Opinion
D055290 Super. Ct. No. SCN222540
09-29-2011
THE PEOPLE, Plaintiff and Respondent, v. MEKI GAONO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Convictions affirmed; sentence reversed in part; and remanded for modification of sentence.
I.
INTRODUCTION
Defendant Meki Gaono appeals from a judgment of conviction and sentence after a jury convicted him of first degree murder and other crimes related to the shooting death of an Oceanside police officer. On appeal, Gaono raises the following claims: (1) that the trial court erred in admitting portions of his statements to police, on the ground that the statements were made involuntarily or that they were obtained in violation of Miranda and/or Seibert ; (2) that the court erred in denying his motion for mistrial based on the trial testimony of one of the investigating detectives who, Gaono contends, testified differently at trial than he did at the pretrial suppression hearings; (3) that the court prevented Gaono from presenting a full defense by excluding the testimony of a proposed expert witness; (4) that the court abused it discretion in permitting the prosecutor to show the jury, during opening statement and closing argument, a computer animation depicting how the prosecution believes the shooting occurred; (5) that this court should review the record of the in camera Pitchess hearing to determine whether the trial court properly decided Gaono's motion for discovery of the police officers' personnel files; (6) that cumulative error requires reversal; (7) that the trial court erred in imposing and staying a 10-year gang enhancement, rather than striking it; and (8) that the abstract of judgment does not correspond with the trial court's oral rendition of judgment, in that it reflects the imposition of fines that the court did not orally impose, and fails to reflect that the court ordered that the imposition of victim restitution be joint and several between Gaono and another defendant.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda)and Missouri v. Seibert (2004) 542 U.S. 600 (Seibert)
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We agree with Gaono that the trial court should have stricken the 10-year gang enhancement, and that the abstract of judgment must be amended to accurately reflect the trial court's oral rendition of judgment. We reject Gaono's other contentions of error. We therefore affirm Gaono's convictions, but reverse his sentence insofar as the court imposed and stayed a 10-year gang enhancement. The trial court is directed to strike that enhancement. On remand the trial court shall also amend the abstract of judgment to accurately reflect the court's oral pronouncement of judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. Historical background
The neighborhood where the shooting occurred is a high gang crime area. In particular, a gang known as the Westside Deep Valley Bloods (WDVB) is active in the neighborhood. At the time of the events in this case, a number of WDVB gang members lived on the 500 and 600 blocks of Arthur Avenue, and on nearby streets.
In 2006, Oceanside Police Officer Dan Bessant, a member of the Oceanside Police Department's Neighborhood Policing Team, was assigned to an area that included the neighborhood near the intersection of Arthur Avenue and Gold Street. Bessant, accompanied by code inspection officers, had visited the homes of known WDVB gang members, including the residences of the Toluao family and the Seau family. Members of both of these families were known as "shot-callers" of the gang, which meant that they were considered to be leaders of the gang.
2. The shooting
On December 20, 2006, Oceanside Police Officer Karina Pina was on patrol with a civilian ride-along, Jacqueline Castaneda. Officer Pina was in uniform and was driving a marked police vehicle.
At approximately 6:15 p.m., Officer Pina initiated a traffic stop of a vehicle that had expired registration tags. The driver of the vehicle pulled over at the intersection of Arthur Avenue and Gold Drive. Pina approached the vehicle, obtained the driver's information, and returned to her police vehicle. Castaneda got out of the police car and stood next to it.
A few minutes after the traffic stop, Officer Bessant, who was also in uniform, arrived at the location and parked his marked police vehicle behind Pina's.
The location where the three cars were parked was dark. There was only one functioning streetlight nearby. The headlights and overhead lights on Officer Pina's car provided some additional lighting. Officer Bessant had turned on the amber lights on top of his vehicle, but not the overhead lights. Officer Bessant stood nearby while Officer Pina wrote out a citation for the driver of the car.
At approximately 6:30 p.m., Officer Pina heard a number of "whizzy sounds go by." She saw Officer Bessant grab himself under his left arm and turn away from the 600 block of Arthur Avenue. Castaneda heard four to six shots in rapid succession. After the first shot, Castaneda heard Officer Bessant say, "Oh no, oh no." After a very brief pause between the first three or four shots, Castaneda heard one or two louder shots, which she believed had come from a higher caliber weapon.
Castaneda had prior law enforcement training.
After the shots were fired, Officer Bessant drew his firearm and immediately moved toward the right front side of Officer Pina's police vehicle. According to Castaneda, Bessant appeared to be injured as he moved toward Pina's car. Leaning against the right front fender of Pina's vehicle, Bessant slid to the ground and dropped his gun.
After hearing the shots, Officer Pina looked toward the 600 block of Arthur Avenue, but was unable to see anything because it was so dark in that area. She could not see anyone and could not pinpoint where the shots had come from. Pina fired one shot in the direction of the 600 block of Arthur Avenue.
Officer Pina became aware that Officer Bessant was critically injured. She called in over her police radio than an officer was down and needed immediate assistance.
Sergeant Jeffrey Brandt responded to the scene of the shooting within a few minutes of Pina's call. Brandt approached Officer Bessant, who was slumped on the ground, leaning against Pina's vehicle. Sergeant Brandt tried to get Bessant to tell him where he was injured since Brandt could not see Bessant's injury, but Bessant only blinked in response. After approximately 10 or 15 seconds, Bessant's "pupils basically fix[ed]" and there was "no life left in him."
On December 21, 2006, deputy medical examiner Jonathan Lucas performed an autopsy on Officer Bessant. Lucas determined that a .22 caliber bullet had entered Bessant's chest cavity from his left side, punctured his heart and passed through his liver, and finally came to rest in the right corner of Bessant's chest cavity.
3. Other witnesses
A number of neighbors who were in the area that night around the time of the shooting saw a group of between three and six males standing near the mailbox in front of the residence at 622 Arthur Avenue. Some of the witnesses identified Jose Compre as one of the men who was hanging out in front of 622 Arthur Avenue. Other witnesses reported that they saw a big, stocky man with bushy hair among the group.
622 Arthur Avenue was Jose Compre's residence.
A neighbor who lived across the street from 622 Arthur Avenue also reported that one of the men had big, bushy hair. She heard the men arguing, and later heard three to eight gunshots. When she looked across the street again, the men were gone.
Another neighbor who lived across the street had walked next door to drop something off. On her way back to her house, she saw a big man walking north. She heard the man say, "Come on, let's go get it. Let's go get it. It's in the house." By that time, the men had begun to disperse, and all of them appeared to be walking north. After the witness entered her house, she heard noises, like rapid firecrackers, which sounded like they were coming from just outside her door.
Jade Morales had been working on her car when she heard three or four loud firecracker noises. She then saw two men quickly walking north. One of the men was skinny and was wearing a red t-shirt. The other man was stocky and had "poofy" hair. This man was wearing a white t-shirt and might have been carrying a rifle. Morales's brother had also noticed two or three men, including Compre and possibly Penifoti Taeotui, standing near the mailbox at 622 Arthur Avenue shortly before the shooting.
A gang expert testified that members of the WDVB used the color red to represent their gang affiliation.
A neighbor who lived three houses north of 622 Arthur Avenue heard the sound of two sets of gunshots coming from a location south of her house, and saw two men running north. One of the men was carrying a long silver object against his chest.
Another neighbor, Julio Mata, who lived across the street and north of 622 Arthur Avenue, had left his house to move a trailer around the corner. While he was parking the trailer, he heard gunshots. Mata walked back to his house and saw Gaono run into the side entrance of 680 Arthur Street holding a black three-and-a-half-foot long object under his arm. Mata then saw four other people run into the residence at 661 Arthur Avenue. Mata's mother, who had been waiting for him in front of their house, heard gunshots and saw a young man running in her direction. He was carrying something under his arm, and he ran between the residence at 680 Arthur Avenue and the house next door. This witness also saw several other men run into the house at 661 Arthur Avenue, which was the Seau family residence.
Mata and his mother started to drive to the store, but when they were halfway there, they turned around. When they returned to their residence, they saw Gaono come out of his house wearing shorts and no shirt. Gaono was looking south, in the direction of the police officers. Mata approached a police officer and told him that he had seen a person run into Gaono's house carrying a long object.
Elizabeth Musser is a neighbor of Karalena Gaono, who is Gaono's cousin. At around 7:00 p.m. that night, Musser heard a helicopter and went outside to see what was going on. Musser saw Karalena at home. A few minutes later, Musser saw a stocky man with "puffy" hair and a white t-shirt run into Karalena's house.
According to Karalena and another neighbor, Penifoti Taeotui was stocky, over six feet tall, weighed 280 pounds, and had "puffy" hair.
Karalena Gaono admitted that Gaono had called her on the night of the shooting. She testified that he called her only to ask her how she was doing and whether she had heard all of the sirens. Karalena admitted that after she received the call from Gaono, Taeotui arrived at her house and asked to use her telephone. After using Karalena's telephone, Taeotui left.
4. The investigation
Officers recovered seven .22-caliber shell casings and a single nine-millimeter shell casing from the street in front of 622 Arthur Avenue. Samples taken from the brick mailbox at that residence tested positive for gunshot residue.
Officers found a black guitar case in a locked shed in Gaono's backyard. Inside the guitar case was a .22 caliber rifle with a scope. In addition, officers found a .22 caliber revolver, wrapped in a towel, in a drawer in Gaono's kitchen. The revolver's cylinder contained nine expended .22 caliber cartridges in it, which meant that there had been nine bullets in the revolver, and that all nine had been fired.
Gaono's DNA and fingerprints were found on the rifle. The scope of the rifle contained a mixture of DNA from four people, including Gaono, Taeotui, and Compre and a fourth, unidentified person. The wooden portion of the rifle contained a mixture of DNA from Gaono, Taeotui, Compre, Randy Seau, and Sala Toluao. Gaono's left thumb print was found on the scope of the rifle. Police identified other fingerprints on the rifle as Gaono's, as well.
Taeotui's DNA was found on the handle of the .22 caliber revolver. Officers found a sock that contained 146 .22 caliber bullets in a closet in Taeotui's living room.
Officers found a nine-millimeter cartridge in the pocket of a pair of Compre's shorts. They also found a box of nine-millimeter ammunition wrapped in a black bandana behind a dryer in Compre's garage. Compre's fingerprints were on the box.
In March 2008, a resident of the house behind Compre's residence found a nine-millimeter handgun wrapped in a blue shirt near the fence that divided his yard from Compre's yard. The gun was covered in cobwebs and dirt, and appeared to have been there for a while. Investigators found no fingerprints or any testable DNA samples on the handgun. However, testing revealed that the nine-millimeter shell casing found in front of Compre's house after the shooting had been ejected from the handgun that was found behind Compre's house.
Samples of DNA taken from cigarette butts that were found in front of 622 Arthur Avenue matched DNA from Gaono, Taeotui, and Randy Seau.
A criminalist determined that the bullet that killed Officer Bessant was fired from the .22 caliber scoped rifle. The seven casings recovered from the area had been expended from that rifle.
On the basis of tests that were conducted to determine the "drop distance" of a bullet fired from the rifle at a target 386 feet away, the examiner concluded that the rifle had been aimed at Bessant's head. The criminalist also explained that a nine-millimeter firearm makes a much louder sound than a .22 caliber firearm. In addition, although there is a subtle difference between the sounds made by a .22 caliber revolver and the sounds made by a .22 caliber rifle, any difference would be "masked" if they were fired simultaneously.
The distance between the mailbox in front of 622 Arthur Avenue and Officer Bessant's location at the time he was hit was approximately 386 feet.
5. Gang evidence
Oceanside Police Detective Gordon Govier testified that the WDVB gang is a criminal street gang that has nearly 100 documented members and/or associates. Govier testified that the gang's primary activities include murder, attempted murder, assault with deadly weapon, robbery, carjacking, burglary, illegal possession of firearms, drug sales, and vandalism.
Gaono associated with members of the WDVB criminal street gang and appeared to be a member of the gang. Police had identified Gaono as a WDVB gang member in December 2006.
Govier testified that in his opinion, the shooting was committed for the benefit of the WDVB gang. According to Govier, younger members of the gang, such as Taeotui, Gaono and Compre, would increase their status in the gang by shooting at a police officer. Such younger members tended to look for opportunities to earn higher status in the gang or to prove themselves.
