Opinion
A163155
01-17-2024
THE PEOPLE, Plaintiff and Respondent, v. JOSIMAR ORTIZ-ORTIZ, Defendant and Appellant.
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-721589-1
HIRAMOTO, J. [*]
Defendant, Josimar Ortiz-Ortiz, appeals a judgment convicting him of second-degree murder and sentencing him to 15 years to life in prison. On appeal, defendant concedes, as he did in the trial court, that his conduct, driving while intoxicated and causing an automobile accident that resulted in the death of another driver, supports a manslaughter conviction. He contends, however, that the evidence relied on to establish that he harbored implied malice necessary to support the murder conviction was inadmissible. He argues that the admission of statements he made to the police both prearrest and post-arrest violated his constitutional rights because they were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He also argues that the police officer's opinion that defendant was driving at a "high speed" was unsupported. Finally, he asserts that he is entitled to resentencing under two recent statutory amendments. We find no prejudicial error in the admission of evidence at trial and we affirm defendant's convictions, but we agree that remand for resentencing is necessary.
Background
Defendant was charged with second-degree murder (Pen. Code, §§ 187, subd. (a),189, subd. (b)), gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), driving under the influence causing injury (Veh. Code, § 23153, subd. (a)), driving with a blood alcohol content above 0.08 percent causing injury (Veh. Code, § 23153, subd. (b)), and a misdemeanor violation of driving without a valid license (Veh. Code, § 12500, subd. (a).) The information further alleged that defendant had a blood alcohol level above 0.15 percent (Veh. Code, § 23578), that he caused great bodily injury to the other driver (§ 12022.7, subd. (a)), and that he had suffered a prior conviction for driving under the influence.
All statutory references are to the Penal Code unless otherwise noted.
At trial, it was undisputed that defendant drove with a blood alcohol level over 0.15 percent, crossed over the center line of a two-lane highway, and hit another car, causing the death of the other driver. It was also undisputed that defendant had been convicted of misdemeanor driving under the influence (DUI) approximately three years before the accident and that while on probation for the prior conviction, defendant completed a court-mandated DUI program.
A copy of defendant' signed plea form from his prior DUI case was admitted at trial. The plea form indicates that defendant was advised that he could be charged with murder if he caused a death by driving under the influence. Defendant's primary language is Spanish. The prosecution presented testimony from the interpreter who signed the plea form that her general practice was to interpret "line by line everything that is on the form ...." The prosecution also introduced records from the Sonoma County DUI program, which showed that defendant had completed the county's three-month first offender program. The person who oversaw the county's DUI program testified about what the program taught enrollees, including the effects of alcohol on cognitive function and motor skills, how alcohol use impairs driving ability, skills, and judgment, and the dangers associated with driving while impaired.
The California Highway Patrol Officer, who investigated the accident, testified that he spoke with defendant in Spanish at the accident scene. Initially, he requested defendant "go towards the front of my patrol vehicle" so they could "figure out what just had happened." Their conversation was recorded on the vehicle's dashboard camera and played for the jury. Defendant told the officer that he was going 35-40 miles per hour and that either he or the other driver crossed the center lane prior to the collision. He also said that he was trying to pass a slow-moving truck, crossed over the yellow lines, and then could not return to his lane. He said that he had three beers prior to the accident. The posted speed limit for that stretch of highway was 50 miles per hour.
During his interaction with defendant, the officer noticed symptoms of intoxication, including the smell of alcohol, red and watery eyes, and slurred speech. Officers also saw multiple open beer bottles scattered throughout defendant's car. The officer conducted a series of field sobriety tests and then two breathalyzer tests, which confirmed that defendant's blood alcohol level was above 0.15 percent.
Defendant was arrested and transported to the hospital, where a blood alcohol test further established that defendant's blood alcohol level was above 0.15 percent.
After the blood test, defendant was transported to the California Highway Patrol office. Prior to interviewing defendant, the officer advised him in Spanish of his Miranda rights. Defendant said he understood his rights and proceeded to speak with the officer. Defendant said that he had finished work that day at 2:30 p.m. After work, he went to a store and bought a six pack of beer. He had one-and-a-half beers in the parking lot. He then stopped at another liquor store, where he bought an additional six-pack of beer, and drank another two beers in the parking lot. He said that he drank a total of four beers.
Defendant said that, when he went to court for his prior DUI case, he was advised by a judge about the dangers of drinking and driving. The judge told defendant that drinking and driving could injure or kill him or another person. Defendant said that he understood what the judge had told him.
Defendant also said that he went to mandated DUI classes. In those classes, he learned that people should not drink and drive because they can cause an accident or kill someone. Defendant said he understood these dangers. He claimed to think about these dangers all the time and said that is why he barely drank on the day of the collision. Defendant said he bought the alcohol to drink at home. When the officer asked defendant why he had decided to drink and drive on the day of the collision, defendant said that it was a "weakness."
A second California Highway Patrol Officer testified that he performed a post-accident vehicle inspection on both cars involved in the collision. He did not identify any mechanical problems that would have contributed to the accident. He also opined that the crash was "high impact" or "high speed," though he did not provide a specific definition of "high speed."
