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People v. Spencer

California Court of Appeals, Fourth District, Third Division
Feb 28, 2011
No. G042637 (Cal. Ct. App. Feb. 28, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 07ZF0011, Richard F. Toohey, Judge.

Sharon G. Wrubel, 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, Barry Carlton and Gary W. Brozio, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

IKOLA, J.

A jury convicted defendant Robert Marshall Spencer of the following: murder (Pen. Code, § 187, subd. (a)), with robbery special circumstance (§ 190.2, subd. (a)(17)(A)); attempted robbery (§§ 211, 664); transportation of a controlled substance (Health & Saf. Code, § 11379, subd. (a)); and two counts of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)). The jury also found true a firearm enhancement to the controlled substance count under section 12022, subdivision (c). The trial court sentenced defendant to life in prison without the possibility of parole, plus an additional determinate term of seven years eight months.

All statutory references are to the Penal Code, unless referenced otherwise.

Defendant contends certain incriminatory evidence should have been suppressed by the court because of alleged investigatory improprieties. Namely, defendant challenges: (1) the validity of an arrest warrant, which led to defendant’s arrest and interrogation; (2) the voluntariness of statements made by defendant during the police interrogation, which led to the recovery of physical evidence implicating defendant; and (3) the voluntariness of a witness’s statements made during a police interview, which provided part of the basis for the arrest warrant and were used to impeach the same witness at trial. Defendant also claims there is insufficient evidence to support the jury’s factual finding under section 12022, subdivision (c). We reject each of defendant’s contentions and affirm the judgment.

FACTS

Jeff Mistriel bled to death from a single bullet wound that severed the femoral artery in his left thigh. Defendant was ultimately convicted of murdering Mistriel.

Investigation of Crime Prior to Ortega Interview

We base our recitation of the facts of the initial investigation on the statement of probable cause for arrest warrant attested to by a police officer. We separately discuss information obtained from witness Denise Ortega, as the allegedly coercive interview of Ortega is the basis for defendant’s claim that the search warrant was not supported by probable cause.

Shortly after midnight on August 1, 2006, police officers arrived outside a residence in response to a report of gun shots. Officers found a gunshot victim, Mistriel, on the front yard; medics pronounced Mistriel dead at the scene. The police found “two expended shell casings” near a vehicle where a trail of blood leading to Mistriel’s body began. The coroner examined Mistriel and determined he “had suffered a single gunshot wound to the upper left thigh, near the groin.” Officers also found a black “fanny pack” in the garage; the fanny pack “was covered with blood and was found to contain paperwork and ID belonging to Mistriel. The Crime Lab personnel also found a bullet inside of the fanny pack.”

Three witnesses interviewed at the scene of the crime told officers they observed from a residence a dark colored truck, “possibly [a Chevrolet] S-10 or Toyota” parked outside with the engine running before hearing two loud bangs, five seconds apart, “that sounded like a firecracker.” Thirty seconds later, the three witnesses heard a vehicle screeching away from the area; when they looked outside, the truck was gone. The three witnesses identified “Lee” and “Lisa” as possible witnesses.

The police identified “Lee” as Leroy Rogers (through phone records) and interviewed Rogers at the station. Rogers said he was with Mistriel at the residence where Mistriel was killed. Rogers identified a woman named “Denise” as someone who was also present on July 30 and July 31. Denise, angry with Mistriel for leaving her without a ride home at an auto business, broke into one of Mistriel’s vehicles. Mistriel accused Denise of stealing a laptop computer from the vehicle; Denise refused to allow Mistriel to search her vehicle. Denise made a comment about “calling her ‘skinhead’ friends for help.” Denise left the residence with two white males who arrived to pick her up after she argued with Mistriel.

Rogers claimed he was in his van with Lisa Keyner when the shooting occurred. When he heard what he thought were firecrackers, Rogers observed Mistriel and two men outside; after the men struggled, Rogers heard either one or two more “pops” and saw Mistriel staggering. Rogers decided he could not help Mistriel, and he drove away from the scene with Keyner. Rogers could not identify the two individuals, but he noted one “was wearing a Special Forces type hat. Rogers described what is referred to as a ‘Boonie’ hat.”

The police interviewed Keyner on August 8. Keyner confirmed Rogers’ description of a conflict between Denise and Mistriel, as well as Rogers’ account of what occurred when Mistriel was shot (she too could provide little detail other than the “Boonie” hat).

The crime lab processed latent fingerprints on the passenger door of one of Mistriel’s vehicles, and identified the fingerprints as those of Denise Ortega. Both Rogers and Keyner, as well as one of the three initial witnesses, indicated a booking photo of Denise Ortega was the same “Denise” who had been with Mistriel on the days leading up to his death.

