Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVA1301388) OPINION APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed. Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, Edward Anthony Morales, confessed that he and Richard Gonzalez robbed and brutally beat to death Alex Padilla, the father of defendant's former girlfriend. Defendant later claimed he had falsely confessed to the crimes to protect his younger brother, Victor, whom defendant claimed committed the crimes with Gonzalez.
Gonzalez is not a party to this appeal. He was charged as a codefendant of the crimes but shortly before arraignment, committed suicide while in custody.
Defendant appeals from the judgment entered following jury convictions for murder (Pen. Code, § 187, subd. (a); count 1), robbery (§ 211; count 2), carjacking (§ 215; count 3), and kidnapping to commit robbery (§ 209, subd. (b)(1); count 4). The jury also found true the allegation that defendant knew that a principal was armed with a firearm during the commission of counts 2, 3, and 4 (§ 12022, subd. (d)). The trial court sentenced defendant to 25 years to life in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Defendant contends the trial court erred in denying his motion for new trial, which was based on the grounds defendant's counsel provided ineffective assistance of counsel (IAC) by (1) not properly advising defendant of his right to testify, (2) failing to call him as a witness at trial, and (3) not moving to suppress defendant's statements to law enforcement confessing he committed the charged crimes. Defendant also contends Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB 1437) abrogates the felony murder rule and applies retroactively to defendant's murder conviction. In addition, defendant contends the court erred in imposing a $300 state restitution fine and a stayed $300 parole revocation fine in violation of the state and federal Constitutions' ex post facto clauses. By supplemental briefing, defendant further contends the trial court violated his due process rights by failing to determine whether defendant has the ability to pay the imposed fines, fees, and assessments.
We reject defendant's contentions and affirm the judgment, without prejudice to defendant filing a petition in the trial court under SB 1437, in accordance with section 1170.95.
During the early morning on July 26, 2013, Mr. Padilla was murdered. A neighbor testified that during the early morning hours of July 26, 2013, she heard someone say, "'Help me,'" and someone hitting another person. It sounded like someone was in pain. After 10 minutes it was quiet. The neighbor called the police.
At 5:12 a.m., Police Officer Stacey arrived at the street behind the neighbor's house, near Padilla's home. Officer Stacey found in the street a bloody shirt. He also found on Padilla's driveway a broken baseball bat, a water bottle, a laptop, a notepad, a pen, keys, and other items. Officer Stacey saw a lot of blood, suggesting a violent struggle. There was blood on a vehicle in the driveway, the garage, and the sidewalk leading into the backyard. There were also fresh tire tracks on Padilla's lawn.
Police officers entered Padilla's home in search of those who might have been seriously injured. Padilla's wife and two daughters told the police Padilla had left for work early that morning. Padilla's car, a black Nissan Versa, was gone and he was not answering his cell phone. The bloody shirt and other items strewn on the driveway belonged to Padilla. Padilla's family told the police defendant might be involved. Defendant was a former boyfriend of one of Padilla's daughters and had spent a substantial amount of time with the Padilla family. The two year relationship ended about a year before the murder.
At 10:00 p.m., on July 26, 2013, Police Officer Palmer was dispatched to Flores Park in Rialto, in response to a vehicle fire. Upon arriving, Officer Palmer saw a black car engulfed in flames. After the fire department put out the fire, a police field evidence technician examined the vehicle and found Padilla's body in the vehicle. His hands, chin, and neck were bound with duct tape. The technician also found in the car a pair of scissors, Padilla's employee identification card, and Padilla's wallet.
A forensic pathologist determined that Padilla had sustained burns, lacerations, and bruising to his body. His skull had several depressed fractures, indicating something struck his head and on the opposite side he had scalp contusions. In addition, Padilla had scratches and puncture wounds consistent with being stabbed with scissors. His left index finger, larynx and hyoid bone were fractured. The forensic pathologist concluded Padilla died from a blunt force injury to the neck and head, with probable asphyxia from the hyoid and larynx fractures and from the binding around Padilla's head and neck. The forensic pathologist also concluded Padilla was not alive when his body burned because there was no soot in his airway.
Upon searching defendant's apartment, the police found blood on the carpet, and a bleach bottle and stain remover on the balcony. The police also searched defendant's car. The car was clean and the floor mats were missing. Blood was found on a seatbelt on the driver's side. During a search of Gonzalez's residence, the police found a hand gun in the rain gutter outside Gonzalez's bedroom. There was blood on the butt end of the gun, the gun barrel, and magazine chamber.
Police Officer Vantuinen, who assisted with the investigation, testified defendant gave him his cell phone during his second interview on August 1, 2013. Defendant told Vantuinen he was in possession of his cell phone the entire day of the murder on July 26, 2013. The police obtained phone data from defendant's cell phone. Sergeant Guthrie, the lead investigator in the case, testified defendant's cell phone data showed that defendant called Gonzalez on July 26, 2013, at 1:47 a.m. Then defendant and Gonzalez exchanged text messages at 2:48 a.m. At 5:32 a.m., defendant received a call from Gonzalez, causing defendant's cell phone to "ping" off a cell phone tower about halfway between Padilla's house and Flores Park.