The jury found defendant guilty of all charges and found true all enhancements and allegations. Defendant was sentenced to indeterminate sentence of 15 years to life for the murder conviction. As to the remaining counts, with the exception of count five (driving without a license) on which the court did not impose sentence, the court imposed upper terms and stayed execution of these sentences pursuant to section 654. The court also stayed execution of the sentence imposed on the great bodily injury enhancement.
Defendant timely filed a notice of appeal.
Discussion
I. Admission of Defendant's Statements to Law Enforcement
Defendant contends that the admission of his pre-arrest and postarrest statements to law enforcement violated his Fifth Amendment right against self-incrimination because the statements were obtained in violation of Miranda.
Under Miranda, supra, 384 U.S. at page 444, "the prosecution may not use statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." More specifically, "prosecutors may not admit a suspect's statements in their case-in-chief against the suspectdefendant unless (1) the defendant was advised that (a) 'he has a right to remain silent,' (b) anything he says 'may be used as evidence against him,' (c) 'he has a right to the presence of an attorney,' and (d) the defendant will be provided an attorney if he cannot afford one; (2) the defendant waived those rights, either expressly (by affirmatively indicating a waiver) or implicitly (by answering questions); and (3) prior to making the statements to be admitted, the defendant did not invoke either his right to remain silent or his Miranda right to an attorney." (People v. Orozco (2019) 32 Cal.App.5th 802, 811.)
To determine whether a trial court admitted a statement in violation of Miranda, supra, 384 U.S. 436, we independently review the application of law to facts. (People v. Weaver (2001) 26 Cal.4th 876, 918.) We generally accept the "trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence." (People v. Cunningham (2001) 25 Cal.4th 926, 992.) However, where "an interview is recorded, the facts surrounding the admission or confession are undisputed and [courts] may apply independent review." (People v. Duff (2014) 58 Cal.4th 527, 551.)
A. Pre-Arrest Statements
Defendant contends his pre-arrest statements were inadmissible because he was not read his Miranda rights prior to the officer's questioning. The Attorney General argues that no Miranda advisement was required because the interview was not custodial. We agree.
A Miranda advisement is required prior to a custodial police interrogation. "Whether a person is in custody is an objective test; the pertinent inquiry is whether there was '" 'a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.'" '" (People v. Leonard (2007) 40 Cal.4th 1370, 1400.)" 'Where no formal arrest takes place, the relevant inquiry, as with Fourth Amendment claims, "is how a reasonable man in the suspect's position would have understood his situation. [Fn. omitted.] . . ." [Citation.]' [Citations.] [¶] . . . 'Case law has identified a number of objective indicia of custody for Miranda purposes, such as (1) whether the suspect has been formally arrested, [fn.] (2) absent formal arrest, the length of the detention, [fn.] (3) the location, (4) the ratio of officers to suspects, (5) the demeanor of the officer, including the nature of the questioning.' [Citation.] . . . 'Accusatory questioning is more likely to communicate to a reasonable person in the position of the suspect, that he is not free to leave. [Citation.] General investigatory questioning may convey a different message. [Citation.]'" (People v. Bellomo (1992) 10 Cal.App.4th 195, 198-199; see also People v. Moore (2011) 51 Cal.4th 386, 395 ["All the circumstances of the interrogation are relevant to this inquiry, including the location, length and form of the interrogation, the degree to which the investigation was focused on the defendant, and whether any indicia of arrest were present".)
The California Supreme Court has held that "the term 'custody' generally does not include 'a temporary detention for investigation' where an officer detains a person to ask a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." (People v. Farnam (2002) 28 Cal.4th 107, 180; see also Berkemer v. McCarty (1984) 468 U.S. 420, 442 [temporary questioning of a detained driver suspected of being intoxicated is not necessarily custodial where the officer asks "a modest number of questions" and requests him to perform "a simple balancing test at a location visible to passing motorists"].) "General on-the-scene questioning may take place of persons temporarily detained by officers who do not have probable cause to arrest. Questioning under these circumstances is designed to bring out the person's explanation or lack of explanation of the circumstances which aroused the suspicion of the police, and thus enable the police to quickly ascertain whether such person should be permitted to go about his business or held to answer charges." (People v. Milham (1984) 159 Cal.App.3d 487, 500.)
At an Evidence Code section 402 hearing to determine whether defendant's statements to the officer should be excluded, the officer testified that when he started speaking to defendant, his goal was to "obtain a statement and see how the collision occurred." Within a few minutes of beginning to speak to defendant, the officer saw signs that defendant was intoxicated and decided to ask him additional questions before administering field sobriety tests. He asked a set of 21 questions that "include[d] what the person has been drinking all day, what time they started drinking, what time they stopped drinking, where were they coming from, where were they going." The officer read the questions "verbatim off a card" as he did for every DUI investigation. The officer then asked defendant to perform a series of field sobriety tests and ultimately a breathalyzer test. After defendant took the breathalyzer test, he was arrested. The officer estimated that the field sobriety tests took five to 10 minutes to conduct, and the total amount of time he spoke to defendant before arresting him was 40 minutes to one hour.
