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People v. Milton

California Court of Appeals, First District, First Division
May 10, 2011
No. A126868 (Cal. Ct. App. May. 10, 2011)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MILTON, Defendant and Appellant. A126868 California Court of Appeal, First District, First Division May 10, 2011

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. 149434B

Margulies, Acting P.J.

A jury convicted defendant Anthony Milton of first degree murder with the special circumstance that he committed the murder during a robbery. The trial court sentenced him to life in prison without the possibility of parole. Defendant contends his conviction must be reversed due to ineffective assistance of counsel and evidentiary and instructional error by the trial court. We find no ineffective assistance or prejudicial error, and affirm the judgment.

I. BACKGROUND

Defendant was charged by amended information with murder (Pen. Code, § 187, subd. (a)), and with the special circumstance of committing the murder during a robbery (§ 190.2, subd. (a)(17)(A)). The information further alleged defendant personally and intentionally discharged a firearm causing great bodily injury and death (§§ 12022.5, subd. (a), 12022.53, subd. (b)). Defendant pleaded not guilty to the murder charge and denied the other allegations against him. Jury trial commenced on July 28, 2009.

All further references are to the Penal Code unless otherwise stated.

A. Prosecution Case

On the night of December 1, 2003, defendant was driving his 1988 Buick Skylark in the vicinity of High Street in Oakland, accompanied by his brother, Juan Milton, his cousin, Fred Collins, and friends, Arturo Stern (also known as Toro) and Dante Petty. He had just purchased the Buick that day from a neighbor. About 11:00 p.m., defendant parked his car on Bancroft Way near 46th Avenue. As they got out of the car, defendant handed Juan his Intra-Tech nine-millimeter semi-automatic firearm (Tech-9) and asked him to hold it. Defendant told Juan he had the gun because someone named Laron was trying to kill him. Defendant and his companions walked up 46th Avenue and joined Mia Smith and her boyfriend, William Simpson, who were sitting outside with friends on the front porch of an apartment where one of Simpson’s relatives lived. As soon as they got to the porch, defendant took his gun back from Juan. At some point, one or two police cars turned onto 46th Avenue. Everyone on the porch ran into the backyard to avoid contact with the police. Defendant ran to his car on Bancroft and moved it one block, from Bancroft at 46th Avenue to Bond Street at 46th. Smith and Simpson got into Smith’s white Saturn and drove to a motel on High Street where they checked in.

Defendant and Juan were walking toward Bond on 46th Avenue when they saw two Hispanic men and a Hispanic woman, later identified as Perla Hilarios, walking toward them on the opposite side of the street. Toro was standing at the corner of 46th Avenue and Bond watching. Defendant and Juan crossed the street and approached Hilarios and her companions. Defendant was holding his gun in his hand. At first, defendant pointed his gun toward one of the men, who was wearing a poncho. Then he pointed the gun toward the other Hispanic male and told Juan to check his pockets for money. Juan put his hands into the man’s pockets but found no money. Juan thought defendant wanted money because he had spent all his money on the Buick.

Other testimony established that three Hispanic males were present when the ensuing events occurred.

Although defendant and Juan did not know Hilarios, Smith had seen her on 46th Avenue before, and knew that her boyfriend’s brother lived next door to the apartment where Simpson’s relatives lived.

As Juan was going through the man’s pockets he heard defendant say, “He got a gun, ” apparently referring to the man wearing the poncho. Right after that, defendant fired his weapon. He fired the first shot. Hilarios immediately fell to the ground. The man wearing the poncho shot back and defendant and Juan started running toward Bond Street. By the time they reached defendant’s car, Juan realized he had been shot in the leg, and defendant was bleeding from his chest.

Most of the foregoing account is based on Juan’s statements during a December 2, 2003 interview by Sergeant Louis Cruz. A tape of the interview was played for the jury and a transcript was provided to aid jurors in following it. As further discussed post, Juan gave conflicting versions of what occurred in that interview, and testified at his own trial and again at defendant’s trial that many of his inculpatory statements to Cruz and others were not true.

