P. v. Castro
P. v. Castro CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
THE PEOPLE,
Plaintiff and
Respondent,
v.
ALBERT MANUEL CASTRO,
Defendant and
Appellant.
B230675
(Los Angeles County
Super. Ct. Nos. GAO66656,
GA067405)
APPEAL from a judgment of the
Superior Court of
County.
Candace J. beason, Judge. Affirmed as modified.
William J. Capriola, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________
Albert Manuel Castro appeals from
the judgment entered upon his convictions by jury of
subd. (a), count 1),
name="_ftnref1" title="">[1]
count 3), and aggravated mayhem (§
205, count 7). The jury found to be true
with respect to count 1 the allegation that the attempted murder was committed
willfully, deliberately and with premeditation (§ 664, subd. (a)), with respect
to all counts the allegations that the offenses were committed for the benefit
of, at the direction of, or in association with a
(b)(1)(C)) and the allegation that appellant personally and intentionally discharged
a firearm causing great bodily injury (§ 12022.53, subd. (d)), and with respect
to counts 1 and 7 the allegation that a principal personally and intentionally
discharged a firearm causing great bodily injury (§ 12022.53, subds. (d)
& (e)(1)). The trial court sentenced
appellant to an aggregate state prison term of 40 years to life. Appellant contends that (1) the trial court
erroneously admitted his statements made to police after he unambiguously
invoked his Miranda
statements to police should have been suppressed because the
advise him that anything he said could be used against him in court, (3)
admission in evidence of appellant’s involuntary statements to police violated
his due process rights under the California and United States Constitutions,
(4) there is insufficient evidence to support appellant’s aggravated mayhem
conviction, and (5) the trial court erroneously failed to award him presentence
conduct credits. Appellant also requests
that this court conduct an independent in camera examination of the Pitchess
We modify the conduct credits and
otherwise affirm.
FACTUAL
BACKGROUND
The shooting
On August 9, 2006, at 7:00 p.m., Robert Graves, Jr. (Graves), who was
not a gang member, was washing his car in front of his residence on East Cherry
Street in Monrovia. He saw a silver
Chrysler approach, driving at normal speed, with two people inside. Graves heard a male in the front passenger
seat say, “What’s up, homey?†When
Graves turned to look at him, he saw the male holding a chrome or silver-colored
gun on the car windowsill. Though Graves
could not see the passenger’s face to identify him, he did see that the
passenger was the shooter. A shot was
fired, hitting Graves in the face. He
fell to the ground and heard three more shots.
Graves was hospitalized for five days, suffering from a bullet wound to
the right side of his face, requiring surgery to his right eye and a prosthetic
device in his left eye in which he lost his vision. He also had blurry vision in his right eye.
Sharmaine Currie (Currie) lived on East Cherry Avenue, on the opposite
side from Graves, a few houses down. She
had exited her residence when she heard what sounded like fireworks. She saw a gray or silver Stratus or Intrepid
drive by her house heading towards Graves’s house. Currie saw that the driver and front
passenger were Hispanics. She did not
see a gun.
The investigation
Near 7:00 p.m., Monrovia Police
Officer Kevin Oberon responded to the scene of the shooting. He saw Graves lying face down on the street
with a gunshot wound to the right side of his head. Bullet fragments consistent with .22-caliber
ammunition were recovered at the scene.
The next day, a silver Dodge
Intrepid was found parked near codefendant, Jonathan Henley’s (Henley)
residence in Azusa.
name="_ftnref4" title="">[4]
Monrovia High School athletic jersey containing the word “Monrovia,†was laid
out above the backseat headrest so that the word “Monrovia†was clearly visible
through the rear window. A box of
.22-caliber bullets was found in the center console, and a revolver was found
underneath the driver’s seat. The
revolver contained .22-caliber ammunition and several expended casings in the
gun.
Henley was the registered owner of the car and was arrested. A cell phone taken from him contained two
photographs depicting two Hispanics making Monrovia Nuevo Varrio (MNV) gang
signs, a photograph of an MNV gang tattoo on someone’s body and phone numbers
for people with MNV gang monikers.
The Dodge was “processed†on August 11, 2006. Dozens of latent prints were recovered from
the interior and exterior of the car.
Appellant’s palm print was found on the right front fender. No prints were found on the gun, bullets or
box of ammunition.
In a statement to police after appellant was arrested, he admitted
being in the silver Dodge at the time of the shootings, but denied being the
shooter. He was just “at the wrong place
at the wrong time.â€
Detectives obtained a video taken from a surveillance camera at
Certified Market in Monrovia. The video
depicted appellant with Henley between 8:36 and 8:46 p.m. on the night of the
shooting.
Gang
evidence
Officer William
Burkhalter testified as the People’s gang expert. He was familiar with the MNV gang, an
Hispanic street gang, whose territory was primarily in the City of Monrovia and
surrounding areas. The gang’s primary
activities included vandalism, firearms possession, assaults, assaults with
deadly weapons, attempted murder, robbery and burglary.
Officer Burkhalter was also familiar
with the Duroc Crips gang, a violent, predominantly African-American gang in
the Monrovia and Duarte area. The MNV
and Duroc Crips gangs were at war, which had a racial overtone. The war between them targeted both gang and
nongang members.
Officer Burkhalter opined that in
August 2006 appellant was an MNV gang member, based upon his personal contacts
with appellant, appellant’s admission that he had been associating with MNV
gang members for years, appellant’s shaved head, attire, gang tattoos, and
moniker, “Little Vulture.â€
Officer Burkhalter also opined that
Henley was an MNV gang member at the time of the charged incident based upon
Henley’s arrest in this case, his association with known MNV gang members, and
his being shot by Duroc Crips in January 2006.
In response to a hypothetical based
upon the facts in this case, Officer Burkhalter opined that the shooting was
for the benefit of the MNV gang. He
testified that a person at the shooting scene would know that the person
driving in the silver car was with MNV because two Hispanics were in a Black
neighborhood shooting at Blacks, and the victim was a young Black. The Monrovia jersey in the back of Henley’s
car could indicate that the shooting in this case was gang related. This crime instills fear. Gang drive-by shootings virtually always have
two people in the car because one person must drive and the other shoot. Typically it is the passenger who does the
shooting.
