Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge, Super. Ct. No. 1053300
A.M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Wiseman, Acting P.J.
Procedural History
Appellant Dion Lee Milam was convicted by jury trial of the following offenses: first degree murder, first degree burglary, attempted robbery, attempted exhibition of a firearm to resist arrest, and being a felon in possession of a firearm. In addition, the jury found that the murder was committed during the commission of the burglary and attempted robbery within the meaning of Penal Code section 190.2, subdivision (a)(17); that Milam personally discharged a firearm resulting in the death of a person within the meaning of section 12022.53, subdivision (d); and that Milam used a firearm in violation of section 12022.5, subdivision (a). Milam admitted with respect to all counts that he had suffered a prior conviction within the meaning of section 667, subdivision (d), and had served two prior prison terms within the meaning of section 667.5, subdivision (b).
All further references are to the Penal Code unless noted.
The trial court sentenced Milam to state prison for an indeterminate term of life without the possibility of parole for the murder (count 1). In addition, the trial court imposed on this count a consecutive indeterminate term of 25-years-to-life pursuant to section 12022.53, subdivision (d), and a consecutive two-year term for the prior prison-term enhancements. Milam was also sentenced to 22 years (12 plus 10) on the burglary count (count 2) with its enhancements and to six years on the attempted robbery count (count 3) with its enhancements. The terms on counts 2 and 3 were stayed pursuant to section 654. Milam was sentenced to a consecutive term of four years for the exhibition of a firearm to resist arrest count (count 4) and 16 months for the possession count (count 5).
FACTUAL HISTORY
In the early hours of January 7, 2003, Danelle Cole went to the home of Billy Lederle to buy drugs. When Cole arrived, Milam and his girlfriend Joycelynn were standing in front of the house. Milam told Cole to find out where the drugs were in the house and to let him in when he knocked on the door. Lederle’s girlfriend answered the door, letting only Cole in. They went to the back bedroom.
Cole warned Lederle that Milam and Joycelynn were there to rob him. Lederle told his girlfriend to get on the floor and stay there. He and Cole agreed she would go home. He got out his gun and loaded it. Lederle’s girlfriend then called 911. There was a knock on the door, Milam’s signal to Cole. Cole opened the door and Milam pushed her aside and pushed his way into the house. He was holding a blue bag. As Cole ran to her car, she heard a gunshot. When Milam entered the house, he and Lederle fired at one another. Lederle fell after being hit, and was dead when police arrived. Cole learned of Lederle’s death in the newspaper.
A couple of days later, Milam and Joycelynn returned to Cole’s house and were standing over her bed when she awoke. Cole was afraid of Milam. Cole’s phone number was found in Lederle’s cell phone caller ID log. Officers followed this lead to Cole’s house where they found Milam, who resisted arrest. Milam was in possession of a .38 caliber revolver, later determined to be the source of bullets found at the scene. When questioned, Cole initially admitted being at the house to buy drugs, but denied seeing Milam there. Later, she told police Milam was at Lederle’s home when she arrived.
Milam offered an alibi defense for the night of the murder. His mother and sister claimed that he was with them the night of the murder. Two friends and former jail mates of Milam’s testified they had each shot their own .38 caliber revolver in Lederle’s house a week before the murder. Neither had their guns at the time of trial. Another friend of Milam’s testified that on January 11 he was with Milam and they went to Cole’s house where Milam purchased a bag of drugs and a gun that looked like the gun in court.
Discussion
I. Juror misconduct
Milam claims that the trial court abused its discretion by failing (1) to inquire into the extent of the bias of juror No. 2 after she asked the prosecutor a question ex parte, and (2) to either discharge the juror or declare a mistrial. We see no abuse of discretion.
