Filed 6/11/13 P. v. Goins
CA1/4
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
PIERRE
JOENELL GOINS,
Defendant and Defendant.
A134149
(Alameda
County
Super. Ct.
No. C163346)
A
jury convicted defendant Pierre Joenell Goins of
§ 187), and being a felon in possession
of a firearm (§ 12021, subd. (a)(1), repealed by Stats.2010, ch. 711,
§ 4, now § 29800, subd. (a)(1) ). The
jury also found true the allegations that defendant personally and
intentionally discharged a firearm, causing great bodily
(b), (c) & (d); 12022.5, subd. (a).)
The trial court sentenced defendant to 43 years to life in prison. On appeal, defendant contends his conviction
must be reversed because the trial court erroneously refused to allow character
evidence regarding the victim and deprived him of his constitutional
choice. He further claims that reversal
is required because his videotaped confessions—wherein he admitted to shooting
the victim at close range, multiple times in the back—were not voluntary. We affirm.
I.
FACTS
1. The
Murder
In
July of 2009, Latasha Odom lived in an apartment at 2355 Humboldt
Avenue in Oakland with her two
children and her daughter’s father, Julius Batiste. At the time, Odom’s cousin Bianca Hernandez
and Hernandez’s young son temporarily lived there as well. Defendant was a friend of Hernandez’s and
Odom had met him once.
Odom was decorating the apartment with streamers and balloons in preparation
for her combined birthday party with her son the next day. Around midnight, Hernandez called to wish
Odom a happy birthday and said she and defendant were coming over. Hernandez introduced defendant to
Batiste. Everyone was drinking and
playing dominos; there were no problems.
A neighbor named “Jim†came to the door and asked if they had a
“Swisher,†which was used to smoke marijuana.
Jim recognized defendant from the neighborhood. As no one had a Swisher, Jim, defendant, and
Batiste went to a nearby convenience store to buy one. Upon returning to the apartment, they
realized that they bought the wrong flavor; defendant went back to the store
for a different one.
Once back from the store, defendant,
Odom, Hernandez, and Batiste continued to drink and play dominos and cards. Odom testified that, at some point, Batiste
got up from the table where the four had been sitting, and then defendant got
up and his chair bumped Batiste.
Defendant then shot Batiste in the back four times and ran out the
door. Hernandez ran after Defendant
questioning what he had done. Odom
called 9-1-1 and the tape was played for the jury. Batiste died at the scene.
When Odom was initially interviewed
by the police, she identified herself as “Tammy Williams.†At the preliminary hearing, Odom denied
drinking alcohol and smoking marijuana on the night of the murder, but at trial
she admitted she had lied. She, however,
denied being drunk at the time of the murder.
Odom further admitted that she had been in trouble with the law in the
past and had suffered three prior convictions: assault in 2008, drug possession
in 2008, and theft in 2003.
Bianca Hernandez testified that the
night before the murder, she had spent the night with defendant in a
motel. Hernandez had known defendant for
less than a month, and had purchased marijuana from him. At midnight, Hernandez called Odom and wished
her a happy birthday and then she and defendant went to the apartment on
Humboldt. Everything seemed to be
fine. They were playing dominos,
drinking vodka, and defendant was sharing his marijuana. Hernandez recalled Batiste sitting up against
the wall listening to music and “rapping.â€
Batiste then got up and said he was getting something to eat. However, Batiste never made it
multiple shots at him, and ran out the front door. Hernandez subsequently gave a statement to
the police, and to this day she wants to know why defendant shot Batiste.
Sitha Kung lived across the street
at 2363 Humboldt Avenue. On July 7,
2009, he went to bed around 11 p.m. and was awakened by gunshots, which he
initially thought were firecrackers. He
then heard a woman’s voice say, “ ‘No, no.’ †and then say,
“ ‘Why did you do this for?’ â€
The police arrived soon thereafter.
2. Police Investigation
a.
Identification and Arrest
Oakland Police Department technician, Cheryl Cooper reported to
the crime scene. She took photographs of
the scene, including one of a slug on the floor, but a homicide officer told
her to stop until a warrant was obtained, and a search could be conducted. When she returned to the scene approximately
four and half hours later, the slug was no longer there. She did find a cup and two glasses on the
table, along with four bottles of vodka.
Oakland Police Homicide Sergeant
Caesar Basa also responded to the crime scene.
A search warrant issued for the location, and no guns were located. Basa interviewed Odom and Hernandez. Odom identified defendant as the suspect in
the homicide and she also picked him out of a photographic lineup.
