Filed 1/6/15 P. v. See CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F066357
Plaintiff and Respondent,
(Super. Ct. No. VCF253644)
v.
TONY SEE, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Valeriano
Saucedo, Judge.
Mark Farbman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Max
Feinstat, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Following a jury trial, defendant Tony See was convicted of the murder of Oscar
Arzate (count 1) (Pen. Code, § 187, subd. (a)),1 and convicted of the attempted murders
of Christopher Nunez (count 2), Pedro Garcia (count 3), Joseph Nunez (count 4), Mariana
Duenas (count 5), and Giselle L., a minor, (count 6) (§§ 187, subd. (a), 664).2 Defendant
was sentenced to life without parole plus 525 years to life as follows: for count 1, life
without the possibility of parole plus three consecutive terms of 25 years to life for
firearm enhancements under section 12022.53, subdivision (d);3 4for counts 2 through 6,
defendant was sentenced to 15 years to life plus three consecutive terms of 25 years to
life for firearm enhancements under section 12022.53, subdivision (d).5 The trial court
imposed, inter alia, a parole revocation fine.
On appeal, defendant raises five contentions. First, he argues his trial attorney
rendered ineffective assistance when he failed to seek exclusion of defendant’s pretrial
1 All statutory references are to the Penal Code unless otherwise noted.
2 The abstract of judgment contains a scrivener’s error, showing convictions under
sections “667/187(a).” As discussed in part IV., post, we order the trial court to correct the
abstract of judgment on our own motion. (People v. Mitchell (2001) 26 Cal.4th 181, 186-187.)
3 For count 1, the information alleged firearm enhancements under section 12022.53,
subdivision (d), three times as to Arzate, Joseph Nunez, and Duenas. The verdict forms tracked
the allegations set forth in the information. It is unclear why more than one firearm enhancement
was alleged in count 1 under section 12022.53, subdivision (d).
4 For count 1, the jury found true the special circumstance that defendant committed the
offense as an active participant in a criminal street gang in violation of section 190.2,
subdivision (a)(22). For counts 1 through 6, the jury also found true special allegations that
defendant personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), personally
used a firearm (§ 12022.53, subd. (b)), and committed the crime for the benefit of a criminal
street gang (§ 186.22, subd. (b)). At sentencing, the trial court stayed these enhancements. A
detailed discussion of the jury’s findings is set forth in part IV., post.
5 For counts 2 through 6, the information alleged firearm enhancements under
section 12022.53, subdivision (d), three times in each count as to Arzate, Joseph Nunez, and
Duenas. The verdict forms tracked the allegations set forth in the information. It is unclear why
more than one firearm enhancement was alleged in counts 2 through 6 under section 12022.53,
subdivision (d).
2.
statements to police, which defendant contends were inadmissible as the result of police
coercion. Second, he maintains the trial court abused its discretion under Evidence Code
section 780 and violated his right to confront and cross-examine witnesses against him
when it excluded evidence of pending charges offered to impeach two key prosecution
witnesses. We find these two arguments unpersuasive.
Third, defendant asserts the sentences imposed on all six counts constitute cruel
and unusual punishment because, as a juvenile, he was sentenced to life without the
possibility of parole (LWOP) on count 1 without consideration, inter alia, of the
constraints imposed by the United States Supreme Court in Miller v. Alabama (2012) 567
U.S.__ [132 S.Ct. 2455] (Miller), and he was effectively sentenced to LWOP on the
remaining counts in violation of, inter alia, People v. Caballero (2012) 55 Cal.4th 262
(Caballero). Respondent concedes the sentences on counts 2 through 6 constitute cruel
and unusual punishment under Caballero, but argues the sentence on count 1 was not in
error. We accept respondent’s concession on counts 2 through 6 as proper in light of
Caballero and find defendant’s argument on count 1 persuasive because the trial court
failed to articulate the juvenile sentencing factors set forth in Miller when sentencing
defendant to LWOP. The matter is remanded for resentencing on all counts consistent
with Miller and Caballero.
Fourth, defendant contends 12 firearm enhancements under section 12022.53,
subdivision (d), must be stayed in accordance with section 12022.53, subdivision (f), and
the abstract of judgment must be corrected. Respondent concedes this point, which we
accept as proper. In addition, a clerical mistake incorrectly lists 12 additional stayed
enhancements under section 12022.53, subdivision (d), which must be modified to reflect
the 12 stayed enhancements the jury found true under section 12022.53, subdivisions (b)
and (c), but which the court stayed.
Finally, defendant argues the parole revocation fine must be stricken. In light of
the vacated sentences, we will not address this issue.
3.
We affirm the convictions but remand for resentencing. The new abstract of
judgment shall reflect 12 stayed enhancements under section 12022.53, subdivision (d),
and reflect the 12 stayed enhancements the jury found true under section 12022.53,
subdivisions (b) and (c).
FACTUAL BACKGROUND
The shooting
At approximately 2:30 a.m. on June 8, 2011, Arzate, Joseph Nunez, Christopher
Nunez, Garcia and Duenas were in the parking lot of an apartment complex at
325 Northeast 4th Street in Visalia. They were drinking and listening to music from one
of the cars in the parking lot. Giselle L. came outside from the apartment complex to
give Duenas a packet of noodles to eat.
Arzate and Joseph Nunez were members of the Norteño gang. Duenas was a
Norteño associate. No one in the group had weapons with them.
Without anyone in the group hearing a prior warning, multiple gunshots were fired
at them. Duenas was “pretty sure” more than one gun was fired and Christopher Nunez
later informed police he heard more than one gun. None of the victims either saw a
shooter or anyone fleeing the scene.
Duenas was hit by seven shotgun pellets: four in her stomach, one in her breast,
one in her arm, and one in her head. Joseph Nunez was hit in his right arm, stomach and
face. Giselle L. and Christopher Nunez were unharmed. Arzate was struck with a shot to
his head, most likely from a solid slug fired from a shotgun, and he later died. Two
birdshot pellets were recovered from inside the laceration on Arzate’s head.
Officers from the Visalia Police Department located five expended shotgun shells
on the ground by the apartments to the southwest of the victims.
4.
Amos Robinson6
Robinson lived at the corner of Northeast 4th and Grape in Visalia. During the
early morning hours on June 8, 2011, Robinson, who worked graveyard shifts and was
already awake, heard dogs barking, looked out the window of his residence, and saw a
male with a thin build and long hair walking across the neighbor’s lawn. The area was
well lit from a streetlight at the corner, the neighbor’s porch light, and Robinson’s porch
light. The male wore a large brown coat. A minute or two later, Robinson heard four or
five gunshots. Robinson ran back to his window and saw the same male walking very
fast or running back across the neighbor’s yard going in the opposite direction carrying
either a rifle or shotgun. After the male left his sight from the window, Robinson stepped
outside his residence and peaked around the corner of his house to watch the male flee.
The male appeared to run to the apartment complex across the street, where he
disappeared between the buildings. Robinson called 911, continued to watch and saw the
male peek out from between the buildings several times before he disappeared after
approximately five minutes going southbound on Northeast 5th Street.
Later that same morning, Robinson informed a police officer the male was
Hispanic. Robinson also said he would be unable to identify the male. A few days later,
police had Robinson view a six-picture lineup and he identified defendant.7 Defendant is
Asian. When Robinson made the photographic identification, he was sure of his
selection despite previously believing the male was Hispanic.
At trial, Robinson identified defendant as the male he saw holding the gun. He
explained at trial some Hispanics look slightly Asian and vice versa, but he recognized
6 In 2008, Robinson was convicted of a misdemeanor for annoying or molesting a child
under the age of 18 years pursuant to section 647.6.
7 Out of the six pictures Robinson viewed, only defendant’s photograph showed a person
with long hair, although one other photograph showed someone with a possible ponytail.
5.
defendant’s face as the male he saw on the night of the shooting despite the earlier racial
mistake and he had no doubt he identified the correct person. Robinson did not
remember telling the police officer on the morning of the shooting he could not identify
the male and he did not know why he would have said that to the officer.
On cross-examination, Robinson admitted he had “[s]light” eye issues and wore
corrective lenses, although he did not own eyeglasses on the night of the shooting
because he could not afford them. He described his eye issues as “not severe at all. I can
still recognize faces and words.” Robinson did not wear his eyeglasses while he testified.
He took three medications, which he stated did not affect his ability to comprehend.
Richard Verdugo
On the night of the shooting, Verdugo was a member of the Oriental Troops, a
rival gang of the Norteños.8 Verdugo was friends with, and distantly related by marriage
to, defendant. Verdugo knew defendant to be a member of the Oriental Troops.9
Verdugo is half Hispanic and half Asian, but he looks more Hispanic. Verdugo generally
wore his hair very short and never shoulder length.
Verdugo was staying at a residence owned by his “stepgrandmother” at
112 Northeast 5th Street in Visalia. On the day leading up to the shooting, defendant
spent time with Verdugo at that residence. They smoked marijuana and cigarettes, and
then went to a friend’s house and drank five or six beers within 45 minutes of arriving.10
8 At the time of trial, Verdugo had stopped his affiliation with the Oriental Troops gang
because of his testimony against defendant.
9 Police officers believed defendant was a member of the Lahu Pride Crip gang, a
subordinate group of the Oriental Troops, one of the Asian gangs in Visalia. Oriental Troops is a
street gang primarily located in the area where the Arzate shooting occurred. In Visalia, the
Norteños predominate. Oriental Troops are the enemy of the Norteños in Visalia. An Oriental
Troop member could gain respect by shooting at Norteños.
10 At trial, Verdugo admitted lying at the preliminary hearing when he denied he smoked
marijuana during the day of the incident.
6.
They started drinking around 10:00 p.m. that night and, according to Verdugo, defendant
appeared “stoned” and drunk. After a few hours, Verdugo and defendant returned to the
residence on Northeast 5th Street.
Defendant had a .38-special handgun, which he showed to Verdugo. Later in the
evening, defendant made a phone call to an unidentified source and asked for another
weapon. Approximately 10 to 20 minutes later, someone drove to the front of the
residence and delivered a Mossberg shotgun to defendant, who received it out in the
street. Defendant loaded the shotgun. Defendant told Verdugo he was going to “hurt” a
“Norteño.”
Verdugo went inside briefly and when he came back outside, defendant was
walking down the street holding the shotgun in his left arm and the .38 in his right hand.
Verdugo caught up to defendant, told him “it wasn’t worth it” and to return home, but
defendant said, “no.” Verdugo offered to come along and help him, but defendant
pointed the handgun at Verdugo and told him to go back home.11 Verdugo thought
defendant was acting under the influence of alcohol.
Verdugo initially walked away but stopped and hid on the corner of Grape and
Northeast 4th to watch defendant, who walked towards an apartment complex on
Northeast 4th Street. Verdugo followed defendant but at a distance. Defendant jumped
over a fence and into the parking lot of the apartment complex on Northeast 4th.12 It was
known that rival gang members lived in that area and Verdugo knew the people “hanging
out” in the parking lot were Norteños.
11 At the preliminary hearing, Verdugo testified defendant never threatened him.
12 At the preliminary hearing, Verdugo testified he saw someone jump with defendant over
the fence on Northeast 4th Street.
7.
Defendant went to the side of a car after he jumped over the fence. Verdugo was
about 50 to 85 yards away and heard defendant shout, “What’s up, Ene?”13 Verdugo saw
defendant shoot at four people who were in the parking lot. Verdugo ran back to his
residence after he saw defendant fire three times, but he heard a total of five or six shots.
After Verdugo returned to his residence, defendant arrived still holding the
shotgun. Defendant said, “I think I got ‘em.” Defendant tried to give the shotgun to
Verdugo to hide, but Verdugo refused to take it. Defendant hid the gun someplace
without Verdugo’s knowledge.
Later that night, defendant told Verdugo he received the shotgun from a man
named Elijah. The next day, Verdugo saw defendant hand the shotgun back to someone
through the window of the same car that delivered it the night before.
A month prior to trial, police paid Verdugo $300 to obtain information about the
Oriental Troops as part of a “debrief” once he left that gang. On cross-examination,
Verdugo admitted he had fired guns at people and had broken into vehicles for the gang
to earn respect.