DISCUSSION
I. Statement obtained in violation of
A. Background
1. Police interview of appellant
On October 10, 2006, Detectives Robert Wilken and Robert Manuel located
the 16-year-old appellant at East Lake Juvenile Hall, where he had been placed
in custody the previous day for a probation violation. Detective Wilken explained to appellant that
“what we want to talk to you about . . . has nothing to do
with why you’re here.†The detectives
conducted a two-and-one-half-hour recorded interview with appellant.
Before questioning appellant about the shooting, Detective Manuel
advised him of his constitutional rights, as follows: “[MANUEL]:
I want to talk to you about some things.
Before I do that let me read you this, okay?
. . . Listen up and answer me yes or no, okay. You have the right to remain silent. Do you understand that? [APPELLANT]:
Yes. . . . [MANUEL]: Anything
you say can and will be used against you in a court of law; do you understand
that? [APPELLANT]:
have the right to talk to a lawyer before we talk to you and have him present
while we talk to you; do you understand that?
You don’t understand that? You
have the right to have a lawyer present while we talk to you to be—you know,
for you. . . . [APPELLANT]: So I can have a lawyer right here? [MANUEL]:
But that’s not how it works.
That’s what it says, but what it means is that you can be represented by
a lawyer and have him present during questioning, if you want, but that won’t
happen today[.] [APPELLANT]: In court?
[MANUEL]: In court, yeah. [APPELLANT]:
Tomorrow? [MANUEL]: Not tomorrow, this is – a separate case than
what you’re in here for. . . .â€
(Italics added.) “[MANUEL]:
. . . So any way, do you understand then you have the
right to talk to a lawyer before we talk to you and have him present while we
talk to you? Do you understand
that? [APPELLANT]: Okay.
[MANUEL]: If you cannot afford to
hire a lawyer, one will be appointed to represent you before any questioning,
free of charge and that’s like what you get in court, right? You know you get an attorney if you can’t
afford one. [APPELLANT]:
Yeah. . . . [MANUEL]: Okay.
Do you understand each of those rights that I explained to you? Do you want to talk—tell us about this
case? [APPELLANT]: Yes I do.
[MANUEL]: Okay. And we can’t have a lawyer today. Do you want a lawyer before you talk to us? [APPELLANT]:
What is it exactly do you want to talk about?â€
Detective Manuel then explained that they wanted to talk to appellant
about the Monrovia shooting. He told
appellant that someone “kind of manned up already†and that he was pretty sure
there was “somebody with him†and that somebody was appellant. He asked appellant, “You want to talk to
us? Just sign right here.†Appellant signed the waiver of rights form.
Appellant initially denied any involvement in, or knowledge of, the
shooting. Detective Manuel told him that
there were lots of people on the street and “saw things,†that
“there’s . . . some video from a store.†Detective Wilken said that the other person
they have in custody is an adult, and that appellant’s “worst case scenario is
maybe being in custody until [he’s] 25.†~
Later in the interview, Detective Manuel asked appellant, “[O]n August
9th, were you in the vehicle, maybe you didn’t shoot, maybe you
weren’t . . . involved in the actual shooting, but were you
in the vehicle?†Appellant replied, “I
don’t even have my lawyer here to talk to you guys.†Detective Manuel then asked, “That’s all I’m
asking you, do you want a lawyer then?
[APPELLANT]: Yeah. [MANUEL]:
You can do whatever the heck you’d like . . . you
don’t want to talk to us? [APPELLANT]: Why would I have to get me
a . . . lawyer[?]
[MANUEL]: If you say you want a
lawyer, I’m not going to talk to you.
You have to wait till you’re arrested on this, then you talk to your
lawyer and I guarantee you’re not going to have this opportunity again because
there’s no attorney alive that’s going to sit in here and let us talk to
you.â€
Detective Manuel continued: “So
it’s up to you, whether you want to talk to us or whether you want an
attorney . . . [.]
[APPELLANT]: Call my mom and ask
if I should talk to you guys.
[MANUEL]: I can’t do
that . . . [I]f you say you don’t want to talk, I’m not
pressuring you. If you don’t want to
talk, or if you’re not sure, then absolutely don’t talk to me.†The detectives continued talking to
appellant, seeking to persuade him to tell them what happened. Among other things, for example, they told
him that if he wanted to straighten out his life, he had to clean up the mess
he had made.
After being told that “[t]here might be an explanation about [his]
involvement in this,†and “something that you think
about . . . is a lot different than something that just
happens,†appellant stated, “I was at the wrong place at the wrong time.†He denied he was the shooter. He said he was “high as fuck
and . . . didn’t know what was going on.†He said that he only remembered that night a
“little bit.â€
Appellant explained that he was at his house getting high with a person
named Jonathan, who appellant had met just that day. Jonathan wanted to buy some beer, so he and
appellant went to the store in a silver or gray-colored car. After purchasing the beer, Jonathan, who was
driving, took a little detour. Appellant
was in the front seat, with his window up.
Jonathan drove down Cherry Avenue.
Appellant was high and rolling a “joint,†when “all [he] heard were
gunshots.†The gun came from Jonathan’s
lap. Appellant said that Jonathan, who
“hates niggers,†shot out of appellant’s window. Appellant continued to deny being the
shooter. Officer Manuel told him that
his fingerprints were on the gun.
2. Evidence Code section 402 hearing
Appellant filed a motion in limine to suppress his pretrial statements
to police on the grounds that they were involuntary under the due process
clause and obtained in violation of Miranda. The People filed no written response.
