Opinion
Opinions on pages 337-365 omitted.
[201 Cal.Rptr. 921]Robert Patrick Murphy, San Francisco, for appellant and defendant.
John K. Van de Kamp, Atty. Gen., Kristofer Jorstad, Ronald D. Smetana, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.
PANELLI, Associate Justice.
Defendant, Javier Anthony Aguilar, was 17 years old when he was charged with the murder of Christina McMurray, also a minor. He was found not a "fit and proper subject" to be dealt with under the Juvenile Court Law (see Welf. & Inst.Code, § 707 et seq.) and adult criminal proceedings were commenced. Following a jury trial, he was found guilty of murder in the second degree. (Pen.Code, §§ 189, 190.) He was thereafter referred to the Youth Authority (YA) for diagnostic study and report prior to sentencing. (See Welf. & Inst.Code, [201 Cal.Rptr. 922] § 707.2.) Upon return to the sentencing court, the court accepted the probation department's recommendation of state prison and rejected the YA's report of amenability, and sentenced the defendant to state prison for the term prescribed by law.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Defendant appeals urging numerous errors in the trial proceedings and alleges an abuse in discretion in commitment to state prison. Defendant has also filed a writ of habeas corpus which was consolidated with this appeal. We find that no prejudicial error occurred at trial and conclude that the trial court did not abuse its discretion in sentencing defendant to state prison.
I.
Facts
At approximately 6:30 a.m., on November 23, 1980, San Francisco Police Officer Michael Sullivan discovered the body of a young girl lying face down on the stairs leading to the doorway of 164 Lucky Alley in San Francisco. The girl had a long bruise on her neck a 1/2 inch cut on her lower lip, and was not wearing shoes. The back of her blouse and pants were wet but the front of the clothing was dry. To the best of his knowledge, it had rained until 4 a.m. that morning.
The body was found some 40 feet from defendant's home at 2959 Folsom Street in San Francisco.
An autopsy was performed on the victim, Christina McMurray, by Dr. Boyd Stephens, the Chief Medical Examiner of the City and County of San Francisco. Stephens observed various signs of trauma about the body associated with asphyxiation. There were also abrasions and lacerations about the face, body and extremities and bruises and discoloration on the neck consistent with manual strangulation. In Stephens' opinion there had been several separate and distinct applications of force to the neck with several changes of position. The injuries to face and hands and the fact that her lower teeth had penetrated through the lower lip led Stephens to believe that there had been a struggle. He concluded that the cause of death was manual strangulation with resulting asphyxiation. Although semen was found in her vagina and rectum, her clothing was positioned as though she had dressed herself. Stephens could not opine whether she had been the victim of a forcible sexual assault. However she was not and had not been pregnant. He could not tell whether the sexual intercourse had preceded the strangulation but concluded that death had occurred between 9:30 p.m. on November 22 and 3:30 a.m. on November 23.
Veronica Puebla testified that on November 22, she and McMurray stayed at the home of Maria Salazar, McMurray's cousin, on Excelsior Street in San Francisco. They decided to have a party that evening at Puebla's house on Mission Street. At some point in the day, McMurray argued on the telephone with her boyfriend, Orlando Hernandez, and decided not to see him that evening. After going to Puebla's house to straighten it up for the party, the girls went to the library at Cortland and Moultry Streets. There they saw defendant, whom they knew was a good friend of Hernandez. They left; when they returned some 20 minutes later they again saw defendant and David Jarra, whom they invited to the party.
Jarra drove the four of them to Puebla's house where they drank alcohol for about 45 minutes. Jarra then drove them back to a playground on Cortland at about 10:30 or 11 p.m. and parked the car near Jarboe and Moultry Streets. Puebla testified that she got out of the car, leaving the other three in the car, and walked to the playground. About ten or fifteen minutes later she looked back to where the car had been parked and saw it was gone. According to Puebla, she had been with McMurray essentially the entire night until that point, and to her knowledge, the girl had not had sexual relations during that time.
