P. v. Valenzuela

Filed 7/20/07 P. v. Valenzuela CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

A jury found defendant Alfredo Valenzuela guilty of four counts of first degree murder, one count of attempted robbery of an inhabited dwelling and one count of first degree burglary. (Pen. Code, 187, subd. (a); 664/212.5, subd. (a)); 460, subd. (a).[1]) The jury found true the special circumstances that the murders had been committed during an attempted robbery and a burglary. ( 190.2, subd. (a)(17).) The jury also found true the special circumstances of multiple murders. ( 190.2, subd. (a)(3).) It found true allegations that a principal had been armed with a firearm during the commission or attempted commission of the crimes. ( 12022, subd. (a)(1).) The trial court sentenced defendant to concurrent terms of life without the possibility of parole on each of the murder convictions. It sentenced defendant to a two-year term on the attempted robbery conviction and a four-year term on the burglary conviction, but stayed execution of those sentences pursuant to section 654.

We affirm.

Facts

The crimes arose out of events connected to the deaths of Javier Vaca, Emilio Alba-Flores, Jose Munoz-Lopez and Roberto Ramos-Guerra. Vaca was a cocaine dealer, who worked out of an apartment in San Bruno. Chico Hernandez supplied Vaca with cocaine. In mid-2001, the two had a falling out, apparently because Vaca refused to pay Hernandez for a drug shipment, telling Hernandez he had paid Hernandezs boss and would not pay Hernandez. Over the next several months, an angry Hernandez demanded that Vaca pay him, and was heard to threaten to bring people to harm Vaca if Vaca didnt pay. Vaca moved his family to Chico in August 2001, but Vaca himself continued to use the San Bruno apartment.

On January 11, 2002, at approximately 4:00 in the afternoon, a witness saw a white Cadillac, with smoked glass windows, drive into the San Bruno apartment complex. Four men got out of the car and walked towards the building where Vacas apartment was located. A witness who rented a neighboring apartment noticed several people go into Vacas apartment at about 4:30-4:45 that afternoon. A loud argument, in Spanish, broke out. Someone put loud rap music on in the apartment, there was a series of popping sounds, the music was turned off and a group of people then left the apartment.

At approximately 5:00 that evening, Vacas brother-in-law went to the apartment, where he found the bodies of the victims. Alba-Flores had been shot five times in the trunk, apparently from some distance, and had an injury suggesting he also had been struck on the head with a blunt instrument. Vacas hands had been bound together behind his back with a plastic tie commonly known as a zip-tie, and he had been shot three times in the head at close range. Munoz-Lopezs hands also were bound with a zip-tie, and he had been shot twice in the head at close range. Ramos-Guerras hands, too, were bound with a zip-tie. He had been shot in the back from a fairly close distance, in the arm and in the head, behind his right ear. Two of the victims had their legs crossed at the anklesa technique used to immobilize people so they cannot easily jump up and run. Tests indicated the bullets that had killed or injured the victims came from a minimum of four different firearms.

The police found 11 kilos of cocaine behind a kickboard under a kitchen cabinet, two kilos of cocaine in the oven and two or three kilos of cocaine in a cabinet. They found shell casings on the floor. They found drug presses and other items suggesting that the apartment was being used as a facility to repackage cocaine.

The police also found a cell phone near Alba-Floress head. They were able to trace the cell phone to Hernandez, and were able to trace calls made to and from the phone to a location in Los Angeles. A white Cadillac, similar to the one seen at the San Bruno apartment complex, was parked at that location. The Cadillac was registered to Raul Campos. The police interviewed Campos. They obtained Camposs cell phone, and were able to determine that calls had been made between Camposs phone and the cell phone found in the San Bruno apartment. The investigation led the police to defendant, who lived next door to Campos. Defendant used a cell phone that also had been used for calls to or from the cell phone in the San Bruno apartment.

The police interviewed defendant on March 1, 2002. A videotape of the interview was shown to the jury, which also received a transcript of the tape. Defendant admitted to knowing Hernandez, and to having driven to San Bruno. Defendant first said he and Campos had stayed in the car when Hernandez and another man, whom defendant identified as Lazaro Perez, went into the apartment. Defendant heard shooting. Hernandez and Perez came back, and they drove to a store parking lot where Hernandez and Perez got into a blue van. Defendant and Campos then drove home. Defendant later admitted to having gone to the apartment, but maintained he never had gone past the front hallway. He heard Hernandez yelling at the men in the apartment, and he heard Hernandez tell Perez to tie them up. He heard shots. One of the men moved towards Hernandez, and defendant heard another shot. Defendant maintained that neither he nor Campos had anything to do with tying up the victims or shooting them. Defendant explained he had found the cell phones he and Campos used, and had given one to Campos.

