Opinion
G037144
5-29-2007
THE PEOPLE, Plaintiff and Respondent, v. SAUL MORENO, Defendant and Appellant.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Arlene A. Sevidal and Janelle Marie Boustany, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted Saul Moreno of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1); all statutory references to this code unless noted) and active participation in a criminal street gang (§ 186.22, subd. (a)), and found he personally inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court erroneously admitted defendants statements to investigators obtained after his arrest, but before the interrogating officer provided the requisite Miranda warnings. Acknowledging the error, the court struck the improper testimony and admonished the jury to disregard it. The only issue on appeal is whether the courts remedial efforts cured any potential harm to defendants case. We must reverse because the prosecution failed to show beyond a reasonable doubt the error did not contribute to the verdict.
I
FACTUAL AND PROCEDURAL BACKGROUND
In the early hours of December 17, 2004, naval recruiter Angel (David) Cruz suffered severe injuries after a violent confrontation in the parking lot of a Dennys restaurant in Fullerton. He and fellow recruiter Carlos Baray had spent several hours drinking at a local pub before arriving at the restaurant. Baray testified about the events of that evening, but Cruz, whose beating resulted in a month-long hospitalization, had no memory of the incident at Dennys.
Baray testified he walked to the restroom after he and Cruz finished eating. When he returned five minutes later, Cruz seemed upset. Baray attempted to calm him down and ascertain what had happened. Cruz, who had a stuttering problem, "said something . . . to the effect, you know, these guys, you know, did this or whatever." Cruz warned him to be ready for a confrontation.
The men left the restaurant and as they walked past a restaurant window, a man inside, apparently Jesse Solis, made an obscene hand gesture. Three men, including Solis and defendant, ran up to confront them at their car. Solis said "`what is up, man? You got a problem" and "`f-u, f this," among other things. Baray tried to defuse the situation, but a violent fight erupted when Solis said, "`I want him," indicating Cruz, and threw a punch. Defendant warned Baray to stay away from the combatants, but Baray attempted to separate Cruz and Solis. Defendant threw a few kicks and punches at Baray, who "sh[ook] them off." Defendant warned them, "`[W]ere boxers. Stay away. We know how to fight. . . ." Baray announced he intended to call the police.
Cruz fell to the ground as a crowd gathered. Solis continued to punch and kick Cruz. Someone in the crowd yelled the police had been called and were across the street. Baray ran across the street and contacted officers. When Baray returned to the scene, Cruz "looked terrible." According to a police officer, Cruz had a one-inch bump over his left eye, which was almost swollen shut. Bleeding profusely from his nose and mouth, Cruz was unconscious, shaking, and had urinated in his pants. According to physicians, Cruz spent several days in the intensive care unit and about a month in the hospital. He sustained facial bone fractures and traumatic brain injury that required physical, occupational, and speech therapy. Baray told a police officer that Cruz said he had "mad-dogged" the men in the restaurant and told Baray to "`be ready for some shit to happen."
Richard Schmidt observed the fight as he walked to his car in the Dennys parking lot. A man tried to enter the passenger side of a car but a tall man, who Schmidt identified at a showup and in court as defendant, prevented him. Another person was in, or getting into, the drivers side of the car. Around the same time, two men were yelling near a dark blue pickup truck. One of the men had either no shirt or was sleeveless and had a lot of tattoos. Schmidt saw defendant grab or throw Cruz to the ground. The victim got up and ran but defendant chased him, knocked him down, and began kicking him "all over his body," delivering several blows to the head. The victim rolled around on the ground, unconscious. Schmidt ran up to defendant and said, "`You better stop that. You will kill that man." Defendant replied, "[T]hats what he gets for fucking with me." Defendant entered a blue truck and departed.
About 30 or 40 minutes after the fight and three miles from Dennys, police spied a black truck partially matching a broadcast description and performed a felony car stop. Solis, shirtless, was driving. His face and hands had cuts. Defendant and Francisco Lopez were passengers. Defendant had what appeared to be blood on his lower right pant leg and shoe. There was a bloody tank top on the drivers side floorboard. Baray and Schmidt identified defendant, Solis, and Lopez at a field showup.