An examination of the bullets retrieved from Mistriel’s body and the fanny pack by a forensics lab led to a report suggesting the bullets “were fired in and from a single firearm [and] the firearm may have been a 9mm Luger caliber pistol manufactured by Glock.”

Information Obtained From Interview of Witness Denise Ortega

Police contacted Ortega on August 22, 2006 and asked to interview her at the police station. As explained in the statement of probable cause, Ortega ultimately identified three men whom she conversed with after her argument with Mistriel: Christopher Ross, Jeffrey Ross, and defendant. Ortega told the men that Mistriel always had drugs. Ortega said defendant suggested to the Ross brothers that they return to Mistriel, rob him, and if Mistriel “says anything ‘I’ll put a cap in his ass.’” Although Ortega did not know defendant’s name, she described his physical features and indicated he was wearing a “camouflage Army hat similar to a fishing hat.” When presented with a booking photo of defendant from a prior arrest (defendant had been arrested with Christopher Ross earlier in the month), Ortega “immediately identified him as the same subject who was wearing the ‘Boonie’ hat... and had talked about robbing Mistriel.”

Following up on Ortega’s statements, the police determined the truck that Christopher Ross and defendant had been arrested in was a gray 1991 Chevy S-10 truck. Furthermore, a domestic violence report pertaining to a July 2006 incident indicated defendant’s wife “found a ‘Glock handgun’ next to [a methamphetamine] pipe and container of methamphetamine” in her garage.

Based on the totality of the information compiled during their investigation of Mistriel’s death, the police sought an arrest warrant for defendant, contending sufficient probable cause existed to arrest him for the murder of Mistriel. The magistrate signed the arrest warrant on August 25, 2006, and defendant was arrested soon thereafter, an arrest which led to the recovery of additional incriminating evidence as discussed below.

Interview of Ortega

Defendant claims Ortega’s statements to the police were coerced and she was an insufficiently reliable informant to provide probable cause for the arrest warrant. We therefore describe the police interview of Ortega in detail.

The interview occurred at the Garden Grove Police Department on August 22, 2006, and lasted from 3:44 p.m. until 7:22 p.m. Detective Mike Reynolds began the interview by introducing himself, thanking Ortega for coming to the police station, and informing her of the following: “You’re not under arrest. You’re not in any trouble. You’re free to leave. This door is unlocked. Like I said, your name came up in an incident in our city and I’m the one assigned to the case and I need to follow it up.” Reynolds obtained contact information from Ortega.

Detective Reynolds then began to ask Ortega about an incident in which someone broke into a vehicle. Ortega denied knowledge of such an incident, but acknowledged she knew Mistriel when Reynolds showed her a picture of Mistriel. Ortega then acknowledged she was with Mistriel within the last month to help him fix a vehicle. Ortega volunteered she became angry with Mistriel when he left her at an automotive store without a ride. The next morning, Ortega confronted Mistriel, but forgave him when he explained he did not intend to abandon her at the store. Ortega helped move Mistriel’s car (a Volkswagen “Bug”) and blue truck at the request of the owner of the house; “[t]he red one we didn’t move.” Ortega said Mistriel later returned and was upset that Ortega and another individual had moved Mistriel’s cars. Mistriel claimed someone had taken his property from the vehicles. She also indicated she left with her friend Chris, who arrived to provide her with gasoline for her truck.

The foregoing information was provided quickly, without apparent reservation. Detective Reynolds then stated to Ortega: “Okay. The problem is... that obviously you see I’ve talked to a lot of people or else I wouldn’t have photographs and know all these people.” “I know his red truck was broken into and I know what was taken from it and I know how it was broken into, and I don’t think you’re being totally honest with me because I found your fingerprints all over his truck.” Ortega denied moving the red truck or taking anything from any of the trucks. When told specifically there was a laptop computer missing, Ortega denied knowing anything.

Detective Reynolds again indicated he did not think Ortega was being completely honest with him, as she was leaving out important details until confronted with the fact Reynolds was already aware of such details. Ortega then identified the two men who picked her up as Chris and his brother Jeff; she claimed not to know their last name. Ortega next provided ambiguous statements about whether Mistriel looked inside her truck for the laptop.

At this point, Ortega said: “I have to be somewhere. If you want, you can go to my house right now and look inside my house. If you find anything of this guy’s.” Reynolds continued to ask questions and instructed Ortega to be honest (e.g., “Don’t dig yourself in a hole”).