The trial court conducted an Evidence Code section 402 hearing and
reviewed the transcript of appellant’s interview and was provided the CD’s of
the interview, which were later played for the jury at trial. The prosecutor informed the trial court that
he and appellant’s attorney looked at the Miranda
waiver form and that it listed appellant’s rights including the right to
remain silent, after each one of which it said “yes.†The words “Yes†were in quotes and were
written by Detective Manuel. “Yes†was
written next to the question whether the signer wanted to talk about the
case. “No†was written next to the
question of whether he wanted a lawyer.
Appellant signed the form next to where it stated that he will talk to
the law enforcement officers and willingly waived his rights. The form was admitted into evidence at trial.
The trial court denied the suppression motion. It found appellant’s request for counsel
equivocal because he continued the conversation with the officers after saying
he wanted counsel. Though the detectives
continued talking to appellant after the request for counsel, the trial court
concluded that they were simply educating appellant, not badgering him. It stated that while the police cannot
continue to question a defendant who asks for a lawyer, they can still “tell
him other things.†That is not
prohibited.
B.
Contention
Appellant contends that the trial court erred in allowing admission of
his interview by detectives because it was obtained in violation of his
you want a lawyer then?,†he unequivocally responded, “Yeah.†Therefore, his responses to further
interrogation could not be used to cast doubt on his unambiguous request for
counsel. This contention is without
merit.
C. Standard
of review
statement or confession against a claim that it was obtained in violation of
the defendant’s Miranda rights,
of disputed facts and inferences, and its evaluation of credibility, if
supported by substantial evidence, and independently determine whether, from
the undisputed facts and those properly found by the trial court, the
challenged statements were illegally obtained.
(People v. Whitson (1998)
v. Esqueda (1993) 17 Cal.App.4th
1450, 1465.)
To protect a
suspect’s privilege against self-incrimination, when the suspect is taken into
custody “[h]e must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a court of law,
that he has the right to the presence of an attorney, and that if he cannot
afford an attorney one will be appointed for him prior to any questioning if he
so desires.†(
p. 479.) Advising
the suspect of these Miranda rights
“is the first line of defense against the suspect’s involuntary waiver of the
privilege against self-incrimination.†(
1111, 1122.)
rights, a suspect may waive them provided the waiver is voluntarily,
knowingly and intelligently made. (
p. 479.)
receiving the Miranda warnings, law
enforcement officers are free to question him.
(See North Carolina v. Butler
(1979) 441 U.S. 369, 372–376.)
But if a
suspect unequivocally requests counsel at any time during the interview, there
is a second layer of protection for the suspect’s Miranda rights; he or she is not subject to further questioning
until a lawyer has been made available or the suspect himself reinitiates
conversation. (Davis v. United States (1994) 512 U.S. 452, 458 (
protection is “designed to prevent police from badgering a defendant into
waiving his previously asserted Miranda
rights.†(Michigan v. Harvey (1990) 494 U.S. 344, 350.)
during custodial interrogation, a valid waiver of that right cannot be
established by showing only that he responded to further police-initiated
custodial interrogation even if he has been advised of his rights.†(Edwards
v. Arizona (1981) 451 U.S. 477,
484)
an ambiguous reference to an attorney or suggest that he might be invoking his
right to counsel. (Davis, supra, 512 U.S. at p. 459.) Rather, the suspect “must articulate his
desire to have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a request for
an attorney.†(Ibid.; Gonzalez, supra,
34 Cal.4th at p. 1126; People v.
Nelson (2012) 53 Cal.4th 367, 371–372.)
Whether a suspect has actually invoked his or her
right to counsel is an objective inquiry.
(People v. Gonzalez, supra, at
p. 1124.)
If the suspect
makes a clear and unequivocal request for counsel, the officers must
“immediately cease questioning.†(
p. 454.) Any “postrequest responses
to further interrogation may not be used to cast doubt on the clarity of his initial
request for counsel.†(
92.) If a suspect’s
request for counsel or invocation of the right to remain silent is ambiguous,
the police may “continue talking with him for the limited purpose of clarifying
whether he is waiving or invoking those rights.†(People
v. Johnson (1993) 6 Cal.4th 1, 27, disapproved on other grounds in
879; see Davis, supra, 512 U.S. at
p. 461.)
right to counsel here
1. The request for counsel is ambiguous in
context
In light of
all of the circumstances, the record here supports a finding that appellant was
given and understood his Miranda rights
and agreed to waive them and speak with the detectives. Appellant was told of his right to remain
silent, that anything he said could and would be used against him in a court of
law, and that he had the right to have a lawyer. His responses reflected that he understood
these rights. When he asked whether he
could “have a lawyer right here†and in court the next day, the detectives
correctly explained that although he had the right to have counsel during
questioning, practically speaking, it simply could not happen that day. They explained that he could have the
attorney in court, but not in the juvenile matter for which he was then in
custody. After this explanation, the
detective asked, “So any way, do you understand then you have the right to talk
to a lawyer before we talk to you and have him present while we talk to
you?†Appellant responded “Okay.†He also indicated that he understood that if
he could not afford an attorney, one would be provided to him for free. Appellant said he understood his rights and
wanted to talk to the detectives. He
signed a written waiver form corroborating his oral statements that he
understood his rights and desired to talk to the detectives. “An express written or oral statement of
waiver of the right to remain silent or of the right to counsel is usually strong
proof of the validity of that waiver . . .†(North
Carolina v. Butler, supra, 441 U.S. at p. 373.)
When substantive questioning began, appellant denied
involvement in the shooting. Detective
Manuel then told him that there were many people on the street who “saw thingsâ€
and that there was video from a store.
He told appellant that maybe he did not do the shooting, but he was in
the car. At that juncture, appellant
stated: “I don’t even have my lawyer
here to talk to you guys.†Detective
Manuel then asked, “That’s all I’m asking you, do you want a lawyer then,†to
which appellant responded “Yeah.â€
Appellant argues that this response was an unequivocal request for
counsel that mandated that all further questioning immediately cease. We disagree.