A Fullerton gang officer opined defendant was an active member of the Fullerton Tokers Town criminal street gang and the current incident would benefit defendant and his gang by generating "bragging rights" and "perceived respect." The gang expert explained a violent response to a persons hostile stare derived from "an ideology or mindset that is pervasive that you have to retaliate or act for a perceived slight [i.e., Cruzs mad-dogging]." Another gang officer conceded a gang member could participate in criminal activity that did not benefit the gang.
Defense
Solis testified defendant was a high school friend whom he saw occasionally. He and defendant, later joined by Lopez, played pool for a few hours at a local pub, and afterward departed for Dennys. After sitting down at the table, Cruz twice walked by and gave Solis an "evil look" as if "either he was drunk or . . . mad about something . . . ." When defendant returned from visiting the restroom, the trio decided to leave and get food across the street, apparently because Dennys was busy.
Solis was also charged in the attack and his case was pending at the time of defendants trial. He waived his Fifth Amendment right and testified as a defense witness.
The three men left through the front door and walked toward Soliss truck. Cruz stood between Solis and the truck, cursing at Solis with his chest poked out and hands at his sides. Solis did not know if he was "mad or drunk or . . . mistaking [him] for somebody else." Cruz approached Solis and hit him in the face. Solis defended himself and landed a couple of punches to Cruzs face. During the fight, Cruz landed a blow to Soliss face, and Solis fell, dragging Cruz down with him. Cruz was on top and kept punching him. They both stood up and continued to fight. Finally, the fracas ended when someone yelled for them to stop.
Solis, his face, hands, and knees dripping blood, felt exhausted and dizzy and walked to his truck. At no point during the fight did Solis see defendant kick or punch Cruz. Solis "believe[d]" Cruz was standing when Solis left for his truck. Solis removed his shirt and tank top undershirt, wiped away the blood from his eyes and drove off with his cohorts. They stopped at a fast food restaurant where he washed up; police stopped them before he could return home. Solis expressed remorse for what he had done and asserted defendant had nothing to do with the fight. He denied kicking Cruz and believed the blood on his right shoe came from the injury to his face. Solis had tattoos on his arms, shoulders, chest, and back.
Solis, who took boxing classes for fun, admitted he told a police officer in a recorded interview that Cruz bumped him as they walked into the restaurant. He described it as a mutual "hit up" and a "gang banging type of thing." He asked Cruz what his problem was and why he was giving him dirty looks. The fight started when Cruz swung at Solis and missed, and then Solis hit him. He told the officer he kicked Cruz once or twice in the face, and did not claim the blood on his shoe came from the injury to his face.
Lopez corroborated Soliss account of the events leading up to the fight, but was distracted because he was using his cell phone when the altercation began. He recalled seeing two individuals approach Solis. Cruz punched Solis and the pair fell to the ground, wrestling. Baray tried to jump in and help Cruz but defendant stepped toward him, pointed at him, yelled, and held his arms out to keep Baray from the fight. Lopez did not see defendant punch, kick, or do anything else to Baray, who ran off. Nor did he see defendant do anything to Cruz. Lopez approached as Solis was getting up; Cruz remained on the ground. Lopez and his two friends walked back to Soliss truck. Lopez told police at the time of the stop that he did not see anything because he was on the phone.
Relying primarily on Schmidts testimony, the prosecutor argued Cruz got up after fighting with Solis and tried to make it to his car. The prosecutor maintained defendant pulled Cruz from his vehicle, Cruz ran, defendant threw him to the ground, and kicked him.
Nicholas Romero had just arrived at Dennys when he saw three men standing near another man on the ground. The three men walked away quickly and left in a black Ford truck. At a field showup, he told an officer defendant and his friends did not look like "the same guys I saw at Dennys" and he did not identify defendant in court. Although he could not recall the statement at trial, an officer testified Romero said one of the men kicked the man on the ground five or six times in the head. The kicker was bald, slender, and slightly taller than defendant and wore a gray shirt and what looked like blue jeans. The man said something like, "`Dont fuck with me." Defendant stood much taller than the five-foot six-inch Solis. Solis was the only one with a bald head.
A jury convicted defendant of aggravated assault and active gang participation and found he personally inflicted great bodily injury, but rejected a gang enhancement. The court imposed an aggregate seven-year prison sentence. It selected the upper four-year term for aggravated assault, a consecutive three-year term for the great bodily injury enhancement, and a concurrent two-year midterm for the gang crime.