B.S. testified she met defendant and Gonzalez through social media. In 2013, a few months after meeting defendant online, the police called B.S. This was shortly after defendant had called B.S. and asked her to tell the police that he had been with her all night the previous night, which was untrue. Defendant told B.S. he wanted her to say this because he had been in a fight at a gas station. Defendant described his car for B.S. so she could confirm that information with the police. When B.S. spoke with the police a few minutes later, she said defendant had been with her all night at her home, until 7:00 a.m. on July 26, 2013.
A day or two later, the police met with B.S. and told her they were investigating defendant for murder. B.S. again said she had been with defendant during the night, which was false, but said she was with him only from 2:00 a.m. to 3:00 or 4:00 a.m., which was also false. After the police left, B.S. called defendant and told him about her encounter with the police. Defendant told B.S. he was involved in a fight, not murder. Then he gave the cell phone to his mother, who told B.S. there had not been a murder and that the police were trying to scare B.S. After B.S. said she did not want to be involved, B.S.'s mother sounded upset and told B.S. to keep quiet, lie, and not worry. About three weeks later, B.S. spoke to the police again and said defendant was not with her the night of the incident.
The police interviewed defendant three times. Officer Vantuinen interviewed defendant the evening of July 26, 2013, before Padilla's body was found. Defendant denied any involvement in Padilla's disappearance. Defendant claimed he had been with his female friend after leaving work the night before. During defendant's second interview on August 1, 2013, at the police department, defendant again denied any involvement in the crimes against Padilla.
After the police spoke to defendant's brother, Victor, defendant was interviewed a third time on August 6, 2013. During his third interview, defendant initially denied involvement in the crimes, but later said he was forced to go to Padilla's home at gunpoint, and ran home when Gonzalez attacked Padilla. Defendant claimed his fingernail came off during a work-related accident. Later in the interview, he said it was pulled off during the altercation with Padilla, when defendant accidentally slammed it in a door. When Sergeant Guthrie confronted defendant with Victor's statement and the cell phone evidence, defendant admitted that two days before the killing, he and Gonzalez planned to rob Padilla. Defendant stated that Gonzalez told him that defendant was only going to drive Gonzalez there and Gonzalez was not going to touch Padilla or hit him.
Defendant told Sergeant Guthrie that, at 4:50 a.m., he and Gonzalez parked down the street from Padilla's house and walked to the side of Padilla's house. When Padilla exited his house, Gonzalez hit him with a baseball bat in the face and body so forcefully the bat broke. As Padilla tried to run away, he dropped all of his belongings and his shirt came off. Gonzalez hit Padilla with a gun multiple times, pushed him into Padilla's car, and told defendant to drive the car. When the car went into reverse, it went across the grass and up on the curb, hitting another vehicle. While defendant was driving, Gonzalez tied up Padilla and continued hitting Padilla so forcefully that defendant crashed into a tow truck. Defendant heard what sounded like Gonzalez choking Padilla or stabbing him in the neck with scissors.
While defendant was driving, Gonzalez inadvertently said defendant's name and Padilla seemed to recognize defendant's voice. Padilla asked, "[W]hy? Why Anthony?" Defendant was known by his middle name, Anthony. Gonzalez then hit Padilla multiple times with his gun. Defendant believed Gonzalez killed Padilla because Padilla recognized defendant was involved and would likely figure out with whom defendant associated. Gonzalez did not want any "loose ends." Defendant heard Padilla breathing hard and saying, "I love you Lord, I love you Lord." Defendant and Gonzalez took a few bloody hundred dollar bills from Padilla's wallet.
After 15 or 20 minutes, defendant and Gonzalez drove back to the area of Padilla's house and saw two squad cars. Gonzalez got out of Padilla's car, retrieved defendant's car, and drove away. Defendant then drove Padilla's car to Flores Park, with Padilla in the car. Defendant abandoned Padilla's car containing Padilla's body at the park. Defendant ran home, where he met Gonzalez. Gonzalez retrieved his and defendant's clothes, put them in a plastic bag, and disposed of them. Gonzalez went back to the park and burned Padilla's car. Gonzalez or defendant's brother, Victor, cleaned defendant's car. Victor disposed of defendant's shoes. During his statement to Sergeant Guthrie, defendant said he deserved to die for what he had done.
INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends the trial court abused its discretion by denying his motion for new trial, which was based on IAC.
A. Applicable Law Regarding IAC
Although IAC is not one of the grounds enumerated in section 1181 for ordering a new trial, IAC is recognized as a valid ground for granting a motion for new trial. (People v. Cornwell (2005) 37 Cal.4th 50, 101.) When we review an IAC claim made in support of a motion for new trial, we apply a mixed standard of review. We defer to the trial court's factual findings if supported by substantial evidence, but we exercise de novo review over the ultimate issue of whether the defendant's constitutional rights were violated by IAC. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725.)
