Opinion
E068429
08-31-2018
THE PEOPLE, Plaintiff and Respondent, v. ABEL JIMENEZ, Defendant and Appellant.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1601608) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed. Ava R. Stralla, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Abel Jimenez appeals his conviction on one count of possession of methamphetamine for sale. He contends that although the trial court properly granted his motion to exclude inculpatory statements he made before being read his Miranda rights, the court erred in failing to exclude similar statements he made after he was given and then waived his rights under Miranda. He contends that the post-Miranda statements were not voluntary because the arresting officer falsely told him that possession of methamphetamine for sale was a misdemeanor and, in an effort to "soften" him up, told him that if he cooperated, they could "work something out."
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
We reject defendant's contention that the officer's conduct rendered his admission involuntary. Accordingly, we will affirm the judgment.
PROCEDURAL HISTORY
Defendant was tried on a first amended information, which alleged one count of possession of methamphetamine for sale, in violation of Health and Safety Code section 11378. The information alleged that defendant did not qualify for probation, absent unusual circumstances, because he had a prior conviction, in 1997, of two counts of drug possession. It also alleged one strike prior (Pen. Code, §§ 667, subds. (c), (e)(1) & 1170.12, subd. (c)(1)), a 1981 conviction for shooting at an inhabited dwelling, in violation of Penal Code section 246.
A jury found defendant guilty as charged of the substantive offense. In a bifurcated proceeding, the court granted defendant's motion, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike the prior strike conviction in the interest of justice. The court then imposed the upper term of three years and suspended execution of the sentence, granting defendant probation for 60 months. One condition required defendant to participate in a one-year residential rehabilitation program at the Salvation Army Center in Perris.
On May 17, 2017, defendant's probation was revoked after the court found that he had violated probation by leaving the Salvation Army program. On May 30, 2017, defendant filed a timely notice of appeal from the underlying conviction.
FACTS
We begin with a brief recitation of the facts as developed at trial. On the evening of April 3, 2016, Officer Palaoro stopped defendant at an intersection in Corona for riding a bicycle without a forward-facing white headlamp. That intersection was known as an area of high drug activity. When the officer asked defendant if he had anything illegal in his possession, defendant replied that he had some methamphetamine in his pocket. The officer removed a small Altoids mint can from defendant's pocket. Inside the can were four bindles containing a total of 1.036 grams of crystal methamphetamine. Defendant had $50 in cash in his wallet, which he claimed to have won gambling at a nearby internet café. After Officer Palaoro read him his Miranda rights, defendant admitted that he intended to sell the methamphetamine.
An expert on the sale of methamphetamine testified that he could conclude, based solely on defendant's possession of four bindles of methamphetamine, that defendant possessed the drug for the purpose of selling it. He testified that a person who possesses methamphetamine for his or her personal use would not normally have four separate packages. The only other evidence of defendant's intent to sell the drug was his admission to Officer Palaoro that he was planning to sell it. Defense counsel asked him if defendant's denial that he intended to sell the drug, prior to his admission, affected his conclusion. The expert said that it did not.
LEGAL ANALYSIS
DEFENDANT'S POST-MIRANDA STATEMENTS WERE
PROPERLY ADMITTED INTO EVIDENCE
Defendant contends that the trial court erred in admitting his post-Miranda admissions that he possessed the methamphetamine for sale.
"A defendant's admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. [Citations.] A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.] On appeal, we review independently the trial court's determination on the ultimate legal issue of voluntariness. [Citation.] But any factual findings by the trial court as to the circumstances surrounding an admission or confession, including '"the characteristics of the accused and the details of the interrogation" [citation],' are subject to review under the deferential substantial evidence standard. [Citation.]" (People v. Williams (1997) 16 Cal.4th 635, 659-660.)
In his moving papers, defendant argued that Officer Palaoro used coercion to obtain his admissions because, despite defendant's denials, the officer continued to press him to admit that he intended to sell the methamphetamine. He also contended that his statements were involuntary because the officer told him that possession for sale was a misdemeanor and that if he cooperated, they could "work something out." At the hearing, he argued that the officer's statement that even if the drug was possessed for sale, it was still a misdemeanor, coupled with his post-Miranda statement that if defendant were "cool," they could "try to figure something out," was an implied or possibly even express offer or promise of a benefit.
The transcript of the interview shows that Officer Palaoro said, "So I'm gonna read you your rights while you sit here. And then I'm gonna talk to you about it. And as long as you're cool, then we're gonna try to figure something out. Okay?"
