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People v. Warwick

California Court of Appeals, Fourth District, Second Division
Apr 3, 2009
No. E045404 (Cal. Ct. App. Apr. 3, 2009)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. FCH700047, Douglas M. Elwell, Judge.

Victoria H. Stafford, 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, Steve Oetting and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

Gaut, J.

1. Introduction

All statutory references are to the Penal Code unless stated otherwise.

Defendant stomped on the head of his cellmate, who had fallen on the floor, leaving the cellmate in a permanent vegetative state.

A jury convicted defendant of assault by a state prisoner “upon the person of another . . . by any means of force likely to produce great bodily injury.” (§ 4501.) The jury also found true an allegation of great bodily injury, rendering the victim comatose. (§ 12022.7, subd. (b).) A mistrial was declared on a charge of attempted murder. Defendant admitted he had suffered four prior prison terms. (§ 667.5, subd. (b).)

The court sentenced defendant to a total term of 15 years: an upper term of six years, plus five years for the great bodily injury allegation, and an additional four years for the four prior prison terms.

On appeal, defendant contends he received ineffective assistance of counsel due to Miranda error. He also contends there was a failure to give an instruction on self-defense and error in sentencing defendant to the upper term. The parties agree there was a mistake in the abstract of judgment. We affirm the judgment and order the abstract of judgment be corrected to reflect that defendant was convicted of assault with force likely to produce great bodily injury, not assault with a deadly weapon.

Miranda v. Arizona (1966) 384 U.S. 436.

2. Facts

Defendant and the victim, Thomas Fitzgerald, were uncongenial cell mates in Chino Prison.

On the day of the incident, Fitzgerald had first tried to refuse his daily psychotropic medication by yelling and swearing but ultimately he complied. After the evening meal, Fitzgerald asked to be moved from his cell because he was not getting along with defendant. He expressed relief that he would be allowed to move and returned to the cell.

About 7:15 p.m., other inmates began yelling “man down,” signifying a medical emergency. When the prison guards responded to cell 134, defendant told them Fitzgerald had been banging his head against the wall and had fallen. The guards discovered Fitzgerald prone and face-down in a pool of water on the concrete floor in front of the cell door, bleeding from the head, nonresponsive, and breathing heavily. There was a cut on his forehead. One eye was swollen and shut. The right ear was also swollen and the forehead was bleeding profusely. On his face, there was a shoe print matching the prison-issue shoes worn by defendant.

The guards arrested defendant and placed him in a detention tank. Defendant requested medical treatment for pain or an injury to his swelling right foot.

The treating physician noticed footprints on the side of Fitzgerald’s head and face, injuries consistent with being kicked against a cement floor. Fitzgerald suffered a severe brain injury, meaning he will probably remain in a coma for the rest of his life. His present vegetative state means he does not communicate or respond to stimulation. His condition requires a feeding tube, a tracheotomy and suctioning every 10 or 15 minutes, a catheter, and continuous turning to prevent bed sores.

A correctional officer and gang expert, Anthony Goetz, explained prison terminology and slang. He testified that Fitzgerald had been designated by the term CCCMS (correctional clinical case management system), the lowest level of mental health care for inmates, meaning that he was on medication. CCCMS inmates are housed with the general population. “J-Cat” is older slang for an inmate with mental health issues. “Raise your hand” is a request to be segregated. The phrase “lock it up” or “roll it up” means to be segregated from the general population in protective custody or because of violent behavior. The phrase “ball all his shit up” means an inmate should collect his personal belongings for a transfer to another facility. “Skins” or “skinheads” refers to the members of a prison gang who are white. “Got the keys” refers to the inmate who controls a gang. “PIA” means “Prison Industry Authority.”

Goetz conducted the crime scene investigation of the cell. Goetz photographed Fitzgerald’s injuries, including the PIA shoe imprints on his face. In the cell, Goetz photographed blood and water on the floor and wall and a bloody towel.

