PEOPLE v. SAUCEDA-CONTRERAS

Appellant's Answer to Petition for Review

Cal.April 19, 2011

IN THE SUPREME COURTOFTHE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF _CALIFORNIA, Plaintiff and Respondent, Vv. JOSE SAUCEDA-CONTRERAS, Defendant and Appellant ) ) Supreme Court No. ) 8191747 ) ) Court ofAppeal No. ) G041831 ) . ) Superior Court No. ) O7NFO170 Fourth Appellate District, Division Three Orange County Superior Court, Honorable Richard F. Toohey, Judge ANSWERTO PETITION FOR REVIEW SUPREME COURT PILED APR 19 201 Frederick K. Ohirich Clerk Deputy Diane Nichols State Bar No. 174830 P.O. Box 2194 Grass Valley CA 95945 530-477-8448 dianelnichols@aol.com Attorney for Defendant And Appellant Jose Sauceda-Contreras By appointmentofthe Court ofAppeal underthe Appellate Defenders, Inc. independentcase system COPY TABLE OF CONTENTS Page(s) TABLE OF CONTENTS. Qu... cccecccsessessesseessessesssseeesessesesesssseeseeeaserseesenteneses i TABLE OF AUTHORITIES.0....cccccccccscesecsesssesseeessecsssressesseeeecsessecsreesetass ii QUESTION PRESENTED uu... .cccccssessssessescsscsesesscessessescsseeecsecsecussscseseesesees2 STATEMENTOF THE CASE uu... ccccceccccssesessssscesececceesseneecsecssesecseseeseasarens2 STATEMENTOF THE FACTS .0...ccccsccscsecsscsesssssesscseescsscsscsecsessacserevesseaeees 3 ARGUMENT0...eceecccccesessessecsecseesssseeeeseeessscsecsesseeesesesuecsscaucessssuseusenasenseas 5 This court need not grant review becausethere is no split of authority or decisional conflict, the question is not an important issue of law but a routine application of settled law to the facts of the case, and the decision of the Court of Appeal is sound and well-reasoned ...........ccccccecsececeeeeerees 5 CONCLUSIONooeecesccseeesesssessecssssecsecseseeesseseecsecsessessesnessssvessessnesaaes 1] WORD COUNTCERTIFICATION ou..ccccccccccscssecssssccsseescsesssecsecsessseseanes 12 DECLARATION OF SERVICE TABLE OF AUTHORITIES Page(s) CASES Berghuis v. Thompkins (2010) 560 U.S. [130 S.Ct. 2250, 176 L.Ed.2d 1098]...6, 7 Davis v. United States (1994) 512 U.S. 452 [114 S.Ct. 2350, 129 L.Ed.2d 362]...eee6,7 In re Manuel G. (1997) 16 Cal.4th 805... lececcssssscecsccccesscesssssesssesessssessseseceeseceerenss 10 Miranda v. Arizona (1966) 384 US. 436 [16 L.Ed 2d 694, 86 S.Ct. 1602]...2, 3, 8, 10 People vy. Williams (2010) 49 Cal.4th 405 wooo cccccccsssssecccssecsseccssssessssesessreserssececesceescsess 7 Smith v. Illinois (1984) 469 ULS. 91 [105 S.Ct. 490, 83 L.Ed.2d 488]...eee6, 8 CONSTITUTIONS UNITED STATES CONSTITUTION Fourth Amendment... ..ccccccccccscccscsscecesesescssececsssssesssesssuscestrsessteeeesseces 3 Fifth Amendment..........0ccccccscesscsscesscerecessscssecssesssesscessesssecsuscsstecsesees2,3 Fourteenth Amendment ..........c0ccccccccecsscecssseseesecseessecessesssesscesreesessecessees 3 STATUTES PENAL CODE Section 187, sUbdIVISION (A) ....c.cccccssseccssssesssecessecessacecssceseecaesceacsusassaecss2 CALIFORNIA RULES OF COURT Rule 8.500(a)(2) ..ccccccccsscsccsscssscsereccesecssececerscssteessssssssersusausersesereseeeeeees 1 ii TABLE OF AUTHORITIES (CONT’D) Page(s) CALIFORNIA RULES OF COURT(cont’d) Rule 8.5QO(D)(1) oo. cecceccesessssesseseseessesesscsescsessssscsevessccasssssesessssvarerseceneas 5 Rule 8.500(€)(4) ooei eeeeeceeccessesssssesecsesssccscscsesececsssesevsvecsususissseavevaraveaeesas 1 Rule 8.504(A)(1) occ cceccseesessesesessesscseesesscavsesscsecscsssacsesssrsveveesavereesanervans 12 OTHER AUTHORITIES CALIFORNIA JURY INSTRUCTIONS, CRIMINAL CALIIC No. 2.03 oc ecccscssesscescsessessessessecsessesscsecsesscssssscsssasssevaeeeseetacsaceaes3 JUDICIAL COUNCIL OF CALIFORNIA CRIMINAL JURY INSTRUCTIONS CALCRIM NO.362 oo. ccccccessssesssssseseesesessecscsesscsusscsesevsesersessceecacutavseeneass 3 ill IN THE SUPREME COURTOF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) CALIFORNIA, ) Supreme Court No. Plaintiff and Respondent, ) $191747 ) V. ) Court of Appeal No. ) G041831 JOSE SAUCEDA-CONTRERAS, ) Defendant and Appellant ) Superior Court No. ) O7NF0170 Fourth Appellate District, Division Three Orange County Superior Court, Honorable Richard F. Toohey, Judge ANSWERTO PETITION FOR REVIEW TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURTOF CALIFORNIA: Pursuantto rule 8.500(a)(2) and (e)(4), California Rules of Court,' appellant Jose Sauceda-Contreras answers respondent’s petition for review of the unpublished decision of the Court of Appeal, Fourth Appellate District, Division