On July 8, 2009, at 11:30 p.m.,
Oakland Police Officer Daniel Gil was dispatched to 8127 Mariners Drive,
apartment 208, in Stockton. Stockton
Police had conducted surveillance on the apartment and defendant was subsequently
taken into custody at that location. Two
firearms were also taken into evidence.
Defendant’s girlfriend, Elizabeth Amber Cruz, directed the officers to a
plastic bag containing a purse with two revolvers inside. Four rounds were removed from one of the
guns. Defendant was transported to the
Oakland Police Department.
b. Defendant’s Two
Videotaped Confessions
On July 9, 2009,
defendant was interviewed at the Oakland Police Department. Defendant was read his
rights. The videotaped interview was
played for the jury. Defendant initially
stated that he had not been on Humboldt the night before and spent the night at
his girlfriend’s house in Oakland before heading to a friend’s apartment in
Stockton around 1 or 2 p.m. Defendant
subsequently admitted he was at Odom’s and Batiste’s home with Bianca Hernandez
and that it was Odom’s birthday. Although things started out on a friendly note, defendant said that Batiste “started trippin†and “mugging†him for some unknown
reason. Defendant said that earlier in
the night, when they were “chillin,†Batiste told him that once before he
had shot at Hernandez’s “baby daddy.â€
Defendant said that Batiste referred to the prior incident as making the
other guy “do the runnin man.â€
Defendant
believed that Batiste and Hernandez may have had “something going†on between
them.
Although
he “didn’t see no pistol,†defendant believed he saw Batiste’s gun sort of
“poking†out. Defendant explained that
he saw a “[l]ittle bit,†explaining that “people be trying to hide that shitâ€
. . .[¶] “You know, how you can see it bulging out.†Defendant said that Batiste began dancing
around, playing with his belt, and said that he was going to make defendant “do
the runnin man right now in a minute.â€
Defendant understood this as Batiste’s “code†for “shooting at
somebody.†Defendant thought that
when Batiste turned around he was going to be killed and “did what [he] had to
do.†Defendant believed Batiste was
reaching for a gun; defendant got his gun first and fired three shots.
Following his
interview with Oakland Police, defendant also spoke with a representative of
the district attorney’s office. District
Attorney Inspector Patrick Johnson testified that when a homicide occurs and a
suspect is taken into custody by the police, the district attorney’s office
will also interview the suspect. On
July 9, 2009, Johnson, along with assistant district attorney, Kevin
Dunleavy, took a statement from defendant at the Oakland Police
Department. Defendant waived his
The videotaped statement was played for the jury.
Defendant admitted that
it was the first time he had met Batiste.
They were drinking and playing cards.
Defendant asked to use the bathroom and Batiste said, “ ‘No.’
†Defendant thought he saw a “little
piece†of a black gun on Batiste.
Batiste mentioned “firing shots†at the “running man,†referring to
Bianca’s ex-boyfriend. Batiste then
started to pull his gun on defendant and then defendant shot him first. Defendant admitted to shooting the victim at
close range, explaining that he “didn’t wanna miss.â€
c. Firearms Evidence
Criminalist Todd Weller of the
Oakland Police Department, testified as an expert in firearms, including
bullets and slugs. Weller explained that
in determining whether a certain gun fired a
bullet, he conducts a microscopic examination of scrape marks or striations
that are left on the bullet as a result of the bullet traveling through a
barrel of a gun. Comparisons are then
made by firing test bullets from the gun.
In this case, Weller examined three bullets and four cartridges and
compared them with the two revolvers in evidence. Based on the test-firing and microscopic
examination of the bullets, Weller opined that one of the guns had fired all
three rounds.
d. Autopsy
Dr. David Levin, a
forensic pathologist for Alameda County, testified as an expert. On July 9, 2009, he performed the autopsy on
Batiste. There were four shots in the
victim’s back. Based on the high presence
of soot, it appeared that the fourth shot was fired from one foot away or
less. Bullet two passed through a rib,
through the aorta, then through the airway adjacent to the trachea and lodged
in the trachea. Bullet three was in the
abdominal cavity. The cause of death was
multiple gunshot wounds.
B. Defense Case
The defense presented no testimonial
evidence, but submitted documentary evidence regarding defendant’s medical
records.
A. Character Evidence of the Victim
Defendant
contends the trial court abused its discretion and violated his
limine motion to present evidence that the victim had committed violent acts in
the past and acted in conformity with his character for violence on the night
in question. Defendant maintains this
evidence was central to his claim of self-defense because it would have shown
his state of mind and would have corroborated his statements to police.
The
prosecution filed a motion in limine pursuant to Evidence Code sections 1101,
1103, and 352, seeking to exclude any prior bad acts or crimes committed by
Batiste. The defense, in turn, filed a
motion seeking to admit Batiste’s four prior acts of violence under Evidence
Code section 1103, subdivision (a)(1).