II
DISCUSSION
A. Miranda Violation
Officer Ryan Warner spoke to defendant in the field after the felony car stop and later in an interview room at the jail. Before Warner testified, defendant objected Warner had interrogated him without advising him of his rights as required by Miranda v. Arizona (1966) 384 U.S. 436. The prosecutor argued defendant was not in custody during the field interrogation, and asserted Warner told him Miranda warnings preceded the questioning at the jail, although Warners report seemed to reflect the contrary. Warner testified outside the presence of the jury (Evid. Code, § 402) that he advised defendant of his Miranda rights before interviewing him at the jail. The trial court excluded defendants statements in the field, but ruled any statements defendant made before he asked for a lawyer would not violate Miranda.
As he had at the Evidence Code section 402 hearing, Warner testified on direct examination that he provided Miranda advisements before he spoke to defendant at the station. After he provided the advisements, he explained to defendant that witnesses had identified him as kicking the victim 10-15 times. The testimony proceeded as follows: "[Prosecutor]: And did you ask if — youre telling him that, did you ask [defendant] what had happened? [¶] A I did. [¶] Q And what did he say? [¶] [Defense Counsel]: Objection as hearsay. [¶] The Court: Overruled. [¶] [A] That he didnt want — he wanted his lawyer. [¶] [Prosecutor]: Did he make — prior to making that statement did he make any statement to you about being at Dennys? [¶] A He said he that he was not at Dennys. [¶] Q Did you — prior to making that statement did you ask him about what he thought to be blood on his pant leg and shoe? [¶] A I did. [¶] Q What did he say? [¶] A He said he did not know what it was. [¶] Q Did you ask him during this interview if he wanted to talk about what had happened? Did you ask him that? [¶] A I did. [¶] Q And do you recall — if it would help refresh your recollection to look at your report, do you recall specifically what he had said? [¶] A Yes, if I can refresh my memory. [¶] The Court: Go ahead. [¶] [Prosecutor]: Drawing your attention to page 3. [¶] A He stated to me in quotations `I need my lawyer. [¶] Q Prior to that did he make any statement to you? [¶] A Prior to that, yes. [¶] Q What did he say? [¶] A He just said that he was not at the Dennys and that he did not know if that was blood on him. [¶] Q Where did he say he had been? [¶] A He said — [¶] [Defense Counsel]: Objection as leading. [¶] The Court: I am going to allow him to lead. [¶] [Prosecutor]: Did he tell you during this conversation where he had been? [¶] A Prior, no."
During cross-examination, defense counsel suggested that the court and parties review the digital audio recording of the interview because what Warner "testified to is not corresponding to what is on the CD." After listening to the recording, the court concluded that it was "more consistent with [Warners police report], which was a whole bunch of questions first, then the Miranda at the end, and the defendant invoking his right after the Miranda was given, but that that occurred after the questions about how do you get the blood on your pants, how about the blood on your shoes, where were you, and things of that nature. [¶] So the courts previous hearing on the 402, the court finds that at this point in time that those should have been preceded by Miranda instead of followed up afterwards by Miranda. So I think the statements were inadmissible."
The 40-minute recording captured events beginning with the arrest. Warners impermissible interrogation occurred during the booking process. The parties agreed the recording (apparently stored on a compact disk) had been provided as discovery to the defense.
The court noted that "some of the statements are in front of the jury," and it had decided to strike Warners testimony and admonish the jury to disregard the statements and treat the matter as though they never heard it. The prosecutor said he agreed with the courts analysis and apologized for the "honest mistake and obviously a glaring one," stating there had not been "any calculated efforts to try to manipulate the evidence or mislead this court . . . ." The court noted "[i]t would have been a lot different situation if . . . the statements were the defendant admitted he kicked the defendant 10 to 15 times. If it were a straight out confession, then . . . we would be in a lot different situation than we are when — there is some sort of denial . . . ."
Defense counsel objected that defendants invocation of his right to counsel should not have come before the jury. He also emphasized the jury learned that defendant "made the statement that he was not there. I cant say to [defendant] that should this case wind up with a conviction that that was not a large factor in the juries deliberation . . . ." While striking the testimony was "creative," he was not sure it went "far enough. I will never be able to calculate what impact it may have on a jury; that is, a jury member that may be right on the fence. If — well, he truly spoke to an interrogator and lied about being there, maybe I lied about the rest, that is enough for me. I will vote for conviction. I cant say that that wouldnt happen." Based on these concerns, defense counsel moved for a mistrial.
