Opinion
D073727
08-28-2018
THE PEOPLE, Plaintiff and Respondent, v. VICTOR LOPEZ SANCHEZ, Defendant and Appellant.
Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIF1600163) APPEAL from a judgment of the Superior Court of Riverside County, Irma Asberry, Judge. Affirmed in part, reversed in part, and remanded with directions. Ron Boyer, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Adrianne S. Denault, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A
A jury found Victor Lopez Sanchez guilty of inflicting corporal injury upon a spouse (Pen. Code, § 273.5, subd. (a); counts 1 & 2); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3); attempted voluntary manslaughter, as a lesser included offense of attempted murder (§§ 192, subd. (a), 664; count 4); assault with a firearm (§ 245, subd. (a)(2); count 5); discharging a firearm at an occupied vehicle (§ 246; count 6); using force or threat of force to dissuade a witness from reporting a suspected crime to law enforcement (§ 136.1, subds. (b) & (c); counts 7 & 9); making criminal threats (§ 422; counts 8 & 10); discharging a firearm at an inhabited dwelling (§ 246; count 11); intentionally and knowingly violating a court-issued domestic violence protective order (§ 273.6, subd. (a); count 12); possessing a controlled substance (Health & Saf. Code, § 11377, subd. (a); count 13); and possessing controlled substance paraphernalia (Health & Saf. Code, § 11364; count 14).
All further statutory references are to the Penal Code unless otherwise stated.
As to counts 1 and 2, the jury found true allegations Sanchez personally inflicted great bodily injury (§§ 1192.7, subd. (c)(8), 12022.7, subd. (e)). As to counts 4, 6, and 11, the jury found true allegations he personally used a firearm (§§ 1192.7, subd. (c)(8); 12022.53, subd. (c).)
Sanchez separately admitted allegations he had two prior convictions, which qualified as both prior serious felony convictions and prior strike convictions (§§ 667, subds. (a), (c) & (e)(2)(A), 1170.12, subd. (c)(2)(A).) He also admitted he was released on bail when he committed the offense of discharging a firearm at an inhabited dwelling (§ 12022.1).
After exercising its discretion to dismiss one of the prior strike conviction findings for sentencing purposes, the court sentenced Sanchez to a total prison term of 38 years 4 months for felony counts 1 through 11. The court sentenced Sanchez to a total consecutive jail term of two years six months for misdemeanor counts 12 through 14.
B
Sanchez appeals, contending we must reverse the judgment as to his felony convictions because the court violated his constitutional rights by denying his motion to exclude evidence of statements he made during an interview with a sheriff's deputy. We conclude the court should have excluded the evidence. We further conclude the error was not harmless beyond a reasonable doubt as to the count 11 conviction for discharging a firearm at an inhabited dwelling. We, therefore, reverse the judgment as to this conviction and remand the matter for further proceedings consistent with this decision. In all other respects, we affirm the judgment.
Sanchez had also contended the court violated his constitutional rights by failing to conduct a hearing and rule on his motion to represent himself. However, Sanchez withdrew this contention after we augmented the record with a reporter's transcript showing Sanchez had abandoned the motion while the court was conducting a hearing on it, but before the court could rule on it.
II
BACKGROUND
Sanchez beat his wife and drove her to a park near their home. She went to a residence near the park and the homeowner called 911. She claimed she had been attacked by two Hispanic males while in the park. She was hospitalized because of her injuries, which included facial and head contusions and a broken rib on her right side. At the hospital, she told a social worker her boyfriend had assaulted her. She also told the social worker he had assaulted her before, but this was the first time law enforcement officers were involved.
Later that morning, Sanchez asked a friend to come over and help with some painting. The friend drove his sports utility vehicle (SUV) to Sanchez's home and began painting. While the friend was bent over with his back to Sanchez, Sanchez accused the friend of having an affair with Sanchez's wife. The friend turned and saw Sanchez pointing a black handgun at him. The friend denied Sanchez's accusation. The friend had rarely spoken to Sanchez's wife and had not seen her for over a month. Sanchez said his wife was in the hospital because he had beaten her after she told him she was having an affair with the friend.
