Opinion
F060753 Super. Ct. No. 09CM7468
08-16-2011
THE PEOPLE, Plaintiff and Respondent, v. EDUARDO VASQUEZ, Defendant and Appellant.
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Louis F. Bissig and Donna L. Tarter, Judges.
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, Eduardo Vasquez (appellant) was found guilty in count 1 of assault with a deadly weapon and/or by means of force likely to produce great bodily injury by a life prisoner with malice aforethought (Pen. Code, § 4500), in count 2 of assault with a deadly weapon by a prisoner (§ 4501), and in count 3 of possession of a sharp instrument by a prisoner (§ 4502, subd. (a)). In a bifurcated proceeding, appellant admitted a prior strike allegation (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise stated.
The trial court sentenced appellant to 18 years to life on count 1, consisting of nine years doubled. It imposed and stayed a term of eight years on count 2 and six years on count 3. The court also imposed various fines and fees, including a restitution fine of $10,000 (§ 1202.4, subd. (b)).
Appellant contends that: (1) the trial court erred in denying his motion to suppress statements improperly elicited by a promise of leniency; (2) there is insufficient evidence to support his conviction of assault with malice aforethought; (3) a single assault cannot support a conviction for both a violation of sections 4500 and 4501; and (4) the court abused its discretion when it imposed a $10,000 restitution fine. We agree that his conviction for a violation of section 4501 cannot stand, but in all other respects affirm.
FACTS
On February 25, 2009, Correctional Officers R. Penzel and J. Prendez transported appellant, Jason Tufte and Marcos Vargas from the California Substance Abuse Treatment Facility (SATF) in a transportation van to a court proceeding. Sergeant S. Strown followed in another vehicle. The inmates wore jumpsuits, were restrained by waist restraints and leg irons, and their hands were cuffed to their waists by a three-inch chain. The inmates and the van were searched for weapons prior to the trip.
Following court proceedings, the three inmates were loaded back into the van to be returned to the SATF. The van had four compartments: Tufte was by himself in the forward compartment; Vargas and appellant were in the middle compartment, appellant on a bench behind Vargas. Although there are mesh barriers and metal sheets separating the compartments from each other, there is no barrier separating the two bench seats in the middle compartment.
As the van left the courthouse, Penzel heard a loud bang and saw appellant upright and hunched over Vargas, who was still seated. Prendez stopped the van and pulled Vargas out. The back of Vargas's neck and shoulder area had blood and "slice marks." Sergeant Strown, who was driving behind the van and also stopped, secured Vargas in the rear of the van and removed appellant. Penzel saw no blood on appellant. Strown searched the van for weapons, but found none.
The inmates were taken to the nearby county jail for body searches, but no weapons were found. A subsequent search of the van also failed to produce a weapon. The inmates were then transported to a triage treatment area at the SATF.
At 6:00 p.m. that evening, Correctional Officer Craig Lane was summoned, at appellant's request, to meet with him. At the time, appellant was on contraband surveillance watch, wherein his movements were restricted and his bodily functions monitored. During the meeting, which was videotaped, appellant told Lane where the weapon could be found in the van. A search of the van then uncovered an inmate-manufactured weapon that had been slid beneath the security barrier between the floor mat and the bottom of the barrier.
The parties stipulated that appellant was serving a life term at the SATF in Corcoran at the time of the incident.
Vargas testified that he and appellant were codefendants in a case and that there were no problems between the two of them when they attended the court proceeding. According to Vargas, he and appellant were in the van separated by a mesh metal gate. When the van's driver backed out from the courthouse, he went "the wrong way" and "had to make a U-turn to go right back to the right way" and, in the process, "he was driving erratically" or "[t]oo fast." Vargas claimed the driver jumped the curb and hit the brakes, injuring Vargas's shoulder in the process. Vargas claimed the neck wound was an old injury that must have reopened and bled. Vargas was impeached with a 2003 first degree robbery conviction.
DISCUSSION
1. Appellant's Custodial Statements
Appellant contends that the trial court erroneously denied his motion to suppress statements he made to police. Specifically, he contends the officers violated Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), because his statements were the impermissible result of a promise of leniency. We disagree.
Procedural History of Suppression Motion
In the evening after the incident, while appellant was on contraband surveillance watch, he requested to meet with prison officials. Correctional Officers Lane and Steve Cavagnaro met with him and videotaped the meeting. Prior to trial, appellant moved to suppress his statements made during this meeting. The parties stipulated to the admission of the videotape into evidence at the suppression hearing.