Goetz also recorded an interview with defendant, in which defendant described Fitzgerald as “nutting up,” yelling for three nights until 3:00 a.m. On the evening of the incident, Fitzgerald took a swing at defendant and then started smashing his head on the wall, knocking himself unconscious. Defendant threw water on him and began shouting “man down.” Defendant admitted kicking Fitzgerald in self-defense. He also admitted he was a “skinhead” gang member. He claimed a gang leader named “Speedy” had ordered him to get rid of Fitzgerald. At that point in the interview, Goetz gave defendant his Miranda rights. In another interview with Eric Martinez, a gang investigator, defendant claimed he acted under compulsion from an individual named “Wulfe” because of a drug debt owed by defendant. Defendant admitted hitting and kicking Fitzgerald.

3. Miranda Error

Defendant argues Goetz waited too long to give Miranda warnings until he was in the middle of interviewing defendant. Defendant contends his pre- and post-Miranda statements to Goetz and his post-Miranda statements to Martinez should be suppressed. Additionally, defendant asserts the defense motion to suppress constituted ineffective assistance of counsel because it focused only on defendant’s post-Miranda statements to Martinez and did not address his statements to Goetz. Furthermore, it was not based on the correct legal and factual arguments.

The People concede the pre-Miranda statements should have been excluded as the product of a custodial interrogation. But the People contend defendant did not suffer prejudice because his post-Miranda statements were properly admitted into evidence and because the physical evidence in the case was overwhelming. We agree.

In the first part of interviewing defendant, Goetz elicited the information that defendant was a gang member and that defendant had kicked Fitzgerald in self-defense and because defendant had been ordered to get rid of him by Speedy. It was only after defendant made these inculpatory statements that Goetz gave a Miranda warning. Then defendant initiated a discussion about what punishment he might receive and the extent of Fitzgerald’s injuries. Defendant expressed regret that he was “put . . . in a cell with a j-cat, he tells on me and everybody on the tier hears, and then I got to handle it.”

The next day, Martinez interviewed defendant and did not repeat the admonishments. Defendant explained how Wulfe had ordered him to get rid of Fitzgerald, who had mental problems. After Fitzgerald hit defendant in the face, defendant hit him back and kicked him. The defendant threw water on Fitzgerald to revive him and began yelling, “man down.”

Defendant’s trial counsel argued that defendant’s statements to Martinez should be excluded because Martinez did not repeat the Miranda warning before his interview. In order to demonstrate ineffectiveness of counsel “under the federal or state Constitutions [defendant] must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) We apply that standard to representation on appeal. [Citations.]” (People v. Osband (1996) 13 Cal.4th 622, 664.) Furthermore, “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1988) 44 Cal.3d 883, 937.) Additionally, “the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. [Citations.]” (People v. Ray (1996) 13 Cal.4th 313, 349.)

Although the parties agree defendant’s pre-Miranda statements to Goetz should have been excluded, we conclude the challenged evidence did not cause prejudicial ineffective assistance of counsel because of the other evidence that was properly admitted. In this instance, defendant’s post-Miranda statements to Goetz were made knowingly and voluntarily: “In Oregon v. Elstad (1985) 470 U.S. 298 (Elstad), the high court considered whether a suspect’s voluntary incriminating statement in custody, made pursuant to a waiver of Miranda rights, was nonetheless inadmissible because it followed an earlier incriminating statement obtained by custodial questioning without a Miranda warning. Finding that the subsequent statement need not be excluded, the Elstad majority held that (1) a Miranda violation does not require full application of the Wong Sun ‘fruit of the poisonous tree’ doctrine developed for Fourth Amendment violations; (2) instead, if an unwarned custodial statement was otherwise voluntary, a later statement must be deemed untainted if also voluntary and in compliance with Miranda; and (3) in determining whether the second statement was voluntary, the suspect’s awareness that he had already ‘let the cat out of the bag’ is not dispositive.” (People v. Storm (2002) 28 Cal.4th 1007, 1028-1029.)

