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People v. Perez-Tinoco

California Court of Appeals, Fourth District, Third Division
Mar 7, 2008
No. G037919 (Cal. Ct. App. Mar. 7, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JAIME CESAR PEREZ-TINOCO, Defendant and Appellant. G037919 California Court of Appeal, Fourth District, Third Division March 7, 2008

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 05NF1364, Richard F. Toohey, Judge.

Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

FYBEL, J.

Introduction

Defendant Jaime Cesar Perez-Tinoco challenges his convictions for first degree murder, attempted murder, and street gang terrorism. Defendant argues his confession to the police should have been suppressed because it was obtained through coercion. Having considered the totality of the circumstances, we conclude defendant’s confession was voluntary, and the trial court did not err by admitting it.

Defendant also argues he received ineffective assistance of counsel because his attorney failed to ensure the jury was informed that two prosecution witnesses were testifying under grants of immunity. Either defense counsel’s performance was not deficient, or any deficiency did not prejudice defendant.

Therefore, we affirm.

Statement of Facts

April 1999 – Murder of Gilbert Mejia

On April 12, 1999, Gilbert Mejia, Jose Miranda, Luis Servin, Daniel Vega, and Telesforo Luna – all members of the Plas street gang – were together in an alley. Mejia was shot in the back and bled to death from multiple gunshot wounds; Miranda was shot in the left leg. A neighbor heard gunshots, then saw three young Hispanic males run from the alley and jump into an later-model, four-door car, which drove away.

Miranda admitted to the police he had been with Mejia that night, but would not otherwise help the police because he thought that would be “dishonorable” for a gang member to do.

Servin was interviewed by the police soon after Mejia’s death; he denied being present when Mejia was shot. Servin told the police he did not personally know anything about Mejia’s death, but he had heard that the Lennox gang might have been responsible for the shooting.

Luna was also interviewed by the police after Mejia’s death. Luna initially denied being with Mejia when he was shot, but ultimately admitted walking in the alley with Mejia, Miranda, and Vega. Luna also told the police Mejia had been in a fight at a video store the day before he was shot. Luna claimed he did not know who shot Mejia.

April 2005 – Murder of Luis Segura

On April 2, 2005, Luis Segura was killed while attending a party. While investigating Segura’s murder, the police talked to Servin, who told them Augustine Urrutia shot both Segura and Mejia. Servin told the investigating officer that he, Miranda, Vega, and Luna were with Mejia the night he was shot. Servin said he saw Carlos Urrutia’s car “cruising the neighborhood.” (For clarity, we will refer to Carlos Urrutia and Augustine Urrutia by their first names.) The car stopped, and Carlos, Augustine, and defendant – all members of the Lennox 13 gang – got out; one of them yelled, “Lennox is here.” Servin identified Carlos, Augustine, and defendant in six-pack photographic lineups, but would not circle their pictures because he was scared. When being questioned in 2005, Servin admitted lying to the police in 1999 because “that’s the way it is on the streets.”

Defendant was arrested on or about April 9, 2005, and interviewed by the police.

September 2006 – Trial

At trial, Servin testified even though he was scared and knew he was not supposed to help the police. Servin said he was “flirting with danger” by testifying because there was a “green light” on Plas members for helping the police, meaning all other gangs were supposed to retaliate against it. (People v. Garcia (2007) 153 Cal.App.4th 1499, 1503.) Servin testified about the events the night Mejia was shot. Servin repeatedly denied seeing who was in the alley that night, and stated he could not remember telling the police he had. Although he testified Carlos’s car was involved in the murder, Servin denied knowing the number or identity of those involved in the shooting. Servin recanted his previous identification of Augustine as the shooter in the deaths of Mejia and Segura, and claimed he was drunk when he made that identification. Instead, Servin claimed he never saw who killed either Mejia or Segura.

Luna claimed Mejia was not a Plas gang member, claimed defendant was not a Lennox 13 gang member, denied being present when Mejia was shot, and denied telling the police he had been present when Mejia was shot. Luna admitted he would expect to be beaten up if he cooperated with the police.

Mejia’s brother testified he had talked to Miranda in December 1999; at that time, Miranda had told him Mejia said, “oh, shit, it’s Lennox” just before he was shot. Miranda had also told Mejia’s brother that he had seen three males get out of a car, and that one of them was Augustine, who was carrying a gun.