Investigators were able to trace calls from the various phones, which revealed that on the morning of January 11, 2001, several calls had been made between the phones used by Campos and defendant. A short time later, a call from defendants phone was made to Hernandez. Calls were made from the phones indicating the phones were moving north towards the Bay Area, and later that day, that the phones traveled back south.

The investigation also revealed that defendant and Campos had used a stolen credit card to obtain the phones in December 2001. Campos had obtained title to the Cadillac at about the same time. Also, in December 2001, title to a blue van was taken in defendants name. The blue van was seen by Customs and Border Protection crossing into Mexico on the morning of January 12, 2002. Sometime later, Hernandez arranged to have title to the van changed to the name of a woman who had been dating Perez. The police ultimately found the van, abandoned, in Tijuana. It had been altered so that it contained a secret compartment. The police also searched Camposs Cadillac, where they found a package of zip ties in the trunk. They were able to determine that the ties used to bind the victims hands, and the ties found in the trunk, had been manufactured by the same company.

The police interviewed defendants girlfriend, who told them about a conversation she had had with defendant the day after the murders. Defendant told her he had been up to San Bruno the previous day, with three other men, whom he identified as Hernandez, Perez and Campos. Defendant said he was the one who had turned up the music. He told her that after he had turned up the music, there was some arguing and four people were killed. The police also interviewed defendants cousin, who had sold defendant the cell phones purchased with the stolen credit card. The cousin said defendant had told him he would go on road trips with Hernandez, either to deliver drugs or money or to pick up drugs or money, getting paid $4,000 or $5,000 for each trip. Defendant also told his cousin he had been up to San Francisco and things had gone bad. The people they visited did not want to pay and Hernandez directed Campos to kill them. The men were tied up and Campos shot them in the head.

The defense admitted that defendant, like many of the prosecution witnesses, was a mule who had run drugs or done errands for Hernandez, but argued defendant was unaware anyone would be killed when he went with Hernandez to San Bruno, did not himself shoot anyone, and had no intention of aiding or abetting any crime. Counsel pointed to evidence suggesting even Hernandez had no plans to kill Vaca before they went into the apartment and got into the argument. Counsel asserted there was no evidence defendant had done anything beyond what he had admitted: standing just inside the door of the apartment and running off when he realized people had been shot. Counsel also pointed out there was some evidence Hernandez had been joined by a fifth man in the apartment,[2] and asserted it was possible to argue from the ballistic evidence that only three guns had been used in the shootings. Counsel argued there were five people and three guns, which was consistent with defendants claim he was not involved in the shooting. Counsel also noted the evidence Hernandez had told defendant to turn up the music, pointing out it would make sense to ask the unarmed persondefendantto do that.

DISCUSSION

I.

Admission of Videotaped Statement

Defendant contends the trial court erred in denying his motion to suppress his statement to the police, asserting the prosecution had failed to meet its burden of showing defendant had waived his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436).

Under both state and federal law, a court analyzing whether a defendant voluntarily, knowingly and intelligently waived his Miranda rights considers (1) whether the relinquishment of the rights was voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception, and (2) whether the waiver was made with a full awareness of both the nature of the right being abandoned and the consequences of waiver. A court properly may conclude a defendant waived his Miranda rights only if the  totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension. (People v. Smith (2007) 40 Cal.4th 483, 501-502; People v. Whitson (1998) 17 Cal.4th 229, 247, both citing Moran v. Burbine (1986) 475 U.S. 412, 421.) The totality of the circumstances includes the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity [citation]; the defendants maturity [citation]; education [citation]; physical condition [citation]; and mental health [citation]. (Withrow v. Williams (1993) 507 U.S. 680, 693.)  Once it is determined that a suspects decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the States intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law. [Citation.] (People v. Whitson, supra, at p. 247.) In reviewing Miranda issues on appeal, we accept the trial courts resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained. (People v. Smith, supra, at p. 502.)

The interview was conducted at the police station by Inspectors Bill Cody and John Minahan. It took place in the early afternoon. Defendant knew he was not under arrest. He was 21 years old. He had a 10th grade education. There is no suggestion he was suffering from any kind of physical or mental disability. The interview was conducted in English, and defendant speaks English. Shortly after the interview began, Inspector Cody told defendant they had spoken with Campos, knew what had happened in San Bruno, and wanted to hear defendants side of the story. Inspector Cody said that from what they had heard, Hernandez was behind the whole thing. A few moments later, Inspector Cody warned defendant the police were tracking Hernandez, who undoubtedly would tell them everything was defendants idea. Inspector Cody said, Lets just kind of go through the whole thing, okay? Defendant said, Okay, after which Inspector Cody said, Alright? And, you know what, since were in a police station, I have to read you these anyhow. So Im going to read you these. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while youre being questioned. And if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one. Do you understand each of these rights Ive explained to you? Defendant responded, Yeah, and the interview continued. Defendant showed no hesitation in speaking to the officers after his rights were read to him.