Police investigation
On June 10, 2011, police searched the residence of Elijah Saesee at 1104 North
Mooney, located one mile from where Verdugo was staying at his stepgrandmother’s
residence, and located a 12-gauge Mossberg shotgun. Saesee knew defendant from when
he lived in Farmersville from 2002 until 2004. Saesee testified he had no involvement in
the shooting but a man named Michael, whom he did not know but was afraid of, brought
the shotgun to Saesee’s garage, left it there and said he would pick it up later. Police
conducted tests on the 12-gauge Mossberg shotgun. Three of the shells located at the
13 “Ene” refers to “Norteños.” At the preliminary hearing, Verdugo testified he was too far
away to hear whether anything was said prior to the shooting and he admitted at trial he lied at
the preliminary hearing about this.
8.
crime scene were fired from the same Mossberg but the other two shells were
inconclusive.
Defendant was arrested on June 10, 2011, after Robinson identified him. Police
interviewed defendant twice that day. The interviews were video recorded and both were
played for the jury.14 Combined, both interviews totaled approximately two hours.15
During the first interview, detective Fahoum suggested defendant shot in self-
defense, which she explained at trial she did to elicit a statement or confession from him
despite not having any such evidence. Fahoum also told defendant he faced the death
penalty five times in the first hour and 14 minutes of the approximate 90-minute
interview. She explained at trial she was not getting any truthful statements from
defendant and she wanted him to realize the seriousness of the situation. Fahoum
testified she forgot defendant was 17 years old and “it was probably a poor choice of
words on my part.” Fahoum agreed defendant was ineligible for the death penalty as a
minor and she testified she did not use that as a threat, but to “scare him” so he would
realize “this was a serious thing.” Fahoum did not see defendant react to her references
to the death penalty. Defendant did start to cry when Fahoum mentioned he would not
see his family again.
Fahoum also used “a bluff” and told defendant five witnesses saw him at the crime
scene when police only had Robinson’s identification at that time. She also told
defendant a forensic analysis of his cellular phone had been done, which was not true at
that time, in order to elicit a truthful statement from him or have him explain what
happened on the night of the shooting.
In addition, Fahoum told defendant video surveillance at a nearby store showed
him shooting, which was not accurate because, although a video existed, it was of poor
14 By stipulation, the interview transcripts were used in lieu of the reporter’s transcript.
15 A detailed description of both interviews appears in part I.A., post.
9.
quality and no positive identification was possible. Finally, Fahoum told defendant DNA
and fingerprints would link him to the crime although no such evidence existed.
Throughout the entire first interview, defendant maintained his innocence and
denied any involvement in the shooting.
Approximately 20 or 30 minutes after the conclusion of the first interview,
defendant asked to speak with officer Ford of the gang unit. Defendant had previous
contact with Ford and he indicated he would feel more comfortable speaking with him.
Ford and defendant had met approximately “20-plus” times in the prior two or three
years. Ford interviewed defendant that same day at around 6:00 or 7:00 p.m.
During the second interview, Ford continued the self-defense tactic started by
Fahoum in hopes defendant would give a truthful statement. Defendant eventually told
Ford he shot and it was done in self-defense. After Ford left, defendant retracted his
statement with another officer and again denied any involvement in the shooting.
DISCUSSION
I. Defendant’s trial counsel did not render ineffective assistance
Defendant contends his pretrial statements to police were involuntary because
Fahoum made repeated threats he would receive the death penalty, coupled with a series
of deceptions and repeated assertions he was lying. Acknowledging his trial counsel did
not seek exclusion of his statements, defendant asserts his trial attorney was
constitutionally ineffective for not objecting and maintains there was “no conceivable
tactical benefit” for not challenging his statements. He argues the admission of his
statements was prejudicial, requiring reversal of his convictions.
To prevail on an ineffective-assistance-of-counsel claim, defendant must show his
trial counsel’s performance was deficient and the deficiency caused him prejudice.
(People v. Cowan (2010) 50 Cal.4th 401, 493, fn. 31.) An attorney’s failure to seek
exclusion of admissible evidence does not amount to ineffective assistance. (People v.
Berry (1990) 224 Cal.App.3d 162, 170 [where evidence was admissible, “any motion to
10.
have it suppressed would have been futile”; “[t]herefore, counsel was not ineffective
when he failed to make the motion”].) Accordingly, to assess defendant’s claim of
ineffective assistance of counsel, we first consider whether defendant’s pretrial
statements to police were inadmissible because of coercion.
A. Factual background of defendant’s interviews
Defendant’s first interview was conducted by detectives Fahoum and Nelson. At
the beginning, Fahoum read defendant his rights under Miranda v. Arizona (1966) 384
U.S. 436 (Miranda), and he never invoked his Miranda rights.
1. First interview
Defendant stated he was 17 years old. He denied being involved with the Oriental
Troops and asserted he was at his aunt and uncle’s house on the night of the shooting.
Fahoum said police knew he was involved because “several witnesses” picked his photo
in a photo lineup, but she believed it was self-defense and, if that was true, defendant
should tell her. Defendant denied being involved.
Fahoum said three people were shot, one victim was in critical condition, and “[i]f
he dies, it’s murder. Life in prison. With three people dead it could be the death
penalty.” Defendant continued to deny being involved in the shooting and again stated
he was at his aunt and uncle’s residence in Orosi when the shooting occurred.
Fahoum asked him why people would have identified him if he was not involved
in the shooting, and asked if there was a chance he was in Visalia that night. Defendant
continued to state he was at his aunt and uncle’s residence that night. She asked him if he
realized he was going to be booked for attempted murder in juvenile hall because he was
identified on Northeast 4th Street and, if the victim died, it would be murder. She said it
was important he tell her what happened in case he was there but was not the shooter and
she said his story about being in Orosi was not true because officers saw him in Visalia
over the past week. Defendant continued to state he was not around that week.
11.
Fahoum told defendant the judge would believe the five witnesses because
defendant had a very distinct look due to his hair, thin stature and height. Defendant
changed his story slightly and said he was in Visalia “Sunday or Monday” to stop at a
store and he saw Northerners who threw gang signs at him and “they probably” saw his
face.
Fahoum said defendant’s cell phone had been forensically searched and messages
were discovered from people warning him to flee from police. She said his phone began
to ring “like crazy” around the same time police “hit” another gang member’s house.
Defendant said he did not know anything about that and continued to deny being
involved in the shooting, stating he was in Orosi that night.
Fahoum stated a local store had video surveillance equipped with night vision and
defendant stood right under the camera when the shooting occurred. Defendant indicated
he did not understand and Fahoum responded, “You’re willing to go ride a death penalty
case, life in prison or— [¶] … [¶] —penalty of death rather than tell me what these
people did to you before you had to act?” He continued to deny being at the shooting and
said he was in Orosi with his aunt and uncle. She said police would interview his aunt
and uncle and, if they said defendant was not there, he would spend the rest of his life in
jail. He continued to deny any involvement.
Fahoum stated defendant would be booked into juvenile hall because the five
“normal people” identified him and she said, “Do you know … what’s gonna happen to
you? This—today was your last day ever— [¶] … [¶] —to see your family … outside
of the jail.” At that comment, defendant expressed disbelief, asked “for what?” and
bowed his head, placing his face into his hands. She told him “unless these people shot at
you first. That changes everything.” Defendant looked up, said he was not present at the
shooting, and bowed his head back into his hands. When defendant looked up again he
appeared to be crying.
12.
Defendant asked to see some evidence linking him to the shooting so she showed
him the picture Robinson viewed to identify him and said there was a witness. Fahoum
asked if he left his aunt and uncle’s house to hang out with his friends, which is how
people saw him in the area of the shooting. Defendant changed his story again and said
he went fishing on Tuesday or Wednesday, and then went to his grandma’s house and
from there to Orosi. She asked if that happened Tuesday night and whether that could
explain why people saw him. Defendant said, “Yeah.” She asked if he hid in people’s
yards and ducked down because somebody was shooting at him, and defendant continued
to deny being involved in the shooting. She told him to stop lying, and after defendant
denied lying, she pointed out his story had changed about whether he was in Orosi or not.
Fahoum commented it made sense he was shot at because people saw him hiding
and “if somebody’s shooting at you, somebody’s shooting at you, how can you be in
trouble for that?” Defendant responded, “Um, no, you can’t get in trouble.” Fahoum
replied, “You can’t get in trouble for being a victim, right?” Defendant denied hiding.
Fahoum left the interview room and defendant put his face into his hands for
approximately six seconds before asking Nelson if Fahoum would “really help me out?”
Nelson told defendant he should tell the truth and if someone was shooting at him it
would be better to say that. Defendant said he did not know the shooter’s identity, but
police were going to “make me spend the rest of my life in prison.” Nelson said they had
enough evidence against defendant, but they wanted to give him a chance to explain what
happened in case there was an earlier fight or defendant was shot at first. Defendant
continued to deny being at the scene of the shooting.
Fahoum returned to the interview room and said she did not believe defendant
because an officer visited his aunt’s house in Orosi and he had not been there when the
13.
shooting occurred.16 Defendant stated his aunt and uncle are afraid of police and
Fahoum responded, “Well, they should be more scared that you’re gonna get the death
penalty. Right?” She told him this was his final opportunity to say if someone shot at
him first and, if so, she would put that in her report and tell the judge he was running
from the area because someone shot at him and not because he shot somebody.
Fahoum asked if he understood “DNA” and stated police would compare his DNA
with the DNA on the shotgun casing and also find his fingerprints. Defendant said he
was “not worried” because “I wasn’t around there.” He said the people who identified
him were probably the same ones who threw signs at him on Sunday or Monday when he
was passing by the store and she said the people who picked him were not gang
members. Defendant responded they could have seen him outside his grandma’s house
and she countered the witnesses said he was hiding. She told defendant the SWAT team
hit his grandma’s house and, “if you think I’m kidding, I swear to god I’m not. I don’t
lie. I go to church, I—everything. I don’t lie. I don’t—I don’t know how to lie. So I’m
not lying to you. Okay? I mean, … I’m a very honest person. I’m not lying to you. The
SWAT team just hit your grandma’s house.”
Fahoum told defendant nobody had any doubts he was the one hiding when the
police were responding to the shooting scene and “[t]here’ll be no doubt in the judge’s
mind when he sentences you to probably life. If this guy dies, it’s three people shot, one
dead, that’s the death penalty.”
Defendant continued to maintain he was not involved and he was telling the truth.
The first interview ended.
16 At trial, defendant’s uncle testified defendant did not spend the night at his residence
during the week of the shooting but did visit during the day.
14.
2. Second interview
Ford interviewed defendant that same day at around 6:00 or 7:00 p.m. Ford read
defendant his Miranda rights and defendant said he understood them. Defendant asked
Ford what was happening, and Ford said defendant was identified as the shooter and
wanted to know defendant’s side of what happened. Ford asked if defendant was
provoked before running with the shotgun, which he said police were locating over “at
Elijah’s pad.” Ford commented the shotgun would have defendant’s fingerprints on it.
Ford said, “But what I wanna know is, is this a 17-year-old that … was defending his
life? Tell me that. Please tell me that you were just trying to defend yourself.”
Defendant said, “Yeah.” Ford began to get emotional and asked defendant to tell him
what happened because they had known each other for a long time. Defendant asked, “If
I said no what would happen? If I said yes what would happen?”
Ford said he would know defendant was lying if he said “no” and he would go to
jail if he said “yeah” unless he was defending himself. Defendant asked, “That’s life,
huh? [¶] … [¶] What happened, that’s life, huh?” Ford said, “Huh?” and defendant said,
“What happened at the incident, whatever everybody was telling me, that’s life in prison,
huh?” Ford asked if defendant was defending himself, which “is a legitimate thing.”
Defendant answered, “Yeah.” Ford asked if “the guy” pulled a gun on defendant or shot
at him, and defendant said, “Yeah. Something like that, yeah.” The following exchange
occurred:
“FORD: Okay. So he shot at you[?]
“[DEFENDANT]: Yeah.
“FORD: Or did—was he getting ready to?
“[DEFENDANT]: Yeah. (Inaudible). He—he did shoot.
“FORD: He did shoot?
“[DEFENDANT]: Yeah.
15.
“FORD: So you were trying to save your life[?]
“[DEFENDANT]: Yeah. I just ran behind the bushes but I don’t know—I
don’t know who’s the shooter or nothing like that.
“FORD: Okay. How many times did you shoot at him?
“[DEFENDANT]: I didn’t shoot.
“FORD: Okay. You’re lying to me now.
“[DEFENDANT]: I didn’t shoot.”