Miranda testified he was with Mejia, Luna, Servin, and Vega in an alley before Mejia was shot. Mejia turned and started running just before Miranda heard two gunshots. Miranda testified he did not know defendant and did not see anyone or anything the night of Mejia’s murder. Miranda had refused to provide information to the police after Mejia was murdered because he did not want to be a “rat.” Miranda denied having any conversations with Mejia’s brother about Mejia’s death; Miranda specifically denied having implicated Augustine or the Lennox 13 gang in the murder.

Procedural History

Defendant was charged in an information with the murder of Mejia (Pen. Code, § 187, subd. (a)), the attempted murder of Miranda (id., §§ 187, subd. (a), 664, subd. a)), and street gang terrorism (id., § 186.22, subd. (a)). As to the charges of murder and attempted murder, the information alleged the crimes had been committed for the benefit of a criminal street gang (id., § 186.22, subd. (b)(1)), defendant had vicariously discharged a gang firearm (id., § 12022.53, subds. (d) & (e)(1)), and defendant had personally used a firearm (id., § 12022.5, subd. (a)). Defendant’s motion to suppress his confession to the police (id., § 1538.5) was denied. A jury convicted defendant of all three charges, and found all the enhancements to be true. Defendant was sentenced to a total term of 50 years to life in state prison. Defendant timely appealed from the judgment.

The trial court sentenced defendant to 25 years to life for first degree murder, plus a consecutive 25-year-to-life sentence for the firearm enhancement. The court also sentenced defendant to a 25-year-to-life sentence for attempted murder, plus 25 years to life for the firearm enhancement on the attempted murder count, to be served concurrently. The additional terms for the gang enhancements and the midterm of three years on the street gang terrorism count were stayed pursuant to Penal Code section 654. Defendant was ordered to pay $5,000 in restitution fine (id., § 1202.4, subd. (b)), $12,500 in victim restitution, and security fees of $60. A $5,000 parole revocation restitution fine (id., § 1202.45) was suspended.

Discussion

I.

Did the trial court err in failing to suppress defendant’s confession to the police?

Defendant was interviewed by the police after his arrest. The interview lasted between three and four hours. Near the end of the interview, defendant admitted he had been present when Mejia was shot, but had not known anyone would be killed.

Before trial, defendant moved under Penal Code section 1538.5 to suppress his confession, arguing it was coerced. The trial court denied the motion: “The court having considered the evidence before it, both by way of testimony and exhibits [and] considering appropriate legal standards, the court finds that by a preponderance of the evidence that statements made by the defendant in April of 2005 to Sergeant Wyatt, those statements are admissible and the court does not find that there was a request for counsel. The court finds that the statements were voluntary, not coerced and that there was a knowing, intelligent waiver of constitutional rights under Miranda [v. Arizona (1966) 384 U.S. 436].” (Italics added.)

“‘In reviewing the trial court’s determinations of voluntariness, we apply an independent standard of review, doing so “in light of the record in its entirety, including ‘all the surrounding circumstances—both the characteristics of the accused and the details of the [encounter].’”’ [Citation.] But ‘“we accept the trial court’s factual findings, based on its resolution of factual disputes, its choices among conflicting inferences, and its evaluations of witness credibility, provided that these findings are supported by substantial evidence.” [Citation.]’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 814.)

The burden was on the prosecution to establish by a preponderance of the evidence that defendant’s confession was voluntary. (People v. Boyette (2002) 29 Cal.4th 381, 411.) Among the factors to be considered in the totality of the circumstances test for voluntariness of defendant’s confession are whether the police used coercion; the length and location of the interrogation; and defendant’s maturity, education, physical condition, and mental health. (Ibid.)

At the time of his arrest and interview, defendant was 24 years old, and had been a member of the Lennox 13 criminal street gang for approximately eight years. During the interrogation, defendant admitted committing many crimes, including burglary, gang crimes, and drug possession; being arrested on numerous occasions; and having been in juvenile detention. Evidence was also presented that defendant had been interviewed by the police regarding Mejia’s murder in the same interview room on separate occasions in April 1999 and June 1999. Defendant’s responses to many of the officers’ questions demonstrated a significant knowledge of the criminal justice system.

For example, at one point, defendant said, “I guess we’re off to the main from here. [¶] . . . [¶] That’s the basic lockdown until I go to court. See [the] public pretender.” Later, when Sergeant Wyatt asked defendant if he knew what “premeditated” and “deliberated” meant, defendant replied, “[g]oing with intent [to kill].”