The length of the interrogation preceding defendants waiver, its continuity and defendants physical condition and mental health are all factors supporting the trial courts finding defendants waiver was voluntary. While defendant complains he was immature and not well educated, there is no question but that he was old enough, and well-educated enough, to understand his rights. At the hearing on defendants motion to suppress, defendant claimed he did not understand the meaning of phrases such as you have the right to remain silent, or anything you say can and will be used against you, or if you want a lawyer before any questioning, if you wish one, one will be appointed for you. The trial court was not required to believe defendants claim.

Defendant points out he did not expressly waive his rights. An express waiver is not required where a defendants actions make it clear a waiver was intended. (People v. Whitson, supra, 17 Cal.4th at p. 250.) It also is true that the manner in which Inspector Cody read defendant his rights could have suggested to defendant he was being read his rights not because he was a suspect in the murders, but because the interview was being conducted in a police station. The question is not whether a defendant is fully aware his statements might incriminate him and thereby cause him to be prosecuted for the crime, but whether he is aware that his statements can and will be used against him if they do incriminate him. The evidence is perfectly consistent with the conclusion that even if defendant harbored no subjective belief he would be prosecuted for the crimes, he was perfectly aware of his rights to remain silent and to an attorney, and understood his statement would be used against him if he were prosecuted. Moreover, the police had just told defendant he could expect that Hernandez would attempt to place the blame on him. Defendants explanation of his actions also strongly suggests that, contrary to his later claims, he knew he might in some way be held responsible for a crime or crimes. Our own review of the tape of the interview, the transcript, and the evidence produced at the motion to suppress confirms the trial courts conclusion that defendant spoke not because he felt compelled to do so, or because he did not understand that he could choose to remain silent, but because he wished to tell his side of the story.

Defendant also complains that irrespective of any waiver of Miranda rights, the evidence shows his statements were involuntary. A defendants statements challenged as involuntary are inadmissible at trial unless the prosecution proves by a preponderance of the evidence that they were voluntary. [Citations.] The due process [voluntariness] test takes into consideration the totality of all the surrounding circumstancesboth the characteristics of the accused and the details of the interrogation.  [Citations.] This test examines whether a defendants will was overborne by the circumstances surrounding the giving of a confession. [Citation.] . . . [] We review independently a trial courts determinations as to whether coercive police activity was present and whether the statement was voluntary. [Citation.] We review the trial courts findings as to the circumstances surrounding the confession, including the characteristics of the accused and the details of the interrogation, for substantial evidence. [Citation.] [T]o the extent the facts conflict, we accept the version favorable to the People if supported by substantial evidence. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1093.)

Again, defendant was an adult, unimpaired by mental or physical disability. The interview was conducted in the early afternoon and took less than two hours. Although the interview was conducted at the police station, by two inspectors, defendant was treated well. The inspectors at all times were polite and sympathetic. Defendant complains the inspectors told him they already had learned about the shootings from defendants friend and companion, Campos, telling defendant Campos had been very candid, and asserting, from time to time, that defendants version of the events did not agree with the version given by Campos. Such a tactic does not, in and of itself, render a statement involuntary. Indeed, a confession will not be invalidated for similar conduct, even when the police actually mislead the defendant into believing they know more than they say, or that a confederate has implicated the defendant or that there is other evidence linking the defendant to the crime. (People v. Smith, supra, 40 Cal.4th at pp. 505-506.) The question simply is whether the police tactic was so coercive that it tended to produce a statement that was involuntary or unreliable. (Ibid.) The police conduct here was not unduly coercive. In any event, it is quite clear defendants will was not overcome by any police tactics as defendant maintained Inspector Cody was wrong on a number of facts. For example, he insisted that, contrary to the facts Inspector Cody claimed to have obtained from Campos, he never had been directed to find something inside the apartment and had not gone beyond standing in the hallway. He did not admit he had turned the music on or up. He also insisted throughout that Campos had not had or used a gun, even after Inspector Cody told him Campos had admitted to having had a gun and to having shot at least one of the victims. The circumstances, including the inspectors tactics, were not so coercive that they tended to, or did, produce a statement that was either involuntary or unreliable.

II.

Effective Assistance of Counsel

Defendant contends trial counsel should have sought and obtained a redaction of the videotape and transcript of his statement, to remove Inspector Codys statements about the information Campos had provided and the inspectors assertions that he had found Campos to be candid and believed what he had said. He contends counsels failure denied him the effective assistance of counsel.