A criminal defendant's right to effective assistance of counsel is constitutionally guaranteed. (U.S. Const., 6th Amend.; Strickland v. Washington (1984) 466 U.S. 668, 684-685.) To establish a violation of that right, the defendant must show both that his counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, and that the lapse was prejudicial. (Id. at pp. 687-688, 691-692.) "'The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof . . . must be a demonstrable reality and not a speculative matter.' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 656.) "'Unless a defendant establishes the contrary, we shall presume that "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.]'" (People v. Lopez (2008) 42 Cal.4th 960, 966, citing People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)
B. Procedural Background Regarding Defendant's Right to Testify
Near the end of defendant's trial, defendant's trial attorney, Matthew Horeczko, told the court that the defense intended to blame Victor for committing the crimes with Gonzalez, and defendant falsely confessed to the crime because he was merely trying to cover for Victor. In support of this theory of third party culpability, Horeczko requested to introduce evidence of a prior robbery committed by Victor and Gonzalez, during which Victor lured the victim and Gonzalez then violently robbed the victim. The court said it did not object to defendant presenting evidence that Victor was involved in committing Padilla's murder, but the evidence of the prior robbery did not appear to be relevant. The court agreed to allow defendant to establish the relevancy of the prior robbery by allowing Victor to testify during an Evidence Code section 402 evidentiary hearing (402 hearing).
During the 402 hearing, Victor testified regarding the circumstances of Padilla's murder. Victor said he did not know he was going to testify until the morning of the 402 hearing, when he decided to admit that he, and not defendant, committed the murder. Victor claimed he did not come forward sooner because he waited until after he pled guilty to related charges in the case and believed he therefore could not be subjected to additional punishment or prosecution for the murder. Victor had pled guilty to being an accessory after the fact to murder more than a year before.
After hearing Victor's testimony, the court ruled that evidence of the prior robbery conviction involving Gonzalez and Victor would be admitted into evidence only if Victor testified at trial, and if he testified, he would be subject to examination about everything, not just the prior robbery. As a consequence, neither Victor nor defendant testified during the trial, and evidence of the prior robbery conviction was excluded.
After the trial, defendant filed a motion for new trial asserting IAC. Defendant argued Horeczko committed IAC (1) by not properly advising defendant that the decision whether to testify was defendant's alone, (2) by failing to call him as a witness at trial, and (3) by not moving to suppress defendant's statements to law enforcement. In support of his motion, defendant filed a declaration stating that his confession to the police was false. Defendant denied he was present or played any role in the crimes. Defendant claimed he made his false statements to the police in order to protect his brother, Victor.
Defendant further stated in his declaration that the night of the crimes, he worked the late shift, went home after work, left his cell phone by his bed, and went to sleep. When he awoke the following morning at 7:00 a.m., he heard Victor and Gonzalez talking and his cell phone was gone. Because Victor did not have a cell phone, he often used defendant's cell phone. Victor told defendant that morning that he and Gonzalez had robbed Padilla and the robbery "'got out of hand.'" Victor said that Gonzalez and Victor beat Padilla and hit him with a bat and a gun, causing Padilla to lose consciousness. They put him in his car and Victor drove Padilla's car to the park while Gonzalez beat up Padilla in the car.
Defendant further stated in his declaration that he and Horeczko discussed three or four times whether defendant would testify, and each time, Horeczko said he thought it was not a good idea. Defendant construed this as meaning defendant could not testify because it was Horeczko's decision whether defendant testified. Defendant claimed that, had he known it was his decision, he would have insisted on testifying. Defendant believed he needed to testify because the only two people who could show that his confession was false were defendant and Victor. The jury likely would not believe Victor because he had committed crimes in the past and used drugs to self-medicate his mental conditions of bipolar disorder and schizophrenia. Victor's behavior was often erratic and volatile. Defendant explained that, after hearing Victor testify poorly at the 402 hearing, Horeczko decided that Victor would not testify. Therefore, defendant was the only witness who could establish that his confession was false.
During the hearing on defendant's motion for new trial, Horeczko testified he discussed with defendant his right to testify at his criminal trial. Horeczko discussed this after the 402 hearing, and also twice immediately before that on the same day. The first time, Horeczko discussed the pros and cons of defendant testifying. Horeczko also discussed Victor testifying. Defendant and Horeczko hoped Victor would testify at trial. Defendant indicated he hoped Victor would testify because then defendant would not need to testify. Horeczko said to defendant, "'You cannot testify.'" Horeczko testified that he meant that he believed it was not in defendant's best interests to do so.
Horeczko further testified that, after the court heard Victor testify during the 402 hearing, Horeczko concluded both defendant and Victor should not testify because it would not be beneficial. Horeczko testified that near the end of the defense, he and defendant discussed the impact of the absence of Victor's testimony and the problems with Victor's testimony during the 402 hearing. Defendant did not say at this point he wanted to testify, but said he wanted to tell his side. Horeczko responded that the jury had already heard his side. Defendant replied, "'They saw me taking care of Victor.'" Horeczko emphatically told defendant, "'You can't testify.'" Horeczko testified he also told defendant, as a matter of practice, that defendant would be able to make the decision as to whether he would testify. Horeczko said he typically tells his clients that he cannot make that decision but will make his opinion clear on the matter. Horeczko explained to defendant when Horeczko first met defendant that it was defendant's choice as to whether to testify.
Horeczko stated he did not put defendant on the stand because of defendant's previous statements to the police, general concerns about him testifying, and problematic areas defendant would have to address. Horeczko believed defendant did not have the emotional stability to withstand testifying. In addition, Horeczko believed Victor testified very poorly and concluded some of Victor's testimony was false. Because defendant had heard Victor's testimony, Horeczko was concerned defendant's testimony would present similar problems and would not be believable. Horeczko acknowledged that defendant told him more than once, before and during the trial, that he wanted to testify. Defendant also told Horeczko he was not present when Padilla was killed, but Victor was present. Horeczko believed defendant would not benefit from testifying.