Although the interview was video recorded by the dashboard camera of the police car, neither the recording nor the English transcript was proffered at the suppression hearing. Both, however, were admitted at trial. As the Attorney General notes, our review of the trial court's ruling is limited to the evidence adduced at the suppression hearing. (People v. Garry (2007) 156 Cal.App.4th 1100, 1105, fn. 2; People v. Fiscalini (1991) 228 Cal.App.3d 1639, 1644, fn. 5.) In a separately filed order denying defendant's petition for writ of habeas corpus, we reject defendant's claim that his trial counsel rendered ineffective assistance by failing to introduce the video recording and transcript at the suppression hearing.
While 40 minutes to one hour is not necessarily brief, nothing suggests that the questioning extended longer than was reasonably necessary for the officer to obtain defendant's statement on the accident and then to determine whether defendant was intoxicated. The officer explained that after taking defendant's statement on the accident, he asked 21 standardized questions designed to determine if defendant was intoxicated. (See Berkemer v. McCarty, supra, 468 U.S. at p. 439 [the detention and questions posed by the officer must be"' "reasonably related in scope to the justification for their initiation"' "].) Only one officer asked the questions, and the questioning took place at the scene of the accident. Defendant was not restrained, and he had not been advised that he was under arrest. Combined, these factors distinguish this interview from an" 'interrogation at the police station, "which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek." [Citation.]'" (People v. Davidson (2013) 221 Cal.App.4th 966, 972.) Under the totality of the circumstances, the less-than-one hour interview was not custodial. (People v. Forster (1994) 29 Cal.App.4th 1746, 1754 [length of detention is not determinative where record contains a rational explanation for duration and no other objective indicia of arrest exists].)
Contrary to defendant's argument, the fact that this case involved a deadly accident rather than an" 'ordinary traffic stop'" is not determinative. The seriousness of the accident supports the officer's duty to conduct an immediate, in-field investigation, including taking defendant's statement. (See People v. Davidson, supra, 221 Cal.App.4th at p. 968 [" 'When circumstances demand immediate investigation by the police, the most useful, most available tool for such investigation is general on-the-scene questioning, designed to bring out the person's explanation . . . and enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.' "]; see also People v. Milham, supra, 159 Cal.App.3d at p. 500 [An officer's duties at an accident scene include an "obligation to get all of the information possible surrounding the causes of the accident"].) Although the purpose of the questions shifted from obtaining his statement about the accident to an under the influence inquiry, the questioning remained consistent with a routine in-field investigation rather than a custodial interrogation.
The record reflects the officer's questioning here was properly investigatory in the context of an accident involving two vehicles, obvious damage to both vehicles, injury to an involved occupant, and a driver who appeared intoxicated. On this point, People v. Milham, supra, 159 Cal.App.3d at pp. 499-500, is instructive. In that case, the officer approached defendant at the scene of an automobile accident in which two people died and asked whether he was involved in the accident. (Id. at p. 494.) The defendant indicated he was the driver and that he thought he might have killed his wife. (Ibid.) The officer asked some questions about the accident and then conducted a field sobriety test before arresting defendant. (Id. at pp. 494495.) The court acknowledged that "[t]he shift from investigatory to accusatory questioning can be very subtle," but concluded that all of the officer's questions in that case were properly considered investigatory, despite having observed signs of intoxication before asking several questions about the accident. (Id. at p. 500.) The same is true here. Nothing in the record suggests the officer was told defendant was intoxicated prior to attempting to get his statement about the accident. Once the officer observed signs of defendant's intoxication, the officer completed his investigation of the accident and then asked a series of standardized questions to help confirm or dispel his suspicions. Defendant was arrested once it was determined that he was intoxicated.
Finally, the officer's suspicion that defendant may be at fault due to his intoxication did not render the investigation a custodial interrogation. Because custody "depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned," the officer's suspicion that defendant may have been driving under the influence of alcohol is not pertinent to the Miranda custody inquiry. (Stansbury v. California, supra, 511 U.S. at p. 323.)
Because the interview was not a custodial interrogation, defendant's pre-arrest statements were properly admitted at trial.
B. Post-Arrest Statements
Defendant contends his post-arrest statements were inadmissible because the totality of the circumstances indicate that his waiver of his constitutional rights was not knowing and intelligent. Defendant argues, for the first time on appeal, that the officer's Spanish translation failed to properly convey his Miranda rights. He also reiterates the arguments made in the trial court that defendant's lack of education interfered with defendant's ability to understand the advisement and that defendant did not expressly or impliedly waive his rights.
