Opinion
A145534
08-23-2018
THE PEOPLE, Plaintiff and Respondent, v. VILIAMI VULANGI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 051203496)
This is an appeal from judgment after a jury convicted defendant Viliami Vulangi of attempted murder, assault with a firearm, and shooting at an occupied vehicle, each enhanced for his personal use of a firearm. Defendant argues, inter alia, that his constitutional rights were violated when law enforcement failed to properly advise him of his right under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) to have an attorney present before and during questioning. In supplemental briefing, defendant raises new arguments that, in light of the electorate's enactment of Proposition 57, the Public Safety and Rehabilitation Act of 2016 (Proposition 57), on November 8, 2016, and subsequent statutory amendments, his case must be remanded to allow the trial court to decide in the first instance whether, first, he is fit to be tried in adult criminal court although he was 17 years old when committing these crimes and, second, whether the court should exercise its discretion to strike the consecutive 25-years-to-life term he received for the firearm enhancement. For reasons we will discuss, we agree with defendant that the recent passage of Proposition 57 requires that we conditionally reverse the judgment and remand this matter in accordance with the opinions set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 2012, a criminal information was filed charging defendant with the following crimes: attempted willful, deliberate and premeditated murder against M.M. (Pen. Code, §§ 187, subd. (a), 664, subd. (a)) (count one); assault with a firearm against W.M. (§ 245, subd. (a)(2)) (count two); and shooting at an occupied vehicle against W.M. (§ 246) (count three), with each count enhanced by his alleged personal use and discharge of a firearm and causation of great bodily injury.
Unless otherwise stated, all statutory citations herein are to the Penal Code.
Defendant, age 17 when the charged crimes were committed, was charged as an adult. Prior to trial, defendant's appointed counsel raised doubts as to defendant's competency to assist her in defending him, and the trial court thus scheduled a competency hearing for him. A jury thereafter found defendant competent, and a trial was scheduled to decide the charged offenses. Trial revealed the following facts.
I. Counts Two and Three (W.M.)
On April 8, 2011, W.M. left work at a Bay Point laundry shop to drive home in a van she borrowed from her boss. In the van with W.M. were two friends, A.H. and P.W. On Willow Pass Road, headed toward Pittsburg, W.M. drove past the La Chicana Market, where she saw 10 or more teens and adults gathered, mainly Hispanic, African-American and some Tongan. Suddenly, the van's passenger-side window shattered, and W.M. realized she had been shot in the torso below her right armpit.
Deputy Brad Imhoff responded to the scene at about 9:15 p.m., finding W.M. sitting in her van, seriously injured. W.M. told him that, before being shot, she had seen a group of African-American teenagers and adults congregated outside the La Chicana Market on Willow Pass Road. W.M., who frequented the Market, later testified that she recognized defendant as a Tongan youth who had previously asked her for cigarettes. She had no conflicts with any of the youths in the area.
At the hospital, W.M. spent a day and a half in intensive care. Her physician opted to leave the bullet in W.M. to avoid further jeopardizing her health. W.M. was left with a limp in her right leg and continuous pain.
II. Count One (M.M.)
On May 2, 2011, around 4:00 p.m., M.M. and two friends arrived in Bay Point to visit a friend at Bella Monte Apartments. Afterward, the friends visited La Chicana Market, where M.M. saw her cousin at a nearby bus stop and left to say hello to him. As they chatted, a group of about 10 teenagers walked past. Once her cousin had left, M.M. lingered, smoking a cigarette. Someone in a wheelchair asked to use her phone, but M.M. refused, at which point someone to her right said: "Hey, [b]itch." M.M. turned and saw someone taller than she wearing a black hood and pointing the barrel of a rifle at her face. Suddenly, this person shot her in the right cheek, shattering her jaw, before running toward the group congregated near the Market.
When responding officers arrived on the scene, M.M. described the shooter as a black male about six feet in height. She did not know him and was unsure if she could identify him. The officers noticed someone fitting M.M.'s description and gave chase, eventually apprehending J.P., who said he had seen someone else shoot M.M. with a small-caliber rifle. The officers ultimately released J.P. The officers' search of the area revealed no shell casings or firearms.
M.M., meanwhile, was transported to the hospital, where she remained in intensive care for several weeks. While there, M.M. had a feeding tube placed in her nose and a "trach" oxygen tube in her throat. As of trial, she still suffered continuous pain, requiring medication.
