P. v. Pena

Filed 10/6/06 P. v. Pena CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Pastor Madero Pena appeals a judgment convicting him of first degree murder. He contends the trial court erred by failing to exclude a confession he made after his arrest on another charge, arguing that the police elicited the confession in violation of his constitutional rights. He also claims the trial court erred by instructing the jury with CALJIC No. 8.25. After a thorough review of the record, we find no prejudicial error and affirm.

Background

On September 19, 2003, officers from the Mendocino County Sheriff’s Department recovered the body of Jose Luis Gonzales, which they found lying near one of three marijuana gardens located in a hilly, wooded area east of Mountain View Road in the Anderson Valley. Gonzales, an apparent homicide victim, had been dead for at least two days. Investigators collected a number of items in the vicinity for later analysis. These included a beer can and some .38 caliber ammunition found in a nearby campsite. One investigator also found an empty cardboard box lodged in the cavity of a stump beside a trail that ran between the gardens and Mountain View Road. The box had once held Wolf brand 7.62 mm. cartridges. After investigators completed their inspection of the area, an eradication team destroyed the 279 marijuana plants growing in the three gardens. A member of this team estimated that the crop would have yielded over $100,000 had it been successfully processed and sold.

A pathologist determined that another person had shot Gonzales five, possibly six times. Two of the gunshot wounds caused his death. Analysis of bullet fragments recovered from the body indicated they were from “similar type bullets” of a caliber equivalent to 7.62 mm. Cartridges calibrated at 7.62 mm. are commonly used in assault rifles manufactured in Eastern Europe or China, following the “AK” weapon design used for over 50 years by the Soviet and Russian military.

A fingerprint analyst recovered latent prints from the items bagged at the scene. Only two could be positively identified. One was lifted from an empty beer can; the other came from the empty box for 7.62 mm. cartridges. Both prints matched those on file for one Antonio Gonzales. Further investigation showed that defendant had used this name as an alias in order to obtain a driver’s license, and that he currently lived in the Anderson Valley some 26 miles from the crime scene.

Based on this information, investigators obtained a warrant to search defendant’s home and vehicle for evidence relating to marijuana cultivation and the homicide. Deputies served and executed the warrant early on the morning of April 22, 2004. On arrival, they stopped defendant, who had left the home and was driving his vehicle down a long driveway toward the highway. They placed defendant under arrest pursuant to a bench warrant that had issued after his failure to appear on a 1997 DUI charge. Evidence recovered by the search team included an unloaded .38 caliber pistol, marijuana seedlings, and items consistent with marijuana cultivation. They also found other items matching those found at the campsite, such as propane tanks for a camping stove, .38 caliber ammunition, and certain types of food.

Meanwhile, other officers transported defendant to the sheriff’s office. There a homicide investigator, with the assistance of a corrections officer who acted as a Spanish interpreter, conducted a seven-hour interview. Defendant changed his story several times during the course of the interview, but in the end told the officers, “Yo fui“ (“It was me”). He explained he had been at the scene to guard his marijuana plants--almost ready for harvest--from thieves who had previously taken some of the crop. When Gonzales appeared, defendant thought he was one of the thieves who had returned to take more of his crop. He fired after seeing Gonzales make a motion as if reaching for a weapon. As the defendant described the rifle he had used, the investigator made a rendering of the weapon.^[1]

Defendant said that, after the shooting, he discarded the rifle near the scene and fled. He agreed to return to the scene with officers. At the scene, defendant identified the spot where Gonzales fell. It was the same spot where they had recovered the body. Defendant also showed his own position when he fired, and the area of underbrush where he had thrown the rifle. The officers were unable to find the weapon.

An information filed in June 2004 charged defendant with the murder of Gonzales in violation of Penal Code section 187, subdivision (a).^[2] The complaint included three allegations that defendant had violated section 12022.5, subdivisions (a) and (b), and section 12022.53, subdivision (d).^[3]

In August 2004, defendant filed a motion in limine to exclude statements which the police obtained from him during his seven-hour postarrest interrogation. The grounds were that admission of these statements would violate his constitutional privilege against self-incrimination and his constitutional right to due process. At the hearing on the motion, held pursuant to Evidence Code section 402, the trial court indicated that it had examined both a videotape of the interview and a transcript, the latter of which included an English translation--added by an independent interpreter--of the exchanges in Spanish that occurred between the defendant and the corrections officer. The trial court concluded there was no “credible evidence“ that defendant had made “any attempt to cease the interview within the meaning of the Fifth amendment.” It also concluded that defendant’s statements were not involuntary or coerced so as to violate his constitutional due process rights. Accordingly, the court denied the motion.