1. Defendant was adequately advised of his rights in Spanish.
The officer testified that Spanish is his native language and the CHP has certified him as Spanish speaking. The officer testified that he advised defendant of his Miranda rights from a card with the advisements written in Spanish. At the pretrial hearing, the officer repeated in Spanish the advisements he gave defendant and, at the same time, testified to the English translations. The officer translated the Spanish advisements he gave defendant regarding defendant's right to an attorney as follows: "You have the right to speak to an attorney and have this attorney present with you when you're being interrogated. If you can't afford an attorney, one will be assigned to you to represent you during interrogation." The officer also explained that defendant was advised that "he is free to answer any questions or make any comments he likes, and if he decides to answer the questions, he can stop at any moment that he would like and reclaim his right to hire an attorney." After each advisement, the officer stopped to ask whether defendant understood and defendant indicated that he did understand. The transcript made of the videorecording of the interview is consistent with the officer's translation at the hearing.
According to the transcript prepared from the videorecording, defendant was advised: "You can also put aside your right to remain silent and your right to hire an attorney, and you can proceed at answering any questions or make whatever comment you [unintelligible] if you decide to answer the questions. You can stop at any moment and claim your right to hire an attorney." We note that while the officer indicated that he advised defendant that he could "reclaim his right" to an attorney, the transcript indicates that defendant was advised that he could "claim his right" to an attorney. Defendant does not suggest that this distinction is meaningful and, in this context, we find that the words have a similar meaning.
Defendant contends that the officer's advisement was inadequate because it did not "clearly communicate . . . that he was guaranteed an attorney at no cost if he chose to stop answering questions and invoke his right to counsel." Defendant concedes that this argument was not raised in the trial court. He asserts, however, "If this Court determines that appellant's claim of error is forfeited because trial counsel did not raise this particular objection in the trial court, this Court should find the issue cognizable on appeal because trial counsel's failure to object on that basis constituted constitutionally ineffective assistance of counsel." The Attorney General argues defendant forfeited this argument by failing to raise it in the trial court and that his ineffective assistance of counsel claim fails because there is no merit to his claim that the Spanish-language advisement was deficient.
We agree that defendant's direct challenge to the sufficiency of the Spanish translation of the Miranda advisement was forfeited by counsel's failure to raise it. (See Evid. Code, § 535; People v. Rundle (2008) 43 Cal.4th 76, 115-116, disapproved of on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ["defendant's entirely generic motion to exclude all of his statements to law enforcement officers, coupled with the absence of specific argument that defendant had invoked his right to silence at the end of the first interview, failed to preserve this claim for appeal"].) Accordingly, we address defendant's alternative ineffective assistance of counsel argument.
To establish a claim of ineffective assistance of counsel, an appellant "bears the burden of showing by a preponderance of the evidence that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel's deficiencies resulted in prejudice." (People v. Centeno (2014) 60 Cal.4th 659, 674; In re Welch (2015) 61 Cal.4th 489, 514; Strickland v. Washington (1984) 466 U.S. 668, 697.) The test for prejudice is whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland, at p. 694.)
In People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 17, the Court, in addressing whether a Spanish-language advisement was sufficient, reiterated that "Miranda admonitions require no 'talismanic incantation,' but they must contain each of the mandatory warnings, either as the high court set them out in Miranda itself or by some' "fully effective equivalent." '" In U.S. v. Perez-Lopez (9th Cir.2003) 348 F.3d 839, 848-849, the court explained that the "translation of a suspect's Miranda rights need not be perfect if the defendant understands that he or she need not speak to the police, that any statement made may be used against him or her, that he or she has a right to an attorney, and that an attorney will be appointed if he or she cannot afford one." Moreover, "[a]lthough language barriers may inhibit a suspect's ability to knowingly and intelligently waive his Miranda rights, when a defendant is advised of his rights in his native tongue and claims to understand such rights, a valid waiver may be effectuated." (U.S. v. Hernandez (10th Cir.1990) 913 F.2d 1506, 1510.)
Here, the officer read defendant his rights directly from a card on which the Spanish translation of the Miranda rights was written. It is undisputed that defendant was properly advised that he need not speak to the police, that any statement made may be used against him and that he has a right to have an attorney present during questioning, and that if he could not afford an attorney one would be appointed to represent him during the interrogation.
Defendant contends, however, that he was not properly advised that "he was guaranteed an attorney at no cost if he chose to stop answering questions and invoke his right to counsel." He argues that the use of the word" 'hire'" in the second part of the advisement "does not reasonably convey that a defendant is guaranteed an attorney at no cost." He also notes that the Spanish word "solicitar" which was translated as "hire" in this case, has been found to be "constitutionally infirm because it [does] not convey to [the defendant] the government's obligation to appoint an attorney for indigent accused." (United States v. Perez-Lopez, supra, 348 F.3d at p. 848.) As discussed below, defendant injects meaning into the language used in the advisement that he was given that is neither reflected in the record nor consistent with a reasonable suspect's understanding of the advisement given.