Jarra testified that when they got to the playground, defendant became ill and [201 Cal.Rptr. 923] Puebla got out of the car. Defendant and McMurray wanted to go "for a ride" and Jarra started driving. Jarra became sleepy and let defendant drive. Jarra fell asleep and when he woke up the car was parked at Cortland. He did not remember whether defendant and McMurray were in the car at that point, but stated that he then drove home alone.
John Ortiz, McMurray's cousin, testified that he saw her in the back seat of the car parked near the Cortland playground at about 12:30 a.m. He walked over to the car and spoke with her briefly. At that time defendant was "throwing up." McMurray told him that she was waiting for Jarra. When Ortiz left the playground at about 1 a.m., the car was gone.
Defendant's girlfriend, Rosa Andino, testified that she did not see him on November 22. Two days later she asked him where he had gone on that night because she had heard rumors that he had been with McMurray. Defendant denied that he had been with McMurray. The next day--i.e., November 25--defendant called her and told her that he was being questioned at the Hall of Justice concerning McMurray's death. Later at her house he told Andino that he had been with McMurray and Jarra at the park and that he and McMurray had walked home together. Andino saw that defendant had scratches on his left hand and neck; he told her that he got them during an argument with his stepmother.
Defendant was interviewed by Inspector Edward Erdelatz of the Homicide Detail of the San Francisco Police Department at about 8 p.m. on November 25. Defendant told Erdelatz that he was drunk when the four of them left the party and went to the park. When they got there, Puebla left the car and he began to vomit. Jarra asked him to get out of the car and he did. Defendant said that he then left the park and took a bus home leaving Jarra and McMurray at the park.
Erdelatz interviewed defendant's girlfriend on November 27 and learned that defendant had told her a different version of events. As a result, Erdelatz asked defendant to meet him at the Hall of Justice on November 28 at 4 p.m. Defendant agreed and arrived with his mother and another relative.
After advising defendant of his Miranda rights defendant agreed to talk to Erdelatz and his partner, Officer Brosch. Defendant changed his story during the interview. Here he stated that after he vomited at the park, the three of them (he was not sure where Veronica was, and she might have been "passed out in the back seat") "cruised around" Mission Street for about an hour and a half. According to defendant they had each consumed a substantial amount of hard liquor and smoked marijuana. In addition, he had taken four "bennies" (benzadrine).
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
Defendant stated that he was falling asleep when Jarra drove him home toward Lucky Alley. Jarra parked the car and tried to put his arm around McMurray. She struggled with him and asked to be let out of the car. During that struggle McMurray scratched defendant on his left shoulder. Jarra held on to McMurray and defendant got out of the car. He did not know what happened after that. Defendant stated that he did not know whether Jarra and McMurray had had sexual relations. Erdelatz noted that defendant had scratches on his shoulders, chest, hands and right arm.
Defendant was left alone in the interview room while Erdelatz went next door to arrange for him to be transported to the juvenile authorities. About fifteen minutes later, defendant knocked on the door and told Erdelatz that he wished to tell "the truth."
Defendant was again advised of his Miranda rights and agreed to waive them. During this statement, defendant admitted that he had strangled McMurray. He stated that after they returned to the park, he became ill and McMurray said she would "take care of" him. They took a bus and [201 Cal.Rptr. 924] walked the rest of the way to his house. According to defendant, McMurray said that she had become pregnant by her boyfriend Hernandez but that he refused to marry her. McMurray said that she would kill him. Defendant became angry because Hernandez was his "partner" and he feared that McMurray's family would in fact kill him. They argued and she started to scratch him. Defendant got angry and strangled her.
Defendant said that he did not have sex with the girl, that he did not hit her and that he did not mean to choke her. "She kept on scratching me.... I told her to stop ... she kept on ... before I knew it she was dead."
Defendant stated that he did not know what happened to McMurray's shoes, and he had no explanation for why he gave the earlier statement implicating Jarra.
After the interview, Erdelatz went to defendant's home and seized from defendant's bedroom a bag containing shoes and a sweater later identified as belonging to McMurray.
Dr. Edward Blake, a forensic seriologist, tested the semen which was found on McMurray's underwear. He concluded that Jarra could not have been the donor but that defendant was within 12 percent of the male population capable of "contributing" it.