During trial, the prosecutor informed the trial court that juror No. 2 had asked him if the photographic exhibits he had offered during the trial would be made available to her. The prosecutor, mistakenly believing that the juror was a member of the victim’s family, informed juror No. 2 that he had duplicates of the photos and that after the case was over, she could see them. After returning to the courtroom, the prosecutor realized that the person he had spoken with was a juror and immediately notified the court of the ex parte contact. Defense counsel moved for a mistrial on the grounds that the communication suggested that “[juror No. 2] is biased, in favor of [the prosecutor], and that would carry through in the event she goes into deliberation with [the other jurors].” Defense counsel characterized the exchange as “favoritism.” The prosecutor responded, telling the court that when the juror approached him it was “in no way suggestive that … she was picking sides or playing favorites.” The trial court denied the motion for mistrial, stating, “I think this is, in all probability, an innocent matter. I will, when the jury is returned to the courtroom, I will re-admonish the jurors that they are not to speak to the attorneys, and also set them straight on when they are likely to see exhibits.” When the jury returned, the court gave the indicated admonishment and instructions.
Section 1089 allows a court to discharge a juror for good cause. A trial court’s ruling whether to discharge a juror for good cause under section 1089 is reviewed for abuse of discretion. (People v. Hart (1999) 20 Cal.4th 546, 596; People v. Beeler (1995) 9 Cal.4th 953, 989.) The trial court also retains discretion to choose the procedures to employ in determining whether good cause exists, including whether to conduct a hearing or a detailed inquiry. (People v. Beeler, supra, at p. 989.)
Although juror No. 2 had been admonished not to communicate with the attorneys or any other person regarding the case, any presumption of bias is rebutted by the limited nature of the misconduct as described by the prosecutor. There is nothing in the juror’s conduct alone that suggests bias, particularly when it was the prosecutor who had presented the exhibits she was asking about. (Compare In re Hitchings (1993) 6 Cal.4th 97, 118 [juror discussed merits of case with coworkers while still sitting, expressing opinions about need for punishment] with People v. Marshall (1990) 50 Cal.3d 907, 950-951 [although introduction of erroneous law was misconduct, no likelihood that one or more jurors was influenced where juror made statement that lack of evidence of juvenile adjudications meant nothing because juvenile adjudications are sealed at age 18].) Here, the question asked was innocent, arising out of the juror’s lack of knowledge concerning trial procedures. The question did not go to the merits of the case or relate to the significance or subject matter of the photographs.
There is no contention on appeal that the prosecutor was less than candid to the court when characterizing the nature of the contact. The trial court has a duty to conduct further inquiry if it has notice that a juror is possibly subject to improper influences. (See People v. Burgener (1986) 41 Cal.3d 505, 520, disapproved on other grounds by People v. Reyes (1998) 19 Cal.4th 743.) Here, however, there is nothing to suggest that the juror’s question was the result of improper influences. Although the contact was itself improper, the question asked was innocent and unbiased. (People v. Holloway (1990) 50 Cal.3d 1098, 1109 [trial court must determine if misconduct is of nature likely to influence minds of juror]; People v. Beeler, supra, 9 Cal.4th at p. 975 [trial court’s finding whether good cause exists will be upheld on appeal if substantial evidence supports it].) A mistrial, discharge of the juror, or further inquiry was not required under these circumstances.
II. Cole’s testimony
Milam’s next contention is that the court improperly allowed the testimony of Danelle Cole. According to Milam, the testimony should have been excluded because Cole’s prior statement to police implicating Milam was a product of police coercion.
The coerced statements of a third-party witness violate due-process guarantees where those statements can be shown to be inherently unreliable. (See People v. Badgett (1995) 10 Cal.4th 330, 348; People v. Douglas (1990) 50 Cal.3d 468, 500.) Where a defendant seeks to suppress the testimony of a witness based on a due-process challenge, the defendant can prevail only if he can show that the trial testimony given was involuntary at the time of trial. (People v. Douglas, supra, at p. 500.) A statement is involuntary if it is not the product of a rational intellect and a free will. (Mincey v. Arizona (1978) 437 U.S. 385, 398.) Even assuming a prior out-of-court statement by the third party was the product of improper police pressure, the defendant must demonstrate that the trial testimony was actually tainted by the prior statement to the point that the testimony at trial was coerced or made unreliable by the prior statement. (People v. Badgett, supra, 10 Cal.4th at p. 348 [witness’s trial testimony not necessarily unreliable simply because witness was subject to improper pressure to make an earlier out-of-court statement].) “A subsequent confession is not the tainted product of the first merely because, ‘but for’ the improper police conduct, the subsequent confession would not have been obtained. [Citation.]” (People v. Sims (1993) 5 Cal.4th 405, 445.) The determination whether the authorities improperly coerced a statement involves an evaluation of the totality of the circumstances. (People v. Rundle (2008) 43 Cal.4th 76, 114.)