After a short break, Reynolds informed Ortega that Mistriel was dead; she insisted she knew nothing about it and did not know he was dead. Reynolds stated: “Denise, this is gonna be - right now you’re not under arrest. You’re not in any trouble. This is gonna be your one time shot, your one time deal, so be totally up front with me; all right. He’s dead. Your name came up in it. You were there that day. Your truck, your everything, your two buddies, Chris and Jeff that you didn’t want to talk to me about; all right. I don’t know who Chris and Jeff are; all right. I don’t know if the reason you didn’t want to tell me is cause they’re good friends of yours. Maybe you’re afraid of them and that’s why you didn’t want to talk to me about them; all right. But - ” Ortega asked: “How did he die?” And Reynolds replied: “He was murdered; okay. And my job - like I said, your name came up and that’s why I know everything that happened that day. That’s why I knew about two guys came around a corner, not one. That’s why I know if you’re lying to me, if you’re telling me the truth. And that’s why I told you I know you’ve been lying to me or holding back.... The reason I have this door closed is so no one walks by and hears what we’re talking about. This is between me and you; all right. You know you were there that day. I know what happened there that day.”

Continuing an exchange, Reynolds explained with regard to the laptop: “But you could go to jail for a vehicle burglary. That’s a felony. Technically you could be arrested for that. You could go to jail for that. I’m not arresting you. Like I said, you’re not under arrest. You’re here voluntarily. You’re free to leave, but I need you to be honest with me; all right. I find it very hard to believe you don’t know he’s dead or you don’t know something happened to this guy.” Ortega then volunteered, “I mean I could take a polygraph test.” Ortega insisted nothing happened after she was accused by Mistriel of stealing the laptop. Ortega had not yet mentioned defendant; she said Chris, Jeff, and Jeff’s girlfriend picked Ortega up. Ortega insisted repeatedly she did not steal anything and knew nothing about Mistriel’s death.

Reynolds repeated: “I’m not saying that you’re the one that killed him. I’m not saying that; all right. Otherwise you wouldn’t be here free and voluntarily. You’d be under arrest already. I’m not saying you killed him; all right. I’m just saying I find this hard to believe....” “I know you didn’t kill him; all right. But I think you may have been involved in something you didn’t think was gonna happen.... Maybe you thought they were just gonna go beat his ass and tax him for getting on you for nothing.” “I’m just telling you... that you’re in this knee deep, your name is. Now what I’m just saying is that that doesn’t mean you’re involved.” Ortega replied she would return home and track down Chris and Jeff so they could answer the questions. Reynolds again noted this was Ortega’s opportunity to explain herself. Reynolds revisited some noncontroversial points.

Reynolds left the room, noting he would provide Ortega with his card. But when he returned, Reynolds said, “I know you need to go somewhere but let me run this by you. You say you’re willing to take a lie detector test.” When Ortega replied yes, Reynolds said: “All right. I can give you one right now; all right. And if... everything you said is true you’re not gonna see me again. You don’t need to go get the numbers. You don’t need to go get Chris and Jeff.” Ortega suggested twice she had to be somewhere. Reynolds insisted she did not “realize this is a homicide investigation.” “Your name’s in it and right now is your chance to clear your name.” Ortega resisted taking the test, but relented when Reynolds explained they would only ask a few questions about whether she knew anything about killing Mistriel.

Ortega went to a different room for a test. A different investigator, Ronny Echavarria, then explained to Ortega: “You failed pretty bad on a few things, okay, and I don’t think that’s a big shock.” “I don’t know to what extent or what involvement you have, because when the truth is told you may not have known things were gonna happen to a degree that they happened.” “And that could be your saving grace. You know what I’m saying? You’re... a mom. You have some kids; right?” “And you have your whole life ahead of you. If you try to withhold information or you try to leave some truths out, if you know in the back of your head there’s some things that you’re just afraid to say because for one it may get you in trouble or it may get you in trouble with these guys, you realize this is a murder case.” “And it’s not only that your name’s come up but it’s come up in a big way; okay. Now, you’re in a position here where we know you’re lying and we even think we know why you’re lying, cause you’re afraid of these guys and you don’t wanna be the rat; okay.” “But you have to shoot straight here; okay. We’re all adults here. I’m looking you in the eye and I’m telling you this is not the time to withhold....” “[W]e don’t really care about the laptop and breaking in. I mean that was an opportunity for us to test you to see is she being truthful or is she lying.” Echavarria represented the lie detector machine was 100 percent accurate and did not take sides.

Nevertheless, Ortega continued to deny she was afraid of her friends who picked her up and to deny knowledge of what happened to Mistriel. Echavarria explained they were not trying “to make a case on you for drug use or him slinging dope.” The process continued: the investigators cajoled Ortega to tell the truth, cataloguing all the reasons she should do so, including a reference to her “three young boys.” Ortega then admitted one lie: “The only thing I’m lying about is that I was upset with him and I didn’t break into his truck. Me and the white dude, we did. And I did take the laptop cause I was mad at him.” The process continued; Ortega admitted another lie on a minor point.