At trial, defendant testified on his own behalf with the assistance of a Spanish interpreter. He said he was currently 48 years of age, and had grown up in Mexico, where he had worked as a field laborer and had received no formal education. He said he had taught himself to read “a little bit” but could not write. He first came to California when he was 17 years of age, where he initially worked as a field laborer. In 1997, he returned to Mexico following a DUI violation. While he was in Mexico he had worked as a laborer to help an employer plant and grow marijuana. In November 2002 he came back to California, living with his family in the Anderson Valley. Because he could not find steady work, he decided to go “up into the hills to look to see if [he] could find someplace” to grow marijuana, in order to support his family. He planted the marijuana that was later found at the crime scene, after he located and restored an abandoned garden and established two others nearby. At intervals he stayed at the gardens for periods of two or three days, after establishing the campsite that was found near the gardens. On some of these trips, he carried the pistol that was found during the search of his home.

Defendant further testified that, in late August 2003, he returned to the gardens and noticed that some of his marijuana was missing. He also found two sets of footprints entering and leaving one of the gardens. Later he went to a cockfight, hoping to find someone who could help him guard his crop. Friends introduced him to an individual called “Rosti.” Because “there was nobody else” to help him, defendant decided to trust Rosti. They entered into an agreement whereby Rosti would guard the gardens in exchange for one-quarter or one-third of the crop. Rosti brought his own rifle. Defendant instructed Rosti to scare away thieves, but not to shoot them. Late one evening in mid-September 2003, Rosti appeared at defendant’s home and described how he had shot an apparent thief, and how he had afterwards discarded the rifle and left the scene. Defendant never saw Rosti after that night. Two weeks after the shooting defendant himself went to the scene and saw that the body and all his plants had been removed.

Defendant stated that, during the postarrest interview, the officers said it would “go easier” if he would simply admit that he himself had killed Gonzales in self-defense. He said that, by the time he made his confession, he had “forgot[ten]” that he was entitled to stop the questioning and request an attorney. Believing promises of leniency, and wanting only to return to his family, defendant told the interrogating officers the events Rosti had described to him, substituting himself in Rosti’s place. With regard to the print found on the ammunition box, defendant explained that at one point Rosti had asked him to hold the box while Rosti “pulled the bullets out of it.”

On September 9, 2004, the jury returned a verdict finding defendant guilty of the charge of first degree murder, and finding true all three enhancement allegations. On October 7, 2004, the trial court sentenced defendant to state prison for 25 years to life on the murder count, stayed imposition of sentence on the enhancement allegations under section 12022.5, and entered a consecutive sentence of 25 years to life on the enhancement allegation under section 12022.53, subdivision (d). (See fn. 3, above.)

This appeal followed. (§ 1237, subd. (a).)

Discussion

A. The Postarrest Confession

1. Assertion of the Right to Remain Silent

At the outset of defendant’s postarrest interview, the officers gave him the standard advisement pursuant to Miranda,^[4] warning him that statements he made might be used against him in court, advising him that he had a right to remain silent and to have an attorney present “before and during someone questioning” him, and asking if he understood these rights and whether, with these rights in mind, he was willing to answer questions. Defendant said he understood and agreed to talk.

At the hearing on the motion to exclude defendant’s resulting confession, defendant’s trial counsel argued that the transcript of the interview indicated that, despite defendant’s initial waiver of his Miranda rights, he later attempted to invoke his right to remain silent, yet both deputies improperly continued their questioning. As we have noted, the trial court essentially rejected this argument.

Defendant contends the trial court’s ruling was prejudicial error. He cites to eight separate statements in the transcript of the interview, which he claims to be repeated assertions of his right to remain silent.^[5]

A custodial interrogation must cease when the individual being questioned invokes the right to remain silent. (People v. Musselwhite (1998) 17 Cal.4th 1216, 1238.) Whether that individual’s conduct or statements amount to such an assertion is a question of fact, to be determined after examining the totality of the circumstances. (Ibid.) As a reviewing court we determine independently whether a violation of a defendant’s rights under Miranda has occurred, based on the circumstantial facts that are undisputed or that the trial court has properly found. (People v. Whitson (1998) 17 Cal.4th 229, 248.) Nevertheless, we may give great weight to the considered conclusions that the trial court reached after reviewing the same evidence. (Ibid.)