Initially, as the Attorney General notes, "the rights to waive and reclaim the right to an attorney are not rights that must be disclosed to an appellant under Miranda v. Arizona, supra, 384 U.S. at page 479 ...." (U.S. v. Bustillos-Munoz (10th Cir. 2000) 235 F.3d 505, 517 ["The Supreme Court's listing of the four [] Miranda rights does not include a constitutionally-compelled right to be warned that one may answer questions without an attorney being present, and then may decide to stop and consult an attorney ...." (italics omitted)].) Accordingly, the relevant question is not whether he was properly advised of his right to an attorney after he started answering questions, but whether the second part of the advisement nullified or made confusing, the initially correct advisement that he had the right to speak to an attorney and have this attorney present with his during questioning and that if he could not afford an attorney, one would be appointed to represent him during the interrogation.
We assess Miranda advisements "in their totality." (Duckworth v. Eagan (1989) 492 U.S. 195, 205.) Miranda warnings "are 'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.' [Citation.] Reviewing courts therefore need not examine Miranda warnings as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably 'convey to [a suspect] his rights as required by Miranda.'" (Duckworth, at p. 203; United States v. Loucious (9th Cir.2017) 847 F.3d 1146, 1151 [holding that Miranda warnings were sufficient based on what a "reasonable reading of the warnings . . . taken together conveyed" to the defendant].)
In this case, the officer's use of "hire" or "solicitar" in the second part of the advisement must be read in combination with the preceding advisement that the court would appoint an attorney if defendant could not afford one. Contrary to defendant's argument, neither hire nor solicit necessarily infer that payment by the defendant would be required. The Cambridge Dictionary defines hire as "to employ someone or pay someone to do a particular job." The Dictionary defines solicit as "to ask someone for money, information, or help." Defendant was initially informed that if he could not afford an attorney, "one would be assigned to represent him during interrogation." From this advisement, a reasonable person would understand that the operative condition for having an attorney assigned to represent him was the inability to afford one. In this context, having been informed of his right to have an attorney appointed to represent him during the interrogation at no cost, the word hire is reasonably understood to have a similar meaning as assigned or appointed without payment. A reasonable person would not infer from the use of the word hire that payment would be required merely because he waited to request appointment of counsel until after questioning commenced. A reasonable person would think that as long as he was not able to afford an attorney, "one would be assigned to represent him." Indeed, the use of the word "reclaim" (as the officer testified) or "claim" (as indicated in the transcription of the advisement) in the second advisement expressly directs the listener back to his right as originally defined as assigned without cost.
Where defendant was advised that the requirement for having an attorney appointed was the inability to afford counsel, an advisement that he could reclaim that right after questioning began did not suggest a limitation on the right to assigned counsel. People v. Sta Ana (2021) 73 Cal.App.5th 44, is instructive on this point. In that case, the police detective first advised defendant," 'You have the right to the presence of an attorney before and during any questioning'" and then advised," 'If you cannot afford an attorney, one will be appointed for you free of charge before any questioning, if you want.'" (Id. at p. 53.) The court rejected defendant's argument that Miranda advisements "were defective because the 'police officer told [defendant] only that he had a right to appointed counsel before, but not during, the interrogation.'" (Id. at p. 54.) The court explained that defendant's interpretation "is only one interpretation. The first advisement made clear that defendant had the right to an attorney before and during any questioning, and did not differentiate between retained or appointed counsel. The second advisement explained that defendant had the right to a free, appointed attorney, and noted that the attorney would be appointed 'before any questioning.' Read together, . . . the advisements reasonably conveyed to defendant that he had a right to counsel (retained or appointed) before and during any questioning, and that if he could not afford an attorney one would be appointed for him before any questioning began. Given the structure of the second advisement . . ., it would add nothing to inform defendant that an attorney would be appointed for him both before and during questioning because an attorney would have been appointed only once (i.e., before any questioning). '[N]othing in the warnings given [defendant] suggested any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general.'" (Ibid.) As in that case, a reasonable suspect in this instance would understand that he has the right to have an attorney appointed to represent him during the interrogation at no cost and that he could reclaim that right at any point in the interrogation.
Defendant's reliance on United States v. Perez-Lopez, supra, 348 F.3d 839, is misplaced. In that case, defendant was advised," 'En caso de que no tenga dinero, Ud. tiene el derecho de solicitar de la corte un abogado,'" which was translated to English as:" 'In case you don't have enough money or funds, you have the right to solicit the Court for an attorney.'" (Id. at p. 842.) The court found the use of the verb solicit inadequate insofar as it did not inform the suspect the government was "obligated" to appoint an attorney at no cost. (Id. at p. 848.) The court noted that instead, "[t]o be required to 'solicit' the court, in the words of [the] warning, implies the possibility of rejection." (Ibid.) In this instance, however, the use of the Spanish word solicitar in the second part of the advisement did not inject any uncertainty into defendant's right to be represented at no cost during the interrogation. As discussed above, defendant was clearly advised that if he could not afford an attorney, one would be appointed to represent him. He was then advised that he could put aside his right to solicit an attorney and answer the officer's questions. Finally, he was advised he could stop answering questions and reclaim his right to solicit an attorney. That is, defendant was advised he could reclaim his right to have an attorney assigned if he could not afford one and the subsequent use of the Spanish verb solicitar does not inject the possibility of a request for an assigned attorney being rejected as it did in Perez-Lopez.