Yet another officer, Sergeant Scott Watson, entered the room and delivered yet another speech to Ortega about why she should be fully honest. Watson explained: “[S]ome people just say, hey, roll the dice, I don’t know shit, okay, and then it happens. And I don’t wanna see it happen to you cause you don’t need to get involved in this shit because of these turds. You know what I’m saying? And I don’t want to get that call and have to tell you that; okay.” “But, you know, you’ve changed a little here, a little there. But the bottom line is you don’t wanna go down for these idiots.” “[T]he guy that pulled the trigger is gonna go down along with everybody that’s involved if... we gotta prove it that way. But if you just wanna be honest and tell them the truth - and I’m just telling you this as a supervisor. I’m not gonna waste any more of your time or any more of my time. I’m gonna walk out of here and whatever you decide to do you gotta do. You gotta live with your decisions. We’re all adults.” When Watson left the room, Echavarria again returned to the subject of Ortega’s three children.

Finally, Ortega began to reveal additional information. “[Mistriel] was holding a bunch of shit and... I said, if I really wanna be an asshole I could have these guys kick your fuckin’ ass. I go, ‘cause you... were a dick to me and left me out there.” Ortega identified another individual, who drives a gray truck, who was with the Ross brothers and was previously arrested in front of Christopher Ross’s yard. The third individual asked Ortega about whether Mistriel had “dope money.” Pausing, Ortega insisted of the officers that “this can’t get repeated.” She then indicated the third individual asked where Mistriel could be found. “I heard them joking about it, about yeah, we should go down there and roll this guy.” The third individual also asked if Mistriel had drugs, to which Ortega responded that Mistriel always had drugs. The third individual also said if Mistriel resisted “he would scare him and have to cap his ass.”

According to Ortega, the third individual was a 40 year old “real skinny” white male. “But if you look on your police records about a couple weeks ago Chris and that guy got arrested.” The friend was wearing a hat, “a round one like a fisherman’s hat but it looked like an army hat.” Ortega identified a picture of defendant as the third individual; she also identified a photo of a hat as similar to the hat defendant was wearing.

Arrest of Defendant

On August 26, 2006, Officer Paul Schaff pulled over a Chevy S-10 pickup truck he saw drive through a red light. Schaff checked the license plate on his computer system and found a warrant attached to the vehicle in the name of defendant. Schaff handcuffed defendant, searched his pockets, and found a clear bag that appeared to contain methamphetamine. Schaff told defendant he was being arrested pursuant to a warrant.

On August 27, Officer Echavarria searched defendant’s truck, which had been impounded at the police station. Prior to conducting his search, Echavarria asked for defendant’s consent to do so; defendant offered information to Echavarria about how to use his car keys to access the toolbox in the back of the truck. Echavarria found illegal drugs and paraphernalia, but did not find a weapon during this search. Echavarria did not “do a detailed search, a thorough search.... I just searched for the obvious areas, expecting at some point the... truck would be searched more thoroughly at a later time.”

Interrogation of Defendant

The police interrogated defendant on the night of August 27, 2006. Officer Echavarria instructed defendant he was being questioned pursuant to a $1 million warrant for a violation of Penal Code section 187 and informed defendant of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436. Defendant freely discussed his job, several instances in the past in which he was in legal trouble, his family, his friends, and his past drug use. Defendant also extensively described what occurred when he was pulled over and arrested the day before.

Having developed a rapport with defendant, Detective Reynolds said: “All right. Like I said, there was an incident in Garden Grove, your name came up and so did Chris’s name. That’s why Chris and his brother and I’m asking you stuff about them if you know them. And your names came up, and you may or may not be involved.” “I don’t know. That’s why we’re asking you. That’s why we’re talking to you.” “[I]t sounds like, you know, [in the past] you went to court and you pretty much lay your cards on the table and... tell things the way they are and... let the chips fall where they may. I’m gonna ask you to do that today with us; all right? All I’m asking for is be honest with me. When I start talking about this, there’s a lot of different ways people can be involved in things; all right. Some to a worser extent, some to a lesser extent. And there’s a huge difference.”

When prompted to respond, defendant embarked upon extended non sequiturs.

Eventually, Reynolds confronted defendant with a description of Ortega’s statements about defendant. Echavarria then noted the following information: defendant was using drugs in the past few months; there’s a report he has a Glock; and he drives a truck that is somehow “peculiar because of other things, which we’ll go through in a minute.” Reynolds peppered defendant with questions and added there was “a huge difference” between a scenario in which defendant was along for a ride and a scenario in which defendant set out to kill someone.