In examining the totality of the circumstances, we must, of course, view the cited statements in their context. (In re Joe R. (1980) 27 Cal.3d 496, 515.) The context here was an interview that followed an express Miranda waiver, in which defendant answered questions willingly, and at length. During the interview defendant revised his version of events again and again, as the officers continually argued either that his current version made no sense--as when he claimed to have recruited a complete stranger to guard his crop--or that it was inconsistent with other evidence they had gathered. Each of defendant’s statements, which he claims to be assertions of his right to remain silent, were made in response to a challenge that his story was not credible. After he made each of these statements, defendant showed no apparent hesitation in answering further questions. The essence of each statement was that he had “nothing else to tell,” could “not say anything else,” or did “not know any more.” In this context, we agree with the prosecution that these statements were not requests to stop the interview, but were merely expressions of defendant’s insistence that he was telling, truthfully, all that he knew. He was saying, in effect, “[t]hat’s my story, and I’ll stick with it.” (See In re Joe R., at p. 516.)

Defendant’s argument to the contrary rests chiefly on analogy with the decisions in People v. Porter (1990) 221 Cal.App.3d 1213 (Porter) and People v. Carey (1986) 183 Cal.App.3d 99 (Carey). We find these to be factually distinguishable. In Porter, the interrogators attempted to question a defendant concerning his role in a burglary and an automobile theft. The defendant stated that he knew about the burglary but he would not “say any more than that.” He also said, when he learned he was to be extradited, that he would “save it.” (Porter, at p. 1217.) Here, defendant did not refuse to talk about something he claimed to know, nor did he express a desire to “save” talking about what he knew. He was claiming only that he had told everything he did know. Similarly, in Carey, the defendant, at the very outset of the interview, stated that he understood his Miranda rights, but when asked if he would nevertheless agree to talk, emphatically repeated, three times in uninterrupted succession, that he had “nothing to say.” (Carey, at pp. 103-104.) Here defendant expressly agreed to talk. His statements were not an initial expression of refusal to speak at all, but claims expressed much later in the interview that he had told the interrogators everything he knew.

We agree with the trial court’s conclusion, that defendant made no request to stop the interview so as to require the officers to cease their questioning.

2. The Voluntariness of the Confession

Defendant’s motion to exclude focused chiefly on the argument that it was “not a product of [his] free will.” His trial counsel argued that his confession was coerced in light of all the circumstances, including defendant’s lack of education and sophistication, the early morning arrest, the length of the interview, and the officer’s implied threats or promises. The trial court concluded on this point that, based on the totality of the circumstances, the defendant’s confession “was not motivated by any undue or unreasonable psychological pressure or influence, but a desire to clear his conscience.”

Defendant claims this was reversible error, reiterating the arguments he made below. He argues that he was uneducated, could not write, and was raised in Mexico. The interview itself began early in the morning, continued for almost seven hours, and the officers suggested it would last indefinitely until he gave them the answers they wanted. He argues that the corrections officer who acted as interpreter “took an active part [and] crossed the line . . . into impermissible inducement.” He claims the corrections officer used both threats and promises of leniency to induce his confession. Defendant also argues that the officers falsely claimed to have incriminating evidence they did not actually have. Finally he urges that the corrections officer misleadingly suggested that defendant had the burden to prove his own innocence.^[6]

Due process rights afforded by both the federal and state constitutions bar the use of an involuntary confession to obtain a conviction. In order to use a confession, the prosecution must show, by the preponderance of the evidence standard of proof, that the defendant gave it voluntarily. The ultimate question is whether defendant’s choice to confess was not “essentially free” because his or her will was overborne. The determination of this question turns on the totality of the circumstances. Factors to be considered include: the “ ‘ “crucial element of police coercion,” ‘ “ the length of the interrogation, its location, its continuity, and the defendant’s maturity, education, and physical and mental health. (People v. Boyette (2002) 29 Cal.4th 381, 411.) A reviewing court upholds the trial court’s findings as to the circumstances surrounding the confession if they are supported by substantial evidence, but exercises independent review in determining whether undisputed circumstances, together with those properly found by the trial court, render the confession involuntary. (Ibid; see also People v. Thompson (1990) 50 Cal.3d 134, 166.)