“In certain
situations, words that would be plain if taken literally actually may be
equivocal under an objective standard, in the sense that in
reasonable listener what the defendant intends.†(People
v. Williams (2010) 49 Cal.4th 405, 429 (Williams).) Appellant’s request for counsel here,
evaluated in the entire context of the interview, fully supports the conclusion
that the request was sufficiently ambiguous to justify clarification by the
detectives. Appellant evidenced an
intent to speak with the detectives throughout the initial portion of the
interview, as reflected in his oral statement that he understood his rights and
assented to talking to the detectives and his signed waiver form. During that part of the interview he
repeatedly denied involvement in the shooting.
But when the
detectives suggested that appellant might not have been the shooter, but was
only in the vehicle, appellant stated, “I don’t even have my lawyer here to
talk to you guys.†This statement was
not an unequivocal request for an attorney but merely an observation that he
did not have one. It was after this
comment that Detective Manuel again asked, “[D]o you want a lawyer then?†Appellant responded, “Yeah.†In light of appellant’s previous desire to
talk, his previous confusion as to whether he was entitled to a lawyer in this
case or in his probation matter, his statement that he did not have a lawyer,
and his one word answer to the detectives question whether he wanted one, it
was not inappropriate for the detectives to confirm that he no longer wanted to
speak with them without counsel. The
detectives did not continue questioning appellant regarding the shooting but
only asked if he no longer wished to speak with them without counsel.
This second
layer of protection for the privilege against self-incrimination, requiring
immediate cessation of questioning once a defendant requests counsel during
interrogation, is “designed to prevent police from badgering a defendant into
waiving his previously asserted Miranda
rights.†(Michigan v. Harvey, supra, 494 U.S. at p. 350.) The detectives’ simple question whether
appellant wanted counsel was not badgering appellant. (Williams,
supra, 49 Cal.4th at pp. 426, 429 [question “Are you sure?†not
badgering]; People v. Bacon (2010) 50
Cal.4th 1082, 1107 [comment “I’m giving you the opportunity to talk,†not
badgering].) Hence, the purpose behind
the immediate cessation rule was not undermined.
It was
appellant who then initiated a discussion by asking, “Why would I have to get me
a lawyer[?]†This question suggests that
appellant had not definitively decided that he wanted a lawyer, as he was
unsure of why he needed one. When asked
this question, the detectives did not immediately launch into questioning
regarding the shooting, but reiterated again that, “If you say you want a
lawyer, I’m not going to talk to you.’’
Minutes later, Detective Manuel repeated, “[I]f you say you don’t want
to talk, I’m not pressuring you. If you
don’t want to talk, or if you’re not sure, then absolutely don’t talk to me.â€
We agree with
the People that Williams is
instructive. In that case, Detectives
John Knebel and Lionel Salgado sought to interview the defendant after giving
him the Miranda admonitions. The defendant said he understood his rights
and responded affirmatively when asked if he wished to give up his right to
remain silent. Detective Knebel then
asked, “‘Do you wish to give up the right to speak to an attorney and have him
present during questioning?’†The
defendant responded with a question, “‘You talking about now?’†(Williams,
supra, 49 Cal.4th at
p. 426.) Detective Knebel responded
with a question: “‘Do you want an
attorney here while you talk to us?’â€
The defendant answered:
“‘Yeah.’†Detective Knebel asked,
“‘Yes you do.’†The defendant answered,
“‘Uh huh.’†Detective Knebel asked,
“‘Are you sure?’†The defendant
answered, “‘Yes.’†Detective Salgado
then stated: “‘You don’t want to talk to
us right now.’†The defendant
answered: “‘Yeah, I’ll talk to you right
now.’†Detective Knebel stated: “‘Without an attorney.’†The defendant responded: “‘Yeah.’â€
(Williams, supra, at
p. 426.)
Detective Knebel then explained: “‘OK, let’s be real clear. If you . . . if you want
an attorney here while we’re talking to you we’ll wait till Monday and they’ll
send a public defender over, unless you can afford a private attorney, so he
can act as your . . . your attorney.’†Defendant responded: “‘No I don’t want to wait till Monday.’†Detective Knebel repeated: “‘You don’t want to wait till Monday.’†The defendant replied: “‘No.’â€
Detective Knebel clarified: “‘You
want to talk now.’†The defendant
replied: “‘Yes.’†Detective Knebel inquired: “‘OK, do you want to talk now because you’re
free to give up your right to have an attorney here now?’†Defendant responded: “‘Yes, yes, yes.’†(Williams,
supra, 49 Cal.4th at p. 426.)
The Williams court
rejected appellant’s Miranda claim. It concluded that at the outset of the
interrogation, the defendant was properly admonished and evinced a willingness
to waive the right to remain silent and stated, “In light of defendant’s
evident intent to answer questions, and the confusion observed by [Detective]
Knebel concerning when an attorney would be available, a reasonable listener
might be uncertain whether defendant’s affirmative remarks concerning counsel
were intended to invoke his right to counsel.
Furthermore, under the circumstances, it does not appear that the
officers were ‘badgering’ defendant into waiving his rights; his response
reasonably warranted clarification.†(
As in Williams, in
the case before us, after receiving his Miranda admonitions, appellant initially
indicated his desire to speak with the officers after some confusion regarding
whether his right to an attorney was in this case or in the probation violation
case for which he was then incarcerated.
Here, the officers did not “badger†appellant, but simply sought
confirmation that appellant then wanted counsel. As the trial court found, the detectives were
only educating appellant. They did not
question him about the incident until it was clear that he wanted to continue
the interview without counsel.
Miranda right to counsel
a. Contentions
Appellant contends that his request to speak with his mother was also
an invocation of his Miranda right to
counsel. He argues that “any reasonable
officer would understand that appellant was ‘actually invoke[ing]’ his
when . . . he requested to call his mother,†just moments
after he told detectives he wanted a lawyer.
The People contend that appellant forfeited this contention by
conceding it at the suppression hearing.
Appellant responds that if this claim was forfeited, he suffered
ineffective assistance of counsel.