In the present case, after questioning defendant and then giving a Miranda warning, Goetz asked defendant if he wanted to talk further and he assented. Defendant initiated additional conversation by saying, “I’d actually like to ask some questions too.” Defendant and Goetz proceeded to discuss a range of topics and defendant repeated again that he had been unwillingly forced by circumstances to deal with Fitzgerald.

We conclude defendant’s subsequent statement was not excluded under Elstad. A different result is not indicated under Missouri v. Seibert (2004) 542 U.S. 600 involving police questioning that intentionally violates Miranda: “In Seibert, a police officer ‘made a “conscious decision” to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question “until I get the answer that she’s already provided once.”’ (Seibert, supra, 542 U.S. at pp. 605-606.) Even though the officer acknowledged that the accused’s ultimate statement was ‘“largely a repeat of information . . . obtained” prior to the warning,’ the trial court suppressed the prewarning statements but admitted the postwarning statements. (at p. 606, . . .) The high court condemned as violative of Miranda the ‘police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession.’ (at p. 604.)” (People v. Riskin (2006) 143 Cal.App.4th 234, 242.)

The present case does not involve a violation like that described in Seibert. Goetz did not employ a deliberate two-step technique of question first, warn later. Defendant’s voluntary post-Miranda statement to Goetz was properly admitted.

Similarly, defendant’s statements to Martinez were properly admitted. (People v. Smith (2007) 40 Cal.4th 483, 504; People v. Mickle (1991) 54 Cal.3d 140, 170.) There were less than 24 hours between the two interviews and defendant was continuously in official custody. Defendant was experienced and knowledgeable about criminal procedures. He expressed no reluctance about giving a second interview to Martinez. Based on these factors, there was no reason for Martinez to repeat the Miranda warnings. (Smith, supra, at p. 504; Mickle, supra, at p. 170.)

Finally, the physical evidence in this case was obviously overwhelmingly persuasive to a jury. Fitzgerald was found unconscious and bloody in the cell he shared with defendant. Defendant’s shoe was imprinted on Fitzgerald’s face and defendant’s foot was injured. Defendant implausibly claimed Fitzgerald had knocked himself out. No rational jury would have acquitted him. Defendant has not established ineffective assistance of counsel.

4. Self-Defense Instruction

Defendant asserts the court should have given an instruction on self-defense because prison politics meant he was forced to assault Fitzgerald or risk being assaulted himself by other skinheads. Defendant does not argue he acted in self-defense against Fitzgerald himself.

A trial court has no independent duty to give instructions on a defense that is not supported by the evidence. (People v. Barnett (1998) 17 Cal.4th 1044, 1152.) Regarding self-defense: “. . . necessity is an affirmative defense recognized based on public policy considerations. (People v. Dewberry (1992) 8 Cal.App.4th 1017; People v. Heath (1989) 207 Cal.App.3d 892, 900-901.) To justify an instruction on the defense of necessity, a defendant must present evidence sufficient to establish that [he] violated the law (1) to prevent a significant and imminent evil, (2) with no reasonable legal alternative, (3) without creating a greater danger than the one avoided, (4) with a good faith belief that the criminal act was necessary to prevent the greater harm, (5) with such belief being objectively reasonable, and (6) under circumstances in which [he] did not substantially contribute to the emergency.” (People v. Kearns (1997) 55 Cal.App.4th 1128, 1134-1135, citing People v. Pepper (1996) 41 Cal.App.4th 1029, 1035; CALCRIM No. 3403.)

Defendant argues that substantial evidence reflects that he assaulted Fitzgerald to prevent an imminent assault on himself; that snitching on the gang was not a reasonable alternative; that defendant reasonably and in good faith belief believed assault on Fitzgerald did not create a greater danger and prevented a greater harm; and that defendant did not cause the emergency situation.