Defendant's reliance on United States v. San Juan-Cruz (9th Cir.2002) 314 F.3d 384 is also misplaced. In that case, after being taken into custody at the Border Patrol Station, defendant was advised pursuant to his federal Administrative Rights that he had the right to have an attorney present during questioning but" 'not at the [G]overnment's expense.'" (Id. at p. 388.) Immediately thereafter, he was advised of his Miranda rights, including that if he could not afford an attorney, one would be appointed for him. (Ibid.) The court agreed with defendant that because the "two sets of conflicting instructions were read to him one after another . . ., their meaning became unclear." (Ibid.) The court explained, "When one is told clearly that he or she does not have the right to a lawyer free of cost and then subsequently advised, 'if you can't afford a lawyer, one will be appointed for you,' it is confusing. Requiring someone to sort out such confusion is an unfair burden to impose on an individual already placed in a position that is inherently stressful." (Ibid.) No such conflicting advice was given in this case. Defendant was advised of his right to have an attorney assigned if he could not afford one and then advised that he could reclaim his right to hire or solicit an attorney. The inconsistency present in United States v. San Juan-Cruz is not present in this case.
2. Defendant waived his Miranda rights.
"[A] valid waiver of Miranda rights may be express or implied." (People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218.) "A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights." (Id. at 218-219; People v. Cruz (2008) 44 Cal.4th 636, 667 [suspect can waive Miranda rights impliedly by willingly answering questions after acknowledging an understanding of his rights].) While the officer in this case did not obtain an express waiver, the circumstances support the finding of an implied waiver. After each advisement, defendant was asked whether he understood his right and responded that he did. He then, voluntarily answered the officer's questions.
Defendant's argument to the contrary is not persuasive. Defendant contends that while the officer asked defendant if he understood his rights, he did not "pause the interrogation to determine whether [defendant] waived his rights." Rather, after asking defendant whether he understood his rights, the officer immediately started questioning defendant without giving him a choice as to whether he wanted to proceed. He notes that the advisement, which the officer read from his phone, "was read in a much faster pace than that of normal conversation or the rest of the interrogation, and indicates it was more of a pro forma advisement than an actual attempt to ensure [defendant] understood his rights." As set forth above, however, the officer stopped after each advisement and obtained confirmation that defendant understood each individual right. Thereafter, defendant voluntarily started answering the officer's questions. Nothing more was required.
3. Defendant's waiver was knowing and intelligent.
The prosecutor" 'bears the burden of establishing by a preponderance of the evidence that [a defendant's] waiver was knowing, intelligent, and voluntary under the totality of the circumstances....'" (People v. Leon (2020) 8 Cal.5th 831, 843.) "The totality approach permits - indeed, it mandates - inquiry into all the circumstances surrounding the interrogation," including the defendant's "age, experience, education, background, and intelligence," and "whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." (Fare v. Michael C. (1979) 442 U.S. 707, 725.)
In determining whether a waiver of Miranda rights was knowing and intelligent, a court considers the totality of the circumstances, including "(i) the defendant's mental capacity; (ii) whether the defendant signed a written waiver; (iii) whether the defendant was advised in his native tongue or had a translator; (iv) whether the defendant appeared to understand his rights; (v) whether the defendant's rights were individually and repeatedly explained to him; and (vi) whether the defendant had prior experience with the criminal justice system." (United States v. Price (9th Cir. 2020) 980 F.3d 1211, 1226.)
Here, the trial court found the waiver knowing and intelligent. As set forth above, the officer advised defendant of his individual rights in Spanish and defendant indicated that he understood each individual right. Defendant then voluntarily answered the officer's questions. The trial judge explained that he had viewed the video and observed that defendant conducted "himself normally, listening to the questions, responding to the questions, to the admonition. He asks no questions of the officer to show any difficulty in either the translation or the content of what was being asked." The court rejected defense counsel's argument that defendant's lack of education or intelligence rendered the waiver unknowing. The court explained that counsel "presented no evidence of that at this portion of the case and therefore the Court can merely go on what he saw and heard from the officer and believes that Mr. Ortiz-Ortiz is of sufficient intellectual capacity to understand the admonishment and to freely and voluntarily answer the questions." The record supports the trial court's conclusion.
As in the trial court, defendant contends on appeal that his waiver was unknowing because he "did not have a high level of education." He notes that he told the officer conducting the field sobriety tests that he could not count to 20 and did not go to school and that he reported to the probation department that he had the equivalent of a third grade education in Mexico and did not write well. Courts have repeatedly held, however, that the lack of formal education does not "vitiate [a] voluntary Miranda waiver" where the suspect indicates that he "understood his rights after they were explained to him." (United States v. Bautista-Avila (9th Cir.1993) 6 F.3d 1360, 1366; People v. Miranda-Guerrero (2022) 14 Cal.5th 1, 18 [upholding waiver where defendant left school when he was eleven or twelve]; People v. Leon (2020) 8 Cal.5th 831, 840-844 [upholding waiver by a defendant who had failed sixth grade and "consistently performed in the borderline range on intelligence tests"].) Defense counsel did not establish that defendant's limited education interfered with his understanding of his rights and nothing in the record suggests that defendant's lack of formal education reflects a limitation on his mental capacity.