We conclude that whether or not forfeited, this claim is
meritless. Because it is meritless, he
suffered no ineffective assistance of counsel.
b. Request not unequivocal
A minor’s
request to speak with a parent is not a per se nor presumptive invocation of
Fifth Amendment rights. (
p. 381.) “[A] postwaiver request
for a parent is insufficient to halt questioning unless the circumstances are
such that a reasonable officer would understand that the juvenile is
or silence.†(Ibid.)
Appellant’s request for his mother here
appeared to be a “might be†rather than an “actual[]†invocation of the right
to counsel or silence. After being told
by the detectives that it was up to appellant as to whether he wanted to speak
to them, appellant replied, “Call my mom and ask if I should talk to you guys.†This language was not a request for an attorney
or for silence, but merely a request to speak to his mother to determine if he
should get an attorney or be silent.
Hence, it did not require the detectives to immediately stop all
questioning.
c. Ineffective assistance of counsel
The standard
for establishing ineffective assistance of counsel is well settled. The “‘defendant bears the burden of showing,
first, that counsel’s performance was deficient, falling below an objective
standard of reasonableness under prevailing professional norms. Second, a defendant must establish that,
absent counsel’s error, it is reasonably probable that the verdict would have
been more favorable to him.’†(People
v. Hernandez (2004) 33 Cal.4th 1040, 1052–1053; see also Strickland v.
Washington (1984) 466 U.S. 668, 687, 694.)
Because appellant’s claim that his request to call his mother was a
request for counsel is meritless, it is not reasonably probable that the
verdict would have been more favorable to appellant had the claim been
raised. Consequently, appellant suffered
no ineffective assistance of counsel.
II. Failure to advise that interview could be
used in court
Appellant
contends that the failure to advise him that his statement could be used
against him in court required its suppression.
The People point out that appellant was in fact given that
admonition. In his reply brief,
appellant acknowledges that this warning was given and withdrew this
contention. We therefore need not
consider it.
III. Voluntariness of appellant’s statement
A.
Contention
Appellant
contends that his statement was not voluntarily given, and therefore its
admission in evidence deprived him of due process. He argues that at the time of the
questioning, he was only 16 years old, had little experience with the criminal
justice system, suffered from psychological disorders which had required the
suspension of these proceedings for a period of time, and the transcript of the
interview shows that he did not want to confess. He further argues that the detectives used
chicanery in obtaining his inculpatory statements by lying to him that he would
not be confined past age 25, he would not be going to prison, his fingerprints
were found on the gun, and that if he bucked the system it would be harder on
him, implying he would get lenient treatment if he confessed. This contention is without merit.
B.
Standard of review
A defendant’s
statement challenged as involuntary cannot be admitted into evidence at trial
unless the People prove by a preponderance of the evidence that the statement
was voluntary. (Missouri v. Seibert (2004) 542 U.S. 600, 608, fn. 1;
145, 169.) When the interview is
recorded, the facts surrounding the interview are undisputed, and we
independently review the trial court’s determination of voluntariness. (People
v. McWhorter (2009) 47 Cal.4th
318, 346.)
C.
Applicable legal principles
“It long has been held that the due
process clause of the Fourteenth Amendment to the United States
Constitution makes inadmissible any involuntary statement obtained by a law
enforcement officer from a criminal suspect by coercion. [Citations.]
A statement is involuntary [citation] when, among other circumstances,
it ‘was “‘extracted by any sort of threats . . . , [or]
obtained by any direct or implied promises, however
slight. . . .Չۉ۪
[Citations.] Voluntariness does
not turn on any one fact, no matter how apparently significant, but rather on
the ‘totality of [the] circumstances.’
[Citations.]†(
79.)
“‘[C]oercion can be mental as well as
physical . . . the blood of the accused is not the only
hallmark of an unconstitutional inquisition.’â€
(Arizona v. Fulminante (1991)
499 U.S. 279, 287.) The question raised
by the due process clause where psychological coercion is claimed “is whether
the influences brought to bear upon the accused were ‘such as to overbear [the
defendants] will to resist and bring about [statements or admissions] not
freely self-determined.’†(
841, disapproved on other grounds in People
v. Cooper (1991) 53 Cal.3d 771, 836; People
v. McWhorter, supra, 47 Cal.4th at pp. 346–347.)
The due process test of voluntariness takes into consideration the totality
of all the surrounding circumstances including both the characteristics of the
accused and the details of the interrogation.
(Dickerson v. United States (2000)
530 U.S. 428, 434; People v. Williams (1997)
16 Cal.4th 635, 660.) Relevant considerations
as to whether a confession is voluntary are the length of the interrogation,
its location, its continuity, and the defendant’s maturity, education, physical
condition and mental health. (
693; People v. Williams,
speak is entirely ‘self-motivated’ [citation], i.e., if he freely and
voluntarily chooses to speak without ‘any form of compulsion or promise of
reward. . . .’ [Citation.]†(People
v. Thompson (1980) 27 Cal.3d 303, 327–328 overruled on other grounds in
260.)
D. Appellant’s statement was voluntary
Evaluating the totality of the surrounding circumstances, we conclude
that appellant’s inculpatory statements given to detectives were the product of
rational intellect and free will.
1. Proper Miranda
given
Appellant was properly advised of his Miranda rights, which he stated that he understood. He also said that he would waive his right to
have counsel present when talking to the detectives. Appellant signed the Miranda waiver form corroborating these oral agreements. “An express written or oral
statement of waiver of the right to remain silent or of the right to counsel is
usually strong proof of the validity of that waiver . . .†(North
Carolina v. Butler, supra, 441 U.S. at p. 373.)
Appellant’s argument that he did not receive appropriate
incorrect belief that he was not told that anything he said could and would be
used against him in a court of law. As
we point out in part II, ante, in
fact, that warning was given. As
discussed in part IF (1) and (2), ante,
at no time after the waiver of his Miranda
rights did appellant unambiguously request counsel.