We disagree with defendant’s characterization of the evidence. Instead, we conclude that substantial evidence did not show defendant acted to prevent an imminent assault. Rather, the purported gang threat was inchoate and there was no evidence it was imminent. Instead of assaulting Fitzgerald, defendant could have sought to be “locked up,” or segregated from the general population in protective custody. The serious assault posed a greater danger to Fitzgerald than any ill-defined harm threatened against defendant. Nor was there any evidence defendant caused an emergency to occur. Even if the self-defense instruction had been given, it is not plausible or reasonable that there would have been a different jury verdict. We reject this claim of error.

5. Upper Term

Defendant contends the trial court violated the ex post facto clause of the federal Constitution by sentencing him to the upper term of six years under section 1170, subdivision (b), as amended by Senate Bill No. 40, since he committed his offense on July 16, 2006, before it became effective. He maintains this impermissibly allowed the court to act as a fact finder in imposing the upper-term sentence. We are bound by California Supreme Court precedent under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. Defendant nonetheless raises as an issue the legitimacy of the holding and rationale of People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).

In Cunningham v. California (2007) 549 U.S. 270, the Supreme Court concluded California’s determinate sentencing law (DSL) violates a criminal defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the extent it allows trial courts to impose an aggravated upper prison term “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, supra, at p. 275.)

In response to Cunningham, the Legislature amended the DSL effective March 30, 2007. (Sandoval, supra, 41 Cal.4th at p. 836, fn. 2.) The Sandoval court rejected an ex post facto contention similar to the one defendant makes here. It ultimately concluded “that the federal Constitution does not prohibit the application of the [Senate Bill No. 40] revised sentencing process . . . to defendants whose crimes were committed prior to the date of [this] decision . . . .” (at p. 857.) In reaching this conclusion, Sandoval noted that a law violates the ex post facto clause only if it applies to events occurring before its enactment in a manner that substantively disadvantages the offender. (at pp. 853-854.) That is not the case with Senate Bill No. 40. As Sandoval explained, “the removal of the provision calling for imposition of the middle term in the absence of any aggravating or mitigating circumstance is not intended to—and would not be expected to—have the effect of increasing the sentence for any particular crime. . . . Moreover, . . . the difference in the amount of discretion exercised by the trial court in selecting the upper term under . . . former [section 1170], as compared to the [Senate Bill No. 40] scheme . . . is not substantial.” (Sandoval, supra, at p. 855.)

Therefore, applying the procedural terms of Senate Bill No. 40 to sentencing for crimes committed before the passage of Senate Bill No. 40 violates no principle of ex post facto protection, as it is a judicial procedure deemed necessary to comply with constitutional principles. (Sandoval, supra, 41 Cal.4th at p. 855.)

Sandoval applied the terms of Senate Bill No. 40 to its case, although the crime in that case occurred before the passage of that amendment. (Sandoval, supra, 41 Cal.4th at p. 845.) Thus, courts faced with sentencing after Senate Bill No. 40 became effective must apply the terms and procedures in Senate Bill No. 40. Here, defendant was sentenced on February 8, 2008, well after Senate Bill No. 40 became effective and after Sandoval affirmed the validity of that law. (Sandoval, supra.) We therefore must reject defendant’s request to disregard the holding and rationale of Sandoval. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) As a result of the amendments to section 1170, trial courts now have discretion to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. (Sandoval, supra, at pp. 846-847.)

6. Disposition

We affirm the judgment. We order the abstract of judgment be corrected to reflect that defendant was convicted of assault with force likely to produce great bodily injury, not assault with a deadly weapon. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

We concur: Richli, Acting P. J., King, J.


Summaries of

People v. Warwick

California Court of Appeals, Fourth District, Second Division
Apr 3, 2009
No. E045404 (Cal. Ct. App. Apr. 3, 2009)
Case details for

People v. Warwick

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER DWAYNE WARWICK…

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

Date published: Apr 3, 2009

Citations

No. E045404 (Cal. Ct. App. Apr. 3, 2009)