At
the October 4, 2011 hearing on the motions, the trial court stated that it had
read defendant’s statements to the police and concluded there was no evidence
of any threats by Batiste. The court understood
that defendant told police that he believed he saw “parts of a gun or
something†and then he shot Batiste before Batiste could shoot him. The court then summarized the prior acts of
violence as follows: 1) On November 7, 2005, Batiste and a co-defendant,
robbed a victim at gunpoint. It was
reported that it was the co-defendant who displayed the gun; 2) On or about May
26, 2006, Odom was reportedly struck by Batiste and did not want to press
charges. At the time of the incident
they were boyfriend and girlfriend and had a baby together; 3) On or about
October 7, 2006, Tracy police responded to a report that Odom had a deep
laceration on her right hand. Witnesses
said that they saw fighting and punching and that Batiste then cut Odom with an
unknown object. Odom did not care
whether the officer wrote a report; and 4) On April 7, 2006, Odom was hostile,
drunk, and belligerent, and said that Batiste pushed her.
Defense
counsel argued that the evidence should be allowed as defendant claimed
self-defense and the evidence demonstrated Batiste had a “violent nature.†Defense counsel further argued that based on
defendant’s statements to police, Batiste threatened to shoot defendant and
defendant shot first in order to save his own life. When the court asked defense counsel to point
out the actual threats by Batiste in the record, counsel responded that
defendant told police that he needed to go to the bathroom at one point but
Batiste would not let him. Defense counsel
also said defendant told police that Batiste gave him a hostile look.
told police that when Batiste turned around, defendant believed he was getting
ready to pull a gun. Defense counsel
argued that defendant was threatened by Batiste and the evidence demonstrated
Batiste’s violent character.
In
response, the prosecutor argued that none of the conduct that defendant said
occurred in the Batiste’s home on the night of the murder constituted violent
conduct. The prosecutor further argued
that, on the night in question, defendant had just met Batiste for the first
time and, as such, defendant did not know anything about Batiste’s prior
incidents of violence. Moreover, the
prosecutor maintained that “[t]here’s absolutely no evidence that
. . . Batiste had a gun on this night or any other time in [his] life
. . . [Defendant] himself . . . states ‘I didn’t see no
pistol.’ †Rather, defendant
proceeds to say, “ ‘You know, people cover up their guns when they have guns
. . . I thought I saw a bulge.’ â€
The
trial court issued a tentative ruling that the challenged evidence would not be
admissible. There was no further
discussion of the proposed evidence at trial.
“We review a trial court’s exclusion
of evidence for abuse of discretion . . . .â€
(People v. Gutierrez (2009) 45 Cal.4th 789, 827.) “ ‘[W]here . . . a discretionary power is
inherently or by express statute vested in the trial judge, his or her exercise
of that wide discretion must not be disturbed on appeal except on a
showing that the court exercised its discretion in an arbitrary, capricious or
patently absurd manner that resulted in a manifest miscarriage of
justice.’ [Citation.]†(Id. at p.
828.)
Evidence Code section 1101,
subdivision (a) provides that “evidence of a person’s character or a trait of
his or her character . . . is inadmissible when offered to prove his or her
conduct on a specified occasion.†“In a
criminal action, evidence of the character or a trait of character (in the form
of an opinion, evidence of reputation, or evidence of specific instances of
conduct) of the victim of the crime for which the defendant is being prosecuted
is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by
the defendant to prove conduct of the victim in conformity with the character
or trait of character.†(Evid. Code,
§ 1103, subd. (a)(1).) Thus, when
self-defense is raised in a homicide case, evidence of the aggressive and
violent character of the victim is admissible to show the victim was the
aggressor. (People v. Minifie
(1996) 13 Cal.4th 1055, 1069.) The
violent nature of a murder victim is irrelevant, however, unless there is “
defendant perceived the murder victim as presenting an immediate threat.†(People v. Hoyos (2007) 41 Cal.4th
872, 912-913, italics added.)
Moreover, “the trial court may
exclude otherwise admissible evidence pursuant to Evidence Code section 352 if
admitting the evidence would have confused the issues at trial, unduly consumed
time, or been more prejudicial than probative.
[Citations.] The trial court must
always perform its gatekeeping function pursuant to Evidence Code section 350
to exclude evidence that is irrelevant.â€
(People v. Gutierrez, supra, 45 Cal.4th at pp. 827–828.)