Three, filed February 16, 2011 in case number G041831, reversing the judgment. All further rule referencesare to the California Rules of Court unless otherwise indicated. QUESTION PRESENTED Whena suspectis advised of his Miranda’ rights, and responds,“If you can bring me a lawyer. . . that way I can tell you everything that I know and everythingthat I need to tell you and someoneto represent me,” may an officer ask questions to clarify whether the suspect wishedto invoke his Mirandarights? (Petition for Review (“PTR”) 1.) STATEMENT OF THE CASE After deliberating over the courseoffive days, a jury found appellant guilty of the first degree murder of Maria Mendoza (Pen. Code, § 187, subd. (a)). (2 CT? 308-309, 443, 453, 513-514; 3 RT 627-629.) Earlier, the court had denied appellant’s motion to suppress his statements to police pursuant to Miranda. (2 CT 422; 1 RT 72.) The court sentenced appellant to 25 years to life in state prison. (2 CT 555, 568; 3 RT 637.) On appeal, appellant challenged his conviction on seven grounds:(1) the trial court erroneously admitted his statements in violation of the Fifth Amendmentbecause he had unequivocally and unambiguously invokedhis right to counsel andsilence; (2) the trial court erroneously admitted * Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed 2d 694, 86 S.Ct. 1602] (hereafter “Miranda’’).) ““CT”standsfor the clerk’s transcript. “RT” standsfor the reporter’ s transcript. evidencein violation of the Fourth Amendmentbecausethejustification for the search lacked sufficient exigent circumstances; (3) the evidence appellant committed an act causing death was constitutionally insufficient under the Fourteenth Amendment to uphold the conviction; (4) the evidence of premeditation and deliberation was constitutionally insufficient under the Fourteenth Amendmentto upholdthe first degree murder conviction; (5) the change in Supreme Court-approved language of consciousness of wrongdoing in CALJIC No. 2.03 to consciousnessoflegal guilt in CALCRIM No.362 permitted the jury to draw irrational presumptionsofhis guilt of the charged crime, including his mentalstate, in violation of the Fourteenth Amendment; (6) there was cumulative and collective prejudice from all the errors; and (7) the appellate court should review subpoenaed material whichthetrial court reviewed but refused to release to defense counsel. The Court of Appeal, Fourth Appellate District, Division Three reversed the judgmentfinding that the trial court erroneously admitted appellant’s statements to police because he had unequivocally and unambiguously invoked his Fifth Amendmentright to counsel and silence pursuant to Miranda. (Typed opn., p. 13.) In light ofits reversal on the Mirandaissue, the court did not reach the remaining six issues. STATEMENT OF THE FACTS For purposesofthis petition for review only, appellant adopts the statement of facts set forth by the Court of Appeal in its opinion. (Typed opn., pp. 2-12.) ARGUMENTS THIS COURT NEED NOT GRANT REVIEW BECAUSE THEREIS NO SPLIT OF AUTHORITY OR DECISIONAL CONFLICT, THE QUESTIONIS NOT AN IMPORTANTISSUE OF LAW BUT A ROUTINE APPLICATION OF SETTLED LAW TO THE FACTS OF THE CASE, AND THE DECISION OF THE COURT OF APPEAL IS SOUND AND WELL-REASONED. Underrule 8.500(b)(1), there is no necessity for review in the present case. First, this court’s guidance is not needed because there is no lack of uniformity of decision amongthe appellate courts. Second, any decision by this court would have limited impact, because there is no important question of law as the case turns onits facts and involves an everyday application ofprinciples settled by the United States Supreme Court to a specific fact pattern unlikely to recur in cases. Third, the appellate decision in this case is sound and well-reasoned, so review is not required. Lastly, were this court to grant review and reverse the Court of Appeal after briefing and decision, there are a numberofunresolved constitutional issues which would need to be remandedto the Court of Appeal for a decision. This court should deny review. First, under Grounds for Review, respondent maintainsthat this court must review the decision “to secure uniformity of decision.” (PTR 1.) However, respondenthas not cited any case law showinga decisional conflict among the appellate courts, between California law and federal law, or between another court’s decision and that of the appellate court in this unpublished decision. (PTR 