Opinion
E073843
08-04-2021
THE PEOPLE, Plaintiff and Respondent, v. CESAR VEGA DURAN, Defendant and Appellant.
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. INF1501742. James S. Hawkins, Judge. Affirmed as modified with directions
Kevin D. Sheehy, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, Eric A. Swenson, Kristine A. Gutierrez and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P. J.
A man who had been sexually harassing defendant's girlfriend was shot to death. Defendant's girlfriend later testified that defendant admitted being the shooter. A friend of defendant, who received a reduced sentence in exchange for his testimony, likewise testified that defendant admitted being the shooter. When the police interviewed defendant, after giving him Miranda warnings, defendant admitted once again that he was the shooter; however, he claimed, initially, that the shooting was an accident and later, that it was in self-defense.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
In a jury trial, defendant was found guilty of first degree murder (§§ 187, subd. (a), 189), with an enhancement for causing death by personally and intentionally discharging a firearm (§ 12022.53, subd. (d)). Defendant also pleaded guilty to unlawful possession of a firearm. (§ 29800, subd. (a).)
These and all further statutory citations are to the Penal Code.
In a bifurcated proceeding, after defendant waived a jury, the trial court found two prior prison term enhancements (§ 667.5, subd. (b)) to be true. Defendant was sentenced to 52 years to life in prison.
Defendant now contends that:
(1) The trial court erred by denying defendant's motion to suppress his statement to the police because:
(a) The police continued to question defendant after he asked for an attorney.
(b) The statement was involuntary, in that defendant made it in response to threats and false promises by the police.
(2) The trial court erroneously failed to exercise its discretion to reduce the firearm enhancement to a lesser included enhancement.
(3) Under newly enacted legislation, the prior prison term enhancements must be stricken. (The People concede this point.)
We agree with defendant and the People that the prior prison term enhancements must be stricken. Otherwise, we find no prejudicial error. Hence, we will modify the judgment.
I
STATEMENT OF THE CASE
Angel Monroy repeatedly “harassed and propositioned” Mayra Alvarado, who was defendant's girlfriend and the mother of defendant's child. On the night of February 21, 2015, Monroy was shot twice, fatally, in front of his mother's house.
Alvarado testified that defendant admitted to her the next day that he shot Monroy “because of [her].”
Defendant's friend Manuel Guerra had previously acted as a police informant, sometimes paid and sometimes unpaid. In exchange for his truthful testimony in this and other cases, he was to receive a suspended sentence, rather than up to 18 years in prison, in an unrelated matter.
Guerra testified that defendant admitted being the shooter. Defendant also told him that Yesenia Palomino, who lived in an apartment at the back of Monroy's mother's house, had “notif[ied] [defendant] when [it] was a good time for him to catch [Monroy] outside.” Guerra was present when defendant told two other friends about the shooting. Defendant imitated Monroy saying “fuck” and gasping for air.
At the instance of police, Guerra met with defendant while wearing a wire. Defendant said Palomino “conspired... in it.... That makes her an accessory.” When Guerra said, “[Palomino] don't know what you did with the gun..., ” defendant said, “And even if anybody knew where it was at it's so full of rust now.” “And then it was in pieces.”
On October 5, 2015, the police interviewed defendant in custody. At first, defendant denied recognizing a photo of Monroy. The police claimed that Palomino had told them that defendant was the shooter, and that they had text messages, video, and DNA evidence confirming this. At first, defendant denied shooting Monroy. He did say Monroy was “stalking” Alvarado. “Scared my baby, you know?” He then claimed the shooting “was an accident”: “He bothered my girl so I went over there and argued.... I pulled the strap and then we fought for it.” “[H]e pulled on it and... it went off, ” twice.