The court denied defendants mistrial motion, explaining the "problem is I cant guess what the rest of the evidence is going to be in this case. It may be in the end . . . the way the rest of the evidence develops its not that big a deal . . . . [¶] Youre right, you cant make a judgment. Now, my feeling is this, I have confidence in the jurors. If this — I tell you quite frankly, if this . . . would have been a complete confession, Id be giving you a mistrial. But given the somewhat tenuous — [¶] . . . [¶] nature of the testimony of the officer, that is only helpful to the [prosecutor] if he can combine with the rest of the evidence. I just think . . . the jurors pay attention to the judge. They listen to what I tell them when I tell them they cant consider it." The court struck the testimony and admonished the jurors to disregard it.
"Ladies and gentlemen, we need to work through some issues here. At this time . . . I am going to instruct you the court is striking the testimony of Officer Warner. Now, this is where youre going to have some mental gymnastics. Taking this oath as a juror, you must disregard his testimony as though you never heard of it. Its gone. Its not part of the case. [¶] Now, during his testimony you heard some statements about the testimony of defendant requesting an attorney. That is not part of this case. In fact somebody asked for an attorney at any stage is not evidence and you shouldnt consider it in any way as tending to show some guilt or something else. Its just not a thing — it got out there in front of you, but its not something for your concern or consideration. Remember I told you the defendant can choose even not to testify in this trial. That is a choice of his as well. You cant consider that either. So very much the same about somebody asking to have an attorney. And I am striking all of his testimony, so all of that testimony is gone. Its as though it never occurred."
B. Prejudice
Defendant contends the trial courts remedial efforts failed to cure the error in admitting defendants statements obtained in violation of Miranda. We agree.
The Miranda rule precludes use of a defendants statements resulting from custodial interrogation unless Mirandas procedural safeguards (i.e., warnings and waiver) have been met. It is also constitutional error to inform the jury that defendant chose to remain silent after advisement (see Doyle v. Ohio (1976) 426 U.S. 610 (Doyle); People v. Evans (1994) 25 Cal.App.4th 358, 362, 368, 369) or that he requested an attorney following Miranda warnings (People v. Fabert (1982) 127 Cal.App.3d 604, 609).
Chapman v. California (1967) 386 U.S. 18 (Chapman) requires reversal if the reviewing court finds a violation of the United States Constitution unless the appellate court concludes beyond a reasonable doubt the error could not have affected the outcome. The United States Supreme Court has recognized that introduction of a defendants incriminating statements in violation of Miranda may constitute harmless error. (Arizona v. Fulminante (1991) 499 U.S. 279, 292; Milton v. Wainwright (1972) 407 U.S. 371 [confession obtained and introduced under circumstances violating defendants Sixth Amendment right to counsel subject to harmless error analysis].) Here, two constitutional violations occurred: (1) the introduction of defendants statement when he denied being at the scene of the fight, and (2) his request for an attorney.
Based on our review of the entire record, these errors are not harmless beyond a reasonable doubt. Baray told police that Cruz admitted he "mad-dogged" Solis in the restaurant. This coincided with Soliss claim that Cruz bumped him and gave him a menacing stare. Solis asserted he defended himself when Cruz initiated the confrontation in the parking lot, but defendant played no role in the fight. While Schmidt identified defendant as the one kicking Cruz, other evidence pointed to Solis as the culprit. Schmidt only saw one person kick Cruz, and Solis had what appeared to be blood on his shoes. Solis also admitted to the officers he kicked Cruz in the head several times. According to both Schmidt and Romero, the kicker said something like "that is what he gets for fucking with me." (Italics added.) The evidence supported the conclusion the only person Cruz argued with was Solis. Romero also claimed the kicker had a bald head, which described Solis and not defendant. Baray, who left the scene to summon police, did not see who kicked Cruz. Lopez claimed defendant simply kept "it a one-on-one fight" and did not strike Cruz. The prosecution did not present any scientific evidence the substance on defendants pant leg and shoe was blood, or that it came from Cruz rather than Solis. In sum, while ample evidence supported the jurys verdict, contrary evidence limited defendants participation to preventing Baray from joining a one-on-one fight instigated by Cruz, and that he did not inflict Cruzs injuries.