Here the timing and length of the interrogation are not suggestive of coercive practices. Despite the early hour when officers took defendant into custody, he was already awake and driving his vehicle to the highway. There is nothing in the record to indicate that the location of the interview, in the sheriff’s office, was itself unduly threatening or uncomfortable. The length of the interrogation resulted, at least in part, from the additional time needed to translate from English to Spanish and vice versa. The officers gave defendant several breaks, offering him food, drink, and restroom facilities. After two of the three breaks--including the final break that preceded defendant’s confession--the officers reminded defendant of his Miranda rights before resuming the questioning. Although defendant had had no formal education and had spent his first 17 years in Mexico, he was a mature individual, 48 years of age, who had lived most of his adult life in California. Moreover, he had had at least some exposure to the state’s criminal justice system, by reason of his two DUI violations. The investigating officer noted defendant appeared to be physically and mentally healthy and did not appear to be intoxicated at the time of the interview. The trial court, which had the benefit of viewing the videotape of the interview as well as the transcript,^[7] found defendant to be “of average intelligence,” based in part on its observation of his demeanor. He “seemed to understand” the questions, did not “demonstrate . . . any . . . confusion,” and showed no “hesitat[ion]” in his responses.

The challenged statements cited by defendant, which we have summarized above,^[8] are the only remaining consideration. We have reviewed all of them in the context of a careful examination of the transcript of the entire interview. We find that the officer’s statements, overall, consistently conveyed to the defendant their continuing disbelief in his changing version of the events surrounding the homicide. They explained to defendant that other evidence supported their own surmise, which was that he had committed the homicide when Gonzales entered his garden, because he believed Gonzales was armed and intended to steal his plants. At one point the defendant asked explicitly: “You want me to say that I killed him?” The corrections officer responded by stating: “No . . . tell us the truth.” Elsewhere the corrections officer repeatedly related that they were interested only in the truth, telling the defendant that “if you didn’t kill him, [do] not . . . tell [us] that you killed him.” The purported threats or promises of leniency were, at most, suggested rather than explicit, and do not appear to have been a proximate cause of the confession. (See People v. Musselwhite, supra, 17 Cal.4th at pp. 1240-1241 [there must be a “proximate causal connection” between police misrepresentations and the confession].)

We conclude that, under the totality of the circumstances, the prosecution met its burden to show that the confession was voluntary. The trial court did not err in denying the motion to exclude on this ground.

B. The Instruction for “Lying in Wait”

The trial court gave CALJIC No. 8.25 among its instructions to the jury, at the request of the prosecution and over the objection of defendant’s trial counsel. This instruction provided: “Murder which is immediately preceded by lying in wait is murder of the first degree.

The term ‘lying in wait’ is defined as a waiting and watching for an opportune time to act, together with a concealment by ambush or by some other secret design to take the other person by surprise even though the victim is aware of the murderer’s presence. The lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation.” (Italics added.) During closing argument, the prosecution argued that defendant was guilty of first degree murder under either of two theories. The first was that defendant’s conduct in shooting Gonzales showed express malice aforethought--a deliberate intention to take his life. (See § 188.) The second theory was that defendant killed Gonzales by lying in wait. (See § 189 [“[a]ll murder . . . perpetrated by means of . . . lying in wait . . . is murder of the first degree”].)

Defendant argues the evidence was insufficient to support the lying-in-wait instruction, and that giving it was prejudicial error. He emphasizes the evidence that, before firing, he “tried to scare Gonzales away by making noises,” thus eliminating the element of concealment.

A conviction for murder by means of lying in wait requires proof that there was a concealment of purpose, a substantial period of watching and waiting for a favorable or opportune time to act, and that immediately thereafter the defendant launched a surprise attack on an unsuspecting victim from a position of advantage. (People v. Gurule (2002) 28 Cal.4th 557, 630.) To decide whether the trial court properly instructed the jury on this theory, we determine, in effect, whether there was substantial evidence to support a verdict based on this theory. (People v. Ceja (1993) 4 Cal.4th 1134, 1139, fn. 1.) In doing so we review the whole record in the light most favorable to the judgment, to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty, beyond a reasonable doubt, on the basis of this theory. (Id. at p. 1138.)