Ford said defendant was lying because a witness saw him running with a
Mossberg shotgun. Ford told him to tell the truth and emphasized he could not promise
defendant anything, and asked again if it was self-defense, and defendant answered,
“Yeah.” Ford asked how many times defendant shot and defendant said he could not
remember, but some guys started yelling and they shot at him so he shot back. Ford
asked if defendant had the gun for protection and he answered, “Yeah. Then I was
walking then—then some of the guys started yelling something. They shot at me.”
Ford left the interview room. Another officer came in to watch defendant, who
began to banter with the officer, smiling and joking. Defendant retracted his statement he
fired in self-defense, saying he did not know who did the shooting and “I just said it was
me but I don’t wanna go down for something I didn’t do.” Defendant told the officer,
“They said they’re gonna put—give me life and I don’t know. [¶] … [¶] … I wasn’t
even involved in it.” Defendant again stated he was not at the scene of the shooting and
police had the “wrong guy.”
B. Standard of review
“Any involuntary statement obtained by a law enforcement officer from a criminal
suspect by coercion is inadmissible pursuant to the Fourteenth Amendment to the federal
Constitution and article I, section 7 of the California Constitution.” (People v. Dykes
(2009) 46 Cal.4th 731, 752.) To determine whether a confession is voluntary, courts
examine “‘“whether a defendant’s will was overborne”’” by examining all of the
16.
circumstances surrounding the confession. (Ibid.) “In making this determination, courts
apply a ‘totality of the circumstances’ test, looking at the nature of the interrogation and
the circumstances relating to the particular defendant.” (Ibid.; People v. Haley (2004) 34
Cal.4th 283, 298.) Among the factors to examine are “‘“the crucial element of police
coercion [citation]; the length of the interrogation [citation]; its location [citation]; its
continuity” as well as “the defendant’s maturity [citation]; education [citation]; physical
condition [citation]; and mental health.”’ [Citation.]” (People v. Massie (1998) 19
Cal.4th 550, 576.)
“‘The prosecution has the burden of establishing by a preponderance of the
evidence that a defendant’s confession was voluntarily made.’” (People v. Linton (2013)
56 Cal.4th 1146, 1176, quoting People v. Carrington (2009) 47 Cal.4th 145, 169
(Carrington).) “The facts surrounding an admission or confession are undisputed to the
extent the interview is tape-recorded, making the issue subject to our independent
review.” (People v. Linton, supra, at p. 1177, citing People v. McWhorter (2009) 47
Cal.4th 318, 346.)
“‘“Once a suspect has been properly advised of his [or her] rights, he [or she] may
be questioned freely so long as the questioner does not threaten harm or falsely promise
benefits. Questioning may include exchanges of information, summaries of evidence,
outline of theories of events, confrontation with contradictory facts, even debate between
police and suspect.… Yet in carrying out their interrogations the police must avoid
threats of punishment for the suspect’s failure to admit or confess particular facts and
must avoid false promises of leniency as a reward for admission or confession.…”
[Citation]’ [Citation.]” (Carrington, supra, 47 Cal.4th 145, 170, quoting People v.
Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
“‘“A confession may be found involuntary if extracted by threats or violence,
obtained by direct or implied promises, or secured by the exertion of improper influence.
[Citation.] Although coercive police activity is a necessary predicate to establish an
17.
involuntary confession, it ‘does not itself compel a finding that a resulting confession is
involuntary.’ [Citation.] The statement and the inducement must be causally linked.
[Citation.]” [Citation].’ [Citation.] A confession is not rendered involuntary by coercive
police activity that is not the ‘motivating cause’ of the defendant’s confession.
[Citation.]” (People v. Linton, supra, 56 Cal.4th at p. 1176.)
C. Analysis
1. References to the death penalty and self-defense
A minor is not eligible for the death penalty in California.17 (§190.5, subd. (a)
[death penalty may not be imposed upon any person who was under the age of 18 years
when the crime was committed].) Thus, it was not correct for Fahoum to reference the
death penalty in her interview of defendant. However, mentioning the death penalty does
not, by itself, invalidate a confession. (People v. Williams (2010) 49 Cal.4th 405, 443
(Williams); Holloway, supra, 33 Cal.4th at p. 116; People v. Ray (1996) 13 Cal.4th 313,
340.) Instead, a constitutional violation occurs in this context “‘only where officers
threaten a vulnerable or frightened suspect with the death penalty, promise leniency in
exchange for the suspect’s cooperation, and extract incriminating information as a direct
result of such express or implied threats and promises.’ [Citations.]” (Williams, supra, at
p. 443; accord, Holloway, supra, at p. 116.) Likewise, use of deceptive comments by law
enforcement does not, by itself, render subsequent statements involuntary. (Williams,
supra, at p. 443.)
Williams is instructive regarding law enforcement’s references to the death penalty
and use of deceptive comments. In Williams, the police interrogated the defendant four
separate times about his involvement in the kidnapping, robbery and murder of the
17 A trial court has discretion to sentence a juvenile between the ages of 16 and 17 years to
life without the possibility of parole for first degree murder. (§ 190.5, subd. (b); People v.
Gutierrez (2014) 58 Cal.4th 1354, 1369.)
18.
victim, and police referenced or mentioned the death penalty approximately six times
during the first interview. (Williams, supra, 49 Cal.4th at pp. 437-438.) Police told the
defendant he was involved in the killing and he was going to prison or would “‘fry in the
gas chamber.’” (Id. at p. 437.) The defendant offered various exculpatory remarks and
the officers explained they had additional evidence but wanted to hear defendant’s
account. Police told defendant they were confident he was involved in the murder but
suggested he lacked the intent to kill. (Ibid.) Officers advised the defendant to tell the
truth because the officers would “take their evidence to court and [the] defendant would
be found guilty.” (Ibid.) The defendant was told the only thing that would save him
from spending “‘life in prison … or the gas chamber’” was to tell the truth and if
defendant admitted he was wrong the judge and jury would not be so hard on him. (Id. at
pp. 437-438.) The officers again mentioned the death penalty. (Id. at p. 438.)
When the defendant denied killing anyone, the officers repeated they knew he did
not intend to kill the victim, and alluded to additional evidence that put the defendant at
the crime scene, including fingerprint evidence that did not exist. (Williams, supra, 49
Cal.4th at p. 438.) The defendant maintained the police had no evidence against him, and
he was told this was his “‘chance’” before it went “‘farther outside of this room’” to the
district attorney, judge or jury, and the defendant should tell the truth because the judge
and jury look for remorsefulness. (Ibid.) The defendant stated, “‘Kill me’” and one of
the officers added: “‘give him the gas chamber.’” (Ibid.) The defendant said,
“‘[They’re] gonna have to kill me’” and the same officer responded: “‘They will.’”
(Ibid.) The defendant was asked if he wanted to die, he denied he did, and the officers
told him to tell the truth. The defendant denied killing the victim.
The officers lied and said three people saw him with the victim at an automated
teller machine (ATM), and such evidence was going to send him “‘to the gas chamber.’”
(Williams, supra, 49 Cal.4th at p. 438.) The defendant replied he did not know what they
were talking about and the officers said these people would identify him. (Id. at
19.
pp. 438-439.) The defendant responded: “‘If they can identify me now they gonna have
to.’” (Id. at p. 439.) The officers put the defendant back into his cell and advised him to
think about remorsefulness and telling the truth. (Ibid.) Police interviewed the defendant
three more times over the next three days, and the defendant eventually admitted
kidnapping the victim, robbing her and witnessing her death at the hand of an
accomplice, but not directly causing it. (Id. at pp. 419, 439-441.) At the hearing to
determine the admissibility of the defendant’s statements, one of the officers testified the
defendant did not react emotionally to the officers’ references to the death penalty in the
first interview. (Id. at p. 439.)
The Williams court determined that neither the officers’ reference to the death
penalty nor their deception in the first interview overcame the defendant’s will.
(Williams, supra, 49 Cal.4th at p. 443.) The Supreme Court noted the defendant
exhibited “no sign of distress in response to references to the death penalty, and remained
able to parry the officers’ questions.” (Ibid.) The Williams court also noted the
defendant had experience with the criminal justice system based on past convictions of
rape and burglary, and having served a prison term. (Ibid.) Williams held the deception
used by the officers was not likely to produce unreliable self-incrimination. (Ibid.)
Further, the Supreme Court noted the defendant did not incriminate himself as a result of
the officers’ remarks but continued to deny responsibility in the face of their assertions.
(Id. at p. 444.) The Williams court was not persuaded that the officers’ “vigorous
interrogation, display of confidence in defendant’s guilt, or use of more sympathetic and
less sympathetic interrogators rendered involuntary any statement made by [the]
defendant.” (Ibid.) The Williams court noted it was evident the defendant’s will was not
overborne by the police activity in the first interview because he continued to deny any
involvement in the crime and did not make any incriminating statements until he later
believed the police had incriminating evidence. (Id. at pp. 444-445.)
20.
Here, although we disagree with Fahoum’s strategy to suggest this was a death
penalty case or to imply defendant was eligible for the death penalty, Fahoum did not
threaten a “‘vulnerable or frightened suspect’” and then promise or imply prosecutorial
leniency in exchange for his cooperation. (Williams, supra, 49 Cal.4th at p. 443.)
Further, as in Williams, defendant remained adamant throughout the first interview he
had no involvement in the shooting despite the references to the death penalty.
Defendant never asked about the death penalty or mentioned it during either of the two
interviews. Despite asking to speak with Ford, with whom he had a history and appeared
to trust, defendant never sought clarification of the death penalty. As in Williams,
defendant exhibited little distress in response to Fahoum’s references to the death
penalty, and remained able to parry the detectives’ questions. (Ibid.) References to the
death penalty did not overbear defendant’s will. Indeed, defendant never gave un
unequivocal confession.
Defendant, however, argues the death penalty was on his mind as evidenced when
he asked Ford about the consequences if he said “no” versus “yes” and Ford said
defendant would go to jail if he said yes, at which point defendant commented, “That’s
life, huh?” and when Ford did not directly respond defendant asked again, “What
happened, that’s life, huh?” Ford asked, “Huh?” and defendant asked, “What happened
at the incident, whatever everybody was telling me, that’s life in prison, huh?”
Defendant contends this exchange shows “he was looking for a reason to conclude that he
would not be sentenced to death for the case.” He further asserts this showed his concern
with exposure to the death penalty and not an understanding he could only receive a life
term, especially since Ford gave no clarifying response.
Defendant’s own actions, however, contradict his claim of coercion or
intimidation. Defendant became emotional and appeared to cry in the first interview
when told he would never see his family again outside of jail. Defendant, however, also
smiled and laughed at times throughout both interviews. In the second interview, after
21.
defendant agreed someone shot at him, he continued to deny shooting back, which is not
the behavior of one whose free will was overborne. After Ford left the interview room,
defendant appeared in very good spirits, laughing and bantering with the officer who
remained behind. Defendant’s continued denials in the second interview, and his overall
demeanor, showed he still possessed the ability to calculate his self-interest in choosing
to disclose or withhold information. (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 58.) The facts do not support defendant’s assertion Fahoum’s references to the death
penalty in the first interview was “a close temporal link” that overbore his will, rendering
his statements involuntary in the second interview.
Defendant also contends Fahoum used a “conjoined threat and promise” to induce
his statements to Ford when she first stated he was eligible for the death penalty but then
represented she would tell the judge defendant acted in self-defense. Defendant asserts
Fahoum told him he would be exonerated or receive leniency from the court if he
admitted acting in self-defense. Defendant’s argument, however, is neither supported by
the facts nor the law.
It is not coercive for law enforcement officers to discuss whether a suspect acted
in self-defense. (Carrington, supra, 47 Cal.4th at p. 171; see Holloway, supra, 33 Cal.4th
at p. 116.) It is also not coercive for law enforcement to suggest a defendant did not
intend to kill, to discuss possible explanations for the events that occurred, and to give the
suspect an opportunity to provide details of the crime. (Williams, supra, 49 Cal.4th at
p. 444.)
Holloway and Carrington are instructive in this regard. In Holloway, the
defendant was suspected in a double homicide. During the booking process, the
detectives explained the crime could result in the death penalty and the truth could not
hurt him. (Holloway, supra, 33 Cal.4th at p. 113.) The defendant continued to deny his
involvement, and the detectives persisted, asking the defendant to tell them if he blacked
22.
out or lost his temper. The defendant inquired what difference it would make and the
detective explained it made a lot of difference regarding intent. (Ibid.)