Defendant's argument, asserted for the first time on appeal, that defendant's prior experience with the criminal justice system is not sufficient to support the conclusion that his waiver was knowing and intelligent is misplaced. Defendant contends that his prior experience with law enforcement was only a misdemeanor DUI conviction and "there is no indication that he received a Miranda advisement or was represented by counsel during a police interrogation" in that case. The court, however, did not rely on defendant's prior criminal experience in concluding that his waiver was voluntary. While defendant's prior experience with the criminal justice system might further support the finding that defendant's waiver was knowing and intelligent, it is not necessary to support the finding in this instance.
Based on the totality of the circumstances, we conclude defendant's waiver of his Miranda rights was voluntary, knowing and intelligent and thus, his post-arrest statements were admissible at trial.
II. Admission of Police Officer's Expert Opinions
A. Factual Background
Over defendant's objections to his qualifications, a police officer testified for the prosecution as an expert in post-accident vehicle inspections. The jury was instructed that the officer was testifying as an expert "on the condition of the vehicle and whether or not . . . any mechanical condition contributed to this accident."
The officer testified that he performed a mechanical inspection on both cars involved in the accident. He did not find anything wrong with the steering, tires, or brakes of either car than could have caused the accident. He explained that when he inspected defendant's car, the speedometer displayed 71 to 72 miles per hour, and the tachometer displayed approximately 3750 revolutions per minute. He explained that the tachometer indicates how hard the engine is working, which is generally related to the speed of the car. He opined that the readings from the two gauges were consistent with each other. When asked the basis for this opinion, he explained, "I was doing research prior, I was looking at Volkswagen forums, and a lot of the drivers were saying that right around 55 miles [p]er hour, 65, they're running over 3,000 RPMs, which is pretty high, but this based off all the research and the forums I saw was pretty consistent of traveling 70 miles per hour when the vehicle is at almost a little under 4,000 RPMs." He also testified that the collision was "high speed" based on the extensive damage to the cars and the fact that the Beetle's transmission had become detached from the engine. The officer was extensively crossexamined on the basis for his conclusions. He admitted that he did not document which online forums he visited, write a report about his research, or include this information in the report he prepared about the vehicle inspection and that was disclosed to the defense. He did not speak to a mechanic about whether the tachometer reading was consistent with the speedometer reading. Finally, he agreed that he was not an accident reconstruction expert and had not done any calculations to determine the speed at which either car was traveling before the collision.
B. Analysis
Defendant claims that the trial court erred by admitting the testimony by the officer that the tachometer reading of 3,750 revolutions per minute was consistent with the speedometer reading of 71 to 72 miles per hour. He argues that because the officer's opinion "was based on his review of anonymous, online Volkswagen user forums rather than actual expertise or substantive research, the court erred in admitting his testimony." He concedes that counsel did not object to the admission of this evidence in the trial court, but he argues that the issue is cognizable on appeal because trial counsel twice objected to the officer's designation as an expert in mechanical defects. He argues further that, if the argument has been forfeited, he was denied effective assistance of counsel.
We need not determine whether the argument was forfeited because whether analyzed directly or as an ineffective assistance of counsel claim, the admission of this evidence, if error, was not prejudicial.
The erroneous admission of expert testimony requires reversal if it is reasonably probable that a more favorable result would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818.) To establish prejudice for purposes of the ineffective assistance of counsel claim, "defendant 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.] A defendant 'need not show that counsel's deficient conduct more likely than not altered the outcome in the case.' [Citation.] Rather, he must show 'a probability sufficient to undermine confidence in the outcome.'" (In re Welch (2015) 61 Cal.4th 489, 517.)
Defendant contends that the admission of the expert's "improper opinion was prejudicial because he told the jury that [defendant] was driving 70 miles per hour prior to the accident, which would have been 20 miles per hour over the speed limit." He argues this was prejudicial because (1) reckless driving is a highly revenant factor in distinguishing implied-malice murder from gross vehicular manslaughter while intoxicated, and (2) the expert's opinion portrayed his driving as more reckless than the evidence indicated.
Initially, we disagree that the expert's testimony that the readings on the speedometer and tachometer were consistent portrayed his driving as "more reckless" than the evidence indicated. The jury reviewed photographs of the significant damage to both cars after the accident. The expert described the damage to both vehicles as being caused by a "high impact" collision. The expert also noted that the transmission on defendant's car had been separated from the engine in the collision. Finally, the jury also had the benefit of the expert's observation that the speedometer reading on defendant's car was stuck at around 70 miles per hour when he inspected the car. Even assuming the expert's additional testimony suggesting that reading was accurate was inadmissible, the remaining evidence still indicated that defendant was traveling at a high rate of speed when he crossed over the center divider of the highway into on coming traffic.