Elizabeth Tofting, who lived on 46th Avenue, heard male and female voices arguing loudly in English and Spanish in front of her house. A female said, “Everything is okay. Everything is cool, ” a couple of times. Ten to 15 seconds later, Tofting heard rapid gunfire that sounded continuous, followed by slower gunfire that sounded like a shot followed by a pause followed by another shot. The shots sounded like they came from different guns. She heard 5 to 10 shots in all. A man she believed was Hilarios’s boyfriend knocked on her door and asked her to call 911. After the police arrived, Tofting came outside and observed Hilarios lying on the ground face down, not moving. Hilarios had suffered massive head injuries and died at the scene. An autopsy later established she died of a single gunshot to the head, entering through the center of her forehead. A bullet recovered from Hilarios’s head was consistent with cartridges ultimately recovered from defendant’s Tech-9. Three nine-millimeter casings found at the scene were found to have been fired from the Tech-9.

Raquel Barrios, who lived on Bond Street, was woken by the sound of approximately 15 gun shots. The first set of gunshots was louder than the second set. The first set sounded to Barrios like.45-caliber bullets, and the second sounded like.20- or.22-caliber bullets. Barrios looked out her window and saw two men pick up another man and put him in the back seat of a car. A white car pulled up and the occupants of the two cars talked to each other.

Smith testified she and Simpson spent about 30 minutes at the motel before deciding to drive back to 46th Avenue. As Smith turned left from Bancroft onto 46th Avenue, she saw two Hispanic males running to the corner. She saw a body lying face down on the ground with a man standing over it, yelling for help. At that point, Simpson told Smith to “drive off, ” and she turned onto Bond Street, where she saw defendant, Juan, and a couple of others getting into their car. Simpson had a brief conversation with the men through the passenger-side window, which Smith could not hear. Smith and Simpson drove to a gas station, where Juan and defendant met them. Defendant was in the back seat in a fetal position with his eyes closed. Juan handed a gun to Simpson. Smith and Simpson drove back to the motel and Simpson placed the gun, later identified as defendant’s Tech-9, in the nightstand drawer, along with a 33-round ammunition clip for the weapon containing 14 live rounds. The police arrived at the motel early the next morning and recovered the weapon and ammunition from the nightstand. Simpson had also placed his own weapon in the nightstand, a nine-millimeter High Point. The Tech-9 trigger pull was measured at six and one-half pounds, which was higher than most weapons of this kind.

The California Highway Patrol eventually recovered the.25-caliber Raven pistol fired at Juan and defendant by the Hispanic man wearing the poncho. Defendant’s Tech-9 had a bigger cartridge and louder sound than the Raven.

After meeting Smith and Simpson at the gas station, Toro and Juan drove defendant to the Highland Hospital emergency room and dropped him off. Defendant identified himself there as Juan Milton. Juan did not seek medical attention at Highland Hospital because defendant “was on the run from [a] juvenile facility, ” and Juan knew defendant was going to use his name. Defendant was treated in the Highland Hospital trauma room and transferred to the intensive care unit. After dropping defendant off at Highland Hospital, Toro drove Juan to the Kaiser Hospital emergency room, and left him there.

At 4:06 p.m. on December 3, Sergeant Cruz questioned defendant at Highland Hospital after giving him Miranda warnings. Defendant was in a hospital bed and hooked up to machines. Cruz recorded the interview, and the recording was played for the jury. During the interview, defendant admitted he was holding the Tech-9 gun. When defendant noticed Cruz holding a picture of the nine-millimeter High Point found in Simpson’s hotel room, he asked Cruz if that was the gun he had been shot with. When Cruz asked defendant to describe the gun used to shoot him, defendant said he had never seen it. He added, “First we was talkin’.... [¶]... [¶] And then I just started shootin’.” Defendant said he did not know if Juan got any money from their pockets “cuz right after he went in the pockets, they shot me.” He stated, “I guess he felt disrespected when [Juan] went in his pockets, so that’s when [inaudible] shoot.” Defendant said he did not know who he shot, “I just know I shot towards they way.” Defendant told Cruz he brought out his gun to scare the men, but it “[t]urned into a whole different thing.”

