.) However, the Supreme Court did not hold that such a finding was necessary when it rejected the defendants arguments in that case. (Ibid.) Accordingly, we reject defendants attempt here to distinguish his case from Coffman and Marlow.
IV. DISPOSITION
The judgment is affirmed.
We concur:
McADAMS, J.
DUFFY, J.