At the hearing on the motion, the court viewed the video from Officer Palaoro's dashboard camera and heard his testimony. The evidence showed as follows:
Officer Palaoro was working by himself when he detained defendant after stopping him for riding a bicycle at night without a headlight. He had defendant sit on the curb with his ankles crossed and his hands in his lap. He "always" did this as a matter of safety. He asked defendant if he had anything illegal on him. Defendant responded that he had a few bindles of methamphetamine. Defendant agreed that the officer could search him to retrieve the bindles. After some conversation about whether defendant "roll[ed] with anybody" or "claim[ed] anybody," Officer Palaoro said, "All right. So here's the deal. Like I said, I'm really easy goin', so don't waste my time. You're just being detained right now. You're not under arrest. You understand that? Do you understand that?" After defendant acknowledged that he was not under arrest, the following conversation ensued:
"PALAORO: All right. So obviously you have these in pre-packaged little bindles. How much are you selling 'em for?
"[DEFENDANT]: No, I bought 'em.
"PALAORO: You bought 'em?
"[DEFENDANT]: Yeah, they gave me a deal.
"PALAORO: What'd they give you a deal?
"[DEFENDANT]: Twenty-five for them, so that's the way I bought 'em.
"PALAORO: Twenty-five total?
"[DEFENDANT]: Yes, sir, $25 - 15, $20 for them.
"PALAORO: Where do you get 'em from?
"[DEFENDANT]: The guy at the liquor was right there in the front. He was standing right there, and he asked me. So he gave it to me like that. I said oh cool.
"PALAORO: And it's meth?
"[DEFENDANT]: Yeah, that's what he told me. I mean I haven't opened it. I hope so. I hope he didn't give me no salt. I heard that they've been giving salt around here.
"PALAORO: Where's your wallet at?
"[DEFENDANT]: In my pocket.
"PALAORO: Open it up. About how much cash you got in it?
"[DEFENDANT]: Fifty bucks.
"PALAORO: Fifty?
"[DEFENDANT]: Yes, sir.
"PALAORO: All right. Like I said, don't waste my time. I under, ah, you have these forms [sic] you're selling, and you're selling each bag. It is what it is. It's still a misdemeanor. So what I'm asking you is how much do you sell each bag for?
"[DEFENDANT]: I don't know. A lot of (unintelligible) to tell the truth.
"PALAORO: Okay. But when you turn around and you resell that, you . . .
"[DEFENDANT]: Oh, if I would've sold it, I would've sold it for (unintelligible).
"PALAORO: Okay. So how much were you gonna sell each one of these bags for?
"[DEFENDANT]: Well I was - I wasn't selling. I was keeping it for me.
"PALAORO: Okay. Let me ask you a question.
"[DEFENDANT]: If I would have sold 'em I . . .
"PALAORO: Hold on. Hold on. You have these in four separate baggies because you were gonna resell 'em and make some money. So how much were you gonna sell each one of these baggies for?
"[DEFENDANT]: Ah, 10 bucks.
"PALAORO: Ten bucks?
"[DEFENDANT]: Just whatever they had, six, seven bucks, whatever. I'm just gonna make my money back.
"PALAORO: Uh-huh. So how much - so you were gonna make your money back. So what was the total amount of bags that you bought earlier?
"[DEFENDANT]: I didn't - I only got those four earlier. That's why I came over here.
"PALAORO: And you're gonna make your money back for what?
"[DEFENDANT]: For what? Just 'cause, um, to break even.
"PALAORO: Just to break even on what you use?
"[DEFENDANT]: Yes.
"PALAORO: Okay. So you al- do you always sell in small $10 bags, or do you sell more?
"[DEFENDANT]: I buy - well I usually buy a little bit more.
"PALAORO: You buy a little bit more?
"[DEFENDANT]: But mostly, yeah, um, I use it then . . .
"PALAORO: Okay. So you use some and then you sell some.
"[DEFENDANT]: Yes.
"PALAORO: Is that accurate?
"[DEFENDANT]: Sometimes, yes.
"PALAORO: Okay. So here's the deal. Um, obviously you're under arrest right now 'cause you have the meth. So I'm gonna read you your rights while you sit here. And then I'm gonna talk to you about it. And as long as you're cool, then we're gonna try to figure something out. Okay? So you have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to have an attorney present before and during any questioning, if you wish. If you cannot afford to hire an attorney, one will be (unintelligible) for you free of charge. Do you understand everything I just told you?
"[DEFENDANT]: Yes, sir.
"PALAORO: And you have no problem talking to me?
"[DEFENDANT]: No, ma'am.
"PALAORO: Okay.
"[DEFENDANT]: Sir.
"PALAORO: So - no ma'am, huh?
"[DEFENDANT]: I'm sorry. Yeah.
"PALAORO: All right. So let me see the money that you have. How much do you got?
"[DEFENDANT]: Fifty. I just won it right here.
"PALAORO: Okay. And is this just from what you sold earlier today or . . .