Detective Christina Holder first interviewed M.M. in the hospital, where she asked M.M. to respond in writing given her inability to talk. When presented with a photographic lineup, M.M. identified defendant as someone appearing familiar to her and as someone in the crowd at the scene of the crime, but not as the shooter. M.M. told the detective she did not really know defendant, but that he always looked at her as she drove by. Detective Holder ultimately cut the interview short because M.M. was very upset and crying. When she interviewed M.M. again about two weeks later, M.M. told her she could not remember who shot her, but was beginning to get "clues." M.M. also told Detective Holder she had marked defendant on the photographic lineup because " '[h]e's the one I remembered when I turned back.' " The shooter, she reported, was a "black male."
M.M. later identified defendant at the preliminary hearing as someone she recognized from the photographic lineup presented to her at the hospital.
At trial, M.M. initially testified that she did not know, and did not recall, whether defendant was the shooter. She also testified that she had repeatedly been threatened about testifying in court and was "terrified" to testify. Among other things, M.M. had received threatening cell phone calls from a person who said "they" knew where certain members of her family lived and "they" knew how to get to her if she came to trial. M.M. also testified that her brother, a known rapper, had told her that he had received threats and did not want her to testify. Further, just before the preliminary hearing, a companion of defendant's known to M.M. as "P.I." pulled up next to her while she was driving in Antioch and pointed a gun at her. M.M. reported this incident to Detective Holder, and later identified P.I. (real name, Phillip Walters) in a photograph shared with the detective. At the preliminary hearing, Walters jumped up in the courtroom and made intimidating statements to M.M., and later approached her in an intimidating manner while she sat on a bench outside the courthouse during a break.
Fearing "everything, every possibility," M.M. acknowledged these threats had affected her trial testimony. However, several days after M.M. had completed her testimony and been provisionally excused, she returned to the stand. Once there, M.M. explained that she had initially testified out of fear that she did not know if defendant was the shooter. M.M. then testified that she had not been sleeping and that "recently it's been me feeling like I need to do the right thing" by testifying truthfully: "Because . . . I know who shot me. I seen who shot me and I wasn't saying it." M.M. then identified defendant in court as the person who shot her, to wit, the person wearing the black hooded sweatshirt who then ran off into the crowd.
Inspector Aaron Ross from the District Attorney's Office later testified that M.M. had initially told him she would not comply with the subpoena because she feared for her safety. After she finally agreed to testify, Ross arranged for her to return to the Bay Area, and personally transported her to and from her hotel to the courtroom during trial. Ross assured M.M. that, regardless of her testimony, his office would assist her with her application to the witness relocation program.
M.M. also testified that, at the hospital, she had told Detective Holder she was unsure of the shooter although she recognized defendant as such when shown the photographic lineup because "I didn't want to say it. I was terrified from what happened to me. Like what else could happen to me, so I didn't want to say." She feared someone would come to the hospital to harm her. On cross-examination, she reiterated: "I wanted to come [back to court] because I want to get it off my chest so that I can have closure and move on with my life, and I didn't want to come because it's overwhelming and it's draining me."
III. Verdict, Sentence and Appeal.
At the trial's conclusion, the jury convicted defendant of the lesser included offense of attempted murder (count one), assault with a firearm (count two), and shooting at an occupied vehicle (count three). In addition, the jury found true all enhancements.
On May 15, 2015, the trial court sentenced defendant to a total prison term of 66 years to life. Specifically, defendant received nine years plus a consecutive 25-years-to-life term for the firearm enhancement on count one; a stayed term on count two and the related enhancement pursuant to section 654; and a consecutive seven-year term plus a consecutive 25-years-to-life term for the enhancement on count three.
On May 19, 2015, defendant timely appealed the judgment.
DISCUSSION
Defendant raises the following issues on appeal: (1) was he adequately informed of his rights under Miranda by Detective Holder; (2) is remand necessary in light of the passage of Proposition 57, which has brought legal changes to the trial court's authority to find a minor unfit to be tried in adult court and to strike or dismiss certain otherwise mandatory sentencing enhancements; (3) did the trial court erroneously impose a full consecutive sentence on count three, shooting at an occupied vehicle; (4) should this court conduct an independent review of the in camera hearing relating to the invocation of the Fifth Amendment right against self-incrimination by witness J.P.; and (5) should the matter be remanded to permit defendant to make a factual record for his future youthful offender parole hearing pursuant to section 3051? We address each issue as appropriate below, beginning with defendant's newly raised Proposition 57 arguments, which implicate the threshold issue of whether adult criminal court was the appropriate forum for his case.