At the hearing, Lane testified that he conducted the interview in the "[c]ontraband surveillance watch" room, where inmates suspected of possessing a weapon are placed. Lane read appellant his Miranda rights, which appellant stated he understood. The following colloquy then occurred between the officer and appellant:
"Officer: Having these rights in mind, do you wish to talk to us now?
"[APPELLANT]: I'd like to make a deal ... about it.
"OFFICER: I'm sorry. We, we don't make deals.
"[APPELLANT]: Oh. That's what I ... that's what I called you guys for.
"OFFICER: Well ... do you know what you did with the weapon?
"[APPELLANT]: I know probably where it's at. You know [inaudible] . to me this ain't . no need for me to [inaudible] it that's why I told 'em look . I just called sergeant, and I give you guys one good restroom you know what I mean and then I . now you know . then we
go back out let you know where the weapons at. Otherwise there's just gonna be nothing found and I don't have nothing in me.
"OFFICER: Well that's not so much of a deal."
Appellant then continued to state that he was concerned about paperwork he needed to file for his upcoming trial and there was "no need" for him to be under contraband surveillance watch "all day." The officer explained that if a weapon was found, he "believe[d]" appellant would be sent back to his housing unit. Appellant asked if the officer would "give me your word." The officer stated that he could not do that, but it was only "common sense" that if they were able to retrieve the weapon "all three of you go back to your ... assigned housing unit." When appellant asked "So what about this potty watching?" the officer stated, "There's no need for it if we have the weapon." Appellant then proceeded to describe where the weapon was located in the van.
At the suppression hearing, defense counsel argued that appellant was placed in the watch room "only for the purpose of elliciting [sic]a statement from him." He described the room as having "horrible conditions" with "a single toliet [sic]," "hav[ing] to sleep on the floor on a mattress," and that appellant was unable to move his arms or to shower "for several hours." Defense counsel also argued that appellant's statements to the officers indicated that, if they did not wish to "make a deal" with him, he did not wish to speak further, thereby invoking his Miranda right to silence and "no further questions should have been asked at that time."
The trial court denied the motion, finding "no basis to make a finding that the statement was in [any way] coerced or given in violations of rights recognized under Miranda ...." Subsequently, at trial, the videotape was played for the jury.
Relevant Law and Analysis
The test for determining whether a confession is voluntary is whether the defendant's "'will was overborne at the time he [or she] confessed.' [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 404.) A confession may be found involuntary if it is extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. Although coercive police activity is a necessary predicate to establish an involuntary confession, such conduct does not itself compel a finding that a resulting confession is involuntary. The statement and the inducement must be causally linked. (Id. at pp. 404-405) In other words, the statement is involuntary only if the threat or promise induces the defendant to make the statement. (People v. Lucas (1995) 12 Cal.4th 415, 442.)
The California Supreme Court has observed:
"The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means. '[A]lthough adversarial balance, or rough equality, may be the norm that dictates trial procedures, it has never been the norm that dictates the rules of investigation and the gathering of proof.' [Citation.] 'The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' [Citation.]" (People v. Jones (1998) 17 Cal.4th 279, 297-298.)But an officer's mere advice or exhortation that it would be better for the accused to tell the truth when unaccompanied by either a threat or a promise does not render a subsequent confession involuntary. The distinction between permissible and impermissible police conduct does not depend upon the bare language of inducement. Instead, it depends upon the nature of the benefit to be derived by the defendant if he or she speaks the truth as represented by the police. (People v. Hill (1967) 66 Cal.2d 536, 549.) When the benefit pointed out by the police is simply that which flows naturally from a truthful and honest course of conduct, the subsequent statement will not be considered involuntary. (People v. Belmontes (1988) 45 Cal.3d 744, 773, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Under current law, no single factor is dispositive in determining voluntariness; rather, courts consider the totality of circumstances. (People v. Williams (1997) 16 Cal.4th 635, 661.) "'On appeal, the trial court's findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court's finding as to the voluntariness of the confession is subject to independent review. [Citations.]'" (People v. Holloway (2004) 33 Cal.4th 96, 114.)