The coercive pressures identified by Milam that allegedly rendered Cole’s initial statement to investigating officer Detective Campbell on January 13, 2003, involuntary are: (1) threats that Cole would be arrested for homicide; (2) promises that her family would be protected; (3) minimizing the importance of the interview; (4) assertions of absolute certainty that Cole was involved in the murder; (5) exploitation of expressed fears; (6) exaggerated claims of the strength of evidence against her; and (7) assertions that Campbell could read Cole’s mind by stating he knew Cole was not telling the truth.
First, there is no evidence that any of these pressures were operating at trial. The trial testimony was presented nearly five years later. We have reviewed the record and see nothing to suggest that Cole was upset, reluctant, or testifying involuntarily when she testified at trial. The passage of time alone is sufficient to remove any taint of coercion had improper pressure been applied in obtaining Cole’s pretrial statement. (See Douglas v. Woodford (9th Cir. 2003) 316 F.3d 1079, 1092-1093; Williams v. Woodford (9th Cir. 2004) 384 F.3d 567, 595; United States v. Mattison (9th Cir. 1970) 437 F.2d 84, 85 [by time of trial, psychologically coercive atmosphere of interrogation must have dissipated].)
Second, Milam offers no authority to support his contention that the pressures asserted by police were constitutionally impermissible and likely to lead to a coerced statement. Cole openly admitted being at the trailer. She said she went with a friend named Jesse Franklin to purchase drugs. Phone logs placed her at the trailer near the exact time the 911 call was made to police reporting the shooting and the death. When Campbell confronted her with phone log evidence, he was stating facts. When Campbell said he had a witness placing Cole at the house at the time of the murder, he was not exaggerating the strength of the evidence. During the 911 call, Lederle’s girlfriend said a girl came into the house shortly before the murder and that the girl had asked to bring a homeboy in. Cole herself said she was there to buy drugs and had arranged the visit beforehand via the telephone calls logged in the phone records. She admitted asking if her homeboy could come in. Cole provided this information before any of the so-called coercive tactics were applied. Even if there was some deception in Campbell’s assertion of the evidence against Cole, or his suggestion that the interview was not important, deception does not preclude admissibility or render the statement involuntary or unreliable. (See People v. Lee (2002) 95 Cal.App.4th 772, 785 [California courts have long recognized need to sometimes use deception to get to truth; deception which produces statement does not preclude admissibility unless deception is of nature to produce untrue statement].)
The timing of the calls, coupled with Cole’s initial explanations, provided Campbell absolute certainty that Cole was at the scene of the murder. Additionally, Milam was arrested at Cole’s house, carrying the weapon from which bullets found at the scene were fired. Cole’s initial story was inconsistent with the evidence known to Campbell and there was nothing improper about him telling Cole that he knew she was lying and that there was strong evidence that she was involved in the murder. (People v. Ray (1996) 13 Cal.4th 313, 340 [investigating officers may discuss advantages or natural consequences of being truthful]; United States v. Mahan (6th Cir. 1999) 190 F.3d 416, 422 [not improper for investigating officer to tell suspect his or her statement is unbelievable].) Unless Cole could explain why she was at the scene of the murder and why Milam was at her house with the murder weapon, she was a primary suspect in the murder. There was no improper, unfounded threat of arrest. (People v. Boyer (2006) 38 Cal.4th 412, 445 [not improperly coercive to confront lesser participant in crime with his or her predicament]; United States v. Pelton (4th Cir. 1987) 835 F.2d 1067, 1072 [discussing course that investigation could legally take may cause discomfort but is not coercive]; McCalvin v. Yukins (6th Cir. 2006) 444 F.3d 713, 720-721 [police may convey to suspects seriousness of crime for which they are being investigated].)