I. Proposition 57 (Sen. Bill No. 620).
In supplemental briefing, defendant raises two new arguments based upon the electorate's passage of Proposition 57 on November 8, 2016. Specifically, defendant argues that remand is necessary in light of this new initiative, first, to permit the trial court to hold a "fitness" hearing to determine whether his case should be heard in juvenile court rather than adult court and, second, to permit the trial court to exercise its discretion to strike or dismiss the enhancement against him for personal use of a firearm. We address each argument in turn below.
A. Fitness to Be Tried As an Adult.
At the time defendant was charged, the prosecutor lawfully chose to file the charges against him directly in adult court rather than juvenile court although he was age 17 when the crimes were committed. However, once Proposition 57 became effective in November 2016, while this appeal was pending, prosecutors became barred from charging juveniles with crimes directly in adult court. Under this new law, a prosecutor must commence an action in juvenile court and, if the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct a "transfer hearing" to determine whether the matter should remain in juvenile court or be transferred to adult court. "Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult. (See Welf. & Inst. Code, § 707, subd. (a).)" (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303 (Lara).)
Here, in supplemental briefing, the parties disagree on whether this initiative should apply retroactively, so as to require remand of this matter to the trial court to hold a "fitness" hearing to assess whether defendant should be in juvenile or adult court. After briefing concluded, however, the California Supreme Court issued the Lara decision, which definitely decided the issue of Proposition 57's retroactivity in defendant's favor. (Lara, supra, 4 Cal.5th at pp. 303-304.)
Specifically, the Lara court aptly explained: "In In re Estrada (1965) 63 Cal.2d 740 [48 Cal. Rptr. 172, 408 P.2d 948] (Estrada), we held that a statute that reduced the punishment for a crime applied retroactively to any case in which the judgment was not final before the statute took effect. In People v. Francis (1969) 71 Cal.2d 66 [75 Cal. Rptr. 199, 450 P.2d 591] (Francis), we applied Estrada to a statute that merely made a reduced punishment possible. Estrada is not directly on point; Proposition 57 does not reduce the punishment for a crime. But its rationale does apply. The possibility of being treated as a juvenile in juvenile court—where rehabilitation is the goal—rather than being tried and sentenced as an adult can result in dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the possible punishment for a class of persons, namely juveniles. For this reason, Estrada's inference of retroactivity applies. As nothing in Proposition 57's text or ballot materials rebuts this inference, we conclude this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Lara, supra, 4 Cal.5th at pp. 303-304.) Accordingly, the People's argument against retroactivity was soundly rejected.
Moreover, the Lara court also addressed the appropriate remedy in a case, just like ours, where the defendant has already been convicted by a jury but his appeal remains pending. In doing so, the high court endorsed the remedy ordered on remand by our appellate colleagues in the Fourth District, Division Three, in a recent decision, People v. Vela (2017) 11 Cal.App.5th 68, review granted July 12, 2017, S242298 (Vela). As summarized in Lara, the Vela remedy is thus: "After finding that the defendant was entitled to a transfer hearing, the Vela court considered the remedy. It began by noting that the 'jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a "jurisdictional hearing," or effectively a second trial, in the juvenile court.' (Vela, supra, 11 Cal.App.5th at p. 81, rev.gr.) Noting that an 'appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances . . ." (Pen. Code, § 1260),' the court ordered a limited remand. (Id. at p. 81.) [¶] Specifically, the Vela court ordered as follows: 'Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. ([Welf. & Inst. Code,] § 707.) When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. (§ 707, subd. (a)(1).) If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then Vela's convictions and sentence are to be reinstated. (§ 707.1, subd. (a).) On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate "disposition" within its discretion.' (Vela, supra, 11 Cal.App.5th at p. 82, rev.gr.)" (Lara, supra, 4 Cal.5th at pp. 309-310.)
We agree with this approach. As aptly explained by the Vela court (and as quoted in Lara), " 'for a minor accused of a crime, it is a potential "ameliorating benefit" to have a neutral judge, rather than a district attorney, determine that he or she is unfit for rehabilitation within the juvenile justice system. While a district attorney has an obligation to be objective and impartial, the duty of that position is also to act as a zealous advocate. (People v. Eubanks (1996) 14 Cal.4th 580, 590 [59 Cal.Rptr.2d 200, 927 P.2d 310].) And the impact of the decision to prosecute a minor in criminal court rather than juvenile court can spell the difference between a 16-year-old minor such as Vela being sentenced to prison for 72 years to life, or a discharge from the DJJ's [Division of Juvenile Justice] custody at a maximum of 23 years of age. After the passage of Proposition 57, a juvenile court judge can only make that irrevocable decision after receiving a probation report and after conducting a full hearing considering the minor's prior history, the circumstances of the offense, and several other factors relating to his or her youth and immaturity. ([Welf. & Inst. Code,] § 707, subd. (a).)' " (Lara, supra, 4 Cal.5th at pp. 308-309, quoting Vela, supra, 11 Cal.App.5th at p. 77, rev.gr.)