Spermatazoa was also found in her rectum and vagina, but it was insufficient for testing. He opined that the semen in the vagina had been deposited within 24 hours of her death, but he could not determine whether that had occurred before or after death.
Finally, Hernandez testified that McMurray had told him two weeks before her death that she was pregnant, but stated that they had never discussed marriage.
No evidence was introduced by the defense.
See footnote 1, ante.
The trial court did not abuse its discretion in sentencing defendant to state prison instead of committing him to YA.
Defendant's final contention is that the trial court abused its discretion in sentencing him to state prison notwithstanding that YA found him amenable to a YA commitment. (Welf. & Inst.Code, § 707.2.)
At all times relevant to this proceeding, Welfare and Institutions Code section 707.2 provided that a court could not sentence a minor in defendant's position (i.e., under the age of 18 when he committed the criminal offense and found not fit to be tried as a juvenile) to state prison unless: (1) the minor had been remanded to the YA for its evaluation and report; (2) the court had read and considered the report; and (3) the court specifically found that the minor was not a "suitable subject for commitment to the Youth Authority." (See People v. Carl B. (1979) 24 Cal.3d 212, 217, 155 Cal.Rptr. 189, 594 P.2d 14.)
Section 707.2 was subsequently amended in 1982 to delete the requirement of a finding of lack of suitability and to specify the factors to be considered by the trial court when determining whether to sentence to state prison or commit to YA: "The need to protect society, the nature and seriousness of the offense, the interests of justice, the suitability of the minor to the training and treatment offered by the Youth Authority, and the needs of the minor shall be the primary considerations in the court's determination of the appropriate disposition for the minor." (See Stats.1982, ch. 1105, § 1, p. 5726.)
The trial court is not bound to accept the YA's recommendation on the question of suitability, nor is it precluded from considering the probation officer's recommendation. (People v. Carl B., supra, 24 Cal.3d at pp. 217-218, 155 Cal.Rptr. 189, 594 P.2d 14; People v. Taylor (1978) 81 Cal.App.3d 973, 976, 146 Cal.Rptr. 821.) While the trial court's discretion in determining whether to commit to YA or sentence to state prison is not absolute, the ultimate sentencing discretion is vested in the trial court and not the Youth Authority.
This is in accord with the express holding of People v. Carl B., supra, 24 [201 Cal.Rptr. 925] Cal.3d 212, 155 Cal.Rptr. 189, 594 P.2d 14. "The statutory language is not reasonably susceptible to the interpretation that the sentencing court must accept YA's recommendation on the subject of suitability. As stated in a recent case 'It will be observed that the code section [707.2] does not, by its terms, remove sentencing discretion from the trial court and vest it in the Youth Authority. Rather, it requires only that a Youth Authority diagnostic study be prepared and considered by the trial court before it sentences a minor to state prison. Specifically section 707.2 does not direct the court to follow the Youth Authority recommendation nor does it preclude the trial court from considering a probation report.' [Citation]." (Id., at pp. 217-218, 155 Cal.Rptr. 189, 594 P.2d 14, emphasis added.)
Appellant contends that Carl B. required the trial court in this case to accept the YA recommendation and that its rejection by the trial court was error. We disagree. Carl B. is nothing more than a substantial evidence case. In Carl B. the court simply found there was no substantial evidence to support the trial court's decision. The Carl B. court, in referring to the analogous situation of Welfare and Institutions Code section 707 et seq., stated: "we have observed that 'The decision rests in the sound discretion of the juvenile court. [Citations.] Nevertheless ... [t]here must be substantial evidence adduced at the hearing ...' [p] Similarly, we must examine the record herein to determine whether there was substantial evidence to support the trial court's implied finding of defendant's unamenability or unsuitability 'to training and treatment offered by the Youth Authority.' " (Id., at p. 218, 155 Cal.Rptr. 189, 594 P.2d 14, emphasis in original.)