After hearing oral argument, the trial court denied defendant's motion for new trial and issued a detailed order. The court found that defendant knew he had a right to testify and willingly followed Horeczko's advice not to testify. The court found that defendant's statements to the contrary in his declaration were not credible, defendant never asserted his right to testify during the trial, and Horeczko's decision not to call defendant as a witness was "tactical, reasonable, and an appropriate exercise of good judgment." In addition, the trial court found, based on Victor's 402 hearing testimony, that defendant's false confession theory was "unbelievable and absurd." The court further concluded there was no prejudice in not calling defendant to testify because it would not have changed the outcome given the volume of evidence against him.
C. Advising Defendant of His Right to Testify
Defendant contends Horeczko committed IAC by failing to tell him he had the right to decide whether to testify. Although an attorney representing a criminal defendant has the power to control the court proceedings, that power may not be exercised to deprive a defendant of the fundamental right to testify in one's own behalf. (People v. Robles (1970) 2 Cal.3d 205, 214-215; Harris v. New York (1971) 401 U.S. 222, 225 ["Every criminal defendant is privileged to testify in his own defense, or to refuse to do so."].) Even if a defendant's insistence upon testifying may be harmful to his case, "the right is of such importance that every defendant should have it in a criminal case." (People v. Robles, supra, at p. 215.) Although normally the decision whether a defendant should testify is within the competence of the trial attorney, when a defendant insists that he wants to testify, he cannot be deprived of that opportunity. (Ibid.; see also People v. Carter (2005) 36 Cal.4th 1114, 1198.)
Defendant argues that there was insufficient evidence supporting the trial court's finding that Horeczko advised defendant that defendant had the ultimate say as to whether defendant would testify at trial. Defendant maintains that his declaration and Horeczko's testimony during the hearing on the motion for new trial do not support the trial court's finding. We disagree.
To the extent defendant's statements in his declaration were inconsistent with Horeczko's testimony, the trial court reasonably relied on Horeczko's testimony. The trial court found that Horeczko's testimony was truthful that he properly informed defendant of his right to testify and that the decision was defendant's alone. Horeczko conceded during his testimony that he firmly told defendant several times that he could not testify, but explained that he normally initially told his clients, including defendant, that they had the right to testify and that the decision ultimately was theirs alone. Horeczko said that, when he later told defendant he could not testify, he did so in the context of strongly advising defendant he should not testify because Horeczko believed it was not in his best interest. Horeczko added that defendant did not question his advice, object, or insist on testifying. Furthermore, defendant does not state in his declaration that he insisted on testifying. "When the record fails to disclose a timely and adequate demand to testify, 'a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity.' [Citations.]" (People v. Alcala (1992) 4 Cal.4th 742, 805-806; see also, People v. Carter, supra, 36 Cal.4th at p. 1198.)
We therefore conclude that Horeczko's testimony was sufficient to support the trial court's finding that Horeczko adequately advised defendant of his right to testify, including telling him the decision was ultimately his alone. Therefore, the trial court reasonably concluded there was no IAC.
D. Failing to Call Defendant as a Witness at Trial
We also reject defendant's contention that Horeczko committed IAC by failing to call defendant as a witness at trial, even though defendant told Horeczko several times that he wanted to testify. Defendant argues that testifying at trial was crucial because his sole defense was that Victor, and not defendant, was Gonzalez's accomplice in the crimes. Defendant asserts that his only options to establish his defense were (1) to testify, (2) to have Victor testify despite being a poor witness, or (3) to offer no defense to defendant's uncontested confession. The third option ultimately transpired at trial.
Citing People v. Day (1992) 2 Cal.App.4th 405, 407, 420, defendant argues his testimony was crucial to his defense and failure to present it constituted IAC. (Id. at pp. 407, 420.) We disagree. Horeczko's testimony demonstrated there was good reason for defendant not testifying. Because Victor testified very poorly and his testimony that he committed the charged crimes was not believable, Horeczko concluded neither Victor nor defendant should testify. Horeczko thought the jury would not believe defendant if he testified, and that defendant would not make a good witness. Therefore, Horeczko reasonably advised defendant not to testify at trial.
Defendant further asserts that Horeczko's decision that defendant not testify resulted from the assumption a criminal defendant should not testify and from Horeczko failing to investigate, prepare for, and anticipate defendant testifying. Defendant argues that after it was apparent Victor would not testify, defendant could have testified, but Horeczko had not prepared him to do so.
"To sustain a claim of inadequate representation by reason of failure to call a witness, there must be a showing from which it can be determined whether the testimony of the alleged additional defense witness was material, necessary, or admissible, or that defense counsel did not exercise proper judgment in failing to call him." (People v. Hill (1969) 70 Cal.2d 678, 690; People v. Panelina (1984) 153 Cal.App.3d 1, 8.)
Here, defendant has not demonstrated that, under the circumstances reflected in the record, Horeczko failed to exercise proper judgment in not calling him as a witness. Horeczko explained he normally did not want his clients to testify and, also, he did not want defendant to testify because Horeczko concluded during the trial that defendant would testify poorly and would not benefit from testifying. As the trial court stated in its order denying defendant's motion for new trial, "[s]ometimes the only defense is putting the prosecution to their burden of proof—not an unreasonable or improper approach in this case."