The Supreme Court addressed whether “suggestions that [the] defendant would
benefit from giving a truthful, mitigated version of the crimes … constituted implied
threats and promises of leniency sufficient to render the subsequent admissions
involuntary.” (Holloway, supra, 33 Cal.4th at p. 115.) In finding the defendant’s
statements were voluntary, the court explained that suggesting the killing could have
resulted from an accident or an uncontrollable fit of rage fell “far short of being promises
of lenient treatment in exchange for cooperation.” Rather, the remarks simply indicated
that such circumstances could act as mitigation as to the degree of homicide and merely
explained a benefit that might naturally flow from a truthful statement. (Id. at p. 116.)
In Carrington, the defendant was suspected of a home burglary in Los Altos and a
separate homicide in Palo Alto. A detective from Palo Alto and a police sergeant from
Redwood City interviewed the defendant. The defendant was told that if she cooperated
during the interview, the officers “‘would try to explain this whole thing with, with Los
Altos P.D. as [best] we can.’” (Carrington, supra, 47 Cal.4th at p. 169.) Later in the
interview, the officers confronted the defendant with incriminating evidence taken from
her residence, such as a key to the building where the homicide victim’s body was found,
the victim’s pager, information the defendant’s neighbor called the defendant on that
pager, and video surveillance footage showing she was present at a convenience store
where the victim’s ATM card was used. (Id. at pp. 169-170.) The defendant denied
involvement in the homicide. The defendant was then told that “‘what happened out
there at [the location of the homicide] was probably an accident’” and there could be
mitigating circumstances: “‘What if she scared you? She confronted you. Or maybe
there was someone else with you.’” (Id. at p. 170.) The defendant was told she should
“‘purge’” herself because she must be experiencing “‘an incredible weight’” on her
shoulders. (Ibid.) Soon after, the defendant confessed to the burglary and to the murder.
23.
The Carrington court held the defendant’s confession to the murder was not
prompted by any express or implied promise of leniency despite the officer’s statement
he would help the defendant in explaining everything to the Los Altos police. The
Supreme Court noted this was not a promise of leniency when considered in the context
both of the defendant’s prior question as to why she was arrested and the officer’s
subsequent disclaimer of any control over the burglary investigation. The Carrington
court also concluded the defendant’s confession was not prompted by the officer’s
comments because she confessed approximately one hour after his comments were made
and they confronted her with incriminating evidence linking her to the murder which, the
Supreme Court noted, apparently prompted the confession. (Carrington, supra, 47
Cal.4th at pp. 170-171.) The court dismissed the defendant’s claim that “assurances”
from the police impermissibly coerced her to confess. (Id. at p. 171.) The Carrington
court held any suggestion the homicide might have been an accident, a self-defensive
reaction or the product of fear was permissible as merely “possible explanations of the
events and offered [the] defendant an opportunity to provide the details of the crime.”
(Ibid.)
Here, like in Carrington, defendant did not make his incriminating statements
immediately after Fahoum’s alleged threats and promises. Instead, defendant’s
statements came after Ford reiterated defendant was identified running from the scene
with the shotgun, which police were locating “at Elijah’s pad.”
Further, none of the detectives represented that the police, the prosecutor or the
court would grant defendant a particular benefit if he told them how and why the
shooting occurred. (Holloway, supra, 33 Cal.4th at p. 116.) The detectives told
defendant the advantages of telling his side of the story, which is permissible. (Williams,
supra, 49 Cal.4th at p. 444.) Although Fahoum said she would tell the judge in her report
if defendant acted in self-defense, she neither stated nor implied defendant would be
charged with anything less than murder or attempted murder. Ford made it clear he could
24.
not promise defendant anything. The detectives did not make “[p]romises of
exoneration” as defendant argues. The detectives’ discussion of self-defense was
permissible and does not render defendant’s statements inadmissible. (Carrington,
supra, 47 Cal.4th at p. 171; see Holloway, supra, at p. 116.)
Defendant’s reliance on People v. McClary (1977) 20 Cal.3d 218 (McClary) and
People v. Cahill (1994) 22 Cal.App.4th 296 (Cahill) is misplaced. In McClary, the
Supreme Court reversed a first degree murder conviction based upon admission of
incriminating statements made by the 16-year-old defendant in the second of two police
interviews. The police arrested the defendant and her companion, Sonny, for the murder
of an elderly woman. In the first interview, which was suppressed at trial, the defendant
denied she or Sonny had murdered the woman although she admitted they had stayed
with the victim for a few days. (McClary, supra, at pp. 222-223.) After being advised of
her Miranda rights, she mentioned wanting an attorney four times, but the officers
ignored her requests and continued interrogating her. (Id. at pp. 223-224.) The police
indicated they had sufficient evidence to prosecute her for murder; they could prove she
was lying; she could be prosecuted as a principal or accessory after the fact depending on
her knowledge and involvement; and unless she changed her story and confessed to her
true involvement, she would be prosecuted for murder. (Ibid.) In particular, one of the
officers told her: “‘You can tell us the truth. You’re [sic] involvement can be less than
what we think it is right now. It might be more. I don’t know. You’re the one that’s
going to have to say. You can either be a direct participant, or you can be an accessory
after the fact. I don’t know which one. You’re the one that knows. What we’re going to
try you for unless your story turns out to be true and we can prove your part of the story
true, you’re going to be tried as a principal, as the person who committed the murder. Do
you understand that? Unless your story changes to where you can say something else
happened and we can prove you true, then you’re going to be tried the other way.’”
(Ibid.) In addition, the police falsely told the defendant she would face the death penalty
25.
if charged with murder. (Id. at pp. 223, 229.) The first interview lasted almost three
hours. (Id. at pp. 222, 224.)
The defendant remained in police custody following the first interview. (McClary,
supra, 20 Cal.3d at p. 224.) The police searched her apartment and brought her with
them as they conducted the search. (Ibid.) In the officers’ car following the search,
defendant said she “‘wished to tell the truth.’” She was informed that, because she had
requested an attorney before, the officers could not discuss the matter with her unless she
initiated the conversation. (Ibid.) The defendant replied she wanted to discuss the case
in the absence of an attorney and she was interviewed again. (Ibid.) She gave police
details of the crime, stating she and Sonny killed the victim after the victim tried to stab
them. (Id. at p. 225.) At the conclusion of the interview, the defendant agreed to give a
filmed reenactment of the crime, which occurred the next day. (Ibid.) The defendant’s
statements and actions during the filming were substantially similar to her statements in
the second interview. (Ibid.)
The Supreme Court found the statements in the second interview involuntary,
finding the following facts significant: “[The d]efendant, while doubtless sophisticated
for her years, was a 16-year-old girl; the officers failed to respond to any of [the]
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 [the] defendant had
remained in the officers’ presence; during the first interview [the] 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.”
(McClary, supra, 20 Cal.3d at p. 229.) The McClary court also noted “the officers
26.
strongly implied that if [the] defendant changed her story and admitted mere ‘knowledge’
of the murder, she might be charged only as an accessory after the fact.” (Ibid.)
Here, unlike in McClary, defendant never invoked his Miranda rights, never asked
for a lawyer, and never tried to terminate the interviews. Defendant was willing to talk
during the first interview and only altered his story as detectives questioned his alibi
about being in Orosi with his aunt and uncle on the night of the shooting. More
importantly, unlike in McClary, there was no “conjoined threat and promise” to induce
defendant’s statements to Ford. Defendant, however, argues the “promise” came from
Fahoum’s “representation that she would inform the judge that [defendant] was not the
shooter and was, instead, a victim acting in self-defense.” Fahoum’s statement, however,
did not promise leniency and, instead, gave defendant an opportunity to explain his side
of the story, which is permissible. (Williams, supra, 49 Cal.4th at p. 444.)
Moreover, Ford did not repeat any “misrepresentations and false promises” in the
second interview, which “carried over” from the first interview. To the contrary, Ford
wanted to know defendant’s side of what happened and said he could not make any
promises. Unlike in McClary, the officers sought an explanation for defendant’s
presence at the shooting scene and gave him an opportunity to respond without expressly
or impliedly promising to reduce his charges or exposure to criminal liability. McClary
is distinguishable and does not control.
We are also not persuaded by defendant’s reliance on Cahill. In Cahill, two
detectives interrogated defendant, who was a suspect in an investigation of a rape and
murder committed during the course of a robbery. (Cahill, supra, 22 Cal.App.4th at
p. 300.) The defendant admitted his role in several robberies, but would only discuss the
victim’s case in hypothetical terms. (Id. at pp. 301-305.) The officers told the defendant
their evidence established he was in the victim’s house and if he did not disclose any
mitigating factors he would be charged with premeditated murder. (Id. at pp. 305-306.)
The lead interrogator gave the defendant a materially deceptive synopsis of the law of
27.
murder, omitting any reference to the felony murder rule, and also repeatedly suggested
the defendant could avoid a first degree murder charge if he admitted the killing was not
premeditated. (Id. at p. 314.) Eventually, the defendant admitted he participated in an
armed robbery of the victim but claimed his friend raped and shot the victim. (Id. at
p. 308.)
The defendant in Cahill was convicted of first degree murder and, on appeal,
challenged the voluntariness of his confession, alleging the officers’ remarks amounted to
an implied promise of leniency. The court agreed, finding that “the basis” of the lead
detective’s efforts to extract a confession from the defendant was “his representation that
[the] defendant could avoid a charge of murder in the first degree if the killing were not
premeditated.” (Cahill, supra, 22 Cal.App.4th at p. 314.) According to the court, the
“thrust of [the detective’s] argument to [the] defendant was that he should tell what had
occurred to dispel the implication that the murder was premeditated” (ibid.) and the clear
implication of his remarks was that the defendant would be tried for premeditated murder
unless he admitted he was in the victim’s house and denied that he premeditated the
killing. This threat, the court found, was also an implied promise that if the defendant
admitted his role in the killing but had not premeditated, he might avoid a conviction for
first degree murder. (Ibid.) The court found the confession was the product of a “false
promise” of leniency. (Id. at p. 315.) The Cahill court noted that where the “dominant
focus” of an interview is an “implied promise of leniency” any subsequent confession
must be attributed to the implied promise. (Id. at p. 316.)
Here, unlike in Cahill, the detectives did not misstate California law regarding the
potential charges against defendant or the effect of self-defense, and they did not make
any false promises. The detectives never misled defendant about the seriousness of his
situation and they never stated or implied any prosecutorial leniency. The suggestion
defendant might have acted in self-defense was one possible explanation of the shooting
and offered defendant an opportunity to provide details about the crime, which is
28.
permissible. (Carrington, supra, 47 Cal.4th at p. 171.) Indeed, Fahoum also asked if
defendant was present at the scene but not involved in the shooting or was in Visalia on
the night of the shooting as a way to explain why defendant was identified. No “implied
promise of leniency” dominated the focus of defendant’s interviews. (Cahill, supra, 22
Cal.App.4th at p. 316.) Despite defendant’s arguments, his interviews did not proceed
“along the same lines as that in Cahill.” Fahoum never told defendant he would obtain
leniency from the court if he admitted he acted in self-defense and she never stated
defendant would be “exonerated” as defendant contends. Cahill is distinguishable and
does not control.
Viewing the interviews as a whole in all their attendant circumstances, we are
persuaded defendant’s statements were not coerced by references to the death penalty or
the detectives’ discussion of self-defense. (Williams, supra, 49 Cal.4th at p. 443;
Carrington, supra, 47 Cal.4th at p. 171; Holloway, supra, 33 Cal.4th at p. 116.)
2. Deceptions about the strength of the evidence
Police may use deceptive tactics, including lies, but a reviewing court will
consider the impact of those tactics in determining the voluntariness of an ensuing
confession. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1240-1241.) However,
“there must be a proximate causal connection between the deception or subterfuge and
the confession.” (Id. at p. 1240.)
“Where the deception is not of a type reasonably likely to procure an untrue
statement, a finding of involuntariness is unwarranted.” (People v. Farnam (2002) 28
Cal.4th 107, 182 [fabricated evidence of fingerprints on a wallet alone not of type
reasonably likely to procure an untrue confession]; People v. Thompson (1990) 50 Cal.3d
134, 166-167 [officers repeatedly lied, insisting they had forensic evidence linking the
suspect to a homicide]; In re Walker (1974) 10 Cal.3d 764, 777 [confession found
voluntary where a wounded defendant was told, perhaps deceptively, that he might die
before reaching the hospital and that he should talk to close the record].)
29.
Here, the other deceptions told by Fahoum were not of a type reasonably likely to
procure an untrue statement. (People v. Farnam, supra, 28 Cal.4th at p. 182; People v.