Reynolds then explained: “All right. You know somebody was killed in Garden Grove. You may not have pulled the trigger, all right, but this is your only chance... [to] tell us; all right.” Echavarria confronted defendant with the neighbor’s statements about a truck matching the description of defendant’s and a “Booney” hat.

Reynolds chimed in: “Robert, look at me. All right. I haven’t fuckin’ lied to you. He hasn’t lied. Don’t lie to us; all right. There’s a big difference if you needed money and you knew a guy had some shit and you went to rob him. It went bad. There’s a huge difference to that and the going and ending up killing a guy. There’s a huge difference; all right. There’s... all kinds of shit could have happened. You maybe thought this guy’s not gonna do nothing. I got Chris with me and I can go rob him, and it just turn to shit cause he starts fighting. We don’t know till we talk to you; all right.”

Defendant still denied involvement. But defendant admitted his hat was at his uncle’s house and a Glock magazine would be in his uncle’s house if the police searched his room.

Echavarria said: “This is the deal man. Your whole life is coming down right before you.” “We know you... shot him but we don’t know if it was an accident or if this dude just reached for it and it went off.” “You gotta have the balls and the courage and you’ve just gotta say it the way it is. Because if it was an accident and you just meant to take this dude’s shit because you weren’t thinking straight or Chris is pushing you to it or this chick has put crazy thought in your mind.” Reynolds reiterated there was a “huge difference” between a robbery gone wrong and a planned murder. “[I]t’s pointing at you but it’s pointing at you in a bad way cause we don’t know what happened when you got there.”

Defendant questioned whether the police were telling him the truth, and also questioned the premise that it would make a big difference if it was an accident. Defendant suggested “if something like this did happen, it would be 10, 15 years of my life gone. Okay.” The police officers never directly remarked upon defendant’s premise that an accidental killing would result in a sentence of 10 or 15 years. Reynolds responded, “If it wasn’t an accident, do you think it would be 10 or 15 years of your life if you went there to kill him? No. It’s the rest of your life; right.” “[Y]ou got common sense. There’s a huge difference. There’s a huge difference. There’s a huge difference between guys sitting in a truck and another guy being up where it happens.” Reynolds then raised the possibility that Christopher Ross was in another interrogation room giving his side of the story, and that defendant had better do so as well.

At this point, hours into the interview, defendant confessed: “This is what happened.... Basically we went over there like I say about the laptop and everything. That’s all correct. His brother was in the car and the girl was driving the car. I think she robbed with Chris earlier that day the laptop from him, the laptops from the guy.” “I really didn’t know that I killed him.” “I wanted to rip somebody off; okay.... [A]nd I had a Glock.... [B]ut it was supposed to be, you know, just easy simple, you know, the guy was scared of Chris whenever he came to get her out of the house.... So just go and... wouldn’t be any problem at all, you know. And so - my life is done, huh?” “I’m gonna get at least ten years for this, huh?” Reynolds said he didn’t know, and both officers encouraged defendant to continue.

Defendant did so: “It happened so fast. He was inside. He was like laying down underneath his dash or something....” “I said, hey, something like you owe people money and you owe them dope and give me everything you got. You need to square up.... And when he came back up it didn’t look like he had anything in his hands per se.... And I told him like two or three times to stay where you are, don’t move, just stay where you are.... I looked to my left and Chris is gone. He looks to his left, he looks at me, he - all I remember is his grin and (inaudible) and it went off.” “I didn’t want to shoot the guy. I didn’t even mean to.”

After his statements, defendant asked, “What kind of time are we looking at right now honestly?” The officers did not answer him directly. Echavarria asked where the gun was at, and defendant described its location behind the seat back in a hidden compartment.

Recovery of Gun

After the interrogation, Reynolds searched the truck as instructed by defendant and found the Glock handgun. Reynolds also testified that the crime lab performed an extensive search on the truck after his recovery of the gun.

Evidence at Trial

The People introduced physical evidence and testimony from various witnesses during the jury trial. Defendant did not testify; the prosecutor did not attempt to introduce defendant’s confession into evidence (the record does not disclose why this attempt was not made).

DISCUSSION

Defendant raises a number of reasons why the court should have granted his pretrial motion to suppress evidence. We shall deal with each in turn.