The police claimed they could prove this was “bullshit.” Defendant then admitted, “He was messing with my family so I shot him.” However, he claimed it was self-defense: “I had the gun out already, ... to make sure he didn't come near me, ” but Monroy “kept coming at me.” “I... thought he was gonna take it from me an[d] fuckin' shoot me with it.” Afterwards, defendant “cut [the gun] up in pieces” and left it in the Salton Sea. Other details of defendant's statement also matched Guerra's account.
At the suggestion of the police, defendant wrote a note to Monroy's family. In it, he said, in substance, “that he was sorry for what occurred and that he... wants the family to know he was defending his family.” {RT2 373}
Gunshot residue was found on the victim's hands. This meant he “either discharged [a] firearm or was in the vicinity of the discharge of a firearm or came in contact with some surface that had gunshot residue on it.” Low-quality surveillance videos obtained from neighbors showed a confrontation between Monroy and one other person who walked up to his house.
II
THE ADMISSIBILITY OF DEFENDANT'S STATEMENTS TO POLICE
Defendant contends that the trial court erred by admitting his statements to the police, because they were involuntary and because they were obtained in violation of Miranda. We need not decide whether it erred in either respect, because we conclude that the admission of defendant's statements was harmless beyond a reasonable doubt.
A. Additional Procedural Background.
The prosecution filed a motion in limine to admit defendant's statement at the preliminary hearing. At the same time, defense counsel filed a motion to suppress the statement (§ 1538.5), as involuntary and as obtained in violation of Miranda.
The magistrate admitted the statement. She found that “the defendant did not make an unambiguous request for an attorney.” She also ruled that the “ruses” the officers had used in the interview did not make defendant's statement involuntary.
At trial, defense counsel renewed the motion to suppress. (§ 1538.5, subd. (i).) The trial court denied the motion.
B. Harmless Error.
Neither the erroneous admission of an involuntary statement nor the erroneous admission of a statement in violation of Miranda requires reversal if it was harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 310-312 [involuntary]; People v. Sims (1993) 5 Cal.4th 405, 447 [Miranda]; e.g., People v. Caro (2019) 7 Cal.5th 463, 493.) Under this standard, an error may be held harmless when “the evidence... is ‘of such compelling force as to show beyond a reasonable doubt' that the erro[r] ‘must have made no difference in reaching the verdict obtained.' [Citation.]” (People v. Harris (1994) 9 Cal.4th 407, 431, fn. omitted.)
Here, Alvarado, who was defendant's girlfriend at the time of the shooting and the mother of his child, testified that defendant admitted that he shot Monroy because of her. Guerra, who was defendant's friend, likewise testified that defendant admitted being the shooter. Admittedly, besides being defendant's friend, Guerra was an informant who was testifying in exchange for a substantially reduced sentence. Nevertheless, his testimony was corroborated by defendant's own statements while Guerra was wearing a wire. Defendant implicitly confirmed that he was the shooter by saying that Palomino “conspired... in it” and was “an accessory.” Defendant also admitted getting rid of the gun. At least as far as the evidence showed, the only person with a motive to kill Monroy was defendant. The shooter went to Monroy's house with a gun, showing premeditation. And according to Guerra, defendant later boasted about how Monroy had sworn and gasped for air; this was inconsistent with accident or self-defense.
On this record, we are convinced, beyond a reasonable doubt, that even if defendant's statements to the police had been excluded, the jury would have found him guilty of first degree murder. In fact, with one exception, his statements were the only exculpatory evidence. In them, defendant claimed that the shooting was either an accident or self-defense. Admittedly, his story kept changing, and the prosecutor noted this in closing argument. Still, if he did shoot the victim in self-defense, he might well try to tell the police first that he was not the shooter and, when they did not believe this, that it was an accident. His changing story did not make him significantly worse off than the other evidence already made him. The only other exculpatory evidence was that Monroy had gunshot residue on his hands. Expert testimony, however, showed this could occur merely from being “in the vicinity of the discharge of a firearm” - as Monroy surely was.