6. Gaono's statements to police
We discuss the details of Gaono's interviews with police more thoroughly in part III.A., post. We provide here an abbreviated version of the most relevant portions of Gaono's statements that were admitted at trial.
Gaono spoke with police detectives at the police station for many hours overnight on the night of the shooting. In addition, Gaono led detectives on a walkthrough of his residence in the early morning hours the day after the shooting. Detectives also visited Gaono while he was in juvenile hall on December 22 and 23. Detectives did not question Gaono on December 22 because he asked to have his mother present before answering any questions. A detective returned the following day with Gaono's grandmother, and then talked with Gaono about the shooting of Officer Bessant.
Prior to trial, pursuant to a pretrial motion to suppress, the trial court excluded some of the statements that Gaono made to detectives during certain portions of the interviews. However, the court permitted the prosecution to introduce the tape recordings and transcripts of other portions of Gaono's interviews. Among the statements that the court allowed in evidence were statements that Gaono made at approximately 3:30 a.m. on December 21, to the effect that he had been drinking beer that day in the park, and that he had picked up the guitar case that contained the rifle for protection while he walked around to sober up. Gaono stated that when he saw the police officers near Arthur Avenue, he was scared that they would arrest him for being intoxicated, so he pulled out the rifle and a .22 caliber handgun and fired at both of the officers simultaneously. After firing at the officers, Gaono ran home.
On December 23, at juvenile hall, Gaono told a detective that he fired the rifle at Officer Bessant while standing near the mailbox at 622 Arthur Avenue, that Jose Compre had fired the nine-millimeter handgun, and that another individual whom Gaono did not name had fired the .22 caliber handgun. B. Procedural background
At this point in the investigation, no one had identified Taeotui as having been involved in the shooting.
On January 23, 2009, the district attorney filed a second amended information charging Gaono with first-degree murder of Officer Bessant, a police officer (Pen. Code, § 187, subd. (a); count 1), committed while lying in wait (§ 189). The information also alleged special circumstances, including that Gaono intentionally and knowingly killed a peace officer engaged in the performance of his duties (§ 190.2, subd. (a)(7)); knowingly murdered a peace officer while the officer was engaged in the performance of his duties (§ 190, subd. (b)); intentionally killed a police officer (§ 190, subd. (c)(1)); personally used a firearm during the commission of the murder of a peace officer engaged in the performance of his duties (§ 190, subd. (c)(4)); committed the crime for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)); intentionally and personally discharged a firearm, causing death (§ 12022.53, subd. (d)); and personally used a firearm (§ 12022.5, subd. (a)).
Further statutory references are to the Penal Code unless otherwise indicated.
The information also charged Gaono with assault with a firearm on a peace officer engaged in the performance of her duties with respect to Officer Pina. (§ 245, subd. (d)(1); count 2.). The information alleged that during the commission of count 2, Gaono intentionally and personally discharged a firearm (§ 12022.53, subd. (c)), and that Gaono committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)).
Finally, the information charged Gaono with assault with a semiautomatic firearm as to Castaneda (§ 245, subd. (b); count 3), and alleged that Gaono personally used a firearm in the commission of this offense (§ 12022.5, subd. (a)) and committed the offense for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)(1)).
On April 20, 2009, a jury found Gaono guilty of first-degree murder while lying in wait as alleged in count 1, and also found true the corresponding special circumstance allegations. The jury also found Gaono guilty on count 2, and found true the corresponding enhancement allegations. The jury acquitted Gaono on count 3.
On June 4, 2009, the trial court sentenced Gaono to a total of 61 years plus life without the possibility of parole. On June 23, Gaono filed an amended notice of appeal.
III.
DISCUSSION
A. The trial court did not err in admitting portions of Gaono's statements to police
1. Additional background
a. The relevant interviews
At approximately 8:30 p.m. on the night of the shooting, police officers who were outside of Gaono's house investigating the shooting noticed activity in the home, and also noticed that the front door was open. Officers ordered Gaono's aunt and uncle, Lola and Tele, as well as Gaono, out of the house. Once all three were outside, the officers handcuffed them for the purpose of securing the officers' safety. Gaono was wearing shorts, but was otherwise unclothed and was not wearing shoes. A police officer offered Gaono a blanket, and also repositioned Gaono's handcuffs to allow his arms to be in front of him, so that he would be more comfortable. Gaono was told that he could sit in a heated patrol car. Gaono initially refused this offer, but later accepted. At around 10:30 p.m., Gaono agreed to go to police headquarters to be interviewed. Officers were not sure at that point whether Gaono was a witness or a suspect.
i. The midnight interview
Gaono, Lola and Tele were transported to the police department, where they waited in the lobby with other people who were also waiting to be interviewed. Detective Brown had told Gaono that he was not under arrest and had taken off Gaono's handcuffs, explaining to him that the handcuffs had been used only as a precaution, to ensure officer safety.
At around 12:00 a.m., Detective Brown and Detective Jeff Novak placed Gaono in an interview room. The room contained a table with one chair on one side, and two chairs on the opposite side. The room was equipped with a video camera that recorded the interview.
Detectives Brown and Novak began the interview by asking Gaono about his residence and who else lived there, and then asking him what he had been doing, and where he had been earlier in the day and into the evening. Gaono told the detectives that after he left school at about 1:30 p.m., he had gone to a nearby park, and that he had returned home at around 5:30 p.m. Gaono claimed that he had not been aware of the shooting that took place on his street until he went outside to get firewood. At that time, Gaono said, he noticed a police helicopter circling above the neighborhood. Gaono told the detectives that he did not see anyone out and about, and that he had not seen anything going on.
ii. The two-hour break
After approximately 45 minutes, Detectives Brown and Novak left the interview to attend a briefing on the case. While Brown and Novak were attending the briefing, Detective Karen Priem stayed with Gaono in the interview room. Gaono asked Priem whether he could leave the police station, and she responded that because he was 17 years old, she could not let him leave alone. Gaono asked whether his mother was still at the station, and indicated that he wanted to leave. Detective Priem responded that she did not "know what the status is," and asked him to "hang in there for [her]." She encouraged him to rest while they waited.
Although Gaono appears to have been discussing his aunt, Lola, he often referred to her as his "mom" or "mother."
iii. The 2:40 a.m. statements
Detective Brown returned to the interview room just before 2:40 a.m. At the briefing, Brown learned that a witness had informed police that he believed he had seen a person running into Gaono's house carrying a long object. The witness said that the person whom the witness saw running into the house was "the kid that lives there." Detective Brown reinitiated his interview of Gaono, and asked Gaono to go over again what Gaono had been doing earlier in the day on December 20. After Gaono related a number of details about what he had done that day, Detective Brown asked Gaono if he knew why they would be asking him questions that they already know the answers to. Gaono responded, "To see if I was telling the truth." Detective Brown indicated that there were some things that Gaono was telling the detectives that did not make sense, and asked Gaono to clear those things up. Detective Brown told Gaono that other people had seen what had happened and had picked Gaono out of a photographic lineup. The following exchange then took place:
"Det. Brown: [¶] . . . [¶] You've told us a lot of things that aren't true. Now's your chance to tell us what is true. Tell us why this all
went down, why this happened, rather than let us go with what it looks like.
"Meki Gaono: I just want to go home, man.
"Det. Brown: I understand. But you made a mistake. And you're not telling us the truth. You—you saw all the people that are out there; right? Okay? We're at your house right now. We found some things. Okay? And we've taken statements from witnesses that saw it go down.
"[¶] . . . [¶]
"Do you want to tell us what really happened instead of the lies? Tell us what happened.
"Meki Gaono: I was just standing down the street. I was drunk. (Inaudible.) I don't even know what I was thinking. I was just running back home. (Inaudible.)"
Gaono proceeded to tell the detectives that he had run down the street carrying two guns, a .22 caliber rifle and a .22 caliber revolver, and that he had put at least one of the guns in the shed in his yard. Gaono said that he been carrying the guns in a guitar case because he was scared of Crips and of other people who had been messing with him at school. Gaono initially said that when he saw the police cars, he aimed and shot in the air, but later admitted that he had aimed "at the officer," whom Gaono thought was "pulling [him] over." The detectives continued to talk with Gaono and ask him more questions about his story and the events of that night. At some point Detective Novak left the room. When he returned, he asked for Detective Brown's help outside the room.
iv. The post-Miranda 3:30 a.m. statements
At approximately 3:30 a.m., Detectives Novak and Brown returned to the interview room. At that point, Detective Brown read Gaono his Miranda rights. Gaono agreed to continue talking with the detectives. Gaono asked whether the officer who had been shot was "okay." Detective Brown told Gaono that he did not know the status of the officer. Gaono also said that he wanted Detective Brown to "know that [he was] really sorry."
Detective Brown then asked Gaono to tell them what had happened, from the beginning. Gaono reiterated that he had been drunk, that he saw the police car, and that he saw a police officer walking back and forth between two cars. Gaono fired the rifle first, in the direction of the officer. He fired a total of four to six shots, using both the rifle and a gun that he had in his pocket. Afterward, he started running home.
v. The videotaped walkthrough of Gaono's residence
At 5:06 a.m., Detective Brown took Gaono to Gaono's residence and videotaped Gaono while he guided police on a walkthrough of the house and a shed in the backyard. Gaono pointed out where he had put the rifle and the .22-caliber revolver, and also pointed out the location of the clothes that he had been wearing at the time Officer Bessant was shot.
The officers and Gaono returned to the police station at approximately 6:20 a.m., after which Gaono was arrested and taken to juvenile hall.
vi. The December 22 interview
On December 22, Detectives Brown and Sylvia O'Brien went to juvenile hall to conduct a follow-up interview with Gaono. Gaono was aware by this time that Jose Compre had been arrested and that Compre was also in custody at juvenile hall.
Brown told Gaono that other people had told the police things that made Gaono "look really bad." Brown said that he wanted to talk to Gaono about "all the things that came up." Brown then read Gaono his Miranda rights.
Despite Brown's efforts to encourage Gaono to talk with the detectives, Gaono told them that he was not willing to speak with them until his "mom or father get here."A little bit later, Gaono said that he could not "talk about anything until my parents get here or until I have both of my parents present or my lawyer." Detective O'Brien asked Gaono whether he would be willing to speak with the detectives if they came back with Pua, Gaono's grandfather's wife. Gaono indicated that he would speak to the detectives if Pua came with them when they returned. At this point, Brown ended the interview.
The transcript of the interview uses the words, "Until mom or mother get here," but from the recording of the interview it appears that Gaono says "Until my mom or father get here."
It appears that Gaono referred to both his Aunt Lola, and his grandfather's wife, Pua, as his "mother."
vii. The December 23 interview
At just after 8:00 a.m. on December 23, Detectives Brown and O'Brien returned to juvenile hall. O'Brien had picked up Pua Gaono, and she accompanied the detectives to the interview room. After Gaono was brought into the room, he and Pua spoke briefly in both Samoan and English. At one point, Pua said, "Are you sure? That's your choice." She also said to him, "Make sure you're making the right choice, Meki. Make sure you're making the right choice. I'm here for you, and your dad, he is here for you. You know, okay—so tell them."
Detective Brown started to tell both Gaono and Pua what he wanted to talk with Gaono about, and said that he wanted to clear up some information. He then said, "And just so your mom hears it, I don't want her to think and I don't want you to think that I'm pulling anything over your eyes. You already know this is no big deal. Let her know." At this point, Detective Brown again read Gaono his Miranda rights.
Gaono told Brown that he and a few other guys had been drinking in front of Compre's house near the mailbox when the group saw a police car pull over a vehicle. Gaono said that he "had the rifle" and began shooting toward the police cars. Gaono fired approximately five or six times. He heard other gunshots, as well. After shooting the rifle, Gaono put it back into a bag and ran home. When he arrived at his residence, he put the rifle in a shed in the backyard.
Gaono admitted knowing that someone else had a .22 caliber revolver at the time the officer was shot, but he would not say who that person was. He implicated Compre as the person who had shot the nine-millimeter handgun.
b. The suppression hearings
The trial court heard argument from the parties during two hearings, the preliminary hearing and a subsequent hearing, regarding Gaono's motion to suppress the statements that he made to police officers. Gaono challenged the admissibility of the statements that he made during four interviews: (1) the late December 20/early December 21 interview at the police station; (2) the videotaped walkthrough of Gaono's residence, narrated by Gaono; (3) the attempted postarrest interview at juvenile hall on December 22; and (4) the interview at juvenile hall on December 23. Gaono contended that the interviews violated his Fifth and Fourteenth Amendment rights, on the grounds that his statements were coerced and that officers had violated his rights under Miranda, supra,384 U.S. 436 and Seibert, supra, 542 U.S. 600. Gaono's argument that his statements were coerced was based on a number of his personal characteristics, including the fact that he was young, unsophisticated, mostly undressed, cold, and sleep-deprived, and also the context in which the interviews took place, including that he had been that he had been subjected to lengthy interrogations during which the detectives employed a number of coercive interrogation techniques.