Thompson, supra, 50 Cal.3d at p. 167.) While scientific evidence can be persuasive,
defendant failed to demonstrate Fahoum’s brief reference to DNA or fingerprints was
“reasonably likely to procure an untrue statement.” (People v. Farnam, supra, at p. 182.)
Indeed, when told about the possibility of defendant’s DNA on the shotgun casings,
defendant simply said he was “not worried” because “I wasn’t around there.”
Likewise, when Fahoum falsely told defendant his cell phone had been
forensically searched and it contained messages from people telling him to flee the
police, defendant simply stated he did not know anything about that and the topic was
dropped. Defendant also denied being at the crime scene after both Fahoum and Nelson
falsely told him he appeared on video surveillance from a nearby store.
There is no substantive difference in coerciveness between the untrue forensic
evidence here and falsified fingerprints and forensic evidence the Supreme Court has
found unlikely to prompt a false confession. (People v. Farnam, supra, 23 Cal.4th at
p. 182 [fabricated fingerprints on a wallet]; People v. Musselwhite, supra, 17 Cal.4th at
p. 1241 [fingerprints falsely said to have been lifted from victim’s neck]; People v.
Thompson, supra, 50 Cal.3d at p. 167 [lie police had found soil samples, car tracks and
rope fibers connecting suspect to murder did not invalidate confession].)
Further, when Fahoum interrogated defendant she knew a witness (Robinson) had
identified him at the crime scene holding a weapon and attempting to hide. It is well
settled law enforcement may confront a witness with what they know. (Holloway, supra,
33 Cal.4th at p. 115.) Fahoum’s deception in exaggerating the number of indentifying
witnesses, or exaggerating their professions and standing in society, was not reasonably
likely to procure untrue statements. In any event, defendant continued to offer resistance
in both interviews, which does not demonstrate a will overborne by official coercion, but
30.
suggests an “operative ability to calculate his self-interest in choosing whether to disclose
or withhold information.” (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 58.)
We are mindful the law requires “‘special care’” when scrutinizing a record to
determine whether a juvenile’s confession was voluntary. (People v. Lessie (2010) 47
Cal.4th 1152, 1166-1167, quoting Haley v. Ohio (1948) 332 U.S. 596, 599.) However,
the law also requires an approach that looks at the totality of the circumstances, including
the length of the interview, its location, as well as the defendant’s maturity, education,
physical condition and mental health. (People v. Lessie, supra, at p. 1167; People v.
Massie, supra, 19 Cal.4th at p. 576.) We note defendant had prior experience dealing
with law enforcement as evidenced by the probationary report: six previous
misdemeanor convictions over a four-year period involving petty theft, battery,
possession of marijuana, and giving false representation of identity to peace officers. We
also note the police behaved professionally with defendant, did not verbally browbeat
him, conducted themselves courteously, offered him both food and drink, and showed
concern for his comfort. The first interview lasted approximately 90 minutes and
defendant did not appear in poor health and showed no outward sign of mental strain.
Indeed, during both interviews, he occasionally joked and smiled with the officers.
We have reviewed the interview transcripts in detail, and the totality of the
circumstances supports the conclusion defendant’s pretrial statements to police were
admissible. As a consequence, it was not ineffective assistance for defendant’s trial
counsel to not seek exclusion of defendant’s statements to police. (People v. Berry,
supra, 224 Cal.App.3d at p. 170.)
II. The trial court neither abused its discretion nor violated defendant’s
constitutional right to confront witnesses by excluding evidence of pending
charges against Robinson and Verdugo
Defendant argues the trial court abused its discretion under Evidence Code
section 780 when it denied him the right to confront Robinson and Verdugo about
31.
pending criminal charges against them. Defendant further maintains the trial court
violated his right to confront those witnesses under the Sixth and Fourteenth
Amendments to the United States Constitution.
A. Background
On July 27, 2012, the prosecutor filed an in limine motion requesting exclusion of
evidence of Robinson’s “pending felony case” under Welfare and Institutions Code
section 14107, subdivision (b)(2).18 The prosecutor also sought exclusion of Verdugo’s
pending cohabitation battery case under section 243, subdivision (e)(1).19 The motion
indicated Robinson had been offered “a misdemeanor if he repays the amount of
overpayment, but this offer was not contingent [on] him testifying in this case.”
On August 14, 2012, the trial court heard argument on the motion. Defendant’s
trial counsel argued Verdugo’s pending cohabitation battery case was probative of “bias,
interest, and motive in his potential testimony knowing he has a potential case floating
18 Welfare and Institutions Code section 14107 provides in relevant part:
“(a) Any person … who engages in any of the activities identified in
subdivision (b) is punishable by imprisonment as set forth in subdivisions (c), (d), and
(e), by a fine not exceeding three times the amount of the fraud or improper
reimbursement or value of the scheme or artifice, or by both this fine and imprisonment.
“(b) The following activities are subject to subdivision (a): [¶] … [¶]
“(2) A person knowingly submits false information for the purpose of obtaining
greater compensation than that to which he or she is legally entitled for furnishing
services or merchandise under this chapter or Chapter 8 (commencing with Section
14200). [¶] … [¶]
“(c) A violation of subdivision (a) is punishable by imprisonment in a county jail,
or in the state prison for two, three, or five years.”
19 Section 243, subdivision (e)(1), provides in relevant part: “When a battery is committed
against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of
the defendant’s child, former spouse, fiance, or fiancee, or a person with whom the defendant
currently has, or has previously had, a dating or engagement relationship, the battery is
punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a
county jail for a period of not more than one year, or by both that fine and imprisonment.”
32.
out there that he would hope that the DA would perhaps offer him some kind of deal or
immunity for his testimony. I understand he enjoys the presumption of innocence and
hasn’t suffered a conviction, but it may be relevant.”
The trial court excluded any reference to Verdugo’s pending case stating, “Unless
you have some specific evidence that he’s been in negotiations with the People for
leniency in that case for his testimony in this case, I do not see any reason to permit use
of the alleged [section] 243[, subdivision ](e)(1) case in this proceeding. [¶] Because,
clearly, if there’s some evidence that he’s been offered some deal in exchange for his
testimony, then that would go to some bias or motive to shade his testimony in this case.
But my understanding is that no such offer has been made; is that correct?” The
prosecutor answered, “No. We’ve never discussed that with him at all.”
Regarding Robinson’s pending health care fraud case, defense counsel contended
it was “the same thing” and argued the first police officer who interrogated Robinson
promised him “witness protection,” but Robinson was ineligible for such protection under
section 290.20 Defense counsel noted “I think he’s hoping for somehow the agency, or
police agency or the DA’s office to get rid of the [section] 290, although I don’t think
that’s possible. [¶] … His potential testimony may go to bias, motive, or interest
regarding his potential future of registering as a sex offender.” The prosecutor
commented “there’s nothing we can do about the [section] 290. We’ve not said we’d do
anything about that.”
The trial court stated, “I don’t think that the People can offer him anything with
respect to the [section] 290 registration. That is a requirement by state law and the
20 This is the “Sex Offender Registration Act,” which requires designated individuals to
register with local law enforcement authorities if they have been convicted of certain Penal Code
violations, including section 647.6. (§ 290, subds. (a), (b) & (c).) Robinson had a misdemeanor
conviction under section 647.6 in 2008.
33.
People are obligated as a matter of law to follow the law. [¶] So I’m going to hold to my
[tentative] ruling with respect to … Robinson.”
The court issued a written ruling stating as to Verdugo: “No reference shall be
made to [Verdugo’s pending] case. This case is simply an outstanding allegation.
[Verdugo] enjoys a presumption of innocence and has not suffered a conviction.” As to
Robinson, the ruling stated: “No reference shall be made to the [Welfare and Institutions
Code] section 14107[, subdivision ](b)(2) case. This case is simply an outstanding
allegation. [Robinson] enjoys a presumption of innocence and has not suffered a
conviction.” The trial court’s ruling, however, allowed reference to Robinson’s 2008
misdemeanor conviction for “annoying a child under 18.” The court excluded reference
to Robinson’s requirement to register pursuant to section 290 as “more prejudicial than
probative.”
B. Standard of review
“The trial court is vested with wide discretion in determining the relevance of
evidence.” (People v. Babbitt (1988) 45 Cal.3d 660, 681.) The appellate court reviews a
trial court’s ruling on the admissibility of evidence under an abuse of discretion standard.
(People v. Rowland (1992) 4 Cal.4th 238, 264.)
“‘[T]he right of confrontation and cross-examination is an essential and
fundamental requirement for the kind of fair trial which is this country’s constitutional
goal. Indeed, … to deprive an accused of the right to cross-examine the witnesses against
him is a denial of the Fourteenth Amendment’s guarantee of due process of law.’
[Citation.]” (People v. Brown (2003) 31 Cal.4th 518, 538; Evid. Code, § 780, subd. (f)
[court or jury may consider in determining credibility of a witness any matter that has any
tendency in reason to prove or disprove the truthfulness of his testimony at the hearing,
including the existence or nonexistence of bias, interest, or other motive].) However, the
right to confront witnesses is not absolute and limitations exist. (Taylor v. Illinois (1988)
484 U.S. 400, 410; People v. Pearson (2013) 56 Cal.4th 393, 454.)
34.
The right of cross-examination includes exploration of bias or prejudice, which
goes to credibility, veracity or motive. (People v. Carpenter (1999) 21 Cal.4th 1016,
1054.) The confrontation clause is violated when a criminal defendant is prohibited from
otherwise appropriate cross-examination to show the witness’s bias and to expose to the
jury inferences relating to the witness’s reliability. (People v. Frye (1998) 18 Cal.4th
894, 946, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.) Confrontation clause issues occur when the trial court places restrictions that
effectively “‘emasculate the right of cross-examination itself.’” (Delaware v. Fensterer
(1985) 474 U.S. 15, 19, quoting Smith v. Illinois (1968) 390 U.S. 129, 131.)
However, the right of cross-examination is not absolute and may, in appropriate
circumstances, “‘bow to accommodate other legitimate interests in the criminal trial
process.’ [Citation.]” (Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1138-1139;
see People v. Stritzinger (1983) 34 Cal.3d 505, 515.) The trial court has wide latitude to
impose reasonable limitations on cross-examination based on concerns about confusion
of the issues, prejudice, harassment, repetitive interview or issues that are only
marginally relevant. (People v. Pearson, supra, 56 Cal.4th at p. 455; People v. Frye,
supra, 18 Cal.4th at p. 946; see Delaware v. Van Arsdall (1986) 475 U.S. 673, 679;
People v. Cooper (1991) 53 Cal.3d 771, 817.) The trial court may apply the statutory
rules of evidence without impermissibly infringing upon a defendant’s due process rights.
(See People v. Lucas (1995) 12 Cal.4th 415, 464; People v. Fudge (1994) 7 Cal.4th 1075,
1102-1103.) Despite the confrontation clause, a trial court may limit cross-examination
of an adverse witness on the grounds set forth in Evidence Code section 352. (People v.
Quartermain (1997) 16 Cal.4th 600, 623.)
“The confrontation clause ‘guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.’ [Citations.]” (People v. Clair (1992) 2 Cal.4th 629, 656,
fn. 3; see People v. Cooper, supra, 53 Cal.3d at p. 817.) The trial court’s exercise of its
35.
discretion does not violate the Sixth Amendment unless the defendant can establish the
excluded cross-examination would have produced “‘“‘a significantly different
impression’”’” of that particular witness’s credibility. (People v. Pearson, supra, 56
Cal.4th at pp. 455-456, quoting People v. Brown, supra, 31 Cal.4th at pp. 545-546.)
The California Supreme Court has noted the problems associated with allowing
nonfelony impeachment evidence. “In general, a misdemeanor—or any other conduct
not amounting to a felony—is a less forceful indicator of immoral character or dishonesty
than is a felony. Moreover, impeachment evidence other than felony convictions entails
problems of proof, unfair surprise, and moral turpitude evaluation which felony
convictions do not present. Hence, courts may and should consider with particular care
whether the admission of such evidence might involve undue time, confusion, or
prejudice which outweighs its probative value.” (People v. Wheeler (1992) 4 Cal.4th
284, 296-297, fn. omitted.)
C. Analysis
As an initial matter, defendant concedes his trial counsel did not assert a Sixth or
Fourteenth Amendment right to cross-examine Robinson and Verdugo regarding the
pending charges. Indeed, it is difficult to determine under what basis defense counsel
argued a right to cross-examine them regarding the pending charges because the record
neither shows a written opposition to the prosecutor’s in limine motion nor did defense
counsel cite any statutory or case authority in support of his oral arguments.