Probable Cause Supported Issuance of the Arrest Warrant

Defendant first posits the arrest warrant (which resulted in his arrest and the subsequent discovery of additional evidence implicating him in the murder) was invalid for lack of probable cause. (See § 817, subd. (a) [magistrate shall issue arrest warrant “if, and only if, satisfied from the declaration that there exists probable cause that the offense described in the declaration has been committed and that the defendant described therein has committed the offense”].) Defendant reasons that his connection to the murder was provided solely by Ortega, whose information was coerced and therefore inherently unreliable.

Clearly, officers conducting the interview of Ortega used multiple levers to convince her to talk. They referenced Ortega’s theft of the laptop and drug issues. The police also advised Ortega to clear her name by providing information suggesting she did not want to become ensnared in the murder investigation (although she was repeatedly told they did not think she was involved). They mentioned Ortega’s children. They coaxed her with reassurances that the truth always came out eventually. And although the officers repeatedly stated Ortega was present voluntarily, Ortega’s multiple announcements that she needed to leave were cleverly rebuffed (without actually telling her she could not leave).

Defendant may not directly raise the violation of another individual’s constitutional rights against self-incrimination, unreasonable search and seizure, or right to counsel. (See People v. Jenkins (2000) 22 Cal.4th 900, 965; People v. Badgett (1995) 10 Cal.4th 330, 343 (Badgett).)

Defendant cobbles together a three-part argument. First, in the context of determining the admissibility at trial of coerced testimony, such “‘exclusion is based on the idea that coerced testimony is inherently unreliable....’” (Badgett, supra, 10 Cal.4th at pp. 338, 347 [defendant may argue his own due process rights have been violated by the admission at trial of coerced statements by third parties].) Second, Ortega provided the key information linking defendant to the murder of Mistriel. Third, Ortega’s interview was coercive; defendant reasons Ortega’s statements implicating defendant were not voluntarily provided, and, as such, were so unreliable as to preclude a finding of probable cause.

Probable cause is “‘a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.’” (People v. Knight (2004) 121 Cal.App.4th 1568, 1573.)

We reject defendant’s assertions. Given the totality of the information available to the magistrate, issuance of the arrest warrant was proper. Physical evidence supported the conclusion a crime took place (the murder of Mistriel). Defendant was known by police to drive a truck similar to that seen at the scene of the crime and police had information suggesting defendant possessed a Glock handgun, the type of gun used in the shooting of Mistriel. Two witnesses identified a man involved in Mistriel’s killing as wearing a “Boonie” hat. Several witnesses named Ortega as being involved with Mistriel in a dispute. Ortega named defendant as someone wearing a “Boonie” hat and the man amongst her acquaintances who had recommended returning to Mistriel to rob him. And, as discussed below in more detail, Ortega’s statements were not involuntary due to police coercion. Ortega was not an ideal informer, but the pertinent information she provided was corroborated by the facts and circumstances known to the police from other sources.

We further reject defendant’s assertion that the statement of probable cause was misleadingly incomplete with regard to the credibility of Ortega. (See Franks v. Delaware (1978) 438 U.S. 154, 155-156 [deliberate falsehood or reckless disregard of truth in preparation of affidavit can result in voiding of search warrant].) Certainly, the seven page statement of probable cause does not provide a chronological overview of what occurred at the Ortega interview (i.e., the statement does not describe the portion of the interview in which Ortega claimed to have no knowledge of what happened or when police officers were convincing her to talk). But the statement included the following information about Ortega: she was interviewed at the police station; she had been accused by Mistriel of stealing his laptop; she was irate with Mistriel; she was identified by other witnesses through use of her booking photo; she was affiliated with defendant, at least through mutual friends; and she knew Mistriel always had drugs. Although Ortega’s obfuscation and the police’s tactics to convince Ortega to talk during the interview certainly bear on her credibility as well, the magistrate had an accurate picture of Ortega’s credibility. The officer who prepared the statement testified he did not include what he perceived to be Ortega’s lies and the officers’ attempts to convince her to tell the truth for the basic reason that he considered Ortega’s earlier protestations of ignorance to be lies. There was probable cause supporting the issuance of the arrest warrant.

Defendant Consented to Search of Truck

Defendant also claims Echavarria improperly searched defendant’s truck prior to the interrogation of defendant (a day after defendant had been arrested and with the truck safely parked outside the police station). (See People v. Ingham (1992) 5 Cal.App.4th 326, 331 [“Once law enforcement officers have reduced personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest”].)

A defendant who is under arrest may voluntarily consent to a search. (People v. Monterroso (2004) 34 Cal.4th 743, 758.) “In ruling on a motion to suppress evidence, ‘“the power to judge the credibility of witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.”’ [Citation.] Of course, an appellate court must exercise its independent judgment as to whether, on the facts found, the search was constitutionally reasonable.” (People v. Carvajal (1988) 202 Cal.App.3d 487, 495.)