At the preliminary hearing, the prosecutor asked Detective Brown what he knew about 680 Arthur Avenue when, on the night Officer Bessant was shot, he received an assignment to meet with Escondido officers who were with the residents of 680 Arthur Avenue. Detective Brown said that he "knew a witness had possibly seen somebody run from the area where they believed the shooting was committed from, possibly into that residence carrying a long object," but that he had no other information. When Brown met with the witnesses, he noticed that they were all handcuffed, so he called the station to determine whether the individuals were witnesses or suspects. Detective Brown was told that all three were witnesses, and that he should treat them as witnesses.
Detective Brown, who was going to transport Gaono to the police station, took off Gaono's handcuffs and "asked him if he understood why the handcuffs had been put on him, that they were for safety purposes only." Gaono indicated that he understood. Brown then informed Gaono that he was not under arrest, but that the police wanted to speak with him at the station, if he would agree to go. Gaono said that he understood that he was not under arrest, and agreed to go to the station to be interviewed.
Detective Brown testified about the logistics and circumstances of his interview of Gaono on the night that Officer Bessant was shot and into the next morning, including what transpired when he left the interview room after approximately 40 minutes to attend a briefing. When asked whether he knew "Mr. Gaono had been identified as the person a witness had seen going into 680 Arthur after the shooting," Brown said, "I don't know that [that] was where he was identified. I know that people had mentioned he lived there, and I knew that it was a possibility that he could have been the person that ran in there." After a few follow-up questions to which objections were sustained, the prosecutor asked Brown, "At the time you were coming back into the interview room after you had the briefing conference—you're returning from the break in other words—had anybody identified or told you that Mr. Gaono had been identified as the person who was seen running into 680? Had that information been given?" Detective Brown responded, "Not identified. Just that he met the description of the person seen running in there."
The prosecutor then asked Detective Brown about Gaono's statement, "I just want to go home, man." Specifically, the prosecutor asked Detective Brown if he remembered an earlier conversation with the prosecutor during which the prosecutor inquired as to why Brown had continued to question Gaono after Gaono told Brown that he wanted to go home, and what his reaction had been to the prosecutor's inquiry. Detective Brown said, "Yeah. I remember I was really upset. I was actually upset at you for saying that. I thought you were dead wrong, and I was 100 percent convinced that that never happened." According to Detective Brown, in response to being shown a transcript of the interview, he had been "very surprised" because he "didn't think there was any way in heck that could have happened." When asked what he believed had occurred, why he was shocked, and how he could have continued asking Gaono questions after Gaono said that he wanted to go home, Detective Brown answered, "After having read the transcript and actually view[ing] the video of that occurring, I knew exactly what happened. It was obvious to me from watching what was going on and hearing what was being said, it was obvious my ears heard something being said, but I was in the middle—I distinctly remember being in the middle of a thought and it didn't register what the words were said [sic]. It's kind of like when you're doing something, watching TV or something and your family, you know, interrupts and asks you a question and you answer that and later they bring that up and you have no idea that it occurred because you really weren't paying attention to what they said."
The prosecutor also asked Detective Brown about the timing of his advising Gaono of his Miranda rights. After asking Detective Brown questions about his and
Detective Novak's leaving the interview room and later returning, the prosecutor asked, "Now, why did you admonish Mr. Gaono at that time?" Brown responded, "Because I recognized based on his admissions and what we knew at that point that he was going to be arrested. There was no if's, ands, or buts, and that would require me to Mirandize him in order to continue talking to him."
Defense counsel also questioned Detective Brown about Gaono's statement, "I just want to go home," on cross examination. During that examination, the following colloquy occurred:
"Q. It [i.e., Gaono's statement about going home] was of sufficient significance that it made you upset that you missed it, correct?
"A. I believe it could be of possible significance, and I would have addressed things a little bit differently had I been aware of that.
"Q. Because you know that when you're telling somebody that they're free to leave and they're not in custody and you're taking statements from them, you know that when they say things like 'I want an attorney' or 'I want to leave' or 'I want to end this interview,' you have to abide by those things, correct?
"A. That's correct.
"Q. And you're trained in that. You know this stuff, right?
"A. Yes, sir.
"[¶] . . . [¶]
"Q. Well, we gave the court a copy of the transcript and the tapes. But your response is similar to 'I just want to go home, man.' You say, "I understand'; is that correct?
"A. That's what I said, yes.
"Q. So your mind was somewhere else, but you said you understood?
"A. I said that. Having viewed it, I believe I was in the middle of a thought, and it was, 'Hang on. Let me complete what I'm thinking here.' "
Defense counsel asked Detective Brown some other questions about the interview, and pointed out some of the incriminating statements that Gaono had made. Counsel then asked, "[W]ell, let me ask you. Just at that point [after Gaono had said he 'was just aiming and shooting']—wow, did it occur to you at that point that maybe I need to read him his rights because—did it occur to you?" Brown answered, "Not at that point because I don't make arrests until I corroborate a confession."
Upon further inquiry by defense counsel, Detective Brown acknowledged that one of the reasons that he and Detective O'Brien wanted to interview Gaono on December 22 at juvenile hall was because "there may have been a problem with the [original] interview."
A few days later, the trial court heard argument from the attorneys concerning whether some or all of the statements that Gaono made to police should be suppressed. Defense counsel argued that the statements that Gaono made in the early morning hours of December 21 were coerced and involuntary, and that the detectives had engaged in a deliberate two-step interrogation process that violated Siebert when they first obtained incriminating statements from Gaono, read him his Miranda rights only after obtaining the statements, and then proceeded to obtain additional incriminating statements after having advised Gaono of his rights. Defense counsel argued that the incriminating statements that Gaono made on December 23 were also obtained in violation of Seibert, and further argued that Gaono had invoked his right to silence and to an attorney on the day before this interview took place, when he asked for his parents or a lawyer.
During the discussion among the court and the attorneys, it became clear that the prosecution was not seeking to introduce Gaono's 2:40 a.m. statements, from the time that Gaono said, "I just want to go home, man," until Detective Brown advised Gaono of his rights under Miranda. With respect to Gaono's other statements, the prosecutor argued that there was no evidence that Gaono had been coerced into making the statements. The prosecutor cited the fact that Gaono was not handcuffed when he made the statements, that he was offered blankets, food, and drinks, and that he was allowed to use the restroom and to sleep. In addition, the prosecutor noted that Gaono had not complained of discomfort during the interviews. At one point during the interviews, just before Detectives Novak and Brown took a break, Gaono even asked whether he could continue talking with them when they returned.
The trial court delivered its initial ruling on the suppression motion at the preliminary hearing. The trial court noted that it had reviewed the transcripts and both video and audio recordings, in addition to having read the parties' motion papers. The court concluded that none of the statements that Gaono made to police at the police station on December 21 were coerced or involuntary. The trial court determined that Gaono was not in custody until he asked Detective Priem whether he could go home. The court ruled that all of the statements that Gaono made during the 2:40 a.m. interview, up to the time that Detective Brown advised Gaono of his Miranda rights, were obtained in violation of Miranda, and had to be excluded. The court also excluded the videotape of Gaono's walkthrough of his house and the statements that he made during the walkthrough, as well as any statements that he made after the walkthrough.
Finally, with respect to Gaono's December 21 statements, the court found that Detective Brown had acted in good faith and that he had not intentionally violated Miranda, nor deliberately conducted a two-step interrogation in order to avoid Miranda, when he obtained incriminating statements from Gaono before advising him of his rights. For example, the court said, "[W]hen Detective Brown makes the statement, 'I understand,' I think he made that statement. There's no doubt that he made it. It's on the tape and I heard it. I also believe him when he says it [i.e. Gaono's request to go home] simply did not register with him, and that sort of makes sense when I know how long he's been up and your client has also been up the same amount of time. I have to put that into context when he maybe gets confused and says things. But I believe Detective Brown, and it did not register with him, even though he responded to it. My experience in life is you say things all the time like that. Someone says something that's very important, and we say, 'Yeah, fine.' The next thing, you promised to buy your wife something, and you didn't listen to her when she was asking about it. It's one of those things that happens. That's what brings me to the good faith or objective test with Seibert." The trial court later reiterated this conclusion, stating:
"Well, I still see it the way I saw it before. . . . [W]hat does this word 'deliberate' as used in these cases mean? And I think it means more than they just did something intentional. Deliberate means they want to avoid Miranda. And I do believe Detective Brown when he says it came as a complete surprise to him when he was told
that, about page 100, Mr. Gaono had said: 'I just want to go home, man,' and he responded: 'I understand.' I am very cognizant of the fact that both Mr. Gaono and the officers have been up a long time. Frankly, I have seen it in the courtroom towards the end of every long session. The attorneys start to misspeak, and they get tired, and even you admit you are tired. And so the fact he heard the words and said 'I understand,' but they didn't register does not frankly shock me at all. [¶] . . . I will not change my ruling from the tentative ruling."
With respect to the interviews on December 22 and 23, the court found that there was no Seibert problem, in view of the significant lapse in time between the interviews, and because these interviews took place at a location different from the location where the initial interview was conducted. The court also determined that on December 22, Gaono had not asked for a lawyer, but indicated only that he wanted to remain silent at that time. Further, as to the December 22 interview, the court found that there was nothing improper about Detective O'Brien's attempt to "clea[r] up an ambiguous statement" by asking Gaono whether he was requesting that his mother be present when he seemed to be asking for his stepgrandmother or his parents. In addition, the court determined that as to both of the interviews that took place at juvenile hall, the detectives' Miranda warnings were legally sufficient.
After holding a hearing on Gaono's renewed suppression motion, the trial court reaffirmed its earlier findings and rulings with respect to the admissibility of Gaono's statements to police. Thus, at trial, the court prohibited the prosecution from introducing the statements that Gaono made to police during the 2:40 a.m. interview, up until the time that Gaono was advised of his Miranda rights at around 3:30 a.m., as well as the videotaped walkthrough of Gaono's home and the statements that Gaono made during the walkthrough.
2. Analysis
"Miranda requires courts in criminal cases to exclude, at least from the prosecution's case-in-chief, self-incriminatory statements made by the accused during custodial interrogation unless the accused has knowingly and voluntarily waived the Fifth Amendment privilege against self-incrimination, which in this context includes the rights to silence and the assistance of counsel. [Citations.]" (People v. Lessie (2010) 47 Cal.4th 1152, 1156.) " 'Thus two requirements must be met before Miranda is applicable; the suspect must be in "custody," and the questioning must meet the legal definition of "interrogation." ' [Citation.] The prosecution has the burden of proving that a custodial interrogation did not take place. [Citation.] [¶] A person is in custody for purposes of Miranda if he is 'deprived of his freedom in any significant way or is led to believe, as a reasonable person, that he is so deprived.' [Citation.] 'Interrogation consists of express questioning or of words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.' [Citations.]" (People v. Whitfield(1996) 46 Cal.App.4th 947, 953.)
"The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
a. The initial statements, prior to 2:40 a.m. on December 21
The trial court ruled that the prosecution would be permitted to introduce Gaono's initial statements to police because Gaono was not in custody until some point during the two-hour break, when Detectives Novak and Brown were attending a briefing on the case. Gaono contends that the trial court's determination concerning at what point the interview became custodial (i.e., during that break) was erroneous, and that he was "in custody" from the time he was ordered out of his residence on the night of December 20.
