THE PEOPLE v. GILL

Filed 1/22/08

CERTIFIED FOR PARTIAL PUBLICATION^*

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Story continues from Part I .

Section 1424 governs motions to disqualify the prosecution, and states in pertinent part that, [t]he motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.( 1424, subd. (a)(1).) The statute replaces the earlier rule announced in People v. Superior Court (Greer) (1977) 19 Cal.3d 255, 266, 267, 269, which authorized recusal based on the mere appearance of conflict. (People v. Breaux (1991) 1 Cal.4th 281, 294; People v. Lopez (1984) 155 Cal.App.3d 813, 824.) Section 1424 differs from the rule in Greer in that it does not specify whether the disqualifying conflict must be actual or apparent but requires that it be of such gravity as to render it unlikely that defendant will receive a fair trial unless recusal is ordered. (Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 199 (Millsap), quoting People v. Conner (1983) 34 Cal.3d 141, 147 (Conner).) In other words, section 1424 does not allow disqualification because participation of the prosecutor would be unseemly, appear improper, or even reduce public confidence in the criminal justice system. An actual likelihood of prejudice to defendant must be shown. [Citation.] (Millsap, supra, at p. 200.)

To prevail in a motion to disqualify the prosecution, defendant must satisfy a two-part test: (1) whether a conflict of interest exists; and (2) whether the conflict is so grave as to render it unlikely that defendant will receive fair treatment. [Citation.] (People v. Eubanks (1996) 14 Cal.4th 580, 594 (Eubanks).) The burden of persuasion is on the party seeking recusal. (See People v. Hamilton (1988) 46 Cal.3d 123, 140.)

Our review involves both the substantial evidence test and examination for abuse of discretion. Factual issues are resolved under the substantial evidence test: whether there is substantial evidence to support factual determinations reached by the trial court. [Citations.] Once the pertinent factual issues are settled, the question whether the trial courts ruling should be upheld is determined under the deferential abuse of discretion test. [Citations.] (Millsap, supra, 70 Cal.App.4th at p. 200.)

B. Analysis:

Here, the trial court made no findings on questions of evidentiary fact -- that is, whether there was a conflict of interest and whether defendant was unlikely to receive a fair trial. (Eubanks, supra, 14 Cal.4th at p. 594.) The accounts offered by T.G. and Mulvihill differed in the details of what was said in their informal meeting. We will not reweigh the courts implicit determination that defendant failed to sustain his burden of persuasion on the two-part test. Mulvihills description of the informal meeting with T.G. supports a conclusion that he was simply informing T.G. about the criminal process and did not demonstrate conflict of interest or bias. Accordingly, we conclude the court did not abuse its discretion in denying the motion to disqualify Mulvihill, Reed or the entire San Joaquin County District Attorneys office.

II.

The Defendants Statements to Police Were Lawfully Admitted

Defendant argues that the court violated his constitutional rights when it denied his motion to suppress the statements he made to police during the February 1, 2004, interview. Defendant contends that the detectives ignored his multiple invocations of his Miranda rights^[1]and used overbearing tactics to extract an involuntary confession. We conclude that the court properly determined that defendant voluntarily waived his Miranda rights.

A. Invocation of Miranda Rights Must Be Unambiguous:

‛[U]nder the familiar requirements of Miranda, designed to assure protection of the federal Constitutions Fifth Amendment privilege against self-incrimination under inherently coercive circumstances, a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent. [Citation.] Once having invoked these rights, the accused is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. [Citations.] . . . []  If a suspect indicates in any manner and at any stage of the process, prior to or during questioning, that he or she wishes to consult with an attorney, the defendant may not be interrogated. [Citations.] (People v. Crittenden (1994) 9 Cal.4th 83, 129 (Crittenden), italics omitted.)

The defendants request for counsel must be unambiguous. (Davis v. United States (1994) 512 U.S. 452, 459 [129 L.Ed.2d 362, 371] (Davis).) ‛[A] statement either is such an assertion of the right to counsel or it is not. [Citation.] Although a suspect need not speak with the discrimination of an Oxford don, [citation], he 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.) Thus, in Davis, the United States Supreme Court rejected the defendants claim that he invoked his right to counsel by saying, an hour and a half into the interview, Maybe I should talk to a lawyer. (Id. at pp. 455, 462; see also Crittenden, supra, 9 Cal.4th at pp. 124, 130 [Did you say I could have a lawyer? was not an unequivocal request for counsel]; People v. Johnson (1993) 6 Cal.4th 1, 27, 30 [[M]aybe I ought to talk to my lawyer, you might be bluffing, you might not have enough to charge murder was not an unequivocal request for counsel].)