Appellant's Statements
Appellant contends the officer's questioning violated Miranda because, when appellant said he wanted to make a deal, which he interprets as wanting to trade his silence for a promise that he would be returned to the general population, the officer said he couldn't make any promise, but his immediate statements to appellant indicated that he would be willing to make such a deal. We disagree.
Appellant was on contraband surveillance watch because no weapon was found on his person or in the van after the incident. Appellant expressed to the officer a desire to get out of contraband surveillance watch and return to his usual housing in order to complete some paperwork for his upcoming court date. When appellant asked the officer to "give me your word" that that would happen if he divulged the weapon's location, the officer said he could not do that. What the officer did state was that "it is only common sense if we get the weapon all three of you go back to your ... assigned housing unit" and that there was "no need" for contraband surveillance watch "if we have the weapon." When, as here, the benefit pointed out by the police to a suspect is merely that which flows naturally from a truthful and honest course of conduct, courts can perceive nothing improper in such police conduct. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1202.)
Based on the totality of the circumstances presented, we conclude appellant's statement was voluntary and admissible, and no Miranda violation occurred.
2. Sufficient Evidence of Malice
Appellant contends his conviction must be reversed because there was insufficient evidence of the malice element of aggravated assault by a life prisoner. We disagree.
When assessing "a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053.) Under this standard, "an appellate court must draw all inferences in support of the verdict that reasonably can be deduced and must uphold the judgment if, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. [Citation.]" (People v. Estrella (1995) 31 Cal.App.4th 716, 724-725.) "Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]"' [Citation.]" (People v. Kraft, supra, at pp. 1053-1054.) "'Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it.' [Citation.]" (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)
To convict a person of violating section 4500, the People must prove all of the following elements beyond a reasonable doubt: (1) a person was assaulted; (2) the assault was committed with a deadly weapon or by means of force likely to produce great bodily injury; (3) the assault was committed by a prisoner serving a sentence of life imprisonment; and (4) the assault was committed with malice aforethought. (People v. Jeter (2005) 125 Cal.App.4th 1212, 1216-1217; see also CALCRIM No. 2720.) "Malice aforethought as used in section 4500 has the same meaning as it has for murder convictions, requiring either an intent to kill or 'knowledge of the danger to, and with conscious disregard for, human life.' [Citations.]" (Jeter, supra, at p. 1216.)
Respondent provides a definition of malice based on section 7 and People v. Silva (1953) 41 Cal.2d 778, 782. This is incorrect. In People v. St. Martin (1970) 1 Cal.3d 524, 537, our Supreme Court determined that the definition of malice set forth in section 7 should not be used in a prosecution for violation of section 4500.
The jury was instructed on malice, pursuant to CALCRIM No. 2720, as follows:
"There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for this crime. [¶] [Appellant] acted with expressed [sic]malice if he unlawfully intended to kill the person assaulted. [¶] [Appellant] acted with implied malice if: [¶] He intentionally committed an act, that's Number 1. Number 2, the natural consequences to 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. Malice aforethought does not require hatred or ill will toward the victim. It is [a] mental state that must be formed before the act is committed. It does not require deliberation or the passage of any particular time."
Appellant contends that, while the evidence shows an assault with a deadly weapon by a life prisoner, it fails to show express or implied malice. We disagree. The evidence shows that appellant attacked Vargas when he was most vulnerable, from behind while Vargas was seated in the van and restrained by chains and handcuffs. When appellant was apprehended, Vargas had blood and "slice marks" on his shoulder and neck. It can be inferred from the evidence that appellant was somehow able to arm himself in anticipation of the attack. Appellant's conduct prior to and during the attack adequately proves that he possessed the required mental state of malice aforethought. Accordingly, appellant's challenge to the sufficiency of the evidence fails.
3. The Section 4501 Conviction
Appellant, a prisoner serving a life sentence at the time of the instant offense, was convicted of violating both sections 4500 and 4501. Appellant contends, and respondent concedes, that he cannot be convicted of both crimes because section 4501 is a lesser included offense of section 4500. We agree that appellant cannot be convicted of both crimes, but we reach this conclusion because, by section 4501's express terms, having been convicted of violating section 4500, he cannot also be convicted of violating section 4501.
Section 4500 provides, in pertinent part:
"Every person while undergoing a life sentence, who is sentenced to state prison within this state, and who, with malice aforethought, commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury is punishable with death or life imprisonment without possibility of parole...."Section 4501 provides, in pertinent part: "Except as provided in Section 4500, every person confined in a state prison of this state who commits an assault upon the person of another with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury, shall be guilty of a felony ... ."