Terrified, the friend took off running, leaving his SUV at Sanchez's home. As the friend ran away, Sanchez fired three gunshots at him. The friend ran a few blocks to his parents' home and called 911. Before law enforcement responded to the 911 call, Sanchez drove his truck past the friend's parents' home. A sheriff's deputy subsequently drove the friend to Sanchez's home. Sanchez's truck was there, but Sanchez did not come outside. The friend retrieved his SUV.
Later that day, the friend was in his SUV and stopped at a stop sign when he saw Sanchez drive his truck through the intersection. Sanchez's truck window and the friend's SUV window were both down. Sanchez said something the friend could not understand. The friend then heard a gunshot and saw Sanchez holding a gun out of his truck window. The following day, the friend found a bullet hole on the driver's side window post of his SUV.
Meanwhile, Sanchez's wife was discharged from the hospital and went to visit her neighbor and her neighbor's boyfriend. Her face was swollen and unrecognizable. Sanchez's wife stayed at the neighbor's home while the neighbor and her boyfriend drove over to Sanchez's home to talk to Sanchez about what was going on between Sanchez and his wife. The neighbor spoke angrily to Sanchez and the neighbor's boyfriend asked Sanchez why he was mistreating his wife. Sanchez told them to stay out of his business and then left quickly to get something. When he returned, he lifted his shirt revealing a handgun.
Fearing for their safety, the neighbor and her boyfriend got into their truck and drove away. When the neighbor stopped to call 911, Sanchez sped toward them in his truck. As the neighbor and her boyfriend drove home, Sanchez followed and pointed a gun at them as he drove past their truck.
Later that evening, Sanchez's sister and his sister-in-law were in their home, which is on the same property as Sanchez's home, when they heard Sanchez's wife screaming for their help. The women ran out the back door and around to the front of the property. Sanchez's sister called 911 as she ran. They saw Sanchez's wife lying on the ground badly injured. Sanchez was kneeling over her covering her mouth with his hand. When Sanchez saw his sister, he screamed, "Do not call 911 because they're going to take me to jail."
Sanchez fled on foot before sheriff's deputies arrived. Meanwhile, Sanchez's wife was taken to the hospital, where she was diagnosed with a concussion, three fractured ribs on her right side, and five fractured ribs on her left side. She told Sanchez's sister and sister-in-law that Sanchez had been punching and stepping on her face. However, she would not explain her injuries to a sheriff's deputy. She also refused to take domestic violence materials the deputy offered her.
A few hours later, Sanchez's sister informed a sheriff's deputy Sanchez had returned home. The deputy searched Sanchez's home and found him hiding under a bed. The knuckles on Sanchez's right hand appeared to be swollen. The deputy also found a baggie of methamphetamine, two glass pipes, and two live rounds of .38-caliber ammunition in the home. When Sanchez saw the deputy with the methamphetamine and pipes, Sanchez said, "That's mine."
A relative bailed Sanchez out of jail. About three months later, Sanchez borrowed a gun, then drove to and fired a shotgun at the friend's parents' home. Shotgun pellets shattered the front bathroom window adjacent to the front door and lodged in a wooden beam above the window. The friend, his mother and father, and their two young grandchildren were in the home at the time.
III
DISCUSSION
A
1
The day after Sanchez fired a shotgun at the friend's parents' home, a sheriff's deputy arrested and interviewed him. During the interview, Sanchez initially denied, then admitted he drove by the friend's parents' home the prior evening. The admission occurred directly after the deputy proposed using Sanchez's cell phone to trace Sanchez's whereabouts. Nonetheless, Sanchez denied doing anything wrong and suggested any claims by his neighbors or family to the contrary were false.