Nevertheless, defendant argues the constitutional issue is appealable because an objection
on state law grounds preserves a related federal constitutional claim principally relying
on People v. Yeoman (2003) 31 Cal.4th 93 and People v. Partida (2005) 37 Cal.4th 428.
Respondent argues defendant waived his constitutional claim by failing to object in the
trial court and relies on People v. Burgener (2003) 29 Cal.4th 833, 869 and People v.
Alvarez (1996) 14 Cal.4th 155, 186.
36.
We need not decide whether defendant waived his right to appeal the present
constitutional issue or whether his defense counsel stated an objection on state law
grounds that preserved a related federal constitutional claim because, even when it is
presumed defendant preserved a federal constitutional claim, defendant’s arguments are
unpersuasive.
It is well established the defense is entitled to elicit evidence a witness is
motivated by expectations of leniency or immunity, which is probative of a bias or
motive. (People v. Pearson, supra, 56 Cal.4th at p. 455; People v. Dyer (1988) 45 Cal.3d
26, 49-50 (Dyer).) However, our Supreme Court in Dyer stated that without proof of
some agreement that could establish a bias or motive to testify against the defendant, the
fact a witness has been charged with an unrelated offense is irrelevant and any error in
failing to admit such testimony is harmless. (Dyer, supra, at p. 50; see People v. Bento
(1998) 65 Cal.App.4th 179, 194 & fn. 4.) In Dyer, the defendant wanted to cross-
examine two witnesses about charges against them in matters unrelated to the defendant’s
trial; the defendant hoped to show their testimony would secure help from the police in
the unrelated matters. (Dyer, supra, at pp. 44-45.) During in camera hearings, the
witnesses denied any connection between their testimony and the unrelated charges, and
these denials were corroborated by other evidence. (Id. at p. 48.) The trial court
excluded the proposed cross-examination. (Id. at pp. 44-46.) The Dyer court held the
trial court’s rulings did not constitute reversible error, reasoning, inter alia, the trial court
had wide discretion to limit cross-examination on the grounds of marginal relevance,
which did not impact the defendant’s rights of confrontation. (Id. at p. 48.) After noting
the charges against the two witnesses had been dismissed or reduced before they took the
witness stand against the defendant, the court held “[i]n the absence of proof of some
agreement which might furnish a bias or motive to testify against [the] defendant, the fact
that each witness had been charged with the commission of unrelated offenses was
irrelevant.” (Id. at pp. 49-50.)
37.
Here, there is no evidence either Robinson or Verdugo had an agreement or were
in negotiations with the prosecution, which might furnish a bias or motive to testify
against defendant. Thus, applying the analysis of Dyer, defendant was not deprived of
significantly probative impeachment evidence and any error in failing to admit such
evidence was harmless.21 (Dyer, supra, 45 Cal.3d at pp. 49-50; People v. Bento, supra,
65 Cal.App.4th at pp. 193-194 & fn. 4.)
Moreover, defendant was otherwise afforded an opportunity to thoroughly cross-
examine and impeach both Robinson and Verdugo. The trial court permitted defendant
to impeach Robinson on his 2008 misdemeanor conviction for annoying or harassing a
child under 18 years of age, and defense counsel confronted Robinson at trial with that
prior conviction. Defense counsel also confronted Robinson about his eyesight and need
to wear corrective lenses, and why Robinson initially thought the suspect was Hispanic.
Likewise, although Verdugo did not have any prior convictions, defense counsel
impeached him about his discrepancies between his testimony at trial versus the
preliminary hearing, questioned Verdugo about his receipt of $300 from the Visalia
Police Department, questioned Verdugo about his distance from defendant when he saw
the shots fired, questioned Verdugo about his involvement in the gang, had Verdugo
admit he had shot guns at people, had Verdugo admit he had broken into vehicles, had
Verdugo admit he was previously arrested for carrying loaded guns, and questioned
Verdugo’s testimony regarding how defendant climbed a fence while holding two
21 Defendant attempts to minimize Dyer by arguing the charges against the two witnesses at
issue there “had been dismissed or reduced before they took the witness stand against [the]
defendant.” (Dyer, supra, 45 Cal.3d at p. 50.) While it is true a decision is typically authority
only for points actually considered and decided therein (Santisas v. Goodin (1998) 17 Cal.4th
599, 620) and dictum is not binding (People v. Mendoza (2000) 23 Cal.4th 896, 915), our
Supreme Court dictum should be followed by the Court of Appeal when it is part of the Supreme
Court’s controlling analysis, as is the case for this point of law in Dyer. (People v. Rios (2013)
222 Cal.App.4th 542, 563; Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1168-1169.)
38.
weapons. As such, defendant was not prevented from effectively challenging Robinson’s
or Verdugo’s credibility. (People v. Hill (1995) 34 Cal.App.4th 727, 739.) The trial
court did not abuse its “wide latitude” under state law to exclude this collateral
impeachment evidence, which had limited relevancy to the action. (People v. Contreras
(2013) 58 Cal.4th 123, 152 [a fact may bear on a witness’s credibility and still be
collateral to the case].)
Further, presuming defendant preserved a related federal constitutional claim, so
long as the excluded evidence would not have produced a “‘“‘significantly different
impression’”’” of the witness’s credibility, the confrontation clause and related
constitutional guarantees do not limit the trial court’s discretion in this regard. (People v.
Contreras, supra, 58 Cal.4th at p. 152, quoting People v. Dement (2011) 53 Cal.4th 1, 52
[The “‘ordinary rules of evidence do not impermissibly infringe on the accused’s right to
present a defense.’”].) In light of the evidence presented at trial, the excluded evidence of
the pending charges would not have produced a “‘“‘significantly different impression’”’”
of either Robinson’s or Verdugo’s credibility amounting to a violation of the
confrontation clause and related constitutional guarantees. (People v. Contreras, supra,
at p. 152.)
Moreover, even if the trial court abused its discretion, the error was harmless. The
Supreme Court has held the application of ordinary rules of evidence does not implicate
the federal Constitution, and, thus, an appellate court reviews the allegations of error
under the “‘reasonable probability’” standard of People v. Watson (1956) 46 Cal.2d 818,
836. (People v. Harris (2005) 37 Cal.4th 310, 336; People v. Marks (2003) 31 Cal.4th
197, 226–227.) However, violations that implicate a constitutional right to confront
under the Sixth Amendment require reversal of the judgment unless the prosecution can
show “‘beyond a reasonable doubt’” the alleged error was harmless. (People v.
Rutterschmidt (2012) 55 Cal.4th 650, 661, citing Chapman v. California (1967) 386 U.S.
18, 24.)
39.
Here, under either standard, the jury would not have reached a different result had
defendant been permitted to pursue his proposed line of cross-examination against
Robinson and Verdugo. (People v. Frye, supra, 18 Cal.4th at p. 946.) This is true even
though the prosecutor did not know if his office had made any representations to
Verdugo, and the prosecutor could not know whether Verdugo had any “expectations or
hopes” that motivated him to testify a particular way, as defendant argues. In light of
Verdugo’s admission to gang involvement, shooting guns at people and breaking into
vehicles, it is beyond a reasonable doubt evidence of a pending misdemeanor charge
under section 243, subdivision (e)(1), would not have altered the jury’s impression of his
testimony. Further, we note the pending criminal charge against Robinson for alleged
welfare fraud was not related to section 290 or Robinson’s alleged desire to obtain
witness protection, the very issue which defendant contends shows Robinson might have
had a motive to testify favorably for the prosecution.
Finally, defendant’s reliance on People v. Letner and Tobin (2010) 50 Cal.4th 99
(Letner), People v. Claxton (1982) 129 Cal.App.3d 638 (Claxton), overruled on other
grounds in People v. Fuentes (1988) 61 Cal.App.4th 956, 967, footnote 10, Davis v.
Alaska (1974) 415 U.S. 308 (Davis), and People v. Allen (1978) 77 Cal.App.3d 924
(Allen) is misplaced.
In Letner, the Supreme Court rejected a Brady22 claim where the prosecution
failed to disclose one of its witnesses had an outstanding warrant for petty theft and, in a
second case, had pleaded guilty to misdemeanor theft and writing a bad check.
Acknowledging that “[i]n general, a misdemeanor—or any other conduct not amounting
to a felony—is a less forceful indicator of immoral character or dishonesty than is a
felony” (People v. Wheeler, supra, 4 Cal.4th at p. 296), Letner concluded the defendants
“have failed to demonstrate that there is a reasonable probability that had the prosecutor
22 Brady v. Maryland (1963) 373 U.S. 83 (Brady).
40.
disclosed to [the] defendants the then pending criminal matters facing [the witness]
before the prosecution called her as a witness, the jury would have reached a result more
favorable to [the] defendants. Accordingly, [the] defendants have not established that
their constitutional rights were violated.” (Letner, supra, 50 Cal.4th at p. 178.) The same
result applies here. We conclude the trial court did not abuse its discretion in denying
exploration of Robinson’s and Verdugo’s pending criminal charges. Defendant’s
reliance on Letner is misplaced.
Likewise, in Claxton this court agreed the exposure of a witness’s motivation is a
constitutionally protected right of cross-examination. The Claxton court, however, found
no prejudicial error where the trial court ruled inadmissible evidence of pending charges
and probationary status against two witnesses because the jury had other sufficient
evidence establishing the witnesses’ incarceration and defense counsel argued in closing
that the jury should consider whether the two witnesses had something to gain from their
testimony. (Claxton, supra, 129 Cal.App.3d at pp. 661-662.) Here, the jury had other
sufficient evidence to impeach Robinson’s and Verdugo’s credibility, and defense
counsel argued their credibility in light of Robinson’s past conviction and Verdugo’s
gang involvement. Claxton does not support defendant’s argument he is entitled to
reversal of his convictions.
In Davis, the defendant was charged with a burglary involving the theft of a safe.
(Davis, supra, 415 U.S. at pp. 309-311.) The key prosecution witness was a juvenile,
who testified he saw the defendant near where the abandoned safe was found. (Id. at
pp. 309-311.) Although the juvenile was on probation for burglary, the trial court barred
the defendant from cross-examining him regarding whether his probation had motivated
him to make an ill-founded identification of the defendant, either because he hoped to
shift suspicion away from himself, or because the police had applied undue pressure to
him. (Id. at p. 311.) The United States Supreme Court held that the ruling contravened
41.
the defendant’s confrontation rights, as it prevented him from raising a significant
inference of witness bias. (Id. at pp. 316-321.)
Here, unlike in Davis, the pending charges against Robinson and Verdugo were
not related to defendant’s charges, alleviating a concern they might hope to “shift
suspicion away from [them]” and onto defendant by giving false testimony. (Davis,
supra, 415 U.S. at p. 311.) Moreover, the juvenile witness in Davis had been adjudicated
and was on probation for his earlier burglaries, which raised a concern the juvenile
witness “acted out of fear or concern of possible jeopardy to his probation.” (Ibid.)
Neither Robinson nor Verdugo were on probation and, thus, in risk of a violation,
alleviating a concern they might alter their testimony in hopes of prosecutorial favor.
Davis is distinguishable and does not support defendant’s argument the trial court
violated his Sixth Amendment right to confront.
In Allen, the defendant was charged with committing robbery in concert with a
minor, who was the chief prosecution witness. On cross-examination, the defendant was
allowed to show charges were still pending against the minor arising out of that robbery,
but was refused permission to cross-examine either the minor or his mother concerning
pending charges against the minor for two other recent robberies. That refusal was held
to be reversible error because “[the] minor could have reasonably believed his
punishment would have been greater for the three charges than for the one,” and the
defendant “had the right to show that both the minor and his mother were possibly under
greater prosecution pressure because of three recent robbery charges than only one.”
(Allen, supra, 77 Cal.App.3d at p. 933.)
Here, unlike in Allen, neither Verdugo nor Robinson were charged with the same
crime as defendant. Further, neither Verdugo nor Robinson had multiple pending charges
that defendant could use to show “greater prosecution pressure” on them. (Allen, supra,
77 Cal.App.3d at p. 933.) The trial court in Allen excluded all evidence of other possible
crimes, whereas the jury here heard evidence Robinson committed a prior crime and
42.
Verdugo committed prior bad acts. Allen is distinguishable and does not warrant a
finding defendant was denied an effective right to cross-examine both Robinson and
Verdugo.