The relevant legal principles were summarized by the Supreme Court in People v. Hart (1999) 20 Cal.4th 546, 623-624. To prevail on a claim of ineffective assistance of counsel, defendant must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice. [Citation.] Tactical errors are generally not deemed reversible; and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation . . . . [Citation.] Finally, prejudice must be affirmatively proved; the record must demonstrate a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citations.]  The court further took note of several related holdings: a court must indulge a strong presumption that counsels conduct falls within the wide range of reasonable professional assistance (citing Strickland v. Washington (1984) 466 U.S. 668, 669); if the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected (citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; and a conviction will be reversed on the ground of ineffective assistance of counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission (citing People v. Fosselman (1983) 33 Cal.3d 572, 581).

Appellate counsel can identify no tactical reason for failing to seek redaction of the statement, asserting Inspector Codys reports of Camposs statements were inflammatory and prejudicial as they suggested defendant was not telling the truth and that the inspectors had evidence of defendants guilt above and beyond the evidence adduced at trial. We can think of at least two good reasons for trial counsels actions. First, they allowed an argument that Inspector Cody had engaged in unfair police tactics, and showed defendant stuck to his version of the events despite those tactics. Counsel, accordingly, elicited Inspector Codys admission that he had not told defendant the interview was being videotaped, and had not spoken the truth to defendant when he told him Campos had given the police permission to tell defendant what Campos had said. Counsel also elicited the testimony that despite what Inspector Cody told defendant, he did not believe Campos had been 100 percent honest, and that Inspector Cody would lie to a guy as part of his interview technique to draw him out. The inspector agreed he had not been truthful when he told defendant about Campos. Counsel emphasized this point in closing argument, reminding the jury Inspector Cody had lied when questioning defendant.

In addition, allowing the jury to hear Inspector Codys reports of Camposs statements supported the argument defendant did not know much about Hernandez or his operations or intent because defendant did not reveal anything of much significance to the police even when he reasonably must have felt he had little to lose because his friend and companion had already revealed their part in the incident.

Defendant cites People v. Guizar (1986) 180 Cal.App.3d 487, where a translation of an interview of a witness was introduced for the ostensible purpose of rehabilitating the witness. The translation included an assertion that the witness was aware that the defendant had committed other murders. (Id. at p. 491.) The appellate court reversed the defendants conviction, explaining, in part, It is inconceivable to us that a defense attorney would make a tactical decision to admit evidence that a defendant, on trial for murder, had committed other murders in the past. We can imagine no sound tactical reason why trial counsel would have done this, and the record does not support an assumption that admission of the evidence was a tactical decision. (Id. at p. 492, fn. 3.) Here, in contrast, we can conceive of a tactical reason for failing to object to the evidence, and the record suggests counsel was in fact pursuing that tactic. In addition, where the court in Guizar found it reasonably probable the admission had an effect on the verdict, the same is not true here. The jury was made aware Inspector Cody was willing to lie, and had lied, to obtain defendants statement, and therefore had reason to believe Inspector Cody was not telling the truth when he reported what Campos had said. The jury also knew that Inspector Cody did not believe Campos was 100 percent truthful, making it even less likely his reports of Camposs statements revealed the truth. Furthermore, Inspector Cody never claimed Campos said defendant knew that Hernandez intended to kill anyone, or defendant himself took any action against the victims, except possibly for turning up the music. To the contrary, the inspector told defendant Campos had told him they did not know why they were going to Northern California, and that things got goofy. The jury was perfectly aware that defendant was there when the victims were killed. In sum, it is not reasonably probable the jury would have returned a verdict more favorable to defendant had they heard defendants admissions but not Inspector Codys report of Camposs statements.

Defendant also contends he suffered the ineffective assistance of counsel because of his attorneys failure to object to the portion of his statement that preceded the Miranda warnings. During the challenged part of the interview, defendant admitted to going to Northern California, but said he went by train and met with his friend, Chris. He admitted to knowing Hernandez. When Inspector Cody told defendant he was talking about what happened in January, in the apartment, defendant stated he had heard about it. These statements were far less damaging than the statements defendant made after he was given the Miranda warning. While they were prejudicial in that they demonstrated defendants willingness to lie to protect himself, that willingness was understandable even if his involvement in the crimes was minimal. Defendants willingness to lie also was amply demonstrated by other evidence. Defendants story changed during the course of the interview, and well after the warnings were given. He also asserted he had simply found the cell phones when in fact he had purchased them from his cousin with a stolen credit card. We do not find the failure to object to the pre-Miranda interview to be the ineffective assistance of counsel, but even if it were, reversal would not be required as there is no reasonable probability that the admission of that evidence had an effect on the outcome of the trial.

Conclusion

The judgment is affirmed.

_________________________

STEIN, Acting P. J.

We concur:

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SWAGER, J.

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MARGULIES, J.

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[1] All statutory references are to the Penal Code.

[2] The police interviewing defendant mentioned they had information a fifth person had joined Hernandez and the others, but defendant disagreed with that information.