The appellate record includes an audio recording of the interview and a transcript of the audio recording. There are notable differences between the two. We derived our summary from the audio recording, which the parties agree is the actual evidence of what occurred during the interview. --------
The deputy told him this was a serious matter and he could go to prison for a very long time for shooting a gun at somebody's home. Sanchez started to explain at length how the friend had betrayed him. The deputy told him that even though he had been betrayed, he could not go to people's homes and do something like that. Sanchez agreed stating, "I know. I don't do things like that but you know like—like it's." Then, the following exchange occurred:
"[DEPUTY]: Tell me—you gotta tell me what happened last night, man, because if you're not—if you don't come honest with me right now they're gonna slam the book on you, man, and you're gonna—you're gonna stay in prison for a long time. Now— now's the time that you tell everything, the truth, man. Because if you don't you're—you're gonna go away for a long time.
"SANCHEZ: I don't want to go to prison. I don't want to lose my family.
"[DEPUTY]: Was it—was it a mistake?
"SANCHEZ: I don't want to lose my family. I was furious like, you know, like he wasn't putting (unintelligible) you know? Like I never called the police for that you know.
"[DEPUTY]: Did you do something last night that was a mistake?
"SANCHEZ: I think so, bro.
"[DEPUTY]: What did you do?"
Sanchez then hedged and would not say exactly what happened despite reminders by the deputy of the seriousness of the matter. The deputy told him a witness saw what he did and if he did not tell the deputy what really happened, the deputy's report would only reflect the witness's version of events. The deputy said Sanchez needed to be honest with the deputy, which led to the following exchange:
"SANCHEZ: Okay. Well, you know, I'm gonna be honest, but you help me—you be—you know like—what—whatever you can, you know like ...
"[DEPUTY]: What do you want? We'll talk about it. What do you want? You want your car? We'll talk about your car later, okay? You need to tell me what you did over there last night."
At that point, Sanchez said he would tell the deputy the truth since the deputy already knew what happened. He told the deputy he borrowed a gun from someone, shot the gun at the window of the friend's parents' home, and then returned the gun. He denied intending to harm anyone.
Later in the interview, when it appeared Sanchez had said all he planned to say, the following exchange occurred:
"[DEPUTY]: We're not done talking.
"SANCHEZ: Hey brother, like, uh, help me a little bit, you know? Like—uh like.
"[DEPUTY]: What—what do you want? This is what I can help you with, man. Your car? We can—I can help you with your car, we ...
"SANCHEZ: But the charges ...
"[DEPUTY]: We are not gonna impound it.
"SANCHEZ: I'm, I'm gonna go to prison now, bro, for that?
"[DEPUTY]: Well, I—I don't know, man. What do you think? I mean you can't just shoot people's houses, man.
"SANCHEZ: I know, but you—you tell me like why you lie to me like you tell me, like, uh, tell me the truth I wanna help you—you know? Like this and that you know?
"[DEPUTY]: Okay. If I—if I shot somebody and—and you're the police you're seriously not gonna—you're just gonna let it go? You have to go—you have to get arrested for that, man. [¶] ... [¶] This is where it's gonna help you, okay? It's what you did last night was it a mistake or you really wanna hurt?
"SANCHEZ: It was a mistake.
"[DEPUTY]: Okay. So that's what I'm gonna write on my report.
"SANCHEZ: Yeah.
"[DEPUTY]: I'm gonna write that it was a mistake. You've been honest with me.
"SANCHEZ: Uh huh.
"[DEPUTY]: I appreciate that when. The when—the—the court looks at it they're gonna see that, you know what? [Sanchez's] going through some hard times. He's having problems with his wife. He's having problems with [the friend] and he's losing—he's losing his family. Okay? He's losing his wife.
"SANCHEZ: Mm-hm.
"[DEPUTY]: So you're going through some hard times, okay? And it was a mistake."
Near the end of the interview, after the deputy was unable to persuade Sanchez to say who had the gun, the following exchange occurred:
"[DEPUTY]: "Listen I gotta talk to my boss, man. I gotta tell him about that gun and I don't know if he's gonna be happy, man.