When reviewing defendants challenge to the trial courts denial of his motion to suppress on grounds the statements were obtained in violation of Miranda, we defer to the trial courts resolution of disputed facts, including the credibility of witnesses, if that resolution is supported by substantial evidence. [Citation.] Considering those facts, as found, together with the undisputed facts, we independently determine whether the challenged statement was unlawfully obtained. (People v. Gurule (2002) 28 Cal.4th 557, 601.)

Here, defendant asserts he invoked his right to remain silent 15 times. In general, these were instances where Rodriguez or Molthen asked defendant a specific question and defendant responded I cant answer that, or I really cant say anything about it, or theres nothing I can say, or Im not going to answer that question, or if you guys cant put it together . . . , Im not going to put it together for you. In each instance, defendant continued to answer other questions about the events of February 1, 2004. For this reason, the circumstances of this case differ from Michigan v. Mosley (1975) 423 U.S. 96, 103-104 [46 L.Ed.2d 313, 322] where defendant declined to answer any questions about the robberies at issue in the case.

Defendant acknowledges that his purported invocation of the right to remain silent may have appeared equivocal at some points. Citing People v. Wash (1993) 6 Cal.4th 215, 238 (Wash), he maintains that a suspects invocation of rights does not have to be unequivocal. But the court in Wash found that similar language -- I dont know if I wanna talk anymore since its someone killed, you know -- was an expression of uncertainty as to whether he wished to continue. (Ibid.) After considering the matter, defendant in Wash clearly stated he wished to continue with the interrogation. (Id. at p. 239.)

Here, in February 2005 Judge Van Oss examined the written transcript of defendants statement line by line and found that [defendant] never made it clear that he wanted to invoke his rights, or at least not to the point it was clear to the officer anyway. And he never - even where he might have made it clear, even where - I think I mentioned one of these earlier where it looked to me like he probably had invoked his rights, he reinitiated on his own the conversation. It wasnt the police that did it. The court observed that defendant indicat[ed] a desire through the interview to clear this up, while at the same time realizing that he probably [was] digging a hole for himself. At another point during the interview, defendant stated something to the effect of I know Im throwing the Fifth Amendment out the door. The court found that [t]he clear inference of that [statement was] I am waiving my rights under the Fifth Amendment, and I know Im guilty so I dont care about that. On independent review, we reach the same conclusion as the trial court. A reasonable police officer would not have understood the cited statements to be invocations of the right to remain silent. (Davis, supra, 512 U.S. at p. 459 [129 L.Ed.2d at p. 371].)

B. A Miranda Waiver and Confession Must Be Voluntary:

A Miranda waiver must be knowing, intelligent and voluntary. (Colorado v. Spring (1987) 479 U.S. 564, 573 [93 L.Ed.2d 954, 965].) There are two distinct dimensions to this requirement: ‛[F]irst the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. (Ibid., quoting Moran v. Burbine (1986) 475 U.S. 412, 421 [89 L.Ed.2d 410, 421].)

Where, as here, defendant challenges his statements as coerced, we view the totality of the circumstances surrounding the statements to determine independently whether the prosecution has met its burden and proved that the statements were voluntary. (Arizona v. Fulminate (1991) 499 U.S. 279, 285-286 [113 L.Ed.2d 302, 315]; People v. Thompson (1990) 50 Cal.3d 134, 166, disapproved on other grounds in Creutz v. Superior Court (1996) 49 Cal.App.4th 822, 829.) In making that determination, we consider factors such as the length of the interrogation, its location, its continuity, and the defendants sophistication, education, physical condition and emotional state. (People v. Williams (1997) 16 Cal.4th 635, 660 (Williams); In re Shawn D. (1993) 20 Cal.App.4th 200, 209.) [A]ny factual findings by the trial court as to the circumstances surrounding an admission or confession, including the characteristics of the accused and the details of the interrogation [citation], are subject to review under the deferential substantial evidence standard. [Citation.] (Williams, supra, 16 Cal.4th at p. 660.)

In this case, two different judges reviewed defendants interview with law enforcement and both found his statement admissible. After reviewing the written transcript, Judge Van Oss rejected defendants claim of coercion. He found that taking the statement in context, theres nothing to indicate that the defendant somehow didnt understand what he was doing. Certainly wasnt in his best interest, and he knew it wasnt in his best interest, but he went ahead and did it anyway because it was his choice. And he had the right to make that choice . . . .

Later, at the start of trial in June 2005, Judge Fox entertained a motion for reconsideration to the extent it involved the review of the videotape of defendants interrogation. She was not looking at the content of the statement, because Judge Van Oss ruled on that. But [she] was looking at the tone and tenor, demeanor, and body language, to see if there was anything there that would cause [her] to grant other reconsideration. She cited the length of the interrogation, its location, the continuity, and defendants physical condition and did not see any indication that the officers were intimidating the defendant, no indication that he was intimidated. He participated in the interview, at times asking questions on his own. Judge Fox also found nothing in defendants age, education or level of intelligence that raised any claim of coercion. Based on these findings, which are supported by the evidence, we conclude defendants statements were voluntary.