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

Juan initially told Cruz he received the gunshot wound to his leg when he was the victim of a robbery at a taco truck. He said a Latino in a poncho shot him. Cruz, who already had evidence of Juan’s involvement in the 46th Avenue shootings, accused him of being untruthful. At that point, Juan became emotional and admitted he had not told the truth. Cruz began to ask Juan more directly about what happened on 46th Avenue. Juan then offered a different version of the shooting in which he was confronted by two Mexicans on 46th Avenue who asked him, “What you got?” and were about to hurt him or rob him. He called out to his brother, and told defendant the men were trying to do something to him. Defendant ran up, pulled out his gun, and “told ’em why was they doin’ that shit?” When one of the men pulled out a gun, defendant started shooting, the Mexicans shot back, and Juan and defendant ran to their car. Only after Cruz confronted him with a picture of the recovered murder weapon did Juan admit he had started to go through one of the men’s pockets for money before the shooting started, or that defendant had shot the female first and he had seen her fall to the ground.

B. Defense Case

The defense called a single witness, Frederick Collins. Collins testified that on the evening of December 1, 2003, he accompanied Toro, Dante Petty, and his cousins—Juan and defendant—to a liquor store to buy alcohol and then to 46th Avenue between Bond and Bancroft. Defendant wandered off when they got out of the car. Collins, Juan, and either Toro or Petty were walking on 46th Avenue on their way to a burrito truck when a Mexican man and woman approached from the opposite side of the street. Collins slowed down but Juan kept walking toward them. The man and woman started arguing with Juan and yelling at him “like they were fixin’ to rob him.”

Juan told the man and woman, “You ain’t getting’ shit from me.” The man pulled out a gun from underneath his poncho and pointed it toward Juan. Collins ran as soon as he saw the gun. He heard gunshots and turned around. Juan yelled, “Anthony, Anthony.” Collins saw Juan pick defendant up off of the ground in the middle of the street. Collins kept running.

When Collins spoke with police on December 5, 2003, he acknowledged going to 46th Avenue but would not give details as to what happened there.

Defense counsel argued to the jury the shooting of Hilarios resulted from defendant trying to protect himself from a hail of bullets fired by her companion, and not from an attempted robbery gone bad by Juan and defendant.

C. Verdict, Sentence, Appeal

The jury found defendant guilty of first degree murder and found true the special allegations and enhancements. The trial court sentenced him to state prison for life without the possibility of parole. This timely appeal followed.

II. DISCUSSION

Defendant contends his conviction must be reversed because (1) defense counsel provided ineffective assistance by failing to object to evidence Juan Milton had been convicted of first degree murder for his involvement in the shooting, and the trial court erred by failing to give a limiting instruction regarding the evidentiary use of the conviction; (2) the trial court erroneously admitted evidence Juan had been convicted on a felony murder theory; and (3) the trial court erred in denying defendant’s motion to suppress his statement to police while in the hospital.

A. Disclosure of Juan’s Murder Conviction

1. Facts

The prosecution called Juan Milton as a witness. Juan was asked the following questions and gave the following answers at the outset of his testimony on direct:

“Q.... [L]et me ask you this, you’re currently a sentenced prisoner; is that correct?

“A. Yes.

“Q. Okay. And you’re serving time where?

“A. Lancaster.

“Q. Okay. And what have you been convicted of?

“A. First-degree murder.

“Q. Okay. And that is in relationship to this case where your brother shot the female.

“A. Yes.”

After the prosecutor asked Juan a few more questions about a different subject, the court interrupted the questioning and instructed the jury as follows: “Let me interrupt[.] [T]o the extent it has come out that he is a sentenced prisoner, that’s admissible for a limited purpose only. It gives you the context of his position. It has—under the law will be allowed to be considered by you for impeachment purposes. [¶] We had a witness who admitted a felony conviction previously, a recent one he has done, so it comes in for those limited purposes. It doesn’t come in for any other purpose at this time concerning anything about the incident in question. You all understand that. Okay. [¶] Go ahead.”