The trial court did not abuse its discretion under state law or violate defendant’s
right to cross-examine by excluding the evidence of Robinson’s and Verdugo’s unrelated
pending criminal charges. Defendant’s convictions will not be reversed.
III. Defendant must be resentenced on all counts
On count 1, defendant was sentenced to LWOP pursuant to section 190.5,
subdivision (b). Three consecutive terms of 25 years to life were also imposed on
count 1 pursuant to section 12022.53, subdivision (d). On counts 2 through 6, defendant
was sentenced to 15 years to life plus three consecutive terms of 25 years to life for
firearm enhancements for each count pursuant to section 12022.53, subdivision (d).
Regarding count 1, defendant contends the term imposed violated the Eighth
Amendment of the federal Constitution because the trial court failed to consider the
constraints imposed by Miller, supra, 567 U.S. __ [132 S.Ct. 2455], and because the trial
court used an “unconstitutional presumption” in favor of LWOP. Regarding counts 2
through 6, defendant maintains the sentences are the “functional equivalent” of LWOP
and violate the Eighth Amendment.
Respondent argues defendant’s sentence in count 1 should be affirmed because
section 190.5, subdivision (b), is constitutional and the trial court did not violate Miller.
Respondent, however, concedes the sentences on the remaining counts violate the Eighth
Amendment under Caballero, supra, 55 Cal.4th 262.
A. Background
Prior to sentencing, defendant objected to the application of section 190.5,
subdivision (b), to his case on the ground that, under Miller and Graham v. Florida
(2010) 560 U.S. 48 [130 S.Ct. 2011] (Graham), a term of LWOP or any consecutive
sentences imposed on all counts would constitute cruel and unusual punishment violating
43.
the Eighth Amendment. The prosecutor submitted briefing asserting the trial court’s
discretion to impose a term of 25 years to life alleviated the concerns stated in Miller and
imposition of LWOP would not violate the Eighth Amendment. At the December 7,
2012, sentencing hearing, the prosecutor argued that, based on the offense and
defendant’s history, defendant did not have the ability to change.
Regarding the LWOP sentence, the court stated the following at the sentencing
hearing:
“Counsel and [defendant], this is a weighty decision that the Court
must make. I’ve considered the entire matter. And having heard the trial in
this matter and having reviewed the People’s brief, the defense brief, and
Probation’s recommendation, I am struck by the factors listed beginning at
[p]age 7 of the People’s brief, the facts relating to the crime.
“The People recite each of the rules that they believe are applicable
in the Court’s evaluation of this matter. I’ve read the rules and their
arguments, including citation to the facts of this matter, and I agree with
their recitation of the rules and the facts, so I will incorporate those matters
into the record as if fully set forth therein.
“I wish for the record to expressly show that I’ve read and
considered these matters and I adopt them. The facts relating to the crime
are at [p]ages 7, 8, and the top of [p]age 9 of the People’s brief.
“I also reviewed at [p]ages 9 and 10 the facts concerning the
defendant. Again, the People cite to the applicable rules, and I read their
citation to the record and to the facts of this matter, and I do agree with
respect to the facts concerning the defendant as recited by the People at
[p]ages 9 and 10.
“Turning to [p]age 10 of the People’s brief, the People cite the
factors of mitigation. They argue that the factors in mitigation do not
apply. They cite to the applicable rules at [p]age 10 and at the top of …
[p]age 11. I agree with the People’s recitation with respect to factors in
mitigation that do not apply.
“Turning to [p]age 11, the People recite factors of mitigation that do
not apply to the defendant, and I have read and considered those matters.
Again, they cite to the facts and to the circumstances here, and I agree with
the People’s recitation.
44.
“Counsel, I review these matters because the Court is aware of …
section 190.5[, subdivision ](b), which states, in relevant part, ‘The penalty
for a defendant found guilty of murder in the first degree in any case in
which one or more special circumstances enumerated in section 190.2 or
190.25 has been found to be true under section 190.4, who was 16 years of
age or older and under the age of 18 years at the time of the commission of
the crime, shall be confined in the State prison for life without the
possibility of parole or, at the discretion of the Court, 25 years to life.’
“The Court, understanding its discretion under this statute and
having considered the facts and circumstances here and having heard the
trial in this matter, agrees with the People that in this instance it should not
follow Probation’s recommendation, but rather that the Court should
impose the sentencing scheme as suggested by the People at [p]ages 13 and
14 of their brief. So I will impose that as the sentence in this matter.”
The prosecutor’s sentencing brief noted the following factors concerning
defendant: he engaged in a pattern of violent conduct, which indicated a serious danger
to society in that he was involved in a prior gang-related incident in high school where he
openly attacked the victim; his prior performance on juvenile probation was
unsatisfactory as he committed the present charged crimes while serving probation; he
did not show any remorse; and he presented an ongoing danger to society as illustrated by
his actions when he fired five rounds from a shotgun into a group of people, killing one
and injuring two others. The prosecutor also listed eight of the nine enumerated facts in
mitigation set forth in the California Rules of Court and noted they did not apply. (Cal.
Rules of Court, rule 4.423(a).) The prosecutor’s brief cited Miller and asserted
section 190.5, subdivision (b), allowed the trial court discretion to sentence defendant to
LWOP so that Miller was satisfied.
B. Standard of review for sentencing minors to LWOP
Section 190.5, subdivision (b), provides: “The penalty for a defendant found
guilty of murder in the first degree, in any case in which one or more special
circumstances enumerated in Section 190.2 or 190.25 has been found to be true under
Section 190.4, who was 16 years of age or older and under the age of 18 years at the time
45.
of the commission of the crime, shall be confinement in the state prison for life without
the possibility of parole or, at the discretion of the court, 25 years to life.” (Gutierrez,
supra, 58 Cal.4th at p. 1369.)
Individuals have the right “‘not to be subjected to excessive sanctions’” pursuant
to the Eighth Amendment of the United States Constitution. (Miller, supra, 567 U.S.at
p. __ [132 S.Ct. at p. 2463].) That right derives from the concept “‘“punishment for
crime should be graduated and proportioned”’” for the offender and the offense. (Ibid.)
The Eighth Amendment applies to the states. (Caballero, supra, 55 Cal.4th at p. 265,
fn. 1.) It prohibits the infliction of “cruel and unusual” punishment. (U.S. Const., 8th
Amend., italics added.) Article I, section 17 of the California Constitution prohibits
infliction of “[c]ruel or unusual” punishment. (Italics added.) The distinction in wording
is “purposeful and substantive rather than merely semantic. [Citations.]” (People v.
Carmony (2005) 127 Cal.App.4th 1066, 1085.) As a result, we construe the state
constitutional provision “separately from its counterpart in the federal Constitution.
[Citation.]” (People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136.) This, however,
does not make an analytical difference. (People v. Mantanez (2002) 98 Cal.App.4th 354,
358, fn. 7.) The issue under either approach is whether the sentence imposed is “‘grossly
disproportionate’” compared to the severity of the crime. (Ewing v. California (2003)
538 U.S. 11, 21; People v. Smithey (1999) 20 Cal.4th 936, 1016.) Defendant does not
contend the provisions should be analyzed separately in this case.
Whether a punishment is cruel and/or unusual is a question of law subject to our
independent review, but underlying disputed facts must be viewed in the light most
favorable to the judgment. (People v. Abundio (2013) 221 Cal.App.4th 1211, 1217;
People v. Felix (2003) 108 Cal.App.4th 994, 1000.)
The Miller court held “the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders,” including
those who commit homicides. (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2469].)
46.
However, Miller does not hold LWOP sentences can never be imposed on juvenile
homicide offenders.23 Instead, such sentences must be discretionary and may be imposed
only if the sentencing court, after considering all the relevant information, determines the
case involves one of the “‘rare juvenile offender[s] whose crime reflects irreparable
corruption.’ [Citations.]” (Miller, supra, at p. __ [132 S.Ct. at p. 2469].) Miller sets
forth a list of factors related to the age of a juvenile offender the trial court must consider
before imposing an LWOP sentence, including “immaturity, impetuosity, and failure to
appreciate risks and consequences”; whether “the family and home environment that
surrounds” the juvenile is “brutal and dysfunctional”; “the circumstances of the homicide
offense, including the extent of his participation in the conduct and the way familial and
peer pressures may have affected him”; and “the possibility of rehabilitation.” (Id. at
p. __ [132 S.Ct. at p. 2468].) These will be referred herein as the Miller factors.
Our Supreme Court held in Gutierrez that, in order to be constitutional,
section 190.5, subdivision (b), must be construed to permit the sentencing judge
to impose either LWOP or 25 years to life, in the court’s discretion, without any
presumption in favor of an LWOP sentence. (Gutierrez, supra, 58 Cal.4th at p. 1360.)
The Gutierrez court held “Miller requires sentencing courts to undertake a careful
individualized inquiry before imposing life without parole on juvenile homicide
offenders. [Citation.]” (Id. at p. 1382, italics added, citing Miller, supra, 567 U.S. at
pp. __ [132 S.Ct. at pp. 2468, 2469].) The Gutierrez court reasoned, “it is doubtful that
the potential to recall a[n LWOP] sentence based on a future demonstration of
rehabilitation can make such a sentence any more valid than when it was imposed.”
(Gutierrez, supra, at pp. 1386-1387.) Rather, the Gutierrez court interpreted Miller as
23 Previously, in Graham, supra, 560 U.S. 48 [130 S.Ct. 2011], the Supreme Court held that
the Eighth Amendment categorically precludes the imposition of an LWOP sentence on a
juvenile who commits any crime other than homicide.
47.
requiring that “the sentencing authority must address th[e] risk of error [in a judgment of
incorrigibility] by considering how children are different and how those differences
counsel against a sentence of life without parole ‘before imposing a particular penalty.’
[Citations.]” (Id. at p. 1387.)
This interpretation is reflected in the Supreme Court’s discussion regarding the
proper disposition of the two cases involved in Gutierrez. The court held that even
though the trial courts in those cases “understood [they] had a degree of discretion in
sentencing,” their sentencing decisions were not made “with awareness of the full scope
of discretion conferred by section 190.5[, subdivision ](b) or with the guidance set forth
in Miller and [Gutierrez] for the proper exercise of [their] discretion.” (Gutierrez, supra,
58 Cal.4th at pp. 1390-1391.) Because “the records [did] not ‘clearly indicate[]’ that [the
trial courts] would have imposed the same sentence had they been aware of the full scope
of their discretion,” the Supreme Court remanded both cases for resentencing. (Id. at
p. 1391.)
In Graham , the United States Supreme Court announced that the “Constitution
prohibits the imposition of a life without parole sentence on a juvenile offender who did
not commit homicide. A State need not guarantee the offender eventual release, but if it
imposes a sentence of life it must provide him or her with some realistic opportunity to
obtain release before the end of that term.” (Graham, supra, 560 U.S. at p. 82 [130 S.Ct.
at p. 2034.) Two years later in Miller, the Supreme Court declared, “‘[J]ust as the
chronological age of a minor is itself a relevant mitigating factor of great weight, so must
the background and mental and emotional development of a youthful defendant be duly
considered’ in assessing his [or her] culpability.” (Miller, supra, 567 U.S. at p. __ [132
S.Ct. at p. 2467], quoting Eddings v. Oklahoma (1982) 455 U.S. 104, 116.)
Following Graham and Miller, the California Supreme Court held a 110-year-to-
life sentence imposed for three counts of attempted murder committed as a minor
constituted cruel and unusual punishment. (Caballero, supra, 55 Cal.4th at p. 265.) As
48.
the Caballero court explained, “the Eighth Amendment requires the state to afford the
juvenile offender a ‘meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation,’ and that ‘[a] life without parole sentence improperly denies
the juvenile offender a chance to demonstrate growth and maturity.’ (Graham, supra,
560 U.S. at p[p. 75, 73] [130 S.Ct. at pp. 2029-2030].) The court observed that a life
without parole sentence is particularly harsh for a juvenile offender who ‘will on average
serve more years and a greater percentage of his [or her] life in prison than an adult
offender.’ (Id. at p. [70] [130 S.Ct. at p. 2028].) Graham likened a life without parole
sentence for nonhomicide offenders to the death penalty itself, given their youth and the
prospect that, as the years progress, juveniles can reform their deficiencies and become
contributing members of society. (Ibid.)” (Caballero, supra, at p. 266.)