III.

Evidence of Prior Domestic Abuse Was Lawfully Admitted

The prosecution sought to introduce evidence of prior instances of domestic violence pursuant to Evidence Code section 1101, subdivision (b) and section 1109, subdivision (a)(1). The defense objected. The court admitted evidence of incidents that occurred during defendants 11-year marriage to T.G., including statements T.G. made to the police detectives on February 1, 2004, to the deputy district attorneys on February 10, 2004, T.G.s mothers testimony regarding a 1993 incident, and the testimony of D.G. and C.G. about what they witnessed and recalled. Defendant contends that the court deprived him of due process and a fair trial when it admitted evidence of his prior abuse of T.G. We conclude there is no merit in defendants claim.

Evidence Code section 1101, subdivision (a) bars introduction of evidence of a persons character trait when offered to prove his or her conduct on a specified occasion. At the same time, Evidence Code section 1101, subdivision (b) permits introduction of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .) other than his or her disposition to commit such an act. In addition, the Legislature created exceptions to the general rule under Evidence Code section 1101, subdivision (a) for cases involving sexual offenses (Evid. Code,  1108) and domestic violence (Evid. Code,  1109).^[2]

Although Evidence Code sections 1108 and 1109 have survived constitutional challenge (see People v. Falsetta (1999) 21 Cal.4th 903, 922 (Falsetta); People v. Price (2004) 120 Cal.App.4th 224, 239-240), admission of such evidence is not without limit. Propensity evidence is subject to the courts weighing process under Evidence Code section 352^[3]which provides a safeguard against undue prejudice. (People v. Johnson (2000) 77 Cal.App.4th 410, 420.) Prejudice in the context of Evidence Code section 352 means evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. (People v. Scheid (1997) 16 Cal.4th 1, 19.) In conducting this weighing process, the court must consider the relevance and remoteness of the prior act, the similarity between the prior act and the charged offense, the degree of certainty of its commission, and the likelihood that evidence of the prior act will confuse, mislead, distract or inflame the jury. (Falsetta, supra, at pp. 916-917; People v. Pierce (2002) 104 Cal.App.4th 893, 900.)

We will not disturb the trial courts exercise of discretion under Evidence Code 352 unless the courts decision was arbitrary, capricious or patently absurd. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1313-1314.) There was no abuse of discretion in this case.

The court and counsel reviewed in detail the evidence that the prosecution sought to introduce under Evidence Code section 1109. The court considered and ruled on each incident separately. It admitted T.G.s statements that: (1) in 1993, on their honeymoon, defendant came back to the cabin drunk and forced T.G. to have sex; (2) in March 1993, a month after the marriage, and from time to time thereafter, defendant grabbed T.G. by the hair; (3) after 1997 and the family moved to Heatherbrook Lane, defendant forced T.G. to have sex; (4) he raped her often, whenever he felt like it; (5) in May 2001, defendant threw T.G. to the ground, picked her up, put her over chairs, yelled and hit her; (6) defendant snapped. Hes done this before; and (7) he never snapped like that. I, I dont know what that was.

In addition, the court admitted T.G.s mothers testimony about an incident of physical abuse that she witnessed in 1993. T.G.s mother, Carole Scott, testified at trial about an incident that occurred in July or August 1993, five or six months after T.G.s marriage to defendant. T.G. had called, asking her mother to come to the condominium she shared with defendant. T.G. was crying and Scott could hear defendant yelling in the background. When Scott arrived a half an hour later, she found T.G., who was three or four months pregnant, crying on the sofa. According to Scott, defendant was hysterical, stomping all over the place, yelling and screaming. When T.G. started to walk toward the bathroom, defendant approached and shoved her against the wall with both hands.

The court also admitted the testimony of D.G. and C.G. regarding what they had witnessed in the past. However, at trial bothchildren denied seeing defendant grab or hit T.G.

While reviewing the proffered evidence, the court indicated that, if the defense was not consent, I would not let any of this stuff in. But given the defense theory, the court found that the evidence was very probative. The court acknowledged that the statute generally excluded acts that occurred more than 10 years before the charged offense (Evid. Code,  1109, subd. (e)), but made the required finding that in the interest of justice it would admit incidents that had occurred during the 10-year eight-month marriage. The court noted that this was a concrete time period from which we can mark conduct. At the same time, the court excluded references to defendant being a sex addict or a porn addict, statements that could be viewed as inflammatory, as well as separate incidents where defendant punched a furnace, threw a telephone and tossed a plate of spaghetti, which the court determined fell outside the purview of Evidence Code section 1109. We conclude that the court properly weighed the evidence under Evidence Code 352, taking the relevant factors into consideration.