1-2.) Respondentalso asserts this court should review the decision “‘to resolve the existing ambiguity in the law as to how law enforcement officers should proceed when an arrestee mentions an attorney, but at the same time demonstrates he is willing to waivehis rights and talk to investigators.” (PTR 2, emphasis added.) Putting aside for the moment respondent’s interpretation of what appellant demonstrated by his answer, there is no ambiguity in case law, and respondenthasnotcited any decisions showing such existing ambiguity. The question of what police are to do whena suspect speaksofan attorney and expresses a willingness to talk is already answered by Smith v. Illinois (1984) 469 U.S. 91 [105 S.Ct. 490, 83 L.Ed.2d 488] (“Smith”), whichstates that all questioning must cease after a clear and unequivocal request for an attorney and Davis v. United States (1994) 512 U.S. 452, 459, 461-462 [114 S.Ct. 2350, 129 L.Ed.2d 362] (“Davis”), which states that objectively ambiguous or equivocal referencesto an attorney do not require the cessation of questioning. The cases respondenthascited in the Argumentsection do not show any decisionalsplit or existing ambiguity of law. (PTR 6-14.) For example, respondentcites Berghuis v. Thompkins (2010) 560 U.S. [130 S.Ct. 2250, 176 L.Ed.2d 1098] but never argues that its reasoning contradicts the result reached here. (PTR 11-12.) Indeed, in Berghuis v. Thompkins, the United States Supreme Court merely re-affirms both the reasoning and result of Davis, supra, 512 U.S.at p. 462, that invocations be unambiguous and that compulsionis inherent in custodial interrogation. (Berghuis v. Thompkins, supra, 560 U.S. __, __ [130 S.Ct, at p,. 2260.) Nor does respondent ever explain how People v. Williams (2010) 49 Cal.4th 405 (“Williams”), indicates a split of authority or illustrates any ambiguity in decisional law. (PTR 13-14.) Asthe opinion here points out, its result does not conflict with that in Williams. (Typed opn., p. 21.) Williams is simply inopposite to the present case on its facts. (Typed opn., p. 20.) Unlike the defendant in Williams, appellant did not clearly indicate he would relinquish his right to remain silent before the exchangeat issue; he respondedto the officer’s compound question about silence and an attorney. (Typed opn., p. 20.) Unlike the defendant in Williams, appellant did not respond with a question; he answered that he wanted a lawyer. (Typed opn., p. 20.) To make Williams applicable, the dissent was forced to appellant’s answer as two questions, (1) whether a lawyer could be brought and (2) whether one could be provided right now. (Typed opn.,p. 20.) As the opinion pointsout, the officer did not construe appellant’s answeras the dissent did; she did nottell appellant whether a lawyer could be brought or when a lawyer could be provided. (Typed opn., p. 20.) Instead, having failed to secure a waiverthefirst time, she tried to secure a wavier again, more forcefully this time, by telling appellant he did not understandthe rights he had just demonstrated he quite fully understood by exercising them. (Typed opn., pp. 20-21.) Second, respondent seeks review on the groundsthis court needs to “settle an important issue of law.” (PTR 1.) Respondenthasfailed to demonstrate the importanceofthe issue being raised. The Court of Appeal’s decision is a routine and straightforward application of existing law under Miranda and Smith, supra, 469 U.S.at p. 98 to the facts of this case. The result here is more dependent on the facts than the law. Any decision after review by this court would have very limited impact, as shown bythe narrownessofthe question respondent wants resolved, which asks whether an officer may ask clarifying questions when a suspect answersjust like appellant did -- “If you can bring me a lawyer ... .” (PTR 1.) Because the answer depends on the unique fact pattern of the colloquy, whatever decision this court reachesis unlikely to have widespread impact, add substantially to the body ofcase law,orassist police, trial courts, or appellate courts in any meaningful way. Third, the appellate decision is sound and well-reasonedin contrast to respondent’s position. Respondent argues that, when appellant respondedwith “If you can bring me a lawyer.. .”, “while he spoke or asked about them bringing him anattorney, he also expressed his clear desire to speak to them.” (PTR 12-13.) Respondentparses appellant’s desire to speak to police from