Substantial evidence supports a finding defendant voluntarily consented to the search of his truck. Although Echavarria never directly testified that defendant said “I consent, ” Echavarria testified he asked for such consent and defendant told him how to use his keys to open a tool box in the back of the truck. Consent can be manifested implicitly. (People v. Gibbs (1971) 16 Cal.App.3d 758, 764 [defendant informed officer of location of registration card and opened car door for officer]; People v. Guyette (1964) 231 Cal.App.2d 460, 464 [defendant threw keys to officer in response to request to search room].) There is no contrary evidence in the record suggesting consent was not provided for this search or that defendant was coerced. The record supports a finding that defendant voluntarily consented to Echavarria’s search, as well as the subsequent search by Reynolds after defendant carefully explained how to find his handgun in the truck.

Defendant’s Confession Was Voluntary

Defendant also claims the evidence pertaining to the Glock handgun found in defendant’s truck should have been suppressed because it was only found as a result of the allegedly coercive interrogation of defendant, which led to a confession and a subsequent identification of the location of the handgun. Obviously, there is no reason to argue over whether the confession was involuntary for its own sake, as the prosecutor did not attempt to present evidence of the confession.

“‘The Fourteenth Amendment to the federal Constitution and article I, section 15, of the state Constitution bar the prosecution from using a defendant’s involuntary confession. [Citation.] [These provisions] require[] the prosecution to establish, by a preponderance of the evidence, that a defendant’s confession was voluntary.... [¶] Under both state and federal law, courts apply a “totality of the circumstances” test to determine the voluntariness of a confession.’” (People v. Holloway (2004) 33 Cal.4th 96, 114 (Holloway).) “‘When, as here, the interview was tape-recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial court’s determination of voluntariness.’” (People v. Maury (2003) 30 Cal.4th 342, 404.)

“A statement is involuntary if it is ‘not “‘the product of a rational intellect and a free will.’”’ [Citation.] The court in making a voluntariness determination ‘examines “whether a defendant’s will was overborne” by the circumstances surrounding the giving of a confession.’ [Citation.] Coercive police tactics by themselves do not render a defendant’s statements involuntary if the defendant’s free will was not in fact overborne by the coercion and his decision to speak instead was based upon some other consideration.” (People v. Rundle (2008) 43 Cal.4th 76, 114 (Rundle), disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

“‘It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary.... Thus, “[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, ” the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, “if... 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....”’” (Holloway, supra, 33 Cal.4th at p. 115.)

Accurately describing the possible consequences of a murder conviction is permissible. (Holloway, supra, 33 Cal.4th at pp. 115-116.) Suggesting possible justifications for a homicide is not coercive; this tactic instead suggests “possible explanations of the events and offer[s] defendant an opportunity to provide the details of the crime.” (People v. Carrington (2009) 47 Cal.4th 145, 171.)

The bottom line in this case is defendant’s confession was not coerced. There were no “impermissible threats of punishment or promises of leniency.” (See Holloway, supra, 33 Cal.4th at p. 115.) Both the transcript and the video evidence of defendant’s interrogation depict an individual more than willing to talk to police about his entire life history other than the events at issue. The interviewers cleverly allowed defendant to do most of the talking, then eventually confronted him with statements made by other individuals (such as Ortega and the other witnesses) implicating defendant in Mistriel’s death. Obviously, defendant did not have a solid understanding of the prison time he faced for a murder committed by him in the course of an attempted robbery. And the police officers did not attempt to educate defendant in the intricacies of criminal sentencing law. But the interrogators were not required to do so. Defendant’s confession and associated admissions were made voluntarily.

Court Properly Permitted Impeachment of Ortega Testimony with Prior Statements

Defendant also challenges the admissibility of Ortega’s statements during her interview, which were used to impeach her trial testimony. Defendant has the burden of proof to show Ortega’s statements were involuntary. (People v. Leach (1985) 41 Cal.3d 92, 104.) Further, defendant must show the use of such statements at trial resulted in a violation of his due process rights. (See People v. Jenkins, supra, 22 Cal.4th at pp. 966-967; Badgett, supra, 10 Cal.4th at p. 348.)

Our review of the interview leads us to affirm the trial court’s conclusion that Ortega’s statements were not coerced and defendant’s due process rights were not violated by the use of such statements during the trial. The officers forthrightly stated they were not interested in an investigation of Ortega for robbery or drug offenses. They did not condition such leniency on Ortega providing information; rather, the officers sought to assure Ortega she could speak frankly about what happened with regard to the killing of Mistriel. Furthermore, even to the extent the officers can be deemed to have been implicitly offering leniency in exchange for frank discussion, such leniency did not affect defendant’s due process rights at trial under the circumstances of this case. (See Badgett, supra, 10 Cal.4th at pp. 354-355 [rejecting notion that all offers of leniency to witnesses during investigation or at trial amount to coercion such that witnesses’ statements are involuntarily extracted and inadmissible].)