After the close of evidence, the jury was also instructed as follows under CALJIC No. 2.23: “The fact that a witness has been convicted of a felony, if such be a fact, may be considered by you only for the purpose of determining the believability of that witness. The fact of the conviction does not necessarily destroy or impair a witness’s believability. It is one of the circumstances that you may take into consideration in weighing the testimony of such a witness.”

Defense counsel interposed no objection to the prosecutor’s questions about Juan’s conviction, and he did not ask the court for a different instruction in relation to the testimony given on that subject.

2. Analysis

Defendant contends evidence of an accomplice’s conviction based on the crime charged in the current case is irrelevant, inadmissible, and highly prejudicial to a defendant because it invites the jury to impermissibly rely on what they assume another jury has found rather than on their own assessment of the remaining defendant’s personal culpability. (See U.S. v. Mitchell (4th Cir. 1993) 1 F.3d 235, 240 (Mitchell); accord People v. Leonard (1983) 34 Cal.3d 183, 188–189 (Leonard) [substantial prejudicial effect of accomplice’s guilty plea to charged crime far outweighs evidence’s probative value].) According to defendant, his trial counsel “could have had no valid tactical reason for failing to object” to the evidence of Juan’s first degree murder conviction, especially in view of the fact he did object later in the trial to the introduction of evidence that Juan’s murder conviction was based on felony murder because the defense position was that there was no robbery attempt by defendant or his brother before Hilarios was shot.

To demonstrate ineffective assistance of counsel, a defendant must show (1) counsel’s performance was deficient under prevailing professional norms; and (2) but for counsel’s failings, it is reasonably probable the result of the proceeding would have been more favorable to him or her. (Strickland v. Washington (1984) 466 U.S. 668, 687–688, 694; People v. Seaton (2001) 26 Cal.4th 598, 666.) Claims of ineffective assistance must overcome a strong presumption that counsel’s performance reflected a defensible trial strategy: “Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.]... [A] court must indulge [therefore] a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (Strickland v. Washington, at p. 689.)

At the outset, we reject defendant’s claim that the evidence was irrelevant and inadmissible. As the trial court’s immediately ensuing instruction indicated, the evidence about Juan’s felony conviction came in “for a limited purpose only” to give jurors “the context of [Juan’s] position” and could be “considered... for impeachment purposes” and “[not] for any other purpose... concerning anything about the incident in question.” (Italics added.) Evidence Juan was convicted of a felony was admissible for impeachment purposes. (Evid. Code, § 788; People v. Castro (1985) 38 Cal.3d 301, 314.)

The court’s limiting instruction referred to “a witness who admitted a felony conviction previously, a recent one he has done, ” which could only refer to Juan. Although the court did not reference Juan’s admission that his conviction was “in relationship to this case, ” it was clear from the instruction as a whole and the context in which it was given that the court was cautioning the jury not to consider any of Juan’s admissions about his conviction for any purpose other than impeachment.

Defendant’s reliance on cases such as Mitchell and Leonard is misplaced. In Mitchell, no limiting instruction was given concerning evidence the defendant’s brother had been convicted as a conspirator in the same drug crimes with which the defendant was charged, and the prosecutor expressly argued the brother’s conviction was evidence of the defendant’s guilt. (Mitchell, supra, 1 F.3d at p. 237.) Leonard involved the admission of a co-arrestee’s guilty plea to a robbery as “ ‘crucial’ ” substantive evidence the defendant participated in the same robbery earlier in the evening. (Leonard, supra, 34 Cal.3d at pp. 186–189.) No limiting instruction was considered. The Supreme Court held the evidence should not have been admitted without weighing its probative value against its potentially prejudicial effect. (Id. at p. 188.) Here, a limiting instruction was given at the time the evidence was introduced, and a second limiting instruction was given when the case went to the jury. Consistent with these instructions, the prosecution made no suggestion Juan’s conviction constituted substantive evidence of defendant’s guilt. In these circumstances, a defense objection the evidence was irrelevant and inadmissible would have been futile. Defense counsel is not ineffective for failing to make meritless objections. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)