We thus conclude the same conclusion and remedy are appropriate here. First, applying the reasoning and conclusions of the newly binding California Supreme Court authority, we agree with defendant that this case should be remanded. Following the Vela approach endorsed by our Supreme Court, we conditionally reverse defendant's conviction and sentence and order the juvenile court on limited remand to conduct a juvenile transfer hearing with the following instructions: When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer defendant's cause to a court of criminal jurisdiction. (Welf. & Inst. Code, § 707, subd. (a)(1).) Then, if after conducting the juvenile transfer hearing, the court determines that it would have transferred defendant to a court of criminal jurisdiction on the ground that he is "not a fit and proper subject to be dealt with under the juvenile court law," then his convictions and sentence are to be reinstated. (Id., § 707.1, subd. (a).) If, however, the juvenile court instead finds that it would not have transferred defendant to a court of criminal jurisdiction, then it shall treat his convictions as juvenile adjudications and impose an appropriate disposition within its discretion. (Lara, supra, 4 Cal.5th at pp. 309-310, citing Vela, supra, 11 Cal.App.5th at p. 82, rev.gr.) While some may deem this remedy unusual in its complexity, the California Supreme Court made quite clear "[t]he potential complexity in providing juveniles charged directly in adult court with a transfer hearing is no reason to deny the hearing." (Lara, at p. 313.)
B. Discretion to Strike or Dismiss Personal Use of Firearm Enhancement.
We now turn to another aspect of Proposition 57. On October 11, 2017, in accordance with a separate part of Proposition 57, the Governor signed Senate Bill No. 620, ending the statutory prohibition on a court's ability to strike a firearm enhancement allegation or finding. Effective January 1, 2018, sections 12022.5, subdivision (c) and 12022.53, subdivision (h) were thus amended to allow the trial court to exercise its discretion under section 1385 to strike or dismiss such an enhancement at the time of sentencing or resentencing. In this case, sentencing occurred before these amendments took effect. Thus, under the prior versions of the statutes, the trial court imposed a 25-years-to-life sentence for each firearm enhancement (as to counts one and three). Both parties agree, however, these statutory amendments were intended to apply retroactively to cases, like this, where the defendant has been convicted but the judgment is not yet final pending appeal. We likewise agree.
The law on this point is well established. As discussed in the previous section, " 'when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature.' [Citation.] As the Supreme Court stated in Estrada, "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.' (In re Estrada, supra, 63 Cal.2d at p. 745.)" (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.)
And, as both parties recognize, "the amendment to subdivision (h) of Penal Code section 12022.53, which [took] effect before the judgment in this case [was] final, necessarily reflects a legislative determination that the previous bar on striking firearm enhancements was too severe, and that trial courts should instead have the power to strike those enhancements in the interest of justice. Moreover, because there is nothing in the amendment to suggest any legislative intent that the amendment would apply prospectively only, we must presume that the Legislature intended the amendment to apply to every case to which it constitutionally could apply, which includes this case." (People v. Woods, supra, 19 Cal.App.5th at p. 1091.)
Yet, while agreeing the Legislature intended the amended version of section 12022.53, subdivision (h) to apply retroactively, the People nonetheless argue remand is not warranted in this case because it is clear from the record that the trial court would not exercise its discretion to strike or dismiss the firearm enhancement against defendant in light of certain aggravating factors. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [although the Legislature intended statutory amendment to apply retroactively, in that case, remand would be futile].) Specifically, the People point to the fact that the trial court declined to take any steps during sentencing to minimize defendant's sentence, for example, by imposing the low term or, assuming it could do so, by imposing a concurrent sentence rather than a consecutive sentence for the section 12022.53 enhancement.
Having reviewed the relevant record, we agree with defendant that the trial court should, in the first instance, have the opportunity to exercise its newly granted discretion to decide whether to strike or dismiss the firearm enhancement. In so concluding, we accept the People's point that the trial court found certain aggravating factors significant in determining defendant's sentence (including the fact that he engaged in violent conduct indicating that he posed a threat to society and that he previously performed unsatisfactorily on juvenile probation). However, we nonetheless decline to deny the trial court its power to consider the record anew in light of recent legislative developments. Accordingly, we conclude that, on remand, the trial court must in the first instance exercise its discretion to decide the fate of defendant's firearm enhancement. II. Miranda.