Defendant was provided a 7-Up at the beginning of the interview in April 2005. A couple of times during the interview the police officers asked defendant if he was hungry or thirsty; defendant declined all further offers of food and drinks. At the end of the interview, the police provided food for defendant. Defendant never told the officers he was in pain or felt ill during the interview. Defendant was permitted to call his mother at one point during the interview.

Defendant focuses on what he claims was coercion by the police during his interview. “[W]here a person in authority makes an express or clearly implied promise of leniency or advantage for the accused which is a motivating cause of the decision to confess, the confession is involuntary . . . .” (People v. Boyde (1988) 46 Cal.3d 212, 238.) The interview of defendant meets neither of the two prongs of this analysis. First, the police officers did not make an express or clearly implied promise of leniency or advantage. The officers told defendant they knew he was present when Mejia was shot, but believed he was not the shooter. The officers cautioned defendant that if he continued to assert he was not present, when there was testimony he was, he would be viewed as a liar, and his claim that he did not shoot Mejia would also be viewed as a lie. To the extent some of the officers’ statements could be viewed as threats or promises, their other statements clearly refuted any such implication. At one point, Sergeant Wyatt stated, “I already told you that by you telling the truth is not going to have you walk out the back door tonight,” to which defendant replied, “I know.” Later, Sergeant Wyatt said, “[a]re you in trouble anyway? Yes, you are. There’s nothing I can do to change that. It[’]s how much trouble are you in right now. You’re the only one that can fix that.” While a promise that a defendant will be shown leniency if he confesses raises the issue of the voluntariness of any resulting confession (People v. Boyette, supra, 29 Cal.4th at p. 412), defendant in this case has not shown he was promised leniency.

“The line to be drawn between permissible police conduct and conduct deemed to induce or to tend to induce an involuntary statement does not depend upon the bare language of inducement but rather upon the nature of the benefit to be derived by a defendant if he speaks the truth, as represented by the police. Thus, ‘advice or exhortation by a police officer to an accused to “tell the truth” or that “it would be better to tell the truth” unaccompanied by either a threat or a promise, does not render a subsequent confession involuntary.’ [Citation.] . . . [¶] When the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, we can perceive nothing improper in such police activity. On the other hand, if in addition to the foregoing benefit, or in the place thereof, the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible. The offer or promise of such benefit need not be expressed, but may be implied from equivocal language not otherwise made clear. [Citations.]” (People v. Hill (1967) 66 Cal.2d 536, 549-550.)

The police officers’ comments about how a judge or jury might view defendant’s refusal to admit he was present when Mejia was shot were not the motivating cause of defendant’s confession. In response to the officers’ alleged threats and promises, defendant replied it did not matter what he said because he would still be sitting in a jail cell somewhere. Defendant also told the officers it would not matter whether the police told the district attorney that defendant had told the truth because he would still be facing a lengthy sentence: “So [he]’ll just give [me] 25 to[] instead of giving [me] 35 to[].” Defendant was also clear in his belief that the officers were “bullshitting” him. Defendant observed it would not make a difference in his prison sentence whether he admitted being present or not, as he would be “going down for it anyways.”

Therefore, based on the evidence before the trial court, we conclude the police did not make a promise of leniency. We further conclude that even if the police had made a promise of leniency, any such promise was not the motivating cause of defendant’s decision to confess.

Defendant also asserts the abscess on his arm that required medical treatment before he could be booked into the jail is a factor in determining his confession was not voluntary. There is no evidence, however, that the abscess was causing defendant any pain or otherwise interfering with his ability to voluntarily confess to Mejia’s murder. At the suppression hearing, defendant admitted he had never stated during the interview or while he was being booked that he felt ill or tired. Defendant never mentioned a wound or a need for medicine or medical attention, nor did he state he did not feel well during the interview. The requirement by jail officials that the abscess be treated before defendant could be booked does not prove the seriousness of the abscess, much less its ability to affect the voluntariness of defendant’s confession.

Defendant attempts to favorably compare his case with People v. McClary (1977) 20 Cal.3d 218, in which the California Supreme Court concluded a confession was involuntary. In that case, the court identified the factors it considered in reaching its decision: “We think the following facts are significant: Defendant, while doubtless sophisticated for her years, was a 16-year-old girl; the officers failed to respond to any of defendant’s repeated requests for the assistance of counsel; there was a relatively short time span between the two interviews during some of which time defendant had remained in the officers’ presence; during the first interview defendant had several times been called a liar; the death penalty had been improperly mentioned; there were implications for leniency in the ‘principal vs. accessory’ conversation. Taken together, we think it fair to conclude from the record that the threats of punishment and the promises of leniency echoed in the continuum between the two conversations to a degree which renders her statements in the second interview involuntary and inadmissible.” (Id. at p. 229.) Defendant in the present case was older than the defendant in McClary, had more experience with the criminal justice system, did not invoke his right to an attorney during the interview, was not threatened with the death penalty in a case in which it could not be imposed, and was not specifically offered leniency.