IV.

The Prosecutorial MisconductAllegation Has No Merit

Defendant argues that he is entitled to reversal because Deputy District Attorney Reed committed misconduct when she asked defendant during cross-examination whether he had cursed at her during trial. There was no misconduct.

The applicable federal and state standards regarding prosecutorial misconduct are well established. A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] [Citation.] (People v. Hill (1998) 17 Cal.4th 800, 819.)

Here the claim of misconduct involves Reeds cross-examination of defendant. In general, the prosecution has broad latitude when cross-examining a defendant. When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citation.] A defendant cannot, by testifying to a state of things contrary to and inconsistent with the evidence of the prosecution, thus indirectly denying the testimony against him, but without testifying expressly with relation to the same facts, limit the cross-examination to the precise facts concerning which he testifies. [Citation.] [Citation.] (People v. Chatman (2006) 38 Cal.4th 344, 382.) Although a prosecutor may not intentionally elicit inadmissible testimony, merely eliciting evidence is not misconduct. (Id. at pp. 379-380.)

Reeds questions to defendant were relevant and evinced an attempt to impeach defendants testimony on cross-examination. Moreover, nothing in Reeds questioning was so egregious that it infect[ed] the trial with such unfairness as to make the conviction a denial of due process. [Citations.] (Hill, supra, 17 Cal.4th at p. 819.) We recount the exchange in its entirety:

Q. [by Reed]: Now, when you spoke with the detectives, you told them that there was a lot of bad stuff that happened that day on February 1st of 2004?

A. [Defendant]: There was.

Q. You -- your testimony is that the only thing that was bad was you hitting your wife?

A. No. Cursing and screaming. And saying mean things to her. And hitting her.

Q. All right.

A. We dont allow that in our home, period.

Q. So you dont curse?

A. No. We do not curse in our home.

Q. Do you curse at all?

A. Um, having been incarcerated for a year and a half with criminals, every third word I hear is a curse word.

MS. REED: Objection. Non-responsive.

THE COURT: Sustained.

THE WITNESS: Its pretty hard not to now.

THE COURT: So your answer is yes, you do curse?

THE WITNESS: Whats the question?

MS. REED: Q. Whether you curse.

A. Whether I curse now?

Q. Yes.

A. I have used vulgarity, yes, I have used curse words lately. [] But no, we dont use curse words at our home.

Q. So since February 1st of 2004, you now curse?

A. A little bit, yeah. Too bad. The environment that you stuck me in.

Q. All right. Havent you cursed at me numerous times when we have been in court before?

A. I dont recall.

Q. Said things like, Fuck you, and, Bitch, things like that?

[DEFENSE COUNSEL]: Im going to object.

THE WITNESS: I dont recall.

[DEFENSE COUNSEL]: Relevance, Judge.

THE COURT: Overruled.

THE WITNESS: Do you have -- do you have some evidence?

MS. REED: Objection.

[DEFENSE COUNSEL]: Is Ms. Reed making herself a witness now, judge?

THE WITNESS: Wow.

THE COURT: Wait, wait, wait. Stop. You can answer the question, Mr. Gill. Have you said that?

THE WITNESS: Whats the question?

[DEFENSE COUNSEL]: I object.

THE COURT: Why dont you re[-]ask the question.

MS. REED: Q. Since February 1st of 2004, have you cursed?

A. I have already answered that question.

THE COURT: The next question about you.

MS. REED: Q. Have you cursed at me since February 1st?

A. I have already answered that.

THE COURT: No, you didnt.

THE WITNESS: Do you want to do a readback?

THE COURT: No, I dont.

MS. REED: Q. Have you cursed at me since February 1st of 2004?

A. I dont think so, no. [] And if you would have heard me curse, it may have been in discussing something else.

Q. No, Im talking about court proceedings when youve been in custody in Department 25, and you have mouthed the words fuck you repeatedly at me during those court proceedings, multiple court proceedings, also the word bitch.

A. Do you read lips now?

Q. Sir, Im asking you whether or not you did that, yes or no?

A. I may have said something. Are you a lip reader now?

THE COURT: Mr. Gill, if you could recall my admonition that the attorneys ask the questions --

THE WITNESS: The words that I said --

THE COURT: -- and the witnesses give the answers.

THE WITNESS: I dont know whether I did nor didnt.

Based on this record there was no misconduct.

Story continues as Part III .

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^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I, II, III, IV, and VI.

^[1]Miranda v. Arizona(1966) 384 U.S. 436 [16 L.Ed.2d 694].

^[2]Evidence Code section 1108, subdivision (a) provides: In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendants commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.

Evidence Code section 1109, subdivision (a)(1) reads in part: [I]n a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.

^[3]Evidence Code section 352 states: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.