After defendant was convicted, Horeczko and defendant may have had second thoughts about defendant not testifying, but defendant has not demonstrated that Horeczko's tactical decision made during the trial, not to put defendant on the stand, was unreasonable or unfounded. "'In the heat of a trial, defendant's counsel is best able to determine proper tactics in the light of the jury's apparent reaction to the proceedings. Except in rare cases an appellate court should not attempt to second-guess trial counsel. [Citations.]'" (People v. Hill, supra, 70 Cal.2d at p. 690, citing People v. Brooks (1966) 64 Cal.2d 130, 140; see also, People v. Lucas (1999) 12 Cal.4th 415, 444.) We therefore conclude defendant has not established that Horeczko committed IAC by not having defendant testify.
E. Failing to Move to Suppress Defendant's Statements to Law Enforcement
Defendant contends Horeczko committed IAC by failing to move to suppress his third inculpatory statement made to law enforcement. The People argue that, because Horeczko objected to the "Miranda portion" of defendant's third statement, and not to the entire statement, defendant's objection on appeal has been waived. Because the record is unclear as to what Horeczko objected to or the grounds Horeczko asserted, we will consider defendant's IAC objection on the merits.
Miranda v. Arizona (1966) 384 U.S. 436.
1. Procedural Background
On August 6, 2013, Sergeant Guthrie conducted a third interview of defendant, which took place at the police station in an interview room. Police Detective Goltara was also present during the interview. Before questioning defendant, Sergeant Guthrie asked defendant if he understood his rights, and defendant said he did. Sergeant Guthrie then began questioning defendant without asking him if he waived his rights. After Sergeant Guthrie told defendant the police knew what had happened and believed defendant had not been truthful previously, defendant confessed to knowingly participating in the robbery and killing of Padilla. During the trial, the court noted that the court and counsel had discussed, in camera, the admissibility of the "Miranda portion" of defendant's recorded statement, and the court overruled his objection. The record does not show that Horeczko requested the court to exclude any other part of defendant's statement. Therefore, his entire statement was admitted into evidence.
2. Applicable law
Defendant argues Horeczko should have objected to the admissibility of his third statement because defendant did not expressly or impliedly waive his Miranda rights before Sergeant Guthrie began questioning him. "One of the principal tasks of a defense attorney is to attempt to protect his or her client from the admission of evidence that is more prejudicial than probative." (In re Jones (1996) 13 Cal.4th 552, 581.) This includes the admissibility of defendant's inculpatory statements. "An important part of defense counsel's job is to seek exclusion of evidence that is critical to the prosecution's case or that is highly prejudicial." (Id. at p. 582.)
To protect a suspect's Fifth Amendment privilege against self-incrimination, Miranda, supra, 384 U.S. 436 requires that, before a custodial interrogation, law enforcement must advise a suspect of the right to remain silent, that any statement made can be used against him or her in a court of law, that the suspect has the right to the presence of an attorney, and that if he or she cannot afford an attorney, one will be appointed, if requested, before questioning the suspect. (People v. McCurdy (2014) 59 Cal.4th 1063, 1085-1086.) Interrogation must cease if, at any point, the suspect unambiguously invokes the right to remain silent. (Berghuis v. Thompkins (2010) 560 U.S. 370, 381-382; People v. Lessie (2010) 47 Cal.4th 1152, 1162.) "A statement obtained in violation of a suspect's Miranda rights may not be admitted to establish guilt in a criminal case." (People v. Jackson (2016) 1 Cal.5th 269, 339.) There is a presumption against waiver of Miranda rights. (North Carolina v. Butler (1979) 441 U.S. 369, 373.)
Although an express statement can constitute a Miranda waiver, and silence alone cannot do so, such an express statement is not indispensable to finding a Miranda waiver. (North Carolina v. Butler, supra, 441 U.S. at p. 373.) "The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case." (Ibid.) Although mere silence is not enough, "[t]hat does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated." (Ibid.)
In determining whether there has been an implied Miranda waiver, the court must consider "the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel." (Fare v. Michael C. (1979) 442 U.S. 707, 724-725.) When determining whether a defendant "voluntarily, knowingly, and intelligently has waived his Miranda rights, a court analyzing the question must consider two distinct components: 'First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." (People v. Whitson (1998) 17 Cal.4th 1229, 246-248; see also Moran v. Burbine (1986) 475 U.S. 412, 421-423.)
3. Implied Waiver
The record does not reveal why Horeczko objected to only the "Miranda portion" of the third statement but suggests he did not object to the admissibility of the remainder of the statement based on tactical reasons. Regardless, the record demonstrates that any objection to the statement would have been futile. Although defendant did not expressly waive his Miranda rights after Sergeant Guthrie advised him of them, it is reasonably probable the trial court would have found that defendant impliedly waived his Miranda rights.
The transcript of defendant's recorded third statement shows that, when Sergeant Guthrie advised defendant of his Miranda rights, Sergeant Guthrie properly advised defendant of each of his Miranda rights. It was the third time law enforcement was taking defendant's statement regarding Padilla's killing. The first interview was informal and likely not custodial. The second interview, which was recorded, was held at the police station five days before the third interview, which was also held at the police station.