Defendant suggests that, but for the admission of his statements, he would have taken the stand. “Whether defendant would have testified in the absence of the need to respond to his confession and, if so, whether the confession would have been admitted for purposes of impeachment requires us to engage in speculation about the parties' tactical choices. Because it is impossible to determine what might have happened had the trial proceeded differently, we conclude that prejudice should be evaluated on the basis of the evidence actually presented, while excluding the improperly admitted confession.” (People v. Bradford (2008) 169 Cal.App.4th 843, 855; accord, People v. Hicks (1971) 4 Cal.3d 757, 763 [finding error harmless beyond a reasonable doubt; ‘it is sheer speculation to argue that defendant... would have testified'” in the absence of the error].)
III
DISCRETION TO REDUCE THE FIREARM ENHANCEMENT
Defendant contends that he is entitled to a remand so the trial court can consider reducing the firearm enhancement to a lesser included firearm enhancement.
Senate Bill No. 620 (2017-2018 Reg. Sess.) became effective on January 1, 2018. (Stats. 2017, ch. 682.) It amended sections 12022.5 and 12022.53 so as to give the trial court discretion to strike a firearm enhancement. (§§ 12022.5, subd. (c), 12022.53, subd. (h).)
In April 2019, People v. Morrison (2019) 34 Cal.App.5th 217 held that this discretion to strike a firearm enhancement includes the discretion to reduce a greater firearm enhancement to a lesser included firearm enhancement. (Id. at pp. 220-223.)
Defendant was sentenced in October 2019, six months after Morrison was decided. At sentencing, defense counsel asked the trial court to strike or stay the firearm enhancement. This exchange followed:
“THE COURT: You can even exercise discretion to reduce it to one of the triads, right?
“[DEFENSE COUNSEL]: On the 12022.53, I don't believe so.
“THE COURT: I thought we had that - anyway. Go ahead.”
The prosecutor agreed: “I'm not aware of that, if that's a recent change.” The trial court proceeded to impose the enhancement.
Thus, it would appear that the trial court was vaguely aware of its discretion under Morrison but was talked out of exercising it. Arguably, defense counsel invited the error. However, we need not reach the invited error question.
This court is on record as declining to follow Morrison. In People v. Yanez (2020) 44 Cal.App.5th 452, review granted April 22, 2020, S260819, we held that a trial court does not have discretion to reduce a firearm enhancement. (Id. at pp. 457-460; accord, People v. Valles (2020) 49 Cal.App.5th 156, 164-167, review granted July 22, 2020, S262757.) Because review has been granted in Yanez and Valles, they are no longer binding; however, they remain persuasive (Cal. Rules of Court, rule 8.1115(e)), especially in this court. (People v. Valles, supra, at p. 172 [conc. opn. of Menetrez, J.] [“[M]indful of principles of stare decisis, I am aware of no basis to depart from our division's recent decision in Yanez....”].)
The trial court therefore did not err by failing to exercise discretion that, in our view, it did not have.
IV
PRIOR PRISON TERM ENHANCEMENTS
Defendant contends that, under recently enacted legislation, his prior prison term enhancements must be stricken. The People concede the point.
We agree. Senate Bill No. 136 (2019-2020 Reg. Sess.), effective January 1, 2020, amended section 667.5, subdivision (b) so as to eliminate all prior prison term enhancements, unless the prior prison term was for a sexually violent felony. Defendant's prior prison terms were not. As an ameliorative statute, Senate Bill No. 136 applies to all defendants whose conviction is not yet final. (People v. Cruz (2020) 46 Cal.App.5th 715, 739; see generally In re Estrada (1965) 63 Cal.2d 740, 744-748.) Hence, we will strike the prior prison term enhancement and modify the sentence accordingly.
V
DISPOSITION
The judgment is modified by striking the two prior prison term enhancements. This reduces defendant's total sentence to 50 years in prison. The judgment, as modified, is affirmed. The superior court clerk is directed to prepare an amended sentencing minute order and an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (§§ 1213, 1216.)
We concur: CODRINGTON J., SLOUGH J.