But despite all evidence to the contrary, defendant told an officer shortly after his arrest that he was not at the scene of the fight. Despite the trial courts laudable effort to remediate the error, we do not think it was possible to put the beans back in the jar once they were spilled. A juror could have interpreted defendants denials to police and request for a lawyer as consciousness of guilt and, as his trial lawyer argued, conclude if defendant lied to authorities about his involvement and then declined to answer the officers questions, the defense case must be nothing more than smoke and mirrors. This case turned on the credibility of the participants. As the prosecutor argued, jurors had "to balance credibility." We agree with appellate counsels observation that defendants deception was "precisely that sort of evidence which jurors would be expected to employ in evaluating the testimony of Solis and Lopez . . . . How could jurors not discount [their] testimony when [defendant] himself was lying and uncooperative?" The prosecution case was not so overwhelming, nor the defense version of events so improbable, that we can confidently say the error could not have affected the outcome. (Chapman, supra, 386 U.S. at p. 24 [government must show beyond a reasonable doubt "the error complained of did not contribute to the verdict obtained"].)
The Attorney General insists the case was not close and that "the prosecution witnesses were much more persuasive." To support a harmless error argument, the Attorney General relies solely on People v. Hinton (2006) 37 Cal.4th 839, 867 (Hinton).
In Hinton, the defendant gave statements to police during an initial interview on the morning of June 8, a lengthy interview on June 9, and an interview on June 15. The prosecutor elicited this sequence and the fact that, in each instance, defendant was advised of and waived his Miranda rights. The prosecutor also elicited from the officer that police attempted to interview the defendant on the afternoon of June 8, but the defendant refused to waive his rights. At a sidebar immediately following this exchange, the defendants lawyer asked for a mistrial on the basis of Doyle error. The prosecutor explained he did not plan to comment on the invocation and had brought it up only because defendant "gave so many statements and he was Mirandized so many times" that the defense counsel had earlier indicated "they were confused as to which instance this witness is talking about." The trial court took the mistrial motion under submission and instructed the prosecutor not to ask any further questions in this area. Later, in reviewing the sequence of interviews, the prosecutor asked the officer about the interview on the afternoon of June 8 and whether he had obtained any information from the defendant at that time. He said, "No, sir." At a sidebar, defense counsel again asked for a mistrial. The prosecutor explained he asked the question for purposes of "clarification." The court observed there was no relevance "to an interview that didnt happen because the defendant invoked his privilege" and warned it would consider this latest exchange in connection with the original motion for a mistrial. The trial court eventually denied the mistrial motion, expressing doubt that the jurors "are going to do much with it," and directed the prosecution not to refer to defendants Miranda invocation again.
The Supreme Court held the error was harmless. "Although the jury could in theory have relied on [the] defendants unwillingness to speak to the police on the afternoon of June 8 to infer that he was fabricating a defense, there is no reasonable possibility the jury actually did so, inasmuch as defendant gave police concededly false versions of the circumstances surrounding the murders both before and after his invocation. The problem with [the] defendants trial testimony was not that the jury heard that he once invoked his Miranda rights, but that he repeatedly provided in the other interviews untrue accounts of his involvement in the murders. Indeed, [the] defendants invocation of his Miranda rights was both cumulative of — and inferior to — the other evidence indicating that he had fabricated the account he eventually provided during police interviews and reiterated at trial. For that reason, and because the prosecutor never again mentioned the invocation during trial or closing argument [citation], we conclude that these two fleeting references could not have affected the jurys verdicts in this case. [Citations.] [Fn. omitted.] For the same reason, we find the trial court did not abuse its discretion in denying a mistrial. [Citation.]" (Hinton, supra, 37 Cal.4th at pp. 867-868.)
Hinton is readily distinguishable. There, in separate interviews the defendant waived his Miranda rights and repeatedly lied about his involvement in the murders. Here, defendant did not waive his Miranda rights when he provided a patently false account of his noninvolvement in the assault. Had defendant waived his Miranda rights in separate interviews and denied being at the scene, Hinton would control. Because no other evidence cured the prejudice stemming from defendants inadmissible statements, we cannot say "the guilty verdict actually rendered in this trial was surely unattributable to the error." (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) Accordingly, we reverse.
III
DISPOSITION
The judgment is reversed.
We concur:
BEDSWORTH, Acting P. J.
OLEARY, J.