Defendant asserts “the trial court did not give a limiting instruction preventing the jury from using the prior conviction [as substantive proof of his guilt], ” and cites various cases in which no cautionary instruction was given. But he fails to explain why the court’s admonition to the jury—that Juan’s testimony could not be considered “for any other purpose... concerning anything about the incident in question”—and use of CALJIC No. 2.23—were insufficient to address the jury’s potential misuse of the evidence. Defendant accepts the principle that when evidence of a testifying accomplice’s conviction is admitted, a court should instruct the jury such evidence “is to be used only for the limited purpose of impeachment and not as substantive evidence of the defendant’s guilt.” (Mitchell, supra, 1 F.3d at p. 242.) He cites no case holding limiting instructions comparable to the two given in this case violate that principle. In U.S. v. Rewald (9th Cir. 1989) 889 F.2d 836, the court upheld the sufficiency of a single instruction given at the end of the trial that evidence of an accomplice’s guilty plea was “relevant only to assess his credibility and was not ‘evidence against the defendant.’ ” (Id. at p. 865.) In United States v. Solomon (9th Cir. 1986) 795 F.2d 747, the court upheld the sufficiency of an instruction that “the [codefendants’ guilty pleas] should not control or influence your verdict as to Mr. Solomon. And you must base your verdict as to Mr. Solomon solely on the evidence that there is presented here against him.” (Id. at p. 748.) Defendant fails to persuade us there is a constitutionally significant difference between admonishing the jury not to consider impeachment evidence against Juan as “ ‘evidence against the defendant’ ” and admonishing it not to consider such evidence “for any other purpose... concerning anything about the incident in question” or to use it “only for the purpose of determining [Juan’s] believability.”

In Baker v. United States (9th Cir. 1968) 393 F.2d 604, the court approved of an instruction that the jury could not consider the guilty plea of a testifying coconspirator “ ‘as evidence against any of the other defendants, ’ ” and observed that, “No case has been called to our attention where, in the face of such a cautionary instruction, reversible error has been declared.” (Id. at p. 614.)

Defendant claims there was no tactical reason for defense counsel’s failure to object to the prosecution’s impeachment of Juan since Juan gave testimony favorable to the defense. But counsel did not know whether Juan’s testimony would be helpful or harmful to his client when the impeachment evidence was offered. It came at the very outset of Juan’s testimony. Juan acknowledged on cross-examination he had never spoken to defense counsel or discussed the case with him before the trial. Juan had given so many different versions of what occurred on the night in question it would have been impossible for trial counsel to know whether everything he might say under an aggressive direct examination by the prosecution would support the defense theory. It was therefore a reasonable tactical decision by defense counsel to allow Juan’s prior conviction to come in for his own possible impeachment use. We are also not persuaded counsel was ineffective for failing to request the evidence be “sanitized” to reflect a generic murder conviction. (See People v. Hinton (2006) 37 Cal.4th 839, 888 & fn. 17 [no ineffective assistance in failing to seek to sanitize evidence concerning the defendant’s own prior convictions].)

Defendant further contends the trial court violated his constitutional right to due process by failing sua sponte to give a limiting instruction precluding the jury from using Juan’s murder conviction as evidence against him. Defendant’s argument is considerably weakened by his decision to ignore the instruction the trial court did give at the time Juan testified as to his conviction. In any event, absent an extraordinary likelihood of jury misuse, the trial court had no sua sponte duty to give limiting instructions on the use of evidence. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051–1052.) This is not one of those exceptional cases. Limiting instructions were in fact given, the prosecution made no argument that Juan’s conviction proved defendant’s guilt, and there is no evidence the jury decided the case based on Juan’s conviction.

We find no trial court error or ineffective assistance of counsel arising from Juan’s testimony that he was convicted of murder in connection with Hilarios’s shooting.