3. Analysis
Although the
record shows that defense counsel failed to seek a final ruling on the
admissibility of evidence concerning Batiste’s propensity for violence,
defendant contends that any further attempts by trial counsel to admit such
evidence would have been futile after the court appeared to indicate that it
believed such evidence to be inadmissible.
Even assuming defendant’s argument to be true, the trial court did not
abuse its discretion in excluding the challenged evidence.
Here, there was no evidence that
defendant was in any imminent danger from Batiste. To the contrary, everyone was seemingly
having a good time, drinking, and playing dominos and cards. Defendant was a social guest at Batiste’s home
and there is no indication that he was unable to leave if he had wanted to do
so. More importantly, a gun was neither
found on Batiste’s body nor otherwise located at the scene. Defendant’s statements to the police about
whether Batiste had a gun were equivocal at best and at the most only suggest
that he thought Batiste might have had a gun.
On this basis, the trial court properly exercised its discretion. (People
v. Hoyos, supra, 41 Cal.4th 872.)
In People v. Hoyos, supra, 41 Cal.4th 872, our Supreme Court addressed
a similar situation. There, the trial
court observed that in order for a “victim’s propensity for violence to be
relevant, there must be some evidentiary support for a self-defense-type theory
that the defendant perceived the . . . victim as presenting an immediate
threat.†(Id. at pp.
912–913.) In endorsing this statement,
the Supreme Court further explained that “even if the murder victim were the
most violent person in the world, that fact would not be relevant if the
evidence made it clear that the victim was . . . shot in the back of the
head.†(Id. at p. 913.) In
victim had been beaten while holding a toddler, and “finished off with a bullet
to the back of her head.†(
The
defendant’s claim that the victim posed a threat was based on a third party’s
statement that victim “might have been going for a gun.†(Ibid.) The Supreme Court rejected this claim,
finding defendant presented nothing more than “sheer speculation†regarding the
victim’s conduct at the time of the murder.
(Ibid, fn. omitted
The court concluded the trial court
acted within its discretion in denying admission of the propensity evidence
where the facts adduced at trial failed to show the victim presented any threat
to the defendant whatsoever. (
913.)
Similarly, here, there was no
evidence whatsoever that Batiste could have presented a threat to
defendant. The evidence regarding the
robbery in 2005 and the domestic violence incidents in 2006 had marginal
probative value and did nothing to further defendant’s self-defense claim. Moreover, Batiste’s prior acts of violence
were not relevant to show defendant’s state of mind at the time he killed
Batiste unless defendant knew of Batiste’s conduct. (People
v. Cash (2002) 28 Cal.4th 703, 726 [victim’s customary debt collection
practices not relevant to show defendant’s state of mind at the time he killed
victim unless defendant knew of those practices].) Here, there was no evidence that defendant
knew of Batiste’s violent acts towards Odom or of his participation in a
robbery. Given this record, the trial
court acted well within its discretion in excluding the evidence pertaining to
Batiste’s alleged propensity for violence.
Finally, to the extent defendant
claims that the exclusion of evidence of Batiste’s prior violent acts
interfered with his constitutional right to present a defense, he never made
this claim at trial and, thus, he has forfeited the issue on appeal. (See People
v. Tafoya (2007) 42 Ca1.4th 147, 166; People
v. Rudd (1998) 63 Cal.App.4th 620, 628-629 [generally a constitutional
claim must be raised in the trial court to preserve the issue for
appeal].) Even assuming defendant had
preserved this constitutional claim, it would be meritless, because he has
failed to show that the exclusion of the evidence made his trial so unfair as
to deprive him of due process.
“As a general matter, the
‘[a]pplication of the ordinary rules of evidence . . . does not impermissibly
infringe on a defendant’s right to present a defense.’ [Citations.]†(People v. Fudge (1994)
7 Cal.4th 1075, 1102-1103.) “Although
completely excluding evidence of an accused’s defense theoretically could rise
to this level, excluding defense evidence on a minor or subsidiary point does
not impair an accused’s due process right to present a defense.†(Id. at p. 1103.) A defendant has no constitutionally protected
right to introduce evidence that is irrelevant or only remotely relevant. (People v. Hall (1986) 41 Cal.3d 826,
834-835.) Further, the United States
Supreme Court has recognized, “we have never questioned the power of States to
exclude evidence through the application of evidentiary rules that themselves
serve the interests of fairness and reliability—even if the defendant would
prefer to see that evidence admitted.†(
U.S.683, 690; accord People v. Yeoman (2003)