As discussed in Part I (pp. 6-11, ante), while remand is necessary in light of the legislative changes brought about by enactment of Proposition 57, this remand is limited. Under the Vela remedy, which we have adopted herein, "[t]he jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a 'jurisdictional hearing,' or effectively a second trial, in the juvenile court." (Vela, supra, 11 Cal.App.5th at p. 81, rev.gr.) Accordingly, notwithstanding our conditional reversal and remand, several arguments raised by defendant on appeal relating to the jury's convictions and findings remain for our consideration.
First, we turn to defendant's challenge to the sufficiency of the Miranda warnings he received on two separate occasions from Detective Holder during custodial interrogations. Specifically, he argues the detective failed to inform him of his right under Miranda to an attorney "both before and during questioning." The legal framework governing defendant's challenge is as follows.
In Miranda, "the United States Supreme Court 'determined that the Fifth and Fourteenth Amendments' prohibition against compelled self-incrimination required that custodial interrogation be preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney.' (Edwards v. Arizona (1981) 451 U.S. 477, 481-482 [68 L.Ed.2d 378, 384-385, 101 S.Ct. 1880].) . . . [¶] The '[f]ailure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda.' (Oregon v. Elstad (1985) 470 U.S. 298, 307 [84 L.Ed.2d 222, 230-231, 105 S.Ct. 1285].)" (People v. Bradford (1997) 14 Cal.4th 1005, 1033.) Accordingly, to comply with Miranda, there must be evidence that "at the time the station officers questioned defendant, he possessed 'a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.' [Citation.]" (Id. at p. 1036.)
As the highest court explains: "The rule in Miranda . . . was based on this Court's perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that 'the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system' established by the Court. [Citation.] Moreover, the lawyer's presence helps guard against overreaching by the police and ensures that any statements actually obtained are accurately transcribed for presentation into evidence." (Fare v. Michael C. (1979) 442 U.S. 707, 719.)
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda . . . , the scope of our review is well established. 'We must accept the trial court's resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained.' [Citations.] We apply federal standards in reviewing defendant's claim that the challenged statements were elicited from him in violation of Miranda." (People v. Bradford, supra, 14 Cal.4th at pp. 1032-1033.)
Applying these principles to the case at hand, we find the following facts relevant.
A. May 24, 2011 Custodial Interview.
On May 24, 2011, Detective Holder advised defendant that she was going to advise him of his Miranda rights before interviewing him. Defendant indicated his understanding of her statement by nodding his head up and down. Detective Holder described him at the time as very quiet and appearing tired and nervous. Detective Holder then advised him as follows:
"Before we start interviewing, I'm going to read your Miranda rights and I'm sure you have some questions for me and I have many for you. We can figure out what's going on and which direction we're going to take this. I can already see you have an idea, but we'll have to talk about it. You have the right to remain silent . . . . [Interruption.] [¶] . . . [¶] . . . Alright, like I was saying before, I'm sure you have a few questions for me and I have a few for you. But first, we're gonna read you your rights. You have the right to remain silent, anything you say may and will be used against you in court. You have the right for [sic] an attorney. If you cannot afford an attorney, an attorney will be representing for [sic] you free of charge. Do you understand each of these rights? Okay."
Following this advisement, defendant's questioning began. Often mumbling his answers, making it hard for the detective to understand him, defendant, among other things, admitted shooting M.M. Defendant explained that, while he did not know M.M., she frequently looked at him while driving by on Willow Pass Road. On the day in question, she approached and started talking to him, saying "[a]ll kinds of words." M.M. then began making phone calls, asking the person on the line to "shut down Willow Pass . . . ." Defendant felt scared and threatened.
About five minutes before the shooting, one of defendant's friends handed him a cut-down .22-caliber rifle that was already cocked. Not wanting his companions to "think I was a sucker or something," defendant walked around his friend and approached M.M. Once within a few feet of M.M., defendant shot her, an act he then demonstrated for Detective Holder. Asked to explain why, defendant responded: "I don't know," and "Because she was just looking at me." Defendant later added that M.M. had in the past driven by and stared at him, and that he had debated shooting her, although "[s]omething in my head was telling me not to do it, and something was telling me to do it." Immediately afterward, defendant realized it was a mistake and ran off.
During a break in his interview, defendant wrote M.M. an apology letter "from my heart," asking for her forgiveness.