B. Disclosure of Felony-murder Basis for Juan’s Conviction

1. Facts

Under direct examination at defendant’s trial, Juan was asked about many of the statements he made to Sergeant Cruz concerning the events preceding the shooting. Juan repeatedly claimed Cruz did not allow him to say some things he wanted to say. In response, the prosecutor got Juan to admit that as part of a sentencing deal he reached with the prosecution after his own trial, he admitted he had lied when he testified at that trial Cruz had treated him unfairly and did not let him say some things he wanted to say. Then, under cross-examination at defendant’s trial, Juan again claimed much of what he had told Cruz and others was a lie.

After this testimony, the prosecution sought to impeach Juan’s testimony with a transcript of his admission at his sentencing hearing to the effect that Cruz had not coerced him to say things he did not want to say. Defendant objected. As a backup position, defense counsel insisted if the portion of the transcript containing the admission was read to the jury, other portions should also be read to show Juan was coerced into making the admission in order to avoid a life-without-parole sentence. The court ruled it would admit the portion sought by the prosecution and reserve a ruling on defendant’s request until later. The court took judicial notice of a portion of the transcript, which it read to the jury, in which Juan admitted (1) Cruz had not coerced or threatened him, (2) the portions of his statement to Cruz in which he described his brother and himself participating in a robbery at the time Hilarios was killed were true, and (3) his statements to the contrary at his trial were false.

Before the close of the defense case, defendant proposed specific further passages from Juan’s sentencing hearing be read explaining the reasons Juan retracted his trial testimony. The prosecution argued the reading should also include a passage in which the prosecutor in Juan’s case explained the reasons why he was proposing a lesser sentence, which included the fact Juan was found guilty of felony murder, not of being the shooter. Over the defense’s objection, the trial court took judicial notice of the passages proposed by both sides and read them to the jury. The prosecution portion disclosed that the prosecution in Juan’s case was willing to have the special circumstance allegation against Juan dismissed, in part, because he was 19 years old, and “was the non-shooter in a felony murder situation, ” and would agree to waive his appeal.

2. Analysis

Defendant contends the introduction of evidence informing his jury Juan had suffered a felony-murder conviction for the same incident was unduly prejudicial and violated his right to constitutional due process.

The felony-murder reference was irrelevant to impeach any witness’s credibility or for any substantive purpose. It was allowed solely to explain the willingness of Juan’s prosecutor to have the special circumstance finding against him stricken and to negotiate a reduced sentence. While it is difficult to discern from the record how this evidence mattered to the prosecution’s case, it is equally difficult to conclude that its inclusion prejudiced defendant.

There was no dispute about the fact defendant shot and killed Hilarios. The evidence this came about in the course of a robbery rather than in self-defense was overwhelming. First, there were Juan’s statements to Cruz that (1) defendant was holding a gun in his hand when they approached Hilarios and her companions; (2) he asked one of the Hispanic men, “What you got?, ” and went through his pockets for money before any gun came out or any shot was fired; and (3) defendant shot first and Hilarios fell immediately. The veracity of Juan’s admissions to Cruz was underlined to the jury by multiple factors—Juan’s testimony at trial in which he claimed not to remember his recorded statements to Cruz, his provably false statements to police before being confronted with the facts and evidence gathered against him and defendant, his attempt to hide the murder weapon by giving it to Simpson, and his admissions at his sentencing hearing that his statements to Cruz were true. Second, defendant’s hospital-bed admissions that (1) Juan went through one of the Hispanic men’s pockets before the shooting started, and (2) he “never saw the gun” that shot him, corroborated Juan’s statements establishing defendant did not shoot Hilarios while defending himself from an unprovoked attack. Third, the physical evidence corroborated Juan’s statements that Hilarios was killed by defendant in the course of a robbery—the loud shot followed by smaller caliber shots, the location of bullet casings, and the autopsy evidence showing defendant shot Hilarios from a position directly in front of her. Defendant’s self-defense claim was further undermined by the fact he fired his first shot at Hilarios, who was unarmed, rather than at the Hispanic man who allegedly pulled out his gun first. The prosecutor rightly emphasized the foregoing evidence in her closing argument, and did not mention or refer to the fact Juan was convicted based on felony murder.