After Sergeant Guthrie read each of the Miranda rights to defendant during the third interview and asked if defendant understood each right, defendant replied, "[y]es." Then, after Sergeant Guthrie completed reading all of the Miranda rights to defendant, defendant again said he understood them. Sergeant Guthrie thereafter proceeded with interviewing defendant, after confirming, "So we are good on that. Alright, what do you think you're here for bro?" Defendant replied that he was there to get questioned again. Defendant gave no indication that he objected to speaking to Sergeant Guthrie or that he intended to assert his Miranda rights, even though the record shows he was well aware of his rights, including the right not to speak. These circumstances support a reasonable finding that defendant impliedly waived his Miranda rights before speaking to Sergeant Guthrie about the crimes during the third interview. Therefore, Horeczko could have reasonably concluded defendant implicitly waived his Miranda rights and it was futile to object to defendant's third statement.
Defendant's reliance on the out-of-state case, State v. Wilson (1981) 183 Conn. 280, 285, for the proposition there was no implied Miranda waiver, is misplaced because the case is factually distinguishable and does not concern IAC based on a Miranda waiver. Furthermore, out-of-state cases are not binding on this court. (Ammerman v. Callender (2016) 245 Cal.App.4th 1058, 1086.) In addition, we decline to follow Wilson under Berghuis v. Thompkins, supra, 560 U.S. at p. 384 ["Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent."].)
4. Voluntariness of Defendant's Third Statement
Defendant's contention that Horeczko committed IAC by not arguing defendant's third statement was involuntary, also lacks merit. "'In order to introduce a defendant's statement into evidence, the People must prove by a preponderance of the evidence that the statement was voluntary. [Citation.] . . . When, as here, the interview was tape- recorded, the facts surrounding the giving of the statement are undisputed, and the appellate court may independently review the trial courts determination of voluntariness.'" (People v. Maury (2003) 30 Cal.4th 342, 404, citing People v. Vasila (1995) 38 Cal.App.4th 865, 873; see also People v. McWhorter (2009) 47 Cal.4th 318, 346.) Here, defendant's third statement was tape-recorded and therefore this court's determination of voluntariness is de novo. (People v. McWhorter, supra, at p. 346.)
"'A statement is involuntary if it is not the product of "'a rational intellect and free will.'"'" (People v. McWhorter, supra, 47 Cal.4th at p. 346, citing Mincey v. Arizona (1978) 437 U.S. 385, 398.) The test for determining voluntariness is "whether the defendant's will was overborne at the time he confessed." (Lynumn v. Illinois (1963) 372 U.S. 528, 534; People v. McWhorter, supra, at pp. 346-347.) In cases of claimed psychological coercion, the question "'"'is whether the influences brought to bear upon the accused were "such as to overbear petitioner's will to resist and bring about confessions not freely self-determined." [Citation.]'"'" (People v. McWhorter, supra, at p. 347.) In determining whether or not an accused's will was overborne, "'"an examination must be made of 'all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.' [Citation.]" [Citation.]'" (People v. Maury, supra, 30 Cal.4th at p. 404; People v. McWhorter, supra, at p. 347; see also People v. Hogan (1982) 31 Cal.3d 815, 835.)
Here, the record does not show that, when defendant made his third statement, his will was overborne or he was coerced into confessing to the charged crimes. There is no showing of improper coercive police activity leading to defendant confessing during his third statement. "A finding of coercive police activity is a prerequisite to a finding that a confession was involuntary under the federal and state Constitutions." (People v. Maury, supra, 30 Cal.4th at pp. 404-405; People v. McWhorter, supra, 49 Cal.4th at p. 347.) "A confession may be found involuntary if extracted by threats or violence, obtained by direct or implied promises, or secured by the exertion of improper influence. [Citation.] Although coercive police activity is a necessary predicate to establish an involuntary confession, it 'does not itself compel a finding that a resulting confession is involuntary.' [Citation.] The statement and the inducement must be causally linked." (People v. Maury, supra, at pp. 404-405; People v. McWhorter, supra, at p. 347.)
The record, including defendant's recorded third interview, does not show any improper coercive questioning of defendant leading to defendant's confession. There is no evidence his confession was extracted by threats or violence, promises, or improper influence. Defendant argues the interrogating officers, Guthrie and Goltara, unduly pressured him by using interrogation tactics designed to persuade defendant to confess. Sergeant Guthrie began by telling defendant he knew what had happened and it did not look good for defendant. Sergeant Guthrie also said he knew defendant had not been honest with him and urged defendant to tell him what actually happened. Otherwise defendant would likely end up being convicted of murder. Sergeant Guthrie added that he had spoken with Victor, defendant's mother had been arrested for helping defendant, and he had defendant's cell phone. Sergeant Guthrie then minimized the seriousness of defendant's situation by telling him he did not think defendant was a bad person. He just had been in a bad situation that went wrong. Defendant gradually began changing his story until he confessed to being involved in killing Padilla, including hitting him to force him into the car.