More importantly, contrary to defendant's assertion, whether he was driving 20 miles over the speed limit or merely driving at a high rate of speed was not a "highly relevant factor in distinguishing implied-malice murder from gross vehicular manslaughter while intoxicated" in this case. The reckless acts alleged to have caused the death in this instance were defendant's driving while intoxicated and his crossing the center highway divider at a high rate of speed, not the precise amount of his speeding. Defendant conceded at trial that he was guilty of gross vehicular manslaughter while intoxicated. He argued, however, that the evidence was insufficient to establish implied malice necessary to prove second degree murder. The closing arguments focused on whether defendant had knowledge that driving while intoxicated could result in death. The prosecutor argued, based on his prior DUI conviction, that defendant knew that driving while intoxicated was dangerous to human life. Defendant disputed that the plea form from his prior DUI and his completion of the DUI class were sufficient to establish that he had knowledge of "the dangers of drinking and driving" sufficient to support a finding of implied malice. Thus, the critical question at trial was not whether defendant was speeding at all, but whether defendant had sufficient knowledge of the dangers of driving while intoxicated. In other words, whether he drove while intoxicated with the conscious disregard of, or indifference to a high risk of death or great bodily injury as required for gross negligence or whether he harbored a conscious disregard for human life, as required for second degree murder. (People v. Knoller (2007) 41 Cal.4th 139, 155-156 [A defendant's disregard of the risk of serious bodily injury is insufficient to support a finding of implied malice]; People v. Watson (1981) 30 Cal.3d 290, 296 [test for implied malice is subjective and requires a showing that the defendant "actually appreciate[d]" that death was a highly probable result].) Because the uncontroverted evidence established that he was traveling at a high rate of speed, the precise speed at which he was traveling was not the critical question. Accordingly, defendant was not prejudiced by any purported failure to object to the admission of the expert's opinion that the readings on the speedometer and tachometer were consistent.
The jury was instructed that implied malice for purposes of the murder charge required the prosecution prove defendant "intentionally committed an act; [¶] 2. The natural and probable consequences of the act were dangerous to human life; [¶] 3. At the time he acted, he knew his act was dangerous to human life; [¶] and [¶] 4. He deliberately acted with conscious disregard for human life." In contrast, the jury was instructed that "[a] person acts with gross negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with gross negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act."
III. The Matter is Remanded for Resentencing
Defendant contends that the matter must be remanded for resentencing under recent amendments to sections 654 and 1170, subdivision (b), that became effective after his sentencing, and which apply retroactively to his case. The Attorney General agrees that remand is appropriate under the amendment of section 1170, subdivision (b) by Assembly Bill No. 124 (2021-2022 Reg. Sess.) and that we need not address defendant's remaining arguments because defendant would be entitled to a full sentencing hearing on remand. (People v. Jones (2022) 79 Cal.App.5th 37, 45-46 [where a defendant's sentence is potentially affected by recent amendments to sections 654 and 1170, subdivision (b), remand for a full resentencing is appropriate].) We agree and accordingly, shall remand for resentencing.
Assembly Bill No. 124 (2021-2022 Reg. Sess.) modified the court's discretion to select the lower, middle, or upper term for an offense in that if a defendant "has experienced psychological, physical, or childhood trauma," including "abuse" or "sexual violence," and that trauma "was a contributing factor in the commission of the offense," the trial court shall impose the lower term "unless the court finds that the aggravating circumstances outweigh the mitigating circumstances ...." (§ 1170, subd. (b)(6)(A).) The amendments became effective six months after defendant's sentencing and apply retroactively. (People v. Garcia (2022) 76 Cal.App.5th 887, 902.)
In his moving papers, defendant claimed that he suffered trauma but that the trial court did not assess whether his trauma was a contributing factor to his crime. The record includes some evidence to support his claim. According to the probation report, defendant stated that "two events . . . occurred shortly before the instant offenses which precipitated his alcohol use." First, his father died. Second, he was" 'raped' by two strangers, which 'happened just before everything.'" Defendant also wrote a letter to the trial court stating that he and his sister were raped by his uncles in 1999. The Attorney General concedes that in selecting the upper terms on count 24, the trial court did not consider whether defendant's trauma was a contributing factor in the commission of the offense, nor did it assess whether the aggravating circumstances outweighed any such mitigating circumstances. Accordingly, we agree that remand is appropriate because the record lacks a clear indication that the trial court would have imposed the same sentence under the amended version of section 1170. (People v. Banner (2022) 77 Cal.App.5th 226, 242 [" 'the appropriate remedy is to remand for resentencing unless the record "clearly indicate[s]" that the trial court would have reached the same conclusion' under the law as it now exists"].)
On remand, defendant is entitled to a full sentencing hearing. At that time, the court may consider defendant's additional arguments based on the additional amendments to section 1170, subdivision (b) by Senate Bill 567 and the amendment of section 654 by Assembly Bill 518. The court can also correct the error noted by respondent in the abstract of judgment and impose sentence on the misdemeanor conviction for driving without a valid driver's license (Veh. Code, § 12500, subd. (a)).
Disposition
Defendant's sentence is vacated, and the matter remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: BROWN, P. J. STREETER, J.
[*]Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.