"[DEFENDANT]: No, that's what I won right now.
"PALAORO: Oh, that's what you won at the gambling hall. Okay.
"[DEFENDANT]: That's it.
"PALAORO: So you have four individually wrapped baggies. How much does each baggie weigh?
"[DEFENDANT]: Oh, I don't know about that.
"PALAORO: What do you think? You're selling for $10 a bag. You called 'em dimes earlier. So they're each .1?
"[DEFENDANT]: Nah, they're more than that.
"PALAORO: What are they do you think?
"[DEFENDANT]: I don't know, about two, three.
"PALAORO: Two or three each? And you were gonna sell - so say they're .2 grams each, and you have four of 'em. How much are you gonna sell - do you normally sell each bag for?
"[DEFENDANT]: For like 10.
"PALAORO: Ten? And you were gonna sell each one of these bags for $10 a piece for a total of $40?
"[DEFENDANT]: Yes.
"PALAORO: Is that accurate? And why are you doing that?
"[DEFENDANT]: Just to survive.
"PALAORO: To - no, no, no - to survive? That's how you make your money, by sellin' small quantities of methamphetamine?
"[DEFENDANT]: Sometimes, yes.
"PALAORO: Okay. And then you also use methamphetamine.
"[DEFENDANT]: Yes.
"PALAORO: So you're selling this to support your habit and to survive? Is that accurate?
"[DEFENDANT]: Yes, sir.
"[¶] . . . [¶]
"[DEFENDANT]: What am I being arrested for?
"PALAORO: For having the dope.
"[DEFENDANT]: Pardon me?
"PALAORO: For - just for the dope. No probation violation or nothin'.
"[DEFENDANT]: (Unintelligible)
"PALAORO: What's that?
"[DEFENDANT]: Just possession?
"PALAORO: Yeah, of that dope.
"[DEFENDANT]: All right.
"[¶] . . . [¶]
"PALAORO: . . . How long have you been usin' for?
"[DEFENDANT]: Ah, for quite a while.
"PALAORO: How many years would you - would you say?
"[DEFENDANT]: Ah, 10 - I don't know, about 10, 15 years.
"PALAORO: Ten, 15? How long have you been selling to supplement your use?
"[DEFENDANT]: Ah, not really. I mean there ain't no supplement, you know, 'cause I really just buy it for personal. Sometimes I get a deal, and I jump on it.
"PALAORO: Like is that what happened with this one?
"[DEFENDANT]: Yeah, I got a deal right now, so I jumped on it. It's one thing, you know, to . . .
"PALAORO: Why - why were they giving you a deal?
"[DEFENDANT]: I don't know. I guess the guy had too much so he wanted to get rid of it. He said he - he said he need to go get some gas money. So I told him I was gonna buy it. And then I went I went over there with $6 to the casino right there, and I hit it, so I said well (unintelligible) . . .
"PALAORO: What time did you pick up at?
"[DEFENDANT]: What time?
"PALAORO: Yeah.
". . .
"[DEFENDANT]: About 9:30 I'd say by the liquor store.
"PALAORO: Nine thirty?
"[DEFENDANT]: Yeah, around 9:30.
"PALAORO: Did you even have a chance to sell anything yet?
"[DEFENDANT]: No, I just barely got it.
"PALAORO: Oh."
Officer Palaoro testified that he made the comments about "figure[ing] something out" because he was working without backup and he wanted defendant to remain calm. He testified that he was simply mistaken that possession of methamphetamine for sale was a misdemeanor. He attributed the error to confusion engendered by several recent ballot initiatives that had amended drug laws in various respects.
The trial court excluded defendant's pre-Miranda statements because it found that the questioning was custodial and, therefore, in violation of Miranda. It did not find that the pre-Miranda statements were coerced or otherwise involuntary. The court also concluded that the post-Miranda questioning was acceptable. It found that Officer Palaoro did not promise defendant anything and did not intend to do so. For those reasons, the court ruled the post-Miranda statements admissible.
The sole factual findings the trial court made relate to Officer Palaoro's lack of intent to convey any promise of leniency either by stating that the crime was a misdemeanor or by saying he would "figure something out" if defendant remained "cool." The officer's intent is not relevant, however: As we discuss post, the issue is whether defendant believed he was being offered leniency and admitted his intent to sell the bindles as a proximate result of the officer's statements. Accordingly, we will independently review the evidence to determine whether defendant's admission was voluntary. (People v. Williams, supra, 16 Cal.4th at pp. 659-660.)