The record in Carl B. was devoid of any evidence upon which the trial court could reject the YA recommendation. The trial court's decision to reject the YA recommendation was not based on evidence "adduced at the hearing" but rather on the trial court's determination that YA was an inappropriate placement because of the seriousness of the crime and further, because it wanted to confine the defendant for a longer period of time than would have been possible under a YA commitment. Accordingly Carl B. concluded: "In sum, neither reason given by the sentencing court constituted a legally sufficient ground for rejecting the YA's recommendation ... [o]n the present record, the court's contrary finding lacked the support of substantial evidence." (Id., at p. 220, 155 Cal.Rptr. 189, 594 P.2d 14, emphasis added.) It is therefore necessary to review the record before us to determine whether there was substantial evidence to support the trial court's discretion to reject YA's recommendation and to sentence the appellant to state prison. We believe there was.
In the present case, unlike Carl B., there was evidence presented to the trial court which disputed YA's recommendation of amenability. First of all, unlike Carl B., the probation report recommended state prison rather than YA. Carl B. specifically permits the court to consider a probation report. (Id., at p. 218, 155 Cal.Rptr. 189, 594 P.2d 14.) Secondly, and more importantly, two probation officers testified at the sentencing hearing; both recommended state prison rather than YA.
While Carl B. tells us that YA and its staff "should be considered 'experts' on the subject of amenability to YA training and treatment" they are not the only experts on the subject of amenability. (Id., at p. 219, 155 Cal.Rptr. 189, 594 P.2d 14.) If they were, the statement in Carl B. preserving the trial court's discretion would be a fiction and the YA report would be conclusive. The two probation officers whose testimony was presented to the court at the sentencing hearing, were themselves "expert witnesses." The trial court was entitled to weigh and consider their expert opinion against the YA experts. Obviously, in this case, it gave greater weight to the testimony of the two probation officers. A brief review of the testimony of the probation officers reveals that there was [201 Cal.Rptr. 926] substantial evidence to support the determination of the trial judge.
The investigating probation officer, Michael Pearcy, prepared the probation report which recommended state prison. He had 10 years experience as a probation officer. In preparing his report, he investigated appellant's background, talked to school officials, reviewed the juvenile probation report prepared for the section 707 hearing, spoke with appellant, the victim's family and reviewed the police report. He admitted, that in part, his recommendation of state prison was based on the seriousness of the offense, i.e., murder. However, he also considered the manner in which the crime was committed and the vulnerability of the victim. The manner in which a crime is perpetrated and the actions of the perpetrator are factors apart from the mere seriousness of the crime. The method employed by appellant in killing the victim and her vulnerability are, in our view, factors which were properly considered by the sentencing court.
Moreover, Robert Wertz, an experienced juvenile probation officer also testified at the sentencing hearing. Mr. Wertz had many discussions with the appellant. He had also conferred with YA staff about appellant. Mr. Wertz testified that in his opinion, appellant should be committed to state prison rather than YA. He gave four reasons for his recommendation of state prison. These reasons were (1) the circumstances of the offense, (2) the nature of the crime, (3) the question of rehabilitation and (4) the protection of the community.
Mr. Wertz, as did Mr. Pearcy, considered the seriousness of the crime as one of the factors leading to his recommendation. However this was only one of the factors considered. He also considered the manner in which the crime was committed. He elaborated on this point by testifying, "Well, he made several attempts to conceal his act ... [r]emoving the body from his home, removing or concealing clothing ...." Mr. Wertz was telling the court that appellant's actions after the crime evidenced a state of mind which required severe sanctions. He further testified that the statement made by appellant to the authorities attempted to shift guilt to others and he gave different reasons for the killing. These actions on the part of appellant demonstrated a callousness and sophistication on the part of the appellant which had nothing to do with the "mere seriousness" of the crime. In the opinion of Mr. Wertz, an expert witness, these factors made the appellant unamenable to YA and required a prison commitment.