There was also no false promise of benefits leading to Cole’s statement. She expressed fear of retaliation by Milam and his gang associates. Detective Campbell assured her he would assist her in providing protection to herself and her family, but he gave no guarantees: He said he would do everything he could. His assertion that protection could be provided is not the type of promise of leniency or other benefit that renders a statement involuntary. (People v. Thompson (1990) 50 Cal.3d 134, 166-167 [only those psychological ploys which under all circumstances are so coercive that they tend to produce both involuntary and unreliable statements are prohibited]; United States v. Heatley (S.D.N.Y. 1998) 994 F.Supp. 477, 483 [offering police protection to allay fear that if individual cooperates with police that family would be subject to recriminations is not improper].)
There is no evidence that Cole was testifying consistent with her prior statement in order to avoid perjury, as Milam suggests. In our comparison with the statement made by Cole to Campbell in 2003 and her trial testimony in October 2007, we observe several significant differences. For example, in her statement to Campbell, Cole said Milam was at the home when she arrived, but never mentions seeing Joycelynn. At trial, she testifies that both were present. Cole told Campbell that her friend Jesse was Jesse Franklin. At trial she denied giving Campbell a last name for Jesse and admitted no one was with her. There are other inconsistencies. Cole was not merely parroting her 2003 statement at trial in order to avoid a perjury charge.
Although there may have been pressure applied to Cole, and she may have felt intimidated by the trouble she was in, her statement was not involuntary. (See United States v. Pelton, supra, 835 F.2d at p. 1072 [voluntariness not to be equated with absolute absence of intimidation because if this were test, no statement would be voluntary].) After considering the totality of the circumstances, we conclude there is nothing in Cole’s trial testimony or her prior out-of-court statement that suggests it was the product of police coercion and not of her own free will.
III. Ineffective assistance of counsel
Milam contends he was denied effective assistance of counsel when his attorney suggested the wrong date when questioning his mother about the alibi defense. The murder occurred in the early morning hours of January 7, 2003. At trial, Milam’s mother, Deborah Wright, testified that she and her daughter (who also testified at trial) had visited another son, Joey, in a hospital in San Francisco sometime in early January. She could not remember the year. She did remember that, when they returned that evening, sometime between 8:00 and 10:00 p.m., Milam and Joycelynn were home. The family talked about Joey’s condition and watched television together. According to Wright, she was with Milam until she went to bed sometime around 12:30 or 12:45 a.m. When asked if she could remember the date of the visit, Wright testified, “As well as I can remember, it was the 7th of January, I think. I’m pretty sure.” Defense counsel then asked, “The 7th of January?” and Wright answered, “Yes.” Milam’s sister confirmed that the trip was early January, and that Milam and Joycelynn were there when they returned, but she also could not remember the date of the trip, although she testified the year was 2003. She said the family was together from their arrival home between 9:30 and 9:45 p.m. until she went to bed between 1:00 and 1:30 a.m. According to Milam, defense counsel’s question was a major defense blunder because the alibi Milam was attempting to establish would require that the date of the trip be January 6, 2003.
To succeed on a claim of ineffective assistance of counsel, Milam must show that counsel’s performance was deficient when reviewed by an objective standard of reasonableness under prevailing professional norms, and he must show prejudice, i.e., that it is reasonably probable, but for counsel’s failings, the result would have been more favorable to the defendant. (People v. Riel (2000) 22 Cal.4th 1153, 1175.) The record must affirmatively demonstrate “‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” (People v. Maury (2003) 30 Cal.4th 342, 389.)
We can locate no evidence in the record of either incompetence or prejudice. Wright testified without prompting that the visit occurred on January 7. Contrary to the assertions of the opening brief, defense counsel did not suggest an improper date to the alibi witness. Counsel did not ask if the visit “could have been January 7, 2003.” It was only after Wright said that she was “pretty sure” the date was January 7 that counsel repeated the date back to her for affirmation. In addition, there is no prejudice. The alibi evidence was extremely weak. Although Wright could not remember the year, she remembered the day of the visit. Wright’s testimony was not corroborated by her daughter, who could not remember the date. Further, both Wright and her daughter had strong motives to lie. There was no independent evidence of the trip. It is highly unlikely that the jury would have been persuaded by this testimony in light of the strong evidence of guilt.
When questioning Milam’s sister, defense counsel did suggest the date, but suggested the correct date, January 6, 2003.