31 Cal.4th 93, 141-142.)
Here,
the trial court’s ruling did not prevent defendant from presenting evidence
from which the jury might have concluded defendant’s killing of Batiste was in
self-defense. Without again detailing
the evidence, the jury heard defendant’s statements to police and to the
district attorney that although the evening of murder began in a friendly
manner, as the night wore on, defendant felt uncomfortable around Batiste due
to the fact that Batiste started “mugging†him and would not let him go to the
bathroom. The jury also heard defendant say
that Batiste was dancing around with a gun in his waistband and talking about
making defendant “do the running man.â€
In closing argument, defense counsel emphasized that defendant grew
increasingly anxious about Batiste’s behavior, and characterized defendant’s
conduct as being in self-defense. The
jury also was instructed with various instructions regarding self-defense. (See, e.g., CALJIC No. 5.12 [justifiable
homicide in self-defense]; CALJIC No. 5.13 [justifiable homicide—lawful defense
of self]; CALJIC No. 5.15 [burden of proof on prosecution that homicide was not
justifiable]; CALJIC No. 5.17 [actual but unreasonable belief in necessity to
defend—manslaughter]; CALJIC No. 5.50 [self-defense—assailed person need not
retreat]; CALJIC No. 5.51 [self-defense—actual danger not necessary]; CALJIC
No. 5.52 [self-defense—when danger ceases]; CALJIC No. 5.53 [self-defense not
an excuse after adversary disabled]; CALJIC No. 5.55 [plea of self—defense may
not be contrived].) In these
circumstances, we cannot conclude that the trial court’s ruling prevented
defendant from presenting his claim of self-defense. (People
v. Cash, supra, 28 Cal.4th at pp. 727-728.)
Defendant contends he was denied his
constitutional right to counsel of his choice when the trial court refused to
grant a continuance so that his retained counsel could prepare for trial,
thereby, effectively denying his request to substitute in retained counsel.
Defendant’s preliminary hearing was held on March 30, 2010, and he
was arraigned on April 15, 2010.
Defendant was represented by appointed counsel and a speedy trial was
waived.
The case was called for trial on October 3,
2011. On October 5, the case was set for
various pretrial motions, including a Miranda
issue, and jury selection was to commence the next day. Prior to the hearing on the motions,
defendant personally addressed the court and stated he “would like to hire a
private attorney.†When the court asked
whether defendant had “just decided†this, defendant replied, “I’ve been
deciding, but I need some more time.â€
The court advised defendant that he was there for trial and the private
attorney was either there or was not. In
response, defendant said “Conflict of interest.
It’s not working.†The court
asked defendant when his attorney could get there. Defendant then asked about how much time he
might get and the court reiterated he was there for trial and he did not get
any more time. The court told defendant
that unless the new counsel was ready to go right then, the court was hearing
defendant’s Miranda issue. The court advised
defendant he should have done this a “long time ago†and proceeded with the
Later that day, sometime after noon, an
attorney named Mr. Kelvin appeared in court and stated he had been contacted
two days earlier about substituting in as private counsel for defendant. Mr. Kelvin indicated that he “would not be
requesting to substitute [without] at least two or three weeks to prepare
. . . .†The court denied
the request for a continuance as untimely and stated that it would “disrupt the
criminal proceedings.â€
“The right to the effective
assistance of counsel ‘encompasses the right to retain counsel of one’s own
choosing. [Citations.]’ [Citation.]
Underlying this right is the premise that ‘chosen representation is the
preferred representation. Defendant’s
confidence in his lawyer is vital to his defense. His right to decide for himself who best can
conduct the case must be respected wherever feasible.’ [Citation.]â€
(People v. Courts (1985) 37 Cal.3d 784, 789.) The erroneous deprivation of a defendant’s
counsel of his choice is a structural error requiring reversal, and is not
subject to harmless error analysis. (United
States v. Gonzalez-Lopez (2006) 548 U.S. 140, 149-150.)
“Generally the trial court has
discretion whether to grant a continuance to permit a defendant to be
represented by retained counsel.
[Citation.]†(People v.
Jeffers (1987) 188 Cal.App.3d 840, 850.)
“A continuance may be denied if the accused is ‘unjustifiably dilatory’
in obtaining counsel, or ‘if he arbitrarily chooses to substitute counsel at
the time of trial.’ [Citation.]†(People v. Courts, supra, 37 Cal.3d at
pp. 790-791.) Trial courts should
accommodate requests for continuances to obtain retained counsel “ ‘to the
fullest extent consistent with effective judicial administration.’ [Citation.]â€
(Id. at p. 791.) In
determining whether denial of a continuance is so arbitrary as to violate due
process, courts look to the circumstances of each particular case, particularly
the reasons presented to the trial court.
(Ibid.)