"SANCHEZ: I can do nothing, bro, like, uh I'm serious I—I can do nothing, like, uh, I already, you know, talk to people at criminal, like, uh, uh, but.
"[DEPUTY]: It's not in your trailer?
"SANCHEZ: It's not bro, seriously.
"[DEPUTY]: You're ready to return ...?
"SANCHEZ: If it was, um, if it was in my car, I know you gonna help me like I give it to you, you know, but it's not bro. Like serious. Don't waste time, you know."
2
During trial, Sanchez moved to exclude evidence of statements he made during the interview with the sheriff's deputy on the ground the statements were involuntary because they were motivated by express or implied promises of leniency. After listening to an audio recording of the interview and hearing the parties' arguments, the court denied the motion, finding the People had established by a preponderance of the evidence the statements were voluntary and there were no threats or promises made to Sanchez.
The prosecutor did not play the audio recording of the interview for the jury. However, the deputy who conducted the interview testified Sanchez admitting shooting at the friend's parents' home using a gun he borrowed from someone he would not identify.
B
We independently review the legal question whether an admission or confession was voluntary. Where, as here, the facts surrounding the admission or confession are audio recorded, we also independently review any factual questions. (People v. Wall (2017) 3 Cal.5th 1048, 1066 (Wall).)
1
" '[T]he state and federal Constitutions bar the prosecution from introducing a defendant's involuntary confession into evidence at trial.' " (Wall, supra, 3 Cal.5th at p. 1065.) " '[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 and inadmissible as a matter of law.' [Citation.] An improper promise 'must be causally linked' to the defendant's confession to warrant exclusion under the Fifth Amendment." (Id. at p. 1066.)
"When determining whether a promise of leniency was made, a crucial distinction is drawn between simple police encouragement to tell the truth and the promise of some benefit beyond that which ordinarily results from being truthful. '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.' " (People v. Vasila (1995) 38 Cal.App.4th 865, 874 (Vasila), quoting People v. Hill (1967) 66 Cal.2d 536, 549.)
Here, the sheriff's deputy who interviewed Sanchez told Sanchez the case against him for shooting at the friend's parents' home was serious and if he did not tell the deputy the truth about what happened, he was going to have the book slammed at him and he was going to go to prison for a long time. It is difficult to characterize these remarks by the deputy as anything other than a threat. "Since threats of harsh penalty often contain an implicit promise of more lenient treatment, they are treated as promises of leniency. [Citation.]" (People v. Cahill (1994) 22 Cal.App.4th 296, 311.)
2
A more complicated question is whether the deputy's remarks were a motivating cause of Sanchez's statements. In determining whether an impermissible threat or promise was a motivating cause of a defendant's statements, "we look to ' "all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation." ' " (Vasila, supra, 38 Cal.App.4th at p. 876; accord, People v. Dykes (2009) 46 Cal.4th 731, 752 (Dykes).)
"When considering the characteristics of the accused, we look to his 'age, sophistication, prior experience with the criminal justice system and emotional state.' " (Vasila, supra, 38 Cal.App.4th at p. 876; Dykes, supra, 46 Cal.4th at p. 752.) When considering the details of the interrogation, we look at the nature of the coercion, the length of the interrogation, its location, and its continuity. (Dykes, at p. 752.)
Most of Sanchez's personal characteristics weigh against a finding the deputy's remarks motivated Sanchez's statements. Sanchez was middle-aged at the time of the interview, he had pastored a church for many years, he spoke and understood English, he had prior experience with the criminal justice system, and he actively participated in the interview. Although Sanchez was emotional at several points during the interview, his most incriminating statements occurred at points when he was calm and they were primarily one-line responses to one-line questions.
Most of the details of the interview also weigh against a finding the deputy's remarks motivated Sanchez's statements. The deputy provided Sanchez with the proper advisements before the interview started and Sanchez agreed to speak with him knowing he had the right not to do so. The interview was relatively short, the deputy's demeanor was professional, and except for the remarks at issue on appeal, the deputy's other interrogation techniques were generally permissible.