B. May 25, 2011 Custodial Interview.
On May 25, 2011, Detective Holder again advised defendant of his Miranda rights before interrogating him a second time. Specifically, similar to before, she advised defendant:
"I'm going to read you your Miranda rights. And then we'll get to your questions. And then I'll tell you a couple of questions I have, okay. You have the right to remain silent. Anything you say may and will be used against you in court. You have the right to talk to an attorney. If you cannot afford an attorney, an attorney will be represented [sic] free of charge. Do you understand those rights? . . . Okay."
Afterward, defendant affirmed his understanding by nodding, appearing fresher and less lethargic than in the prior interrogation. This time, defendant was questioned about W.M.'s shooting. Initially, he denied being the shooter, but later he confessed shooting into the van's window, while maintaining he had no intention of shooting at a person. Rather, defendant explained that he had randomly shot at the van for no particular reason and was nervous when he learned someone had been shot. Beforehand, he had simply been playing with the rifle with friends. Defendant told Detective Holder he would get the rifle back; however, the next day he advised her that he had changed his mind about doing so.
C. May 20, 2012 Jailhouse Admission.
On May 20, 2012, at around 6:30 p.m., Deputy Sheriff Jonathan Ortega was working at the Martinez Detention Facility. During a routine room check, defendant, an inmate, presented him with an inmate request slip, stating: "I would like to move out of this module because I fear for my safety. This problem has something to do with my case." After Ortega escorted defendant to a private room so that they could speak privately, defendant told him that he had "a price on his head" because he had shot someone. When asked to explain, defendant added he was fearful because "I shot a rapper's sister. I shot her in Pittsburg, and it was not on accident." He further told Ortega the rapper was from Oakland and that the inmates from Oakland were going to "beat his ass." Ortega reported this incident to his supervisor, and defendant was thereafter "reclassified" and moved to a different module.
M.M.'s brother is a known Bay Area rapper.
D. Legal Analysis.
Below, after considering counsel's arguments and evidence relating to defendant's interrogations, his maturity, education and physical and mental health, the trial court denied defense counsel's Miranda motion, finding: "the People have proved by a preponderance of the evidence that the advisement was proper, that the defendant made a knowing, intelligent, and voluntary waiver [of rights]."
On appeal, defendant insists his Miranda rights were violated solely because the warnings he received from Detective Holder failed to specify he was entitled to an attorney before and during questioning. We reject this argument. While defendant is correct that "Miranda holds that a suspect must be apprised, inter alia, that he has the right to the presence of an attorney during questioning, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires[] (384 U.S. at pp. 478-479 . . .)," the California Supreme Court has clarified "the Miranda warnings are 'prophylactic' [citation] and need not be presented in any particular formulation or 'talismanic incantation.' [Citation.] The essential inquiry is simply whether the warnings reasonably ' "[c]onvey to [a suspect] his rights as required by Miranda." ' [Citation.]" (People v. Wash (1993) 6 Cal.4th 215, 236-237.) Indeed, in so holding, the California Supreme Court was addressing an argument much like defendant's. Acknowledging, as the defendant argued, that "the warning given to defendant [in that case] deviated from the standard form in failing to expressly state that defendant had the right to counsel both before and during questioning," the court nonetheless held that the defendant's Miranda rights were protected because the warnings " 'reasonably conveyed' his right to have an attorney present during questioning." (Ibid.) Accordingly, rather than simply consider whether defendant was expressly told of his right to an attorney before and during questioning, we consider whether, based on the advisement as a whole, the warnings he received reasonably conveyed his Miranda rights.
The defendant in People v. Wash was twice told he could have an attorney prior to any questioning. (People v. Wash, supra, 6 Cal.4th at p. 236.)
The record excerpts quoted above reflect that, before both custodial interviews, Detective Holder began by alerting defendant in a clear and straightforward manner that she was "going to read your Miranda rights" and that, afterward, he could ask her any questions he may have about "what's going on and which direction we're going to take this." Only after drawing defendant's attention to the fact that his Miranda advisement was forthcoming did Detective Holder inform him: "You have the right to remain silent[.] [A]nything you say may and will be used against you in court. You have the right for [sic] an attorney. If you cannot afford an attorney, an attorney will be representing for [sic] you free of charge. Do you understand . . . these rights?"