In Caballero, the Attorney General argued the 110-year-to-life prison sentence for
a minor did not violate the Eighth Amendment even though it was the “functional
equivalent of a life without parole term” on grounds no individual component of the
defendant’s sentence by itself amounted to a life sentence. (Caballero, supra, 55 Cal.4th
at p. 271 (conc. opn. of Werdegar, J.).) Our Supreme Court rejected the contention
because “the purported distinction between a single sentence of life without parole and
one of component parts adding up to 110 years to life is unpersuasive.” (Id. at pp. 271-
272.) Thus, the Caballero court reversed the sentence and instructed that “the sentencing
court must consider all mitigating circumstances attendant in the juvenile’s crime and
life, including but not limited to his or her chronological age at the time of the crime,
whether the juvenile offender was a direct perpetrator or an aider and abettor, and his or
her physical and mental development, so that it can impose a time when the juvenile
offender will be able to seek parole from the parole board. The Board of Parole Hearings
will then determine whether the juvenile offender must be released from prison ‘based on
demonstrated maturity and rehabilitation.’” (Id. at pp. 268–269, quoting Graham, supra,
560 U.S. at p. 75 [130 S.Ct. at p. 2030]; see People v. Mendez (2010) 188 Cal.App.4th
49.
47, 63, 68 [sentence of 84 years to life for juvenile convicted of carjacking, assault with
firearm and seven counts of second degree robbery violated Eighth Amendment and
required resentencing].)
C. Defendant must be resentenced on count 1
In the present case, defendant argues “the trial court agreed with the prosecutor’s
sentencing analysis which asserted that Miller was inapplicable to [defendant’s]
sentencing and that consideration of the requirements imposed by Miller was
unnecessary.” Defendant further contends the trial court “failed to address or consider
the critical issue raised by Miller, i.e., whether[] the difficult task of distinguishing
‘transient immaturity’ from ‘irreparable corruption’ could reliably be made at the time of
[defendant’s] sentencing given the ways ‘children are different’ from adults and thus
have ‘diminished culpability’ together with ‘greater prospects for reform [making them]
less deserving of the most severe punishments. [Citation.]”
Respondent counters that section 190.5, subdivision (b), to the extent there exists a
presumption in favor of a sentence of LWOP, does not violate Miller because the
sentencing court may consider the defendant’s age and related characteristics prior to
imposing an LWOP sentence. Respondent further argues remand is unnecessary because
the trial court would impose the exact sentence after it found no mitigating factors and
multiple factors in aggravation, and expressly adopted the prosecution’s recommendation
to sentence defendant to LWOP “even in light of the mitigating factors that Miller
directed courts to consider.”
It is true, as respondent notes, the trial judge adopted the prosecution’s “recitation
of the rules and the facts” from the People’s brief and incorporated those matters into the
record. However, the prosecutor’s brief, although citing Miller, did not mention the
Miller factors, and, instead, reviewed the factors of aggravation and mitigation set forth
in the California Rules of Court, rules 4.421 and 4.423. The trial court also reviewed the
probation report. The probation report included a discussion of some facts pertinent to
50.
the Miller factors. For example, the probation report disclosed defendant’s parents have
been married for approximately 40 years and reside in Farmersville, California.
Defendant reported he maintains regular contact with all of his family members, none of
whom have had negative contact with law enforcement. The report also indicated
defendant stopped attending school after 10th grade and did not graduate as a result of the
present offense.
However, the facts set forth in both the probation report and the prosecutor’s brief
were not expressly identified as facts that could mitigate against an LWOP sentence as
articulated in Miller. Further, the probation report and the prosecutor’s brief did not
address all of the potentially applicable Miller factors. Moreover, nothing in the record
indicates the trial court considered “‘ways children are different from adults’” or that it
considered whether defendant was “‘the rare juvenile offender whose crime reflects
irreparable corruption.’ [Citations.]” (Miller, supra, 567 U.S. at p. __ [132 S.Ct at
p.2469].) Thus, the trial court’s general statement it read and considered the prosecutor’s
brief is not sufficient, in and of itself, to establish it conducted the requisite analysis of
the Miller factors. (Id. at p. __ [132 S.Ct. at p. 2468]; Gutierrez, supra, 58 Cal.4th at
p. 1387.)
Miller instructed it will be “uncommon” to sentence juveniles to LWOP “because
of the great difficulty … of distinguishing at this early age between ‘the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’ [Citations.]” (Miller, supra, 567 U.S. at
p. __ [132 S.Ct. at p. 2469], italics added.) After Miller, a sentencing court is “require[d]
… to take into account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” (Ibid., italics added, fn.
omitted.)
Because the Miller factors were never discussed in the prosecution’s brief, never
addressed in the probation report, and never recited by the trial court, it is not clear
51.
whether or not the trial court would have imposed an LWOP sentence had it analyzed the
required Miller factors and undertook the analysis set forth in Miller, Caballero, and
Gutierrez. As those cases (particularly Gutierrez) make clear, that analysis must occur at
the time of sentencing; the possibility defendant may be able to obtain an earlier parole
hearing date in the future is not an adequate substitute. (Gutierrez, supra, 58 Cal.4th at
pp. 1384-1387.)
As such, this matter is remanded to the trial court so it can undertake its Eighth
Amendment obligation under Miller not to impose a de facto LWOP sentence under
section 190.5, subdivision (b), without taking into account how defendant’s differences as
a child counsel against irrevocably sentencing him to a lifetime in prison and whether
defendant is one of the “‘rare juvenile offender[s] whose crime reflects irreparable
corruption.’ [Citations.]” (Miller, supra, 567 U.S. at p. __ [132 S.Ct. at p. 2469].)
Accordingly, defendant’s December 7, 2012, sentence on count 1 is vacated and is
remanded for resentencing.
D. Defendant must be resentenced on counts 2 through 6
Respondent concedes Caballero is “not materially distinguishable” from this
present case and resentencing on counts 2 through 6 is required. We appreciate and
accept respondent’s concession as proper. As respondent notes, and we agree, even when
12 of defendant’s enhancements under section 12022.53, subdivision (d), are stayed (see
part IV., post), defendant’s remaining sentence is well in excess of 100 years to life on
counts 2 through 6, which violates the prohibition on “functional equivalent” LWOP
sentences. (Caballero, supra, 55 Cal.4th at pp. 268-269; see People v. Argeta (2012) 210
Cal.App.4th 1478, 1482 [15-year-old convicted of murder and five counts of attempted
murder sentenced to 100 years remanded for resentencing, in part, in light of Miller and
Caballero].)
Defendant’s December 7, 2012, sentences on counts 2 through 6 are vacated and
we remand “the case to the trial court with directions to resentence defendant to a term
52.
that does not violate his constitutional rights, that is, a sentence that, although
undoubtedly lengthy, provides him with a ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.’ [Citation.]” (Caballero, supra, 55
Cal.4th at p. 273 (conc. opn. of Werdegar, J.).)
IV. Twelve of the unstayed enhancements imposed pursuant to section 12022.53,
subdivision (d), must be stayed and the abstract of judgment shall reflect the
additional stayed enhancements found true by the jury
On count 1, the jury convicted defendant of first degree murder (§§ 187, subd. (a))
and found true the special circumstance alleging active participation in a criminal street
gang (§ 190.2, subd. (a)(22)). On counts 2 through 6, the jury convicted defendant of
attempted murder (§§ 187, subd. (a), 664) and found the offenses were committed
willfully, deliberately, and with premeditation (§ 189).
Regarding all counts, the jury separately found the following special allegations
true:
(1) Personal and intentional discharge of a firearm causing great bodily injury
or death as to Arzate, Joseph Nunez and Duenas (§ 12022.53, subd. (d)) [three times in
each count];24
(2) Personal and intentional discharge of a firearm (§ 12022.53, subd. (c));
(3) Personal use of a firearm (§ 12022.53, subd. (b)); and
(4) Commission of a crime for the benefit of a criminal street gang (§ 186.22,
subd. (b)).
At sentencing, the court imposed consecutive terms of 75 years to life as to each
count for the three enhancements found true under section 12022.53, subdivision (d).
The court stayed all remaining enhancements.
24 The information alleged this special allegation three times in each count, 1 through 6.
The verdict forms tracked the same allegation. It is unclear why this special allegation was
alleged more than once in each count.
53.
Defendant argues 12 of the enhancements under section 12022.53, subdivision (d),
must be stayed in accordance with section 12022.53, subdivision (f). Respondent agrees.
We accept respondent’s concession as proper because section 12022.53,
subdivision (f),25 precludes the imposition of more than one enhancement under that
section “for each crime.” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1127.)
Accordingly, the trial court was required to impose and then stay 12 of the enhancements
under section 12022.53, subdivision (d). (People v. Gonzalez, supra, at pp. 1127, 1130.)
A sentence enhancement that is stayed, while part of the sentence, is not served. (People
v. Meloney (2003) 30 Cal.4th 1145, 1156.) The abstract of judgment must be amended to
reflect 12 stayed section 12022.53, subdivision (d), enhancements.
In addition, defendant asserts the abstract of judgment (on p. 3) reflects the
imposition of 12 additional stayed enhancements of 25 years to life pursuant to
section 12022.53, subdivision (d). Defendant requests the abstract to be further modified
to strike those additional 12 enhancements. Respondent concedes and further notes these
additional 12 enhancements “should not simply be stricken but rather should be changed
to reflect the correct enhancements found true by the jury but omitted in the abstract of
judgment.” We accept respondent’s concession as proper.
In addition to the enhancements discussed above, the jury found true six
enhancements under section 12022.53, subdivision (b) (one as to each count) and six
enhancements under section 12022.53, subdivision (c) (one as to each count), and the
25 Section 12022.53, subdivision (f), states: “Only one additional term of imprisonment
under this section shall be imposed per person for each crime. If more than one enhancement per
person is found true under this section, the court shall impose upon that person the enhancement
that provides the longest term of imprisonment. An enhancement involving a firearm specified
in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a
person in addition to an enhancement imposed pursuant to this section. An enhancement for
great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a
person in addition to an enhancement imposed pursuant to subdivision (d).”
54.
trial court stayed these enhancements at sentencing. However, the abstract of judgment
does not reflect the enhancements under section 12022.53, subdivisions (b) or (c).
Accordingly, following resentencing, the abstract of judgment shall reflect the 12 stayed
enhancements under section 12022.53, subdivision (d), the six stayed enhancements
under section 12022.53, subdivision (b), and the six stayed enhancements under
section 12022.53, subdivision (c).
Finally, on its own motion, an appellate court with jurisdiction of a case may order
correction of clerical errors contained in the abstract of judgment. (People v. Mitchell,
supra, 26 Cal.4th at pp. 186-187.) “An abstract of judgment is not the judgment of
conviction; it does not control if different from the trial court’s oral judgment and may
not add to or modify the judgment it purports to digest or summarize.” (Id. at p. 185.)
Regarding counts 2 through 6, defendant was convicted of attempted murder.
(§§ 187, subd. (a), 664.) The abstract of judgment, however, contains a scrivener’s error
showing these convictions under sections “667” and 187, subdivision (a). Thus, we order
correction of the abstract of judgment to reflect conviction on counts 2 through 6 under
sections 664 and 187, subdivision (a).
V. The parole revocation fine need not be decided
As part of the December 7, 2012, sentencing, the trial court imposed and stayed a
parole revocation fine of $10,000 pursuant to section 1202.45. Defendant contends the
parole revocation fine must be stricken as unauthorized because he was sentenced to a
term of life without possibility of parole on count 1 and the sentences on the remaining
counts only provided a “theoretical possibility” of parole. (People v. Oganesyan (1999)
70 Cal.App.4th 1178, 1183-1186.) Respondent argues the parole revocation fine under
section 1203.45 was correctly imposed and relies on People v. Brasure (2008) 42 Cal.4th
1037, 1075.
However, in light of the vacated sentences and remand for resentencing on all
counts, we need not resolve this issue.
55.
DISPOSITION
The December 7, 2012, sentence is vacated for counts 1 through 6. This matter is
remanded for resentencing consistent with Miller and Caballero.
Following resentencing, the abstract of judgment shall reflect 12 stayed
enhancements under section 12022.53, subdivision (d), the six stayed enhancements
under section 12022.53, subdivision (b), and the six stayed enhancements under
section 12022.53, subdivision (c). The abstract shall also reflect convictions on counts 2
through 6 under sections 664 and 187, subdivision (a).
The judgment is otherwise affirmed.
_____________________
Kane, J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Cornell, J.
56.