Sanchez made his most incriminating statements after the deputy pointed out a witness had seen what Sanchez had done, not directly after the deputy's remarks at issue on appeal. Sanchez also made his most incriminating statements at the same time he was trying to portray himself as a victim of the friend's misdeeds. Thus, it appears Sanchez's statements were motivated in significant part by a belief he had already been caught and by a desire to exculpate himself.
Nonetheless, before Sanchez made his most incriminating statements, he told the deputy he was going to be honest, but he wanted the deputy to help him in whatever way the deputy could. Rather than disabuse Sanchez of the notion he would or could receive a quid pro quo for his honesty, the deputy encouraged the notion by asking Sanchez what Sanchez wanted, suggesting he could somehow help Sanchez with his car, and telling Sanchez they would discuss the matter later.
Toward the end of the interview, when Sanchez had apparently said all he planned to say, Sanchez again asked for the deputy's help and the deputy again asked him what he wanted. The two men talked over one another, with Sanchez asking for the deputy's help with the charges for shooting at the friend's parents' home and the deputy offering to help Sanchez by not impounding Sanchez's car. When the deputy balked at helping Sanchez with the charges, explaining Sanchez could not just shoot at people's homes, Sanchez reminded him he said he would help Sanchez if Sanchez told the truth. Impliedly acknowledging the offer of a quid pro quo, the deputy stated he was going to help Sanchez by writing in his report that Sanchez's conduct was a mistake. This exchange indicates the deputy's threats and subsequent remarks, while perhaps not the sole or primary motivating factor, were at least a motivating factor for Sanchez's statements. Consequently, Sanchez's statements were constitutionally involuntary and the court should have excluded any evidence of them.
3
"[W]e evaluate the harmlessness of violations of the federal Constitution under the standard set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824], which requires reversal unless the error is harmless 'beyond a reasonable doubt.' (Id. at p. 24.)" (People v. Gonzalez (2018) 5 Cal.5th 186, 195-196.) This standard " 'requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' [Citation.] 'To say that an error did not contribute to the ensuing verdict is ... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' [Citation.] Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the ... verdict actually rendered in this trial was surely unattributable to the error.' " (People v. Neal (2003) 31 Cal.4th 63, 86.)
Applying this standard in this case, we conclude beyond a reasonable doubt Sanchez's statements did not contribute to the jury's verdict for the offenses in counts 1 through 10, the offenses involving the beatings of Sanchez's wife and Sanchez's conduct toward the friend, the neighbors, and his relatives in the immediate aftermath. These offenses occurred months before the shooting of the friend's parents' home and the evidence supporting them included both the statements and testimony of the victims and witnesses as well as corroborative physical evidence. Compared to the quantity and weight of this evidence, the evidence of Sanchez's admission to shooting at the friend's parents' home was insubstantial and unimportant. Accordingly, we conclude the court's error in admitting evidence of Sanchez's statements does not require the reversal of the convictions for counts 1 through 10.
However, we cannot reach the same conclusion as to the count 11 shooting an inhabited dwelling offense. Without the evidence of Sanchez's statements, the only evidence supporting Sanchez's guilt for this offense was the evidence Sanchez had engaged in prior assaultive conduct against the friend and an eyewitness's testimony that the shooter drove the same kind of vehicle as Sanchez. There was no evidence identifying Sanchez as the shooter or physically linking him to the offense. Sanchez's statements provided the requisite identity evidence. Consequently, we conclude the court's error in admitting the evidence of Sanchez's statements to the sheriff's deputy requires reversal of the conviction for count 11.
IV
DISPOSITION
The judgment is reversed as to the conviction for count 11, shooting at an inhabited dwelling. The matter is remanded to the superior court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
McCONNELL, P. J. WE CONCUR: BENKE, J. HUFFMAN, J.