Defendant does not directly challenge the voluntariness of Ortega’s testimony at trial pursuant to an immunity agreement.

Moreover, the officers did not threaten Ortega with prosecution for the murder of Mistriel if she did not cooperate. True, the officers described the reality of the situation: Ortega was linked to the killing by other witnesses and there was no clear explanation of what role, if any, she played in the killing. But this description of the circumstances did not amount to a threat that she would be prosecuted for murder if she did not cooperate. Ortega initially did not want to disclose information about defendant to the police. But her ultimate decision to identify defendant represented a voluntary choice and not a coerced surrender.

Section 12022, Subdivision (c) Enhancement Supported by Substantial Evidence

Finally, defendant challenges the sufficiency of the evidence supporting the jury’s finding that he was “personally armed with a firearm in the commission of a violation... of Section... 11379... of the Health and Safety Code....” (§ 12022, subd. (c).) The indictment accused defendant of being personally armed with a firearm while he transported methamphetamine on or about August 26, 2006. This was the date on which defendant was arrested pursuant to an arrest warrant after being pulled over for a traffic violation.

Defendant does not challenge the sufficiency of the evidence supporting his conviction under Health and Safety Code section 11379. The arresting officer found a baggie containing 5.9 grams of methamphetamine in defendant’s pocket. The next day, the police found an additional half gram of methamphetamine, two glass pipes, and a digital scale in defendant’s truck.

Nor does defendant claim there is insufficient evidence to support a finding that a gun was found in his truck. A different search of defendant’s truck resulted in the recovery of a handgun. The officer conducting this search lifted the bench seat forward and unzipped the seat cover on the bottom of the seat. There were 10 rounds loaded in the magazine, but there was not a round in the chamber of the gun.

Defendant’s specific claim is “[t]he firearm enhancement should be stricken because [defendant] was not in a position to use the gun secreted in his truck offensively or defensively in the commission of his crime of transporting methamphetamine, as required by section 12022, subdivision (c).” What does it mean to be “personally armed with a firearm in the commission of a violation” of Health and Safety Code section 11379? (§ 12022, subd. (c).)

“[A]rming under the sentence enhancement statutes does not require that a defendant utilize a firearm or even carry one on the body.” (People v. Bland (1995) 10 Cal.4th 991, 997.) “[A] firearm’s presence near a drug cache gives rise to the inference that the person in possession of the drugs kept the weapon close at hand for ‘ready access’ to aid in the drug offense.” (Id. at p. 1002.) “When (1) a defendant, while perpetrating a drug offense, knows of the presence and location of a firearm near the drugs, (2) the proximity of the gun to the drugs is not the result of mere accident or happenstance, and (3) the defendant is in a position to use the gun offensively or defensively to aid in the commission of the offense, the gun facilitates that crime and has the requisite purpose or effect with respect to its commission.” (People v. Pitto (2008) 43 Cal.4th 228, 240.)

The use of the word “personally” in section 12022, subdivision (c), “was intended to distinguish personal from vicarious liability; that is, ‘personally’ refers to the person who acts, and not to his action.” (People v. Superior Court (1991) 235 Cal.App.3d 1464, 1468, 1471.) There is no requirement under section 12022, subdivision (c), that offenders have “firearms upon their persons” rather than merely having “ready access to firearms....” (Id. at p. 1471.)

Substantial evidence supports the jury’s finding. Defendant’s loaded handgun was in the truck he was driving, while he possessed (on his person and in the truck) methamphetamine. Obviously, the gun was not in the most accessible place in the truck; but this does not mean the gun was not “readily accessible” for purposes of facilitating defendant’s transportation of methamphetamine. The jury was entitled to conclude defendant knew about the gun’s location, the placement of the gun in such location was not mere accident or happenstance, and defendant (as the driver of the truck) was in a position to use the gun to aid in the commission of his offense.

DISPOSITION

The judgment is affirmed.

WE CONCUR: O’LEARY, ACTING P. J., ARONSON, J.


Summaries of

People v. Spencer

California Court of Appeals, Fourth District, Third Division
Feb 28, 2011
No. G042637 (Cal. Ct. App. Feb. 28, 2011)
Case details for

People v. Spencer

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ROBERT MARSHALL SPENCER…

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

Date published: Feb 28, 2011

Citations

No. G042637 (Cal. Ct. App. Feb. 28, 2011)