his expressed desire to do so only with the guiding hand of counsel. This reasoningis illogical, because the right to an attorney is the right to have an attorney present during interrogation. As respondent would haveit, any suspect unfortunate enoughtoreiterate the right verbatim to his interrogator-- “I would like to have an attorney present during interrogation”or “J will speak to you only with an attorney present” -- has spoken ambiguously, because he has also expressed a desire to speak to police. The Court of Appeal, on the other hand, properly concludedthat, “[alfter being advised it washis right to have a lawyer present during the interrogation, [appellant] essentially responded-- bring me a lawyerandI will talk.” (Typed opn., p. 18.) As the court concludes, appellant “clearly understoodhis right to counsel and invokedit” and “‘[h]is straightforward and clear responsedid not require clarification” (typed opn., p. 18). Review ofthis decision will not alter this well founded conclusion. Finally, were this court to grant respondent’s petition for review, appellant does not request that this court address the additional issues presented to the Court of Appeal but not mentioned in respondent’s petition for review. (See Rule 8.500(a)(2).) Appellant notes that the Court of Appeal declined to reach multiple federal constitutional issues of importance, including a warrantless search, sufficiency of the evidence as to both an act causing death and premeditation and deliberation, and an irrational permissive presumption of guilt regarding appellant’s mental state. The issues not reached by the Court of Appeal in light of its reversal on the Mirandaissueare listed in the Statement of the Case, ante, and are argued in Appellant’s Opening Brief and Appellant’s Reply Brief. However, werethis court to grant review on the Miranda issue and reverse the decision of the Court of Appeal, appellant will ask this court to remand the matter to the Court of Appeal with directions that the appellate court consider those issuesin the first instance. (See, e.g., Jn re Manuel G. (1997) 16 Cal.4th 805, 814, fn. 3.) There is no necessity for this court to grant review wherethere is no conflict of decisional law,there is no significant issue of law, the appellate court’s decision is sound, and respondent’s reasoningis faulty. This court should deny review. 10 CONCLUSION There is no need for this court to grant review because there is no split of decisional authority, the case does not present an important question of law becauseit is fact dependent and involvesroutine application of settled law to the facts, the appellate court resolved the mattercorrectly, and respondent’s reasoning is faulty. This court should not grant review. Dated: April 17, 2011 Respectfully submitted, /s/ Diane Nichols Attorney for Defendant and Appellant 1] CERTIFICATION OF WORD COUNT Pursuant to California Rules of Court, rule 8.504(d)(1), I hereby certify the number ofwords in Appellant’s Answerto Petition for Review is 2,120, based on the calculation of the computer program usedto prepare this brief. The applicable word-countlimit is 8,400. Dated: April 17, 2011 /s/ Diane Nichols 12 DECLARATIONOF SERVICE PEOPLE OF THE STATE OF CALIFORNIA SUPREME COURT NO. 8191747 v. JOSE SAUCEDA-CONTRERAS COURT OF APPEAL NO. G041831 The undersigned declares: I am an attorney duly licensed to practice in the State of California and am nota party to the subject cause. My business addressis P.O. Box 2194, Grass Valley, California 95945-2194. I served the attached APPELLANT’S ANSWERTO PETITION FOR REVIEWbyplacing true and correct copy thereof in a separate envelope for each addressee named hereafter, addressed as follows: Court of Appeal Fourth Appellate District, Orange County Superior Court Division Three For delivery to: P.O. Box 22055 Honorable Richard F. Toohey Santa Ana CA 92702 700 Civic Center Drive West, Room K100 Office of the Attorney General Santa Ana CA 92702 110 West “A”Street, Ste. 1100 P.O. Box 85266 Jose Sauceda-Contreras San Diego CA 92186-5266 G55875 P.O. Box 5006 Appellate Defenders, Inc. Calipatria CA 92233 555 West BeechStreet, Ste. 300 San Diego CA 92101 Each envelope wasthen sealed and with the postage thereon fully prepaid deposited in the United States mail by me at Cedar Ridge, California on April 18, 2011. I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed at Cedar Ridge, California on April 18, 2011. /s/ Diane Nichols