2. Conditions at interrogation not coercive
Appellant makes no claim that the duration of his interrogation or the
conditions during the interview rendered his inculpatory statements
involuntary. His interrogation did not
continue over an extended period, but lasted only approximately two hours and
20 minutes. He did not suggest that he
was sleep deprived, hungry, thirsty or otherwise uncomfortable or physically
incapable of proceeding. Thus, the
conditions at the interrogation were not coercive.
deficiencies
In arguing that his statements were involuntary, appellant stresses his
young age, mental deficiencies and lack of experience with law
enforcement. We are not convinced that
these factors rendered his statements involuntary. We find nothing presented in connection with
the suppression motion to suggest that appellant’s I.Q. was below average, that
he had any learning disabilities or that any deficiencies in his youthful
intellect precluded rational decision making.
There is also nothing in that record that suggests that appellant
suffered any mental deficiencies at the time of the interrogation, or that any
mental deficiencies that he might have suffered were of the type that impaired
his understanding of the Miranda rights
he waived or his free will to waive them.
The fact that these proceedings, that had previously been suspended
because of appellant’s incompetence, were now going forward, suggests that he
was competent to proceed. Finally, the
record is bereft of any evidence that appellant’s lack of experience with law
enforcement was a factor in his making the inculpatory statements.
Appellant also claims that his statements were involuntary because made
in reliance upon promises of lenity. The
detectives told him that, “[I]f you buck the system, if you fight everything,
you’re just going to make it that much harder on yourself,†which he argues implies
lenity if he confessed. Promises of
lenity, express or implied, or advantage to the accused, if it is a motivating
cause of the confession is sufficient to invalidate the confession and render
it involuntary as a matter of law. (See
p. 838.) We fail to see how the
detectives’ statement can be construed to imply leniency. The detectives were merely telling appellant
that it was better to tell the truth.
“[M]erely advising a suspect that it would be better to tell the truth,
when unaccompanied by either a threat or a promise, does not render a
confession involuntary.†(
600.)
Even if we considered the statement a promise of lenity, it was an
isolated statement and did not permeate the entire interrogation. Where such promises have invalidated
confessions, they often permeate the questioning. (See, i.e., In re Shawn D. (1993) 20 Cal.App.4th 200, 216.)
Finally, “‘“[w]hen the benefit pointed out by the
police . . . is merely that which flows naturally from a
truthful and honest course of conduct,†the subsequent statement will not be
considered involuntarily made.’†(
398.) We view the detectives’ statement
to be of this type.
5. Use of deception and lies
Appellant
argues that his statements to detectives were involuntary because of lies they
told him. He points to being told (1) on
two occasions that “your worst case scenario is maybe being in custody till
you’re 25,†(2) once that he was not going to prison, and (3) that his
fingerprints were found on the gun.
However, there is no evidence that any of these statements caused
appellant to make his inculpatory statements.
Use of deception or
communication of false information to a suspect can affect the voluntariness of
an ensuing confession but they are not per se sufficient to make it
involuntary. (People v. Musselwhite (1998) 17
Cal.4th 1216, 1240.) However, there must
be a proximate causal connection between the deception and the confession. (Ibid.) Causation in fact is insufficient. (Ibid.;
see also People v. Benson
(1990) 52 Cal.3d 754, 778 [“A confession is ‘obtained’. . . if
and only if inducement and statement are linked, as it were, by ‘proximate’
causation. . . . The requisite causal connection
between promise [or deception] and confession must be more than ‘but for’: causation-in-fact is insufficientâ€].)
The
record fails to indicate that the detectives’ statement that appellant might be
in custody only until he was 25 was the proximate cause of his admissions. The detectives’ brief comment was first made
long before appellant’s admissions, and the second time it was made, appellant
had already made the admissions. The
statement that appellant was “not going to prison†was followed by an inaudible
comment, the absence of which makes that statement unclear and ambiguous as to
its precise meaning.
found appellant’s fingerprint on the gun was told to appellant after he had
already admitted that he was at the wrong place at the wrong time and had given
his inculpatory version of what had occurred.
Hence none of the allegedly false statements made by the detectives were
the proximate cause of appellant’s admissions.
6. Coercive police activity
A statement is voluntary unless there is “coercive police
activity.†(Colorado v. Connelly (1986) 479 U.S. 157, 167.) At no time did the detectives say or do
anything here to imply that defendant was required to talk. In fact, they reiterated on multiple
occasions that he was free to remain silent or to have counsel present at the
interrogation. We therefore
independently conclude that, as the trial court ruled, defendant’s statements
were voluntary.
IV. Sufficiency of evidence to
support mayhem conviction
A. Contention
Appellant was convicted of aggravated mayhem in count 7. Sentencing on that count was stayed pursuant
to section 654. Appellant contends that
there is insufficient evidence to support the conviction. He argues that aggravated mayhem requires the
specific intent to cause maiming injury and not a random or indiscriminate
attack. The attack here, he asserts, was
a random, unprovoked attack by a 16-year-old boy who was “probably
intoxicated.†This contention lacks
merit.
B. Standard of review
“In assessing the sufficiency of the evidence, we review the entire
record in the light most favorable to the judgment to determine whether it
discloses evidence that is reasonable, credible, and of solid value such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citations.]†(People v. Bolin (1998) 18 Cal.4th
297, 331.) We resolve all conflicts in
the evidence and questions of credibility in favor of the verdict, and indulge
every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351,
358.) “‘[T]he appellate court presumes
in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.’
[Citation.] This standard applies
whether direct or circumstantial evidence is involved.†(People
v. Catlin (2001) 26 Cal.4th 81, 139.)
Reversal is unwarranted unless ‘“upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’†(People v. Bolin, supra, at
p. 331.)
C. Castro’s intent to maim
Aggravated mayhem is defined in section 205, as follows: “‘A person is guilty of aggravated mayhem
when he or she unlawfully, under circumstances manifesting extreme indifference
to the physical or psychological well-being of another person,
disability or disfigurement of another human being or deprives a human being of
a limb, organ, or member of his or her body.
For purposes of this section, it is not necessary to prove an intent to kill.’†(People
v. Ferrell (1990) 218 Cal.App.3d 828, 833 (Ferrell), italics added.)