The requirements of Miranda apply only to a custodial interrogation. (People v. Morris (1991) 53 Cal.3d 152, 197.) In People v. Ochoa (1998) 19 Cal.4th 353 (Ochoa), the California Supreme Court outlined the standard of review that applies to a defendant's claim that he was in custody for purposes of determining whether Miranda advisements were required:
"The question whether defendant was in custody for Miranda purposes is a mixed question of law and fact. [Citation.] 'Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once the scene is . . . reconstructed, the court must apply an objective test to resolve 'the ultimate inquiry": "[was] there a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." [Citations.] The first inquiry, all agree, is distinctly factual. . . . The second inquiry, however, calls for application of the controlling legal standard to the historical facts. This ultimate determination . . . presents a "mixed question of law and fact" . . . .' [Citation.] Accordingly, we apply a deferential substantial evidence standard [citation] to the trial court's conclusions regarding ' "basic, primary, or historical facts: facts 'in the sense of recital of external events and the credibility of their narrators . . . .' " ' [Citation.] Having determined the propriety of the court's findings under that standard, we independently decide whether 'a reasonable person
[would] have felt he or she was not at liberty to terminate the interrogation and leave.' [Citation.]" (Ochoa, supra, at pp. 401-402.)
We conclude that the facts, as found by the trial court, demonstrate that it was not until Gaono asked to leave the police station and this request was denied that the interrogation became custodial. Prior to the time that Gaono asked whether he could go home, which occurred while Detective Priem was sitting in the interview room with Gaono and Detectives Novak and Brown were at the briefing, Gaono had been told a number of times that he was not under arrest, and was otherwise treated as a witness. In fact, although Gaono had originally been handcuffed, once Detective Brown was told that Gaono was to be treated as a witness, Brown removed the handcuffs and explained to Gaono that the handcuffs had been used only as a precaution to ensure officer safety. Brown reiterated at that time that Gaono was not under arrest. Detective Brown asked Gaono whether he would be willing to talk with police at the station, and Gaono voluntarily consented to do so. As noted above, after Gaono was taken to the police station for an interview, he was informed that he was free to go home. This did not change until Gaono asked whether he could go home and was told by Detective Priem that he would have to wait until his mother or another adult could take him home. We therefore conclude that the trial court correctly determined that Gaono's initial interview with detectives at the police station, prior to the break when the detectives left to attend the briefing, was not a custodial interrogation, and that the trial court thus did not err in declining to suppress the statements that Gaono made to police during the initial interview.
b. Gaono's post-Miranda statements made after 3:30 a.m.
Gaono next contends that the trial court should have excluded the statements that he made to Detectives Brown and Novak after the interrogation became custodial and after he was advised of his Miranda rights because, he asserts, "Detective Brown deliberately undermined Miranda with a two-step interrogation tactic." Gaono relies on Seibert, supra, 542 U.S 600, to support this contention.
In Seibert, an officer "testified that he made a 'conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question 'until I get the answer that she's already provided once.' " (Seibert, supra, 542 U.S. at pp. 605-606, plur. opn. of Souter, J.) Employing this "question-first practice," the interrogating officer left the defendant alone in an interview room at the police station for 15 to 20 minutes, then "questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating" an accusatory remark. (Id. at pp. 604-605, 611.) After the defendant confessed and was given a 20-minute break, the officer read her the Miranda warnings, resumed the questioning by mentioning their previous conversation, "and confronted her with her prewarning statements." (Id. at p. 605.)
A divided Supreme Court held that the defendant's postwarning statements were inadmissible. (Seibert, supra, 542 U.S. at pp. 617, 622, conc. opn. of Kennedy, J.) Justice Souter's plurality opinion questioned the validity of the police tactic of "question first, warn later," and concluded that this tactic could undermine the very purpose of the Miranda warnings. The plurality focused on whether "it would be reasonable to find that in these circumstances the warnings could function 'effectively' as Miranda requires," (id. at pp. 611-612, plur. opn. of Souter, J.) noting that giving Miranda warnings midstream "without expressly excepting the statement just given, could lead to an entirely reasonable inference that what [the accused] has just said will be used, with subsequent silence being of no avail." (Id. at p. 613.) The plurality stated that the circumstances of the second confession in Seibert did not "reasonably support a conclusion that the [Miranda]warnings given could have served their purpose [to reduce the risk of admitting coerced confessions]." (Id. at p. 617.)
Justice Kennedy, who concurred in the result of the plurality opinion, expressed his view that the test that the plurality stated, which "envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations," was too broad. (Seibert, supra, 542 U.S. at pp. 621-622, conc. opn. of Kennedy, J.) Justice Kennedy noted that in Oregon v. Elstad (1985) 470 U.S. 298, the court held that "the postwarning statements could be introduced against the accused because 'neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression' given the facts of that case." (Seibert, supra, at pp. 619-620, conc. opn. of Kennedy, J.) With these dual goals in mind, Justice Kennedy observed that a deliberate two-step technique intended to violate Miranda did "not serve any legitimate objectives" and presented inherent temptations for police abuse. (Id. at pp. 620-621.) Justice Kennedy concluded:
"I would apply a narrower test applicable only in the infrequent case . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." (Id. at p. 622.)
"If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. [Citations.] Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient." (Seibert, supra, 542 U.S. at p. 622, conc. opn. of Kennedy, J.)
Because Justice Kennedy "concurred in the judgment[] on the narrowest grounds" (Marks v. United States (1977) 430 U.S. 188, 193), "his concurring opinion represents the Seibert holding." (People v. Camino (2010) 188 Cal.App.4th 1359, 1370 (Camino).)
"Justice Kennedy did not articulate how a court should determine whether an interrogator used a deliberate two-step strategy." (United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1158 (Williams).)The Williams court suggested that "courts should consider whether objective evidence and any available subjective evidence, such as an officer's testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning." (Ibid.)"Such objective evidence would include the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and postwarning statements." (Id. at p. 1159.)
It is not clear what standard of review applies to a trial court's determination that law enforcement's use of a two-step interrogation was not deliberate. (See Camino, supra, 188 Cal.App.4th at p. 1371.) At least one court—the Camino court—has concluded that "the trial court's determination of deliberateness is a factual finding entitled to deference." (See id. at p. 1372.) Under this standard, a reviewing court is bound by the trial court's factual findings if they are supported by substantial evidence. (Ibid.)
Here, there is substantial evidence supporting the trial court's determination that the detectives, and in particular, Detective Brown, did not deliberately employ a two-step technique in questioning Gaono. Brown testified that he was treating Gaono as a witness and that he did not advise Gaono of his Miranda rights until he knew that Gaono was a suspect and was going to be formally detained. In addition, Brown testified that it simply did not register with him that Gaono had said that he wanted to go home. Brown's statements about how he might have missed Gaono's request to go home—statements that the trial court found to be credible—constitute substantial evidence in the record to support the trial court's finding. Further, the transcript and videotape of the interview demonstrate that the objective indications support the trial court's determination. First, when the detectives initially brought Gaono to the police station, they had very little information about what other witnesses had said about the shooting or the events surrounding the shooting. Brown had been told that Gaono was to be treated as a witness, and every indication is that Brown followed that directive.
Further, Gaono's initial statements to police, although confessionary in nature, did not necessarily make sense. It is clear from the transcript and Detective Brown's testimony that the detectives had doubts about Gaono's story at the time he made these statements. In effect, the initial portion of the interview, which occurred prior to the Miranda warnings, fell far short of a complete rendition of the circumstances surrounding the shooting of Officer Bessant, which Gaono gave only after having been advised of his Miranda rights. (Compare Seibert, supra, 542 U.S. at p. 616 (plur. opn. of Souter, J.) [when police were finished with the unwarned portion of the interrogation, "there was little, if anything, of incriminating potential left unsaid"].) In sum, the record does not indicate that the detectives deliberately delayed advising Gaono of his Miranda rights in order to elicit a confession from him. The trial court read all of the transcripts and watched the videotapes of the interviews. The court found Brown credible and determined that he had acted in good faith in the manner in which he advised Gaono of his Miranda rights—i.e., that Brown did so as soon as he felt that there was probable cause that Gaono had, in fact, been involved in the shooting and that Gaono would be taken into custody. That finding is supported by substantial evidence.
c. The police did not violate Miranda by reinitiating interviews with Gaono on December 22 and 23
Gaono contends that the detectives violated Miranda again by reinitiating the interrogation of Gaono after Gaono had invoked his right to silence "before and during the December 21 walkthrough." The basis of Gaono's assertion that he invoked his right to silence either before or during the December 21 walkthrough of his house is not clear. As far as we are able to discern, the only statement in the record on which Gaono may be relying is a question that Gaono posed to Detective Brown during the walkthrough, when Gaono asked Brown, "Do I still have the right to remain silent?" Detective Brown told Gaono that he did retain that right. After receiving this response to his question, Gaono continued to conduct the walkthrough. If this question is the basis of Gaono's contention that he invoked his right to remain silent, it is insufficient to support that contention. We therefore reject Gaono's claim that the officers violated Miranda by reinitiating the interrogation.
d. Gaono's statements were neither coerced nor involuntary
Gaono contends that the trial court should have excluded the confessions that he made in the early morning hours of December 21 because they were coerced, and therefore, involuntary. The trial court found that the inculpatory statements that Gaono made to detectives at the police station were not involuntary.
" 'It long has been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.] A statement is involuntary [citation] when, among other circumstances, it "was ' "extracted by any sort of threats . . . , [or] obtained by any direct or implied promises, however slight . . . . " ' " [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the "totality of [the] circumstances." [Citations.]' [Citation.]" (People v. Leonard (2007) 40 Cal.4th 1370, 1402 (Leonard).)
" 'Once a suspect has been properly advised of his [or her] rights, he [or she] may be questioned freely so long as the questioner does not threaten harm or falsely promise benefits. Questioning may include exchanges of information, summaries of evidence, outline of theories of events, confrontation with contradictory facts, even debate between police and suspect. . . . Yet in carrying out their interrogations the police must avoid threats of punishment for the suspect's failure to admit or confess particular facts and must avoid false promises of leniency as a reward for admission or confession. . . .' [Citation.]" (People v. Holloway (2004) 33 Cal.4th 96, 115 (Holloway).)
"'It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.] However, mere advice or exhortation by the police that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. . . . Thus, "[w]hen the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct," the subsequent statement will not be considered involuntarily made. [Citation.] On the other hand, "if . . . the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible . . . ." ' [Citations.]" (Holloway, supra, 33 Cal.4th at p. 115.)
"The test for determining whether a confession is voluntary is whether the questioned suspect's 'will was overborne at the time he confessed.' [Citation]" (People v. Cruz (2008) 44 Cal.4th 636, 669.) " 'A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions. [Citation.]' " (Ibid.)
"On appeal, we uphold the trial court's findings of historical fact, but we independently review its determination that defendant's statements were voluntary. [Citations.]" (Leonard, supra, 40 Cal.4th at pp. 1402-1403.)
Gaono argues that the factors that support his contention that his inculpatory statements were coerced include his age (17), his lack of familiarity with the criminal justice system, and the fact that he was ordered out of his house on the night of December 20 at gunpoint and was handcuffed and separated from his family. Gaono adds that he was interviewed during the middle of the night, for several hours, and that he had been unable to rest and was only partially clothed. He further notes that it is clear from the videotape of the walkthrough of his home that he was exhausted. In addition, Gaono points to the detectives' "suggestive statements," to the effect that his actions had been a "mistake," which, according to Gaono, implied that his conduct was not criminal and further implied that he would receive lenient treatment. Gaono complains that the detectives suggested that they could help him by saying good things about him to the prosecutor, and that the detectives mentioned someone else's 40-years-to-life sentence, implying that if he cooperated with them, he could receive a lesser sentence than that. Gaono notes that Detective Brown lied to him in telling him that someone had picked him out of a photographic lineup and that someone had identified Robert Seau as having been present at the time Officer Bessant was shot. All of this, Gaono contends, demonstrates that he was coerced into confessing.
We disagree with Gaono's conclusion. Although he was questioned under some unpleasant circumstances (i.e., for many hours, in the middle of the night, after having been ordered out of his house at gunpoint and handcuffed for a period of time), the substance of the interviews and the detectives' treatment of Gaono does not compel the conclusion that Gaono's will was overcome by police tactics when he confessed. Again, there must be " 'coercive police activity' " in order for a statement to be found to have been given involuntarily. (Leonard, supra, 40 Cal.4th at p. 1403, citation omitted.)
There is no evidence that the detectives made any express or implied threats toward Gaono. Rather, the officers treated Gaono with respect, offering him blankets, asking him how he was doing, offering him food, and suggesting that he try to rest. Further, despite Gaono's contention that the officers implied that he would receive lenient treatment if he were to confess, the statements of the detectives do not contain any promises of leniency, express or implied. Although the detectives attempted to appeal to Gaono's sense of morality, and repeatedly asked him to be honest, the detectives did not promise Gaono that he would receive more lenient treatment if he were to confess.