As the language, nearly identical in both instances, reflects, there were no time or other restrictions placed upon defendant's exercise of these rights. Rather, clearly and reasonably understood, Detective Holder's words informed defendant that he had a right to an attorney, period. We agree with the People and other courts that have found such language sufficient to protect a defendant's Fifth Amendment rights: "Miranda and its progeny simply do not require that police officers provide highly particularized warnings. Such a requirement would pose an onerous burden on police officers to accurately list all possible circumstances in which Miranda rights might apply. Given the common sense understanding that an unqualified statement lacks qualifications, all that police officers need do is convey the general rights enumerated in Miranda. Because [the officer] succeeded in doing so here, we cannot say that his Miranda warnings were erroneous." (U.S. v. Frankson (4th Cir. 1996) 83 F.3d 79, 82; accord, People v. Nitschmann (1995) 35 Cal.App.4th 677, 682-683 ["Detective Aceves asked [the defendant], '[y]ou understand that you have a right to speak to an attorney?' This was not qualified as to some future time. A reasonable person would believe that he or she had the right to counsel at that time"].)
In U.S. v. Frankson, the defendant challenged a Miranda advisement—to wit, that, " '[y]ou have the right to an attorney. If you cannot afford an attorney, the Government will get one for you' "—on the ground, as in our case, that it failed to specifically mention that the right to an attorney applies both " 'prior to interrogation' " and " 'during the interrogation.' " (83 F.3d at p. 82.) The federal court, like this court, rejected the defendant's challenge: "[The officer's] statement was clear in its inclusion of these circumstances. It communicated to [defendant] that his right to an attorney began immediately and continued forward in time without qualification. The Eighth Circuit, in United States v. Caldwell, upheld a nearly identical instruction—'[y]ou have a right for an attorney'—when it was attacked for being too general. That court explained that '[w]hen the only claimed deficiency is that of generality . . . we cannot hold the warning . . . amounts to plain error.' 954 F.2d 496, 502 (8th Cir.), cert. denied, 506 U.S. 819, 113 S.Ct. 65, 121 L.Ed.2d 32 (1992)." (U.S. v. Frankson, supra, at p. 82.)
In reaching this conclusion, we briefly address the relevance of evidence relating to defendant's age, education, background and intelligence to the issue at hand—to wit, whether he received adequate Miranda warnings. As the People point out, these factors are undeniably relevant to the totality-of-circumstances standard of assessing whether a defendant made a voluntary and intelligent waiver of his or her Miranda rights prior to questioning. (See People v. Lewis (2001) 26 Cal.4th 334, 383 ["To determine whether a minor's confession is voluntary, a court must look at the totality of circumstances, including the minor's age, intelligence, education, experience, and capacity to understand the meaning and consequences of the given statement"].) Here, however, defendant's argument goes to the adequacy of the instructions themselves rather than the voluntariness of his waiver.
We agree with the People. The only Miranda issue raised on appeal is whether the warnings defendant received were adequate to reasonably convey his Fifth Amendment rights. And Miranda itself draws the distinction between the "threshold" issue of a warning's adequacy and the subsequent issue of a waiver's voluntariness: "At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as to its exercise." (Miranda, supra, 384 U.S. at pp. 467-468.) After distinguishing this "threshold requirement," the high court explained its significance: "The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time." (Id. at pp. 468-469, fn. omitted, italics added.)
Thus, returning to the case at hand, for all the reasons stated above (pp. 12-19, ante), we conclude the warnings given to defendant by Detective Holder sufficed to "reasonably convey[]" his right to have an attorney present before and during questioning. (People v. Wash, supra, 6 Cal.4th at pp. 236-237.) Moreover, even were we to conclude otherwise (we do not), we would nonetheless conclude on this record that introduction of defendant's custodial statements to prove count one, attempted murder, was harmless beyond a reasonable doubt. (See People v. Sims (1993) 5 Cal.4th 405, 447 [applying Chapman v. California (1967) 386 U.S. 18 to assessment of prejudice arising from a Miranda violation].) For example, with respect to M.M., defendant himself asked a deputy sheriff to move him to a different housing module because he feared certain inmates from Oakland in his module were going to harm him, explaining without prompting: "I shot a rapper's sister. I shot her in Pittsburg, and it was not on accident." Undisputedly, M.M.'s brother was a rapper. In addition, M.M. testified after returning to the witness stand that she recognized defendant as the shooter, but did not initially tell Detective Holder or the jury because she was scared for her own and her family's safety after receiving numerous threats and warnings not to appear at trial. Given this extensive evidence of defendant's guilt on the attempted murder count, we conclude that any Miranda error must be deemed harmless beyond a reasonable doubt. (See People v. Sims, supra, 5 Cal.4th at p. 447.)
We need not address defendant's alternative argument that he received ineffective assistance of counsel, based on his trial counsel's failure to properly object to the adequacy of the Miranda warnings (because, when objecting, she conceded "an actual admonishment" was given). In the Respondent's Brief, the People expressly state they are not relying on defense counsel's forfeiture as a basis for seeking affirmance of the judgment.