Specific intent to cause the maiming injury is an element of aggravated
mayhem.
“Evidence of a defendant’s state of mind is almost inevitably
circumstantial, but circumstantial evidence is as sufficient as direct evidence
to support a conviction.†(
1208.) A jury may infer a defendant’s
specific intent from the circumstances attending the act, the manner in which
it is done, and the means used among other factors. (Ferrell,
supra, 218 Cal.App.3d at p. 834.)
The requisite intent to maim may not be inferred solely from evidence
that the injury inflicted actually caused mayhem type injury. (Ferrell,
supra, 218 Cal.App.3d at
p. 835.) Evidence of a controlled
and directed attack or an attack of focused or limited scope may provide
substantial evidence of a specific intent to maim. (People
v. Lee (1990) 220 Cal.App.3d 320, 326.)
On the other hand, where the evidence shows no more than an “‘indiscriminate,’ . . .
‘random attack’ or ‘an explosion of violence upon the victim,’†it is
insufficient to prove an intent to maim.
(People v. Quintero (2008) 135
Cal.App.4th 1152, 1162.)
In
Ferrell, the defendant was a stranger
to her victim, but came looking for her by name, stating that she had been sent
by a friend from jail. The defendant
pointed her gun at her victim’s mother and threatened to kill her. When the victim’s father moved toward
defendant, she calmly and deliberately lowered her aim and shot him in the
knee. The defendant then turned and shot
her victim once in the neck. Once her
victim was down, defendant did not fire additional shots. As a result of her injury, the victim was
permanently partially paralyzed. The
Court of Appeal observed that it takes no special expertise to know that a shot
to the neck from close range, if not fatal, is highly likely to disable
permanently. The evidence did not show
an indiscriminate random attack on the victim’s body or an explosion of
violence. Instead, the attack was
directed, controlled, and of focused or limited scope. (Ferrell,
supra, 218 Cal.App.3d at pp. 835–836.)
While
there are considerable differences between the facts in Ferrell and those presented here, consideration of the salient
facts here leads us to a similar conclusion.
Appellant, the shooter, an Hispanic MNV gang member, was in a car
driving on Cherry Avenue in rival Black Duroc gang territory. There was evidence that the MNV gang and
Duroc gang were at war, that there was racial animus between Blacks and
Hispanics involved in the war and that nongang members were often the
victims. Appellant shot Graves in the
head and sped away. This evidence was
sufficient for the jury to reasonably conclude that the attack on Graves was
not indiscriminate or a random explosion of violence. Rather, it was a “cold and deliberate†(
p. 835), calculated, and a pinpointed attack by an Hispanic gang member on
a Black individual residing in a rival Black gang territory. The jury so found, having concluded that the
special allegation that the attempted murder was willful, deliberate and
premeditated was true.
Further,
the shot was made from point blank range and was aimed at Grave’s head, a part
of his body that made it extremely likely that the victim would be killed or
severely disabled. Firing a gun at
someone from point blank range is circumstantial evidence of intent to kill
that person (People v. Lashley (1991)
point-blank range “undoubtedly creates a strong inference that the killing was
intentionalâ€]; see also People v.
Chinchilla (1997) 52 Cal.App.4th 683, 690 [“The act of firing toward a
victim at a close, but not point blank, range ‘in a manner that could have
inflicted a mortal wound had the bullet been on target is sufficient to support
an inference of intent to kill’â€].) It
can also be circumstantial evidence of an intent to maim the person if the
person does not die, especially when the shot is aimed at a vulnerable area of
the body. A defendant may intend to both
kill and disable or disfigure his victim if the attempt to kill is
unsuccessful. (Ferrell, supra, 218 Cal.App.3d at pp. 833–834.)
V. Pitchess motion in camera inspection
A.
Background
Before trial, appellant filed a Pitchess motion, seeking complaints against
Detectives Manuel and Wilken related to “use of bias, perjury, false
imprisonment, false testimony, improper and coercive conduct, dishonesty,
fabrication of charges and evidence, personal bias of interrogating detectives
which would affect their credibility as witnesses, violation of constitutional
rights, character and custom to coerce confessions, charges and evidence,
verbal abuse; conduct unbecoming an officer; harassment and/or false arrest;
giving false testimony; wrongful accusations whether it led to a conviction or
not; or preparing false police reports, . . .†The
trial court denied the motion, finding that “there is not a specific factual
scenario, plausible factual foundation for the discovery or even for review of
the officer’s personnel records . . .â€
Later,
appellant filed a supplemental discovery motion seeking certain evidence
bearing on Detective Manuel’s credibility.
Appellant also sought evidence establishing that Detective Manuel has
been guilty of misconduct involving evidence or unauthorized removal of
evidence from the evidence locker. The
People filed their own motion seeking Brady
Department. The People’s motion sought
discovery related to Detective Manuel “referenced in the Brady Request
Form (attached herein and incorporated by reference).â€
in the record on appeal. The record
before us also fails to include any order granting either appellant’s
supplemental discovery motion or the People’s Brady motion.
Nonetheless, on October 18,
2010, the trial court conducted an in camera hearing at which it concluded that
there was no discoverable evidence. At
the hearing, the trial court stated: “We
are on the record in chambers on a notice of motion re discovery filed by the
People on the Monrovia Police Department.â€
The court made no reference in that hearing to any Pitchess motion
or to appellant’s supplemental discovery motion. The minute order of that hearing, however,
states that there was no discoverable evidence as to “Brady/Pitchess
issues.â€
B. Contention
the sealed reporter’s transcript of the in camera Pitchess hearing to determine whether “the trial court abused its
discretion in failing to turn over records to the defense.†Appellant further requests that we review
“the sealed materials to determine what documents were produced or not produced
for the trial court’s review and the sufficiency of any explanation of such
production.â€
C. Pitchess
review
In Pitchess, the California
Supreme Court held that a criminal defendant is entitled to discovery of
officer personnel records if the information contained in the records is relevant
to his ability to defend against the charge.