Before January 1, 2005, section 4501 specifically stated that it did not apply to prisoners serving a life sentence: "Every person confined in a state prison of this state except one undergoing a life sentence who commits an assault upon the person of another ... shall be guilty of a felony (Former § 4501; see People v. Noah (1971) 5 Cal.3d 469, 475.) The statute was amended in 2004 to remove the phrase "except one undergoing a life sentence" and add the phrase "[e]xcept as provided in Section 4500." (Stats. 2004, ch. 405, § 17, p. 2824.) A Senate Rules Committee analysis states the purpose of the amendment: "At the request of the California District Attorneys Association, this bill corrects a drafting ambiguity. Penal Code Sections 4500 and 4501 are intended to complement each other. However, Penal Code Section 4501 uses nonstandard language to exempt Penal Code Section 4500. Instead of 'except one undergoing a life sentence,' the exception in Penal Code Section 4501 should read 'Except as provided in Section 4500.' This standard language would clarify that Penal Code Section applies to all cases except for those covered by Penal Code Section 4500." (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business analysis of Sen. Bill No. 1796 (2003-2004 Reg. Sess.) as amended July 27, 2004, p. 6.)
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As stated previously, the elements of the offense set forth in section 4500 are: (1) an assault on another person with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury; (2) with malice aforethought; (3) by a state prisoner; (4) serving a life term. The elements of the offense set forth in section 4501 are: (1) an assault on another person with a deadly weapon or instrument, or by any means of force likely to produce great bodily injury; (2) by a state prisoner; (3) except as provided in section 4500. As applicable here, "[e]xcept as provided in Section 4500" means, at the very least, that if a state prisoner serving a life term commits an aggravated assault with malice aforethought, thereby violating section 4500, section 4501 does not apply. Since appellant was convicted of that crime, he cannot also be convicted of violating section 4501. Accordingly, his conviction in count 2 must be reversed. Because appellant cannot be convicted of violating section 4501 under its express terms, we need not decide whether section 4501 is a lesser included offense of section 4500, as appellant contends.
4. Restitution Fine
Appellant contends that the trial court abused its discretion in imposing a $10,000 restitution fine under section 1202.4, subdivision (b) because he will not have the ability to pay the fine. At sentencing, appellant requested the minimum fine of $200, because appellant was "indigent." On appeal, he points out that at current prison wages, the earliest he could repay the fine would be between 60 and 80 years. We find no abuse of discretion.
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record." (§ 1202.4, subd. (b).) Where the defendant is convicted of a felony, the fine shall be set, at the discretion of the trial court, at between $200 and $10,000, commensurate with the seriousness of the offense. (§ 1202.4, subd. (b)(1).)
Appellant's inability to pay the fine is not a compelling and extraordinary reason not to impose the fine, but it shall be considered in setting the fine above the minimum of $200. (§ 1202.4, subds. (c) & (d).) Section 1202.4 presumes a defendant has the ability to pay the fine. (People v. Romero (1996) 43 Cal.App.4th 440, 448-449.) "A defendant shall bear the burden of demonstrating his or her inability to pay." (§ 1202.4, subd. (d).)
Here, while appellant put forth figures to show, at current prison wages, that it would be very difficult for him to pay the fine, or that it might never be paid, he did not show an absolute inability to pay the fine. In addition, in setting the amount, the trial court properly considered not only appellant's inability to pay, but also "the seriousness and gravity of the offense and the circumstances of its commission[.]" (§ 1202.4, subd. (d).) At sentencing, the trial court described appellant's crime as "particularly vicious" in that he "attacked the victim who was restrained in handcuffs tied from the waist from behind." Appellant's crime was serious and grave, and the trial court did not abuse its discretion in imposing the maximum fine.
DISPOSITION
The conviction of assault with a deadly weapon (§ 4501) is reversed. The matter is remanded with directions to the trial court to issue an appropriate amended abstract of judgment and to send a certified copy to the Department of Corrections and Rehabilitation. Appellant has no right to be present at that proceeding. (See People v. Price (1991) 1 Cal.4th 324, 407-408.) In all other respects, the judgment is affirmed.
DAWSON, Acting P.J.
WE CONCUR:
KANE, J.
POOCHIGIAN, J.