Based on the totality of the circumstances, we find no error in the trial court’s determination that defendant’s confession was voluntary.

II.

Did defendant receive ineffective assistance of counsel because his attorney failed to elicit testimony that two witnesses were testifying under grants of immunity?

Before trial, the prosecutor obtained a court order pursuant to Penal Code section 1324 for witnesses Servin and Miranda to testify in exchange for use immunity. Defendant contends his trial attorney provided ineffective assistance of counsel by failing to inform the jury that Servin and Miranda were testifying under an immunity grant.

The jury was instructed with Judicial Council of California Criminal Jury Instructions (2006-2007) CALCRIM No. 226, which permits the jury to consider, in evaluating testimony, whether a witness was promised immunity for his or her testimony, as well as whether the witness had made consistent or inconsistent statements in the past.

To prevail on a claim of ineffective assistance of counsel, defendant must prove: (1) his attorney’s representation was deficient in that it fell below an objective standard of reasonableness under prevailing professional standards; and (2) his attorney’s deficient representation subjected him to prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Cain (1995) 10 Cal.4th 1, 28.)

“Unless a defendant establishes the contrary, we shall presume that ‘counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.’ [Citation.] If the record ‘sheds no light on why counsel acted or failed to act in the manner challenged,’ an appellate claim of ineffective assistance of counsel must be rejected ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citations.]” (People v. Ledesma (2006) 39 Cal.4th 641, 746.) If a defendant establishes counsel’s performance was deficient, prejudice must then be established. Prejudice means a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland v. Washington, supra, 466 U.S. at p. 694.) A reasonable probability means a “probability sufficient to undermine confidence in the outcome.” (Ibid.)

Defendant fails to establish deficient representation with respect to his counsel’s failure to advise the jury about the use immunity provided to Servin. Defense counsel clearly had a strategy to entirely discredit Servin. Throughout his closing argument, defense counsel urged the jury to discount everything Servin had said, whether in or out of the courtroom, because of the many inconsistencies between his various statements. Because this argument was a major part of defense counsel’s closing argument, we quote from it at length. “So, then [Servin] was also asked, why did you lie to Detective Valentine? He said, hey, that’s the way it goes on the street. So that’s the first big lie that you have on Luis Servin. And it’s not a minor one, it’s significant. That’s a big one . . . because it involves a murder. [¶] So, after that, he met with Sergeant Wyatt a couple more times and he tells him that, yeah, in fact, 1999 he was in the alley with his friends when [Mejia] got shot and when Jose Miranda was wounded. [¶] He said that he had seen a vehicle that he knew that one of the Urrutia boys was driving and that he saw Augustine and my client Tinoco get off [and] some other unknown subject get off and that he never saw who the shooter was and he didn’t know who the other people w[ere] and he said he never saw a gun. Okay. Said he heard two shots. [¶] When he was under oath, he said he never saw who shot Mejia. He never knew who shot Luis Segura so, he did not know any of those. He lies. He tells what he thinks is good for him or for whatever reason he has. It’s easy for him, particularly, when he’s talking to law enforcement. [¶] You should challenge him saying that he saw the Urrutia car cruising and that he recognized the driver because I specifically asked him, where were you that day when you first saw the car? He said he was walking up the alley and he saw the car cruising. Well, you know that if Servin knew that was Carlos, he would have gotten the hell out of there. He didn’t see Carlos. He saw a vehicle and he saw subjects but he didn’t see him because he would have been long gone. [¶] What happened to him because later on he says that after he hears shots, he runs. That means that people who were in that car surprised him. He didn’t know who that was. That’s another of his lies, but that’s convenient and so you should challenge that because I specifically asked him and he said he was walking up the alley when he first saw the car. [¶] I asked him if he saw Mr. Tinoco that night? He said, no. Well, when are you supposed to believe a witness whether it is Servin or anybody? When you come in here and you take the oath and you raise your right hand, you’re here to tell the truth whether you’re a gang banger or whether you’re not. [¶] You can say whatever you want on the outside when you’re under oath talking to the police, you’re talking to your friends. When you come in here, the judge is here, we’re here and you’re here and we ask him and he says, no, I did not see Mr. Tinoco that night. What are you going to do with that? When did you believe Mr. Servin or do you ever believe him? [¶] . . . [¶] But [CALCRIM No.] 226 is a very important instruction. It tells you about witnesses. But at the end it says, if you decide that a witness deliberately lied about something, and Mr. Servin has certainly lied a lot and something that significant in this case, what can be more significant than lying about a murder? You should consider not believing anything that witness says. In other words, you can disregard everything that he said like he wasn’t here and he doesn’t count. Or if you think the witness lied about some things but told the truth about others, you may simply accept that part that you think is true and ignore the rest. [¶] . . . [¶] So you have to decide how you’re going to handle Mr. Servin. You certainly had the instructions that lead you and tell[] you how you can apply this. You can disregard everything he said because I’m not saying he’s a liar. It just . . . came out here in this courtroom, he made prior statements to Detective Perry and Sergeant Wyatt, and then he comes in here and looks at him right in the face and looks at you, takes the oath and says other things that are not consistent.” (Italics added.)