In light of the record as a whole, we do not find it reasonably probable the verdict against defendant was affected by the passing mention made of the basis for Juan’s conviction. Any error in allowing it was therefore harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)

C. Admission of Defendant’s Hospital-bed Statement

1. Facts

Before trial, defense counsel moved to suppress incriminating statements defendant made to police while he was in the hospital being treated for his gunshot wounds. Although defendant had waived his rights under Miranda, supra, 384 U.S. 436, before speaking to the police, counsel argued, “because of his medical condition and drugs that were administered... he was not in a position to freely and voluntarily give a statement.”

The court had listened to the tape of Sergeant Cruz’s 24-minute interview with defendant before the hearing on defendant’s motion. Sergeant Cruz testified at the hearing. He stated he went to Highland Hospital with his partner at approximately 4:00 p.m. on December 3, 2003, to speak to defendant. Defendant had suffered gunshot wounds to his upper torso and a bullet had punctured one of his lungs. He was no longer in the intensive care unit when Cruz interviewed him, but was in a regular hospital room in Highland’s critical care unit, which Cruz characterized as providing care at “a very high level, ” but below intensive care. A uniformed officer assigned to the hospital was in the room with defendant.

The parties dispute how long after defendant was shot the interview took place. Although the hearing transcript is not entirely definitive on this point, the prosecution appears to have orally stipulated it was 13 hours. However, the trial testimony conclusively establishes defendant was shot before 1:00 a.m. on December 2. If so, the late afternoon interview on December 3 took place at least 39 hours after the shooting. Although it is not material to our review, we find the 39-hour time frame is the only one supported by the record.

Defendant had tubes from medical machines and devices attached to him. Cruz was certain defendant was receiving medication as part of his medical treatment, but he did not know what drugs defendant had in his system at the time of the interview. Cruz could not tell how much pain defendant was in, but he knew defendant had trouble speaking and breathing. Due to his physical distress, defendant told Cruz, “I can’t really talk that much. [¶]... [¶] [but] [i]f you [ask] me questions, I could give you the answers.” Cruz could see that although defendant’s “voice was low, ” he “was lucid and could carry on a conversation.”

Cruz based his conclusion that defendant was lucid on the quality of his answers to questions, and his ability to “provide[] some directions, ” identify the subject matter of pictures before they were placed directly in front of his face, identify people, talk about what happened, know where he was, and recall how and when he had received the firearm he had.

The court had defendant’s medical records available, and asked both parties after the close of testimony at the hearing if they wanted any part of that record put in evidence. Neither side requested anything, and defense counsel in particular responded by stating that Sergeant Cruz’s testimony was “pretty accurate as to what the medical records reflect.”

At the conclusion of the evidentiary hearing, defense counsel argued to the court defendant’s waiver of his rights could not have been voluntary due to the pain he was in and his medical condition. Citing Cruz’s testimony concerning the quality of defendant’s answers as confirmed by the tape, the direct responsiveness of defendant’s answers to the questions asked, and the tone of the questioning, the trial court found defendant’s Miranda waiver and statement were voluntary, and denied the motion to suppress.

2. Analysis

On appeal, we independently review the trial court’s legal determination of whether a defendant’s Miranda waiver was knowingly, intelligently, and voluntarily made. (People v. Mayfield (1993) 5 Cal.4th 142, 172.) We accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. (People v. Guerra (2006) 37 Cal.4th 1067, 1092–1093, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.)

A statement is involuntary unless it is “the product of a rational intellect and a free will.” (Blackburn v. Alabama (1960) 361 U.S. 199, 208.) It is not the product of a rational intellect and a free will if the petitioner’s will to resist is overborne. (Rogers v. Richmond (1961) 365 U.S. 534, 544.) “An accused’s will can be overborne by pressures engendered by physical or psychological coercion..., or by the influence of a drug [citation] or insanity [citation].... If an accused’s will is overborne because of impairment of his ability to exercise his rational intellect and free will, it is immaterial whether that impairment was caused by the police, third persons, the accused himself, or circumstances beyond anyone’s control. [Citation.] Nor is it material that the officers pursued no improper purpose in eliciting the confession [citation].... The only issue is whether the accused’s abilities to reason or comprehend or resist were in fact so disabled that he was incapable of free or rational choice. [Citation.] To determine this issue, the ‘totality of circumstances’ [citations] surrounding the interrogation must be considered.” (In re Cameron (1968) 68 Cal.2d 487, 498.)