Under these circumstances, defendant's interrogation was not unduly coercive. There was no impropriety in confronting defendant with what the police knew and urging him to tell the truth. (People v. Holloway (2004) 33 Cal.4th 96, 115.) "'[M]ere advice or exhortation by the police 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.'" (Ibid. citing People v. Jimenez (1978) 21 Cal.3d 595, 611-612.) The record also does not show that the officers threatened defendant with harm or falsely promised him benefits if he confessed. There is no evidence of dishonesty or trickery that amounts to a false promise. (People v. Holloway, supra, at p. 115.) We reject defendant's contention there was an implied promise of leniency when Sergeant Guthrie suggested to defendant that there is a difference between a robbery gone wrong and murder. We therefore conclude defendant has not established IAC based on Horeczko not objecting to defendant's third statement as being involuntary.
RELIEF UNDER SB 1437
Defendant contends SB 1437 abrogates the felony-murder rule and applies retroactively to defendant's conviction. The People do not disagree, but assert that appeal of defendant's felony-murder conviction is not the proper vehicle for defendant to seek relief under SB 1437. The People argue defendant must file a petition in the trial court for relief under newly enacted section 1170.95. We agree.
After defendant's conviction in November 2016, for first degree murder, robbery, carjacking, and kidnapping, the Legislature enacted SB 1437, which "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder . . . ." (SB 1437, §1, subd. (f).) SB 1437 eliminates aider and abettor liability for murder under the natural and probable consequences doctrine, murder theories the People argued at trial. The People also asserted alternative murder theories of malice aforethought murder and felony murder. The jury verdict does not reveal which theories the jury relied upon in finding defendant guilty of first degree murder.
In September 2018, the Governor signed SB 1437, effective January 1, 2019. SB 1437 amended sections 188 and 189, and added section 1170.95, significantly modifying the law relating to accomplice liability for murder. In its uncodified findings and declarations, the Legislature stated, "It is necessary to amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (SB 1437, § 1, subd. (f); see also People v. Lopez (2019) 38 Cal.App.5th 1087, 1104.) The Legislature also stated that, "Except as stated in subdivision (e) of [s]ection 189 of the Penal Code [relating to first degree felony murder], a conviction for murder requires that a person act with malice aforethought. A person's culpability for murder must be premised upon that person's own actions and subjective mens rea." (SB 1437, § 1, subd. (g).)
Accordingly SB 1437 limited section 188's definition of malice, as applied to the crime of murder. New section 188, subdivision (a)(3), provides, "Except as stated in subdivision (e) of [s]ection 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime." (See also SB 1437, § 1, subd. (g) "[a] person's culpability for murder must be premised upon that person's own actions and subjective mens rea."].)
Also, new section 189, subdivision (e) provides, with respect to felony murder, that the perpetrator is liable for murder "only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of [s]ection 190.2."
Section 1170.95, added by SB 1437, "permits those convicted of felony murder or murder under a natural and probable consequences theory to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if he or she could not have been convicted of first or second degree murder because of [SB] 1437's changes to sections 188 and 189. (§ 1170.95, subd. (a).)" (People v. Lopez, supra, 38 Cal.App.5th at p. 1100.) During a hearing on the section 1170.95 petition, the People have the opportunity to present new and additional evidence to demonstrate the petitioner is not entitled to resentencing. (§ 1170.95, subd. (d)(3).) The petitioner also may present new or additional evidence in support of the resentencing request. (People v. Lopez, supra, at p. 1100.)
Thus, rather than this court on appeal reversing and vacating defendant's murder conviction under SB 1437, defendant must file a petition in the trial court for relief under section 1170.95. Whether defendant is entitled to relief under SB 1437 must be considered in the first instance by the trial court, following remand, pursuant to the procedures provided in section 1170.95. (People v. Lopez, supra, 38 Cal.App.5th at p. 1113; People v. Anthony (2019) 32 Cal.App.5th 1102, 1147, 1152; People v. Martinez (2019) 31 Cal.App.5th 719, 727.) We reject defendant's arguments urging this court to conclude People v. Anthony, supra, 32 Cal.App.5th 1102 and People v. Martinez, supra, 31 Cal.App.5th 719, were wrongly decided. We therefore conclude that the proper vehicle for seeking relief under SB 1437 is not by direct appeal but, instead, by complying with the petition procedures provided in section 1170.95.
FINES SUBJECT TO EX POST FACTO LIMITATION
Defendant contends the trial court violated the state and federal Constitution ex post facto clauses by imposing a $300 restitution fine and a $300 parole revocation fine. Defendant argues that when he committed the charged crimes in 2013, the minimum restitution and parole revocation fines were $280. The minimum amount increased to $300, effective January 1, 2014. Defendant argues that the trial court should have imposed the minimum fines in effect when he committed the crimes, and not the minimum fines in effect when defendant was sentenced in 2018.
The state and federal ex post facto clauses forbid enactment of any law that imposes greater punishment than the law existing when the crime was committed. (Collins v. Youngblood (1990) 497 U.S. 37, 41; Tapia v Superior Court (1991) 53 Cal.3d 282, 294; Weaver v. Graham (1981) 450 U.S. 24, 28.) "Critical to relief under the [e]x [p]ost [f]acto [c]lause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the [c]lause if it is both retrospective and more onerous than the law in effect on the date of the offense." (Weaver v. Graham (1981) 450 U.S. 24, 30-31, original italics omitted.)