In deciding the question of voluntariness, we are to consider the totality of the circumstances. (People v. Williams, supra, 16 Cal.4th at p. 660.) "Relevant are 'the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity' as well as 'the defendant's maturity [citation]; education [citation]; physical condition [citation]; and mental health.' [Citation.]" (Ibid.) An offer of leniency or another favor in return for a confession is a circumstance that may affect the voluntariness of a confession or admission. (Id. at pp. 660-661.) However, no single factor is dispositive in determining voluntariness. (Id. at p. 661.)
Defendant cites cases that predate People v. Williams, supra, 16 Cal.4th 635 to argue that any offer of leniency is coercive and requires reversal. In Williams, the court explained that this is no longer the law. (Id. at pp. 660-661; see People v. Cahill (1993) 5 Cal.4th 478, 513, fn. 2.) --------
After considering the totality of the circumstances in this case, we conclude that defendant's admissions were voluntary and that his post-Miranda admissions were properly admitted at trial.
First, we reject defendant's contention that Officer Palaoro's continued insistence that defendant intended to sell the methamphetamine, despite defendant's denials, amounted to coercion. Defendant does not really develop this argument and does not cite any authority that simply refusing to accept an arrestee's denials and continuing to press for an admission for a reasonable length of time amounts to coercion. However, we note that both before and after he received the Miranda advisement, defendant alternately denied intending to sell the drug and admitted that he intended to do so. The officer was therefore justified in continuing to seek an unequivocal admission. His questioning was fairly brief, and he conveyed no threats. Accordingly, his questioning was not coercive in that respect.
Second, we reject defendant's contention that the questioning amounted to coercion because Officer Palaoro made or implied a promise of leniency by stating that possession for sale is a misdemeanor and/or by saying that if defendant cooperated, they would "figure something out." The officer's statement that possession for sale is a misdemeanor was merely that, a statement of fact, albeit an erroneous one. He did not say or imply that defendant would be charged with a felony if he did not cooperate but might be charged with a misdemeanor if he did cooperate. Furthermore, there is nothing in the record that suggests that defendant viewed it as an offer of leniency and decided to admit that he intended to sell the methamphetamine as a result of the supposed offer. The transcript of the interview shows that immediately after the officer said that possession for sale is a misdemeanor, defendant again denied intending to sell and then, after simply being asked once again how much he intended to sell the bindles for, immediately admitted that he did intend to sell the bindles. An incriminating statement cannot be attributed to a false representation by a police officer unless the "'inducement and statement are linked, as it were, by "proximate" causation.'" (People v Jablonski (2006) 37 Cal.4th 774, 815, quoting People v. Benson (1990) 52 Cal.3d 612, 778.) In other words, the false representation must directly cause the arrestee to make the admission. Based on the record before us, we cannot conclude that Officer Palaoro's misstatement of the law was the cause of defendant's admissions.
The record also does not support the conclusion that Officer Palaoro's statement that he would "figure something out" if defendant remained "cool" was an offer of leniency that prompted defendant to admit that he intended to sell the bindles. The statement is so vague as to be objectively meaningless, and there is no evidence that defendant subjectively construed it to be an offer of leniency. Moreover, as discussed ante, after the officer made that statement (in conjunction with reading defendant the Miranda advisement), defendant again alternately denied and admitted intending to sell the bindles. Accordingly, there is no basis for concluding that the officer's statement was the cause of defendant's post-Miranda admissions.
Finally, we reject defendant's contention that Officer Palaoro's friendly demeanor during the interview constituted improper "softening up" of a suspect. First, although courts have indicated that such a tactic might, under some circumstances, render an admission or a waiver of Miranda rights involuntary, we are not aware of any case in which that tactic has actually been held to have had that effect. In People v. Honeycutt (1977) 20 Cal.3d 150, cited by defendant, the court acknowledged the practice but did not find in that case that it rendered the defendant's admission or his Miranda waiver involuntary. (Id. at pp. 158, 159-160.) Similarly, in People v. Jablonski, supra, 37 Cal.4th 774, the court acknowledged the defendant's contention that the excessive friendliness of the interrogators "should be deemed a factor in favor of finding involuntariness," but did not actually address the contention. (Id. at p. 815.) In People v. Esqueda (1993) 17 Cal.App.4th 1450, also cited by defendant, the court referred to the practice but did not hold that it was in itself a circumstance that rendered the defendant's statements involuntary. Rather, the court appeared to view it as one circumstance among many, including the length of the interrogation and the other tactics that were used, that rendered the defendant's statements involuntary in that case. (Id. at pp. 1484-1487 & p. 1484, fn. 21.) Here, because defendant repeatedly vacillated between denying that he intended to sell the bindles and admitting that he did intend to do so, we are unable to conclude that Officer Palaoro's friendly demeanor caused defendant to make an admission against his will.
For all of these reasons, we conclude that the trial court properly deemed defendant's post-Miranda statements admissible at trial.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.