Defendant first contends the prosecution’s failure to introduce evidence about the nature of the drugs he had in his system at the time of the interview or their effect, in itself, “militates against a finding that the prosecution satisfied its heavy burden of proving” a voluntary waiver. For this, defendant relies on In re Michael B. (1983) 149 Cal.App.3d 1073, 1085 (Michael B.), which involved a waiver of Miranda rights by a nine-year-old boy who had no prior experience with law enforcement, and who was so emotionally distraught he was crying and hyperventilating during his interrogation. The child was confused and unsure of what it meant to be represented by an attorney. He had been taken to the hospital and given a shot of valium to calm him down. (Michael B., at p. 1085.) The court emphasized it was applying a heightened standard because of Michael’s B.’s youth: “[A]ny purported waiver of a minor’s right against self-incrimination must be carefully scrutinized[, and] ‘... the greatest care must be taken to assure that the admission was voluntary....’ ” (Id. at p. 1083.) In that context, the court observed the lack of medical evidence or testimony as to the nature or quantity of the drug administered to him was a “glaring omission” in light of the prosecution’s burden of proving a valid waiver. (Id. at p. 1085.)

We do not find Michael B. particularly salient here. Defendant was nearly 18 years old at the time of the interview and was being tried as an adult. He had prior experience with law enforcement and he understood his rights. He was in physical distress due to his injuries, but he was not emotionally distraught at the time of the interview. Moreover, although defense counsel referred to drugs administered to defendant, his arguments for granting the motion to suppress relied primarily on defendant’s pain and medical condition. When defense counsel was asked if he wanted anything from defendant’s medical records to be put in evidence, he demurred. There was no evidence to suggest defendant’s judgment, will, or cognitive functioning was impaired by any drugs in his system. We decline to hold, based on Michael B., that it was also part of the prosecution’s burden of showing voluntariness in these circumstances to offer medical evidence about the quantity and effect of any drugs in defendant’s system.

Although defendant was injured, in pain, and under medical treatment, those factors in themselves do not establish a lack of voluntariness. (See, e.g., People v. Jackson (1989) 49 Cal.3d 1170, 1189 [defendant hospitalized, wounded, bandaged, and in restraints]; People v. Breaux (1991) 1 Cal.4th 281, 299 [defendant in pain, hospitalized, an hour after being shot, after receiving morphine injection].) Despite defendant’s physical condition in this case, there is ample evidence he understood his rights and voluntarily waived them. He directed the officers in how to conduct the interview. He clearly understood the questions asked and gave prompt, responsive answers. He recalled details and times. He recognized and identified pictures. For example, defendant identified a photo of his gun, recalled how and when he obtained it, explained the tape on its handle, and detailed his use of it at the scene. He was sufficiently aware of the situation he was in to offer mostly false and evasive accounts of the events surrounding the shooting. The questioning was not hostile, aggressive, or coercive. No threats or promises were made. Defendant did not seem frightened, agitated, or emotional during the interview. The entire interview lasted only 24 minutes. Based on the totality of the circumstances, we find defendant’s waiver of his Miranda rights was freely and voluntarily given, and the motion to suppress was properly denied.

III. DISPOSITION

The judgment is affirmed.

We concur: Dondero, J., Banke, J.


Summaries of

People v. Milton

California Court of Appeals, First District, First Division
May 10, 2011
No. A126868 (Cal. Ct. App. May. 10, 2011)
Case details for

People v. Milton

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ANTHONY MILTON, Defendant and…

Court:California Court of Appeals, First District, First Division

Date published: May 10, 2011

Citations

No. A126868 (Cal. Ct. App. May. 10, 2011)