Detective Novak reminded Gaono that he had essentially no criminal history, noted that "he still had a chance" because he was a juvenile, and mentioned that the detectives could tell the district attorney that Gaono had been cooperative and honest. While these comments can be viewed as suggesting that Gaono might receive more lenient treatment if he agreed to speak with the detectives and answer their questions, the comments do not demonstrate that the detectives promised Gaono that he would receive some sort of beneficial treatment if he were to confess. Rather, Detective Novak was pointing out factors that were in Gaono's favor. Although the comments may have implied that Gaono might receive more lenient treatment if he were to confess, there was no promise, either express or implied, that Gaono would in fact receive more lenient treatment. Nor do the detectives' repeated requests of Gaono to tell them the truth constitute a coercive police tactic. " 'No constitutional principle forbids the suggestion by authorities that it is worse for a defendant to lie in light of overwhelming incriminating evidence.' [Citation.]" (People v. Williams (2010) 49 Cal.4th 405, 444.) "Absent improper threats or promises, law enforcement officers are permitted to urge that it would be better to tell the truth. [Citations.]" (Ibid., citing, e.g., People v. Carrington (2009) 47 Cal.4th 145, 171; People v. Hill (1967) 66 Cal.2d 536, 549 [" 'advice or exhortation by a police officer to an accused to "tell the truth"' or that "it would be better to tell the truth" unaccompanied by either a threat or a promise, does not render a subsequent confession involuntary' "], quoting People v. Nelson (1964) 224 Cal.App.2d 238, 250; and Amaya-Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486, 494 [finding no coercion in statements that " ' "the . . . [c]ourt system will not forgive your lies," ' " and an exhortation to the suspect to tell the truth if he wants to receive " ' "forgiveness" ' " (citations omitted)].)
The physical circumstances of the interrogation similarly were not coercive. Although the interrogation was lengthy, there were breaks in the questioning, and Gaono was offered food and drinks, and was permitted to use the restroom. (See People v. Jablonski (2006) 37 Cal.4th 774, 816 [factors supporting finding of voluntariness of confession include lack of denial of creature comforts, even during prolonged questioning, as well as absence of harsh or accusatory tone by interrogators].) In addition, the detectives maintained a respectful tone throughout the questioning, and did not display a harsh or accusatory tone. (Ibid.) As the trial court pointed out, at one point, when the detectives were leaving the interrogation room, Gaono actually asked the detectives whether he could continue to speak with them when they returned. This belies Gaono's contention on appeal that his statements to the detectives were involuntary.
We conclude that Gaono's statements at the police station were voluntary, and that they were not the product of police coercion. B. The trial court did not err in denying Gaono's motion for a mistrial based on Detective Brown's trial testimony
Gaono contends that the trial court erred in denying his motion for a mistrial on the ground that Detective Brown's trial testimony pertaining to Gaono's motion to exclude portions of his interviews with police differed materially from his testimony at the preliminary hearing. Specifically, according to Gaono, Detective Brown's testimony at trial differed from his earlier testimony with respect to the circumstances of the interrogation. Gaono argues that the difference in the testimony suggests that Brown deliberately violated Miranda under the holding of Seibert, and thus calls into question the trial court's findings of fact as to Brown's subjective intent during the interviews.
Gaono challenges the denial of his mistrial motion. We review the denial of a motion for mistrial for an abuse of discretion. (See People v. Slocum (1975) 52 Cal.App.3d 867, 884.) "A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged." (People v. Bolden (2002) 29 Cal.4th 515, 555.)
Gaono contends that Detective Brown's testimony at the preliminary hearing differed from his testimony at trial with respect to whether Brown knew, after he returned from the briefing, that a neighbor had identified Gaono as the person seen running into a nearby house carrying an item that appeared to be a rifle. Detective Brown testified at the preliminary hearing as follows:
"Q. Can you tell us why you left the interview room?A few minutes later, the questioning returned to this subject:
"A. To attend a briefing to see if anybody else had gathered any information that I was not aware of.
"Q. When you returned to the interview room after that break, did you know whether or not Mr. Gaono had been identified as the person a witness had seen going into 680 Arthur after the shooting?
"A. I don't know that I was [aware] he was identified. I know that people had mentioned he lived there, and I knew that it was a possibility that he could have been the person that ran in there.
"Q. Well, let me rephrase the question. Had anybody told you that Mr. Gaono had been identified as the person a witness had seen going into 680? Had that information been given to you?
"A. Was he seen running into the residence? I don't understand the question.
"Q. No, sir. You've indicated that there was a witness who had seen somebody run into 680 Arthur after the shooting, shortly after the shooting had occurred. Am I understanding that—is that correct?
"A. Yes.
"Q. Had anybody identified that person?
"[Objections made and sustained.] [¶] . . . [¶]
"Q. At the time you were coming back into the interview room after you had the briefing conference—you're returning from the break in other words—had anybody identified or told you that Mr. Gaono had been identified as the person who was seen running into 680? Had that information been given?
"A. Not identified. Just that he met the description of the person seen running in there."
"Q. And you know that there was a Samoan male adult who was running across the street with something in his arms heading towards the back of 680. You know that at this point, right?At trial, Detective Brown testified as follows:
"A. I know somebody possibly ran into that address meeting his general description carrying something long. That's what I knew at that point.
"Q. And you knew Meki Gaono lived at 680?
"A. Correct."
"Q. Now what information do you learn at the briefing that you did not have when you initially interviewed the defendant [Gaono]?
"A. I learned that a neighbor in the area across somewhere nearby 680 Arthur had identified the person seen running into that residence with what was believed to be a rifle as the kid that lives there."
Gaono also contends that Detective Brown's testimony differed with respect to whether Brown was treating Gaono as a suspect or as a witness during this interview. At the preliminary hearing, Brown testified that he removed the handcuffs from Gaono before transporting him to the police station because Brown had been told that Gaono was a witness, not a suspect. At trial, Brown gave essentially the same testimony, stating that he took the handcuffs off of Gaono because Gaono was a witness, not a suspect. However, in explaining why he sat in the back seat with Gaono on the way to the station, Brown stated:
"A. I know somebody has been seen running in the house that he apparently lives at carrying a rifle. I know I have a friend that's dead. I don't know if he knows who ran in that house and can provide information and he's a witness or he's in fact involved. Every police officer knows we want to go home. I was back there so that if he was in fact a suspect he couldn't hurt anybody on the ride to the police department. [¶] . . . [¶]
"A. . . . There's no cage in the car. If I would have rode in the front and pretended I had no concerns, he could reach up in the front seat, disarm me, take my weapon, and he could choke somebody. I didn't know if he was a suspect or a witness, and I wasn't willing to take that chance.
"Q. So sort of from the legal perspective he's a witness, but from your safety perspective you are going to be cautious, careful?
"A. Correct."
The third area of testimony about which Gaono complains pertains to Detective Brown's statements regarding Brown's subjective beliefs about Gaono's involvement in the crime. At trial, Detective Brown said the following with respect to his beliefs regarding Gaono's involvement in the shooting:
"Q. Now you indicated that based on this first interview you had concerns about what the defendant told you. What were the concerns?
"A. The concerns were we knew there were a lot of people out in that neighborhood when this event occurred. We knew somebody had run into that house carrying what was possibly a rifle. During his interview, when we allowed him to tell us what he was doing from 1:30 in the afternoon to when the police officers came and contacted him, . . . he said he saw absolutely no one out in the block during the time of the incident. He heard no shots. He didn't see anyone running. During that interview he told us that it was he, Tele and Lola were the only people that were in that house. So if he was telling me the truth, he would have said: There were people in the street, and I saw this person run into my house. This is who it is or this is what they looked like. That information didn't come out. He didn't know anything about the incident whatsoever is what he was telling me.
"Q. Did he, during that interview, take responsibility for any part in the murder?
"A. No.
"Q. Now was this a—I will use the term 'red flag,' as [defense counsel] said. Was this a red flag for you and Detective Novak?"
"A. It was a huge red flag."
"Q. At that point did you believe he may have been involved when you walked out of that room?
"A. I was a hundred percent convinced he was involved."
At the preliminary hearing, Detective Brown was not asked anything similar, and did not testify at that hearing concerning his beliefs, early in the interview, as to whether Gaono was involved in the shooting.
According to Gaono, the difference between Detective Brown's testimony at the preliminary hearing and his testimony at trial calls into question the trial court's determination at the hearing that Brown's failure to advise Gaono of his Miranda rights after Gaono asked to go home was an inadvertent mistake. However, the record makes clear that Detective Brown's testimony at the preliminary hearing and his testimony at trial was substantially similar—so similar, in fact, that the trial court had no reason to question its earlier rulings with respect to the admission of portions of Gaono's statements to police.
For example, with respect to what Detective Brown knew after he attended the briefing and before he returned to the interview room to continue his first interview with Gaono, Detective Brown essentially testified, both at the preliminary hearing and at trial, that he was aware that a witness had seen a person who looked like Gaono and who was carrying what appeared to be a rifle, run into Gaono's house. Although Brown used the word "identified" at trial, and did not use that word at the preliminary hearing, Detective Brown nevertheless indicated that at the hearing he had learned that someone had told police that an individual who matched Gaono's description had run into Gaono's house holding something that looked like a rifle. This was the pertinent information, and Brown's testimony was generally consistent in this regard from the preliminary hearing to the trial. The trial court thus did not abuse its discretion in determining that a mistrial was unnecessary based on this portion of Brown's trial testimony.
Defense counsel could have impeached Brown with the discrepancy between Brown's preliminary hearing testimony and his trial testimony regarding whether Gaono had been "identified" as a participant in the shooting at the briefing or not. However, this discrepancy in Brown's testimony did not provide grounds for a mistrial.
The same is true with respect to Detective Brown's testimony regarding whether, at the time of the first interview, he regarded Gaono as a witness or a suspect. The fact that Brown testified at trial that he took the precaution of sitting with Gaono in the backseat of the transport vehicle does not undermine Brown's testimony at the preliminary hearing and at trial that he had been told, and that he understood, that Gaono was to be treated as a witness. As Detective Brown explained, the fact that he was told to treat Gaono as a witness did not mean that police had determined that Gaono was not in fact involved in the shooting. Rather, it meant that there had been no determination at that point in time that Gaono had been involved in the shooting. Thus, the instruction that Gaono was to be treated as a witness did not eliminate the need for Brown to take precautions with respect to officer safety, particularly in view of the events of that day. Brown's testimony at trial and at the preliminary hearing was substantially consistent on this point; Brown maintained throughout his pretrial testimony and his trial testimony that he understood that when Gaono was first taken to the police station to be interviewed, he was to be treated as a witness. The court did not abuse its discretion in denying a mistrial based on Brown's testimony about his treatment of Gaono as a witness prior to Gaono's admission regarding his role in the shooting.
Finally, the fact that Detective Brown testified at trial regarding his increasing suspicion of Gaono based on what Gaono told Brown during the first interview, but did not testify to this effect at either the preliminary hearing or the later suppression motion hearing, similarly did not require that the court declare a mistrial. Detective Brown was not asked about his subjective impressions concerning Gaono's initial statements to police at the preliminary hearing or at the later hearing on Gaono's renewed suppression motion, so his trial testimony did not actually diverge in this regard from his pretrial testimony. Further, although Brown may have personally begun to question whether Gaono really was a witness, or instead, should be considered a suspect, he did not share these thoughts with Gaono, nor did he suggest to Gaono that Gaono was no longer free to leave. As far as Gaono knew, prior to the time that his request to the leave the station was denied, he was still there voluntarily, as a possible witness to an officer shooting, and was free to leave. The fact that Detective Brown may privately have begun to question whether Gaono was in fact merely a witness did not affect Gaono's subjective understanding of the situation, and in particular, whether he was or was not in custody. For this reason, whether Brown regarded Gaono as a witness, or instead, a suspect, did not impact when Brown was required to advise Gaono of his Miranda rights. Nor did it provide grounds for the court to revisit its earlier conclusion that Detective Brown had not deliberately engaged in a two-step interrogation process in order to circumvent Miranda. Although Brown's comments at trial suggest that as early as during his initial interview with Gaono, he started to question Gaono's status as a witness, Brown also testified that in general, his practice was not to make an arrest, even when there was a confession, without having some corroborating evidence to support the confession. The fact that Brown may have been suspicious of Gaono does not mean that he deliberately engaged in a two-step process in order to avoid advising Gaono of his Miranda rights. Rather, the evidence before the trial court still supported the court's earlier conclusion. The court thus did not abuse its discretion in denying Gaono's motion for a mistrial on the basis of Detective Brown's trial testimony. C. The trial court did not exclude the testimony of an expert witness for the defense; rather, defense counsel made a tactical decision not to call the expert to testify
The fact that an officer starts to suspect that a person is guilty of a crime is not the circumstance that triggers the requirement that an individual be advised of his rights under Miranda. Rather, the Miranda advisement is required when "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444.) Custody consists of a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest. (People v. Leonard (2007) 40 Cal.4th 1370, 1400; People v. Boyer (1989) 48 Cal.3d 247, 271.) When there has been no formal arrest, the question is how a reasonable person in the defendant's position would have understood his situation. (Boyer, at p. 272.)