3. Analysis
The record in this case supports the trial court’s
determination that defendant’s request was unjustifiably dilatory. There is nothing in the record to suggest
defendant had engaged in a good faith, diligent effort to hire retained counsel
in the time leading up to trial. First,
appointed counsel had been in the case for over two years. In all that time, defendant never filed a
substitute in retained counsel. Second,
defendant never presented the trial court with any reasons for waiting until
the day before jury selection to request substitution of counsel, such as being
financially unable to retain counsel earlier.
An unexplained delay in retaining counsel does not establish good cause
for continuance. (People v. Courts,
supra, 37 Cal.3d at pp. 790-791.)
Third, when requesting the continuance, defendant neither indicated that
a private lawyer had been contacted to represent him nor the amount of time he
needed to find one. Rather, defendant
equivocally stated, “I’ve been deciding, but I need some more time.†When asked by the court when retained counsel
could be there, defendant replied, “How long do you get?†Fourth, nothing in the record suggests that
Mr. Kelvin would have agreed to be defendant’s counsel. When Mr. Kelvin appeared later that day, he
admitted he had been contacted two days before and he needed a chance to
“review the file and familiarize [himself] with the case.â€
Under these circumstances, the trial
court properly found defendant unjustifiably delayed his request to substitute
retained counsel until the eve of trial, after both parties had answered ready,
witnesses had been subpoenaed, and two jury panels had been called for the next
day. (See People v. Blake (1980)
105 Cal.App.3d 619, 623-624 [“[A] defendant who desires to retain his own
counsel is required to act with diligence and may not demand a continuance if
he is unjustifiably dilatory or if he arbitrarily desires to substitute counsel
at the time of the trialâ€].) The trial
court was properly concerned about the untimeliness of the request and the
inability of retained counsel to immediately step in without delaying the
trial. We agree with the trial court’s
finding that continuing the trial under the circumstances would have adversely
affected the orderly administration of justice.
(See People v. Johnson (1970) 5 Cal.App.3d 851, 859.) There was no violation of defendant’s
constitutional right to counsel of his choice.
The instant case is readily
distinguishable from People v. Courts,
supra, 37 Cal.3d 784, where our
Supreme Court found an abuse of discretion in denying the defendant’s request
for a continuance one week before trial so that he could retain counsel to
represent him against a murder charge. (People
v. Courts, supra, 37 Cal.3d at p. 791.)
There, the record established the defendant “engaged in a good faith,
diligent effort to obtain the substitution of counsel before the scheduled trial date.â€
(Ibid.) The defendant had
contacted counsel two months before trial and spent the following weeks trying
to raise the necessary funds for a retainer.
(Ibid.) The defendant’s
attempt to conclude arrangements with counsel was delayed due to counsel’s
vacation. (Id. at
p. 792.) Additionally, there was no
showing a continuance would have significantly inconvenienced the court or the
parties. (Id. at p. 794.) In reversing the denial of the continuance,
the Supreme Court contrasted the defendant’s continuance request, made a week
before trial, with cases in which defendants had made “eve-of-trial,
day-of-trial, and second-day-of-trial requests†and noted that various
appellate courts had “found the lateness of the continuance request to be a
significant factor which justified a denial where there were no compelling
circumstances to the contrary.†(Id.
at p. 792, fn. 4.)
Here, unlike
the defendant in Courts, defendant made no showing that he had an
attorney who was ready and willing to take his case. Also, he waited until the last moment to
indicate to the court his dissatisfaction with his counsel and, even then, he
had not made any actual arrangements to secure new representation. Having failed to make a timely request,
defendant cannot demand a continuance simply because there was no additional
demonstration of prejudice to the court or prosecution other than the
significant disruption of the orderly processes of justice necessarily attendant
to a continuance granted on the day set for trial. (See People
v. Ortiz (1990) 51 Cal.3d 975, 983; People
v. Turner (1992) 7 Cal.App.4th 913, 918-919.) “Due process is not denied every defendant
who is refused the right to defend himself by means of his chosen retained
counsel; other factors, including the speedy disposition of criminal charges,
demand recognition, particularly where defendant is inexcusably dilatory in
securing legal representation.†(
984, 993.) Defendant has the burden to
show an abuse of judicial discretion in the denial of his request for
continuance to secure new counsel. (
at p. 624.) We cannot say the trial
court abused its discretion in denying defendant’s motion.
Defendant
next claims that his initial confession was involuntary and should have been
excluded. He further claims his second
confession should be excluded as being tainted by the first coerced confession.
1. Background
a. Police Interview
Sergeant
Basa testified that he was assigned to investigate the Batiste homicide that
occurred on July 8, 2009. Defendant was
arrested in Stockton around 11:30 p.m. that same day. Pursuant to Sergeant Basa’s log, defendant
was placed in an interview room at 1:40 a.m. on July 9, 2009. At 6:10 a.m., Basa met with defendant and he
appeared awake and lucid. He did not
appear under the influence of drugs or alcohol.