But beyond the factors mentioned above, Mr. Wertz expressed doubts as to whether YA would confine appellant for a period adequate to protect the public. While his testimony on this point is not totally clear, a fair reading of the record indicates that he felt the public's interest in protection from the appellant would best be served by the confinement in state prison. The state prison terms would be approximately twice the maximum period available at YA, even if appellant was confined at YA until age 25. He testified "It would be my decision that he go to state prison both for the protection of the community and because I think he should be responsible for his act. In various conversations I have had with him his main concerned [sic] has been what's going to happen to him, how much time he's going to have to spend, and to make an impression on him I think it's a factor in rehabilitation that he should spend and be sentenced as an adult to state prison." This testimony was conveying to the court his opinion that rehabilitation would be effected by a state prison commitment rather than one to YA.
The trial court read the probation officer's report, the YA report and heard the testimony of Mr. Wertz and Mr. Pearcy, the two probation officers. The record before us demonstrates that the trial court reviewed the circumstances of the crime, which indicated to him that defendant knew what he was doing, its viciousness, and that defendant had a plan and a scheme to shake away the guilt during and after its commission. These factors are different than the "mere seriousness" of the crime [201 Cal.Rptr. 927] and were supported by substantial evidence. The probation report and the testimony of the two probation officers substantially support the decision of the trial court to reject YA placement. This was not a case where there were no "substantial counterveiling considerations." State prison was the appropriate sentence choice in this case, and the trial court did not abuse its sentencing discretion in making that choice.
The judgment is affirmed. The writ of habeas corpus is denied.
CALDECOTT, P.J., concurs.
POCHE, Associate Justice, dissenting.
I respectfully dissent from that portion of the majority opinion which finds that the trial court did not abuse its discretion in sentencing defendant to state prison. In my view the record is entirely lacking in "substantial countervailing considerations" to support the trial court's rejection of the recommendation of the Youth Authority (YA). (See People v. Carl B. (1979) 24 Cal.3d 212, 214-215, 219-220, 155 Cal.Rptr. 189, 594 P.2d 14.)
Unlike my majority colleagues I do not view Carl B. as a "substantial evidence case." Quite to the contrary, Justice Richardson, writing for the majority, was spelling out in detail the standards governing the decisionmaking process with respect to the placement of youthful offenders. The clear rule the high court enunciates is that because the YA and its staff are the " 'experts' on the subject of amenability to YA training and treatment" (People v. Carl B., supra, at p. 219, 155 Cal.Rptr. 189, 594 P.2d 14), a trial court has no discretion to reject a YA recommendation unless the record demonstrates substantial countervailing considerations.
An absence of such considerations was found in Carl B. where the sentencing court in rejecting YA's recommendation relied upon the seriousness of the defendant's conduct and the length of commitment. (Id., at pp. 219-220, 155 Cal.Rptr. 189, 594 P.2d 14.) The majority here finds those exact reasons sufficient because they came from probation officers instead of the trial court. Dubbing the probation officers "experts", the majority posits that the trial court is empowered to weigh probation officer "experts" against YA staff and choose which expert is the most credible. Such reasoning, in my view, ignores the holding of Carl B.
The Supreme Court rejected the notion that seriousness of the conduct and length of commitment were sufficient to overcome the YA recommendation. That rejection was not premised on the source of the recommendation but on the substance of the recommendation: neither reason "constituted a legally sufficient ground for rejecting the YA's recommendation and finding of ... amenability to treatment...." (At p. 220, 155 Cal.Rptr. 189, 594 P.2d 14, emphasis added.) Thus who mouths such formula is irrelevant: those reasons by their very nature are legally insufficient.
The majority also attempts to bolster the trial court's rejection of YA's recommendation and finding of defendant's amenability to treatment by looking to the "circumstances of the crime". That concept is precisely what was rejected by the high court: "the seriousness of defendant's conduct, of itself, would not ordinarily constitute a legally sufficient ground to reject a YA recommendation under section 707.2. It is the YA's business to deal with serious offenders." (At p. 219, 155 Cal.Rptr. 189, 594 P.2d 14, emphasis added.)
For these reasons I find no legally sufficient ground in the instant case to support the trial court's rejection of YA's recommendation that defendant be placed there. I would reverse the judgment insofar as it directs that defendant be punished by imprisonment in state prison.