The record discloses the following relevant evidence. Testimony by the pathologist indicated that the killer shot Gonzales from behind with respect to at least three of the gunshot wounds, perhaps more. One “very significant,” or fatal, wound entered Gonzales’s back near his spine. Two others entered his upper right chest, traveling a path that indicated the shooter fired from behind and to the right and downhill from Gonzales. An additional wound, also fatal, left a pathway that was, again, consistent with the shooter firing from behind and downhill, although it was also possible the bullet had traveled in the opposite direction. The investigating officer who conducted defendant’s postarrest interview testified that defendant told him “sneak rats” were stealing his marijuana, most recently some eight days before the shooting. The defendant indicated to the officer that at the time of the shooting “he [had been] ready” for the possibility that someone would return to steal more. The defendant told him that he shot Gonzales because he thought Gonzales was about to steal from his garden, and that Gonzales was going to harm him. When officers later conducted defendant to the crime scene, he pointed out a “tree line” just beyond the fence that surrounded one of his gardens. He told the officer he had been positioned with a rifle in this spot, “concealed within the foliage,” at the time that he fired the first several shots at Gonzales. Defendant said that, when he saw Gonzales enter the garden, he made some noise by shaking some of the tree branches. He fired after Gonzales failed to take notice of the noise and leave. The spot where defendant first fired was located at the lower southeast end of the sloping garden. Gonzales, when shot, was located at its upper end. After Gonzales fell, defendant stated that he went closer and fired “one or two” more shots, to “make sure” Gonzales was dead.

In our view this evidence, viewed in the light most favorable to the judgment, was sufficient for a reasonable trier of fact to find beyond a reasonable doubt that defendant was guilty of murder by means of lying in wait. It showed defendant had been anticipating the possibility of another theft for at least eight days, and was “ready.” On the day of the shooting he had assumed a concealed position within some trees just beyond the clearing of his garden. When he did this, he was armed with a rifle. Although defendant may have made some rustling noises after he saw Gonzales, he did not leave his position of concealment, and began firing from his concealed position almost immediately afterward. It was clear that at least some of the initial shots struck Gonzales from behind. In short, there was substantial evidence to support a verdict that defendant launched a surprise attack on Gonzales from a position of advantage, after concealing himself and waiting for a substantial period for the opportune time to act.

We conclude there was no error in giving CALJIC No. 8.25.

Disposition

The judgment is affirmed.

_________________________

STEIN, J.

We concur:

_________________________

MARCHIANO, P. J.

_________________________

SWAGER, J.

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^[1] The drawing, admitted into evidence at trial, showed a rifle similar in appearance to a common configuration of the “AK” type assault weapon.

^[2] Further statutory references are to the Penal Code unless otherwise specified.

^[3] These each provide for a sentence enhancement when a firearm is used during the commission of a felony. Section 12022.53, subdivision (d), in particular, involves the discharge of a firearm that results in great bodily injury or death.

^[4] Miranda v. Arizona (1966) 384 U.S. 436.

^[5] Specifically, defendant cites to the following remarks, given in the chronological order in which they occurred during the interview. “I have nothing else to tell you. That is all.” “Well, no way to say anything else, I can not say anything else than that.” “I will not tell you anything more. What I know, I told you.” “That is all I know. I do not know any more.” “Well, don’t believe me, what else can I do? I can’t say any more, I already said everything.” “Well I don’t have any more to say.” “Well, that’s it, I don’t have any more to tell you.” “What else can I tell you? I do not know any more.”

^[6] As an example of the corrections officer “instilling . . . fear,” defendant cites to a statement at the beginning of this interview, when that officer told the defendant that “if you lie . . . it will get worse for you if . . . they send you to court.” He cites several examples of the corrections officer “implanting” the story that the officers purportedly wanted defendant to tell them. These portrayed a scenario in which the defendant killed the victim because the latter “came in to steal” and “carried a weapon.” The corrections officer at times would relate that the investigating officer believed that this scenario was the truth, and that if defendant would admit as much, instead of continuing to lie, it would make a “big difference when it goes . . . to court,” suggesting that he might even avoid a jail term. Defendant refers to other statements, to the effect that defendant would “have to prove it was not true” that he had killed Gonzales.

^[7] The record on appeal includes the transcript but not the videotape. (See Cal. Rules of Court, rules 18(a), 31(b)(11) & (e).)

^[8] See footnote 6.