IV. Eighth Amendment
Milam contends that his life sentence based on the felony-murder theory of first degree murder and the felony-murder special circumstances violate the Eighth Amendment of the United States Constitution because there is no meaningful basis upon which the jury can distinguish the factual findings necessary to return a verdict of guilty of first degree murder from those necessary to find true the felony-murder special-circumstance allegation. The Attorney General counters that this issue has been decided against Milam by the California Supreme Court in a number of cases, including People v. Abilez (2007) 41 Cal.4th 472, 528; People v. Catlin (2001) 26 Cal.4th 81, 158 [first degree murder liability and special-circumstance findings may be based upon common elements without offending the Eighth Amendment]; and People v. Millwee (1998) 18 Cal.4th 96, 164. Milam concedes this is true, but argues that, because this is a federal constitutional challenge, the California Supreme Court is not the final arbiter of the issue and we should follow federal law.
It is well settled that, in the absence of controlling United States Supreme Court authority, this court is bound by a decision of the California Supreme Court interpreting a federal question. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 702-703.) Milam concedes the United States Supreme Court has not directly decided the issue. This court is not otherwise bound by federal law. (See People v. Avena (1996) 13 Cal.4th 394, 431,cert. den. sub nom. Avena v. California (1997) 519 U.S. 1063 [even on federal questions, California courts are not bound by decisions of federal appellate courts]; People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3 [state courts not bound by lower federal courts, even on federal questions].) Although Milam may preserve the federal question for federal review, we are required to reject Milam’s argument under the California Supreme Court authority we have cited. (See People v. Eccleston (2001) 89 Cal.App.4th 436, 450, fn. 7.)
V. Sentencing error
Milam challenges the sentence imposed and the sentencing documents, raising three contentions of error. First, he contends he was impermissibly given upper and consecutive terms based on facts not found by the jury. Second, he contends the court’s minute order does not accurately reflect the sentence imposed. Finally, he points to an apparent scrivener’s error in the amended abstract of judgment.
A. Cunningham error
The court properly based its selection of the upper term on counts 2 and 3 and consecutive upper term on count 4 on Milam’s prior criminal record and the absence of any mitigating circumstances. A defendant’s prior criminal record is a valid factor for imposition of the upper term under California’s sentencing scheme and does not violate the Sixth Amendment under the principles identified in Apprendi v. New Jersey (2000) 530 U.S. 466, 488 and Cunningham v. California (2007) 549 U.S. 270. Milam’s arguments have been rejected by our state Supreme Court in People v. Black (2007) 41 Cal.4th 799, 820-823, and in People v. Towne (2008) 44 Cal.4th 63, by which we are bound. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
B. Minute order
We agree the clerk’s minutes and order after the sentencing hearing incorrectly state that the sentence imposed in this case was “life without the possibility of parole plus 32 years 4 months.” The court actually imposed one indeterminate term of life without possibility of parole, an additional 25-years-to-life indeterminate term, and a determinate term totaling seven years and four months. This sentence is consistent with California law, requiring that determinate terms running consecutively to an indeterminate term constitute a separate determinate term. (§ 669; People v. Felix (2000) 22 Cal.4th 651, 655-659; People v. Dotson (1997) 16 Cal.4th 547, 553-560.) The abstract correctly distinguished between the indeterminate and determinate terms. However, the clerk’s recitation of the sentence improperly combines the determinate and indeterminate terms and should be corrected.
C. Amended abstract
We also agree that the amended abstract of judgment fails to include the terms imposed for counts 2 and 3. Although listed on the abstract as convictions, no sentence is noted for these two offenses. The court imposed a total of 22 years on the burglary count (the upper term of six years, doubled pursuant to section 667, subdivision (d), plus 10 years for the personal-use enhancement) and a total term of six years on the attempted robbery count (the upper term of three years, doubled). The abstract of judgment must be amended to include these terms.
DISPOSITION
The judgment is affirmed. The matter is remanded to the trial court to correct the clerk’s minutes and order dated December 14, 2007, to read “Total Commitment: Life without the possibility of parole, plus 25-years-to-life, plus seven years and four months.”
The trial court shall prepare a new abstract that correctly notes the terms imposed on counts 2 and 3 and distribute it to the appropriate authorities.
WE CONCUR: Gomes, J., Dawson, J.