Here, the trial court did not impose a greater penalty than defendant might have received at the time he committed the charged crimes because in 2013, the trial court could have imposed a $300 fine under the current statutes. Although the minimum fine of $280 was less than the $300 fine imposed, the court was not limited to imposing the minimum fine. The court had the discretion under sections 1202.4 and 1202.45, to impose a fine in excess of the minimum fine, up to a maximum of $10,000. Defendant was thus on notice when he committed the crimes in 2013, that he could be subject to the $300 fines or even higher fines, up to $10,000. Because defendant's fines do not exceed the amount prescribed when his crime was committed, the $300 fines do not violate the state and federal Constitutions' ex post facto clauses. (People v. Snook (1997) 16 Cal.4th 1210, 1221.)
IMPOSITION OF FINES, FEES, AND ASSESSMENTS
While this appeal was pending, defendant filed a supplemental brief arguing that the trial court order imposing fines, fees, and assessments, without determining his ability to pay them, violated his right to due process. The People filed a response and defendant filed a reply.
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends the trial court violated his constitutional right to due process by imposing a $300 restitution fine (§ 1202.4, subd. (b)), a stayed $300 parole revocation fine (§ 1202.45), a $40 per count operations fee (§ 1465.8, subd. (a)), and a $30 per count criminal conviction assessment (court construction fee) (Gov. Code, § 70373), without first assessing his ability to pay or providing any explanation for the amounts. These fines, fees, and assessments were the statutory minimum amounts at the time of defendant's sentencing hearing.
The parole revocation fine "shall be suspended unless the person's parole, postrelease community supervision, or mandatory supervision is revoked." (§ 1202.45, subd. (c).) --------
The People argue in their respondent's brief that defendant forfeited his objections to these fines, fees, and assessments by not objecting in the trial court. Regardless of whether defendant forfeited his due process objections, we will exercise our discretion in considering the matter on the merits and therefore need not address the issue of forfeiture.
Defendant argues that under Dueñas, a stay of the restitution fine is necessary because "using the criminal process to collect a fine" a defendant cannot pay is unconstitutional. (Dueñas, supra, 30 Cal.App.5th at p. 1160.) Defendant argues that imposing fines, fees, and assessments, without a determination of ability to pay, violates his due process rights. Dueñas involved an unemployed, homeless mother with cerebral palsy, whose family, which included two young children, was unable to afford even basic necessities due to poverty and the inability to work. (Id. at pp. 1060-1161.) Dueñas's inability to pay several juvenile citations had resulted in suspension of her driver's license, which led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed and was sent to collections on other fees related to her court appearances. (Ibid.)
After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine, the minimum amount at the time, required under section 1202.4, subdivision (b). The trial court rejected Dueñas's argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal in Dueñas reversed, holding that "the assessment provisions of Government Code section 70373 and Penal Code section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[,] [and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution." (Dueñas, supra, at p. 1168.) The Dueñas court also held that imposition of a minimum restitution fine without consideration of Dueñas's ability to pay violated due process. (Id. at pp. 1169-1172.) The Dueñas court reversed the order imposing the fines, fees, and assessments, and directed the trial court to stay the execution of the restitution fine "unless and until the People prove that Dueñas has the present ability to pay it." (Id. at pp. 1172-1173.)
In the instant case, a reasonable inference can be made from the record that, when imposing these fines, fees, and assessments, the trial court considered defendant's ability to pay and reasonably found that defendant would be able to pay them. We conclude this based on the trial court rejecting the probation department's recommendation of substantially greater fines of $10,000 for the restitution and stayed parole revocation fines, which the trial court reduced to $300. The probation department also recommended defendant pay an investigation fee of $665, which the trial court did not order. In determining defendant's ability to pay the fines, the trial court could consider defendant's future earning capacity, including the ability to earn prison wages. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant's future ability to pay, including his ability to earn wages while in prison]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 ["defendant's ability to obtain prison wages and to earn money after his release from custody" are properly considered when determining whether a defendant has the ability to pay].)
We conclude the court reasonably could have concluded defendant would have the opportunity to earn income while serving his 25-years-to-life sentence. The record shows that, at the time of sentencing, defendant was 23 years old, had a twelfth grade education, and, prior to committing the crimes, had been working as a machinist and assistant foreman. Defendant stated in his declaration attached to his motion for new trial that he "was working two jobs at the time and did not need money." In as much as the trial court imposed significantly reduced restitution and fees amounts than those recommended by the probation department, a reasonable inference can be made that the trial court considered defendant's ability to pay and did not abuse its discretion in imposing the $300 state restitution fine, stayed $300 parole revocation fine, $40 per count operations fee ($160), and $30 per count criminal conviction assessment ($120).
Furthermore, even assuming the trial court erred in not conducting a hearing on defendant's ability to pay the fines, fees, and assessments, any such error was harmless because, as discussed above, the record demonstrates that defendant would be able to pay the fines, fees, and assessments amounting to $580. Defendant has ample time to pay them "from a readily available source of income while incarcerated." (People v. Johnson (2019) 35 Cal.App.5th 134, 140; People v. Jones (2019) 36 Cal.App.5th 1028, 1035.)
The judgment of conviction is affirmed, without prejudice to defendant filing in the trial court, under SB 1437, a petition requesting the trial court to vacate his murder conviction and resentence him as specified in section 1170.95, subdivision (d).
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
J. We concur: MILLER
Acting P. J. MENETREZ