Gaono contends that the trial court erred in excluding the testimony of Dr. Richard Leo concerning the fact that interviews conducted at a police station may be coercive in nature, and the reasons why a person might give a false confession during such an interview.
Prior to trial, defense counsel advised the trial court that he might call Dr. Leo as an expert to testify on the topic of coercive police interrogation techniques. The trial court mentioned to the attorneys during pretrial discussions that the court would be open to holding an Evidence Code section 402 hearing to determine whether to allow Dr. Leo to testify as an expert on coerced confessions. Although the prosecution requested that any such hearing be held prior to trial, defense counsel noted that Dr. Leo had not yet completed his work on the case.
Later, defense counsel offered the following update to the court:
"Here is where we are with Doctor Leo. I disclosed Doctor Leo. 1054 said I should. Whether or not I actually call Doctor Leo depends on the evidence that comes out. I think, after great consideration, there are mine fields, to be quite frankly honest with the court and counsel, and I am concerned there could be doors opened. I know that the People have expressed to me that they're concerned about keeping parameters as well, and we don't want testimony that goes far afield, which they feel is not right and so forth. [¶] I am in the position where I would be calling him as a general witness—as a witness, unless the court shuts me down, and I don't think the court will. The real purpose for him is, from my perspective, is that the general lay person, the general public, potential jurors may be of the opinion, oh, no one would confess ever unless something happened. He has experience in that regard. I would be calling him to act as a general witness, not as a witness who would be testifying regarding Meki's statements, or things that happened in this particular case, not about police reports. My concern is that things which clearly would not be relevant would suddenly become relevant to impeach him, and things would come in that shouldn't. That's sort of where I am."
Shortly thereafter, the trial inquired, "You don't know if you will call him yet?" Defense counsel responded, "I don't know if I will call him. I don't know that yet." The court and defense counsel proceeded to discuss whether it would be appropriate under the law to allow Dr. Leo to testify on the issue of coerced confessions in a general manner, and not with respect to the particular facts of this case. Defense counsel indicated that his intention was to call Dr. Leo to testify only as to general factors related to coerced confessions, and not as to the facts of the case. The court then said, "I am probably thinking way ahead of where I have to think on this, but I would think that if he was allowed to testify as to some of these factors, and some of them he may not be because, but if he does that, I think maybe the People would want to play the entire tape with Mr. Gaono because I know at the end of the tape, if my memory is correct, he even asked to shake the detective's hand, which to me was [a] very powerful indication that this was not a coerced confession."
A few days later, the prosecution filed a motion to exclude or limit Dr. Leo's testimony, arguing that (1) Dr. Leo's testimony lacked sufficient reliability, (2) to the extent that Dr. Leo's testimony was grounded in science, it fell within the common understanding of jurors, such that expert testimony was unnecessary, and (3) there was no evidence that tended to support a reasonable inference that any of Gaono's admissions were coerced.
In response to the prosecution's motion, the trial court raised the issue of Dr. Leo's testimony with counsel:
"Let's talk about the potential testimony of Doctor Leo. I have read over the prosecutor's moving papers on that. I have read the cases that [the prosecutor has] cited that I thought were important: People v. Ramos, 2004 case, 121 Cal.App.4th 1194, and People v. Cage, 2 Cal.App.4th 161, 1991 case.
"The cases are somewhat helpful. They're not determinative. They talk about discretion in the court. For example, all Ramos talks about is how that judge exercised, I think, his discretion which I thought was sort of interesting. . . . There were other cases that I read about experts. I thought they were interesting. That is the area of experts talking about people's thought patterns. For example, there's a case, Sandoval, a 2008 case, 164 Cal.App.4th 994. In that case the defense wanted to call an expert on what they call 'make-up sex.' In other words, someone is charged with a forcible sex crime,
and you call an expert to show it's not forcible because this is the way some couples make up. The court excluded that testimony on the grounds that's within knowledge of jurors. They can figure this out.
"A civil case was Kotla . . . v. The University of California Regents, 115 Cal.App.4th 283, in which the people who were fired wanted to call an expert to testify that the firing was retaliatory. The court did not permit it, and the court of appeal held that that was permitted. That was a proper decision by the trial judge on the grounds of why someone does something. Why an act is performed doesn't normally need an expert.
"[¶] . . . [¶]
"My feeling on this case, to let you know, there's some things the jury has to consider in listening to the testimony about the statements that Mr. Gaono made. They are going to consider his age, what kind of experience he's had with the police, what kind of experience he has had being questioned by the police, where was the place of the interrogation, what kind of activities occurred before the interrogation. For example, the evidence is going to show he came out of the house. He was handcuffed and put on the sidewalk a while and put in a car and unhandcuffed and brought to the police station by I don't think the police but somebody else. He got to the police station. Then what was his status when he was in the interrogation room. They can consider whether or not he was offered food or not, water or not, how many officers are present, what the body language is between the officers. If you play the videos, all of these things are things that the jurors are going to be able to see. They can make their own determination as to whether or not that influences the statement or statements that Mr. Gaono made.
"My feeling is that Doctor Leo doesn't, I don't believe, have to comply with the Kelly-Frye rule. I base that on a couple of cases I read on the psychological test things. I think he's an expert. I read all of this over, and I think he's an expert, even though he's not a sociologist and things. I don't think that it's [i.e., Dr. Leo's expertise] something that the jurors need to make a decision. I could change my mind, depending on the evidence as it comes out . . . ."
At that point, defense counsel reiterated that he was not sure that he would call Dr. Leo, and stated that it would be premature for the court to make a definitive ruling on Dr. Leo's testimony until after the prosecution had presented its case.
The trial court indicated that it was reserving an ultimate decision on the matter until after the prosecution presented its case. The court said, "My plan would be [to] let the D.A. put their case on and see what they come up with. You are—depending on how Detective Brown comes out and the other detectives, you may decide that this is not a productive area to go into, and I don't have to make a decision. Assuming that you think that Doctor Leo would be helpful to the jury, again, I emphasize the ultimate issue I have to decide. I would say we should let the jury go, have a 402 hearing for a whole day, and decide what it is he's going to testify to, how extensive the cross can be. . . . Again, my tentative feeling would be that if Doctor Leo is allowed to testify, he would be testifying in the way that expert witnesses on ID testify. They don't testify about any other case where there's been a false identification. They don't testify about the specific facts of this case. They simply give factors for the jurors to consider."
Defense counsel reiterated that if he were to call Dr. Leo at all, it would be to have him testify "basically to generic [factors], not specifically about this case." Defense counsel suggested that this meant that Dr. Leo's testimony would not "open[] the door to cross-examination with the specifics of this case because Doctor Leo would not be prepared to answer those [questions]." The court concluded the discussion by saying, "That's typically the way it happens with an ID expert. They get up and testify about the factors. The D.A. cross-examines on the factors. If they want to, they hire their own expert to talk about the factors, and no one talks about the actual case in front of the jury. Who k nows whether the jury gives that any weight or not. [¶] Anything else to talk about today?"
After the prosecution concluded its case, defense counsel called one witness, Oceanside Police Officer Scott Hunter, and then rested, without calling Dr. Leo, and without seeking a hearing under Evidence Code section 402 regarding Dr. Leo's potential testimony.
After the defense rested, the trial court released the jurors for the day, and then spoke with the attorneys, on the record, about jury instructions and various trial exhibits. The court also noted that defense counsel had not called Dr. Leo as a witness before resting. With respect to defense counsel's earlier suggestion that counsel might call Dr. Leo as a witness, the court stated, "Let's maybe talk about the Doctor Leo situation. What I would like to do is make a record."
The trial court proceeded to discuss the fact that the decision whether a confession is coerced or involuntary is a legal one to be made by the court, whereas the question for the jury would be whether the interview responses by the defendant were reliable and accurate. The court asked defense counsel, "And I think you want to call Doctor Leo in this regard to show that they aren't accurate and reliable. [¶] You would not be calling him to show that these things were coerced or involuntary; is that correct, Mr. Stone?" In response, defense counsel said, "With the exception of, I think, Doctor Leo could also testify as to involuntariness, separate and apart from the court's constitutional decisions. It has—it's part and parcel of a false confession of itself. I think that's an area that is also subject to his expertise." The court agreed, and then discussed with counsel a number of case citations that the parties had provided to the court.
At one point during this discussion, the trial court stated, "If Doctor Leo were called, I would tell you that no way would I let him testify to whether or not he thought this particular case involved an unreliable or inaccurate interrogation. I would allow him to talk about the various factors, if I allowed him to testify at all. The factors that he's going to testify to, it seems, are common sense. So that's sort of the way I see it." The court then allowed the attorneys to present further argument.
Defense counsel explained, among other things, "So I think he can take a totality of evidence, and including what the gang detective and what [another witness] told us, and it might help the jurors, shed some light to the jurors, in terms of that these things [i.e., false confessions] happen. . . . Given that there are limited numbers of statements, now, I think, although my position was none of the statements should come in, given that they are limited, my assessment was that Doctor Leo's helpful testimony would be less helpful, because there's less testimony."
The trial court stated: "I mean, without even hearing Doctor Leo, going through a[n Evidence Code section] 402 [hearing], definitely I would tell you he would not be allowed to testify as to whether or not he—the present interview or interviews with the defendant were either voluntary, involuntary, coerced, noncoerced, reliable or accurate. He would not be allowed to do that. He would just be allowed to talk about the factors. I mentioned some of them . . . . Assuming he would have some opinion on that, I don't see that opinion as relevant. That's the way I sort of look at it." The prosecutor then stated his position:
"The first thing I would say is that my understanding all along, from Mr. Stone, was that the only thing he was offering, if he was going to offer Doctor Leo, was just the generic concepts that might cause a false confession. I think he conceded in the very first conversation that he wasn't going to ask anything of this nature [i.e., about the case at hand].Defense counsel then asked to clarify his position, and stated the following:
"I am taking this response by Mr. Stone as a purely tactical position on his part because he had the opportunity to have a[n Evidence Code section] 402 hearing to see what he was going to get. The court has fairly and accurately, from the People's point of view, in essence, we agree with the court that the only thing he should be able to testify to, if he's allowed to testify at all, would be the generic factors that can cause these kinds of things, which are frankly nothing more than common sense, which is our ultimate argument that it probably shouldn't be allowed.
"To the extent that we're talking about the generic factors that might cause somebody to give a false confession, that's always been counsel's opportunity here to convince the court that that is sufficient. It struck me, from everything I was hearing in advance of this particular moment, that counsel was making a tactical decision on this not to call Doctor Leo."
"There's a history of progression [as to what the defense may have sought from Dr. Leo], I think, that will be found in the record. What I would have liked Doctor Leo to have been able to do would have been . . . to testify to some of the factors as they more specifically apply to this case, not just that a young person might be—or somebody in custody for a period of time might be but, actually, as they find in this case. But there was some discussion[] earlier about how that would open the door, and then the District Attorney would be able to bring in, 'Well, did you know about this? Did you know about this? Did you know about this?' Then things that have otherwise been suppressed, and rightfully so, might come in.
" So then the defense position had to change somewhat into more generic factors. Then, even within the generic factors, it seems like things are narrowing down. So, I mean, that's why counsel is right.
It's a tactical decision, based on what the court's previous rulings have been and the indications that I am getting from the court, in terms of what I would actually be able to do. I think that's why we are where we are." (Italics added.)