The interview began at approximately 6:20 a.m. and Sergeant Parkinson
was also in the room. Parkinson read
defendant his Miranda rights
verbatim, straight from a form.
Defendant waived his Miranda rights
and signed the waiver form. The
interview was recorded and lasted approximately two to two and half hours.
Sergeant Basa
testified that defendant was given food and water. Basa’s log did not reflect that bathroom
breaks were requested nor did it reflect that any were denied. Defendant indicated that he might have thrown
up at some point earlier. Defendant had
pulled the neck of his shirt up to his forehead. Basa apologized for it being cold, but
explained that since it was middle of summer, the building’s air conditioner
was on. At one point, defendant
complained of a headache in the back of his head and related it to not taking
blood pressure pills. He said he did not
have the pills with him and also complained of having
According
to Basa’s log, defendant was given water at 1:40, 1:50, 4:24, and 6:03 a.m.,
before the interview began. Throughout
the interview, defendant was also given water at various times. During the first forty minutes of the
interview, defendant sat with his t-shirt pulled up over his face, and his arms
tucked inside his shirt. When asked why
he was sitting that way, defendant indicated that he was just cold and that his
nerves were bad. The officers explained
that they were talking about “some serious stuff†and that they needed to see
his face. Despite the officers attempt
to talk of the “serious†event that occurred, defendant continued to sit with
his face covered and his arms inside his shirt.
When the officers told defendant it was hard to understand him when he
had his head in his shirt, defendant replied that he was “[j]ust cold, that all
man.†When Sergeant Parkinson said “You
ain’t cold, Pierre, not that cold,†defendant did not ask for a blanket or ask
for anything to warm himself, but said “And plus I ain’t got no sleep. I woke . . . up by [the] SWAT team
or something . . . .â€
Parkinson told defendant that he did not seem like a bad guy, but that
they could not even talk to him with his “face all covered.†Defendant replied that the officers could
talk to him, explaining “it’s just my nerves, man. I do this even when I am just sitting in the
house.†When asked if he was nervous,
defendant replied “hell no,†explaining a prior gun shot left him with a “bullet
pressuring†on his nerves.
After
watching defendant’s behavior in answering Sergeant Parkinson’s questions,
Sergeant Basa said: “Do me a favor, put your hands through the shirt, sit up in
your seat like a man, all right? Quit
bullshitting man. We’ve done it long
enough. Pierre, we’ve done it long
enough man.†Basa then told defendant
that he could try all he wanted to distance himself from the situation, but it
was not going any where. At times during
the interview, defendant also closed his eyes, claiming his was sleepy. At one point, Sergeant Basa told defendant
that he could close his eyes to the situation, but that it was going no where,
and that defendant needed to open his eyes to the truth. Sergeant Basa told defendant, “I’ve given you
all the respect from the very beginning but I’m not going to sit up in here and
take that bullshit from you. Hiding
behind your t-shirt, acting like a child.â€
Sergeant
Basa again reiterated the seriousness of the incident and stressed the
importance of finding out the truth about what had happened. Defendant in response said, “My mind ain’t
working right, I’m so sleepy . . . .†Sergeant Basa replied, “Well, then you gotta
get it right. You gotta wake up. Everybody here’s tired. . . . We’ve been at this since yesterday when this
first happened . . . You’re tired, I’m tired, he’s tired. . . .
“[Y]ou can close your eyes, . . . [¶] [y]ou can push yourself
away from the situation right here, man, but it ain’t going anywhere,
son.†Soon after, defendant said, “Give me
the water so I can talk.†After Sergeant
Basa retrieved the water, defendant said “Ain’t got no food in my stomach man
[].†Sergeant Basa told defendant: “Hold
on man. We can get past all that, you
know we can always get you food but we gotta talk about what happened.†Following his confession, the officers
brought defendant some food.
b. Interview with District Attorney
Inspector Johnson of the Alameda County District
Attorney’s office, responded to the
Oakland Police Department with assistant district attorney Dunleavy to
interview defendant. The interview lasted from 12:20 p.m. to 12:54 p.m. Defendant was read his
verbally waived them and signed a form indicating that he waived his
rights. Defendant agreed to talk to
investigators and appeared lucid.