The People do not argue that, in the absence of defendant's confession to Detective Holder on May 25, there is compelling evidence that defendant shot at W.M.'s van, thereby causing her substantial bodily injury (to wit, counts two and three). As such, the People appear to concede that, assuming a Miranda violation, the error was not harmless beyond a reasonable doubt. However, given our conclusion that no Miranda violation occurred, the People's concession in this regard does not require us to disturb the judgment as to W.M.
Accordingly, even were we to find defendant's Miranda warnings inadequate, we would nonetheless conclude any resulting error was harmless on this record.
III. Issues Conceded by the People.
Finally, the Attorney General concedes the remaining three issues raised by defendant on appeal—to wit, first, that the trial court erroneously imposed a full consecutive sentence on count three, shooting at an occupied vehicle; second, that we should conduct an independent review of the in camera hearing relating to the invocation of the Fifth Amendment right against self-incrimination by witness J.P.; and, lastly, that this matter should be remanded pursuant to section 3051 to permit defendant to make a factual record for his future youthful offender parole hearing. We agree.
First, with respect to sentencing, the parties correctly point out that the trial court imposed a full consecutive term on count three, in addition to the full consecutive enhancement under section 12022.53, subdivision (d), the latter of which was mandatory for the discharge of a firearm. This was error; section 1170.1, subdivision (a) states that a subordinate term (here, the term imposed on count three) should consist of one-third of the middle term. (People v. Sanders (2010) 189 Cal.App.4th 543, 558-560 ["the sentence imposed for the offense does not merge with the sentence on the enhancement"]; accord, People v. Mason (2002) 96 Cal.App.4th 1, 14-15.) Accordingly, we agree with the parties that the term imposed on count three should have been reduced to one year eight months, which is one-third of the middle term, in accordance with section 1170.1.
Second, we grant defendant's request, agreed to by the People, to conduct an independent review of the in camera hearing conducted in the trial court to determine whether witness J.P. properly invoked his Fifth Amendment rights when called to testify in defendant's trial. (See People v. Seijas (2005) 36 Cal.4th 291, 304 ["When . . . the relevant facts are undisputed, an appellate court should review independently the trial court's ruling permitting the witness to assert the privilege"].)
Lastly, we agree with the parties that it is appropriate in this case, pursuant to sections 3051 and 4801, to give defendant the opportunity on remand to make a record of information that may become relevant at a future parole hearing to his diminished culpability as a juvenile offender—unless, of course, under our remand instructions (see p. 22, infra), the trial court finds him unfit to be tried as an adult and treats his conviction as a juvenile disposition. (People v. Franklin (2016) 63 Cal.4th 261, 283 ["The Legislature has declared that '[t]he youth offender parole hearing to consider release shall provide for a meaningful opportunity to obtain release' (§ 3051, subd. (e)) and that in order to provide such a meaningful opportunity, the Board [of Parole Hearings] 'shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity' (§ 4801, subd. (c)).]"; id. at pp. 286-287 [ordering remand to the trial court for the limited purpose of determining whether defendant was afforded an adequate opportunity to make a record of information that will be relevant to the Board as it fulfills its statutory obligations under sections 3051 and 4801].)
DISPOSITION
Defendant's conviction and sentence are conditionally reversed, and the matter is remanded to the juvenile court with instructions to:
(1) Conduct a juvenile transfer hearing pursuant to Proposition 57 in accordance with the instructions provided herein. In the event the juvenile court decides to retain the matter within the jurisdiction of the juvenile court, then defendant's conviction and sentence will be deemed to be juvenile adjudications as of that date. The juvenile court is then to conduct a dispositional hearing within its usual timeframe.
(2) In the alternative, if the juvenile court determines that the matter should be transferred to the criminal division of the superior court pursuant to Proposition 57, the superior court should exercise its discretion and decide whether to strike or dismiss the firearm enhancements in accord with newly amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h).
(3) Further, following the transfer hearing, the appropriate court is further instructed on remand to: (a) correct the sentencing error with respect to count three by reducing the sentence to one-third of the middle term; and (b) permit defendant to make a record of information that would be relevant at a future youthful offender parole hearing.
(4) Finally, we have granted defendant's request for an independent review by this court of the in camera hearing conducted in the trial court to determine whether witness J.P. properly invoked his Fifth Amendment rights when called to testify, and, having conducted said review, conclude the trial court properly sustained witness J.P.'s claim of privilege.
In all other regards, the judgment is affirmed.
/s/_________
Jenkins, J. We concur: /s/_________
Siggins, P. J. /s/_________
Pollak, J.