Ultimately, the trial court told the attorneys that the court believed it would be a "waste of time to have Doctor Leo come [in] and tell us what he wants to testify to: maybe the generic factors, age, how long you are in custody, conditions of your custody, what the police say to you relative to your conscience, your God, your mother, the victim's family, the police giving you some inaccurate or false—or lies, whatever you want to call it, and misinformation. One side is relying on the other. All those things I don't think Doctor Leo can testify to because I do believe they are just common sense, and it's what the jurors do." After the court asked whether the attorneys "want[ed] a better record set," defense counsel asked, "[I]s the court saying that it would not permit any of Doctor Leo's testimony, even as to the generic factors, or it would consider allowing him to testify to generic factors?" The trial court responded, "I would not allow him to testify to generic factors."
A few days later, after a discussion concerning proposed jury instructions, the prosecutor asked to be permitted to put something additional on the record. The prosecutor said, "I would like to touch on Dr. Leo for just a moment," and then stated:
"In this case, with respect to Dr. Leo, the defense rested in this case, they didn't call Dr. Leo, they did not request a[n Evidence Code section] 402 hearing, and the Court had not rendered its final [decision] on that issue except to say it would not permit an opinion on the ultimate issue on the case or the tying of factors to specific evidence because the People would agree that that would clearly invade the province of the jury on an issue that is well within the jury's ability to decide.In response, defense counsel stated:
"But the Court had not decided as to the general factors that might affect whether a statement was false or true with respect to Dr. Leo.
"And to the extent such testimony was to be admitted in that context, the People were more than prepared to address Dr. Leo, but the defense elected to rest and that was clearly a calculated choice.
"And from our perspective, it was more than understandable.
"First, having reviewed the transcripts of Dr. Leo's testimony, he is a very difficult witness to keep between the lines, and this could well open doors to questioning on the physical evidence or other statements of the case that tend to inculpate this defendant, that the defense undoubtedly wanted to avoid.
"And second, if the jury didn't adjust well to Dr. Leo, which we felt may be a real possibility, knowing what our investigation of that circumstance showed, any arguments by counsel who is far better acquainted with the sum of the facts could then fall on de[af] ears if they didn't like the presentation by Dr. Leo . . . .
"So the reality here is the defense made a tactical choice and rested, and we certainly understand why.
"Well, the Court subsequently indicated it would not have chosen to permit Dr. Leo's testimony on even the general factors themselves for the reason the Court has stated.
"The defense's choice to rest before that decision was made was simply a tactical choice and doesn't seem to us to raise any issue for direct appeal, nor do we believe that choice would be a viable issue in any form, because the choice was more than understandable, certainly from our perspective."
"I don't think the prosecution can know what my strategies are or what my thoughts were with regard to Dr. Leo or anything of that nature. The way things worked out and in part occurred [was that] the Court had provided me with some of your research and we had some unreported discussions, and it was fairly obvious where things were going. There were some questions and concerns about when
the jury would be coming back, and the timing of the case, and I think that is more—it explains more how things went than simply the comments that Mr. Cross made."
The trial court then related its understanding of what had occurred:
"I think the record is pretty clear as to what I said, and maybe it was some of the wider flailings of the judicial arms, but it is clear to me that after reading all of this stuff and thinking about it and thinking about all of the implications, you withdrew the request of Dr. Leo, at least that's what I believe happened. And I threw in the additional comment, well, even if you did call him, we would have a[n Evidence Code section] 402 hearing, based on my present knowledge of the law and what has been testified to, that he would be able to testify. So I think that was just an additional thing I threw in there." (Italics added.)
On appeal, Gaono argues that the trial court "ruled that appellant would not be permitted to present expert testimony as to the factors related to false or inaccurate confessions," and that as a result, the court "deprive[d] appellant of a meaningful opportunity to present a complete defense under the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment. [Citation.]"
We disagree with Gaono, however, that the trial court made any ruling that prevented him from presenting Dr. Leo's testimony. The record demonstrates, instead, that defense counsel made the decision not to call Dr. Leo or to even request a formal Evidence Code section 402 hearing on the matter, and never sought a final ruling on the admissibility of Dr. Leo's testimony. Gaono suggests that the court did make a ruling on the matter, based on statements that the court made after the defense had already rested, in which the court indicated that it would not have permitted Dr. Leo to testify as to either the specific facts of this case or to the general factors related to false confessions. However, the last thing that the court said to the attorneys on the matter of Dr. Leo's testimony before the start of trial—which were the court's last statements on the matter before the defense presented its case and rested without calling Dr. Leo—was that it was not making a final ruling on Dr. Leo's testimony, and that it would make such a ruling if and when defense counsel sought to introduce his testimony. Specifically, the court said:
"My plan would be [to] let the D.A. put their case on and see what they come up with. You are—depending on how Detective Brown comes out and the other detectives, you may decide that this is not a productive area to go into, and I don't have to make a decision. Assuming that you think that Doctor Leo would be helpful to the jury, again, I emphasize the ultimate issue I have to decide. I would say we should let the jury go, have a[n Evidence Code section] 402 hearing for a whole day, and decide what it is he's going to testify to, how extensive the cross can be. . . . Again, my tentative feeling would be that if Doctor Leo is allowed to testify, he would be testifying in the way that expert witnesses on ID testify. They don't testify about any other case where there's been a false identification. They don't testify about the specific facts of this case. They simply give factors for the jurors to consider."
At that time, the court clearly noted that defense counsel might decide not to call Dr. Leo, and if that were to happen, the court "[would not] have to make a decision." The court further indicated that if defense counsel decided that he did want to call Dr. Leo, the court would be open to holding an Evidence Code section 402 hearing, and would be inclined to allow Dr. Leo to testify as to the general factors that one should consider in deciding whether a confession is reliable. This is precisely the testimony that defense counsel stated he intended to present, if he were to offer Dr. Leo's testimony at all. Thus, at the time defense counsel made the decision not to call Dr. Leo, the trial court had indicated that it would be willing to allow defense counsel to present the testimony that the defense was seeking to present—i.e., testimony on the general factors related to unreliable confessions, only.
The conclusion that the trial court had been inclined to permit the defense to call Dr. Leo to testify as to the general factors that pertain to the reliability of confessions is further bolstered by the court's comparing the nature of the testimony that defense counsel said he wanted to elicit from Dr. Leo with the sort of testimony typically admitted by courts with respect to experts in witness identification.
It thus appears from the record that defense counsel made a strategic decision not to call Dr. Leo as a defense witness. This was clearly the trial court's understanding, as the court explained after defense counsel attempted to counter the prosecutor's description of the relevant events, stating, "[B]ut it is clear to me that after reading all of this stuff and thinking about it and thinking about all of the implications, [defense counsel] withdrew the request of Dr. Leo, at least that's what I believe happened."
The trial court did not indicate in any way that it would not have allowed Dr. Leo to testify at all until after the defense had rested, and thus, clearly had decided not to call Dr. Leo as a witness. Any comments that the court made with respect to its sense that it would not have allowed Dr. Leo to testify as to either the specifics of the case or as to the general factors related to the reliability of confessions were merely comments about what the court might have done if defense counsel had sought to introduce Dr. Leo's testimony. The court's statements cannot be construed as a definitive ruling on the admissibility of Dr. Leo's testimony, since the defense made no request to be permitted to present Dr. Leo's testimony at any time before resting its case, and never requested to reopen its case in order to present that testimony.
Gaono attempts to place emphasis on the language of the minute order that was entered on the day that the defense rested without calling Dr. Leo or seeking a hearing under Evidence Code section 402. The portion of the minute order that Gaono insists demonstrates that the court made a definitive ruling against allowing Dr. Leo to testify does seem to support Gaono's claim:
"Court and counsel confer re: Dr. Leo. [Defense counsel] makes an offer of proof as to what Dr. Leo would testify to at a[n Evidence Code section] 402 hearing. The Court holds that Dr. Leo would not be allowed to testify as to whether or not this particular confession was reliable and accurate. As to the factors in the case which might indicate an unreliable or inaccurate statement, such as, an appeal to the defendant's conscience, doing right by his family, doing right by the victim's family, amongst other things, Dr. Leo would not be permitted to testify as no expert is needed in this area. Therefore, the Court denies the defendant's request for a[n Evidence Code section] 402 hearing."
Gaono proffers that "both the minute order and the oral proceedings of April 8 support appellant's position on whether the court ruled [on allowing or not allowing Dr. Leo to testify]." We disagree. First, it is clear even from the minute order that the defense had rested its case without having raised the issue of Dr. Leo's testimony, or having made any request regarding Dr. Leo, and before the parties and the court discussed Dr. Leo that day. Indeed, the minute order indicates that the defense rested at 10:52 a.m., and that at 10:54, a.m. the jurors were excused and defense counsel made a motion for judgment of acquittal, which the court denied. Only after all of this is the statement quoted above entered into the minutes for that day.
Further, the minute order does not accurately describe the events that took place that day as those events are recorded in the reporter's transcript. Although the minute order implies that defense counsel actually made a request for an Evidence Code section 402 hearing, the transcript demonstrates that, in fact, no such request was ever made. Rather, it was the trial court that raised the issue of Dr. Leo's testimony, apparently in an attempt to make "a record" for appeal, despite the fact that defense counsel never moved to call Dr. Leo as an expert. Thus, the court did not make any ruling on the matter, but rather, merely expressed what the court believed its ruling would have been if the defense had actually sought to have Dr. Leo testify.
It is not difficult to understand how the minute order came to summarize the proceedings in the manner that it did. However, we see no reason to give the description in the minute order more weight than what is contained in the reporter's transcript from that day. (See People v. Smith (1983) 33 Cal.3d 596, 599 [when there is a conflict between a clerk's transcript and a reporter's transcript, the question of which controls is determined by consideration of the circumstances of each case].) We therefore reject Gaono's contention that the minute order demonstrates either that defense counsel requested an Evidence Code section 402 hearing or asked to be permitted to call Dr. Leo to testify, or that the court made any ruling on the matter. The transcript clearly demonstrates that defense counsel had already decided not to call Dr. Leo to testify before the court indicated that if counsel had made that request, the court would not have permitted Dr. Leo to testify.
Gaono appears to suggest, in the alternative, that defense counsel somehow knew, prior to resting, that it would have been futile to call Dr. Leo because counsel was aware that the trial court would not have permitted Dr. Leo to testify. Gaono contends that his attorney was not required to make what would have been a futile request. However, the record does not support Gaono's contention. Rather, the record demonstrates that it would not have been reasonable for defense counsel to have concluded that calling Dr. Leo would have been futile at any time before the defense rested its case. Again, the last word from the court, prior to the defense presenting and resting its case, was that the court would accept a request from the defense to present Dr. Leo's testimony, that the court would hold an Evidence Code section 402 hearing, and that the court would potentially be open to allowing Dr. Leo to testify as to the general factors pertaining to the reliability of a confession. Defense counsel never sought to have the court make a final ruling, and there is nothing in the record that suggests that the reason defense counsel never requested a ruling is because defense counsel believed that the court would not permit the defense to present Dr. Leo's testimony. Rather, the record suggests that defense counsel made a tactical decision not to call Dr. Leo because there was the potential that his testimony might open the door for the prosecution to ask Dr. Leo about statements made by Gaono that the court had otherwise excluded, and because the relative value of Dr. Leo's testimony compared to the risk of opening the door to this damaging evidence was not sufficient to justify taking that risk.
To the extent that Gaono contends that the trial court's statements to the effect that the court would limit Dr. Leo's testimony to only the general factors related to unreliable confessions deterred him from seeking to present Dr. Leo's testimony, such an argument is similarly meritless. It is clear from the transcript of the trial proceedings that defense counsel was considering having Dr. Leo testify about general psychological factors and police techniques that can lead to false or unreliable confessions. It is equally clear that prior to the defense resting its case, the trial court was inclined to permit the defense to question Dr. Leo on these topics. What the trial court indicated it would not permit was for Dr. Leo to give an opinion as to whether the particular admissions that Gaono made in this case were unreliable or inaccurate. Thus, even if the court's comments could be interpreted as constituting a tentative ruling on the matter, it appears that the court was considering prohibiting only testimony that defense counsel indicated he did not intend to elicit. D. The court did not abuse its discretion in allowing the prosecutor to show the animation of Officer Bessant's shooting during his opening statement and closing argument.