Johnson had listened to defendant’s recorded statement and already knew
that defendant admitted to shooting Batiste.
c. Motion
to Suppress Confession
Defense counsel moved to suppress
defendant’s statements on the grounds that they were not voluntary. According to defense counsel, defendant was
deprived of water and told that he had to “speak first†and “get water
later.†Counsel also argued that
defendant was not fed until he was “rewarded†with food after giving his
confession. Defense counsel further
noted that the district attorney’s interview was based solely on the first
interview and, thereby, tainted by the involuntary confession.
In response, the prosecutor stated that defendant was provided
with food between the police interview and the interview with the district
attorney’s office. The prosecutor also
noted that defendant told police he had eaten the day before and the record
reflected he was given water numerous times.
The trial court denied the motion to suppress.
An involuntary confession is
inadmissible under the due process clauses of the 14th Amendment to the federal
Constitution (Jackson v. Denno (1964) 378 U.S. 368, 385-386) as well as
article I, sections 7 and 15 of the California Constitution (People v.
Benson (1990) 52 Cal.3d 754, 778).
“The law governing voluntariness of
confessions is settled. ‘In reviewing
the voluntary character of incriminating statements, “ ‘[t]his court must
examine the uncontradicted facts surrounding the making of the statements to
determine independently whether the prosecution met its burden and proved that
the statements were voluntarily given without previous inducement, intimidation
or threat. [Citations.] With respect to the conflicting testimony,
the court must “accept that version of events which is most favorable to the
People, to the extent that it is supported by the record.†’ [Citations.]
“In order to introduce a defendant’s statement into evidence, the People
must prove by a preponderance of the evidence that the statement was
voluntary. [Citation.] . . .
When, as here, the interview was tape-recorded, the facts surrounding the
giving of the statement are undisputed, and the appellate court may
independently review the trial court’s determination of voluntariness.†[Citation.]’ †(People
v. McWhorter (2009) 47 Cal.4th 318, 346-347.) “A finding of coercive police activity is a
prerequisite to a finding that a confession was involuntary under the federal
and state Constitutions.†(
Cal.4th 342, 404.) The ultimate question
“ ‘is whether defendant’s choice to confess was not “essentially freeâ€
because his will was overborne.’ â€
(People v. Massie (1998) 19 Cal.4th 550, 576.) “Under both state and federal law, courts
apply a ‘totality of circumstances’ test to determine the voluntariness of a
confession. (Withrow v. Williams (1993) 507 U.S. 680, 693-694;
635, 660.)†(People v. Massie, supra, 19 Cal.4th at p. 576.) The factors to be
considered include the element of police coercion, the length and location of
the interrogation, and the defendant’s maturity, education, physical condition,
and mental health. (Ibid.)
Having
independently reviewed the record and the taped interrogation, (
p. 576; People v. Wash (1993) 6
Cal.4th 215, 238), we conclude under the totality of the circumstances,
defendant’s confession was voluntary.
True,
before the police interrogation began, defendant had been in the interview cell
for approximately four hours. But the
interview itself was not excessive or prolonged. Throughout the course of the interview,
defendant was given water and otherwise treated respectfully. When defendant indicated that he had no food
in his stomach, he did not expressly state that he was hungry or request any
food. More importantly, Sergeant Basa
never told defendant that receiving food was contingent on defendant’s decision
to give a statement. Indeed, Sergeant
Basa told defendant that they could always get him food. As to defendant’s claims that he was cold,
sick, and tired throughout the interview, the record belies such claims. It is evident from the videotape that
defendant was lucid, coherent, and otherwise healthy. At most it appears that defendant was suffering,
as he put it, from “a little . . . hangover.â€
Defendant
never asked for a blanket, to lie down, or for any medication. Defendant also adamantly denied that he was
nervous during the interview. Further,
defendant professed there was nothing unusual about him sitting with his head
inside his shirt. According to
defendant, he always sat like that, even while at home. From our independent review of the
interrogation, there is no evidence that the police engaged in any coercive
tactics and nothing suggests that defendant’s will was overborne. (
supra, 19 Cal.4th at p. 576.) Accordingly,
we conclude that defendant’s confession was voluntary.
Lastly,
defendant contends reversal is required due to the cumulative effect of the
errors he suffered at trial. However,
where as here, there is no error at all, there is no viable claim of cumulative
error. (People v. Ramirez (2006) 39 Cal.4th 398, 465.)
III. DISPOSITION
The
judgment is affirmed.
_________________________
REARDON,
J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
HUMES, J.
name="_ftn1" title="">[1] All further statutory references are
to the Penal Code, unless otherwise indicated.
name="_ftn2" title="">[2] According to the time stamping on the
recording, the interview began at 6:18 a.m. and ended at 8:47 a.m. This court has watched the recording in its
entirety and followed along with the transcript provided in the supplemental
clerk’s transcript on appeal.