Later-enacted legislation implementing the court’s rule permitting
discovery (§§ 832.5, 832.7, 832.8; Evid. Code, §§ 1043–1047) balanced the
accused’s need for disclosure of relevant information against a law enforcement
officer’s legitimate expectation of privacy in his or her personnel
records. The Legislature concluded that
a defendant, by written motion, may obtain information contained in a police
officer’s personnel records if it is material to the facts of the case. (Evid. Code, § 1043, subd. (b)(3).) When presented with such a motion, the trial
court rules as to whether there is good cause for disclosure. (Evid. Code, §§ 1043, 1045.) If the court orders disclosure, the custodian
of the officer’s records brings to court all the potentially relevant personnel
records and, in camera, the trial court determines whether any of the records
are to be disclosed to the defense.
During the in camera hearing, neither the defense nor the prosecution is
present. (People v. Mooc (2001)
26 Cal.4th 1216, 1226–1227, 1229 (Mooc).)
Mooc requires that, at the time
of the in camera hearing, the trial court facilitates appellate review of its
in camera rulings as follows. “The trial
court should . . . make a record of what documents it examined before
ruling on the Pitchess motion. . . . If the
documents produced by the custodian are not voluminous, the court can photocopy
them and place them in a confidential file.
Alternatively, the court can prepare a list of the documents it
considered, or simply state for the record what documents it examined. Without some record of the documents examined
by the trial court, a party’s ability to obtain appellate review of the trial
court’s decision, whether to disclose or not to disclose, would be
nonexistent. Of course, to protect the
officer’s privacy, the examination of documents and questioning of the
custodian should be done in camera in accordance with the requirements of
Evidence Code section 915, and the transcript of the in camera hearing and all
copies of the documents should be sealed.â€
(Mooc, supra, 26 Cal.4th at p. 1229, fn. omitted.)
There are numerous impediments to
our reviewing the in camera hearing
as requested by appellant. Initially, we
observe, that the record is unclear whether the in camera hearing was solely
with respect to the People’s Brady discovery
or whether it included appellant’s supplemental Pitchess discovery request.
At that hearing, the trial court made no reference to appellant’s
discovery request and mentioned only that the hearing pertained to the People’s
Brady motion, though the minute order
of that hearing refers to both.
Further, there is no ruling in the appellate record on appellant’s motion
for supplemental discovery and, therefore, no indication of the scope of the
discovery that the trial court was going to permit, if any. It is therefore impossible for us to
determine whether the documents produced at the in camera hearing are within
the categories of documents that the trial court would permit.
The Brady discovery does not
present this problem, as it requires the prosecutor to disclose all evidence,
in whatever category, that is favorable
to the defendant and material on the
issues of guilt or punishment. (See
Cal.App.4th 1463, 1471.)
Finally, the transcript of the in camera proceeding does not precisely
describe the claims against Detective Manuel.
The custodian of records at that hearing stated that there was one
disciplinary matter, as a result of which the detective resigned. The trial court reviewed a document dated
July 28, 2010, indicating a “Notice of Intent to Terminate Employment,â€
file-stamped August 9, 2010. The court
stated that “there are a number of incidents that are referenced here which go
to the issues of inappropriate conduct, interfering with investigations, and
not being candid with other law enforcement.â€
The trial court then merely indicated in general terms the nature of the
incidents, without specification of each.
In light of these difficulties, we
cannot properly evaluate the propriety of the trial court’s conclusion that no
disclosure to appellant was required.
However, it is unnecessary for us in the circumstances presented, to
remand this matter for a clarification of the discovery proceedings. Regardless of whether some of the information
should have been disclosed to appellant and was not, he suffered no prejudice
under either Pitchess or
beyond a reasonable doubt standard.
Both Pitchess and
prejudice. With regard to
provided the appellant with discoverable material will only support a motion
for a new trial if there was a reasonable probability that there would be a
different result had the Pitchess evidence
been available to the defendant at trial.
(People v. Gaines (2009) 46
Cal.4th 172, 181 [“‘It is settled that an accused must demonstrate that
prejudice resulted from a trial court’s error in denying discovery’â€];
699, 706.)
Similarly, Brady disclosure
is required by the prosecution if the evidence is favorable to the defendant
and material on the issues of guilt or punishment. (See People
v. Gutierrez, supra, 112 Cal.App.4th at p. 1471.) Brady evidence
is “‘material’†if there is a reasonable probability that if the evidence had
been disclosed to the defendant, the result of the proceeding would have been
different. (City of Los Angeles v. Superior Court (Brandon) (2002) 29 Cal.4th
1
| Description | Albert Manuel Castro appeals from the judgment entered upon his convictions by jury of attempted murder (Pen. Code, §§ 664, 187, subd. (a), count 1),[1] assault with a firearm (§ 245, subd. (a)(2), count 3), and aggravated mayhem (§ 205, count 7). The jury found to be true with respect to count 1 the allegation that the attempted murder was committed willfully, deliberately and with premeditation (§ 664, subd. (a)), with respect to all counts the allegations that the offenses were committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)) and the allegation that appellant personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)), and with respect to counts 1 and 7 the allegation that a principal personally and intentionally discharged a firearm causing great bodily injury (§ 12022.53, subds. (d) & (e)(1)). The trial court sentenced appellant to an aggregate state prison term of 40 years to life. Appellant contends that (1) the trial court erroneously admitted his statements made to police after he unambiguously invoked his Miranda[2] right to counsel, in violation of the Fifth and Fourteenth Amendments, (2) his statements to police should have been suppressed because the Miranda warning he received failed to advise him that anything he said could be used against him in court, (3) admission in evidence of appellant’s involuntary statements to police violated his due process rights under the California and United States Constitutions, (4) there is insufficient evidence to support appellant’s aggravated mayhem conviction, and (5) the trial court erroneously failed to award him presentence conduct credits. Appellant also requests that this court conduct an independent in camera examination of the Pitchess[3] hearing. We modify the conduct credits and otherwise affirm. |
| Rating |