Prior to trial, the prosecution moved to be permitted to present a two-minute computer generated animation to illustrate the prosecution's theory regarding how Officer Bessant was murdered. The animation presented a visual depiction of the prosecution's understanding of the evidence pertaining to the positions of the two officers, and the shooter, at the time of the shooting, as well as the trajectory of the fatal bullet. The animation depicted a person with a scoped rifle crouched near a mailbox, and included a green line indicating the approximate path of the bullet from the shooter's rifle to the victim.
Defense counsel objected to the prosecutor's use of the animation during opening and closing arguments on the ground that the animation did not comply with People v Kelly (1976) 17 Cal.3d 24 (Kelly), that the animation was not accurate, that it was speculative, and that it would be too powerful and the jury would ignore the testimony from the witnesses and would instead rely on the animation.
The prosecutor argued that the animation was "not a [computer generated] simulation," and that it would give jurors "an overview, if you will, of the relative positions of the two crime scenes and the underlying nature that the evidence shows . . . how this crime was committed. [¶] It doesn't say who committed it. It doesn't give any emotion to it. It's basically a static overview with no emotion placed into the video in any way, shape, or form." Defense counsel argued that the animation could prejudice the jurors "and how they're going to see the case" because they would see the animated presentation before any witnesses had taken the stand.
The trial court ruled that the prosecution would be permitted to use the animation, and determined that the court would give the jury a limiting instruction specifically pertaining to the animation. Prior to closing arguments, the trial court instructed the jury with the following admonition with respect to the computer animation:
"In the People's closing arguments you will again see the computer animation that the prosecution believes visually depicts some of the circumstances surrounding this occurrence. [¶] Please remember, however, that any presentation in a closing argument is not evidence in and of itself. Evidence comes to you solely from the testimony of the witnesses and the introduction of physical or other evidence admitted during the trial. [¶] As with all information in a closing argument, the computer animation represents what the People believe the evidence has shown in this case. You may disregard the
animation if you find it to be inaccurate or unhelpful. On the other hand, if you find the demonstration to be supported by the evidence you have received in this case, you may consider the animation to the extent it helps you better understand the prosecution's closing argument. Please remember, however the computer animation is not itself evidence in this case."
Neither party has identified the standard of review that applies to this matter. This is perhaps a reflection of the fact that there appears to be a dearth of authority regarding precisely how an appellate court should review a defendant's claim that a trial court should not have permitted the prosecution to utilize, during opening and/or closing arguments, an illustrative aid that was not actually admitted in evidence during trial. We have found one case in which the Supreme Court appears to have applied standards similar to those used in reviewing evidentiary rulings to a trial court's decision to permit the prosecutor to display to the jury a demonstrative aid that, insofar as one can glean from the opinion, was not admitted in evidence at trial. (See People v. Barnett (1998) 17 Cal.4th 1044 (Barnett).
In Barnett, supra, 17 Cal.4th at pages 1135-1136, the Supreme Court considered a defendant's challenge to the prosecutor's display of a hunting knife—which was not the actual weapon used in the crime—as a demonstration during closing argument. The Supreme Court noted that the testimony at trial "provided a sufficient basis for the knife's display," that "there was no attempt to mislead the jury into believing the knife was the actual murder weapon," and that there was "no indication that the knife was in fact dissimilar or more vicious in appearance than the knife described by the witnesses, or that display of the knife was so unduly prejudicial as to require exclusion under Evidence Code section 352." (Id. at p. 1136.) From Barnett, we infer that the standard that we are to apply in our review of the trial court's decision to permit the prosecution to display the computer animation as an illustrative aid during opening and closing arguments should be nothing more stringent than the abuse of discretion standard that applies to rulings on the admission of evidence. Applying this standard, we find no abuse here.
Gaono's argument that the computer animation was "akin to evidence being admitted" without having been authenticated and without his having been afforded the opportunity to challenge the accuracy of the animation, is unpersuasive. The animation was not treated as evidence, and the court specifically instructed the jury that it was not evidence and that the jury was not to consider it to be evidence. The trial court's admonition to the jury in this regard clearly directed the jury not to regard the animation as evidence and to consider only the evidence that had been presented at trial in reaching its decision. Thus, the animation was not "akin to evidence being admitted" as Gaono contends.
Defense counsel was able to view the animation prior to trial, and had the opportunity to dispute the accuracy of the animation with respect to the events that it depicted. In addition, the trial court made a finding that the animation had been properly authenticated. Further, even after defense counsel heard the witnesses' testimony, defense counsel never raised any issue with respect to whether the animation accurately reflected that testimony. Beyond this, even on appeal, Gaono has not identified any way in which the animation failed to adequately represent the evidence that was presented at trial, or was otherwise misleading. Since Gaono has not demonstrated that the animation was deficient, misleading, or failed to adequately represent the evidence presented at trial, Gaono has failed to show that the court abused its discretion in permitting the prosecution to use this demonstrative aid during opening and closing arguments. E. The trial court did not err in declining to disclose any portion of Detectives Brown, Novak, or Priem's personnel files in response to Gaono's Pitchess motion
Before trial, Gaono sought to discover the personnel records of Detectives Brown, Novak, and Priem with respect to acts of interviewing suspects without properly advising them of their Miranda rights, conducting coercive interrogations, misplacing evidence, dishonesty, giving false statements or testimony, and making significant omissions in police reports.
"[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.]" (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines).)
"If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the pending litigation." ' [Citations.]" (Gaines, supra, 46 Cal.4th at p. 179.)
On appeal, this court is required to review the "record of the documents examined by the trial court" and determine whether the trial court abused its discretion in refusing to disclose the contents of the officer's personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1229; see also People v. Hughes (2002) 27 Cal.4th 287, 330.)
The trial court reviewed the requested records in camera and determined that they contain no information relevant to the subject matters raised by Gaono's motion. We have reviewed the transcript and the personnel records of Detectives Brown, Novak, and Priem that the trial court considered. Our review confirms the trial court's determination: The confidential personnel records do not contain any disclosable information. The trial court thus properly declined to disclose any items from the officers' confidential records. F. There is no cumulative error
Gaono contends that the cumulative effect of the alleged errors requires reversal. "Under the 'cumulative error' doctrine, errors that are individually harmless may nevertheless have a cumulative effect that is prejudicial." (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We have concluded that none of Gaono's asserted claims of error has merit. There is thus no cumulative error on which to base a reversal of the judgment against him. G. The 10-year gang enhancement that the court imposed and stayed should be stricken
Gaono contends that the 10-year gang enhancement that the trial court imposed and stayed pursuant to section 186.22, subdivision (b)(1) should have been stricken, instead. According to Gaono, subdivision (b)(5) of section 186.22 governs his sentence, since that provision deals with indeterminate sentences such as his. The People assert that the trial court was correct in imposing and staying the 10-year gang enhancement under section 186.22, subdivision (b)(1).
Unlike in the current appeal, the People conceded this issue in Penifoti Taeotui's appeal from his conviction and sentence for first degree murder related to Officer Bessant's killing.
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In People v. Lopez (2005) 34 Cal.4th 1002, 1006 (Lopez), the Supreme Court considered the question "whether a first degree murder committed for the benefit of a gang is subject to the 10-year enhancement in section 186.22[, subdivision] (b)(1)(C) or whether such a murder falls within that subdivision's excepting clause and is governed instead by the 15-year minimum parole eligibility term in section 186.22[, subdivision] (b)(5)." The defendant in Lopez, who had received a sentence of 25 years to life in prison, argued that section 186.22, subdivision (b)(5) "applies when the felony is 'punishable by imprisonment in the state prison for life' " and that "first degree murder, which is punishable by 'imprisonment in the state prison for a term of 25 years to life' [citation], is such an offense." (Lopez, supra, at p. 1006.) The People argued that the phrase "punishable by imprisonment . . . for life," as used in section 186.22, subdivision (b)(5), was intended to refer to "straight" life terms, and therefore would not apply to first or second degree murder. (Lopez, supra, at p. 1006.)
The Supreme Court concluded that the language in section 186.22, subdivision (b)(5) "encompass[es] both a straight life term as well a term expressed as years to life," and that the Legislature "intended to exempt [all of] those crimes from the 10-year enhancement in subdivision (b)(1)(C)." (Lopez, supra, 34 Cal.4th at p. 1007.)
Lopez is not on all fours with this case, since that case involved a term of 25 years to life with the possibility of parole, while Gaono's sentence is a term of life without the possibility of parole. However, we conclude that the text of the statute and the reasoning of Lopez compel the same result as that reached in Lopez, even when, as here, the sentence at issue is life without the possibility of parole. The language of the statute, i.e., "punishable by imprisonment in the state prison for life," does not distinguish between terms of life with the possibility of parole and those without. In other words, there is no exception in the language of section 186.22, subdivision (b)(5) for individuals who have been sentenced to life in prison without the possibility of parole.
Further, as the Lopez court acknowledged, a 15-year minimum parole eligibility requirement "will have no practical effect" in any first degree murder case. (Lopez, supra, 34 Cal.4th at p. 1009.) Despite this fact, section 186.22, subdivision (b)(5) applies to defendants convicted of first degree murder who are punished with " 'imprisonment in the state prison for a term of 25 years to life.' " (Lopez, supra, 34 Cal.4th at p. 1006, citation omitted.) According to the Lopez court, the Gang Violence and Juvenile Crime Prevention Act of 1998 (which increased the penalties in § 186.22) "recognized that not all of its provisions necessarily established the greatest possible punishment" (Lopez, supra, at p. 1009), and the fact that section 190 fixes a parole eligibility date equal to or greater than that in section 186.22 subdivision (b)(5) is "neither an absurdity nor an anomaly." (Ibid.)
We therefore conclude that the 10-year enhancement imposed pursuant to section 186.22, subdivision (b)(1) is to be stricken. (Lopez, supra, 34 Cal.4th at p. 1011.) H. The abstract of judgment must be modified to correspond with the trial court's oral pronouncement of judgment
Gaono contends that the abstract of judgment does not correspond with the trial court's oral rendition of judgment. According to Gaono, the trial court did not orally impose fines under section 1202.4, subdivision (b) or 1202.45, yet fines were included in the abstract of judgment. He further complains that the court ordered imposition of the victim restitution to be joint and several as to Gaono and Taeotui, but that the abstract of judgment fails to reflect this fact. Gaono asks that the abstract of judgment be corrected to reflect the court's oral pronouncement.
The People concede that the abstract of judgment should be corrected as to both of these matters. We agree. In orally pronouncing judgment, the trial court failed to impose a restitution fine or the corresponding parole revocation fine that is mandatory when a restitution fine is ordered. A restitution fine is considered a discretionary sentencing choice. Thus, if the trial court fails to impose such a fine and the People fail to object, the matter is forfeited. (See People v. Tillman (2000) 22 Cal.4th 300, 303.) "It is, of course, important that courts correct errors and omissions in abstracts of judgment. An abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citation.]" (People v. Mitchell (2001) 26 Cal.4th 181, 185.) As a result, the trial court should amend the abstract of judgment to omit the restitution (§1202.4, subd. (b)) and parole revocation (§ 1202.45) fines, and to reflect that Gaono is jointly and severally liable for the victim restitution with Taeotui.
The People point out that the abstract of judgment contains another error in that it fails to reflect the imposition of mandatory court security fees, which are required under section 1465.8, subdivision (a)(1). At the time Gaono was sentenced, that section provided: "To ensure and maintain adequate funding for court security, a fee of twenty dollars ($20) shall be imposed on every conviction for a criminal offense . . . ." This provision "unambiguously requires a fee to be imposed for each of defendant's conviction. Under this statute, a court security fee attaches to 'every conviction for a criminal offense.' " (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.) Gaono concedes that these fees are mandatory and that this court can order that the judgment be modified to reflect the imposition of such fees. (See People v.Crabtree (2009) 169 Cal.App.4th 1293, 1328.) Accordingly, the judgment must be modified to reflect the imposition of two court security fees, one for each of Gaono's two convictions. The trial court shall amend abstract of judgment to reflect this change, as well.
IV.
DISPOSITION
The trial court is directed to strike the 10-year enhancement, and impose two court security fees. The judgment is otherwise affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting the striking of the 10-year enhancement, omitting the restitution and parole revocation fines, reflecting that Gaono is jointly and severally liable for the victim restitution amount, and reflecting the imposition of two court security fees. The trial court shall forward a copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.
AARON, J. WE CONCUR:
BENKE, Acting P. J.
NARES, J.