After discussing the reasons why the jury should refuse to accept defendant’s confession as true, defense counsel returned to why the jury should disbelieve all of Servin’s statements, whether made in or out of court. “[I]f you find that Mr. Servin was not credible and he was not believable and you decide to disregard everything he told you, then what’s left? The only thing that would be left would be the admissions of Mr. Tinoco. And that instruction [CALCRIM No. 359 on corpus delicti] says, hey, if that’s all you have, you can’t convict him. [¶] . . . [¶] If you disbelieve him and you throw it out, that’s all you have from declarations Mr. Tinoco and that’s not good enough. You have to come back with a verdict of not guilty. You may not like it [but] you all agreed that you would follow the law, you would follow the instructions. [¶] Realize there’s more than – you have a case that lies around for six years [and] then you find somebody that tells you something and you can’t blame that person for trying to follow up, you have to really be careful who that person is, who’s telling you this because what’s happened in here on this case is evil. Mr. Servin is an evil person. [¶] During jury selection, I don’t know if you recall, I asked one of the jurors, would you trust a person who would lie to a police officer? No, because he’s a liar. Talking about liars, when Mr. Servin was on the stand I asked him, do you remember being in Kern County, 1998, you were asleep in your car? He says yeah. Did the sheriff come . . . and wake you up? Says, yeah. What did he ask? What my name was. What name did you give him? Rojas. Who’s Rojas? That’s my uncle. That’s who Luis Servin is. [¶] How would you like to have some, your fate or somebody’s fate, you know, depends on the person like Luis Servin. Think about that, ladies and gentlemen. Luis Servin. He holds the key. He lies inside, outside the court. I don’t know if he lied when he was in here. I hope that he didn’t because he said he never saw Mr. Tinoco that night. You have to decide that one. And I think that’s the key. That’s reasonable doubt, ladies and gentlemen.” (Italics added.)

Defense counsel’s closing argument shows a solid and general attack on Servin’s credibility. Counsel was not ineffective in not addressing Servin’s grant of immunity because doing so might well have given more weight to the reliability of Servin’s trial testimony. Even if we were somehow to conclude defense counsel had been ineffective, there would be no prejudice to defendant. The point about Servin’s lack of credibility was made so strongly that there is no reasonable probability the result would have been different if the jury had been informed Servin was testifying under a grant of use immunity.

With respect to Miranda, even assuming defense counsel was deficient in failing to bring the use immunity grant to light, there was no prejudice. Miranda’s statements to the police were consistent with his testimony at trial – he never identified defendant as having been present, and he claimed not to have seen any of the people who shot him and killed Mejia. Mejia’s brother testified Miranda had told him (out of court) that Augustine was one of three males who got out of the car before the shooting began, and Augustine had a gun. This statement did not tie defendant directly to the shooting, however. There was no prejudice caused by defense counsel’s failure to advise the jury that Miranda was testifying pursuant to a grant of use immunity. Because Miranda’s testimony was consistent with his earlier statements, there was no reasonable probability that the result would have been different if the jury had been advised about the immunity.

Disposition

The judgment is affirmed.

WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.


Summaries of

People v. Perez-Tinoco

California Court of Appeals, Fourth District, Third Division
Mar 7, 2008
No. G037919 (Cal. Ct. App. Mar. 7, 2008)
Case details for

People v. Perez-Tinoco

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAIME CESAR PEREZ-TINOCO…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 7, 2008

Citations

No. G037919 (Cal. Ct. App. Mar. 7, 2008)